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Building safety: the making of a regulator

Insight03 Sep 2020Sarah Williams

How do you create a regulator? Sarah Williams speaks to Peter Baker, director of the HSE’s building safety and construction division, to find out

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How do you create a regulator? Sarah Williams speaks to Peter Baker, head of the HSE’s building safety division, to find out #UKhousing #SocialHousingFinance

In January, the Health and Safety Executive (HSE) was tasked with forming the new Building Safety Regulator (BSR), as the government announced that the new body would be established under its umbrella “in shadow form, immediately”.

The recommendation for a new overall regulatory function to oversee all areas of building safety throughout the life cycle of a building emerged from Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety following the Grenfell Tower fire. Dame Judith, who published the review’s final report in May 2018, is also chair of the transition board at HSE to oversee the creation of the new regulator.

However, leading on the ‘operationalisation’ of the legislation – that is, turning it into a practical regulatory regime – is the director of the HSE’s building safety and construction division and a former chief inspector of construction, Peter Baker (pictured above).

Speaking to Social Housing, Mr Baker acknowledges that the new regulator – and the HSE as delivery body – has its work cut out.

“Achieving the right sort of step change in performance is, on the face of it, a big challenge. The review that Dame Judith Hackitt carried out identified a number of deficiencies and weaknesses in the system that needed to be fixed,” he says.

For social landlords, too, Mr Baker recognises that changes under way may seem “daunting”, particularly in the context of social landlords’ other key responsibilities.

While the details of how the BSR will function are still being worked through with government, Mr Baker highlights that the new regulator will not work as an isolated national body but through partnership with local regulators. “We’ll have a very close relationship with local authorities and fire and rescue services, as well as others.

In its shadow form, the HSE’s building safety function is already working with these parties. The government’s Joint Regulators Group, of which Mr Baker is also chair, aims to provide co-ordinated leadership to local authority and fire and rescue regulators during the transition to the new regulatory regime.

The HSE will also learn from its existing engagement with the construction sector through its construction sector regulatory function, where Mr Baker says the HSE has “a good track record of working with industry to achieve safety outcomes”.

Added to this is the HSE’s experience – through its regulation of high-hazard sectors, including within its chemicals and oil and gas regulatory functions – of “high consequence, low likelihood events”. These are major incidents of which one occurrence would impact a large number of people.

"We are quite familiar with the principles of what we are trying to tackle here”

Setting the new BSR apart from the HSE’s other functions is the fact that it will operate under a new statutory framework.

“This is legislation that is owned by the Ministry of Housing, Communities and Local Government, and all of HSE’s powers as the BSR will be under that separate legislation,” Mr Baker says. “But the new regulatory regime will look very similar in a number of cases to the way in which we regulate health and safety at work. We are quite familiar with the principles of what we are trying to tackle here.”

“Don’t panic”

The draft Building Safety Bill sets out further detail about the system of ‘dutyholders’ for each stage of a building’s life cycle and establishes the role of the ‘accountable person’ who will hold legal responsibility for the safety of higher-risk buildings in occupation.

Alongside obligations to assess and safeguard against fire safety risks, the accountable person will take responsibility for tasks such as applying for building assurance certification before a building can be occupied, as well as appointing a ‘building safety manager’ to carry out the day-to-day building safety management.

Mr Baker tells Social Housing: “This could all look really quite daunting – and it’s designed to, because we’ve got to get a real step change in attitude, behaviour culture and performance.”

But he adds: “My message [to landlords] would be, don’t panic. There is a lot of good work already going on to better manage building risks and to get ready for the new regime, so I would encourage landlords and businesses to work together, share ideas and information, and use the links that they may have through trade bodies and associations to get information and collective support and advice.

“And of course as we [HSE] develop the role of the Building Safety Regulator we will be providing insight and support to industry to help them get ready for what’s coming in the future.”

Competence building will be one of three broad remits for the new regulator – the others being to oversee and operate the new high-risk building regulatory regime, and oversight of the safety performance of the broader built environment.

Supporting competence within the wider sector will be particularly vital because of the shift the new regime will be endeavouring to implement in terms of where risk is identified, owned and managed.

Building Safety Regulator: key responsibilities

The draft Building Safety Bill sets out that the new regulator:

will have powers to raise and enforce higher standards of safety and performance across all buildings
must meet two key objectives: “a) securing the safety of people in or about buildings in relation to risks arising from buildings; and b) improving the standard of buildings”
has a duty to ensure the safety of “higher-risk buildings”, keep the safety and standard of buildings under review, and facilitate improvement in the competence of industry and building inspectors
has the right to propose regulations to the government at any time
has a duty to make arrangements for the establishment of “a system to facilitate the voluntary giving of information about building safety to the regulator”

Mr Baker says: “Dame Judith’s report in particular identified that in the existing system of building regulations and fire safety, for too long the accountabilities for managing risk were unclear [and] there was an over-reliance on regulators and guidance produced by government to tell businesses what to do almost in every case.

“To some extent the regulators were left in a position of owning some of the risk.”

By contrast, the new regime will very much reflect the underlying principles of the workplace health and safety principles that the HSE is used to delivering across its other functions.

Mr Baker explains: “The key one of those [principles] is that it is the responsibility of those that create the risk to manage and control it.

“So what you’ll see in terms of the regulatory approach of the BSR, I expect, is that there will be a very clear understanding that it’s for the building owners and the developers and the clients to assess, anticipate and set up all the necessary management control systems, and the performance and competence that’s required to deliver a safe building.”

As part of this, the regulator’s licensing function will operate “very much on the basis that it’s for the dutyholder to demonstrate to the regulator that they’ve got the necessary leadership, management capability and systems to ensure safety”, Mr Baker says. “That’s the shift here that we’re trying to achieve in terms of regulation.”

Change required

Achieving this change in mindset and adapting to the scope of the new regime more broadly will require a proactive approach from organisations, private and public, across the built environment.

But, writing in the latest edition of Social Housing, Dame Judith highlights that despite some “excellent examples” of leadership in the field, “too many organisations… continue to hold back from making the changes they know they need to make until they have to”.

It follows an August report by the Industry Safety Steering Group, of which Dame Judith is chair, highlighting the frustration of its panel members about the number of organisations “waiting to be told what to do in legislation before making changes”.

The group was set up in October 2018 to hold the industry to account for delivering cultural change.

“No one should need to wait to be told to behave responsibly,” the report added.

Residents first

Set out clearly in the draft Building Safety Bill is a new focus on residents – ensuring not only their safety, but also that they have access to safety information about their building as part of a focus on greater accountability and transparency.

Mr Baker says: “Residents not only need to be safe but they also need to feel safe, and one thing that is abundantly clear to me is that residents have lost confidence in the existing system.

“Setting up the new regulatory regime, particularly with an independent regulator, is all part of building that confidence back.”

He adds: “Part of assuring confidence in a system is transparency, and it will be really important for dutyholders to engage with their residents to share with them information about the risks, in particular the information that residents need to be able to play a part in managing those risks.”

Alongside engaging with stakeholders in the building at the gateway points in its life cycle, the BSR will play an important role in providing public assurance to residents and the wider public that dutyholders are managing risk.

Mr Baker says: “There will be a very clear theme running through all of this, that in order to build confidence in the system there needs to be transparency that the system is working properly – that it is demonstrably working.”

For Mr Baker, competence requires a mixed skill set – and an inquisitive approach.

“It not only means professional skill and knowledge, but also having experience of risk and how to manage risk. It requires an understanding of behaviour – having the right behaviours to deliver a particular function, and also understanding how the behaviour of residents, workers and contractors can actually impact on the risk of a building.”

He adds: “My experience of major hazard industries is also that you need a slightly different and more inquisitive approach towards risks, particularly around high-consequence events that – thankfully – don’t happen very often. Because it can always be very tempting to get into a false sense of security that, if you’re not having lots of incidents, therefore there isn’t a risk.

“Whereas, as we’ve seen, you need to always keep an eye on how small changes and small incremental degradation of the fabric of a building can aggregate gradually over time and result in a major accident.”

“It can always be very tempting to get into a false sense of security that, if you’re not having lots of incidents, therefore there isn’t a risk”

Under the government proposals for the new regulatory regime set out in its draft bill, a new series of ‘gateway points’ are designed to provide rigorous inspection of regulatory requirements to help ensure building safety risks are considered during planning, design and construction.

A ‘golden thread’ of building information will also need to be maintained and updated throughout this gateway process and the life cycle of the building.

Mr Baker says: “This is where we start to think about protection being through a series of barriers where not only do you need physical controls like alarms and fire doors and all of those sorts of things, but you also need competent people who understand the importance of those barriers and what to look for when they are not working properly.”

Management and leadership competence, and what Mr Baker refers to as a “constant level of intrusive inquisitiveness”, are therefore required.

“The most successful businesses that I’ve seen that manage these high-hazard risks have a leadership who understand the vulnerabilities of their business and their assets.

“They ask the right sorts of questions, aren’t satisfied when they receive positive answers, [and] are much more interested in information about where things aren’t working.”

Competing demands

Delivering the new requirements of the building safety regime may be front and centre for responsible housing associations, but the task joins a number of seemingly competing demands on their resources. Delivering new homes, improvements to existing homes and working towards zero-carbon targets are just a few.

Mr Baker acknowledges that for some dutyholders, health and safety is seen as “just another thing that they have to deal with”.

But he adds: “Actually, most successful businesses don’t look at these things separately.

“If they are managing their businesses properly with a good eye on risk – people risk, financial risk, environmental risk, [energy] efficiency, performance – if they look at these things holistically, and have a management approach to how these things link together, that can be a very effective way of successfully managing them.”

Chief inspector of buildings

Effective leadership will also play a crucial role at the new regulator. From the autumn, the HSE will begin recruitment for a new chief inspector of buildings.

Mr Baker says that, in line with parallel roles across its other functions, the successful candidate will need to provide professional leadership to all the other regulators that are operating in the built environment, as well as having a leadership role within industry itself.

“I think the chief inspector of buildings will have a very key role in encouraging and working with key industry stakeholders both in the interim but also when the new regime comes into force, and not only holding them to account as an industry sector, but also working with them and encouraging the sectors to step up and take ownership of the problem.”

He adds: “We are not going to deliver this Building Safety Regulator function or achieve the cultural change and all of the things that we’re trying to achieve from the system, without industry stepping up and doing its part.”