In the latest in our series looking at the implications of the Building Safety Bill, John Forde discusses the roles of dutyholders, and proposed competency requirements for building and design works.
One of the key recommendations of Building a Safer Future, Dame Judith Hackitt’s 2018 review of the building industry, was the concept of ‘dutyholders’: key players in the commissioning, design, construction and maintenance of high-risk residential buildings who would be legally responsible for managing safety risk.
The latest iteration of the Building Safety Bill provides some of the detail for the dutyholder regime – though much is still to be confirmed.
The Bill establishes the Building Safety Regulator, who will have powers to prescribe duties for “prescribed persons” working on all building and design work currently covered by the Building Regulations. (Somewhat confusingly, the Bill doesn’t define the term ‘dutyholder’). The Bill also contains a general competency requirement on prescribed persons, relating to their skills, knowledge, experience and organisational capability to perform their roles. Criminal liability will apply to those who don’t meet their duties – though the Bill does not spell those duties out.
Dutyholders for higher-risk buildings
The explanatory notes published with the Bill tell us that five new dutyholder roles will be created for “higher-risk buildings”, following the same terminology as the Construction (Design and Management) Regulations 2006 (see box). Each dutyholder will have defined responsibilities for managing building safety in higher-risk buildings and ensuring that building and design work complies with the Building Regulations.
The five new dutyholder roles
Client: Any person or organisation for whom a construction project is carried out.
Principal Designer: Appointed by the client, and responsible for monitoring and coordinating the pre-construction phase when most design is carried out.
Principal Contractor: Appointed by the client, and responsible for planning managing monitoring and coordinating the construction phase.
Designer: Anyone carrying on a trade, business or undertaking where they prepare or modify a design or instruct any person under their control to do so.
Contractor: Anyone managing or controlling construction work (including building, altering, maintaining or demolishing a building or structure) and also anyone who directly employs or engages construction workers.
The explanatory notes provide a basic outline of each dutyholder role, but full details are promised in secondary legislation. In the meantime, the Bill sets out some basic obligations that give us a flavour of what dutyholder responsibilities will look like for higher-risk buildings:
- A general duty on “prescribed persons” to govern the way building work is carried out. The explanatory notes say this is to ensure dutyholders engage with their requirements and not view them as “a tick-box exercise”.
- A requirement for “prescribed persons” and those they employ to be competent, as defined above.
- “Prescribed information” (formerly referred to as “the golden thread”) is expected to be required in digital format.
- A requirement for all dutyholders to report safety concerns to the regulator, as part of a mandatory occurrence reporting system.
Breaches of dutyholder requirements will be an offence (meaning they can’t be contracted out of), carrying punishment of a fine or up to two years’ imprisonment. The regulator will have powers to prosecute all offences in the Building Act, and prosecutions under the Act may be brought up to 10 years from the date of the alleged breach.
Dutyholders for building and design works
While the express requirements for higher-risk buildings are still to be confirmed, the government has set out its expectations for dutyholders working on building and design works covered by the Building Regulations.
The Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations, published in draft with the Bill, imposes legal requirements on clients to ensure that any building and works covered by the Building Regulations are properly monitored and that any appointees are also compliant. Appointees are also required to ensure their work complies with the Building Regulations. Appointees must not start work until they are satisfied that the client is aware of its own duties.
The Regulations also impose a general competency requirement on any person carrying out any building or design work that they have the skills, knowledge, experience and behaviours necessary, and the organisational capability where the appointee is a company, to carry out their work. Clients must also take all reasonable steps to ensure that anyone appointed to carry out building or design work covered by the Building Regulations meets these competence requirements.
Appointees are under a duty to inform the client in the event that they no longer satisfy a competency requirement.
The proposed dutyholder regime raises a number of complex issues for construction projects. Clients, other dutyholders will have to lift their game in the procurement of appointees to ensure that competency requirements are met and maintained. There’s likely to be some wrangling between dutyholders as to their respective liability for the safety of a construction project.
It’s also unclear how and to what extent dutyholders will be able to obtain insurance to cover their onerous new obligations. There are no easy answers to these questions – and until we see more detail about how the dutyholder regime will work, it will be difficult for the construction industry to start planning for the future.
John Forde is a managing associate at Trowers & Hamlins.