Matt Hodges-Long 22/09/2021
The new building safety case regime forms a major plank of Dame Judith Hackitt’s post-Grenfell building safety reform agenda. Building safety cases are enshrined in the Building Safety Bill which is proceeding through Parliament right now.
Safety cases were first recommended by Dame Judith in May 2018, agreed in principle by Government in December 2018 and enshrined in draft legislation since July 2020. Since then, working groups have convened and numerous warnings have been issued to the industry by Dame Judith. She said: “do not wait for regulatory change to change behaviour.” Yet it has taken until 8th September 2021 for the Health & Safety Executive to issue its ‘early key messages’ on the safety case regime.
Clarion Housing Association, an early adopter of the building safety case regime have said it will be difficult to get ready in time:
“We realised quickly that we needed to start changing our processes, systems, and structure now, to stand any chance of adequately meeting the new requirements in time.” – Clarion
MHCLG estimates that 12,500 high-rise residential blocks in England will immediately fall within the scope of the new Building Safety Regulator. At an industry level, the task is huge and the work required to get ready has barely started.
The recent Surviving Squalor documentary on ITV showed many of these high-rise blocks require significant works to be deemed fit for human habitation. That’s separate from making them suitably safe (from a fire and structural integrity perspective) to meet the expectations of the new Building Safety Regulator and receive a Building Assurance Certificate (note in the latest draft of the Building Safety Bill the Building Assurance Certificate has become the Building Assessment Certificate).
Buildings in scope of the new regulatory regime are “those at least 18 metres in height, or have at least 7 storeys, and contain at least two residential units.” The HSE go on to justify the application of the new safety case regime (which is already established in high hazard industries) by stating:
“Safety case regimes are used when the potential consequences of a single or linked series of events are significant and unacceptable, and to provide greater assurance that the necessary systems to prevent and limit the consequences of a serious incident are in place. Up until now, they have been reserved for high hazard industries (for example nuclear energy, railways, aviation, and chemical manufacturing).” – HSE
The new regulatory regime is restricted to Fire and Structural Integrity for now. Other areas of risk are covered by existing regulatory regimes, as are properties of differing type and height.
Significant expert evidence regarding the limited scope of the Building Safety Regulator has been submitted to the Government and MPs throughout the Bill scrutiny process. As yet no hints have been given that the initial scope of the regulator will be amended in response.
The building safety case regime marks a brand new approach to explaining the management of risk within high-rise residential blocks. The safety case regime is in effect a description of a building’s risk management programme in relation to fire and structural integrity.
Although not specifically mentioned in the HSE Guide, the submitted safety case report and the underlying safety case information it references can be used by the regulator against the Accountable Person in future legal proceedings.
We, therefore, recommend that all Accountable Persons think very carefully about the content of the safety case report prior to submission. You should also remain absolutely aware and concerned about its maintenance and ongoing validity post submission.
This is what Salix Homes, another one of the Building Safety Case early adopters, had to say about this point:
“It is important to be able to evidence each statement you include as to why your building is safe. It is not sufficient to just state that an element of your building is safe, you need all the supporting documentation available to evidence this, if you do not have it, then you cannot make the statement.” – Salix Homes
The HSE has identified two key components of the new regime and they describe them both in the following way:
“The safety case is all the information you use to manage the risk of fire spread and the structural safety of your building. In the proposed new safety case regime, you will use some of the information as evidence to demonstrate (or justify) how you are preventing major accidents in your building and limiting their consequences.”
“The safety case report is a document that summarises your safety case. The safety case report identifies the major fire and structural hazards associated with your building. It shows how you are managing the risks they present, as far as you can, to prevent a major accident.”
At launch, it is expected that the safety case report will be submitted to the regulator for review, approval and issuance of the Building Assessment Certificate. In some circumstances, the regulator may ask to look at further safety case details.
Although the safety case report is likely to be the main focus, since it is the document that will be submitted to the regulator, it is important that the underlying safety case information is not forgotten. This is where the evidential detail and recurring actions to manage safety reside.
According to the HSE Guide, through the building safety case regime, you will need to:
- demonstrate how you are keeping your building safe, and
- demonstrate why you believe the measures you have in place to prevent and limit the consequences of a major accident in your building are sufficient and effective, and
- demonstrate that you have a robust approach to the ongoing management of the building to make sure those measures remain effective. This requires you to think about your building holistically and to think of it as a system
Significant activity is ongoing within the industry in support of the proposed Golden Thread of building data. It is important to note that this HSE Guide makes no reference to the Golden Thread. The guide makes it very clear that the initial building safety case regime will be built around documents.
Below are a selection of references to documentation taken from the HSE Guide
“The safety case report is a document that summarises your safety case.”
“…you need all the supporting documentation available to evidence this…”
“The building safety case report should be a day-to-day management tool for housing and construction managers; the responsibility for updating the document (version control) should be actively owned by technical and property managers…”
“The safety case report should be a plain English accessible document.”
So, the new building safety case regime will be document-based and include 12,500 unique properties at launch. This means the new regulator must receive and review a minimum of 12,500 Building safety case reports. That’s in addition to any supplementary detail they request from the more detailed safety case.
From an Accountable Person’s point of view, it is most likely they will have to produce safety case reports for multiple buildings across a portfolio and manage the underlying documentary evidence of the wider safety case. This challenge will be compounded by the need to maintain safety case information and safety case reports (to be kept in sync with the Regulator at all times).
Some content from the safety case will also need to be shared with Residents and other stakeholders to comply with the broader Building Safety Bill and Fire Safety Act. The negative consequences of missed version control or inadvertent sharing of sensitive information could be significant for Accountable Persons.
This will require a new and far higher level of assurance than the industry is currently used to.
Accountable Persons should take urgent action to map out their document management and control requirements in support of the new building safety case regime. This is in addition to their new duties under the Fire Safety Act and may need help from external experts to achieve this.
Our experience of creating building safety cases is that a high-rise residential building safety case will contain over 100 live documents. Taking version control into account, this number rises to over 300 unique documents by high-rise block each year.
An Accountable Person with 100 high-rise blocks in their portfolio will need to identify, create, track and selectively share over 30,000 evidential documents per year to maintain compliance with the new regulatory regime(s).
The building safety case regime remains subject to amendment as the Building Safety Bill proceeds through Parliament. For this reason, the HSE cannot be definitive about the new regime, however, we are watching the Parliamentary process closely. As yet, safety cases are not a contentious issue or subject to any proposed amendments.
It is unlikely that the new Building Safety Regulator will look kindly on Accountable Persons that did not start to embrace behavioural change prior to the Bill receiving Royal assent and detailed regulations being published.
Speaking to an industry conference in October 2019, Dame Judith Hackitt said:
“My personal view is that the direction of travel is right, and progress on many of the aspects of implementing the recommendations is encouraging. But we’re not moving fast enough to change any of it. So, what are we waiting for? Why is there still a sense of waiting to be told?”
There is also a very strong argument that the majority of components forming the safety case are already required to maintain compliance with existing regulatory regimes.
HSE guidance states:
“The principles described may also help with meeting existing requirements under fire safety and housing legislation aimed at managing and controlling specific risks in buildings.”
In the same way the new Building Safety Regulator is being established in ‘shadow form,’ Accountable Persons should be developing their draft safety cases and safety case reports right now.
Gaps in risk controls could lead to significant capital works on site. These will take time and could be slowed by the Section 20 consultation process, patchy availability of Government grant funding and reduced availability of specialist suppliers.
If the new Regulator launches and imposes a strict criteria of No Building Assessment Certificate = Prohibition this could leave large numbers of Accountable Persons and Residents in a very difficult situation. If there is room for negotiation with the regulator this could be aided by an evidenced and maturing building safety case programme.
It would also be unwise to submit an immature safety case to the regulator. As mentioned earlier, the building safety case can and will be used against the Accountable Person in court.
The HSE Guide is very clear on the high-level principles for the Building safety case report:
- A clear description of your building
- What are the major accidents involving fire spread and structural safety that could affect your building?
- What measures do you already have in place to prevent and minimise major fire and structural accidents?
- How do you make sure your safety measures will work when required?
- Has the purpose of the safety case report been met?
Early adopter Camden Council shared their building safety case experience within the HSE Guide:
“Camden’s approach to the development of building safety cases has been to undertake gap analysis – to establish what we know and don’t know about the construction and structure of a typical high-rise block in scope of the Building Safety Bill, about levels of compliance and planned investment.”
It is also important to note what HSE state a safety case report should not be:
- a collection of individual reports, compiled without narrative, reference or context
- just a fire risk assessment (although this will form part of a safety case) and nothing else
- a ‘one-off’ exercise
- a standardised document containing generic information
- an overly technical or complex document
- a set of unsupported claims of safety without evidence
- a ‘copy and paste’ from another building’s safety case: while some features may be common, the hazards and risks may be unique and need to be considered separately
- an administrative hurdle to solely satisfy the regulator and residents, and then be put on a shelf
Through the new guidance, HSE has introduced language that might be new to the Property Management industry. Hazard and Major Accident Hazard fall into this category. The HSE Guide explains these terms:
“Hazard is ‘the potential for harm arising from an intrinsic property or disposition of something to cause detriment’ – in other words, a hazard is something with the potential to cause harm or damage.”
“A major accident hazard is an occurrence that has the potential to adversely impact the health or safety of many people. For example, multiple injuries or deaths, or serious damage to property.”
In the high-rise block context, the HSE Guide describes major accident hazards as a fire or structural failure, that:
- has the potential to impact the safety of occupants on more than one floor
- has the potential to cause harm to occupants across multiple compartments
- is one type of event that leads to another
- has an impact on surrounding populations
The HSE state that the safety case report should be succinct and we would go further to liken it to an executive summary of a report. The safety case report should not be a ‘data dump’ but instead should be a well structured, plain-language summary of why a building is safe and how it will be kept safe over time. It should allow the reader to understand:
- the major hazards associated with the building
- what measures are in place to manage, control and mitigate the risks from these hazards, including your safety management systems and the physical systems and precautions in the building
- how these measures are maintained
- what checks you do to make sure the measures will work when they are needed
- how you keep the safety case up to date (eg, periodic reviews, and before and after major changes, such as when the building is refurbished)
The time to start preparing building safety cases and writing building safety case reports is now. The regime will take time to embed and mature. The Regulator is unlikely to be sympathetic to Accountable Persons that have failed to take meaningful steps towards compliance.
The HSE says you should start to:
- draw together a clear description of your building
- think about the major accidents involving fire spread and structural safety that could affect your building
- describe the measures you have in place to prevent major fire and structural accidents, minimise their impact on people if things go wrong (eg, emergency evacuation and firefighting arrangements)
- set out how you make sure the measures will work when required
- think about whether your measures and your safety management system are enough to ensure the safety of the residents/building users from major accident hazards and whether any additional proportionate measures may be needed
- put together a process to ensure any modifications to the building consider the impact on fire and structural safety
Hopefully, this summary of the new building safety case regime has been useful. Please refer to the full HSE Guidance document and subscribe to their news updates. If you would like to discuss any aspect of the new regime or perhaps need assistance with producing your building safety cases please contact us.
To read more about how you can use the TrackMyRisks platform and consulting team to create your building safety case, please take a look at our Property Compliance solution page Or contact us for an informal chat.