Grenfell inquiry recommendations trail construction regulation reform

The final report from the inquiry was published on Wednesday 4 September and contains 58 recommendations of relevance to a wide range of organisations – from the fire service to social housing providers, as well as businesses involved in the construction of buildings in the UK.

The conclusions reached by inquiry chair Sir Martin Moore-Bick and his team are clear – in their view, the package of reforms implemented by the UK government in response to Dame Judith Hackitt’s independent review of building regulations and fire safety carried out in the immediate aftermath of the Grenfell fire has not gone far enough.

Hear Katherine Metcalfe and Stuart Davey discuss this story on The Pinsent Masons podcast here or wherever you get your podcasts.

The Hackitt review led to seismic change in the way that building control, testing and certification of construction products, and occupied higher risk buildings are regulated, in England and Wales. The Building Safety Act 2022 established new regulators, but it did not resolve the fragmented approach to regulation. The conclusion of the inquiry team is that nothing short of a single construction regulator, bringing together all of the disparate areas of regulation overseen by different parts of government, will resolve this problem for the future. 

A clear theme of accountability and transparency also runs through the recommendations and is likely to manifest itself in new compliance obligations. Future laws will expect more of product manufacturers – they will have to disclose test results in certification, and on request by customers. Manufacturers will also have to proactively tell the regulator if the performance of their product changes. Similarly, the report recommends greater regulation of fire engineers, architects, principal designers, and principal contractors, going beyond the new requirements added to building regulations last year. There is also a notable emphasis on named individuals who must sign off on compliance with building safety duties.

On a practical level, the report frequently refers to functional compliance with building regulations and that there is currently a less than complete understanding of the interaction between existing statutory guidance concerning fire safety – ‘Approved Document B’ – and the building regulations. That indicates a more bespoke approach to the design and construction of buildings will be required in the future. 

That change, coupled with the regulation of professionals involved in the design and construction process, suggest that the qualifications and capabilities of those involved in building safety will require renewed focus and perhaps investment. 

Prime minister Sir Keir Starmer has confirmed that the government will look at all 58 of the inquiry report’s recommendations “in detail” and that it will “respond in full” to them within six months. He further pledged to report annually on the government's “progress against every commitment we make”.

It seems clear then that the construction industry can expect a further period of significant regulatory change. Below, we look in more detail at some of the inquiry’s main recommendations.

The regulatory arrangements

The inquiry team recommended that a construction regulator be established and report to a single Secretary of State. They said the government should bring responsibility for the functions relating to fire safety currently exercised by the Ministry of Housing, Communities and Local Government (MHCLG), the Home Office and the Department for Business and Trade into one department under that single Secretary of State.

Such a construction regulator, the inquiry team said, would need to have sufficient resources to take on the following list of functions, most of which are currently discharged by one or other of a variety of bodies:

• the regulation of construction products;
• the development of suitable methods for testing the reaction to fire of materials and products intended for use in construction;
• the testing and certification of such products;
• the issue of certificates of compliance of construction products with the requirements of legislation, statutory guidance and industry standards;
• the regulation and oversight of building control;
• the licensing of contractors to work on higher-risk buildings;
• monitoring the operation of the Building Regulations and the statutory guidance and advising the Secretary of State on the need for change;
• carrying out research on matters affecting fire safety in the built environment;
• collecting information, both in this country and abroad, on matters affecting fire safety;
• exchanging information with the fire and rescue services on matters affecting fire safety;
• accrediting fire risk assessors;
• maintaining a publicly available library of test data and publication.

Higher risk buildings

The inquiry team recommended that the definition of a higher risk building for the purposes of the Building Safety Act be reviewed urgently. 

In the period since the Grenfell Tower fire, the UK parliament has passed the Building Safety Act 2022 – to regulate work on higher risk buildings, to impose particular duties on those involved in the construction and refurbishment of such buildings, and to establish a building safety regulator responsible for building control and for overseeing standards of competence. However, responsibility for the range of functions listed above remains dispersed. The inquiry team therefore recommended that the government draw together under a single regulator all the functions relating to the construction industry referred to above.

The inquiry report uses the expression “higher-risk building” in the sense in which it is used in the Building Safety Act – that is, a building that is at least 18 metres in height or has at least seven storeys and contains at least two residential units. However, the inquiry team thinks defining a building as “higher risk” by reference only to its height is arbitrary in nature and unsatisfactory. It considers  the nature of a building’s use to be more relevant, and, in particular, the likely presence of vulnerable people, for whom evacuation in the event of a fire or other emergency would be likely to present difficulty.

Chief construction adviser

To help the relevant Secretary of State have ready access to the advice of someone with good working knowledge and practical experience of the construction industry, the inquiry team recommended that the Secretary of State appoint a chief construction adviser with a sufficient budget and staff to provide advice on all matters affecting the construction industry. The adviser’s job would include:

• monitoring all aspects of the department’s work relating to the building regulations and statutory guidance;
• providing advice to the Secretary of State on request; and
• bringing to the attention of the Secretary of State any matters affecting the building regulations and statutory guidance or matters affecting the construction industry more generally of which the government should be aware.

Statutory guidance and Approved Document B

An urgent review and update of statutory guidance pertaining to building safety was also recommended by the inquiry team after inadequacies were identified with the existing guidance, which is set out in a series of ‘approved documents’.

The inquiry team said a revised version of the guidance should contain a clear warning in each section that the legal requirements are contained in the building regulations and that compliance with the guidance will not necessarily result in compliance with those regulations.

On ‘Approved Document B’, which relates to fire safety, the existing guidance proceeds on the assumption that effective compartmentation renders a ‘stay put’ strategy an appropriate response to a fire in a flat in a high-rise residential building. However that approach, the inquiry team said, has been called into question as new materials and methods of construction have emerged and as overcladding of existing buildings has been practised. As such, the inquiry team recommended that the assumption regarding a ‘stay put’ strategy be reconsidered when Approved Document B is revised.

One thing the inquiry team said had emerged clearly from its investigations was that in order to ensure the safety of occupants, including any with physical or mental impairments, designers of high-rise buildings need to be aware of the relationship between the rate at which fire is likely to spread through the external walls and the time required to evacuate the building or the relevant parts of it. A stay put strategy in response to a compartment fire will only be acceptable, the inquiry team said, if there is negligible risk of fire escaping into and spreading through the external wall. Calculating the likely rate of fire spread and the time required for evacuation, including the evacuation of those with physical or mental impairments, are matters for a qualified fire engineer, it added. The inquiry team did not think that it would be helpful to attempt to include in Approved Document B an indication of what would be acceptable because each building is different, but they recommended that the guidance draw attention to the need to make a calculation of that kind, because they consider it an essential part of any fire safety strategy.

In addition, the inquiry team said a fresh approach needs to be taken to reviewing and revising the building regulations and statutory guidance that is driven primarily by considerations of safety. It recommended that, as far as possible, membership of bodies advising on changes to the statutory guidance should include representatives of the academic community as well as those with practical experience of the industry – including fire engineers – chosen for their experience and skill, and should extend beyond those who have served on similar bodies in the past.

Building control

The inquiry team said there is a compelling case for requiring a fire safety strategy to be produced as a condition of obtaining building control approval for the construction or refurbishment of any higher-risk building and for it to be reviewed and approved on completion. It recommended that it be made a statutory requirement that a fire safety strategy produced by a registered fire engineer be submitted with building control applications prior to commencing construction – at regulatory ‘Gateway 2’ – for the construction or refurbishment of any higher-risk building and for it to be reviewed and re-submitted at Gateway 3, which is where works have been completed but regulatory approval is needed before buildings can be occupied.

Such a strategy must take into account the needs of vulnerable people, including the additional time they may require to leave the building or reach a place of safety within it, as well as any additional facilities necessary to ensure their safety, the inquiry team said.

Fire performance tests

The inquiry team cited the fact that the factors that affect the way in which fire spreads over ventilated rainscreen external wall systems are complex and that understanding them is an evolving science. They said intuitive judgements are often wrong because a small change in the system can have a significant effect on the outcome and added that assessing whether an external wall system can support a particular evacuation strategy is difficult because the necessary information is not always available.

To address this, the inquiry team recommended that steps be taken in conjunction with the professional and academic community to develop new test methods that will provide the information needed for such assessments to be carried out reliably. They believe that an existing British standard, BS 9414, that sets out procedures and rules for evaluating how variations and changes made to external cladding systems affect fire performance, will encourage people who are not trained fire engineers to think that they can safely assess the performance of a proposed external wall system by extrapolation from information obtained from tests on one or more different systems. They think that BS 9414 should be approached with caution and recommend that the government make it clear that it should not be used as a substitute for an assessment by a suitably qualified fire engineer.

Certification of products

The inquiry team recommended that the construction regulator be responsible for assessing the conformity of construction products with the requirements of legislation, statutory guidance, and industry standards, and for issuing certificates as appropriate. They believe such certificates must become pre-eminent in the market. To ensure clarity and avoid those who rely on certificates of conformity being misled, the inquiry team recommended that: 

• copies of all test results supporting any certificate issued by the construction regulator be included in the certificate;
• manufacturers be required to provide the construction regulator with the full testing history of the product or material to which the certificate relates and inform the regulator of any material circumstances that may affect its performance; and
•  manufacturers be required by law to provide on request copies of all test results that support claims about fire performance made for their products.

Fire engineers

The inquiry team said that designing buildings that are safe in the event of a fire requires particular skill that can be acquired only by specialised education and experience worthy of formal recognition. It said, though, that people can refer to themselves as a ‘fire engineer’ without first obtaining any formal qualification and warned that not all those who profess to be fire engineers are capable of performing that role competently and that the complexity of the subject matter is not well understood.

To address this and properly recognise the importance of fire engineers in ensuring the safety of life, the inquiry team said that the profession of fire engineer should be formally recognised and both the title and the function should be protected by statute. That, it said, would create a body of registered fire engineers who are capable of contributing to the design and delivery of safe buildings and of educating those construction professionals with whom they work in effective fire safety strategies. They therefore recommended that the profession of fire engineer be recognised and protected by law and that an independent body be established to regulate the profession, define the standards required for membership, maintain a register of members and regulate their conduct.

To speed up the creation of a body of professional fire engineers, the inquiry team also recommended that the government take urgent steps to increase the number of places on high-quality Masters-level courses in fire engineering accredited by the professional regulator.

Architects

The inquiry team recognised that both the Architects Registration Board and the Royal Institute of British Architects have taken steps since the Grenfell Tower fire to improve the education and training of architects. They recommended that those bodies review the changes already made to ensure they are sufficient in the light of the inquiry findings.

The inquiry team also recommended that it be made a statutory requirement that an application for building control approval in relation to the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a statement from a senior manager of the principal designer under the Building Safety Act 2022 that all reasonable steps have been taken to ensure that on completion the building as designed will be as safe as is required by the building regulations.

Contractors

The inquiry team highlighted shortcomings with the design and build form of contract, which is widely used and makes the principal contractor responsible for the whole range of activities relating to the work, even though it invariably engages sub-contractors to carry out different aspects of it.

The inquiry team also proposed that a new licensing scheme for principal contractors wishing to undertake the construction or refurbishment of higher-risk buildings be introduced. They said this scheme should be operated by the new construction regulator and that it be a legal requirement that any application for building control approval for the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a personal undertaking from a director or senior manager of the principal contractor.

Clients

The inquiry team welcomed regulations made under the Building Safety Act 2022 that require a building regulations compliance statement, made or approved by the client, to be provided at the time of an application for building control approval (Gateway 2). As a result of that requirement, the inquiry team said no further action in relation to clients is currently required

Building control

The inquiry team said there has previously been a serious misunderstanding of the role of building control and that change was needed to ensure the function acts more as enforcer of the building regulations than as a source of advice or even extension of the design team.

The inquiry said it expects the new construction regulator to continue work undertaken by the government to improve the regulation of building control and the competence of those who review building control applications.

To address the risk of building inspector conflicts of interest, the inquiry team recommended that the government appoint an independent panel to consider whether it is in the public interest for building control functions to be performed by those who have a commercial interest in the process. That panel, it said, should also consider whether all building control functions should be performed by a national authority.

Construction library

The inquiry team also recommended that the construction regulator sponsor the development of a library, perhaps as part of a joint project with the University of Queensland, to provide a continuing resource for designers. The library, it said, would provide access to a body of information, such as data from tests on products and materials, reports on serious fires and academic papers.

Prior government responses

To address perceived shortcomings with previous governments’ implementation of pre-Grenfell recommendations on fire safety, the inquiry team recommended that it be made a legal requirement for the government to maintain a publicly accessible record of recommendations made by select committees, coroners and public inquiries, together with a description of the steps taken in response. It said that if the government of the day decides not to accept a recommendation, it should record its reasons for doing so, and that scrutiny of its actions should be a matter for parliament, to which government should be required to report annually.

Fire risk assessors

The inquiry team recommended that the government establish a system of mandatory accreditation to certify the competence of fire risk assessors by setting standards for qualification and continuing professional development and such other measures as may be considered necessary or desirable. They said the accreditation system must be mandatory to ensure the competence of all those who offer their services as fire risk assessors.

Co-written by Joanna Higgins of Pinsent Masons.