Hackitt Final Report blog series: Week 1 - The creation of a new Joint Competent Authority

Following Dame Judith’s criticism in her interim report of the regulatory framework (it was deemed “not fit for purpose”), in her final report, amongst other measures, Dame Judith recommended the creation of a new body to oversee the change in the regulatory framework. The new body is termed the Joint Competent Authority (JCA).

This article considers the proposals for the JCA and sets out the following:

• a summary of the composition of the JCA and the key proposals for the JCA, and
• an overview of industry response to the proposal.

A summary of the composition of the JCA and the key proposals for the JCA

The primary purpose of the JCA is to oversee better management of safety risks in High Risk Residential Buildings (HRRBs) across their entire lifecycle. HRRBs are residential buildings of ten storeys or more in height that are considered to be "high risk". The report estimates (based on Land Registry and Ordnance Survey Information) that there are approximately 2,000 - 3,000 HRRBs.

It is also the role of the JCA to hold the Dutyholders (defined in the report as being “those key roles (whether fulfilled by individuals or organisations) that are assigned specific responsibilities at particular phases of the building life cycle”) including the Client, Designer, Contractor and Owner to account in respect of these entities’ responsibilities to demonstrate the delivery and maintenance of safe buildings.

In respect of holding Dutyholders to account for identifying the hazards and risks in their buildings, the JCA is to implement a new "safety case review".

It is proposed that the JCA comprises the following entities:

• The Health and Safety Executive (HSE) - the HSE is a public body. Part of the HSE’s role is to carry out research into occupational risks. In particular it is responsible for regulation and enforcement of workplace health, safety and welfare. It also investigates industrial accidents. The HSE has previously been criticised for its failure to properly carry out check visits, and that its procedures are insufficient to properly protect safety. Interestingly Dame Judith previously acted as the Chair of the HSE and stepped down in March 2016.

• Local Authority Building Standards - this is the proposed name for local authority building control services (see for example: here). Dame Judith considers the Local Authority Building Standards’ extensive technical expertise in respect of building safety and wider building standards will assist the JCA to enable it to provide extensive input during the design, construction and refurbishment stages of a construction project.

• Fire and Rescue Authorities (FRA) - the Fire and Rescue Services Act 2004 sets out the responsibilities of FRAs. Their responsibilities include the requirement to “identify and assess the full range of foreseeable fire and rescue related risks their areas face, make provision for prevention and protection activities and respond to incidents appropriately” . Dame Judith considers the FRAs currently provide both “fire engineering support and regulatory oversight on fire safety in respect of the same building”.

It is not Dame Judith’s intention that the above bodies should be merged together, but that they should work together to ensure a more rigorous assessment of building safety and “create a more unified and consistent intervention process” together with ongoing monitoring and assessment of HRRBs by the JCA once they are occupied.

Developers and those entities involved in constructing properties would be required to seek JCA approval at a series of “gateways”, including the following:

• sign-off by the fire service of the initial plans
• confirmation that the key building safety risks are understood and will be managed with "robust" processes, and
• satisfying the JCA that the project has been built as designed before occupation can start.

Industry response to the proposed new body

The industry response to the proposal has been mixed, with criticism focussed on the apparent lack of clarity in respect of the specifics of the JCA’s role, in addition to concerns regarding the effectiveness of combining three entities together and whether this would be practically efficient.

In respect of the positive impact of the introduction of the JCA, a key theme is a welcoming of the heightened responsibility that this joint authority will hopefully bring.

Trades Union Congress (TUC)

The TUC welcomed the introduction of the JCA, citing the combined resources as a positive step. However, the TUC is sceptical about the implementation of the JCA:

“any proposal to improve the effectiveness of the regulatory framework through pooling expertise must be welcome, but the question of who the regulator is, has hardly been the main issue. Instead it is the cuts in their numbers”.

The JCA “will only be effective if the bodies involved have got sufficient resources, and we have already seen big cuts in levels of both inspection and enforcement action from all three of the regulators over the past 8 years”.

Reference was also made to the need for a clear accountability matrix to be implemented in order for the JCA to properly take effect:

“The Authority will also have to know who to deal with at every stage of the life of a tower block, including design, construction and during its use, yet, given the rows that are going on over the issue of the responsibility for cladding on existing high-rise blocks, it is clear that there is considerable confusion over who is accountable. Is it the builder, the freeholder, the management body, or the individual leaseholders, which is why the report’s proposal for a named “duty-holder” is a step forward”

HSE ex-chief executive: Geoffrey Podger

Ex-chief executive of the HSE Geoffrey Podger is particularly critical of the lack of clarity for the proposal for the JCA, summarising the proposal (as quoted in a recent Health and Safety at Work article) as “putting the cart before the horse”.

Podger praised the report for setting out a positive vision, however also noting its apparent failure to properly set out the detail regarding how to meet that vision.

Podger also went on to criticise the proposal to bring together three bodies suggesting that it would be “better to have a new authority to manage the whole system, not just rely on a high level of co-operation with the risk that everyone carries on doing their own thing”

The British Safety Council

The British Safety Council concurred with Podger’s concerns, highlighted similar reservations:

“we are concerned about the practicalities of the proposed establishment of a Joint Competent Authority (JCA) to oversee fire and building safety.”

“In particular, it said such an authority would require joint working across three Whitehall departments at a time when resources are already stretched. It also questioned how the proposal to fund the new joint competent authority though a cost-recovery programme”

The Door and Hardware Federation (DHF)

The DHF appeared to welcome the introduction of the JCA, pointing to the increased accountability and the overseeing function of the JCA as a positive move:

“The introduction of a JCA (Joint Competent Authority) and the scope of their responsibilities is welcomed by DHF. This will ensure a greater ownership of responsibility”.

National Housing Federation

The National Housing Federation also welcomed the introduction of the JCA, in particular the intended role of the JCA in overseeing and controlling the process of ensuring health and safety compliance that it currently considers is absent:

“There is currently no clear process for controlling, recording or reviewing changes agreed during the construction process. This needs to change to deliver duty holder accountability and provide greater assurance to the JCA. Under the system proposed in the report, major changes would require an update from the duty holder to the JCA before work can take place. Minor changes would need to be recorded and identifiable at the completion of the works”