Nigel Ostime, architect and principal at Ostime Consulting, questions the effectiveness of the new competency requirements for Principal Designers under the Building Safety Act, asking whether the varied systems plus no unified vetting will ensure safety.
One of the glaring issues highlighted by the Grenfell Inquiry was a lack of competency; this was across the board and from top to bottom, and it included the architects. So perhaps unsurprisingly, one of the principal requirements of the new legislation has been for designers and Principal Designers to actively demonstrate and evidence their ability to perform their roles. But is there consistency across the industry, and if not, what should be done to achieve that?
Clients’ duties
Clients have an important role to play, and they can’t just be passengers in the process. They have similar duties under the Building Regulations as they have under CDM. As with CDM they have an obligation to appoint a Principal Designer and a Principal Contractor, albeit a ‘BR PD’ and a ‘BR PC’ as opposed to a ‘CDM PD’ and ‘CDM PC’.
If they fail to make these appointments, they are then required to fulfil the duties themselves, which is impractical or even unachievable for most clients.
The regulations stipulate that the Principal Designer must be appointed, in writing, before the construction phase begins, or before submitting an application for Building Control approval for a higher-risk building, but these are ‘longstops’ and in practice the appointment needs to be much earlier.
Clients have a duty to appoint a competent person to undertake the work, so there is an expectation they will undertake due diligence, probably by checking against previous projects and ensuring that the key people have the right accreditations. Where clients appoint an organisation, the organisation must designate a competent individual to carry out the functions of the role. This does not make the individual the Principal Designer or Principal Contractor – the legal responsibilities remain with the organisation.
Clients also have to make a declaration at the end of a project that to the best of their knowledge the work complies with regulations, which is a new responsibility.
Duties of the PD
Under CDM, the Principal Designer is required to:
- Plan, manage and monitor the pre-construction phase and to coordinate matters relating to health and safety; and to
- Ensure, so far as is reasonably practicable, that projects are designed and managed without risks to the health and safety of those who build, use and maintain them.
Under the Building Regulations, the Principal Designer is required to do the following:
- Plan, manage and monitor the design work during the design phase of the project
- Coordinate matters relating to the design work comprised in the project so that all reasonable steps are taken to ensure that the design is such that if the building work to which the design relates were built in accordance with that design the building work would be in compliance with all relevant requirements.
The ‘relevant requirements’ are the functional requirements of the Building Regulations 2010, as set out in Schedule 1 (so Part A, B, etc), plus the requirements of regulations 4, 6, 7, 8, 22, 23, 25B, 26, 26A, 28, 36, 41(2)(a), 42(2)a, 44A, 44ZA, 44ZC, and 44D-44I.
The BR PD must take ‘all reasonable steps’ to ensure the design work on a project is co-ordinated and demonstrates compliance with the Building Regulations. This is effectively a response to Dame Judith Hackitt’s call for a more “robust ownership of accountability.” The aim is to provide regulation of an industry where, as we saw with Grenfell Tower, design responsibilities have been split across multiple parties and have been lacking in terms of overall coordination.
Individual designers remain responsible for the compliance of their own design work, but the BR PD has overall responsibility for coordinating the design process.
Competence
Individuals must be able to demonstrate they are competent to carry out their duties and this means having the necessary skills, knowledge, experience and behaviours.
Organisations must be able to demonstrate they have the organisational capability to carry out their duties and undertake the work. This means having policies, procedures, systems and resources in place to make sure those employed by the organisation comply with all relevant regulations. The procedures and policies that organisations put in place should actively monitor and supervise their people and provide sufficient time and resources to do the job.
PAS 8671
There are no prescribed requirements for demonstrating competence under CDM but PAS 8671 sets out the competencies required for PDs with regard to the Building Regulations.
The RIBA has set up a registration programme based on PAS 8671. The RIBA Principal Designer Register Handbook and Competence Criteria booklets set out how architects need to demonstrate their competence to meet the criteria for registration. There are four specific competency headings:
- Behavioural
- Legislative/Regulatory
- Management
- Technical.
Each heading has core competencies which are required for all buildings and additional competencies for PDs delivering HRBs.
Behavioural competence
Under behavioural competence, architects need to demonstrate that they will not take on a specific Principal Designer dutyholder role when the needs of the project in question are beyond their competence, or their organisation’s capability. They also need to demonstrate the integrity required to identify and report design work that cannot conform to relevant requirements.
They must encourage designers to perform their own duties, including to cooperate with other duty holders and challenge designers to rework designs if design work shows insufficient evidence of compliance and or insufficient design compliance. And, they must challenge the Principal Contractor’s comments if they compromise design work compliance.
Assessing competency
Clearly designers and Principal Designers have a duty to be honest about their capabilities, but that aside, how should clients assess their competence, and to what extent are they doing that?
There are a number of options open to them. They can either ask for or require their appointees to be on one of the PD
registers set up by RIBA, CIAT and APS. Or they can ask their consultants to provide a self-assessment, which seems to be the most common approach.
To date there are 54 individuals on the RIBA register, 12 on the CIAT register, and the APS says they have nine but does not publish the list. Clearly this process is in its infancy.
Furthermore, registration demonstrates having met the requirements prescribed under that particular scheme, but they are all different, and consequently some are more stringent than others. Ultimately clients will need to make their own decisions and have to address a number of questions. Will they care that one scheme is less demanding than another? Will the Regulator consider clients have met their duties if they accept registration, but do not require further, project-specific evidence? To what extent must clients consider the requirements related to the nature of their project? Is there a need for overall guidance on using these accreditations for both architects and clients? Do we need to make the process of assessing competency more standardised?
The three principal dutyholders – clients, Principal Designers and Principal Contractors – all need to play their part to drive the outcomes Hackitt was promoting, and that Moore-Bick, who led the inquiry, was calling for. In many ways clients are the most disparate group of that triumvirate, but they sit at its head, and will be the ones who ultimately drive change, through their application and interpretation of the requirements of the regulations.
Perhaps it is not surprising as the legislation is relatively new, but there are clients who are unaware of their duties and are failing to allow sufficient time and resources on projects. Guidance for clients is urgently needed.
The regulations are intended to stop the race to the bottom – clients hold the starting gun and the chequered flag.