SAFER FUTURE

Six years on from the Grenfell fire, we have a new Building Safety Regulator, a regulator for construction products (the Office for Product Safety and Standards), and we are due to receive guidance on the Golden Thread of building safety information.

This is set against the backdrop of Schedule 11 of the Building Safety Act 2022, which gives wide-ranging powers to the Secretary of State to make regulations changing the system by which construction products are currently assessed, marketed and regulated. There will also be secondary legislation this year which, by reference to Schedule 11, supplements the existing Construction Products Regulation. The aim of these changes is to provide safe, reliable manufacturer information about construction products.

And now we have the long delayed report on construction products, Testing for a Safer Future – An Independent Review of the Construction Products Testing Regime commissioned by Department for Levelling Up, Housing and Communities (DLUHC) and written by Paul Morrell and Annelise Day QC.

Systemic failings of the current system

The report identifies several areas of concern:

• There is uncertainty over the arrangements being put in place for conformity assessment following Brexit, particularly in respect of product marking. This has been a particular problem for industry. During the course of the review, the implementation date for mandatory UKCA marking was postponed from 1 January 2022 to 1 January 2023 and now to mid 2025. There are some who say UKCA marking is a colossal waste of time, essentially duplicating the workings of CE marking in the EU and that it only exists because of Brexit

• There is no comprehensive listing of companies engaged in the manufacture, import or distribution of construction products. Who will host this database? I don’t believe the government will even consider it and no trade association can handle all construction products

• There is no generally accepted standard classification system by which the industry and its products can be monitored and analysed. Regulation and statutory guidance such as Approved Document B (AD-B) is confusing and only partially uses classification systems. These were not really used under BS 476, except for reaction to fire; and even then, UK classes like Class 0 are not enshrined in any British standard but come from the AD-B. They have also changed in meaning over the years

• No comprehensive database of products that have failed. I cannot see manufacturers agreeing to that

Actors’ behaviour

Module 2 of the Grenfell Tower Public Inquiry suggests poor behaviour on the part of those manufacturing and assessing construction products, severely undermined confidence in the system by which such products are regulated and come to market. The report suggests that these allegations fall broadly into four categories:

1. Failure by manufacturers to disclose all information relevant to the product and its assessment

2. Failure on the part of those responsible for testing to follow proper procedures in conducting the assessment process

3. Failure to ensure that certificates or classification reports were properly supported by the assessment process

4. Failure by manufacturers to ensure that performance claims made for their products were limited to those that were supported by the assessment process and were not misleading. Indeed, some would argue that some manufacturers deliberately did this

Use of the Construction Products Regulations

Regarding the use of the Construction Products Regulations (CPR) in support of product safety, the report concludes:

• The CPR was transposed from EU legislation when we left the EU but fails to recognise or take into account that the CPR is only mandatory for products where there are designated standards. This does not include most passive fire protection products, for which CPR is voluntary via the EOTA route

• The Regulation was primarily designed for the purpose of creating a level playing field for a single market, and not for ensuring safe or sustainable products

• With five different Assessment and Verification of Constancy of Performance (AVCP) levels and up to six steps through the system, the CPR assessment process is so complex that few people properly understand it

• Surveillance and enforcement has been almost totally non-existent, so that bad actors feel that they can bypass the regulations without consequence, as far as can be ascertained, there have been no prosecutions under the CPR since it was enacted

Suggestion made in the report

• All construction products will be brought into the scope of the CPR by virtue of a “general safety requirement”. This is being covered by a new designated standard (or an existing standard newly recognised as “designated”); or by being added to a list of “safety-critical” products to be set out in regulations by the Secretary of State. We are still awaiting this list of what ‘Safety Critical’ entails

• A National Regulator for Construction Products (OPSS) within the Department of Business and Trade (DBT), who will work with a new Building Safety Regulator based in the HSE

• Requirements for manufacturers to share technical documentation and information with the National Regulator for Construction Products and/or enforcement authorities

The report comments that the general safety requirement is too open ended, vague and unspecific to be of any use. We tend to agree, at least until we see any detail.

Another way of covering all products would be to require all manufacturers to issue a Declaration of Performance as per CE marking.

Recommendations within the body of the report

• To apply the regulatory AVCP system only to products that are listed as safetycritical

• To redefine the AVCP system as a single level comprising the six steps of the existing AVCP system level 1+ with the addition of a requirement for labelling/ traceability

• To set a minimum standard for all thirdparty voluntary schemes, so that they replicate or surpass the rigour of the regulatory AVCP system

The above three recommendations are in general supported by ASFP as providing sufficient rigour to the system.

Other recommendations include:

• To develop the Code for Construction Product Information (developed by the industry) into something equivalent to the Advertising Standards Authority Code, with a view to resolving most low-level infractions without the Regulator needing to intervene

• To develop an awareness/education programme to reconnect the world of design and construction with the world of standards, testing and certification, and to promote awareness of the process by which products are regulated and assessed for conformity. This is very much in line with thinking in the Passive Fire Knowledge Group (PFKG – www.pfkg.org) of which ASFP is a member

The report also takes a swipe at ‘value engineering’, stating:

• It is for constructors (Tier 1 contractors) to bring everything together with the same objective in mind ─ using imagination to find better ways of doing things by all means, but not, in a careless moment, throwing away all of the good work that has brought the product and design to that stage in order to save cash in in the short-term, leaving the building owner and occupiers with a problem

Annex 1 recommendations

This annex contains recommendations describing what a properly functional testing system should look like. It then lists 20 recommendations (some quite vague) to address the situation. Below are the most pertinent:

Regarding safety-critical products: to increase the focus on products essential to safetycritical construction: i. Government to publish a fact sheet on the interpretation, operation and enforcement of provisions relating to safety-critical products to demonstrate how the complications noted in this review, and any others arising from consultation, can be addressed to ensure that the provisions will be both effective and proportionate ii. Government to list products (or products marketed as a system) as ‘safetycritical’ in the context of safety-critical construction, the safety function of the product, its susceptibility to fault or failure, and the consequences of failure. All products or systems meeting the criteria for listing should be listed as safety-critical, whether or not they are covered by a designated standard iii. Government to mandate that ‘safetycritical’ products or systems are subjected to the most stringent level of conformity assessment that is practical for the particular product or system (AVCP 1+) iv. Government and industry to examine the practicality and implications of producing an inventory or directory of ‘safetycritical’ products and systems

Regarding standards, the report recommends addressing the coverage, quality and oversight of UK standards. It recommends that government satisfy itself that the British Standards Institution (BSI) is free to act on mandates to develop or revise standards required as a UK national priority, unconstrained by the rules for CEN/CENELEC membership. There are huge problems with this being accepted by CEN and its members (not just EU countries) and we suspect this is a non-starter even if it could be useful.

Regarding Conformity Assessment (Approved Bodies)

i. Government to adopt all existing current CPR-GNB guidance notes, and set out plans for reviewing and updating the notes and for producing new guidance in the future ii. Government to impose upon Approved Bodies a duty to inform the Regulator where there is good reason to suspect that a manufacturer is “shopping around” for a test pass; or is misrepresenting the conclusions of the conformity assessment process in the Declaration of Performance (DoP), any related product information or other marketing material; or is manipulating the system in any other way that could undermine confidence in its outcome. [This could be seen as a ‘snitches’ charter and is unworkable] iii. Government, UKAS and CABs to consider whether any functions of the Oversight Committee recommended to oversee the conduct of voluntary third-party certification schemes (see recommendation 14.2) might usefully and appropriately be extended to the regulatory conformity assessment process

Regarding the Conformity Assessment system i. To simplify and strengthen the Assessment and Verification of Constancy of Performance system by: ii. Ensuring the transparency and accessibility of assessment documentation iii. Manufacturers to be required to make available the full suite of documentation that supports the DoP

Again, good luck with this, but I cannot see industry agreeing to the publication of confidential information in the form of test reports etc. If the system is rigorous enough, the DoP and classification report should be enough and more suitable for end users.

Conclusion

The report is interesting and is a good summary of the current situation and its failings. There is not much we did not know and the conclusions are fairly obvious and logical. We particularly like the idea of a single AVCP system for Safety Critical products, the use of a DoP, and the strengthening of voluntary third party product certification systems, although we would recommend that, if so strengthened, such systems could be the route of compliance for safety critical products.

It is worth reiterating that the Morrell Review is not government policy, rather it is a set of recommendations which should inform the forthcoming secondary legislation around construction products emerging from the Building Safety Act. It is expected that draft regulations will be published later this year.