Building Safety Regulator (England)

Clause 2 of the Building Safety Bill (not yet enacted), appoints the Health and Safety Executive (HSE) as the Building Safety Regulator in England.

The Building Safety Regulator will be an independent regulator with its own powers, strategic plan, and programme of work. It will give expert advice to local regulators, landlords and building owners, the construction and building design industry, and to residents.

The Bill proposes that the Building Safety Regulator will have two objectives:

(1) securing the safety of people in and around buildings in relation to risks from buildings

(2) improving building standards.

The Building Safety Regulator will:

* implement a new, more stringent regulatory regime for high-rise buildings in England (high-rise buildings are residential buildings of 7 storeys or more or 18 metres or more in height and in the design and construction phase only, including care homes and hospitals that meet the same height threshold)

* be the building control authority in England for building work on high-rise buildings

* oversee and enforce a new regime for occupation of high-rise buildings

* oversee the safety and performance of all buildings. This has two aspects:

(1) overseeing the performance of other building control bodies (local authorities and registered building control approvers (currently known as approved inspectors))

(2) understanding and advising on existing and emerging building standards and safety risks

* promote competence among industry professionals and regulators to raise standards in the design, construction, and management of buildings.

The HSE published on 14 October 2021 a fact sheet on its proposed enforcement approach – here.

This fact sheet states the HSE intends that –

* the Building Safety Regulator will deliver evidence-based, proportionate, and targeted engagement and interventions with dutyholders,

* the Building Safety Regulator’s programme of work will include communication activities to advise and support dutyholders and residents,

* enforcement activities and sanctions will be targeted to improve the safety and performance of buildings.

The Building Safety Bill provides for greater regulatory scrutiny and the HSE expects a series of hard stops at key stages during design and construction to be introduced by separate regulation (enacted under the Bill when it is an Act and commenced).

During occupation of the buildings in scope, the Bill requires dutyholders to demonstrate ongoing management of building safety risk through a safety case report. The HSE fact sheet states this will give the Building Safety Regulator a wide range of tools to achieve improved building safety performance and to deliver the culture change identified in Dame Judith Hackitt’s review Building a Safer Future.

The Building Safety Regulator will be responsible for the regulatory decisions during the design, construction, occupation and refurbishment of high-rise buildings.

Per the HSE fact sheet – the Building Safety Regulator’s activities to achieve building safety and performance outcomes will include:

* granting permission to proceed with construction work and issuing completion certificates at appropriate points in the construction and occupation phases

* a process of providing certification following assessment of the in-occupation safety case

as well as formal enforcement and sanctions.

There will be a published Enforcement Policy Statement (EPS). But it may be the HSE arrives at a position that it’s existing HSE EPS is sufficiently flexible to accommodate its new responsibilities as the Building Safety Regulator or it requires some amendment but is still the right vehicle.

Re the building safety report – the bill requires a building specific safety case report to be produced (high rise buildings in the design and construction phase). This safety case report will identify the fire and structural hazards associated with the building. It will set out how the risks they present are being managed to prevent the risks materialising and reduce the severity of any incident resulting if the risks do materialise. The adequacy of the safety case will be assessed by the Building Safety Regulator, working with multi-disciplinary teams, as part of the building assessment certification process.

Re oversight of existing building control inspection – the Building Safety Regulator will monitor the performance of local authority building control bodies and private sector building control approvers. The fact sheet states the HSE will also oversee and regulate all individuals working as building inspectors. Building inspectors and building control approvers will be subject to a registration requirement and the Building Safety Regulator may suspend or remove inspectors from the register and address performance and professional misconduct. The fact sheet states there will be improved competence and accountability through the creation of a unified professional and regulatory structure.

Coronavirus/COVID-19 measures (UK)

UPDATE : the general guidance for employers, employees and business includes these additional stipulations –

• businesses and workplaces should encourage their employees to work at home, wherever possible

• if someone becomes unwell in the workplace with a new, continuous cough or a high temperature, they should be sent home and advised to follow the advice to stay at home

• employees should be reminded to wash their hands for 20 seconds more frequently and catch coughs and sneezes in tissues

• frequently clean and disinfect objects and surfaces that are touched regularly, using your standard cleaning products

• employees will need your support to adhere to the recommendation to stay at home to reduce the spread of coronavirus (COVID-19) to others

Last week saw a raft of measures and the first legislation compelling action. These are compiled online – here.

Of particular note to this Blog are –

(1) the mandated closure of some workplaces and all workplace canteens where food is sold – here plus law on the matter here (England) and here (Wales)

[note the workplace canteen exceptions in the law]

(2) the definition of key worker – found in the guidance for schools closure – here

(3) the definitions of “self-isolating”, “social distancing” and “shielding” and the cohorts these apply to

“Self-isolating” – here

“Social distancing” – here

“Shielding” – here

(4) the relaxation of drivers’ hours (I blog posted about this last week) – here

(5) changes to Planning Inspectorate site visits, appeals, inquiries and events – here

(6) changes to Courts and tribunals planning and preparation – here

[note there are also changes to HSE and Environment Agency, and other regulator, site visits etc which are published in their own online web resources]

(7) general guidance for employers, employees and businesses – here

(8) guidance on the cleaning of workplace surfaces – here

(9) shipping and sea ports guidance – here

(10) restriction of non-essential rail travel – here

[note the London Mayor has announced reductions in TFL transport and transport in London, including by driving, should be for essential travel only]

[transport by driving outside of London should also be essential travel only]

The advice for anyone in any setting is to follow these main guidelines.

1 The most common symptoms of coronavirus (COVID-19) are recent onset of a new continuous cough and/or high temperature. If you have these symptoms, however mild, stay at home and do not leave your house for 7 days from when your symptoms started. You do not need to call NHS 111 to go into self-isolation. If your symptoms worsen during home isolation or are no better after 7 days, contact NHS 111 online. If you have no internet access, you should call NHS 111. For a medical emergency dial 999.

2 Wash your hands more often than usual, for 20 seconds using soap and hot water, particularly after coughing, sneezing and blowing your nose, or after being in public areas where other people are doing so. Use hand sanitiser if that’s all you have access to.

3 To reduce the spread of germs when you cough or sneeze, cover your mouth and nose with a tissue, or your sleeve (not your hands) if you don’t have a tissue, and throw the tissue in a bin immediately. Then wash your hands or use a hand sanitising gel.

4 Clean and disinfect regularly touched objects and surfaces using your regular cleaning products to reduce the risk of passing the infection on to other people.

High Rise Tower Fire Checks (UK)

Update 29th August : Independent fire specialists order different fire tests – reported in Inside Housing here. 

Update 6th July : new fire tests are ordered on cladding. So far, tests have covered only the plastic “core” on panels similar to those used on Grenfell Tower (and all but one fire test was a failure – 190 out of 191 samples). The new process will subject a demonstration wall to a “severe fire in a flat breaking out of a window” and aim to establish whether it will then spread up the outside wall. It will also assess how different types of aluminium composite material (ACM) panels behave with different types of insulation in a fire, the Department for Communities and Local Government (DCLG) said.

Update 22nd June : DCLG letter is issued to local authorities and housing authorities of immediate safety tests to be undertaken should the cladding material fail Fire tests – this letter is here. 

Update 16th June : a public inquiry is announced amid calls for an inquest to be held into the deaths. Scotland Yard will also conduct a criminal investigation. 

A devastating fire started last night in a high rise tower block in Kensington, West London – many of you will be watching the news reels that are covering this.

Nick Hurd, appointed yesterday as Police and Fire Minister, has announced immediate fire safety checks of similar high rise blocks. The scope of these checks is not presently clear. The instruction appears to be to Local Authorities. 

Part B of the Building Regulations 2010 (fire safety) is in the spotlight and has been with the government for review since 2016, following a devasting fire in another tower bloc in 2009 and that coroner’s report issued in 2013. The current Part B documents are here. 

Please remember that employers’ obligations vis a vis Fire Safety are consolidated by the Fire Safety Order (the Regulatory Reform (Fire Safety) Order 2005), and its equivalent in Scotland and Northern Ireland, these are in EHS Legislation Register systems, in the various Fire Safety Registers. The Building Regulations are found in ENV Energy. I will add the Part B documents to the OHS Fire Registers for completeness.

The Building Regulations are in the spotlight because of eye witness observations of the fast speed of fire spread. 

Concerns over external cladding were raised in the UK as early as 1999, here. 

This post will be updated, as and when further regulatory information is available. 

Forklift Truck Fatality (Britain)

A worker was killed on his first day of work, when the forklift truck he was driving overturned, crushing him.

Britain’s Health and Safety Executive (HSE) press release is here.

The court was told that the deceased was not wearing a seatbelt and there was no company policy in place to ensure seatbelts were worn.

HSE’s investigation also found that the forklift trucks in use at the company were not suitable for operation on uneven surfaces or over loose material such as that found on the site. Alternative vehicles, such as four-wheel-drive, all terrain shovel loaders, could have been used and were already in use elsewhere on the site. Since the incident, the company now uses these vehicles to move all the material on the site and it is now company policy for seatbelts to be worn at all times in all vehicles.

Recresco Ltd, of Lane End, Urban Road, Kirkby-in-Ashfield, Nottingham, was fined £180,000 and ordered to pay £38,693 in prosecution costs after pleading guilty to a breach of the Health and Safety at Work etc Act 1974 on 17 December 2014.

Speaking after the hearing, HSE Inspector Martin Paren said:

“Ian was just a few hours into his first day at work for Recresco Ltd when this tragic incident occurred. Our investigation revealed a series of failures at the plant, with forklift trucks being used in an area that was completely unsuitable because of the uneven surface created by waste material scattered around the floor. There was also no policy in place for the use of seatbelts.

Sadly it was entirely foreseeable that someone was at risk of being badly injured or killed. If the company had taken some simple measures to reduce the risks, such as using the all-terrain vehicles in use elsewhere on the site, then Ian’s tragic death could have been avoided.”

Port Operator Crew Fatalities (UK – Scotland)

23 September 2014: in the Edinburgh High Court, Clydeport Operations Limited, owned by Peel Ports Limited, admitted breaches of the Health and Safety at Work Act 1974, that had resulted in the death of three tug boat crew members.

The company accepted that between 29 December 2000 and 19 December 2007 there had been a systemic failure in risk assessments and safe systems of work. The company was fined £650,000.

The tug operator Svitzer Marine Limited had previously admitted to proximate cause of the deaths.

The Maritime and Coastguard Agency (MCA) took over the maritime element of the investigation from Strathclyde Police, once it was determined that the deaths were not suspicious. However, the investigation remained under the control of the Crown Office and Procurator Fiscal Service. The MCA found that there were also shortcomings in the application of the Port Marine Safety code in that neither the company secretary, nor the operations/human resources director, received training to adequately fulfil their role as the designated person with responsibility to ensure health and safety.

Sentencing at the High Court in Edinburgh on 29 September the judge, Lord Kinclaven, said:

The charges are severally and jointly very serious and extended for a long period of time, from 2000 to 2007.

Captain Jeremy Smart, Head of Enforcement at the MCA, said:

This was a tragic event and the MCA would like to express its sincere condolences to the families involved, who have endured a very difficult number of years. The investigation highlighted some very serious shortcomings in Clydeport Operations Limited’s safety management.

The MCA Press Release is here.

Vibration Causes Nerve Damage (Britain)

A Nottinghamshire aerospace engineering company has been ordered to pay more than £190,000 in fines and costs for failing to protect its employees from the effects of vibration, after 24 workers were diagnosed with debilitating nerve conditions.

Nottingham Crown Court heard that although HSE was notified of an employee being diagnosed with HAVS in 2010, the issue dated back to 2005 when the company’s health and safety committee asked it to carry out a suitable risk assessment for exposure to vibration, and act on the result. An assessment of the company’s tools took place in 2006 which identified some, including drills, grinders and hammers, posed a high risk from exposure to vibration. However, they were not taken out of service and no controls were put on their use until 2010. In addition, some employees used their own tools, which were also not assessed and therefore no controls put in place. HSE found that although the company provided some health surveillance for employees, it was not sufficient to identify symptoms early and refer individuals to occupational health specialists for timely diagnosis and management.

The symptoms of HAVS syndrome include blanching and numbness in the fingers, especially in the cold, as well as pins and needles, which can be extremely painful. This is due to damage to the small blood vessels and nerves supplying the hands. Sufferers can have difficulty picking up small objects and performing tasks such as doing up buttons. As sufferers cannot be exposed to cold without pain it can restrict some work and hobbies such as fishing, cycling or gardening.

Sufferers of carpal tunnel syndrome also experience pain and pins and needles, especially at night, and a reduction in grip. An operation is normally needed to release the nerve, although this is less successful if they have been exposed to vibration.

Speaking after the hearing, HSE Inspector Dawn Smith said:

“SPS Aerostructures Ltd was, from 2005, regularly being made aware that employees were suffering from vibration-related symptoms. They were being supplied with this information directly from staff and from their Occupational Health Nurse. However, they chose to ignore this information and allowed employees to work unrestricted with high risk tools, or their own tools.”

“The company was slow to implement improvements even after HSE’s involvement and had to be issued with an Improvement Notice in 2011 to ensure compliance.”

“Adequate assessment of the risk from vibration, provision of tools with lower vibration levels, and a good system of work would have ensured workers were not over-exposed to vibration. A better health surveillance system would also have identified problems earlier, and symptoms could have been managed to prevent them getting worse.”

Prosecution was for breach of Section 2(1) of the Health and Safety at Work etc Act 1974, which states: “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

The HSE press release is here.

Petrol Leak Enforcement (Britain)

A company which distributes fuel across a national network of pipelines has been fined after 35,000 litres of unleaded petrol erupted from pipework due to a joint failure.

Britain’s Health and Safety Executive determined the fuel, which escaped under high pressure and rained down on the site, could have resulted in a major fire and possible explosion. The leak also led to a significant clean-up operation, including the specialist decontamination of land.

HSE found that the pipework involved had been reconfigured and replaced as part of a major engineering project finished a week before. However, before being put to use the joints and fittings were not properly commissioned and tested.

British Pipeline Agency Ltd, of Alexandra Road, Hemel Hempstead, Hertfordshire, was fined £30,000 with costs of £58,606 after pleading guilty to breaching Section 2(1) of the Health and Safety at Work etc Act 1974.

After the hearing HSE inspector Alex Nayar said:

“This was a very serious incident with the potential to be extremely dangerous. It was also one that could have been avoided very simply.

“When plant is changed or modified it has to be tested and commissioned before being put into operation. That did not happen. If done properly it could have identified the fault.

“The leak posed two major hazards, a fire or a vapour cloud explosion. It is extremely fortunate that neither happened in this case as the outcome could have been much worse.”

The HSE press release is here.

Asbestos Enforcement (Britain)

Britain’s Health and Safety Executive found recommendations made in an asbestos removal plan were ignored by the contractor engaged to manage asbestos during demolition works. The asbestos spray coating on the main hall walls was chiseled off using power tools without any screens, enclosures or air extraction systems in place. Asbestos-containing material was bagged and carried to a skip outside. The contractor then notified the main contractors that the asbestos removal work on the main hall was finished, but when the project agents and main contractors visited the next day, they found the hall covered in dust and patches of asbestos material still on the wall.

The court heard that HSE found a catalogue of failings in the way the work had been planned and carried out. The exact location of asbestos material wasn’t identified and the work only took one day to complete rather than the planned seven. Risk assessments were too generic; enclosures, segregation and containment measures were inadequate; plans lacked detail; access and transit routes through the buildings weren’t clear; employees lacked specific instruction, and there was no reference to the original asbestos survey in the plan.

HSE experts concluded the company’s safeguards to control the asbestos risks were seriously inadequate leading to an unnecessary release and spread of dangerous asbestos fibres and dust.

The plan and risk assessment for the asbestos removal work in the building’s boiler room were also found to be confused and a decontamination unit was not powered. HSE served a prohibition notice to halt the work on the boiler room until the unit was properly powered and working.

Angus Group Ltd of Neilson Road, Paisley, Scotland, was found guilty of eight breaches of the Control of Asbestos Regulations 2006, and was fined a total of £109,000 and ordered to pay a further £42,100 in costs.

The HSE press release detailing the specific offences is here.

Decommissioning Project Fatality (Britain)

Joint investigation by Britain’s Health and Safety Executive (HSE) and the South Wales Police identifies fatal head injuries had occurred because a company had failed to adequately plan and resource decommissioning work. During dismantling of a section of industrial pipework at factory premises in Llantrisant in June 2010, a structure, weighing around 300kg, had collapsed and struck an employee (an engineer) who was assisting the specialist contractors.

During the decommissioning, the factory had become a construction site with the company electing to plan, manage and monitor the project themselves instead of appointing a competent Principal Contractor. As a consequence, it had overlooked various hazardous tasks such as the removal of overhead industrial pipes and their supporting structures. This work consequently fell to the in-house engineers because they had not contracted the specialists to do it.

The court was told that the employee’s work had not been adequately planned, risk assessed, communicated or monitored by management, and that the various safety systems the company used to manage its specialist contractors had not been used to manage its own engineering staff on the same site.

The police and HSE investigation established that because no written plan was provided to the company team explaining how the structure was to be taken apart, various bolts and structural elements were removed in an unsafe sequence. This is what led to the eventual collapse.

The Court also heard that a production manager for the factory was in charge of the hazardous decommissioning project, despite never having done this work before or having received any formal training. Furthermore, a safety officer only visited once or twice a fortnight and was based in Somerset.

Speaking after sentencing, HSE inspector Liam Osborne, said:

“Gavin Bedford, a young hard-working and highly-regarded engineer, was killed because of Gerber’s basic corporate failure to plan, manage and monitor a construction project. “Any demolition or dismantling work must be set down in writing and strictly monitored – as the law requires. It is also basic common sense.”

“If Gerber had given enough time at the beginning to think through what needed to be done, and how it should be done, then Gavin would still be here today.”

Prosecution was carried out under Section 2 (1) of the Health and Safety at Work etc. Act 1974, which states: “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

The fine was £80,000, with an order to pay costs of £75,000.

The HSE press release is here.

Acetylene cylinder explosion causes serious injury (Britain)

When an employee of a dissolved acetylene filling plant was filling an acetylene cylinder as part of a routine operation, the acetylene solution within the cylinder became unstable and the cylinder exploded, starting a fire which was allowed to burn for eight days, until, after careful consideration, it was extinguished by the Fire & Rescue Service.

The employee suffered multiple lacerations and significant burns to his left thigh, left arm and head.

An investigation by Britain’s Health and Safety Executive (HSE) found that the company had failed to ensure the health, safety and welfare of its employees and did not take necessary measures to prevent a major accident.

The company was fined £175,000 with costs of £85,000 after admitting breaching Section 2(1) of the Health and Safety at Work etc Act 1974. No evidence was presented on the other charge concerning a breach of the Control of Major Accident Hazard Regulations 1999.

After the hearing, HSE Inspector Evan Bale, said: “The employee’s serious injuries could have been avoided with some simple measures such as a thorough assessment of the risks, including an identification of human error potential and the design of the work.”

“Acetylene is a colourless gas which is widely used as a fuel and a chemical building block. It is very unstable in its pure form and is normally dissolved in a solution within a cylinder prior to distribution. The company fell below the standard expected for controlling risks associated with handling this hazardous chemical.”

“The plant is a top tier major hazard site and is subject to the COMAH regulations. There is no excuse for any major hazard operator failing to take all necessary measures to prevent major accidents.”

Link to the HSE Press Release.