The Expanding Landscape of Construction Accountability: A Critical Analysis of Dutyholder Responsibilities Beyond the Building Safety Act 2022

Abstract

The Building Safety Act 2022 (BSA 2022) represents a seismic shift in construction accountability, particularly concerning ‘dutyholder’ responsibilities. While much focus centers on higher-risk buildings (HRBs), the BSA 2022 and related regulations, including amendments to the Building Regulations 2010, impact a broader spectrum of construction projects. This research report provides a comprehensive analysis of dutyholder roles, expanding beyond the initial purview of the BSA 2022 to encompass a wider regulatory landscape influencing construction project governance. It examines the evolving definition of dutyholders, clarifies their legal obligations across different project phases – design, construction, and occupation – and elucidates the consequences of non-compliance. Furthermore, it critically compares these new responsibilities with pre-existing regulatory frameworks and explores the emergent challenges and opportunities for the construction industry. This analysis goes beyond a simple summary of legal requirements, delving into the practical implications, ethical considerations, and potential for improved building safety and quality through robust dutyholder implementation. The report also examines the interplay between the BSA 2022 and other related legislation such as the Construction (Design and Management) Regulations 2015 (CDM 2015), and the Fire Safety Act 2021.

Many thanks to our sponsor Focus 360 Energy who helped us prepare this research report.

1. Introduction

The construction industry is inherently complex, involving numerous stakeholders, intricate processes, and significant safety risks. Historically, accountability for building safety and quality has been fragmented, contributing to failures such as those highlighted by the Grenfell Tower tragedy [1]. The Building Safety Act 2022 (BSA 2022) represents a legislative response aimed at addressing these shortcomings by introducing a more stringent regulatory regime and assigning clear responsibilities to ‘dutyholders.’ However, the Act does not operate in isolation. It is inextricably linked to pre-existing legislation and ongoing regulatory reforms, creating a complex web of obligations for those involved in construction projects of all sizes. This report argues that a comprehensive understanding of dutyholder responsibilities necessitates a broader perspective than that solely focused on HRBs and the BSA 2022. We must also consider the impact of changes to Approved Documents (e.g., Approved Document B), CDM 2015, and the Fire Safety Act 2021. This report therefore considers the complete picture.

This report aims to provide a nuanced examination of the expanding landscape of dutyholder responsibilities, moving beyond a simple recitation of legal requirements to offer critical insights for construction professionals, legal practitioners, and policymakers. It achieves this by:

• Defining the evolving concept of ‘dutyholder’ within the context of the BSA 2022 and related regulations.
• Analyzing the specific legal obligations of different dutyholders across design, construction, and occupation phases, emphasizing the importance of competence and information management.
• Evaluating the potential consequences of non-compliance, including criminal sanctions, civil liabilities, and reputational damage.
• Comparing the new regulatory framework with pre-existing regulations, highlighting the key differences and improvements.
• Exploring the challenges and opportunities for the construction industry in adapting to these new requirements, including the need for enhanced training, collaboration, and technological solutions.
• Consideration of interlinked legislation such as CDM 2015 and the Fire Safety Act 2021.

Many thanks to our sponsor Focus 360 Energy who helped us prepare this research report.

2. Defining the Dutyholder: A Shifting Landscape

The concept of a ‘dutyholder’ is central to the BSA 2022 and its associated regulations. While the Act specifically defines dutyholders for HRBs – including the Client, Principal Designer, and Principal Contractor – the underlying principle of assigning clear responsibilities extends to all building work governed by the Building Regulations 2010 (as amended). Crucially, the amended Building Regulations expand the dutyholder concept beyond HRBs, impacting all construction projects to varying degrees. This section explores the evolving definition of dutyholders and their respective roles. The changes to the Building Regulations, not just the BSA 2022, significantly broaden the scope of dutyholder responsibilities.

2.1 Core Dutyholders:

• Client: The person or organization for whom the project is carried out. The Client bears the ultimate responsibility for ensuring that the project complies with all relevant regulations. They must appoint competent dutyholders and provide them with sufficient resources and information to fulfill their obligations. Critically, clients must take “all reasonable steps” to ensure compliance. Clients should also consider whether they possess the requisite competence to take on the project themselves, and engage expert advice at the outset if not.

• Principal Designer: Appointed by the Client, the Principal Designer is responsible for planning, managing, and monitoring the design work carried out during the pre-construction phase. Their primary duty is to ensure that the design complies with building regulations and that potential hazards are identified and addressed. The Principal Designer must coordinate design work to ensure effective collaboration between designers.

• Principal Contractor: Appointed by the Client, the Principal Contractor is responsible for planning, managing, and monitoring the construction work. Their key duty is to ensure the construction complies with building regulations and is carried out safely. The Principal Contractor must coordinate the work of all contractors involved in the project. They are responsible for the competence of all contractors on site.

2.2 Other Relevant Parties:

Beyond the core dutyholders, other parties involved in a construction project may also have specific responsibilities under the Building Regulations. These include:

• Designers: Individuals or organizations responsible for preparing designs for the project. They must ensure their designs comply with building regulations and that they have the requisite competence.

• Contractors: Individuals or organizations carrying out construction work. They must ensure that their work complies with building regulations and is carried out safely.

• Building Control Bodies (BCBs): Either local authority building control or approved inspectors, BCBs play a crucial role in verifying compliance with building regulations. They must be provided with the necessary information to carry out their duties effectively. There are expanded requirements around the submission of compliance reports.

2.3 Expanding Scope of Responsibility:

The BSA 2022 and related changes to the Building Regulations significantly expand the scope of responsibility for all dutyholders. Key enhancements include:

• Competence Requirements: All dutyholders must demonstrate that they have the necessary skills, knowledge, and experience to carry out their duties competently. This necessitates robust competence assessment and ongoing training. This is a significant change, requiring firms to invest in training and competency assessments. It is not just about possessing formal qualifications; it also requires demonstrable experience.

• Information Management: Dutyholders must manage and share information effectively throughout the project lifecycle. This includes creating and maintaining a ‘golden thread’ of information for HRBs, but also improved information flow for all projects. The ‘golden thread’ concept is evolving to include more than just HRBs as principles of detailed record keeping and information sharing are now being applied more broadly.

• Mandatory Occurrence Reporting: The BSA 2022 introduces mandatory occurrence reporting requirements for HRBs, requiring dutyholders to report safety-critical events to the Building Safety Regulator. While not directly replicated across all projects, it highlights the increasing emphasis on proactive safety management and transparency.

• Accountability for Building Safety Risks: Dutyholders are explicitly accountable for managing building safety risks. This requires a proactive approach to risk assessment and mitigation.

It’s important to note that the definition and responsibilities of dutyholders can vary depending on the specific nature of the project and the applicable regulations. Careful consideration should be given to the specific requirements of each project to ensure that all dutyholders are aware of their obligations.

Many thanks to our sponsor Focus 360 Energy who helped us prepare this research report.

3. Legal Obligations During Design, Construction, and Occupation Phases

Dutyholder responsibilities are not static; they evolve throughout the lifecycle of a building project. This section details the specific legal obligations of dutyholders during the design, construction, and occupation phases, highlighting the importance of proactive risk management and effective communication.

3.1 Design Phase:

During the design phase, the Principal Designer plays a critical role in ensuring compliance with building regulations. Their responsibilities include:

• Risk Assessment: Identifying and assessing potential hazards associated with the design, including fire safety, structural stability, and accessibility.

• Design Compliance: Ensuring that the design complies with all relevant building regulations, including Approved Documents.

• Coordination: Coordinating the design work of all designers involved in the project, ensuring effective collaboration and communication. This involves facilitating information sharing and resolving conflicts between design disciplines.

• Information Provision: Providing the Principal Contractor with the necessary information to carry out the construction work safely and in compliance with building regulations.

• Competence: The Principal Designer and all designers must possess the necessary competence to undertake the design work. This may require engaging specialist consultants to address specific risks.

3.2 Construction Phase:

During the construction phase, the Principal Contractor assumes primary responsibility for ensuring that the work is carried out safely and in compliance with building regulations. Their responsibilities include:

• Risk Management: Implementing and maintaining a robust risk management system to control hazards on site.

• Compliance: Ensuring that all construction work complies with building regulations and the approved design.

• Coordination: Coordinating the work of all contractors involved in the project, ensuring effective communication and collaboration.

• Competence: Ensuring that all contractors and workers on site are competent to carry out their assigned tasks.

• Information Management: Maintaining accurate records of all construction work, including any deviations from the approved design.

• Change Control: Implementing a robust change control process to manage any modifications to the design during construction. This is crucial to maintaining compliance and preventing unintended consequences.

3.3 Occupation Phase:

While the BSA 2022 places particular emphasis on ongoing building safety management in HRBs, all building owners and occupiers have a responsibility to maintain their buildings safely and in accordance with building regulations. This includes:

• Maintenance: Maintaining the building in a safe and sound condition, including regular inspections and repairs.

• Fire Safety: Implementing and maintaining a fire safety management plan, including regular fire risk assessments and fire drills. This is further reinforced by the Fire Safety Act 2021.

• Accessibility: Ensuring that the building remains accessible to all users, including people with disabilities.

• Record Keeping: Maintaining accurate records of all maintenance work, fire safety inspections, and other relevant information.

• Engagement with Residents: Effective communication and engagement with residents is paramount for understanding and addressing building safety concerns.

The responsibilities of dutyholders in the occupation phase are evolving, with increased emphasis on proactive risk management and resident engagement. The BSA 2022 and related regulations aim to create a culture of continuous improvement in building safety management.

Many thanks to our sponsor Focus 360 Energy who helped us prepare this research report.

4. Consequences of Non-Compliance

Failure to comply with dutyholder responsibilities under the BSA 2022 and related regulations can have significant consequences, ranging from criminal sanctions to civil liabilities and reputational damage. This section outlines the potential repercussions of non-compliance.

4.1 Criminal Sanctions:

The BSA 2022 introduces a range of criminal offences for dutyholders who fail to comply with their obligations. These offences can carry substantial fines and, in some cases, imprisonment. Examples include:

• Failure to appoint competent dutyholders: A client who fails to appoint competent dutyholders can be subject to criminal prosecution.

• Failure to comply with building regulations: Dutyholders who fail to ensure that their work complies with building regulations can face criminal charges.

• Provision of false or misleading information: Dutyholders who provide false or misleading information to the Building Safety Regulator or other relevant authorities can be prosecuted.

4.2 Civil Liabilities:

In addition to criminal sanctions, dutyholders can also face civil liabilities for non-compliance. This means they can be sued for damages by individuals or organizations who have suffered losses as a result of their negligence or breach of statutory duty. Examples include:

• Personal injury claims: Individuals who are injured as a result of building safety failures can sue dutyholders for damages.

• Property damage claims: Owners of properties that are damaged as a result of building safety failures can sue dutyholders for damages.

• Defective work claims: Clients who have suffered losses as a result of defective work can sue dutyholders for damages.

4.3 Reputational Damage:

Non-compliance can also have a significant impact on a dutyholder’s reputation. Negative publicity surrounding building safety failures can damage a company’s brand and erode public trust. This can lead to a loss of business and difficulty in attracting new clients.

4.4 Enforcement Action:

The Building Safety Regulator (BSR) and local authorities have a range of enforcement powers to ensure compliance with building safety regulations. These powers include:

• Improvement Notices: Requiring dutyholders to take specific steps to improve building safety.

• Prohibition Notices: Prohibiting the use of a building or part of a building if it poses a serious risk to safety.

• Stop Notices: Ordering work to be stopped if it is being carried out in a way that contravenes building regulations.

The BSR and local authorities are increasingly proactive in enforcing building safety regulations, and dutyholders should be prepared to face enforcement action if they fail to comply with their obligations.

4.5 Impact on Insurance:

Non-compliance can also impact a dutyholder’s ability to obtain insurance coverage. Insurers are increasingly scrutinizing building safety compliance, and they may refuse to provide coverage to dutyholders who have a history of non-compliance.

Many thanks to our sponsor Focus 360 Energy who helped us prepare this research report.

5. Comparing New and Pre-Existing Regulations

The BSA 2022 and related regulations represent a significant departure from pre-existing building safety regulations. This section compares the new regulatory framework with the old, highlighting the key differences and improvements. Critically the interaction between the BSA 2022, CDM 2015 and the Fire Safety Act 2021 must be considered when comparing the old and new regulatory frameworks.

5.1 Pre-Existing Regulations:

Before the BSA 2022, building safety regulations were primarily governed by the Building Act 1984 and the Building Regulations 2010. These regulations focused primarily on technical standards for building design and construction. The emphasis was on compliance with prescriptive rules, with limited focus on proactive risk management or ongoing building safety management. CDM 2015 placed duties on Clients, Designers and Contractors but the focus was primarily on construction safety, not building safety in the longer term.

5.2 Key Differences:

• Focus on Risk Management: The BSA 2022 places a much greater emphasis on proactive risk management. Dutyholders are required to identify, assess, and mitigate building safety risks throughout the building lifecycle. This is a shift from a purely compliance-based approach to a more risk-based approach.

• Competence Requirements: The BSA 2022 introduces explicit competence requirements for dutyholders. This necessitates robust competence assessment and ongoing training. This is a significant improvement over the previous regulations, which did not explicitly address competence.

• Information Management: The BSA 2022 emphasizes the importance of effective information management. Dutyholders are required to manage and share information throughout the project lifecycle, including creating and maintaining a ‘golden thread’ of information for HRBs. This is a crucial step towards improving transparency and accountability.

• Accountability for Building Safety: The BSA 2022 makes dutyholders explicitly accountable for building safety. This is a significant improvement over the previous regulations, which often lacked clear lines of accountability.

• Enforcement Powers: The BSA 2022 grants the Building Safety Regulator and local authorities enhanced enforcement powers to ensure compliance with building safety regulations. This includes the power to issue improvement notices, prohibition notices, and stop notices.

• Integration with the Fire Safety Act 2021: The Fire Safety Act 2021 amends the Fire Safety Order 2005, clarifying that the responsible person for a building must manage and reduce the risk of fire for the structure, external walls (including cladding), and individual flat entrance doors. This interacts with the BSA 2022 by placing further requirements on dutyholders to ensure fire safety throughout the building lifecycle.

5.3 Improvements:

The BSA 2022 and related regulations represent a significant improvement over pre-existing building safety regulations. They provide a more robust and comprehensive framework for ensuring building safety, with a greater focus on proactive risk management, competence, information management, and accountability. The Act aims to create a culture of continuous improvement in building safety management.

However, the new regulations also present challenges for the construction industry, as discussed in the next section.

Many thanks to our sponsor Focus 360 Energy who helped us prepare this research report.

6. Challenges and Opportunities

The BSA 2022 and related regulations present both challenges and opportunities for the construction industry. This section explores these challenges and opportunities, highlighting the need for enhanced training, collaboration, and technological solutions.

6.1 Challenges:

• Complexity: The new regulatory framework is complex and can be difficult for dutyholders to understand and implement. This necessitates clear guidance and support from the government and industry bodies.

• Competence Gaps: There may be competence gaps within the construction industry, particularly in areas such as risk management and information management. This requires significant investment in training and development.

• Cost: Complying with the new regulations can be costly, particularly for smaller companies. This may require financial support from the government or industry bodies.

• Cultural Change: The new regulations require a significant cultural change within the construction industry. Dutyholders need to adopt a more proactive and collaborative approach to building safety.

• Integration with Existing Processes: Integrating the new regulations into existing project management and design processes can be challenging. This requires careful planning and coordination.

6.2 Opportunities:

• Improved Building Safety: The new regulations have the potential to significantly improve building safety, reducing the risk of fires and other disasters.

• Enhanced Quality: The focus on competence and information management can lead to enhanced quality in building design and construction.

• Increased Accountability: The new regulations increase accountability for building safety, which can drive improvements in performance.

• Innovation: The new regulations can stimulate innovation in building design, construction, and management.

• Competitive Advantage: Companies that embrace the new regulations and demonstrate a commitment to building safety can gain a competitive advantage.

6.3 Recommendations:

To address the challenges and capitalize on the opportunities presented by the BSA 2022 and related regulations, the following recommendations are made:

• Provide Clear Guidance: The government and industry bodies should provide clear and accessible guidance on the new regulations.

• Invest in Training: The construction industry should invest in training and development to address competence gaps.

• Promote Collaboration: Dutyholders should collaborate effectively throughout the building lifecycle.

• Adopt Technological Solutions: The industry should adopt technological solutions to improve information management and risk management.

• Foster a Culture of Safety: The industry should foster a culture of safety, where building safety is prioritized at all levels.

Many thanks to our sponsor Focus 360 Energy who helped us prepare this research report.

7. Conclusion

The BSA 2022 and related regulations represent a landmark achievement in building safety reform. By introducing clear dutyholder responsibilities, enhancing competence requirements, and strengthening enforcement powers, the new regulatory framework has the potential to significantly improve building safety and quality. The BSA 2022’s true success hinges on how well all of these aspects are implemented within the construction industry. Beyond simply satisfying legal obligations, it requires a fundamental shift in attitude and a dedication to building safety as a core principle, woven into the fabric of every construction project. Critically, however, we must consider the impact of changes to the Building Regulations, CDM 2015 and the Fire Safety Act 2021 to appreciate the full impact.

However, realizing this potential requires a concerted effort from all stakeholders. The government and industry bodies must provide clear guidance and support, while dutyholders must embrace the new regulations and invest in training, collaboration, and technological solutions. By working together, the construction industry can create a safer and more sustainable built environment for future generations.

Many thanks to our sponsor Focus 360 Energy who helped us prepare this research report.

References

[1] Moore-Bick, S. (2019). Grenfell Tower Inquiry: Phase 1 Report. Retrieved from https://www.grenfelltowerinquiry.org.uk/phase-1-report
[2] Building Safety Act 2022. (2022). Retrieved from https://www.legislation.gov.uk/ukpga/2022/30/contents/enacted
[3] The Building Regulations 2010. (2010). Retrieved from https://www.legislation.gov.uk/uksi/2010/2214/contents/made
[4] Construction (Design and Management) Regulations 2015. (2015). Retrieved from https://www.legislation.gov.uk/uksi/2015/51/contents/made
[5] Fire Safety Act 2021. (2021). Retrieved from https://www.legislation.gov.uk/ukpga/2021/24/contents/enacted
[6] HSE website, guidance on CDM Regulations. Retrieved from https://www.hse.gov.uk/construction/cdm/2015/index.htm