Understand your building maintenance compliance responsibilities

Understand your building maintenance compliance responsibilities

Jennifer Williams: As a facility manager or building owner, the worst thing you can do is stay in the dark about compliance. You need to understand your responsibilities in line with the Building Safety Act in order to safeguard those who use your facilities on a day-to-day basis. In this webinar, we're joined by Jason Instrell, electrical engineer and technical author at SFG20, as well as Rachel Davidson, Director of Specialist Knowledge at BESA, to provide you with a clear overview of the Building Safety Act and explain its legal requirements.

Jason Instrell: So, hello everyone and thank you for joining the webinar. My name's Jason Instrell. I'm an electrical engineer and a technical author for SFG20. I work as part of the authoring team, maintaining and updating the schedules in our system.

Rachel Davidson: Good afternoon everyone. Absolutely delighted to join the webinar this afternoon. I'm Rachel Davidson. I'm the Director for Specialist Knowledge at BESA. I've been working in this sector for over 30 years and I've been working with government and industry to develop and implement leading competence and compliance schemes against various regulatory frameworks. My current role focuses on the new building safety regime.

I would like to introduce BESA in terms of who we are and what we do before we actually get into some more information on the Building Safety Act itself. As Lisa introduced, we are the Building Engineering Services Association. We're a trade body and we're a membership organisation, and we represent the interest of over 800 mechanical and electrical contractors. We've got about 24 of the top 30 major contractors in membership, so collectively we're responsible for about 70% of the sector's turnover. Now, we've been around for a long time. We've been around for 120 years. Our members undertake the design, installation and maintenance of what I would say are the heart and lungs of the buildings, such as the heating, ventilating, air conditioning, and refrigeration systems.

I had a chat with my chief executive last week and I wanted to share some thoughts with you because I asked him how he would explain the benefits of joining BESA. He said some things that really struck a chord with me that, as I say, I want to share. And he said that the industry is full of bear traps for contractors. Stuff that really catches them out. And it's the stuff they don't know they don't know that really gets them because they can't Google it or ChatGPT it. If a single contractor comes into membership with BESA, they extend their learning circle from one company to over 800 because somebody will have seen it, done it and will share it, and they actually find out stuff that's of real commercial value, whether that's legal advice from our legal and commercial teams or technical standards or picking up new clients when they're networking with other members. And he said, we are of the industry, for the industry. And so after that chat, I thought, well, I can't explain BESA better than that. And my role within this organisation is to support those member businesses to understand and meet the requirements of the new building safety regime under the Building Safety Act.

So I'd like to move on now to have a look at the Act itself. What is it? Why was it introduced, and who does it apply to? I have to say, navigating regulatory compliance in facilities management is complex and it is ever changing, and the last few years have seen such a significant change in regulations within the FM space. You have the Fire Safety Act, the Fire Safety Regulations, the Building Safety Act, and that's just to name three. But there's absolutely no doubt that these changes in industry have forced a shift in priorities and duties for those working in facilities management. And I would say compliance is an absolute crucial part of any FM strategy nowadays.

Now, as I've said, my focus is on the Building Safety Act, and it is a major change in how we make sure buildings are safe. The Act became law in April 2022. It is a critical piece of legislation to improve the safety of buildings. Now, the driver for the Act, as we probably all know on this webinar, is a direct response to the Grenfell Tower fire that happened in 2017. That incident alone highlighted huge deficiencies in building and fire safety regulations, as well as really poor underlying cultural issues within the construction industry where cost savings sadly took priority over quality standards. And again, I think sadly, I would imagine that's still commonplace today in various parts of our sector. But that lack of standards cost lives.

The Building Safety Act very simply aims to prevent a tragedy like Grenfell from happening again. I think the biggest misconception in my job that I hear is that the Act only applies to high-risk buildings and this simply is not the case. The Act applies to all buildings and all individuals and organisations involved in the design, construction and management of buildings. It sets out more additional stringent requirements for the higher-risk buildings.

So I think on the next slide, what I'd like to do is have a look at what this means, what building safety means for those involved with maintaining a building. Now the Act itself brings in new duty holder roles, and those duty holder roles are the client, the principal designer, the principal contractor, and accountable person. Now, depending on the nature of the job and contract, facilities managers will be the duty holder, or they will often be the ones that support other duty holders with meeting their requirements, including when it comes to collecting and maintaining the relevant information towards evidencing the Golden Thread and the building safety case reports.

But also, if you commission repair and maintenance work that is covered by building regulations, you take on new duties as a duty holder client, and you are subject to the new requirements under the Act. Equally, if you're responsible for the repair or maintenance of common parts or the higher-risk building, you are a duty holder.

In all cases, facilities managers have a legal duty to be competent and compliant, and the three key responsibilities are to ensure compliance, to be competent and to cooperate, coordinate and communicate. And if I can leave three things with you today, it will be these responsibilities. But I do want to just unpack these.

So the duty to ensure compliance. Everyone who has a stake in a project has duties to make sure the facilities management work complies with building regulations or the relevant regulation standard or specification that is required. Now, the regulator has made it clear that established industry standards will be the benchmark against which compliance will be measured. So if your work requires building regulations notifications, make sure that this is recorded, reported, and evidenced. In all cases, maintenance regimes should be recorded, reported, and evidenced. I think a good question would be, can I recall the evidence from that maintenance regime that I put in place, or that I delivered on a project two years ago, five years ago, 10 years ago? It could be up to 30 years ago under the Defective Premises Act. So you need to have some robust recording systems in place now.

Secondly, the new regime places a significant focus on competence. Now for individuals, this means evidencing skills, knowledge, experience, and behaviours. That is the definition of competence within the building regulations. You must be able to demonstrate that you're competent to carry out your duties and undertake the work you're tasked to do, and that's going to mean cooperating with others working on a project. It's going to be really important to refuse to carry out work that's beyond your skills, knowledge, or experience. You have probably been on projects where you've been asked, 'can you just complete that job? I know it's not in scope. I know it's not in the contract, but can you just fix that electrical issue?' Whatever it is, if that work is beyond your skills, knowledge, or experience, you have to refuse to do it because the consequences of doing it and something happening, something going wrong – it is highly probable and actually the liability comes back to you. So you need to make sure that the work complies with relevant requirements and actually refuse to carry out any non-compliant work.

Now in terms of examples of how competence can be demonstrated, of course that includes completion of formal training. That's qualifications and certification. But what the regulator is looking for in terms of experience and knowledge is provision of a portfolio of work detailing that relevant experience and knowledge. I'll come back again to having a robust competence management system in place is critical because if you are called to actually put forward evidence from a project that you completed a number of years ago, you need to ensure that you have that competence management system in place that you can bring back that information, and that includes your supply chain.

Now, for organisations, you need to demonstrate that you've got the organisational capability to carry out contractual duties and undertake work. So this means having policies, procedures, systems and resources in place to make sure that those employed comply with the relevant regulations. Now, this includes how you manage the competence of those that you employ and your organisation's capability for monitoring, supervision and oversight. And importantly, again, this includes your supply chain. If you are procuring contractors to carry out part of the project for you, then you need to make sure that they are a competent organisation, that they employ competent staff, that you can evidence that competence and you can justify it.

Now the third point, as a duty holder, you will be required to cooperate with other duty holders, coordinate their work if it's applicable, and communicate to provide and share information. Now, where this involves changes to specification, additional work, or you've identified risks, this should ideally be done in writing because you need to evidence that approach.

So really to conclude this slide, the duty holder roles apply to all buildings. As a duty holder, you are responsible for ensuring safety and compliance. So it's about understanding your roles and responsibilities and being able to carry them out effectively and importantly to be able to evidence the information.

Lisa Hamilton: Thanks very much there, Rachel. Lots of information taken, obviously. I think a misnomer of the Building Safety Act is that if your building isn't within scope, i.e. high rise with residential outlets in it, that actually you are not affected by this Safety Act. But actually, if I understand correctly, maintenance of any type of building is covered by the Act. Is that correct?

Rachel Davidson: That is correct. It doesn't matter if you are working on a low-rise, mid-rise, high-rise, high-risk, they are all covered. All these buildings are covered by the Building Safety Act.

Lisa Hamilton: Okay. And it's just that actually there are additional requirements for those high-risk buildings.

Rachel Davidson: They certainly are, yes.

Lisa Hamilton: Okay. Something else that I wanted to get your thoughts on is that it strikes me that FM will be most affected by this legislation, just by virtue of the fact that buildings are built to last for 60 or sometimes more years.

Rachel Davidson: No, you're absolutely right. Having looked at the Act, looking at the duty holder roles, I think the principal designers and the principal contractors, they have a huge responsibility for design and construction through to occupation. Now, there's no doubt facilities management needs to be considered right from the start at the design phases. But then facilities managers have this long-lasting responsibility for maintaining a building to perform to its design intent and for it to comply with the regulations because facilities managers are ultimately responsible for the safety of the occupants, and that's for the entire duration of the lifecycle of the building.

Now, personally, to me that feels like a huge responsibility. I think it will be hugely challenging with ageing buildings because facilities managers do not have a task-and-finish job.

Lisa Hamilton: Absolutely. Could I just get some actionable results? So what should people be doing after today as a result of finding out a little bit more about this piece of legislation? So if you are in a building that doesn't fall within scope, what are the key things that people need to do or to go away and check?

Rachel Davidson: Well, I mean, all buildings fall in scope because they fall in scope with the Act and the building regulations. I think from an organisation's point of view, I personally would be looking at my policies and procedures, my data retention, how I procure my supply chain. Could I be called, or can I recall evidence of competence for my supply chain? Can I recall evidence of competence for my employed personnel? It's not about gaining the qualification 20 years ago and then you are now competent for life. The Building Safety Act is asking for that evidence of skills, knowledge, experience, and behaviours.

As a company, as a facilities management company, I think key is a competence management system, to actually be curious and understand your roles and responsibilities as a duty holder under the Act, and also to actually instil this culture change that we need, because it is okay to say, 'no, I cannot perform this task. This task is not compliant.' Because I think until we all start saying no, we can't do that, or saying no to a client when... If you are the facilities management company and you are the expert within carrying out your duties, then you have a responsibility to inform the client where they are either being unreasonable or asking you to do work that is non-compliant.

Lisa Hamilton: Okay, we've got some questions coming in actually, Rachel, so I'm going to put a few of those to you, if that's okay. Testing your knowledge here. So we've got a question on legacy buildings, older buildings, what about them from the 1950s?

Rachel Davidson: Well they still need to be compliant in terms of facilities management. And I think this is where it is hugely challenging because I touched on that when I said it is hugely challenging with ageing buildings and you have to identify and manage the risk. So, and I think this is why the facilities management role is so important because we are relying on those facilities managers to identify and manage the risk and to implement the safety measures that are needed for those older buildings, and to collaborate and communicate with all of those building stakeholders so everybody knows their duties and their roles because at the end of the day, we all have a responsibility to make sure that building is safe for the occupants that either visit or live in it.

Lisa Hamilton: Yeah, for sure. It's going to be more challenging for those who are responsible for the older buildings. Another question here is, when you say all buildings, do you include commercial property in that?

Rachel Davidson: Yes. Because under the Building Safety Act, you have a duty of compliance under the Building Regulations, and that includes commercial properties. The additional requirements under the Act for higher-risk buildings don't extend to commercial properties. I mean there is a clear definition. But your responsibilities for competence and compliance extend to all buildings, commercial dwellings.

Lisa Hamilton: Okay. Thank you for clarifying that. So yeah, somebody else who's clearly managing legacy buildings, what if the building history of maintenance doesn't exist or it's lost or it's on an old system that's no longer accessible? This must be, you know, relevant to a lot of people. What should they do?

Rachel Davidson: Oh, absolutely. And I was on a webinar the other day with the building safety regulator. This was a great question because it came up. And the answer to that is yes, it's going to be very commonplace because there are going to be holes in records and it's about actually going back and doing that building safety case report, doing a gap analysis, identifying the risk, and actually implementing measures to mitigate the risk in those gaps.

Jason Instrell: We're going to have a look now at SFG20 and what SFG20 is. SFG20 is an industry standard for building maintenance. We have an extensive library of schedules that cover numerous assets as well as the building fabric itself. SFG20 was created in 1991 in response to the need for an industry standard that would drive legal compliance over the industry. Our product is used by organisations in a wide range of sectors spanning healthcare, education, government, retail, residential, and much more. SFG20 is the go-to tool to assist you and help you maintain a safe, legal, and compliant building to the most up-to-date standards.

I'm part of a technical team that constantly updates and monitors legislation and regulations to keep you compliant. The technical team is made up of engineers from all over the industry. We work in-house to ensure we are there when you need us. So as engineers, we all know how important maintenance is and having the correct information at hand, as we've all worked on the coalface ourselves.

So we're going to follow on now from Rachel's slides to discuss maintenance and compliance in a bit more depth. The Building Safety Act 2022 introduced fundamental changes to the management of building safety. So let's look at the responsibilities of individuals. First, let's start with the building owner. The building owner needs to ensure that buildings are safe. This includes fixing historical defects. I'm sure we all know the consequences of poorly maintained assets and the subsequent costs and hazards involved with poor or no maintenance. So it's key that defects are repaired and any issues are resolved.

So let's look at an example. If we take a low-voltage electrical panel board. If it's not maintained and inspected on a regular basis, this can lead to catastrophic failure. I've seen this myself and the after-effects. I've also been contracted to repair the damage, which can be very challenging to repair and very costly for the client. But if adequate and frequent inspections are carried out, this means that specific elements within the panel will be checked against current regulations. By current regulations I mean BS 7671 or BS 6423 as an example. So you're fundamentally removing any potential hazard because you'll see the issue developing and be able to take the appropriate action. You're basically monitoring trends that may occur, and that's just one example.

The building owner must also make sure that maintenance is carried out in line with the requirements of the particular asset. The building owner must stay up to date with current legislation and regulations, thus ensuring that the most up-to-date checks are carried out in compliance to those requirements. And that's key, that the building owner must also stay up to date with current regulations and legislation.

Then we have the property manager or facilities manager. The PM or FM will coordinate maintenance tasks, manage maintenance staff, schedule and plan PPMs and reactive works, handle any emergency repairs that come through, such as call-outs or faults, and then issue the work to the relevant facilities operative or contractor. The PM or FM also manages maintenance and contracts over several sites and with numerous contractors from different trades. As well as, again, aiming to keep up to date with current legislation and regulation changes just as the building owner does.

And finally, we have the contractor or service provider. The contractor will carry out any maintenance that is issued to them by the building owner or PM or FM. The works must be carried out in a safe and compliant way, maintaining the health and safety of themselves and any occupants. And importantly, and as Rachel was discussing previously, the contractor must hold the relevant qualifications and experience and knowledge to match the task that they have been issued.

This is very important as it ensures that only adequately skilled, qualified individuals carry out a particular task. They must work closely with the PM or FM and audit at all times. So you can see how important and key just those three roles are. Now they have to work seamlessly together so that maintenance can flow effectively within a building.

So this is something fantastic that we've been working on, and after a lot of effort and hard work by all parties involved, we're now proud to share with you the agreed definition of statutory, which is shown on the slide now. So I'm going to read this to you. And this is defined as follows: The term statutory denotes anything required by primary legislation, such as Acts of Parliament and secondary legislation, such as statutory instruments, including regulations. When working to achieve statutory compliance, primary and secondary legislation often focuses on general outcomes rather than prescribing specific activities. The specific activities required to meet statutory compliance may therefore be included in government guidance, approved codes of practice published by agencies such as the Health and Safety Executive, or the industry standards, the BSI standards, publications by trade associations, and professional bodies. In the absence of traceable reference in legislation, following industry standards or guidance may assist in discharging the duties under the statutory requirements.

For example, in relation to electrical installations, the Health and Safety at Work Act 1974 led to the Electricity at Work Regulations 1989. This in turn supported the HSE-issued guidance note, HSR 25, which also references the British standard BS 7671, which is the wiring regulations supported by an on-site guide.

We've got a few bullet points here below on which legislation and regulation references each part. So for example, we have primary legislation. And this would be things like the Health and Safety at Work Act 1974. We then have secondary legislation, for example, Electricity at Work Regulations 1989. We then have approved codes of practice. The Health and Safety Guide is HSR 25 or the Electricity at Work Regulations 1989. We have industry standards such as BS 7671, which is the wiring regulations and industry guidance notes such as the on-site guide, which supports BS 7671.

But there may be more than one way of discharging duties to achieve statutory compliance. Where immediate actions may need to be identified and completed, applying a documented process greatly assists in evidencing these decisions. So that is our approved definition of statutory. So what does this mean for you?

It means that we will all follow an agreed definition when denoting a task as statutory. And this is over the industry. This is going to hopefully remove any indifferences between organisations. And again, this has been a huge effort by all parties.

Now just to tie in with the previous slide and the approved definitions, we also have to touch on the term accountable person. The Building Safety Act 2022 has introduced a new role for accountable persons in high-risk occupied buildings. It explains that accountable persons have various responsibilities. They have a duty to ensure that buildings are registered, safety risks are managed, residents are kept informed, site information is retained and fire safety systems are maintained. For example, fire alarm, sprinkler systems, etc. And the reason I wanted to touch on the above is because primary and secondary legislation normally talks about responsible person or competent person, so it's worth noting the above as the Building Safety Act provides a detailed explanation.

So if you haven't already done so, please have a look at the Building Safety Act. I would say, like I say, to many colleagues and over many years, every day is a school day.

Statutory and non-statutory tasks have been in the spotlight for a long time. I've had this conversation many times myself over the years, as I'm sure many of you guys have also. I'm also sure we've all had somebody say, 'but the document is non-statutory, so why is the task statutory?' etc. This is a typical question. Let's look deeper into what we mean by statutory tasks in SFG20. Statutory is defined as anything required by primary legislation, primary and secondary legislation, as we have just looked at in the approved definition.

So as a reminder, when I say primary legislation, this can be the Building Safety Act 2022, as we've been discussing today, or the Health and Safety at Work Act 1974 to name two. That's primary legislation. Then we have the secondary legislation such as the Fire Safety (England) Regulations 2022, or the Electricity at Work Regulations 1989, and it doesn't end there.

Primary and secondary legislation is also supported in turn by codes of practice, British standards or industry guidance notes. These also fall under the umbrella of secondary legislation. And this ties us back into our agreed definition on the previous slides.

So let's look at an example of this. We have electrical tasks noted as red statutory in SFG20, and these are based on BS 7671, the 18th edition of wiring regulations. We know that this document is non-statutory, but we also know that BS 7671 is used over the electrical industry for compliance in parts mechanical. That's in design, construction and verification. So let's see if we can trace the information. So BS 7671 is a British standard, which in turn can be traced to the Electricity at Work Regulations or HSR 25. And this secondary legislation also mentions BS 7671, which is useful. This can then in turn be traced to the Health and Safety at Work Act 1974, primary legislation. So we have traceable reference from primary and secondary legislation, enabling us to define these tasks as red statutory in SFG20. So fundamentally, it's all about the traceable reference.

We have to use this method on all tasks we introduce or adapt, and it's not always easy and can be complex at times for the technical team.

So to summarise: Statutory tasks enable building owners and managers to achieve compliance with primary and secondary legislation, and that is a very important note. Non-statutory tasks, which are amber tasks in SFG20, have no traceable reference to primary or secondary legislation, and this is a key point. No traceable reference, and that's obviously unlike their statutory counterparts we just discussed. But that doesn't mean they are any less important. Some non-statutory tasks may be treated the same way as statutory due to the severity or consequences of not carrying them out.

So this is where it gets even more complex. What I mean by this is they may cause a severe health and safety issue upon failure if we don't do them, but that still doesn't mean we can place them as a statutory or red task in our schedules due to there being no direct link to primary and secondary legislation. We have schedules where there are a mix of red and amber tasks, which have taken time and research to denote that way by the technical team.

So what I'm going to do now is I'm going to use an analogy of a motor vehicle. So let's build a schedule using a car and let's base it on the principles discussed above. I know this may sound strange, but bear with me. So let's pretend we are forming a schedule for a car. We'll use statutory tasks, red and non-statutory tasks, amber. We will also ensure we align with the definition of statutory using primary and secondary legislation.

So let's start with the red tasks. Starting with this, we would issue red statutory tasks and actions for the insurance or the tax, for the MOT, because these are required by law. This will be traceable to primary and secondary legislation.

Then we would look at the amber tasks based on the same principles. So we would issue amber tasks and actions for things like the routine maintenance, the servicing, the user inspections, etc. So the schedule would have a good mix of both statutory and non-statutory tasks with around probably eight to ten tasks.

So taking those principles, if only statutory red tasks were carried out, only statutory tasks have been shown within the new form schedule. Then the amber tasks we mentioned above would not have been carried out. This means that potentially we have items such as the oil check, fuel levels, oil and lights, windscreen wash, all those little things not checked, and that's simply because we didn't show these on our schedule. This in turn could potentially cause failure of the vehicle and risk to the driver, even though they were not noted as red statutory tasks.

So the key point I'm trying to make is just because the task is amber does not mean it's any less important and it shows that they still need to be present within the schedule to remove that risk.

So hopefully using that analogy, as strange as it may sound, you can see why both statutory and non-statutory tasks are shown within our schedules. And now we as the technical authors have to dig deep to ensure we trace the detail.

So we've been talking about compliance with statutory and non-statutory tasks, legislation, etc. Now we'll look at non-compliance and the risk involved. So what does non-compliance actually mean? It means that you are carrying a serious risk that can compromise both your business and your staff. It really is that serious. I'm sure we've all seen or read about accidents from poorly maintained equipment and the consequences that can come from this. Sadly, it still happens frequently.

In fact, you don't have to cause harm to commit a criminal offence. Non-compliance with health and safety laws means you are accountable. There is that word, again, accountable that we've mentioned a few times now over the webinar. This means you can receive sanctions as a result. Single non-compliance can result in a written advice, a prohibition notice, prosecution, but this all depends on the severity of the breach carried out.

This will also be costly to an organisation, for example, and can have reputational damage causing loss of sales. And we all know how important reputation is to a business, increased insurance premiums or even legal penalties, including fines and the potential for prison sentences. The HSE will also issue fines.

In fact, these are also documented on their website. The fines are also proportional to the size and turnover of that business that has been non-compliant. However, the average fine is around £150,000, so obviously a huge, huge amount of money and I've even known this to be issued in my time and I've heard of contractors who have gone through this and it really, really is terrible.

So the importance of compliance cannot be underestimated. Thank you.

Lisa Hamilton: Thank you, Jason. Goodness, what a complex job you and the technical authoring team have.

Jason Instrell: It can be.

Lisa Hamilton: Yeah. We've got lots of questions coming in and sadly we're running out of time, so I'm just going to put a couple to you if I may. Okay. So people are saying, we contract out our maintenance, we fully contract out our maintenance. So does this apply to us or not? They're unsure about whether the contractor is responsible or they're responsible. What would you say to that, Jason?

Jason Instrell: Yeah, so again, that's an excellent question and I can put this very simply. The buck stops with the building owner. It's the building owner's responsibility to make sure that the building is maintained in compliance with the current legislation and that the contractors they employ are competent and qualified to carry out the said tasks. So simple as that. Really, guys. It's the building owner.

Lisa Hamilton: Absolutely. And sometimes building owners can be an investment owner, can't they? Such as a pension fund. So is the responsibility on them or is it the tenant?

Jason Instrell: So again, we go back to the building owner. The buck stops with them, really, just as I've mentioned above. They need to ensure the building is maintained in compliance with current legislation and in a safe and effective way, and that it remains safe at all times. So again, it's the building owner's responsibility there, Lisa.

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