Proving competency

The Building Safety Bill proposes new competence requirements for all those working on design and construction. Hywel Davies explains the draft regulations, and asks how clients and the new Building Safety Regulator will know who is competent

Contrary to common misunderstanding, the Building Safety Bill applies to all building work needing either a building notice or the deposit of full plans. It applies to all buildings, not just high-rise residential ones.

Section 32 of the bill provides for regulations on the competence of those undertaking design and construction work. Draft regulations have been published: they apply to any work on any building, including homes, coming within the scope of the Building Regulations. They are quite clear; only non-regulated work on a home where you live is excluded. These draft regulations, therefore, affect almost every working reader of this journal.

The draft regulations require clients to appoint principal designers and contractors for all non-domestic projects, and that anyone appointed to carry out design or building work is competent. Competence regulation 7 applies wherever one person proposes to appoint another to carry out building or design work.

Before permitting person A to carry out any work, Regulation 7 will require the appointer to ‘take all reasonable steps to satisfy themselves’ that A either fulfils the general competence requirements in Regulation 8 or is in training to fulfil those requirements and properly supervised. This covers any design or construction activity that A may be appointed to undertake. Before A is allowed to start work, the appointing party must also take all reasonable steps to satisfy themselves that A meets the requirements of the general duty to plan, manage and monitor (created by Regulation 3).

All that applies to anyone – individual or organisation – appointed to the project. Where A is to be the principal designer or contractor, the client ‘must take all reasonable steps to satisfy themselves that A fulfils the requirements’ for general competence in Regulation 8 and those set out in Regulation 9 for the principal designer, or in Regulation 10 for the principal contractor.

These draft regulations affect almost every working reader of this journal

It bears stressing that these requirements will apply to each job notifiable under Building Regulations and to every client commissioning such works. The ultimate duty falls to the client to appoint competent people, to ‘take all reasonable steps’ to satisfy themselves of the suitability of those they appoint. Many people in the industry are quite unaware of this and still think the bill only relates to high-rise residential buildings. They could not be more wrong.

Regulation 8 is clear that ‘any person carrying out any building work or any design work must have… the skills, knowledge, experience and behaviours necessary… to carry out the building work in accordance with all relevant requirements [or] the design work so that, if built, the building work to which the design relates would be in accordance with all relevant requirements’. The regulations allow for that ‘person’ to be an individual or an organisation with that capability.

The regulations also state that ‘any person carrying out any building work as a contractor or any design work as a designer must have… the skills, knowledge, experience and behaviours necessary… to fulfil the duties of a contractor or designer… under these Regulations in relation to the work’.

So, how do law-abiding clients show that they are appointing competent people and prove to the new regulator that they have taken ‘all reasonable steps’? They will need to demonstrate that those appointed have the skills, knowledge and experience for the job and evidence that they will behave appropriately. This will mean seeking evidence that those people know what they are doing and have suitable experience, including qualifications and appropriate professional registrations. Which will be appropriate? This will depend on the job and be for the client to judge. There will be no list of ‘approved schemes’ to which people must belong. The regulator will not mind how it’s done, but they will want to know it has been done, and they will want to see evidence that gives assurance of this. They will have one simple request: ‘Show me’. Can you?

  • The draft The Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations [2021] is available here.

Dr Hywel Davies is technical director at CIBSE