Health and safety | Regulatory Outlook September 2022

Coroner reforms in the UK: what happened this summer?

The Judicial Review and Courts Act 2022, which came into force in June, has attracted significant commentary for its changes to the High Court's jurisdiction, but also brings in other changes for coroner's courts. The reforms indicate that dealing with a backlog of inquest cases is a priority for the government following the Covid-19 pandemic. The reforms expand the circumstances in which coroners can discontinue an investigation where the cause of death becomes clear prior to a hearing, give coroners the power to conduct non-contentious inquests entirely in writing, and allow for inquests to take place entirely by video link. Read our Insight for more.

HSE to investigate businesses where materials that contain silica are used

The Health and Safety Executive (HSE) has announced that from October, HSE inspectors will be visiting manufacturing businesses where materials such as stone, rocks, sand and clay are used. This will include brick and tile manufacturers, foundries and stone working.

The statement from HSE reminds employers of their legal duty to put in place suitable arrangements to manage the health and safety risks involved with the exposure to respirable crystalline silica (RCS) particles which can become airborne during the manufacturing process.

Inspectors will be checking that dutyholders know the risks associated with inhalation of RCS and have effective controls in place to keep workers safe and protect their respiratory health. They will be ensuring businesses measures comply with the Control of Substances Hazardous to Health Regulations 2002 (COSHH).

Government refuse to commit to 40-year deadline to remove all asbestos from non-domestic buildings

As reported in our earlier Regulatory Outlook, the Work and Pensions Committee published a report on the HSE's approach to asbestos management. The paper called for the government and the HSE to work together to develop a strategy to remove all asbestos from public and commercial buildings within 40 years.

The government published its response to this on 21 July, stating that it will not implement a fixed deadline of 40 years: "moving to a fixed deadline for removal would increase the opportunity for exposure which remains difficult to support if the current risk of exposure is very low where asbestos can be managed safely in-situ until planned refurbishment works. The use of many public estates would also be significantly disrupted by a removal deadline if this were introduced outside existing estates strategies. There also remains a concern that introducing a deadline would stimulate poor removal and disposal practices with a further risk of increase in asbestos exposures."

The response also highlighted that the HSE is carrying out national modelling as part of the Control of Asbestos Regulations 2012 (CAR) Post Implementation Review (PIR), which will be published later this year. The modelling indicates that there will be a substantial reduction in the numbers of buildings containing asbestos over the next few decades.

Building Safety Act

The Building Safety Act 2022 (BSA) became law on 28 April 2022, but the majority of the new building safety and building control regimes under it depend on the government passing further legislation.

At the end of July, the government published two consultations under the BSA on implementing the new building control regime for higher-risk buildings and the new safety regime for occupied higher-risk buildings. Both of these consultations are worth reading for an overview of the government's current thinking on how these new regimes may operate.

Building control regime: this consultation seeks views on policy proposals for legislation that the government intends to introduce to create the building control procedure for higher-risk buildings, as well as wider changes being proposed to improve the building control system overall.

The consultation includes proposals on:

• New dutyholder and competence requirements on all building work and additional duties for those working on higher-risk buildings. These new roles and requirements aim to ensure a stronger focus on compliance with the regulations by requiring that they are properly and competently considered at all stages of a dutyholder's work.
• More details on the "gateways" to strengthen regulatory oversight which need to be passed through before a higher-risk building is occupied.
• Additional requirements for building work carried out in existing higher-risk building work, such as refurbishments.

Safety regime for occupied higher-risk buildings: the in-occupation regime under the BSA includes a requirement to register all occupied higher-risk buildings, along with a number of other obligations such as the ongoing management of "a digital golden thread of information" throughout the building lifecycle and the creation of a mandatory occurrence reporting framework.

The consultation sets out the government's proposals on various aspects of the regime including:

• Registration of buildings – It is proposed that principal accountable persons (PAP) must register their buildings with the Building Safety Regulator by 1 October 2023. It is also proposed that agents can do this on the PAP's behalf.
• Accountable person(s) and the principal accountable person – Proposals set out who will be responsible for which areas of the relevant building, and the principles they need to follow to manage building safety risks. The consultation also includes proposed content of the safety case reports (which show that the accountable person has satisfied their duties under the BSA).
• Golden thread – Proposals as to the content of the golden thread, and how the golden thread information is to be managed and stored.

Both consultations will end on 12 October 2022 and the government intends to publish its response within 12 weeks of that date.

HSE launches consultation on Building Safety (Fees and Charges) Regulations

On 1 August, the HSE opened a consultation setting out the Building Safety Regulator’s (BSR) proposals for the Building Safety (Fees and Charges) Regulations and a charging scheme for the BSR's cost recovery.

The HSE notes that cost recovery will be one source of BSR's funding. The regulations will allow BSR to charge fees and recover charges for, or in connection with, carrying out its relevant (“chargeable”) functions. This includes the recovery of expenditure incurred by a relevant authority or third party as a result of any action taken to comply with a BSR request or direction for assistance.

The consultation is seeking views on whether the cost recovery proposals seem reasonable and whether the proposed approach means the BSR are seeking to recover costs from the appropriate person. The consultation package is made up of three elements which should be read together before responding:

1. The consultation document – this sets out the context of and further detail about the proposals. It includes areas which are out of the scope of the consultation and also highlights relevant areas for specific dutyholders.

2. A draft statutory instrument – the Building Safety (Fees and Charges) Regulations outlines what BSR may seek or recover costs for, or in connection with, the performance of its relevant (“chargeable”) functions under Building Safety Act 2022 and gives effect to an underpinning charging scheme

3. The proposed charging scheme – this sets out the activities for which BSR will make a fee or charge, the trigger point for that activity, the legislation it falls under, the way any fees and charges payable under the regulations will be calculated, and the dutyholder from whom the BSR will seek to recover costs

The consultation closes on 7 October 2022. 

New government guidance on the BSA

The government has published a short guidance page, which provides information on various aspects of the BSA, including what the Act means for building owners and for the built environment industry.

The Department for Levelling Up, Housing and Communities has also published a number of other guidance pages, including:

  • Definition of non-cladding remediation

  • Non-cladding remediation costs: summary

  • Mandatory information required from leaseholders and building owners

  • Definition of ‘relevant building’