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Leading the way in health and safety

Sarah Greenhalgh and Adam Kendall consider the National Housing Federation Code of Governance’s requirement for housing associations to treat health and safety as an ‘overriding priority’.

Health and safety has always been a priority for associations, but was heightened in the aftermath of Grenfell. The Government’s recent Social Housing White Paper indicates a clear aim of moving the sector forwards to fix a broken system, and to avoid future regulations and guidance being misunderstood and misinterpreted.

Grenfell has brought a renewed focus on the existing health and safety regulation. Examples of some of the key changes being made are the new Fire Safety Regulations alongside introduction of the Building Safety Reform Bill.

The intention of the various new reforms are to ensure there is full and proper accountability throughout the life of a building including design, construction and occupancy by tenants.

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Aligned with these reforms, the new Social Housing White Paper has also set out five key themes for the sector to focus on moving forwards, one of these being ensuring homes are safe and decent.

Both the reforms and various sector specific guidance demonstrate that there is an increasing focus on improving the safety of social housing and, critically ensuring that landlords are listening to tenants’ views.  The reforms aim to give tenants a voice when they are not safe in their homes and, in the long term, restore their trust in their landlords. 

These principles were seen as key priorities by the NHF Code Advisory Board. The new Code therefore seeks to integrate specific requirements around health and safety, requiring that:

  • There are policies in place which reflect that the safety of residents and other customers (as well as that of the workforce[1] and the wider public) is an overriding priority, and the board receives reports annually on their operation.
  • The board has policies on the safety and wellbeing of its workforce and reviews their effectiveness.

Demonstrating Leadership

Good health and safety practices are led from the top, and the role of the board, committees and senior leadership team in safeguarding residents and staff is vital. 

In reviewing the outcome of any investigation into a critical event, there are usually a number of ‘warning signs’ that a board missed that could have prevented the event happening. For example in January of 2019, Synergy Housing Limited was fined £1m after a child got trapped in a lift suffering fatal injuries. It was found to be a negligent accident which was wholly avoidable (a panel on the lift had been noted as faulty in 2013 and was again noted as faulty three months before the accident occurred but no action had been taken) and the Health and Safety Executive found a ‘catalogue of failures’ by Synergy Housing. 

It is clear that boards need to have suitable skills and understanding of health and safety requirements, and beyond ensuring compliance should drive continuous improvement in their organisations.

A brief guide to a key forthcoming reform

The Building Safety Reform Bill builds on the recommendations of Dame Judith Hackitt’s Independent Review around Building Regulations and Fire Safety which was conducted as a result of Grenfell.

One of the key areas that will affect housing associations is the introduction of a clearer framework of who takes on direct responsibility for a building’s safety – this is summarised as follows: 

Building Safety Regulator

The reforms create a new Building Safety Regulator with two main responsibilities: to introduce a better safety system (initially for higher risk buildings) and, importantly, to impose sanctions and regulations to ensure this happens.

The outcome will be a more stringent regulatory framework to implement a stronger focus around building safety for developers and landlords, including establishing systems for giving building safety information to tenants with a whistle-blowing scheme for building and engineering professionals.

The Duty Holder

There will also be a new Duty Holder system which will need to be implemented for every higher risk building, including those which are currently occupied. The aim is to ensure that the entity that creates a building safety risk is responsible for managing that risk. This role will assist in fulfilling one of the requirements of the NHF Code in ensuring that there are policies in place which reflect that the safety of residents as an overriding priority.

Landlords will be required to appoint a person to be a Duty Holder in each phase of a building’s life. Once the building is occupied, the Duty Holder will become the Accountable Person. The Accountable Person, usually the building owner, will be responsible for the safety once people are living in a building. The Accountable Person will also be responsible for registering the building with the Building Safety Regulator and securing a Building Safety Assurance Certificate before it is occupied. This process will also be brought in for existing buildings and if, at any point, there is the feeling that the building is not safe, there will be a step in and stop process.

Companies responsible for the management of social housing should be aware of these changes as they will need to put sufficient measures in place to ensure that there is a duty holder for each building they are responsible for. Sufficient planning will be needed to ensure that measures are put into place in advance of the legislation being introduced.

Building Safety Regime

In addition to the above steps, associations should be aware that the Accountable Person will be required to appoint a specific Building Safety Manager for every high rise building. The Building Safety Manager will support the Accountable Person in the day to day management of fire and structural safety in high rise buildings. The Health and Safety Executive (HSE) will have the power to veto the appointment of unsuitable Building Safety Managers. Regardless of height, the HSE will have involvement in all buildings to oversee the performance of local authority building control and inspectors.

Board duties and role

Boards and senior managers should be reviewing the changes and ensuring that appropriate arrangements can be implemented to comply with these new and important controls. Failure to do so is likely to lead to enforcement and sanctions.

The new reforms will create new criminal offences to make sure those responsible for the safety a high rise residential buildings, comply with their responsibilities. If a board properly reflects the new NHF Code ensuring, in line with the above, that there is good governance and effective policies around safety and wellbeing then compliance will ultimately be achieved protecting those for whom they have ultimate responsibility.

Board members should be aware that, if there is a serious breach of Health and Safety legislation, liability can be enforced not against the organisation but also individuals. Boards should ensure they fully understand what these reforms mean to their organisation and be aware of what steps are being taken to ensure future compliance.

Overall, to demonstrate leadership, boards should be ensuring that there are sufficiently joined up systems and controls in place with an effective reporting structure so that escalation can occur quickly if there is an issue. Constant audit and review with a focus on continuous improvement and clarity that health and safety is an absolute priority is key.

Sarah Greenhalgh and Adam Kendall are partners at Bevan Brittan.

[1] See also 2.5 on workforce matters

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