Making sense of dutyholder roles and responsibilities

The raft of regulations can leave people feeling confused about their dutyholder roles and responsibilities. Denise Chevin clarifies.

Among the wave of new regulations associated with the Building Safety Act 2022 in England (BSA) are important changes to strengthen the accountability and responsibility of those in involved in commissioning, designing, constructing and managing buildings.

The first set of changes comes under Part 4 of the BSA and concerns the introduction of new dutyholder roles for higher-risk residential buildings (HRBs) in occupation. These roles are termed the Principal Accountable Person (PAP) and Accountable Person (AP), and they can apply to an individual or company responsible for owning and/or managing an HRB. At this stage they apply only in England.

The second set of changes are new requirements for the dutyholder roles that already exist under the Construction Design and Management (CDM) Regulations 2015.

The responsibilities of the dutyholder roles under CDM – client, principal designer, principal contractor, designer and contractor – concern site safety. The new requirements make similar demands in terms of co-ordination, management and working with other dutyholders, but additionally also ensure that building works comply with Building Regulations. These additional duties have been introduced through The Building Regulations (Amendments etc) (England) Regulations 2023, which insert a new Part 2A into the Building Regulations 2010.

Unlike other aspects of building safety legislation, these apply to building projects of all types, not just HRBs. This means that most of the industry is having to get up to speed with what the dutyholder role entails and be ready to comply. Although the requirements came into force last summer, there has been a transitional period for certain projects.

Alongside these changes, building owners are finding their way around their new duties as the AP or PAP. It’s fair to say that, for both sets of new duties, there are a few processes to be ironed out.

Meeting AP requirements

The AP has a duty to take all reasonable steps to prevent a building safety risk happening and reduce the seriousness of an incident if it does.

A building can designate more than one AP. If that’s the case, the AP responsible for the structure and exterior of the building will be the PAP. When buildings have a single AP, that entity or person is the PAP.

PAPs have a duty to register all new HRBs and have already had to do this for existing occupied stock by October 2023. Now they are preparing the safety case report for existing blocks, which must be submitted to the Building Safety Regulator (BSR) for April this year.

This is new territory and what exactly constitutes an acceptable safety case is not being prescribed exactly – but it does require a catalogue of information, namely structural safety information and information about the services and utilities within a building. Dates of the last safety case and the next one and information on a landlord’s safety management system and emergency planning are other pieces of information needed.

Evidence for the safety case must be contained within the Golden Thread of information set out in an accessible digital format that tracks the flow of data through each stage of the life-cycle of a building. That means ongoing risk assessments, certifications and safety checks must all be updated in this digital folder.

Alex Parry-Jones, Managing Director of Building Consultancy at Anstey Horne, has been working with several residential landlords to put together safety case reports to meet the April deadline. He says: “Many individuals were previously unaware of the extensive volume of supplementary information required, particularly in the realms of hazard identification and risk management, alongside strategies for addressing these within their organisations. This process is markedly comprehensive, necessitating a thorough reassessment of operational methodologies and the associated risks. Moreover, it demands an evaluation of team competencies to ensure they possess the requisite skills for identifying hazards.”

Parry-Jones suggests that the creation of guidance by the BSR, analogous to strict guidance or approved code of practice, would be advantageous. He believes that such guidance would serve to benefit both the industry and the regulatory bodies involved in the assessment process.

Anthony Taylor, Co-founder of consultancy Resolve Risk, agrees and hopes the picture will become clearer once APs start to get feedback from the BSR on the quality of the safety case reports they review “and, perhaps more importantly, the reasons they may be rejected”.

Dutyholder roles

The dutyholder roles for Building Regulations can be performed by the same parties who carry out the roles under the CDM Regulations.

The principal designer is responsible for planning, managing and monitoring the design work during the design phase so that work complies with Building Regulations. The clear expectation is that the principal designer will be a designer, such as the lead architect, which has not always been the case with the principal designer appointed under the CDM Regulations. The twin track approach – a principal designer for CDM and a principal designer for Building Regulations – has been causing some confusion among clients who do not want to pay for two different services.

The principal contractor has similar obligations to ensure compliance with Building Regulations during the construction phase.

Lindsay McGibbon, Managing Director of Regional Buildings and Building Services (England and Wales) at Balfour Beatty, says that ensuring new buildings are designed and constructed to Building Regulations is what designers and contractors should have been doing anyway. “The way I look at it is that the Building Regulations haven’t changed. But the legislation is seeking to make it clearer about who is accountable to ensure those obligations are discharged.

“The duty to co-operate and co-ordinate exists today because that’s how you build correctly and in a compliant way. We’re doing quite a lot internally as an organisation. But it’s my perception that in the industry more widely the penny hasn’t fully dropped.”

Clients need to ensure that they appoint competent people. That obligation then cascades to the dutyholders they appoint to do the same when they appoint parties to work on their behalf.

This new emphasis on competence is complicated because the means of certifying the necessary competence is missing. BSI PAS documents (the 8671 series) have been developed, setting out the skills, knowledge, experience and behaviours needed for principal designer and principal contractor roles. However, there are no organisations yet that are able to assess and certify compliance for principal contractors.

Consultant Peter Dawber, a former Dean of Nottingham Trent University and senior academic in its school the Built Environment, chaired the steering group for the development of the PAS for principal contractor. He says that a number of tier 1 contractors have been developing their own processes for assessing the competence of their teams against the PAS documents and other competence frameworks. He says: “I’ve been very impressed by what they are doing. They’re making sure that across the project team they have got all aspects covered so they can demonstrate competence to clients.

“They know that they can’t get it wrong and it doesn’t have that independent verification from a professional body or UKAS saying, ‘we approve your system.’”

However, McGibbon says regulators have been making reassuring noises that if contractors have a system of assessing competency and ensuring this matches to project risk, then they are likely to be satisfying these competence requirements. He is now leading a group at the Construction Leadership Council (Regulatory Clarity subgroup of Building Safety Strategic Priority Work) to produce guidance that will help to demonstrate competence credentials.

Meanwhile the Royal Institute of British Architects (RIBA) has introduced a Principal Designer Register, which allows individual RIBA chartered members to demonstrate that they are competent to serve as principal designers. However, John Gray, a Partner at HTA Design and its Head of Delivery, explains that this becomes complicated when architects work on design and build contracts – often the only show in town.

“The strong guidance and opinion of the RIBA is that if you’re employed by the contractor as architects, you cannot be the principal designer – the principal designer has to be the contractor themselves. The only mechanism by which an architect can be the principal designer is to be appointed by the client. We have had situations where we are working for the contractor and the client has asked us to have a separate mini-team acting as principal designer appointed by them.

“I think it’s a knotty problem that the government didn’t anticipate. And it’s not been resolved – though it’s looking like quite a lot of design build contractors are coming to the same conclusions and realising that they have to carry out the principle designer role in name at least, even if they might delegate the actual duties to the architect working for them.”

Gray also points to confusions arising among clients about the two different sets of principal designers, and almost an expectation that architects will now cover both roles.

“The skillsets are totally different. CDM is about health and safety and was introduced to protect the operatives during its construction phase. It is not about the long-term functionality of the building in use by occupants – that is covered by building regulations. It would be unusual to find somebody who can carry out both roles competently.” 

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