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Last edited 17 May 2024

Testing for a Safer Future

[edit] In brief

The long-awaited Independent Review of the Construction Products Testing Regime, led by Paul Morrell and Anneliese Day has been published by the DLUHC, with a forward by Dame Judith Hackitt.

The review provides widespread criticism of current systems, including the existing Construction Products Regulations (CPR) which was set-up in 2013, through EU regulations and currently regulates, monitors and enforces UK construction product standards. It highlights that currently some 20,000-30,000 products currently remain unregulated because there are no appropriate standards, as well as other systemic issues and recommends ways forward.

“The most obvious gap in the current system is that only construction products for which there is a designated standard are covered by the Construction Products Regulation”. The review was primarily instigated, following the Grenfell disaster, to examine the UK’s system for testing the safety of construction products and a key message from P. Morell is "Many standards are outdated, inconsistent or non-existent."

[edit] Background

June 2017, an independent review into the building regulations and fire safety was commissioned by the government directly following the Grenfell tragedy. December 2017 the interim findings of what was known as the Hackitt review were published.
May 2018 the final report 'Building a Safer Future’ by Dame Judith Hackitt, often referred to at the Hackett report, was published and heavily criticised construction product testing regimes and called for a review of these.
July 2020 - the government published in draft the Building Safety Bill setting out reforms to building safety regulation and including provisions to strengthen and extend the scope of the powers available to government to regulate construction products.
January 2021 - the government announced that it would establish a National Regulator for Construction Products to enforce these rules, established within the Office of Product Safety and Standards. The regulator given powers to remove any product from the market that presents a significant safety risk, prosecute and fine any company. It also announced a review to examine how to strengthen the system for testing the safety of construction products.
April 2021 Housing Secretary Robert Jenrick appointed former Chief Construction Adviser Paul Morrell as chair of an independent panel to lead the review along with Anneliese Day QC. Jenrick said: “I am pleased to appoint Paul Morrell OBE and Anneliese Day QC to lead this independent review of the system for testing construction products that will build on the significant progress we have already made to make buildings safer.”
April 2023 "Testing for a Safer Future; An Independent Review of the Construction Products Testing Regime." was published.

[edit] Purpose and method

[edit] Purpose

“How should the UK system for testing the safety of construction products and the use of data from the system be strengthened, to inspire confidence that those products are safe and perform as labelled and marketed when incorporated into construction work?“

[edit] Method

To carry out the work by

mapping the system for testing, certifying, marketing, selling, re-testing and recalling construction products;
assessing what does/could go wrong within this system; and
recommending how the system should be strengthened.

Not limited to construction products for use in high rise residential ( “higher-risk”) buildings, but products not intended for construction outside the scope of the review.

[edit] Susceptibility to failure

Susceptibility to failure of the process is attributable to matters that are either systemic or relate to individual conduct and performance.

[edit] Systemic issues

[edit] Coverage.

Only construction products with a designated standard are covered by the Construction Products Regulation, anecdotally one-third of all construction products approx 20-30,000 products unregulated.

[edit] Purpose

Primarily designed to create a level playing field for a single market, not ensure a safe or sustainable product or building, or anything else not specifically covered. Thus there isn’t actually a specific “UK system for testing the safety of construction products” only a system to assess conformity to other performance requirements of the standards.

[edit] Standardisation

Relevant standards state how product perform, tested or assessed, Conformity Assessment Bodies and reviewed by UKAS, and how UKAS. The framework for standard development is good, but slow, with insufficient and of variable quality output. Thus many standards are outdated, inconsistent or non-existent; and research questions the fitness for purpose of a number of standards critical for testing products for resistance and reaction to fire.

[edit] Complexity

5 different routes and 6 steps, shows CPR assessment is complex that so few understand it. A disconnect between assessment and the design and construct buildings. Criteria for different levels of the system unclear, and sometimes inconsistent. Opaque not easily understood, can be taken advantage of through the lack of transparency.

[edit] Capacity

System (setting standards, conformity assessment and oversight) overloaded and slow. It represents a threat to quality and reform, specific urgency relating to the ending of recognition of CE marking in January 2023.

[edit] Enforcement

Enforcement almost totally non-existent, there have been no prosecutions under CPR305/11 since it was enacted, only a limited number of investigations (by Trading Standards in England, Scotland and Wales, Environmental Health in Northern Ireland). No central database of investigations or risk products impacts the market.

[edit] Individual conduct and performance

[edit] Beyond the remit of review

Matters of individual or corporate conduct and performance reflected in the allegations made in the Public Inquiry beyond the remit of this review.

[edit] Widespread issues

However, performance failures are as widespread as suggested, it indicates the current regime is failing to prevent them – in the coverage or processes of conformity assessment by Approved Bodies (or, for voluntary certification schemes, of Conformity Assessment Bodies acting outside the coverage of the CPR); and/or the inherent limitations of the existing processes; and/or the accreditation, re- assessment and oversight of the Approved Bodies/CABs themselves by UKAS.

[edit] Greater transparency

Beyond the assessment process itself, and irrespective of any strengthening of the regime, there will always be over-arching requirements for honest conduct, compliance with effectively enforced regulations and competent execution. This focus therefore been on proposals to underpin assurance by effective system and greater transparency.

[edit] Proposed remedies in legislation

[edit] Coverage

All construction products brought into the scope of CPR via “general safety requirement”, derived from the EU General Product Safety Regulation (“the GPSR” - also retained in UK law) extending principles from consumer goods to construction products, which are designed to function as part of a system rather than on a stand-alone basis. Some products not currently covered can be via a new designated standard or via “safety-critical” products. The report highlights a number of concerns with this type of 'catch-all' process.

[edit] Enforcement

Strengthen by new regulatory regime, including two new regulators: a National Regulator for Construction Products, based in OPSS within DBT, who will work with a new Building Safety Regulator based in the HSE; and requirements for manufacturers to share technical documentation and information with the National Regulator for Construction Products and/or enforcement authorities.

Objective must be to set clear requirements that call for honesty on the part of manufacturers in respect of full disclosure to the Approved Body conducting the assessment, in the Declaration of Performance, in technical information to accompany the product, and in all marketing information and other communications relating to the product, with a breach of any part of this duty being an offence subject to new sanctions available to the Regulator, and with effective enforcement action being taken where an offence is committed. Concerns highlighted complexity, fragmentation, continuity, responsibility, effectiveness and a discussion around that of the "duty holder".

[edit] Safety-critical products

The listing of individual products as safety-critical faces significant challenges in definition. For example, the same product can be safe in one use, and unsafe in another; and there need to be standards against which products can be assessed, and measures to ensure that they are not used for purposes for which they have not been assessed as fit.

However, if genuinely diagnostic, workable and legally robust criteria can be set for categorising products in certain applications as safety-critical (and the creation of such a distinct and comprehensive category covering all higher risk products matching those criteria is made an objective), then we believe that it would put the regulatory focus where it should be: on the potential for serious harm.

[edit] Missing elements of proposed legislation

(1) Government, UKAS and CABs, expected to have given more definitive understanding of what might have gone wrong in process that led to Grenfell Tower, in terms of conformity assessment, possible more ambitious role for UKAS.

(2) The purpose of UKCA marking. Freedom to develop standards to suit national priorities, a mark that signifies conformity with those standards could stand as a mark of safety, or quality, or whatever those priorities might be.

(3) The assessment process. The detailed assessment process (the AVCP system) needs to be both simplified and strengthened.

(4) Conformity Assessment Bodies. With limited exceptions, CABs have not demonstrated any obvious sense of a need for change (or even critical review) in the wake of the fire at Grenfell Tower. We believe there should be a clearer statutory duty upon CABs to be aware that they are acting in the public interest when carrying out the conformity assessment.

(5) Product manufacturers. There are also two significant opportunities for self-regulation on the part of product manufacturers:- increased use of voluntary third-party certification schemes and Code for Construction Product Information developed by the industry.

(6) Government procurement. Government should use its buying power as an incentive to adopt good practice by setting out how the following could be accepted as criteria in consultant, contractor or product selection.

(7) A joint Government/industry action plan. The success of the Building Safety Act depends upon a certain amount of “machinery” being in place, most of which should primarily be the business of industry, but which will call for a continuing engagement by Government. with training and awareness.

(8) Body of knowledge. The safety of a building does not just relate to fire, and issues relating to structure are as important. However, the body of knowledge about fire in particular is as fragmented and dispersed as the many organisations engaged in this specialism. This body of knowledge needs to be pulled together as part of the joint action plan, made accessible and kept under review, with a centre of excellence and the public interest at its core.

The critical need for industry engagement and for a more comprehensive and coherent body of knowledge reinforces the vital importance of Government continuing to engage, at the right level and in a practical way beyond the role of legislator and regulator, in the programmed development of the knowledge, skills and tools by which building safety will be more securely delivered.

The report extends to some 175 pages and covers in detail a number of other issues, for further information see link below article.

[edit] Response from M.Gove

In a statement to the House of Commons, DLUHC Secretary of State Michael Gove, said: “I would like to thank the reviewers for the comprehensive and thorough assessment of the current system and for their report and recommendations. We recognise that more needs to be done and are carefully considering the recommendations put forward by the independent reviewers.

“I will also consider how our regulatory regime can ensure that only responsible businesses can make and sell construction products. It is unacceptable that cladding and insulation manufacturers have neither acknowledged their part in the legacy of unsafe buildings in the United Kingdom, nor contributed to the cost of remediating buildings.

“To deliver the change we need, I will set out our proposals for reform of the UK’s construction product regime in due course, building on the work of this review.”

[edit] Industry response

Dame Judith Hackitt, critical of construction product testing in her 2018 report said the Morrell review

“marks a major step forward in mapping the complexity and opacity of the current construction product regime and also identifies ways in which significant improvements can and should be made. We must move from a state where: up to two-thirds of products are unregulated, there is lack of clarity around purpose of testing, the fitness for purpose of current standards is questioned and there is no enforcement to implement a process that delivers quality and confidence. The task now is to use the wealth of information mapped out here to create a new framework that drives the right behaviours, which enables effective enforcement by the regulators and delivers buildings where people can have confidence in their quality and safety.”

Eddie Tuttle, director of policy, external affairs and research at CIOB, said: “This report is welcome and is clear that the testing regime for construction products must be effective to reassure the public. The failings highlighted by the Grenfell tragedy are all too apparent and this report makes it clear that change is necessary.”

You can see the review at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1151666/Independent_Review_of_the_Construction_Product_Testing_Regime.pdf

This article is based on a review of "Testing for a Safer Future - An Independent Review of the Construction Products Testing Regime" published by DLUHC in April, 2023 for further information follow direct link above.