CONSTRUCTION
Trust being the owner, leasing it out to somebody, and then the PFI, and also everybody who entered into the contract, and how that’s going to be worked out.”
‘Opening up a can of worms’ HEJ’s Jonathan Baillie asked: “Isn’t this opening up a major can of worms in terms of compliance with so much confusion about who’s actually liable? Won’t it be very difficult to prove which party is responsible?” Phil Morrison said: “As a lawyer, I’d say ‘yes’. The law
is either going to have a lot of people to go at, or the responsible parties could be quite difficult to pinpoint. If you’re suing someone, you only need one person or company to be found liable, but the more you can target, the greater your chance of success. If you’re suing for anything defective, you would go against the most prominent party. If that was a design and build contractor, for example, you’d expect it to bring everybody else in as part of its defence, either saying: ‘If I’m liable, you’re all liable’, or: ‘I’m not liable, but you guys are.’” He continued: “The Building Safety Act can, however, be quite clever, because while the client has the ultimate responsibility, including for appointing other parties, that doesn’t detract from the next person’s responsibility. So you can’t just say: ‘Well, I appointed a designer, or a contractor, so I have nothing to do with it subsequently.’ Everybody has that level of responsibility they must comply with. So, a design and build sub-contractor may be responsible for providing or specifying a façade panel, but ultimately the whole point of the Act is that, at Gateway 2, you should know enough about that design to be able to pinpoint that specification.” Dean Payton said: “Trusts will still have Authorising Engineers and various Accountable Persons. It seems
to me Trusts might create a new role, to oversee the client duties for minor works, instead of employing an independent BRPD to dispense the client duties – which may be cost-prohibitive relative to the project budget. This new role could keep this in house.” Trevor Rogers of LABC said: “If residential units are involved, then you’ve got the principal accountable person – somebody who is going to have to be defined, because it’ll go through the building assessment certificate process with residential in there. Somebody will have to put their hand up for that.” Dean Payton said: “We work across multiple Trusts, and with the Act fairly new, Estates and Capital teams are learning ‘on the job’. We’ve been asked to provide the BPRD services. It’s going to start getting very expensive for Trusts to go and change a toilet, for example, on smaller jobs. It’ll start adding up to substantial fees for what are effectively minor refurbishment works. I don’t know if the NHS is looking at that. Is there a level where they say, for example: ‘We are just going to deal with this in ‘in house’ as the accountable persons, and then – if it’s over this threshold – we will get in an external consultant?’ ” Phil Morrison said: “Anecdotally, clients have taken
a de minimis approach that if it’s a certain level – for example replacing a fire door – they will not go to the Building Safety Regulator, but if it’s replacing a number, they will. It’s just ridiculous to go with every kind of change – so they’ve taken it on themselves to make that decision. They’re informed and they’re looking at it, which is fine. However, as it develops, it’s about understanding what the Building Safety Regulator is concerned about, and your relationship with them or their team, so they get an understanding that if you’re a responsible local authority or other public body, they will accept that you are not going
RAIN DEFENCE LOUVRES 28 Health Estate Journal October 2024
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