Key BSA changes for approved inspectors

Secondary legislation [1] (the Regulations) is now in force which will replace Approved Inspectors with Building Control Approvers (Approvers). The Regulations have introduced a new regulatory body, the Building Safety Regulator (the BSR), which requires all Approved Inspectors to register as Approvers. Approved Inspectors must register, or they will be prevented from taking on work. The BSR has planned for new assessment criteria which will separate Approvers into different classes. These classes will dictate which work they can undertake. Although the legislation came into force on 1 October 2023, Approved Inspectors have a grace period until 1 April 2024 to register with the BSR. The Regulations cover any work commenced after 1 October 2023.

This note considers the impact of these changes on the role of Approved Inspectors, how they may affect potential claims against Approved Inspectors and the approach to take to terms and conditions going forward.

The Role of an Approved Inspector

Approvers are likely to have a similar role to Approved Inspectors. Approved Inspectors provide independent third-party assessment of Building Regulation compliance throughout the course of a regulated construction project. Their first service will usually be to submit an initial notice to the local authority before work commences. As soon as the initial notice has been accepted by the local authority, building work can commence.

Approved Inspectors carry out regular inspections throughout the works to ensure compliance with the Building Regulations. They typically advise from the outset on the number of inspections they will carry out, and at which stage of the works. At each inspection, the Approved Inspector will produce an inspection report which notes if there are any Building Regulation issues to be resolved. This information is usually passed on to the contractor, and the Approved Inspector may meet with the project team.

On completion, Approved Inspectors will issue a final certificate if they reasonably consider that the works comply with the Building Regulations.

The Legislative Position

Approved Inspectors have been monitored/regulated by the CICAIR and the CICAIR Code of Conduct. However, this is set to change. Under the Regulations, the Health and Safety Executive has set up a new regulatory body, the BSR, which will replace the CICAIR and introduce a new Code of Conduct in April 2024.

Building Safety Act 2022 (the Act)

The Act and the Regulations have introduced a new regulatory regime for the building control profession. Under the new regime, if the works are subject to an initial notice, the Approved Inspector overseeing the project must have registered as an Approver by 6^th April 2024. Registration will open in October 2023, and Approved Inspectors will have a six-month transitional period to register. If an Approved Inspector is not registered at this point, then they will not be able to carry out any works.

Approvers will be assessed against the Building Inspector Competence Framework every four years. Assessment will be undertaken by external competence assessors. The Chartered Association of Building Engineers and the Building Safety Competence Foundation will be the first assessors. Assessments include mandatory CPD, interviews and examination pathways. The Framework focuses on the skills, knowledge, experience and behaviours expected of Approvers.

Approvers and Registered Building Inspectors

The new regime distinguishes between Approvers and Registered Buildings Inspectors.

Acting on a building control authority’s behalf, an Inspector can carry out restricted activities related to any work covered by their registration. Prior to exercising a restricted function, a building control authority must obtain and consider the advice of an Inspector whose registration covers the relevant work. On the other hand, a Building Control Approver cannot carry out a restricted activity without acting through an Inspector with relevant registration. Additionally, before exercising a restricted function, an Approver must obtain and consider the advice of an Inspector whose registration covers said work.

The Consultation for Changes to the Building Control Profession and the Building Control Process for Approved Inspectors proposed specific restricted activities and restricted functions for Inspectors, Local Authorities and Approvers. Following the Consultation, secondary legislation is set to be introduced which will detail the restricted activities and functions.

The BSR’s Code of Conduct will also provide minimum performance standards for Approvers and for local authority building control bodies. The BSR will have the power to investigate and sanction any party which falls below these minimum standards.

Building Inspector Classes

BSR will allocate Inspectors into different classes based upon competence and experience. The different classes are as follows:

Class 1 Building Inspector (Associate/Assistant): Cannot be unsupervised. Minimal experience/entry level position.

Class 2 Building Inspector (Standard): Can undertake tasks like evaluating plans, drawings and documents, conducting inspections, advising building control bodies, and advising the issuance of completion certificates.

Class 3 Building Inspector (Complex/High Rise Buildings): Has additional knowledge to deal with complex and high-rise buildings. Must be able to liaise with clients/contractors/building control bodies and must be able to implement and develop a property inspection schedule.

Class 4 Building Inspector (Manager): Able to manage a building control team.

In order to progress through the classes, and to maintain class position, Inspectors must complete mandatory CPD.

Common Claims

It is likely that claims against Approvers will be similar to those against Approved Inspectors. Typical claims against Approved Inspectors include:

• that they breached their contract by negligently issuing the final certificate when the works did not comply with the Building Regulations;
• that the works are defective and they failed to inspect the works adequately; and
• that they offered the homeowner an enhanced duty of care by commenting and advising on the quality of the works, and that they breached this duty.

Claims are often combined with a referral for disciplinary proceedings. Sanctions include financial penalties, variation to the Approver’s registration (including moving down classes), suspension of registration for a specified amount of time, and cancellation of registration.

Approach to Appointments

Approvers should ensure that they have robust terms and conditions upon instruction.  For the time being, many Approved Inspectors are likely to be continuing to use the ACAI standard contract and this is a requirement of many Approved Inspector professional indemnity insurance policies.  The CICAIR terms contain many key protections to reflect the risks of the role which will also be important in Approver appointments.

We expect that a standard Approver contract will be published in due course.  In the meantime, Approved Inspectors and Approvers should consider adapting the ACAI standard contract to reflect the new terminology and the new scope of the role, and to allow for an Approved Inspector to step away if they are not registered as an Approver.  .

Looking to the Future

The Act and the Regulations have brought in three important changes: the requirement to register with the BSR, the minimum performance standards that Approvers must meet, and the new powers for the BSR to investigate and sanction Approvers.

Approved Inspectors need to register quickly for the new regime in order to ensure that they can carry out work from April 2024. CICAIR has warned that there will be delays in registering which may impact whether or not an Approved Inspector can work. Approved Inspectors not registered with the BSR should be aware that while they can still provide an initial notice before April 2024, if the building work has not been completed (final certificate issued) by 1^st October 2024, they will need to apply for a new initial certificate. They will need to be registered to do so.

Approvers are likely to be held up to greater scrutiny under the new regime, and the BSR may seek to pursue statement prosecutions. Whilst it may remain difficult to purse a civil claim against Approved Inspectors and Building Control Approvers., there is no doubt that there is an increased level of risk , whilst the industry familiarises itself with this new legislation.

Care should also be taken with appointments as Approved Inspector or Approver during the transitionary period. It may also be sensible to update Approved Inspector standard terms/generate some new Approver terms to reflect the changes to the role.  Please get in touch if you would like assistance in relation to this.

The Building (Approved Inspectors etc. and Review of Decisions) (England) Regulations 2023