RPSA Articles

At a recent Property Institute event, many of us were struck by a key message from Sandra Ashcroft, Head of Industry Competence and Culture Change within the Building Safety Division at the Health and Safety Executive (HSE). She underscored the far-reaching implications of the Building Safety Act 2022, making it abundantly clear. This pivotal legislation impacts all buildings, not just the high-rise or overtly high-risk structures that have dominated headlines.

For us, as residential property surveyors, this is a profoundly significant development. It signals a shift in the landscape, demanding that we broaden our focus beyond traditional condition reporting. We must now be acutely aware of how our surveys identify and communicate health and safety risks, and importantly, the adequacy and clarity of the advice we provide to our clients – the homebuyers who rely on our expertise to make informed decisions.

Why the Building Safety Act 2022 Matters to Every Surveyor

The BSA 2022, alongside associated legislation, is part of a fundamental reform of building safety culture and standards. While some of its most stringent measures are targeted at higher-risk buildings, the Act's influence permeates the entire built environment. Here’s why it's crucial for residential surveyors:

1. Elevated  Duty of Care: The Act reinforces and arguably elevates the existing common law duty of care for all professionals involved in property. For surveyors, this means the expectation of thoroughness and diligence in identifying potential safety hazards during pre-purchase inspections is higher than ever. The overarching goal of the BSA 2022 is to ensure that buildings are safe and that those who advise on them are competent.
2. Amended Defective Premises Act 1972: Crucially, the BSA 2022 amends the Defective Premises Act 1972 (DPA). This includes extending the limitation period for claims from 6 years to 15 years prospectively for new work, and retrospectively to 30 years for claims relating to work completed before the BSA came into force (28 June 2022). This significantly lengthens the period during which surveyors could face claims if their advice is found wanting in relation to defects that make a dwelling unfit for habitation.
3. Focus on Competence: Competence is a central tenet of the new regime. The HSE and the new Building Safety Regulator (BSR) are driving a culture change where everyone involved in the design, construction, management, and inspection of buildings needs to demonstrate appropriate skills, knowledge, experience, and behaviours. As trusted professionals, surveyors are squarely within this expectation.

If we fail to adequately identify, report, and clearly communicate significant health and safety issues, such as the presence of potentially flammable materials, risks from outdated electrical installations, or structural concerns, we could face substantial liability.

Consider these common scenarios:

• Loft Insulation: It is vital to identify specific types of older loose-fill insulation (for example, some urea-formaldehyde foams or inadequately fire-retarded cellulose insulation). It's not enough to merely note its presence. We must clearly flag potential fire risks, issues with off-gassing, or other hazards and strongly recommend specialist investigation and, if necessary, remediation.
• Electrical Installations: If wiring appears dated, shows signs of damage, or includes visible defects, simply suggesting it "may need checking" is no longer sufficient. We must clearly articulate the potential dangers (e.g., fire risk, electric shock) and unequivocally recommend a full Electrical Installation Condition Report (EICR) by a qualified and registered electrician.
• Cladding and External Wall Systems: While detailed assessments of EWS are specialist areas, if a surveyor observes materials on a building (even a low-rise one) that are known to have caused issues elsewhere, or signs of poor installation, this must be flagged as a potential risk requiring further expert investigation.

Failure to provide such clear and explicit advice could be viewed as falling short of the expected standard of care, particularly in this new era of heightened safety awareness.

Reducing Liability: Practical Steps for Surveyors

To navigate this evolving landscape and minimise liability, surveyors should proactively enhance their practices:

1. Deepen Your Knowledge: Stay rigorously updated on the BSA 2022, associated regulations, and evolving industry guidance on building safety. Engage with CPD focused on material identification, common defects with safety implications, and effective risk communication.
2. Rigorous On-Site Inspection: Be exceptionally vigilant in identifying potential safety hazards. This includes not just the obvious but also considering how elements might perform in fire, whether they are structurally sound, and whether they pose other health risks.
3. Clear and Unambiguous Reporting: 
   • Identify and clearly describe every significant safety hazard you observe.
   • Explicitly state the potential consequences of not addressing these risks. Use plain English, avoid jargon where possible, or explain if its use is unavoidable.
   • Provide clear, firm, and actionable recommendations. This means recommending specific further inspections by appropriately qualified specialists (e.g., gas engineer, structural engineer, fire safety consultant, damp specialist) and stating why it's necessary.
4. Robust Report Templates: Review and update your report templates to ensure they systematically address common health and safety risks. Consider dedicated sections or checklists that prompt thorough consideration of these issues.
5. Effective Client Communication: Don't just rely on the written report. Where appropriate, and particularly for serious risks, have a conversation with your client to ensure they understand the implications of your findings.      Document these communications.
6. Understand Your PII: Be aware of how your Professional Indemnity Insurance might respond to claims related to building safety. Adherence to best practice and new legislative standards is key to maintaining robust cover.
7. Meticulous Record Keeping: Maintain detailed records of your inspections, findings, advice, and any client communications. This can be invaluable if a claim arises years later.

Potential Consequences of Non-Compliance

The shift in focus brought about by the BSA 2022 means that surveys lacking clarity or thoroughness on health and safety issues, or instances where clients are not adequately warned about serious safety risks, can lead to:

• Legal  Claims: Increased likelihood of negligence claims, particularly given the extended limitation periods under the DPA.
• Financial Penalties: While direct fines under the BSA 2022 might not typically apply to pre-purchase surveyors in the same way they do to, say, Accountable Persons for HRBs, the financial impact of successful civil claims can be substantial.
• Reputational Damage: In an era of heightened consumer awareness, allegations of overlooking safety issues can severely damage both individual and firm reputations.
• Increased PII Costs: A poor claims history or perceived higher risk profile can lead to increased PII premiums or difficulty obtaining cover.

Improving Practice: The Way Forward

The RPSA is committed to supporting its members in navigating these changes. We will continue to provide:

• Targeted Training and CPD: Look out for RPSA events and resources specifically addressing the BSA 2022 and its practical implications for residential surveys.
• Guidance on Best Practice: We will update our guidance to reflect the evolving standards and expectations.
• Advocacy for Surveyors: We will continue to represent the interests of residential surveyors and ensure our voice is heard as the new safety regime is implemented.

To align your practice effectively:

• Embrace Continuous Learning: Make building safety a core part of your ongoing professional development.
• Review and Refine: Regularly assess your reporting processes and templates. Are they fit for purpose in this new environment?
• Communicate with Confidence and Clarity: Ensure your clients not only receive your report but also understand its critical safety messages.

The Building Safety Act 2022 represents a paradigm shift. By proactively understanding its implications and adapting our practices, we not only protect ourselves and our clients but also reinforce the value, trust, and professionalism that are the hallmarks of RPSA members.

Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. RPSA members should consult with their own legal advisors and professional indemnity insurers for guidance on specific situations and legal obligations.