A review of construction product testing commissioned by ministers following Grenfell Inquiry evidence has recommended sweeping changes. Here’s a guide to what it all means.

Yesterday the government published a landmark review of the assessment regime for construction products, ordered in the wake of shocking evidence heard by the public inquiry into the 2017 Grenfell fire.

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Authored by the government’s former chief construction advisor, Paul Morrell, and construction legal expert Anneliese Day KC, the 174-page report recommends a major shake-up of the way approved bodies regulate products.

The intention of the recommendations is to prevent potentially dangerous products from being used on buildings, and to enable the government to keep a much closer eye on material manufacturers and how they market their products.

Below is a summary of the key points in the report, what it is advising the government to do, and what it says about the background of the current regime.

Weaknesses in the current system and recommendations:

Lack of coverage

The clearest weakness of the current Construction Products Regulator (CPR) is the exclusion of products which have no designated standard, which accounts for around two thirds of all products on the market. This extends to any product with a designated standard which is used in a way “not contemplated” by its standard.

Other exclusions include product assemblies, or systems, except “kits” designed by a single manufacturer to be assembled, and materials not placed on the market for use in “permanent” construction.

> Recommendations: 

  • Bring all construction products into the scope of the CPR by virtue of a “general safety requirement”.
  • Government should publish a fact sheet on the interpretation, operation and enforcement of the general safety requirement.
  • Bring products which are not covered by the CPR into scope under new designated standards, or by being added to a list of “safety-critical” products.
  • Government should publish a fact sheet on the interpretation, operation and enforcement of provisions relating to safety-critical products.
  • Government should mandate that safety-critical products or systems are subjected to the most stringent level of conformity assessment that is practical for the particular product or system

Complexity

Another weakness outlined in the report is the complexity of the current regime, which has five different routes and up to six steps through the system. “The CPR assessment process is so complex that few people properly understand it, and there is a concerning disconnect between those involved in the assessment process and those who design and construct buildings,” the report says. 

“The criteria by which products are directed towards the different levels of this system are also unclear, and sometimes inconsistent. This renders the process opaque; and a system that cannot be readily understood is unlikely to be routinely observed and enforced, providing an opportunity for those who may seek to take advantage of a lack of transparency.”

The report says this complexity creates a “bubble” containing “those who understand the landscape of standards, testing and assessment and excluding those who do not. “Amongst those excluded are frequently those who design and construct buildings, who consequently have very little understanding of the processes by which the conformity (or otherwise) of products to standard is established,” it says. It is argued that this has led to a perception of “cosiness” between regulators and those they regulate.

> Recommendations

  • Bring in secondary legislation on construction products to consolidate existing relevant legislation, or publish an unofficial consolidation that brings all Construction Products Regulations into a single document.
  • Publish and keep updated a comprehensive guide, “in plain language”, describing the conformity assessment processes prescribed in the Construction Products Regulations.
  • Industry should include in built environment education courses a general understanding of the conformity assessment process across the industry and its importance in product selection and design.
  • Industry should promote awareness and understanding of the conformity assessment process across the industry, at levels of detail appropriate to different functions within the supply chain, with particular reference to the responsibilities and requirements of dutyholders.

Testing capacity

The report describes the UK’s current testing sector as “overloaded and slow”, which it says represents a “threat to quality and a barrier to reform”. Demand for testing is set to increase because of the requirement of the UK’s new certification system for new or updated construction products (see below) to be tested in the UK, and not at testing centres overseas. 

The principal restraint on capacity is not funding or access to equipment, the report says, but the availability of people with the necessary knowledge, skills and experience. “Unless funding is directed towards that aspect of capacity building, then it is more likely to result in increased cost and inefficiency and/or in moving those scarce resources around without increasing net capacity,” the report says.

> Recommendations: 

  • Government should develop a clearer understanding of existing capacity of testing bodies to meet current and predicted demand.
  • Government to make it easier to convert CE markings to UKCA markings and to allow the use of overseas testing labs.
  • Investigate the potential for alternative technologies, including AI, to “reduce or eliminate the requirement for physical testing, without reducing the reliability of the data provided”.  

Marketing

Many of the most egregious allegations heard at the Grenfell Inquiry involve false or misleading marketing of potentially dangerous products (see below).

This included selective quotations from test result certificates, products being marketed beyond their limitations, and stating that a product had passed a test when it had failed.

> Recommendations: 

  • The report says the first protection against misleading marketing must be ease of access to a reliable source where claims made about the conformity assessment process for products can be checked. This would mean all relevant documentation being lodged in a centralised and publicly available database to ensure it is authentic and current. “In addition to limitations placed upon manufacturers in making use of a certificate that has been restricted, suspended or withdrawn, it is particularly important that those who rely on certification and information derived from it can be made aware of its current status,” the report says. 
  • It adds: “The ultimate 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

Enforcement

The report says enforcement of the current regulatory regime has up to now been “almost totally non-existent”. It claims there has not been a single prosecution under the regulations introduced in 2011 since it was enacted, and only a limited number of investigations by relevant enforcement bodies.

This has meant that bad actors have felt able to “bypass the regulations without consequence”. The lack of action by the regulator has been compounded by the absence of any centralised database of investigations or enforcement actions, or a database of products that might represent a risk. “Without effective enforcement the market cannot function freely, fairly and safely; and it is not possible to judge how well the regulatory regime might work if it were effectively enforced,” the report says.

> Recommendations: 

  • Ensure “active and effective” enforcement under the new regulatory regime for products, backed by adequate and trained resources, and “communicated with such clarity as to persuade manufacturers and others in the product supply chain that breaches of duty will have real consequences”.
  • Assure manufacturers that competition, including from imports, will be conducted on a level playing field.
  • Develop a sector-specific, publicly accessible database that lists products known not to comply with the conditions for being placed on the market, or for which claims are made that cannot be verified.
  • Industry and its trade associations should provide leadership for manufacturers to aid and support compliance with regulatory requirements, and to work closely with the regulator with the same objective and in taking corrective action where required.

What does the review say about the Grenfell Inquiry?

The review was commissioned by the government following a series of revelations at the Grenfell Inquiry about the testing and marketing of products used on the tower from the companies which manufactured them.

“Even to those accustomed to the many, various and substantial gaps between what might be expected of the construction industry (taken as a whole) and what is subsequently delivered, some of the evidence heard in that module came as a shock, both in its scope and its content,” the report says.

“This particularly relates to the apparent lack of regard for the consequences of products that fall short of their claimed level of performance, or which might be inappropriate for their intended use.”

The report continues: “A useful starting point in addressing gaps and weaknesses in the current regime is to consider the failure of products to perform as they should, and/or failures of the assessment or marketing of products to protect the public, as alleged in the evidence heard during the Inquiry. 

It splits the alleged failures into four categories: 

  • Failures on the part of manufacturers to disclose all information relevant to the product and its assessment.
  • Failures on the part of Conformity Assessment Bodies to follow proper procedure in conducting the assessment process, including testing.
  • Failures on the part of Conformity Assessment Bodies to ensure that a certificate or classification report is fully and assuredly supported by the preceding conformity assessment process.
  • Failures on the part of manufacturers to ensure that claims made in a Declaration of Performance for their products are limited to those that are supported by the testing and assessment process.

The impact of the UK’s EU membership on regulations

Since 1988, the UK has been an active part of the European standards infrastructure under the Construction Products Directive. This remained unchanged after new construction product regulations were introduced by David Cameron in 2011, but this lacked additional national requirements for health and safety, meaning that “trust in all aspects of a product’s performance relies on compliance with that regulation”.

The report says this meant that a “a system originally designed to serve a single market is now expected to perform a much heavier role; and over the last 30 years, although the UK has been an influential participant in the process, it has depended upon the EU to set the regulatory framework for products. 

It continues: “This has led to a hollowing out of expertise in the UK, with consequent examples of over-reliance upon the standards and statutory guidance displacing professional judgement; with false or unsubstantiated claims for product performance not being recognised for what they are.”

Potential consequences of Brexit on regulations

The report says Britain’s exit from the EU provides an “opportunity to look again at the whole system of construction product regulation, and how it might be both simplified and strengthened to restore confidence in the claims made for construction products and the critical part they must play in making buildings safe”.

These could include:

  • Using many national and international standards as a basis for product assessment in the UK, to provide access to a large pool of intellectual and human resources. 
  • Aligning basic building requirements in the CPR with those in the Building Regulations, to create a “tighter and more logical relationship between the two”.
  • Unilaterally reforming the organisational infrastructure for developing standards and operating the conformity assessment process

However, the report also raised several “considerable” challenges arising from Brexit, including:

  • The need for the UK to replicate the infrastructure for conformity assessment, setting national standards etc, with reliance on resources drawn from a substantially smaller pool.
  • The cost and disruption that comes from any regulatory change
  • The need for manufacturers who export from the UK or import to the UK to operate two systems, representing additional cost and a potential disincentive to both.

The purpose of the UK’s post-Brexit certification system

Despite multiple delays, the government says it still intends to replace the European CE marking system for products including construction products with a UK-only system, known as UKCA. 

“In the event of alignment with the EU no longer being an objective, there is an opportunity to ask the fundamental question, what exactly is UKCA marking for?” the report asks.

>>See also: Morrell review into product testing proposes sweeping reforms including new regulatory regime

>>See also: Construction product manufacturers have to act, and act now

“By maintaining the link between standards and the assessment process, and between the assessment process and marking, the UKCA mark could signify whatever the standards themselves signify, and it could effectively become a quality mark signifying whatever the standards are designed to achieve - whether that is intrinsic quality, durability, safety, sustainability or whatever might become of regulatory interest.”

What happens now?

The Department for Levelling Up, Housing and Communities says it will “carefully consider” the recommendations and set out proposals for reforms in due course.

Construction Products Association chief executive Peter Caplehorn, writing for Building today, has described the publication of the report as a “seminal moment” and urged product manufacturers not to wait for the expected reforms to come into effect.

Instead he wants firms to start their “journey towards higher standards in product information management systems as well as ethical leadership and culture”.

 

 

 

 

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