The DETR’s latest consultation paper on self-certification under the Building Regulations makes businesses vulnerable to court action, and introduces yet another time-consuming approval mechanism.
After reading the latest DETR consultation paper –Taking Forward Self-Certification Under the Building Regulations – I let out a huge groan. I will explain my reaction shortly, but first I had better summarise the document.

Part 1 is aimed at trade associations or similar organisations that might be interested in approving firms and, possibly, persons as competent to self-certify compliance with the Building Regulations. Those intending to respond are invited to indicate how they wish to approve firms or individuals as “competent”.

Part 2 invites responses to a proposal to extend self-certification to include certification of a whole scheme or project. The paper suggests that this would help overcome the difficulties of fragmentation where some constructors were “competent” and others were not.

I do not propose to deal with this document at length but, rather, to pick out three issues that were the subject of my exasperation.

The first is concerned with the notion of “competency”. This word featured prominently in the report of the cowboy builders working party and discussion of the issue. Any organisation that certifies or approves a firm or individual as competent to carry out certain work, or to self-certify compliance with the Building Regulations, could be inviting all and sundry to sue it. Take this example. An approved firm has self-certified that the foundations it has built for me are in accordance with the Building Regulations. Subsequently, the building falls down – the foundations are not in accordance with the regulations. The firm is guilty of gross negligence. Could I have a right of action against the organisation that approved this firm as “competent”? In the present state of the law of negligence, the answer is likely to be yes. The better approach is simply to acknowledge that the firm is qualified to self-certify under the regulations.

The other issue that concerns me is the possibility that schemes could be accepted that enable individual operatives to self-certify. The consultation document states that the idea of self-certification is to promote higher standards among small and larger contractors. Apart from the fact that individual tradesmen are less likely to secure the necessary insurance cover (unless they have the benefit of a trade association insurance/warranty scheme), their being able to self-certify will not necessarily achieve the objective of improving the efficiency and quality of the industry. The abilities of individual operatives are only one indicator of whether or not a business (even if it is a sole trader) is efficient and properly resourced to provide the desired quality.

But the thing that really made me groan is that firms will have to go through a process of obtaining approval to self-certify compliance with the Building Regulations. This is simply getting out of hand. The burden on small and medium-sized businesses of having to qualify for every Tom, Dick and Harry scheme is fast getting beyond a joke. The need to qualify for all kinds of approved lists and schemes is costing construction businesses millions of pounds.

Five years ago, it was Sir Michael Latham’s vision that there should be a national quality register of approved contractors and consultants seeking public sector work.

He also proposed that main contractors should be required, as a condition of contract, to employ only registered specialists on public sector work. To some extent, Constructionline, a joint venture between the DETR and Capita, is an attempt at a national list. But is it going anywhere? Getting Constructionline used by public clients is proving to be an uphill struggle.

The burden on small and medium-sized businesses of having to qualify for every Tom, Dick and Harry scheme is fast getting beyond a joke – such schemes are costing millions of pounds

The Lift and Escalator Industry Association recently carried out a survey among local authorities. It wrote to 481 local authority chief executives. Of these, 153 replied and out of that number, 127 said they were aware of Constructionline. Of the 127, 95 said they used Constructionline, but 51 out of the 95 said that they would keep their own systems as well.

Then we have the cowboys working party proposing a quality mark scheme so that those operating in the domestic market have to go through another approval mechanism. As if all that was not enough, the Inland Revenue is getting in on the act, too. In order to operate in the industry, firms have to satisfy certain criteria to obtain the necessary certification under the new construction tax scheme.

But it doesn’t end there. Andrew Bacon, director of the Association of Plumbing and Heating Contractors, recently brought to my notice that the Water Regulations will allow water companies to create 29 new quality marks for plumbing! Who is responsible for this? Answer: the DETR, which appears intent on breeding a variety of these schemes. And at the same time, letters are landing on the desks of specialist contractors from main contractors telling them to get on (yet another) list maintained by an outfit called Project Profiles. Pure madness.

So, I will take this opportunity to suggest some new year’s resolutions to my friends at the DETR:

  • Exercise extreme care when using the word “competent”

  • Concentrate on promoting quality firms (which should embrace the employment of quality operatives)

  • Seek to better promote Constructionline so its use becomes de rigueur in the public sector