FPA Commercial Director Chris Miles considers the compliance of construction products and the impact the Grenfell Tower Inquiry Phase 2 report will have on this sector

In the first article in this series, entitled ‘Inquiry Phase 2 Response – Time for change’, Dr Gavin Dunn takes a wide view of the content and implications of the Grenfell Tower Inquiry Phase 2 report. It is worth (re)reading to enable the following article to be contextualised.

One of the key areas that the Inquiry Phase 2 report looks at in some depth is that of the compliance of construction products and systems and how the process can be improved, noting that using relevant, robust standards is essential. This article will look at the current process, some of the issues identified in the report and progress made in improving it, and will then examine ways in which the recommendations made in the Phase 2 report can be implemented.

There are multiple elements to the compliance of products and systems, including how the process is governed and regulated, and the report includes a number of recommendations related to this. Some of the elements forming the recommendations in the report include:

• setting clear standards, testing, and certification processes that will protect against unsafe product use, enhancing overall building safety
• the use of clear labelling for fire performance products
• the introduction of a public database of construction products, including fire performance details
• creating a robust governance system to ensure all parties act in the same way, using the same principles
• the appointment of a ‘construction regulator’ with overall control of this system.

Current compliance

If we look at the various routes to compliance that are currently available to the construction product industry we find multiple options – e.g. testing by the manufacturer/supplier, independent testing by a third party, sampling of products from the market (surveillance), and third party product certification. Whilst the third-party product certification route is often seen as the highest current level, there are variations between the providers offering various qualities such as user-friendliness, locality, project/market needs, costs, and turnaround time. However, the Inquiry report showed that too often the need for quality and thoroughness were a lower consideration when selecting which option was to be used.

Analysis of the lead up to the Grenfell Tower fire by the Inquiry showed that examples of poor practice in the compliance processes led to inappropriate products, critical to the safety performance of the system, ended up on the building, namely the use of aluminium composite material (ACM) cladding. The Inquiry report states that:

“The choice of combustible materials for the cladding of Grenfell Tower resulted from a series of errors caused by the incompetence of the organisations and individuals involved in the refurbishment…

“Everyone involved in the choice of the materials to be used in the external wall thought that responsibility for their suitability and safety lay with someone else.”

These issues can be shown to stem from a weak governance of the system that the testing laboratories and certification bodies operated under. This demonstrates that the governance of the compliance process is critical to an effective system.

Applying recommendations

The Inquiry report provides a clear recommendation that the construction regulator should be responsible for assessing the conformity of construction products with the requirements of legislation, statutory guidance, and industry standards. The regulator would then, perhaps, issue certificates to cover products, as appropriate, with a proposal that these certificates would become pre-eminent in the market.

This would, in effect, create a new independent authority to regulate construction product safety (see figure 1), and whoever takes on this task must ensure there are clear responsibilities on product manufacturers and must also set out the consequences of acting outside the required system. To give this system real teeth, it must have the ability to set statutory liabilities and be able to enforce them through criminal proceedings if necessary.

To improve the system overall it is important to have this recourse to legal action if a company or individual does not follow the proscribed system. If a serious mechanical failure occurred on an aeroplane, there would be a thorough investigation as a matter of course, and where fault was found there would be statutory implications. However, currently none of that happens routinely with construction products. This needs to change and it will need government and legislative support as part of their response to the Inquiry report recommendations.

It should be noted however, that taking on the role of construction products regulator is a huge task and one which should not be undertaken lightly by any organisation, even by government. There are hundreds of certificates produced each month by the various current certification bodies and, as a response to the events at Grenfell and the subsequent Hackitt report, these numbers have grown significantly in the past seven years as the authorities started asking for more proof of compliance. To replace and/or replicate this through a newly founded construction products regulator will be a major undertaking requiring significant investment.

If government decide that this is the way forward they wish to take, they will need to ensure this new body has access to sufficient numbers of competent staff in an area where we are all aware of the current lack of this type of resource. Therefore to rush into this could be a major mis-step and cause delay and confusion at a time when the construction sector as a whole is looking for clarity after the Inquiry report’s publication.

The Inquiry Phase 2 report recommendations under section 113.23 are:

1. that copies of all test results supporting any certificate issued by the construction regulator be included in the certificate;
2. that manufacturers be required to provide the construction regulator with the full testing history of the product or material to which the certificate relates and inform the regulator of any material circumstances that may affect its performance; and
3. manufacturers be required by law to provide on request copies of all test results that support claims about fire performance made for their products.

Looking at each of these points individually highlights the difficulties faced when trying to implement a system to meet these recommendations.

Recommendation 113.23a recommends that copies of all test reports supporting any certificate issued by the construction regulator are included, however product manufacturers will often go through numerous test cycles during the R&D process of a product or system. Many of these test reports do not represent the final product and are used to prove variations in the design. This will result in a large number of failed results showing on the certificate for prototypes that may bear little resemblance to the final product to be sold on the market. If these R&D results are included in a certificate they could be a red herring, confusing potential product users as to the ultimate safety of a product or system.

This may in turn have a knock-on effect on the R&D work itself, with potential R&D work either not being undertaken to improve products, or testing potentially being done under a different name thus keeping the R&D tests separate from any final product. There is also the possibility that this may take R&D testing outside the auspices of a certification body to avoid a negative result reflecting on an existing product, even if it is a prototype or development test. There is a danger here that R&D tests move into a testing ‘shadow realm’ where they get done in secrecy, outside the control of the regulatory body.

Recommendation 113.23b, that will require manufacturers to provide the regulator with a product’s full testing history, is a one that is already governed correctly by the use of an ISO 17065 compliant certification scheme at the highest level. Having a quality management system overseen by an independent body that is compliant with ISO 17065 means that products are already subject to random checks. These ensure that what is being manufactured is the same each time and relates directly to the certified test results. This should ensure that any changes in the product or the materials are picked up and highlighted and lead to retesting of the product or any system it is part of.

Clearly this system needs to be robust and very thorough, but with suitable regulatory backing ensuring this is the case, it should cover the requirements of the recommendation in the report meaning it would be unnecessary to replicate this from scratch.

Finally, in relation to recommendation 113.23c, the Code for Construction Product Information (CCPI) process is already well-established having been introduced in 2021. It evaluates the claims made regarding product performance by manufacturers, suppliers, and distributors using five ‘acid tests’. These aim to make sure the claims made are clear, accurate, up-to-date, accessible, and unambiguous and do so independently and thoroughly on a regularly reviewed basis (normally every three and six months). For example, if a manufacturer claims 60 minutes fire resistance for a certain product, the CCPI scheme will make sure that the manufacturer can prove it and there is data to verify that claim.

This independent system is fully functional now and would remove the need for copies of all test reports to be published elsewhere. It is currently voluntary, but with the backing of regulatory enforcement, this could provide the backbone of a system that would functionally meet the aim of recommendation 113.23c.

The wider picture

For a complete picture, we should, however, not forget that the previous government instigated an independent review of the process for the testing of construction products which is publicly available in the Morrell/Day Report. This was well received and contains realistic and workable recommendations for improving the compliance evaluation of construction product safety. The previous government committed to full implementation of the recommendations from Morrell/Day, of which there are over 20, but this had not occurred prior to the 2024 general election.

Where the recommendations of the Morrell/Day report are of a technical nature and within the capabilities of the FPA to lead and contribute to, we are committed to doing so, including aspects of standardisation, capacity of testing, and competency. These include:

• increasing the focus on products essential to (and in the context of) safety-critical construction
• strengthening the understanding and application of testing products when assembled into systems to close the disconnect gap between the products tested at test houses and the systems installed on buildings
• increasing the scope and ensuring the rigour of third-party certification schemes (such as the CCPI mentioned above)
• addressing the particular competence requirements for complex, higher-risk buildings
• creating a shared road map for practical progress to build on the mutual desire for change through collaboration and cohesion within the industry.

A further recommendation in the Morrell/Day report is to address the regulatory needs in the UK against those in Europe with respect to CE and UKCA marking. The recent government statement to parliament on 2 September has clarified this position, regarding the continued use of CE mark for construction products. This announcement means that CE marking will be accepted past 30 June 2025 in Great Britain, with UKCA marking remaining a valid and accepted regulatory mark.

The government has also committed to system-wide construction product regulatory reform and will explore the long-term future of CE/UKCA marking as part of this, with any subsequent changes to the recognition of CE marking would be subject to a minimum 2-year transitional period. As such the construction product industry at least now knows what they need to do for mandatory marking.

Whilst CE marking does provides some guidance on product compliance, more is required, as alone it does not satisfy the needs of the recommendations made in the Inquiry Phase 2 Report.

To bring all of the Inquiry Phase 2 report together in a single, robust, workable system, whilst also addressing the needs of the EU system, will take a major effort and needs to be supported by the existing compliance bodies. However, if these bodies are to lose their role to an as un yet established regulator it may reduce their willingness to participate in this activity at a time when such a major effort needs collaboration and cooperation.

There are several smaller groups now forming to look at how the testing and certification processes can be improved to address the aspects of the Inquiry Phase 2 report. Much is in place and government and industry should consider the costs and benefits of completely replacing an established system, albeit one with some identified flaws, with a completely new system which has no current structure, capabilities, or governance.

Figure 3: Current third-party product certification (TPPC) system

Moving forward effectively

The goal of the recommendations in the Inquiry Phase 2 report are sound and we fully support this direction of travel. However we do feel that the adaption of the existing third-party product certification system is a more practical way to get where we want to be more quickly and with less disruption, with the acceptance that some disruption is needed. For this to work, and for it to meet the overarching spirit of the Inquiry Phase 2 report, it must clearly include an overseeing and governing role by the construction regulator that has real statutory bite to back it up.

By making use of the existing structures and increasing the scope and rigour of the quality certification schemes already out there, with potentially serious legal repercussions for those who do not work to the standards required, government can relatively quickly set the framework within which all parties have to operate.

As Gavin said in the prior article, we have now reached a much-needed milestone. We do not need to wait to work on the findings and should not let the failings within the built environment pass us by. Improvement of the compliance process is within reach if we act collaboratively and with good intentions by adapting and building on the existing systems.

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