With costs rising and contractors thin on the ground, the key to successful compliance is forward planning, specifying to the detail the work you want done and excellent record keeping. Remember, even if you contract property management to a third party you are still the client and still responsible.
Andrea Evans, Head of Property Services at Strictly Education explains the essential things you need to do to ensure that you are compliant.
What does the Law say?
Clearly, we have to comply with the law and under the Health & Safety at Work Act 1974, the Health & Safety at Work Regulations 1999 and Construction (Design and Management) Regulations 2015, we have to provide a safe environment for employees, clients, members of the public and in our case the crucial point is for the pupils and students.
This has to be managed within an underpinning framework of laws including Approved Codes of Practice (ACoP’s) and other regulations, such as Control of Asbestos Regs. 2012 . These can be found on the HSE website and all of these can be enforced by law as a minimum required standard, unless it can be proved that a suitable alternative regime has been Risk Assessed, applied and recorded.
Complying with the Law
So far so good – we know where the law is, we understand what it says but how do we then comply with it? The following details what sits under the law and gives us the framework we need to have in place to comply with it.
Regulations: These sit under the Law and include such regulations as Construction and Design Management Regulations 2015, Lifting Operations and Lifting Equipment Regulations (LOLER). They place a duty on the organisation and specify how to deliver checks and maintenance, and specify correct usage of the equipment including the correct PPE to be worn when operating it.
Standards: These establish the technical details used to put together the requirements of legislation or regulations and are constructed by industry bodies such as CIBSE. These bodies produce best industry practice and are standard setters. They write the standard for industry professionals work to so that they meet regulations and laws.
Laws, regulations and standards are linked. Please ensure that if you procure a third party to manage your property they have to produce a timetable of compliance checks that meet standards, regulations and law.
Rules: These form part of lease holder agreement. For example, if you are an academy and you enter into a leaseholder arrangement with your Local Authority, then they could have passed the building obligations to you and consequently they will have set out the rules by which you must manage the building. These have to be taken into account when putting together a management schedule for planned maintenance and asset management.
Governance: This is how you, as a governing body, decide to set a framework for accountability for your planned maintenance programme and compliance, how you develop the policy and how you intend to scrutinise the activity to ensure that you are compliant. This then leads to the development of policies.
Policies: Policies should reflect best practice, standard setting and regulations and should include how you intend to monitor the activity. Ultimately if you subcontract the management of your property, the responsibility to ensure that the third party is following the compliance programmes still sits with you.
Transparency: Any of occupiers can ask for copies of your records at any time – good record keeping is therefore essential.
Audits: You need to have regular internal and external audits to show how you are plugging gaps and meeting best practice in line with your policies.
So what does Good Estate Management look like?
The Department for Education sets out a strategy for good estate management in schools.
The buildings are an important and long term asset. To ensure that the buildings operate correctly, now and in the future, there should be a good asset management plan that determines the condition of the building at the time the plan was created and the maintenance regime for the building and all the elements within it. This is to ensure that you get the best use out of the asset for the life of each of the element in the building.
Buildings should be safe, wind and watertight, warm and provide a suitable teaching and learning environment so that students can prosper and get the best out of the curriculum.
Engaging a Third Party
When you are looking to engage a third party or contractor for planning maintenance and compliance you should always provide a detailed scope of what you need. You can support this by providing copies of Local Authority schematics, plans, drawings or maintenance checks from previous contractors. The more detail you provide, the better the outcome in terms of making sure everything is covered. You will also get better value in terms of price as contractors will not be given artistic licence to develop a plan they thing is more appropriate.
The best way to ensure third party is able to provide a good service is through a proper pre vetting process so that you have the relevant details such as insurances and that they have competencies i.e. the right certification to carry out the activity. It is your responsibility to do this.
Once a contractor is in place, you have to be able to interpret any reports they give you to ensure that any work they carry out has passed all of the checks, that there are no defects and if there are then how these will get remedied. There are certain timeframes that have to be met e.g. if there are defects that have Health and Safety implications then they have to be repaired immediately and have the records to show that they have been rectified.
It is always good to get an external audit to ensure that you have no gaps in the compliance regime and that all the elements have been checked and signed off. We would always advise having review meetings with contractors and setting out how you would like to receive the management reports e.g. a termly update on all property elements, where you are with reports and defects and remedials, or alternatively a traffic light system where you are provided with a dashboard and information stored on site or in a portal.
Engagement of a third party does not absolve you of responsibility. Even in a leaseholder agreement if the rights of the property have been given to you then you have responsibility for the overall management. You have to put checks in place to ensure that the contractors have the right competency to follow your plans.
Good record keeping is critical to any compliance programme to specify when checks are due, what defects you have, when they have been rectified. You also have to have certificates and reports readily available so that if anyone comes in at any stage you are able to access them easily. Contractors cannot refuse to give you any report
Management of planned maintenance
Once you have engaged your contractor/third party ensure there is clarity on how information is managed and held. Specify with them what records you want stored electronically – do not forget there are records that you will need to keep on site such as fire safety and asbestos records.
You can use a diarised or calendar system so that you have a spreadsheet listing the equipment on site and diarise dates for checks for each of elements. Most contractors will specify as part of the procurement arrangement how the management system will work and how the information will be held. Many offer a portal/cloud based system from which you can access.
You should agree between you a programme/ calendar for periodic testing. Within the calendar it is important that you understand what the checks are and which ones are statutory. This should sit within the planned maintenance programme so you can see what needs to be done, in what timeframe and in what timeframe you can expect the certification.
Within your Planned Maintenance you should have details of when appointments are made so that you can confirm who is dealing with which issue. The contractors on your schedule should be either authorised, competent or duty holder to ensure that the right person is carrying out the right activity so that they have the right ability, competency and certification to carry out the work.
Record keeping is critical. The simplest way to do this is to provide the client (i.e.you) with a simple dashboard with up to date status of the work flow. Red means that checks and works are impending or overdue, Amber means that work is due in the month and Green indicates that the checks completed and equipment is compliant.
Financial impact in terms of property
Most schools report that funding pressures have impacted ability to plan for long term replacement of equipment. It is understood that the DfE is looking to increase their capital improvement fund for schools. From experience, it is vital to have having a good asset management plan and life cycle plan alongside your Planned Maintenance Plan. This will give you the ability to plan for long term maintenance so that you are not hit with any nasty big ticket surprises such as roof repairs and boiler replacement needing to be undertaken at the same time. A building survey will be the basis of developing a 5 to 10 year lifecycle plan alongside to aid how you plan for the future and enhance any planned maintenance programme you have.
Local Authorities are reducing services to schools. As they reduce the services and novating maintenance obligations to schools as part of leaseholder agreements as well as capital improvements there will be a financial impact. In addition, the Government White Paper sets out that all schools will become part of Academy Trusts in the future. If you are not already part of an Academy Trust then a building survey will give you a detailed breakdown of the condition of your building and this could be part of any future discussion with a Trust.
The increasing cost of goods and services alongside labour issues and material shortages has resulted in less availability and choice of contractors. Therefore, better planning is essential. If you want work in the Sumer holidays then engage with contractors as early as possible. If there is possibility to get work done in the term time look at areas to segregate as you would have better value and better choice of contractors.
The Risks of not complying with the Law
The risks associated with failure to conduct these checks and tests or not carrying them out in accordance with the law or best practice, for both contractors and for landlords/tenants with novated liabilities, in delivering a safe and secure environment is high.
In the most severe cases, where there is a life or death threatening injury, these can result in prosecution and imprisonment and corporate manslaughter cases. Whilst these consequences may be a unusual, it is very clear that the responsibilities lay with trustees, directors and senior officers of an organisation. For most organisations the penalties for non-compliance will take the form of fines, sometimes of great magnitude. Other burdens encountered by organisations can include increased insurance costs and of course reputational damage.
Failure to deliver compliance can also result in building and plant failures, which whilst the penalty is not as severe as legal failures, can impact on the operation of your facilities which will in turn impact on the ability to provide a full curriculum to students, also a statutory requirement.
So In Summary – what you need to do……
- Undertake a GAP analysis to determine the health of your building management systems. Ensure all staff are aware of their obligations under the Health and Safety at Work Act 1974.
- Undertake a building condition survey to assess and determine future risk. Develop an asset management plan that feeds into a planned maintenance schedule. Ensure adequate records are maintained and all remedial works are carried out and recorded.
- Develop a process to pre vet all contractors to ensure they carry the right competencies and insurances to be able to carry out the works.
- Financial planning for ongoing capital lifecycle works to ensure that the building operates to keep occupants safe, warm and well