The Building Safety Act 2022 (BSA)'s introduction of a new Principal Designer role has created concerns for design professionals around whether they could, or should, undertake the role themselves. These concerns have been exacerbated by uncertainties around the extent and requirements of the new role.
The BSA does not yet represent a finalised position, with secondary legislation and guidance having been issued only recently, or still being awaited. As such, affected firms, commentators and insurers have not yet received all of the detail of the changes. Nevertheless, firms looking to undertake the role should ensure they take the adequate steps to understand and comply with their potential obligations.
The BSA Principal Designer role explained
Under the BSA, a Principal Designer is required for a variety of developments including some domestic projects, and is not simply confined to higher-risk buildings (HRBs).
A Principal Designer can be an individual or an organisation, such as:
Engineers (structural and others)
The duties and competencies expected of the BSA Principal Designer are set out under British Standards Institution (BSI) standard PAS 8671(opens a new window). Primarily, this consists of a duty to plan, manage, and monitor design to achieve compliance of that design with building regulations. To fulfil the BSA Principal Designer role, individuals and organisations must possess the required competency, skills, and established management processes.
It is important to note that this role is separate to the Principal Designer role as defined under Construction Design & Management (CDM) Regulations 2015, which is concerned with managing foreseeable risks to health and safety in the pre-construction phase. However, the appointed Principal Designer in each case may be the same entity/individual.
Implications for professional indemnity insurance
While the new Principal Designer role is a statutory duty, certain observations actually provide elements of reassurance in considering whether it represents significant new exposure and could have a negative impact on the professional indemnity (PI) insurance market.
Specifically, the changes under the BSA may serve to:
Increase clarity around areas of responsibility – particularly where a responsibility might be said to have previously 'fallen down the cracks' between the scopes of different project participants. This focus of attention may actually be positive from the liability claims perspective in narrowing issues. By simplifying responsibilities, this may also lead to a corresponding reduction in time and cost in dealing with a claim.
Improve competence – so that when responsibilities are allocated, it is also clear that the participant dealing is suitable for the role that they have been given. This may also be positive for liability claim exposures going forward, as it might be thought that more appropriately experienced project participants will lead to fewer actual problems, and therefore fewer claims.
In considering the degree of new exposure which has been created it should be acknowledged that many construction professionals are already under contractual liability relating to similar areas and outcomes. Construction appointments (and their attendant collateral warranties) often contain obligations relating to compliance with Building Regulations or assisting the other party with their own compliance with legislation or project requirements.
PI claims experience is also that where there are significant deviances in the works, construction professionals can face claims that not having identified and flagged the problem represented a fundamental breach of their duty of reasonable skill and care, regardless of whether they had more explicit inspection or monitoring duties. This has been especially the case for architects and project managers.
If contractual liability already existed and the default litigation landscape included attempted claims against project participants in any event, it might be asked how much additional exposure the new role actually represents.
Areas of concern for design professionals
One area of concern for some professionals considering undertaking the BSA Principal Designer role is the requirement to sign a compliance statement, and whether this entails them signing off compliance with relevant requirements in areas outside their own professional discipline. From a practical perspective, it may well be impossible for there to be someone skilled in every professional discipline across a complex project – and even if such a person existed, how many of them are there? There would be a significant national shortage of such multiskilled practitioners.
PAS 8671 is helpful in considering this particular concern further. The language used in the PAS across multiple sections is the need for the Principal Designer to manage the process for designers to achieve consensus that the coordinated design work complies with relevant requirements (e.g. 4.4.2 h or 4.5.1 b). This does not represent the Principal Designer confirming compliance themselves based on their individual knowledge, and the PAS specifically acknowledges that it is unlikely that a Principal Designer can have sufficient knowledge across every relevant discipline (e.g. note 1 at 4.5.2). This is reassuring, but nonetheless there is a tension in the drafting; the PAS also states that the Principal Designer must be able to find and apply information in guidance or standards to appraise and challenge designers' evidence of design work compliance (4.5.2 b i).
Another practical concern relates to the duty of the BSA Principal Designer to monitor compliance, and what that would represent where the Principal Designer performed another role on a design and build project and their appointment had been novated to the contractor. In essence, would they face a conflict of interest in performing their statutory duty of monitoring compliance of what is in other respects, their own employer? There are clearly practical difficulties in trying to effectively perform in such a situation. This perhaps parallels some of the difficulties observed around the role of clerk of works on a design and build project; commentators have suggested that it had led to a decline in the use of clerk of works and problems with project quality as a result.
Reassuring underwriters is key
Another recurring concern for construction professionals is whether PI insurance covers the BSA Principal Designer role, and whether it will continue to do so in the future. Given the developing rather settled state of the legislation, PI insurers are still formulating their views. However, for the reasons discussed above, underwriters are not presently averse to the exposure.
Unfortunately, this does not provide any guarantees for the future. Underwriting is often based on actual claims experience, and as a new set of changes, there are not yet any significant patterns of claims or headline losses to influence market perception of the exposure. It is not clear now where we might be in 3- or 5-years' time.
Underwriters are likely to need to be reassured of the depth and quality of practices around performing the role, and are going to be more anxious about a firm dabbling in this area.
Firms considering undertaking the role should:
Commit to the role seriously in terms of resourcing
Develop conscious and explicit protocols and practices around performing the role
This remains an evolving situation where issues will need to be carefully considered going forward, and where regulatory bodies may well be providing additional commentary in due course.
For further information around the changes introduced by the Building Safety Act, please visit our Lockton for Architects and Engineers(opens a new window) page, or contact:
James Burgoyne, Legal Group Lead
T: +44 (0)117 906 5077