SPONSOR SEGMENT - Building protection into social housing developments

Friday 15 May 2020

David Mayor, Partner at Forbes Solicitors discusses essential COVID-19 protection measures for owners and operators of construction sites. 

How do you fit a window or plasterboard a ceiling on your own, or with a colleague two metres away? How do you keep hands and surfaces free from contamination?

The challenges of construction workers returning to work on housing developments while following COVID-19 guidelines looms large as the Government lifts restrictions in England. (The rules for returning to work differ in Scotland, Wales and Northern Ireland.)

Since the pandemic kicked off, we have seen various iterations of site operating procedures guidance produced by the CLC. These have helped to both clarify and confuse. Can standing back-to-back with your work buddy reduce the risk of infection and, importantly, a lawsuit?  Does it prevent you from transmitting the virus to others?

The latest guidelines for those working outdoors and in construction give more detailed instructions for keeping safe on site. Recommendations include; limiting visitors to site and ensuring there is signage to inform the public of precautions. Topics cover; cleaning and sanitising the workplace, managing the workforce, shift patterns and working groups, work-related travel and communications and training.

Although the Government documents launched this week are helpful, they are generic. The practical application of this guidance is up to the site owner and operator. Both will have to devise and agree COVID-19 measures for individual sites, or separate phases of construction.

It is important to bear in mind that the guidelines, in conjunction with the Government’s general COVID-19 Recovery Strategy 2 are based on obligations imposed by emergency and existing legislation. As such, following the guidelines, at least in theory, should guarantee compliance.

These guidelines also roadmap the Government’s vision as to how the workforce can return to work safely. There can be no greater evidence of breach of duty than ignorance of safety measures suggested by Government on advice from industry experts. Ignore them, and you may find them pleaded in claim documents.   

Interpretation of guidance is an extra challenge for registered providers of social housing (RPs), who have an array of obligations before factoring in COVID-19 rules. How do you ensure you meet and maintain the accommodation quality standard conferred by the Regulatory Standard, or Homes England grant deadlines, and your internal sales key performance indicators (KPIs), with  staff furloughed or working from home? How do you provide ‘a cost-effective repairs and maintenance service to homes and communal areas’ when staff are socially distancing?

There is no one-size-fits-all solution, but the housing sector generally benefits from out-of-the-box thinking and a strong sense of social responsibility, which makes it ideally placed to proactively work on practical solutions during difficult times.

Ideas we have worked on with our clients include:

  • More detailed specifications and photo/video inspections to ensure they meet and maintain the accommodation quality standard conferred by the regulatory standard.
  • Tighter controls in documentation around force majeure and replacement of materials if the supply is reduced.
  • Introducing contactless handovers and virtual inspections to enable RPs to meet their KPIs, despite the pandemic.
  • Proactive forward-planning that can be completed remotely, such as initial reports on title and review of heads of terms.
  • Considering ground-rent reductions or other communal subsidies.

The annual Homes England grant deadline was at the end of March, right as the nation went into lockdown. However, in my experience, introduction of the above measures, along with the sheer determination of the teams working on them, has ensured widespread compliance. Many RPs are accustomed to working from home and this forward-thinking approach meant they did not experience IT disruptions many sectors encountered.

Site specific

It is common for residents to move into housing following completion of early phases of construction, with works continuing elsewhere on site. In a social housing context, some residents may be classed as vulnerable, and communal and outside areas may be shared during lockdown. They are at risk of coming into contact with construction crews, trades finalising snagging lists, suppliers delivering to site, or maintenance staff. You may even need to rescue residents from their own unruly neighbours

On top of regulatory requirements, both the Health and Safety at Work Act 1974 (HSWA) and the Construction Design and Management Regulations (CDM) create a duty for all organisations to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all of employees and anybody else who may be affected by the undertaking. Yes, anybody.

Both the organisation developing the land and the contractor in charge, have a positive duty to ensure they protect not only their own employees, but anybody else the project may affect. That means all residents, sub-contractors, delivery drivers, and members of the public. 

Social housing providers need to assess pro-actively how construction or maintenance work may affect individuals. Think through every single step and every encounter that may be involved in each development process, including:

  • Who workers will have been in contact with over the previous 14 days – at home and at work.
  • How the works can be conducted at a distance.
  • What PPE is already available, or could be provided. (It cannot be shared.)
  • How workers will deal with equipment sanitisation and cleaning work areas before, during, and after the works. How they can wash their hands.
  • Who the workers may, or need to, come into contact with on site.
  • Whether there is a risk of transmission to vulnerable persons, despite the above measures.

Ultimately, you must ensure at least to the lowest level reasonably practicable, that you satisfy your competing obligations to your workforce, residents, visitors and general public in a way that reduces the risk of anyone contracting the virus. If you don’t, you may be on the wrong end of a potentially uninsured claim for damages.

David Mayor, Partner,Forbes Solicitors (david.mayor@forbessolicitors.co.uk)

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