Our first blog in this series considered three key areas addressed in "Testing for a Safer Future", a government commissioned review by Paul Morrell and Anneliese Day (the "Review"). These were (1) the role of the UKAS, (2) standardisation and (3) systems testing of the modern methods of construction.

This blog considers (1) conformity assessments and (2) voluntary third-party certification. Other areas will be discussed in our third and final blog on this topic.

Conformity Assessment

Two parties are relevant to conformity assessment, the approved bodies (or Conformity Assessment Bodies ("CABs")) who assess the products and the manufacturers whose products are assessed.

The Review acknowledges that the assessment process will only be trusted if the CABs themselves are trusted. However, the Review found opinions on the CABs were mixed:

  • Questions were raised as to the independence of CABs as they also offer consultancy services to manufacturers on matters that do not relate to the certification of products raising potential issues of conflict of interest.
  • Others view CABs as too powerful, with owners of small businesses viewing them as inaccessible and issues raised over their responsiveness and speed of their processes.

The Review makes three recommendations to try and deal with these issues:

  • UKAS should increase monitoring of CABs, to ensure they are following the guidelines and principles of accreditation.
  • A public interest duty on the CABs should be created. This would include banning CABs from providing any services to any manufacturer where they have a regulatory role in relation to their products. Furthermore, they would be required to inform the relevant Regulator if they have a suspicion that a manufacturer is making misrepresentations about a product. The CABs should also be able to withhold or suspend a product's certificate if it becomes aware that there are errors in the Declaration of Performance of the product.
  • An impartial Oversight Committee should be created to supervise the relationship between the CABs and their consumers and to deal with any grievances.

The Review also stress the importance of closing the loopholes in the system, by either providing a sample which is not representative of the general product (a "best case" prototype for example) or by providing samples which are different from those selected by the CAB. The Review suggests that to resolve the first point, products should be retested when in general circulation and in terms of the second point samples selected for testing should be marked, and a failure to deliver the marked sample should be an offence.

The Review also recommends that CABs should receive the full testing history of a product (including failed tests) and that manufacturers should be obliged to declare what other testing they plan to conduct for the same product. It is hoped that this will end the practice of manufacturers shopping around, by submitting samples to different CABs expecting a pass from at least one of them.

Voluntary Third-Party Certification ("VTC")

VTC schemes are widely used in the UK. Research has shown that 40-50% of firms manufacturing products which are not subject to mandatory regulations will subscribe to these schemes. The main problem with VTCs relates to their varied form, degree of rigour and lack of independent oversight.

The authors of the Review support previous works which suggests that these issues could be addressed by the creation of an independent and unified system of third-party certification guided by the following principles:

  • Clear standards which lead to the desired outcome and against which performance can be assessed.
  • Clear standards for the testing methodology of the products.
  • Creation of a body responsible for the conformity assessment process which is independent, impartial, and effective.
  • A conformity assessment process which follows all the steps of Assessment and Verification of Constancy of Performance system 1+, except where this is impractical.
  • Certification documentation which are clear and accessible and follow a standard format.
  • No restriction of access to the accreditation, meaning that any manufacturer complying with the scheme's rules may receive the certification.
  • Imposition of a duty on manufacturers to be clear and honest when applying for a scheme.
  • Creation of a channel to report non-compliant products and the requirement that the accreditation body provides an appropriate response to such breaches.

The overall objective in making all accreditation bodies follow these principles is to ensure that VTCs are as rigorous as the other certification routes. The Review highlights that the only difference between VTCs and other routes should be the degree of involvement of the National Regulation for Construction Products ("NRPC") which will vary depending on the severity of the consequences caused by a failure of a product to comply with the required standards.

For further information on matters relating to the Building Safety Act please see our Building & Fire Safety Hub.


Eric Johnstone

Legal Director

Louise Shiels

Head of Dispute Resolution and Risk & Partner

Marina Borges Mollo

Trainee Solicitor