Under the dutyholder rules the Building Safety Act brought into the Building Regulations 2010, a client in England must take all reasonable steps to satisfy themselves that the principal designer and principal contractor they appoint are competent. On a higher-risk building, the client must also put that in writing: a competence declaration, submitted with the building control approval application. It states that the client has taken those steps, is satisfied, and has considered any past misconduct.
Most clients have heard of the Building Safety Act. Fewer know that it changed what they personally have to check, and on the tallest residential buildings, sign.
Two sets of rules, two sets of roles
CDM 2015 deals with health and safety. Part 2A of the Building Regulations 2010, added under the Building Safety Act, deals with compliance with the Building Regulations. Each has a principal designer and a principal contractor, with different duties. On many projects the same organisations hold both roles, and the Building Regulations let a client certify in writing that the CDM principal designer and principal contractor are treated as appointed under Part 2A too (regulation 11D(2)).
The competence duty: every project
Regulation 11E of the Building Regulations 2010 says that before appointing a principal designer or principal contractor, the client must take all reasonable steps to satisfy themselves that the person is competent. Competence is defined in regulations 11F, 11G and 11H:
for an individual, the skills, knowledge, experience and behaviours needed;
for an organisation, the organisational capability needed;
to carry out the work so that it complies with the Building Regulations, and to fulfil the duties of the role.
An organisation appointed as principal designer or principal contractor must also name an individual to manage the role, and must be satisfied that person is competent too.
CDM 2015 has its own version for health and safety. Regulation 8(3) requires anyone appointing a designer or contractor to take reasonable steps to satisfy themselves that they have the skills, knowledge, experience and organisational capability the role needs.
The competence declaration: higher-risk buildings
A higher-risk building, for this purpose, is a building in England at least 18 metres high or with at least seven storeys that contains at least two homes, or is a care home or a hospital.
For work on one, the building control approval application to the Building Safety Regulator must include a competence declaration (Schedule 1 to the Higher-Risk Buildings Procedures Regulations 2023). For the principal designer and the principal contractor, it must state that the client:
has asked them whether a serious sanction has occurred in relation to them in the five years before the appointment, and considered any information available about misconduct; and
having taken all reasonable steps, is satisfied that they meet the competence requirements;
and include a declaration that the statement is true.
What "all reasonable steps" looks like
"They have worked for us before" is not a competence check. Neither is a logo on a tender or a certificate in a file. A record that would stand up to a question from the regulator, an insurer or a court shows:
what you asked for: experience of similar work, the named individual, their qualifications and memberships, references;
what you checked, and what you found;
why that satisfied you for this project, not projects in general;
for a higher-risk building, the question about serious sanctions, and the answer.
Proportion matters. The checks for a small extension are lighter than for a tower, but they still need to exist and be written down.
Common questions
Does the competence declaration apply to every project?
No. It is part of the building control approval application for higher-risk building work. The duty to take reasonable steps to check competence applies much more widely.
Are the Building Regulations principal designer and the CDM principal designer the same?
They are different roles under different regulations, often held by the same organisation. The client can certify that the CDM appointments also count under Part 2A.
Does this apply in Scotland or Wales?
These provisions are for England. Check the rules that apply where your project is.
Related: when did you last properly check contractor competence?, the golden thread is a client duty and the gateway process and the Gateway 2 hard stop.
This article is general information, not legal advice.