The Building Safety Act 2022 (the “BSA”) contains measures that are intended to improve and maintain the safety of Higher-Risk Buildings (“HRBs”) throughout the building lifespan. The BSA is split into various sections, with Part 4 placing a raft of obligations on dutyholders to ensure the safety of residents during occupation.
The BSA is large, complex and heavily supplemented by secondary legislation, as well as government guidance. This Law-Now article is intended as a useful overview and guide to the key provisions in Part 4.
A brief snapshot of the regulations that add meat to the bones of Part 4 is provided here:
1. The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (the “Descriptions and Supplementary Regulations 2023”)
Assists dutyholders in identifying whether a building is a HRB for the purposes of Part 4.
2. The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 (the “Registration Regulations 2023”)
Deals with the mandatory registration process for HRBs and sets out the information to be submitted. Existing, occupied HRBs were required to be registered by 30 September 2023.
3. The Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 (the “Key Building Information Regulations 2023”)
Sets out the key building information (“KBI”) required to be submitted 28 days after registration of a HRB and clarifies what parts of the HRB the Accountable Person (the “AP”) is responsible for.
4. The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023
Sets out procedural requirements for HRBs and the processes for the gateways, up to completion and occupation of HRBs. For the purposes of Part 4, these regulations set out prescriptive requirements (amongst a raft of other things) in relation to:
- the handover of information on completion of construction works to Part 4 dutyholders;
- practical considerations in respect of the golden thread of information, which is to be retained and kept up to date throughout the HRB’s lifespan;
- the mandatory occurrence reporting system, insofar as it relates to the construction phase. (Dutyholders under Part 4 also have obligations in relation to the mandatory occurrence reporting system); and
- the application, consultation, inspection, and decision-making in relation to the grant of completion certificates, which is required as part of the registration process under Part 4.
5. The Higher-Risk Buildings (Management of Safety Risks etc.) (England) Regulations 2023 (the “Management of Safety Risks Regulations 2023”)
Not yet in force
Sets out supplementary information on some Part 4 obligations, such as the content and form of the safety case report, mandatory reporting requirements and resident engagement strategies.
6. The Higher-Risk Buildings (Keeping and Provision of Information etc.) (England) Regulations (the “Keeping of Provision of Information Regulations”)
Currently draft legislation
Sets out the information and documents that the APs must keep as the “golden thread of information”, who the APs must provide information to, what information they must provide, and exemptions.
The BSA and its interaction with existing fire safety legislation
The BSA sits alongside existing regulatory frameworks concerning fire safety. The Regulatory Reform (Fire Safety) Order 2005 (as amended by the Fire Safety Act 2021) (the “RRO 2005”) and the Fire Safety (England) Regulations 2022 (the “FSER 2022”) remain in force and organisations may be a responsible person as well as or instead of being a dutyholder under the BSA.
There should be clarity around this, and in particular, a clear understanding of who is responsible for what, so that nothing slips through the net.
The dutyholders under the BSA must co-operate with each other and any responsible person carrying out their duties under the RRO 2005 and FSER 2022.
Part 4 of the BSA (the “in occupation” phase)
Set out below are key steps and provisions in Part 4 that dutyholders need to be aware of in respect of a HRB. Also indicated is where the prescriptive requirements can be found.
1. Establishing a HRB
1.1 What is a HRB?
For the purposes of Part 4, a HRB is a building that:
- is at least 18 metres in height or has at least 7 storeys; and
- contains at least 2 residential units.
The Descriptions and Supplementary Regulations 2023 and associated guidance provide further clarification around how a HRB can be identified and measured. It confirms certain buildings such as hotels and care homes are out of the scope of Part 4.
Part 4 only applies when a HRB is “occupied”. A HRB is occupied if there are residents of more than one residential unit in the building.
2. Establishing who is responsible
Broadly speaking, an AP for a HRB is someone:
- who holds a legal estate in possession in any part of the common parts of the HRB; or
- does not hold a legal estate in any part of the building but who is under a relevant repairing obligation (i.e., a repairing obligation imposed by lease or legal enactment) in relation to any part of the common parts of the HRB.
The Key Building Information Regulations 2023 set out the detail of how to determine the parts of the HRB which the AP is responsible for.
In the case of multiple APs for a single HRB, the APs must co-operate and co-ordinate.
2.2 Principal Accountable Person
The principal accountable person (the “PAP”) is:
- in relation to a HRB with one AP, that person; and
- in relation to a building with more than one AP, the AP who:
- holds a legal estate in possession in the structure and exterior of the HRB; or
- does not hold a legal estate in any part of the building but is under a relevant repairing obligation (i.e., a repairing obligation imposed by lease or legal enactment) in relation to the structure and exterior of the building.
The PAP and APs can be individuals, partnerships or corporate bodies. To establish who the dutyholders are for each HRB, the property ownership structure must be analysed on a case-by-case basis. It is not always the case that the freeholder will be the PAP.
3. Key obligations
All occupied HRBs should now be registered with the Building Safety Regulator (the “BSR”). If a HRB is not registered but remains occupied, the PAP is committing a criminal offence.
For new HRBs, the PAP must register the building prior to occupation.
The Registration Regulations 2023 and the Key Information Regulations 2023 set out the information to be provided as part of the registration application.
The KBI must be submitted to the BSR within 28 days of registration. A failure to submit this information may result in the BSR issuing a compliance notice. A failure to comply with the notice is also a criminal offence.
In the event of a change in the information submitted as part of the registration, the PAP has 14 days to provide details of the change to the BSR (commencing from the day that they become aware of the change). Any change to the submitted KBI must be notified to the BSR within 28 days of the PAP becoming aware of the change.
3.2 Assessment and Management of The Building Safety Risks
APs must carry out an assessment of the building safety risks for the part of the HRB that they are responsible. Hazards that originate in an area outside of their responsibility, but which turn into a risk which enters the area they are responsible for should form part of their assessment.
After the HRB becomes occupied, an assessment must be made as soon as practicable, or, if later, when a person becomes the AP for the building. Subsequent assessments should then be made at regular intervals and when the AP has reason to suspect that the current assessment is no longer valid. Note that the BSR can also direct a review.
As a result of the assessment, APs must take all reasonable steps to:
- prevent a building safety risk; and
- reduce the severity of any incident from such a risk materialising.
Reasonable steps may involve the APs carrying out works to prevent a building safety risk.
The Management of Safety Risks Regulations 2023 set out prescribed principles the AP must apply when discharging its dutyholder obligations.
The duty to adhere to the principles will be imposed as soon as the HRB becomes occupied, and any necessary steps must be taken promptly. The duties will run in parallel with obligations on the responsible person to undertake a suitable and sufficient risk assessment under the RRO 2005.
3.3 Safety Case Reports
PAPs are required to produce and maintain a safety case report. The safety case report comprises the full body of evidence relating to the (i) assessments and (ii) ongoing management of the building safety risks. PAPs will be required to submit the safety case report to the BSR as part of the building assessment certificate process (see below), or at the request of the BSR.
One safety case report is required for each HRB.
The Management of Safety Risks Regulations 2023 set out what should be included in the safety case report, which includes but is not limited to:
- a description of the possible scenarios of building safety risks that have been identified by each AP through the risk assessment process;
- the likelihood of those risks materialising;
- the assessment of the likely consequences if they do materialise; and
- a description of how the steps taken by each AP demonstrate compliance with their obligations to manage those building safety risks.
As soon as reasonably practicable after preparing or revising a safety case report, the PAP is under an obligation to notify the BSR and provide a copy (should the BSR require one).
3.4 Building Assessment Certificate
The PAP must apply for a “building assessment certificate” for a registered HRB within 28 days of a BSR requesting to do so. It is an offence not to make the application without a reasonable excuse.
For existing occupied buildings, the BSR will create tranches (based on height and other risk factors), calling in buildings in stages over a period of 5 years from April 2024.
The BSA broadly sets out that the application for a building assessment certificate must include:
- a copy of the most recent safety case report;
- prescribed information about the mandatory occurrence reporting system;
- prescribed information that demonstrates that APs are meeting their duties with regard to provision of information; and
- a copy of the residents’ engagement strategy.
The Management of Safety Risks Regulations 2023 provides further detail on the information that must be provided with the application.
The intention of the building assessment certificate is to allow for the BSR to assess whether the APs are complying with their duties under Part 4.
The BSR will issue a building assessment certificate if it is satisfied that the relevant duties placed on APs and PAPs are being compiled with.
Once received, the PAP must display the certificate in a prominent position in the building.
3.5 Mandatory Occurrence Reporting
The PAP must establish and operate an effective mandatory occurrence reporting system. All PAPs must ensure that reportable information related to the safety of the occupied HRB is given to the BSR.
This system will be assessed as part of the building assessment certificate application.
Any structural or fire safety event that occurs in or about the part of a HRB for which the AP is responsible and which represents a significant risk to life or safety must be reported.
The Management of Safety Risks Regulations 2023 set out further requirements in relation to mandatory occurrence reporting, and in particular:
- reporting should occur where a safety occurrence (i.e., an incident or situation relating to the structural integrity of, or spread of fire in a HRB that meets the “risk condition”) takes place in an area for which the AP is responsible; and
- the information provided must be:
- a brief description of the nature of the safety occurrence; and
- a report including (but not limited to) details of the safety occurrence i.e., details of injuries, recent building work and the measures taken to mitigate or remedy them.
3.6 Keeping and Providing Information
APs must keep and maintain certain required information about the HRB (referred to as the “prescribed information” or the “golden thread of information”) and ensure that it is up to date as far as possible.
The Keeping and provision of Information Regulations set out what should be included as part of the golden thread of information. It also sets out the information to be provided to the BSR, local fire and rescue service, residents, other APs and others.
The Management of Safety Risks Regulations 2023 give further guidance around the standards of the prescribed information to be retained, and requires that the information is:
- kept in an electronic format;
- accurate and intelligible; and
- kept in a way that means it is accessible on request.
There are also relevant obligations around the provision of information in instances where the AP for a part of a HRB changes (i.e., a change in ownership) that dutyholders will need to be aware of.
3.7 Resident Engagement
Finally, PAPs have a duty to engage with “relevant persons”, who are:
- residents of HRBs who are 16 years old or older; and/or
- owners of the residential units of the relevant HRB.
Amongst other resident engagement obligations, PAPs must prepare a residents’ engagement strategy for promoting the participation of the relevant persons in the making of building safety decisions.
The strategy should comprise information relevant to the management of the building safety risks, such as:
- information that will be provided to the relevant persons about decisions relating to the management of the HRB;
- the aspects of those decisions that relevant persons will be consulted about;
- the arrangements for obtaining and taking into account the views of relevant persons; and
- how the appropriateness of methods for promoting participation will be measured and kept under review.
The Management of the Safety Risks Regulations 2023 sets out the required contents of the strategy, including (but not limited to) providing information about works resulting from a building safety decision, consultation in the event of works, and record keeping.
Each AP must give a copy of the residents’ engagement strategy to the residents and owners of the residential units. A resident or unit owner can request information and copies of documents from the AP, such as fire risk assessments, maintenance and repair schedules and safety inspection outcomes.
The PAP must review the strategy at least every two years and within a reasonable period after a mandatory occurrence report is submitted to the BSR or a material alteration to building occurs.
Co-authored by Josh Sromek, Trainee Solicitor.