Detail at last for Accountable Persons: Government guidance on The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 released

In August, we published a blog discussing The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 (the “Safety Risks Regulations”). It was clear that whilst the Safety Risks Regulations provided further clarity on the Building Safety Act 2022 (the “Act”), there was still appetite for further guidance on the key responsibilities for both Principal Accountable Persons (“PAPs”) and Accountable Persons (“APs”), such as assessing and managing safety risks, preparing a safety case report and a residents’ engagement strategy.

The further guidance repeatedly promised in the government’s consultation response was published on 19 September 2023 and in this blog we have identified some of the most helpful pointers for PAPs and APs on how best to fulfil their obligations:

Assessing safety risks and safety case reporting in high-rise residential buildings

Under S.85 of the Act there is an obligation for a PAP to carry out a safety case report. The Safety Risks Regulations specify information which a PAP must include in its report. This includes a description of the possible scenarios of building safety risks identified by each AP, the likelihood of those risks materialising and an assessment of the likely consequences if they do materialise. However, as discussed in our previous blog, this can only be a subjective assessment. The recently published guidance aims to assist APs with identifying potential building safety risks in order to carry out their reports to demonstrate that they understand the risks and manage them effectively.

The new guidance recommends that APs assemble a risk assessment team which should include people with knowledge and experience of safety management systems, fire safety and structural safety. The government has recommended that all potential risk scenarios are considered including: single-floor/multiple floor scenarios for fire safety; structural collapse of a residential unit and gas explosion in a structural risk scenario; and what could happen in different scenarios if measures to manage risks fail or an AP’s assumptions about structural stability are incorrect.

The overarching guidance is that ‘all reasonable steps’ should be taken to prevent and mitigate building safety risks. However, certain factors, such as steps that are disproportionately expensive, will come into what is deemed reasonable.

Although the Act does not require a PAP to carry out a specific risk assessment, the government has published an example of a HAZID method (hazard identification risk assessment) within the guidance. Further detail on this can be found here.

An AP must keep information for the safety case report in an easily accessible digital format. The report must contain details of: who prepared the report; building description; a risk assessments summary; a managing risks summary; a summary of the safety management system; details on planning for emergencies; and details on ongoing work and building improvement.

Safety management systems for high-rise residential buildings

S.84 of the Act requires APs to take steps to manage building safety risks in accordance with prescribed principles by setting up a safety management system. The Safety Risks Regulations provided further clarity on such ‘prescribed principles’ but fell short of providing sufficient certainty of the obligations for APs.

The government had previously stated ‘the principles are not absolute and should not be considered singularly or in isolation’ and that APs are best placed to determine their own levels of competence and capability and make informed decisions on where they may require external support.

The newly published guidance aims to provide clarity around these principles and support decision making for APs.

A safety management system (SMS) is a formal management system or framework for managing safety risks. The guidance sets out an example model of an SMS which is based on the ‘Plan, Do, Check, Act’ approach. The model covers: determining your policy and plan for implementation; assessing risks and implementing your plan; measuring performance; and reviewing performance and acting on lessons learned.

An SMS should be proportionate to the hazards of a building, considering its complexity, the complexity of the AP’s measures, and the extent to which contractors and third parties manage or maintain the measures in place.

The guidance also puts an emphasis on the continuous improvement of measures and systems in place which will require PAPs and APs to review and update their systems, policies, and procedures.

Preparing a residents engagement strategy

As discussed in the last blog, the government’s response to the 2022 consultation on the Act revealed significant concern about the lack of clarity around requirements for establishing and delivering the residents engagement strategy.

The new guidance addresses this, stating that from 1 October 2023, the strategy should be prepared by a PAP as soon as possible when the building is or becomes occupied. The strategy must cover: the information the PAP will provide residents with; the information the PAP will provide about building safety decisions to residents and owners of residential units; what the PAP will ask residents about; how the PAP will collect and use opinions; and how the PAP will measure and review participation.

After the strategy has been prepared, a PAP must distribute a copy to all APs. APs must then distribute a copy to all residents over the age of 16 and owners of units in the parts of the building they are responsible for. It is therefore important for APs to know who lives in the building and to understand their needs in terms of communication and accessibility.

There is also a requirement for a PAP to consult all residents over 16, all owners, and all APs the first time the strategy is issued and any time it is changed. The strategy must be reviewed every 2 years and after every consultation, mandatory occurrence report, and completion of significant material alterations to the building.

Managing safety risks in high-rise residential buildings

Each AP must keep a record of up to date information relating to both its preventative and protective measures it puts in place in relation to a higher risk building. The government’s new guidance says that this should include construction designs, an assessment of the current condition of the building and information relating to works and refurbishment.

The guidance helpfully includes specific preventative measures which can be put in place including compartmentation of buildings, fire doors, fire stopping, cavity barriers and measures relating to structural integrity such as preventing the ingress of substances which might adversely affect the structure over time.

Protective measures detailed within the guidance include the most common evacuation strategies, means of escape, fire detection, alarm and sprinkler systems, and structural protection measures.

The long-awaited guidance from the government is likely to be welcomed by PAPs and APs who have been looking for certainty of their obligations under the Act and were left wanting clarity following the publication of the somewhat ambiguous Safety Risks Regulations. The new guidance should act as a key resource for APs and PAPs now that the implementation date of the relevant sections of the Act on 1 October 2023 has come and gone.

For further information please contact:

William Turnbull
William Turnbull
Partner, Real Estate, London
+44 20 7466 2497
Tom Shattock
Tom Shattock
Associate, Real Estate, London
+44 20 7466 3784
Kate Wilson
Kate Wilson
Professional Support Lawyer, Real Estate, London
+44 20 7466 2650

Higher Risk Buildings and the Management of Safety Risks: Regulatory clarity or an ambiguous administrative burden for Accountable Persons?

In April, we published a blog discussing the key aspects of the registration regime for occupied higher-risk buildings (“HRBs”) under the Building Safety Act 2022 (the “Act”). Whilst those responsible for such buildings have been busy collating the information necessary to register their building with the Building Safety Regulator (the “Regulator”), it appears that the government have been busy fleshing out the ongoing building safety regime that will apply to HRBs.  On 17 August, the government laid before Parliament The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 (the “Safety Risks Regulations”), whilst also releasing their response to the 2022 consultation on the building safety regime for occupied HRBs. The Safety Risk Regulations provide much needed further detail on the existing legislative framework which will apply to both Principal Accountable Persons (“PAPs”) and Accountable Persons (“APs”) once S.83 of the Act and these Regulations (simultaneously) come into force.  The government’s response to the consultation also provides further insight into the standards that are expected from those responsible for building safety.

The Safety Risk Regulations are heavy on detail, and will require a thorough review by those responsible for the safety of HRBs, but we have set out some of the key points in the new legislation below:

  • Building Assessment Certificates

S.79 of the Act places an obligation on the PAP to apply for a building assessment certificate (“BAC”) on the direction of the Regulator, which will be issued after the building has become occupied.  The BAC will evidence how the PAP (and any other APs) are managing any building safety risks and maintaining a safe building for their residents.  When submitting an application for a BAC, PAPs will need to demonstrate compliance with their duties under the Act, by confirming that each AP has complied with its own obligations under S89 of the Act, which relate to providing prescribed information to the Regulator, other APs, residents, and owners of residential units in a qualifying building. This will require a confirmatory statement that each AP has complied with its obligations.

The government has noted that a PAP will need to work with other APs to collect their details and decide which parts of an HRB they are responsible for managing. When applying for a BAC, APs must understand and accept their duties, with an aim of making it straightforward for the PAP to provide the required details for its application.

It is therefore crucially important that there is transparency of identity of each relevant party and that PAPs make efforts to investigate compliance to ensure that the statement can be made accurately and truthfully. The Safety Risk Regulations also provide further detail on the information that needs to be included in a PAP’s application for a BAC, and similarly, the information that the Regulator must include when issuing the BAC.

  • Management of Building Safety Risks

S.84 of the Act requires APs to take steps to manage building safety risks in accordance prescribed principles. The Safety Risk Regulations provide further clarity on such ‘prescribed principles’. However, whilst the regulations define ‘prescribed principles’, the principles themselves are not without ambiguity. The principles include ‘to adapt to technical process’ and ‘replace the dangerous with the non-dangerous or less dangerous’. This may leave detail to be desired by building owners who will be looking for certainty of their obligations and assurance that the measures they put in place are compliant with legislation.

In its response to the 2022 consultation, the government stated ‘the principles are not absolute and should not be considered singularly or in isolation’ and that APs are best placed to determine their own levels of competence and capability and make informed decisions on where they may require external support. However, clear guidance around these principles will support decision making and will be tailored to varying needs.

  • Safety Case Reports and Mandatory Occurrence Reporting Requirements

There is not a set template for the safety case report required under S.85 of the Act, but the Safety Risk Regulations specify the information which a PAP must include in its safety case report. This includes a description of the possible scenarios of building safety risks identified by each AP, the likelihood of those risks materialising and an assessment of the likely consequences if they do materialise. This can only be a subjective assessment, so it remains to be seen how compliance will be determined on a case by case basis.

The Safety Risk Regulations also aim to make clear the information which must be provided by an AP in relation to a safety occurrence. This will need to include the date and time of the safety occurrence, when it was notified to the Regulator, when the report to the Regulator was submitted, and a description of the measures taken to mitigate or remedy the safety occurrence.

Crucially, a ‘safety occurrence’ is defined as an incident or situation relating to the structural integrity of, or spread of fire in, a HRB that meets the ‘risk condition’ which is met if use of part of the building without the incident or situation being remedied would be likely to present a risk of a significant number of deaths, or serious injury to a significant number of people. Again, this can only be subjectively assessed, so APs should be cautious in ensuring that all potential safety occurrences are reported in accordance with the rules.

It is important to remember that where managing agents manage buildings on behalf of freeholders, head lessees and management companies, the responsibility for reporting safety occurrences still rests with the AP. It is important that APs undertake their own due diligence to monitor the activity of an agent in relation to reporting. APs should therefore not assume their duties can be ‘passed on’ in such circumstances.

  • Keeping ‘Golden Thread’ Documents and Provision of Information

APs will need to ensure that they keep information in accordance with the standards prescribed by the Safety Risk Regulations. This includes keeping it in electronic format and capable of being transferred electronically, ensuring it is intelligible to the intended readers and that the data is secured from unauthorised access. It will be necessary for APs to ensure that they have an organised and monitored record keeping system ready to easily provide information when required by the Act. Further guidance around the keeping of information is still expected.

Noting the financial impact on the new stringent regulations around data recording, the government response acknowledged that expenditure by APs associated with the ongoing costs of the new regime may be recovered from leaseholders through service charges.

  • Residents’ Engagement Strategy

Under the Act, a PAP must prepare a residents’ engagement strategy for promoting the participation of relevant persons in the making of building safety decisions. The Safety Risk Regulations set out requirements for reviewing the strategy and updating the Regulator in respect of changes. In particular, the rules include a requirement for the PAP to notify the Regulator of any ‘significant material alterations’ which include changes to the number of residential units in the building, changes to the width of staircases and escape routes and any changes to the internal layout of the building. PAPs will need to be alive to their obligations to notify the Regulator in respect of a wide range of changes by keeping on top of works in the building.

The 2022 consultation revealed significant concern about the lack of clarity around requirements for establishing and delivering the strategy. In the government’s response, it stated that the Regulator will produce guidance with further detail about delivering the requirements for establishing and operating a residents’ engagement strategy which will hopefully assist APs in navigating the new framework.

  • Complaints, Contravention and Compliance

A PAP is required under the Act to operate a system for:

    • the investigation of relevant complaints,
    • the service of contravention notices on residents and the owners of residential units, and
    • the service of compliance notices to an AP for a HRB who appears to the Regulator to have contravened, be contravening or be likely to contravene a relevant safety obligation.

The Safety Risk Regulations prescribe the extensive procedure which must be detailed in the complaints procedure by the PAP and the form and contents which must be included in each notice.

The Act establishes the framework for the PAP to be the first point of call for building safety complaints. Complaints can be escalated to the Regulator where the complainant is not satisfied with how their complaint is handled by the principal accountable person.

The response to the 2022 consultation noted that where a resident is contravening a duty, an AP should first take informal steps to rectify the issue before issuing notice. These measures will also assist an AP in deciding whether the ‘significant risk’ threshold has been reached, prior to issuing a notice.

Whilst the Safety Risk Regulations certainly provide further clarity on necessary and welcome safety legislation, it is clear that APs and PAPs of HRBs will need to ensure that they keep on top of a breadth of administrative obligations to guarantee their compliance with the safety regime.  The further guidance repeatedly promised in the government’s consultation response will also be a key resource for APs and PAPs and this will be eagerly awaited, but for now, there is plenty of work for APs and PAPs to be getting on with.

For further information please contact:

William Turnbull
William Turnbull
Partner, Real Estate, London
+44 20 7466 2497
Tom Shattock
Tom Shattock
Associate, Real Estate, London
+44 20 7466 3784
Kate Wilson
Kate Wilson
Professional Support Lawyer, Real Estate, London
+44 20 7466 2650
Becky Johnson
Becky Johnson
Professional Support Lawyer, Construction, London
+44 20 7466 3016

Occupied higher-risk buildings under the Building Safety regime – are you ready for registration?

In February, we published a blog discussing a few of the principal updates arising from the government consultation on the new building safety regime for occupied higher-risk buildings under the Building Safety Act 2022 (the Act). A further response has now been published to provide greater clarity on the registration process, together with an updated set of regulations which are set to come into force today (6 April 2023). We’ve set out some of the key updates arising from the response below and what they mean for registration under the regime.

Registration

Under the Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023, all existing occupied higher risk buildings in England are to be registered with the national Building Safety Regulator (the ‘Regulator’).

What are the timings?

The register is due to open on 6 April 2023 and the deadline for registering existing occupied higher-risk buildings is 1 October 2023. Failure to register within this six-month window could lead to criminal prosecution.

Interestingly, although section 77 of the Act provides that it will be a criminal offence not to register the relevant building with the Regulator by 1 October 2023, this section is not yet in force and the regulations published so far do not refer to buildings needing to be registered by this date. That being said, the deadline for registration is stated clearly by the Regulator on their website and so we’re expecting that the government will issue further regulations in due course which will bring section 77 into force and trigger the registration window. In the meantime, we would recommend assuming that the register opens on 6 April with the deadline for registration being 1 October 2023.

Who needs to register?

The Act provides that the principal accountable person (“PAP”) will be responsible for registering the building with the Regulator under the regime, which is expected to be via an online portal. The government accepted in their latest response, however, that in practice a PAP is likely to benefit from the support of a third party (for example, by way of a managing agent) who may be better placed in terms of the knowledge and skills required to deal with the registration formalities. As a result, the regulations confirm that an agent may submit the application on the PAP’s behalf provided that they are authorised by that PAP to act on their behalf and the name and address of that person is provided on registration. That said, ultimately the responsibility for registration, and the accuracy of the information provided, remains with the PAP.

What information is required?

The PAP is required to submit key building information within 28 days of applying to register a building under the regime. The key building information required has been amended by the regulations as follows:-

  1. Where the PAP is not an individual, the nominated individual provides its name and ‘address’ rather than its name and ‘title’.
  2. Where the year of completion is not known, it will be possible to submit the age band on the Regulator’s online system.
  3. A statement from the applicant confirming that the information is true and accurate to the best of their belief will not be required, as this should be implicit and avoids the risk of a PAP seeking to delegate their statutory duties to an agent via registration.

If any of the information provided on registration subsequently changes, the PAP must notify the Regulator of these changes within 14 days of becoming aware of them.

For existing buildings, the PAP must confirm to the Regulator whether, to their knowledge, the building met the appropriate building standards applying at the time of completion. For buildings constructed under the new regime, the PAP will be required to provide the unique reference number when applying so that the Regular can establish that it has granted the relevant completion certificate prior to the building being occupied.

How much will it cost?

A registration fee of £251 will be payable upon registration.

Next steps

With the registration window looming, it’s crucial that all owners of higher risk buildings collate the key building information as soon as possible to allow sufficient time to register before the deadline.

For further information please contact:

William Turnbull
William Turnbull
Partner, Real Estate, London
+44 20 7466 2497
Rebecca Bridgen
Rebecca Bridgen
Associate, Real Estate, London
+44 20 7466 3376
Kate Wilson
Kate Wilson
Professional Support Lawyer, Real Estate, London
+44 20 7466 2650