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.
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