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The Building Safety Act 2022 – roles and responsibilities for occupied higher-risk buildings
United Kingdom | Publication | April 2023
The Building Safety Bill was first published nearly 3 years ago, and it has been almost a year since the Building Safety Act 2022 (the BSA 2022) was introduced into law. However, the material provisions relating to the new regulatory regime for higher-risk buildings in occupation are only just coming into force. The first requirement became law on 6 April 2023 and represents the beginning of a seismic shift in the regulation of fire and structural safety in multi-occupancy, high-rise residential buildings.
Higher-Risk Buildings
The regime for occupied buildings (as set out in the BSA 2022) will apply to “higher-risk buildings”. Higher-risk buildings are defined as multi-occupancy residential buildings over 18 metres in height or with 7 or more storeys (HRBs). The Higher-Risk Building (Descriptions and Supplementary Provisions) Regulations 2023 confirm that schools and hospitals are excluded from the definition of an HRB when the property is occupied (although they are included in the definition for the purpose of design and construction).
The Accountable Person
The new duty holder for occupied HRBs will be the Accountable Person (AP). The AP will usually be the freeholder of the HRB or the organisation or person who is responsible for maintaining its structure and common parts. It is possible for there to be more than one AP and so the BSA 2022 introduced the role of the Principal Accountable Person (PAP). The PAP role ensures that a single entity takes overall responsibility for the management of risks in an HRB. Where there is only one AP, that AP will automatically be the PAP.
The New Regulator
The Building Safety Regulator (BSR), created under the BSA 2022, will be responsible for enforcing the new regulatory regime. The BSR is a new arm of the Health & Safety Executive and is tasked with improving competence within the built environment industry generally, as well as driving compliance and enforcement in respect of the new regime.
Timeline
The table below identifies the various duties and responsibilities to be placed on the PAP and APs by the BSA 2022 and when they are expected to come into force.
| 6 April 2023 |
Registration of HRBs The PAP is responsible for applying to register an occupied HRB with the BSR. The registration window opened on 6 April 2023 and will close on 30 September 2023. It will be a criminal offence for an unregistered HRB to be occupied after the registration window closes. |
| October 2023 |
Golden Thread of information Each AP will be required to keep and update certain prescribed information about its HRB or the part of an HRB for which it is responsible. This set of information will be known as the “Golden Thread” and the PAP will have ultimate responsibility for ensuring the information is up to date and accurate. It must be held in a prescribed, digital format and is different to the information to be submitted within 28 days of the registration of an HRB (referred to above). Each AP must assess the building safety risks for the part of the HRB for which they are responsible. The assessment must then be reviewed at regular intervals and at any time the AP has reason to believe the current assessment is considered to be invalid. This will inevitably require APs to engage with competent, specialist fire safety professionals to undertake a suitable and sufficient fire risk assessment of the HRB. Safety Case Reports The PAP must produce a Safety Case Report in respect of an occupied HRB. It should contain an assessment of all building safety risks identified by the PAP and a description of the steps that will be taken to prevent those risks. Where there are multiple APs, co-operation in the production of the Safety Case Report will be crucial. The PAP will be required to implement a mandatory occurrence reporting regime. This will be a system under which certain structural and fire safety events that give rise to a serious risk of injury or death due to the spread of fire or structural failure will have to be recorded by an AP or PAP and then reported to the BSR. Engagement with residents The PAP for an occupied HRB will be required to prepare a resident engagement strategy designed to facilitate the participation of residents and flat owners of an HRB in the making of building safety decisions. The strategy will need to set out the information that will be provided about decisions relating to the management of the building, the aspects of those decisions that residents and flat owners will be consulted about and the arrangements for obtaining and taking into account the views of the residents and flat owners. Complaints procedure The PAP for an occupied HRB will be required to establish and operate a system for the investigation of complaints relating to building safety risks or the performance by the PAP or an AP of its duties under the BSA 2022. |
| April 2024 |
Building assessment certificate The PAP must apply for a building assessment certificate for a registered HRB within 28 days of being requested to do so by the BSR. The BSR will issue the building assessment certificate if it is satisfied that the PAP and any other APs are complying with all relevant duties. |
Enforcement Powers
The BSA 2022 provides the BSR with specific enforcement powers allowing it to investigate and prosecute duty holders that act in breach of their obligations. The BSR may serve a compliance notice or, in more extreme situations where breaches of obligations are identified, charge an AP or PAP with the offence of giving rise to a risk of death and serious injury.
In certain circumstances, directors, officers and senior managers of a corporate AP or PAP can also be found to have committed an offence under the BSA 2022 if an offence is found to have been committed with the consent, connivance or negligence of the relevant individual. Whilst such liability will be reserved for the most serious of cases, it is important to be aware that offences for individuals exist even where the AP or PAP is a corporate entity.Summary
It is important that potential duty holders under the BSA 2022 are prepared to comply with the duties placed on APs and the PAP when they come into force. If you have any questions or queries about the nature of the duties or more generally about the BSA 2022, please do get in touch with the Health & Safety team at Norton Rose Fulbright.
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