Building Safety Act - New provisions now in force

16 January 2024 marked the introduction of The Building Safety Act 2022 (Commencement No. 6) Regulations 2024, bringing into force a number of key provisions in Part 4 of the Building Safety Act 2022 (BSA 2022). Whilst many of these sections were known in brief, these Regulations provide much anticipated detail around the duties imposed on any Principal Accountable Person (PAP) (and/or  Accountable Person (AP)) in relation to higher-risk buildings (HRB) in England. 

In England, for the purpose of Part 4 of the BSA (the occupation stage), a HRB is any structure that: 

• Has at least two residential units, and
• Stands at either a minimum height of 18 meters or seven storeys. 

If already occupied, these buildings should have been registered with the Building Safety Regulator (BSR) by 1 October 2023. 

As the people responsible for the management of fire and structural safety risks of HRBs, PAPs and APs will undoubtedly welcome this additional detail.

Key, new provisions include: 

• The application and issue of Building Assessment Certificates (BSA 2022, s79-82)
• The assessment and management of building safety risks and the Safety Case Report (BSA 2022, s83-86)
• The keeping and sharing of information (BSA 2022, s87,88 and 90)
• Requirements for resident engagement and the provision of information (BSA 2022, s91-94)
• Duties placed on residents and details around actions AP can take if duties are breached (BSA 2022, s95-97)
• Enforcement by the BSR (BSA 2022, s98-101)
• BSR’s ability to apply to replace an AP who fails to comply with their duties with a Special Measures Manager (BSA 2022, s102)
• Requirement for a named director responsible for building safety where an AP is a resident management company (BSA 2022, s111)

Brief details in respect of each of these provisions are set out below:

Building Assessment Certificates 

PAPs must apply for a building assessment certificate for a registered building within 28 days of a request from the BSR. Failure to do so, without a reasonable excuse, is an offence. The procedure is prescribed by the Safety Risks Regulations 2023 which give the BSR powers to direct how the application for a building assessment certificate should be made and prescribes the information that should be included.

Once directed to apply for a building assessment certificate, the PAP will send a suite of documents to the Regulator, which will show how the APs are managing the building risks and keeping residents safe.  The Regulator may send an inspector to verify the arrangements in place.  Once issued, the PAP must display the certificate in a prominent position in the building. 

Assessing and managing building safety risks and the Safety Case Report 

Each AP is responsible for the assessment and management of building safety risks for areas of the building they are responsible for. As with general Health & Safety law, the duty to assess risks is ongoing, but an assessment must be made at particular trigger points including at any time the AP has reason to suspect that their current assessment is no longer valid or when directed by the BSR.   The explanatory notes provide a useful process APs must follow: 

• Identifying the hazards within their building
• Deciding who may be harmed by these hazards 
• Evaluating likelihood and consequences of these hazards resulting in a major incident
• Deciding how to lower risk of a major incident to an acceptable level 
• Determining measures required to mitigate the risk of harm to residents if a major incident were to occur.

Once identified and assessed, APs have a duty to manage these risks; promptly taking all reasonable steps to prevent these risks from materialising and to reduce the severity of any incident that may occur. These steps must be effectively planned, organised, controlled, monitored and reviewed.

For government guidance on managing building safety risks, see Guidance, Building safety guides for accountable persons. 

The PAP must then prepare a Safety Case Report for the building. This will act as the main reference point for the BSR to ensure APs and PAPs are complying with their duties. This report must contain details of the APs assessment and management of risks, with an explanation as to why certain measures were adopted. The report should be revised if the PAP considers necessary or appropriate and where any new assessments are taken or further steps taken to appropriately manage risks. If updated, the PAP must notify the BSR and, if requested, must supply them with a copy of the new Safety Case Report. 

The keeping and sharing of information

Under new mandatory reporting requirements: 

• An AP must report information about building safety risks in HRBs to the BSR in a manner specified by the BSR
• The PAP must establish a “mandatory occurrence reporting system”; a system to give information to APs for the purpose of enabling the AP to report information to the BSR.

This requirement will be used to ensure APs report certain structural and fire safety issues, with Regulation 6 of the Safety Risks Regulations 2023 setting out the information that must be contained in a mandatory occurrence report. The associated explanatory guidance note provides further information around how a PAP and AP are to comply with these requirements.

Regulation 6 also sets out requirements for the reporting system that the PAP must operate, which must enable residents and users of the building to report incidents and situations to the AP. Although not yet finalised, this is likely be an online portal for reporting any “mandatory occurrence” with immediate notification to the BSR required, followed by a full report issued within 10 days.  Mandatory occurrences must be reported during both the design and construction phase of any HRB and will assist the BSR in identifying trends and improve best practices broadly across the industry. 

In line with the establishment and maintenance of the “golden thread” of information (a digital record of crucial building information, starting from the design phase and continuing throughout the building’s lifecycle) the AP is required to keep and update prescribed information digitally – although this can be on multiple systems.

If the AP changes, there are new requirements for all of the information gathered to be handed over to the incoming AP as soon as reasonably practicable. 

Resident engagement and provision of information

Resident engagement is crucial to the success and implementation of key changes. The PAP must prepare a strategy for promoting the participation of residents and flat owners in building safety decisions, which must include: 

• Information that each AP will provide to residents and flat owners about decisions relating to building management
• Decisions the AP will consult residents and flat owners about
• Arrangements for obtaining and taking account the views of residents and flat owners
• How the effectiveness of the engagement strategy will be measured and reviewed and any changes made.

APs must provide a copy of this strategy to all residents and flat owners for the parts of the building they are responsible for. 

A resident or flat owner can request information and copies of documents from the AP (Regulation 11 of the Safety Risks Regulations 2023 sets out how this information should be provided). The explanatory notes set out a useful outline of the types of information that should be made available: 

• Full current and historical fire risk assessments
• Planned maintenance and repair schedules
• The outcome of building safety inspection checks
• Information on how assets in the building are managed
• Details of preventative measures
• Details of fire protection measures and the fire strategy for the building
• Information on the maintenance of fire safety systems
• Structural assessments
• Planned and historical changes to the building.

APs must provide information on preventing and mitigating building safety risks to all residents of the building aged 16 or over and to each owner of the residential units in the building. 

The BSA 2022 provides for two complaints procedures – one operated by the PAP and the other by the BSR. 

Duties placed on residents and details around actions AP can take if duties are breached

Any HRB resident (aged 16 or over) must: 

• Not act in a way that creates a significant risk of a building safety risk materialising
• Not interfere with safety equipment in common parts of the building
• Comply with an APs request for information needed by the AP to carry out their duties in the assessment of building safety risks.

The AP is given considerable powers in relation to residents’ duties including: 

• Power to give a contravention notice to a resident who breaches their duties as outlined above. This notice may require the resident to pay for repairs to, or replacement of, any safety equipment that has been interfered with. 
• Where the AP has given a contravention notice to a person who resides in, but is not the owner of, a flat in the building, the AP must take reasonable steps to provide a copy of the notice to the owner of that residential unit (i.e. the landlord of the person who has received the contravention notice) 
• The ability to apply for a court order in certain situations.

Further, the AP can request access to the property for the purposes of: 

• Carrying out their duties under s83 (assessment of building safety risks)
• Carrying out their duties under s84 (management of building safety risks)
• Assessing whether a resident has breached their duties.

Any request for access must: 

• Be in writing
• Set out the purposes for which the request is being made
• Explain why it is necessary to enter the property 
• Request access at a reasonable time, on at least 48 hours’ notice.

If entry is refused, the AP can apply to the county court for a court order to allow them access and, if necessary, to authorise the taking of measurements, photographs, recordings or samples by the AP (or someone authorised by them). 

Enforcement by the BSR 

The BSR is required to enforce Part 4 of the BSA and any regulations made under it. 

The BSR can prosecute without following the compliance notice procedure in the case of a serious building safety breach by an AP. A serious safety breach is any breach that place people in or near the building at a significant risk of death or serious injury.

Special measures regime 

A Special Measures Order can be made where First Tier Tribunal is satisfied that there has been a serious failure, or failure on two or more occasions, by an AP to comply with their duties under Part 4 of the BSA. 

The BSR must give an “initial notice” before applying for a Special Measures Order to: 

• Each AP for the building
• Each resident (aged 16 or over) of the building 
• Each owner of a residential unit in the building
• Any managing agent of the building
• Any tenants’ association (as defined in s29 of the Landlord and Tenant Act 1985)
• Any manager (as appointed under s24 of the Landlord and Tenant Act 1985)
• Fire and rescue authority for the area
• Local housing authority
• If any of the AP for the building is a registered provider of social housing, the Regulator of Social Housing
• If any part of the building is used for business purposes, the responsible person under the RRO 2005. 

This “initial notice” must state the BSR’s intention to apply for a Special Measures Order, the reasons for the application, proposed terms of the order and provide a period for the recipients to respond to the notice. Once the period has expired, the BSR must decide whether to apply for the order and provide a final notice of its decision to the parties listed above. 

If the proposed order includes a term requiring an AP to make payments to the Special Measures Manager, the BSR must give those listed above a financial management proposal, setting out an estimate of the expenses the BSR anticipates the Special Measures Manager to incur.

Resident Management Companies 

If a resident management company is an AP, its articles of association will be deemed to include provisions for: 

• The eligibility for appointment as a director for a building safety purpose
• The appointment of a director of the company for a building safety purpose
• The entitlement to remuneration of director appointed for a building safety purpose
• The removal of a director appointed for a building safety purpose.

These implied changes to the articles of association take effect whether or not they are adopted by the company and regardless of whether the company was formed before this section (s111) came into force. 

A building safety purpose is one that supports the resident management company to comply with its duties under this Part of the BSA. 

If you require any further information or support in relation to any of the above please contact
Louise Mansfield or Melissa Stanford.