Occupied higher-risk buildings under the Building Safety regime – is the picture becoming clearer for Accountable Persons?

Late last year, we reported that the government would shortly be issuing their response to a consultation on the new building safety regime for occupied high-risk buildings under the Building Safety Act 2022 (the Act). The consultation aimed to clarify which parts of an occupied higher-risk building an "accountable person" would be responsible for, and confirm the key building information that would need to be submitted to the Building Safety Regulator (the Regulator). The government has now issued their response to the consultation together with draft regulations supplementing the Act, which we expect to be approved by Parliament in the next few months.

In this blog we've selected a couple of the key updates arising from the consultation which all owners of buildings which are more than seven storeys (or 18 metres) in height should be aware of moving forward. We’ll be talking about these regulations in more detail over the coming weeks as further guidance is issued by the Regulator.

Multiple Accountable Persons – assigned responsibilities

One of the key measures introduced under the Act is the identification of an "Accountable Person" (AP) for residential high-rise buildings, who takes responsibility for managing building safety under Part 4 of the Act. This person is either the owner of the common parts of the building or the person responsible for maintaining them.

However, if there is more than one AP in one building (for example, due to multiple owners under more complex schemes), the Act doesn't clarify for which parts of the building each AP will be directly responsible. The regulations propose assigning responsibility for these duties based on an AP's legal interest in the property or the area for which they have a repairing obligation. One of the questions posed by the government in their consultation was whether this was a reasonable approach to be taking?

Some respondents raised concerns that, under the Act, an AP could be responsible for parts of the building they don't directly control, and that an AP would be responsible for hazards caused by residents or contractors.

In their response, the government clarified that the proposal will not make freeholders liable for ensuring fire and structural safety for parts of a building over which they have no control. Instead, responsibilities under the regulations are to be assigned to each AP based on their legal ownership or repairing obligations for the part they manage. The regulations also confirm that APs must take reasonable steps to mitigate risks caused by other residents, including by engaging residents under its residents' engagement strategy and providing them with safety advice. We're told that the Regulator will be issuing guidance to support APs on these responsibilities over the coming months.

Key building information – what information is needed?

The Act requires duty holders to provide certain key building information to the Regulator – for example, the building's evacuation strategy and external materials used in its construction. This information will then be published by the Regulator (subject to any privacy or security exemptions).

One of the questions asked in the consultation was whether any of the data requirements set out under Part 4 of the Act should be changed? Some respondents were concerned about the administrative burden and costs involved in procuring the information, for example, where structural surveys may be needed if the information isn't readily to hand.

The government's response to these areas of concern is that information regarding (i) the type and date of significant building work carried out under the new regime and (ii) the fire safety design standard, would be optional rather than mandatory, noting that the costs involved in obtaining this information for existing buildings could be disproportionate. A separate impact assessment outlining the costs involved in providing key information will be published by the Regulator shortly which should hopefully provide more visibility.

Based on further feedback from respondents to the consultation, the regulations now require that information regarding the primary use and other uses of the building (including any below ground floors), and the types of energy storage in the building, must be provided to the Regulator.

The Regulator intends to create an online tool to assist duty holders in providing this information, which is expected to arrive once Parliament has approved the regulations.

Looking forward

With some 13,000 existing higher risk buildings needing to be registered with the Regulator, the government recognises that they need to put in place the necessary guidance and reporting framework to enable APs to deliver the key building information as early as possible from April 2023.  As such, we expect to see a flurry of guidance and further communications from government and the Regulator over the next few weeks and months, and will be sure to bring you further developments as and when they emerge.

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