Time to act responsibly – DLUHC launches the Responsible Actors Scheme

As reported in our blog from the beginning of this month, when passing The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (the "Regulations") the government was intending to push ahead with the launch of the Responsible Actors Scheme (the "Scheme") this Summer.  The Department of Levelling Up, Housing and Communities ("DLUHC") has now come good on that statement, with the launch of the Scheme taking effect from 24 July 2023.

Along with releasing updated guidance on the aims of the Scheme and its membership criteria, DLUHC has also now released an enrolment guide in which the process of enrolling into the Scheme, either through invitation from the Secretary of State or through voluntary application is explained.  According to the guide, DLUHC has begun issuing invitations to those developers that have already entered into a self-remediation contract with the government under which they have agreed to remediate unsafe buildings meeting the criteria for remediation.  This first wave of invitees will include those whose principal business is residential property development, and who meet the profits condition requiring them to have an average annual operating profit in excess of £10 million for the financial years 2017 to 2019 (provided they are not a registered provider of social housing).

Upon receipt of an invitation to join the Scheme, the developer will have 60 days in which to either join the Scheme, following the instructions contained in the invitation (the form of which has not been shared by DLUHC) or to make representations to the effect that it does not meet the eligibility criteria asserted by DLUHC in the invitation.  Having considered those representations, if DLUHC still considers it eligible for membership, the developer will have 30 days in which to join the Scheme or face the prospect of being subject to the planning and building control prohibitions set out in the Regulations.  If the developer does not join the Scheme, it will also find itself being listed on the Responsible Actors Scheme prohibitions list, which has also now been launched, although obviously with no-one yet being subject to the prohibitions.

If a developer considers that it meets the eligibility criteria for the Scheme, but it hasn't received an invitation from the Secretary of State, it can put itself forward for membership by emailing DLUHC and making representations as to why it considers itself eligible, either as an entity whose principal business is residential property development, or on the basis that it has developed two or more buildings which are eligible for remediation funding due to life-critical fire safety defects.  Having considered the developer's case for joining the Scheme, if DLUHC determines the developer to be eligible, it will then issue the developer with an invitation and joining instructions.

Finally, there is the option for a developer who developed or refurbished at least one residential building of 11+m during the 30 years prior to 4 April 2022 and that requires remediation to volunteer to join the Scheme, even if its principal business is not that of residential property development, or it doesn't meet the profits test referred to above.  Again, a volunteer should contact DLUHC with the necessary supporting evidence to apply for membership.

The guidance recognises that there is a possibility that the developer may be part of a wider group of companies containing more than one entity which is eligible for membership.  In such cases, the invitation will provide further information on what to do, with DLUHC designating which group company is invited to join the Scheme.  This will be particularly relevant to groups within which one entity has already entered into a self-remediation contract with the government.

It is likely that those developers who find themselves on the receiving end of an invitation from DLUHC in the coming days and weeks will already be familiar with the obligations contained in the self-remediation contract, which will largely govern the operation of the Scheme.  However, it would be advisable for developers, invited to join the Scheme or otherwise, to acquaint themselves with this updated guidance from DLUHC, in order to have a full understanding of the obligations that will be placed on them as a result of their Scheme membership.

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