Higher Risk Buildings and the Management of Safety Risks: Regulatory clarity or an ambiguous administrative burden for Accountable Persons?

In April, we published a blog discussing the key aspects of the registration regime for occupied higher-risk buildings ("HRBs") under the Building Safety Act 2022 (the "Act"). Whilst those responsible for such buildings have been busy collating the information necessary to register their building with the Building Safety Regulator (the "Regulator"), it appears that the government have been busy fleshing out the ongoing building safety regime that will apply to HRBs.  On 17 August, the government laid before Parliament The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 (the "Safety Risks Regulations"), whilst also releasing their response to the 2022 consultation on the building safety regime for occupied HRBs. The Safety Risk Regulations provide much needed further detail on the existing legislative framework which will apply to both Principal Accountable Persons ("PAPs") and Accountable Persons ("APs") once S.83 of the Act and these Regulations (simultaneously) come into force.  The government's response to the consultation also provides further insight into the standards that are expected from those responsible for building safety.

The Safety Risk Regulations are heavy on detail, and will require a thorough review by those responsible for the safety of HRBs, but we have set out some of the key points in the new legislation below:

• Building Assessment Certificates

S.79 of the Act places an obligation on the PAP to apply for a building assessment certificate ("BAC") on the direction of the Regulator, which will be issued after the building has become occupied.  The BAC will evidence how the PAP (and any other APs) are managing any building safety risks and maintaining a safe building for their residents.  When submitting an application for a BAC, PAPs will need to demonstrate compliance with their duties under the Act, by confirming that each AP has complied with its own obligations under S89 of the Act, which relate to providing prescribed information to the Regulator, other APs, residents, and owners of residential units in a qualifying building. This will require a confirmatory statement that each AP has complied with its obligations.

The government has noted that a PAP will need to work with other APs to collect their details and decide which parts of an HRB they are responsible for managing. When applying for a BAC, APs must understand and accept their duties, with an aim of making it straightforward for the PAP to provide the required details for its application.

It is therefore crucially important that there is transparency of identity of each relevant party and that PAPs make efforts to investigate compliance to ensure that the statement can be made accurately and truthfully. The Safety Risk Regulations also provide further detail on the information that needs to be included in a PAP's application for a BAC, and similarly, the information that the Regulator must include when issuing the BAC.

• Management of Building Safety Risks

S.84 of the Act requires APs to take steps to manage building safety risks in accordance prescribed principles. The Safety Risk Regulations provide further clarity on such 'prescribed principles'. However, whilst the regulations define 'prescribed principles', the principles themselves are not without ambiguity. The principles include 'to adapt to technical process' and 'replace the dangerous with the non-dangerous or less dangerous'. This may leave detail to be desired by building owners who will be looking for certainty of their obligations and assurance that the measures they put in place are compliant with legislation.

In its response to the 2022 consultation, the government 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. However, clear guidance around these principles will support decision making and will be tailored to varying needs.

• Safety Case Reports and Mandatory Occurrence Reporting Requirements

There is not a set template for the safety case report required under S.85 of the Act, but the Safety Risk Regulations specify the information which a PAP must include in its safety case 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. This can only be a subjective assessment, so it remains to be seen how compliance will be determined on a case by case basis.

The Safety Risk Regulations also aim to make clear the information which must be provided by an AP in relation to a safety occurrence. This will need to include the date and time of the safety occurrence, when it was notified to the Regulator, when the report to the Regulator was submitted, and a description of the measures taken to mitigate or remedy the safety occurrence.

Crucially, a 'safety occurrence' is defined as an incident or situation relating to the structural integrity of, or spread of fire in, a HRB that meets the 'risk condition' which is met if use of part of the building without the incident or situation being remedied would be likely to present a risk of a significant number of deaths, or serious injury to a significant number of people. Again, this can only be subjectively assessed, so APs should be cautious in ensuring that all potential safety occurrences are reported in accordance with the rules.

It is important to remember that where managing agents manage buildings on behalf of freeholders, head lessees and management companies, the responsibility for reporting safety occurrences still rests with the AP. It is important that APs undertake their own due diligence to monitor the activity of an agent in relation to reporting. APs should therefore not assume their duties can be 'passed on' in such circumstances.

• Keeping 'Golden Thread' Documents and Provision of Information

APs will need to ensure that they keep information in accordance with the standards prescribed by the Safety Risk Regulations. This includes keeping it in electronic format and capable of being transferred electronically, ensuring it is intelligible to the intended readers and that the data is secured from unauthorised access. It will be necessary for APs to ensure that they have an organised and monitored record keeping system ready to easily provide information when required by the Act. Further guidance around the keeping of information is still expected.

Noting the financial impact on the new stringent regulations around data recording, the government response acknowledged that expenditure by APs associated with the ongoing costs of the new regime may be recovered from leaseholders through service charges.

• Residents' Engagement Strategy

Under the Act, a PAP must prepare a residents’ engagement strategy for promoting the participation of relevant persons in the making of building safety decisions. The Safety Risk Regulations set out requirements for reviewing the strategy and updating the Regulator in respect of changes. In particular, the rules include a requirement for the PAP to notify the Regulator of any 'significant material alterations' which include changes to the number of residential units in the building, changes to the width of staircases and escape routes and any changes to the internal layout of the building. PAPs will need to be alive to their obligations to notify the Regulator in respect of a wide range of changes by keeping on top of works in the building.

The 2022 consultation revealed significant concern about the lack of clarity around requirements for establishing and delivering the strategy. In the government's response, it stated that the Regulator will produce guidance with further detail about delivering the requirements for establishing and operating a residents’ engagement strategy which will hopefully assist APs in navigating the new framework.

• Complaints, Contravention and Compliance

A PAP is required under the Act to operate a system for:

• • the investigation of relevant complaints,
  • the service of contravention notices on residents and the owners of residential units, and
  • the service of compliance notices to an AP for a HRB who appears to the Regulator to have contravened, be contravening or be likely to contravene a relevant safety obligation.

The Safety Risk Regulations prescribe the extensive procedure which must be detailed in the complaints procedure by the PAP and the form and contents which must be included in each notice.

The Act establishes the framework for the PAP to be the first point of call for building safety complaints. Complaints can be escalated to the Regulator where the complainant is not satisfied with how their complaint is handled by the principal accountable person.

The response to the 2022 consultation noted that where a resident is contravening a duty, an AP should first take informal steps to rectify the issue before issuing notice. These measures will also assist an AP in deciding whether the ‘significant risk’ threshold has been reached, prior to issuing a notice.

Whilst the Safety Risk Regulations certainly provide further clarity on necessary and welcome safety legislation, it is clear that APs and PAPs of HRBs will need to ensure that they keep on top of a breadth of administrative obligations to guarantee their compliance with the safety regime.  The further guidance repeatedly promised in the government's consultation response will also be a key resource for APs and PAPs and this will be eagerly awaited, but for now, there is plenty of work for APs and PAPs to be getting on with.

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