If you’re struggling to get to grips with the new Building Safety Act, and the likely request from the Regulator for information, you’re not alone. Many housing departments and building companies in the same position right now. So we’ve put together this summary of the issues being aired. It’s based on information recently released by the government and hopefully will make things a lot clearer. Read for the most commonly asked questions, and the answers to them.
The Principal Accountable Person
Is an individual director of a Resident Management Company personally liable for any breach of the law? Or does responsibility lie with the Resident Management Company?
The answer is no – the corporate body or the resident management company is the Accountable Person or Principal Accountable Person. The Regulator would take action against that legal entity rather than individual directors. The Building Safety Regulator has enforcement powers and can hold those to account who have duties under the Building Safety Act, if they fail to meet them. The duty holders are defined under Section 4, parts 72 and 73 of the Building Safety Act as the Accountable Person and Principal Accountable Person.
In general action will be taken against the Resident Management Company rather than individual directors because it is the company that is responsible for the safety of the building. So a Resident Management Company or any other corporate body is an Accountable Person or Principal Accountable Person. Therefore, the Regulator would take action against that legal entity rather than against individual directors. The Regulator will take the approach that it is those responsible for a breach that should be held to account.
The Building Safety Act does allow for action to be taken against individual directors. However, for the Building Safety Regulator to consider this, an investigation would need to show that the offence was committed with an individual’s consent or connivance, or was attributable to their neglect. Any enforcement would be taken in accordance with the Regulator’s Enforcement Policy Statement. You can search online via the Health and Safety Executive’s website or search for ‘BSR Enforcement Policy Statement’.
Is an individual director of a Resident Management Company the Principal Accountable Person?
No – the corporate body or the Resident Management Company is the Principal Accountable Person. It’s not an individual director.
Can a managing agent appointed by the directors of a Resident Management Company be the Principal Accountable Person?
The Resident Management Company can’t delegate this role to another body – assuming that they fulfill the definition of a Principal Accountable Person themselves. You can delegate some day-to-day tasks to the agent in managing building safety and even hand over responsibility for preparing the Building Safety Case Report or Residents’ Engagement Strategy, but the legal duties don’t pass to them.
Is the Accountable Person the same as the Responsible Person?
They can be, but not necessarily. Accountable and Principal Accountable Persons are those with duties under Part 4 of the Building Safety Act 2022. The Responsible Person is someone with duties under the Fire Safety Order 2005 – what makes them ‘accountable’ is different to what makes them ‘responsible’. They’re the same person or body only if they meet both sets of definitions under these two pieces of legislation.
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High Risk Buildings and Proportionality
Does every high-risk building in a development need a Safety Case, a Building Safety Case Report and a Resident Engagement Strategy – even where much of the information is the same or similar?
The answer is, yes they will need individual submissions. High-risk buildings each have data and documents outlining fire and structural safety. Similar buildings may have significant differences, changes and modifications made. And these provide a basis for the Building Safety Case Report and are part of the Golden Thread.
A development will have one Principle Accountable Person, and information about similar buildings may be the same. But all buildings have different residents with varying needs, and that’s why each building should have a different Resident Engagement Strategy. The Building Assessment Certificate will depend on information provided to the BSR at Registration. The government’s guidelines on preparing a building assessment certificate application is also useful. Each registration will result in a request from the Building Safety Regulator to continue the application in that way, and one certificate per high-risk building from the Building Safety Regulator.
Do I have to have an intrusive structural survey of my building?
The answer is, no you’re not required to go to these lengths. In fact, the Building Safety Act doesn’t specify the type of survey that needs to be carried out. The way that the Regulator has phrased it is: “the person that’s accountable should take all reasonable steps to ensure building safety”. In other words, be guided by the building and the information in place.
The history of any issues or incidents will be a factor, with older buildings potentially needing additional inspections – but your approach should be proportionate to the risks. You may need a survey if there are gaps, but it could just be a visual one that is required.
If a Building Assessment Certificate application is refused, is the building unsafe and will everyone have to move out?
The answer is ‘no’ – upheaval on this scale isn’t necessary. A Building Assessment Certificate application is based on whether those accountable for the building (known as Accountable Persons) are meeting specific legal duties. Not all of these will affect the day to day building safety. For example, if a Resident Engagement Strategy didn’t contain what it was supposed to, the Regulator would have to refuse the application.
However, that doesn’t mean the building is unsafe – even where the Building Safety Regulator identifies more work to be done. If you’re responsible for the building, you can often be able to manage risk by putting interim measures in place at that time, with the expectation that more permanent measures will follow.
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Fire Risk Assessment
Do I require a type 4 Fire Risk Assessment including intrusive inspection of compartmentation?
A fire risk assessment is required by article 9 of the Regulatory Reform (Fire Safety Order) 2005, but the type of assessment isn’t specified under The Building Safety Act. This regulation requires an Assessment of Building Safety Risks relating to the spread of fire and structural failure, without recommending any particular methodology.
A suitable and sufficient assessment depends on the building. And here you’re advised – if you’re the Principle Accountable Person – to look into the safety of your building. What do you already know? What documents or assessments do you already have? It’s good to identify gaps to work out what further information is needed. This will depend on the age of the building, the type of construction and any history of incidents. It’s an approach that is proportionate to the complexity and condition of the building’s safety, in other words.
For added info, it’s best to remember that fire risk gets worse the higher the number attached. So, Type 1 fire risk assessment is about common parts – non-destructive. Type 2 fire equals common parts – destructive. Type 3 refers to common parts and flats – non-destructive. And Type 4 is all about common parts and flats – destructive.
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The Safety Case Report
What is the format of the Safety Case Report and what information should it contain?
It must be an electronic document, but there is no particular format specified. The report must contain a description of the building, potential building safety scenarios considered in the risk assessment, and actions taken to prevent and mitigate the spread of fire and structural failure. It should also include an overview of how you manage building safety risk, including arrangements for maintenance, managing changes to the building and a description of your emergency plans. Further guidance is available on the government’s website at Guidance to Preparing a safety case report. The Building Safety Regulator won’t be producing a template for the safety case report.
What is the hourly rate charged by the Building Safety Regulator to assess a Safety Case Report?
The Regulator charges £144 per staff hour worked for assessing the Safety Case Report and other elements of Building Assessment Certificate applications issues. There is also an initial charge of £288 per application. Where work is carried out by other third parties, the Building Safety Regulator will charge the Principal Accountable Person. You find out more at Building Safety Regulator Charging Scheme.
How many hours on average will it take the Building Safety Regulator to assess a Safety Case Report?
There isn’t a typical or average figure. That’s because there are many factors including the age, type and complexity of the building. Also how well it is being managed and clarity of the account provided in the Safety Case Report BSCR. The time taken will increase where the Regulator needs to request any extra information or carry out another type of intervention.
The Principal Accountable Person can reduce the time taken to assess the report by including everything the law requires, and demonstrates that they have taken all reasonable steps. Good signposting within the report will help the Regulator find information quickly. You can also reduce the need for extra information by explaining your assumptions and conclusions. If you refer to an assessment or report, say if there are any actions outstanding, and detail your plans to close them out. If there are no actions outstanding, also communicate that in the report.
Do I have to use consultants to complete the Report?
There’s no requirement to use any consultant: as a housing manager you can gather the information and write the Building Safety Case Report and Resident Engagement Strategy. If you decide to use consultants, be clear what it is you want from them. And look around at a range of options. The government has seen a huge range of costs quoted for work.
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Resident Engagement
Does Resident Engagement mean we have to do everything everyone wants?
No – the approach is more about consulting residents and owners of residential units about issues such as building safety decisions. Then you can take their views into account. Sometimes only some of the residents will be affected by a decision and you can; target your engagement accordingly. The Regulator also recognises that some residents will not want to be contacted about building safety.