The Building Safety Act 2022 (BSA) places significant and onerous responsibilities on those with interests in higher risk and high rise residential buildings.
The new, more stringent regulatory regime will place legal responsibilities on those who:
- commission building work
- participate in the design and construction process
- are responsible for managing structural and fire safety in higher-risk buildings when they are occupied
We outline the new obligations of dutyholders below and set out some key action points for those who currently have an interest in high rise residential buildings to take to prepare for the changes that are coming into force shortly.
The Building Safety Act 2022 (BSA) applies to both construction of new higher risk buildings (HRBs) and the refurbishment of existing higher risk buildings. For more information on what constitutes high risk, see our last insight on Buildings at the sharp end of the BSA 2022 regime. Note that for construction purposes, a HRB also includes any a building that is a care home, or is a hospital.
Dutyholders: Principal Accountable Persons and Accountable Persons
The new regime creates two dutyholder roles once the building is occupied; principal accountable persons (PAPs) and accountable persons (APs). When building work is carried out on an existing HRB (refurbishment), this may involve both construction phase dutyholders and a PAP and AP(s), since many buildings will remain occupied during the refurbishment.
- PAP responsibilities for registration and certification
PAPs have the same statutory obligations for assessing and managing building safety risks in their own area of the building as other APs but will also have significant additional responsibilities for meeting specific statutory obligations for the whole building.
All occupied HRBs will need to be registered with the BSR by the PAP. The application is subject to a fee and made via the BSR’s digital platform. It must identify the APs and include various basic details of the building, including:-
- the PAP's organisation type;
- the details of anyone applying on behalf of the PAP;
- a single point of contact;
- a description of the building including its address, residential unit numbers, height, storeys and the year it was completed; and
- various building certificate details for buildings not constructed under the BSA regime.
The requirement to register comes into force from today, 6 April 2023. If an applicable building is fully completed and occupied before this date the PAP will have a 'reasonable' time to register the building (guidance indicates 1 October 2023). If an applicable building is fully or partially completed after this date, the building cannot be occupied before registration.
The PAP for a registered higher-risk building must apply for a building assessment certificate within 28 calendar days of receiving a direction from the BSR to do so unless they have a reasonable excuse.
For new builds, the PAP will be directed to apply for a building assessment certificate within 6 months of occupation.
- Managing building safety risks
A PAP and any APs must take reasonable steps to prevent a building safety risk materialising. A building safety risk means:
a risk to the safety of people in or about a building arising from the spread of fire, structural failure or any other prescribed matter
- Safety Case Report
The PAP is responsible for the production of the safety case report, which must demonstrate how the PAP and AP(s) are meeting their duties to assess and manage building safety risks. It must be supported by the wider safety case which contains detailed information about the building, identified risks and mitigating measures taken. We can provide a summary of the safety case guidance from the BSR on request.
The safety case report will be required for submission as part of the application for a building assessment certificate. It must be stored on the golden thread (see further, below) and be kept up to date by revisions to reflect any changes in content.
- Mandatory occurrence reporting
The PAP must establish and operate an effective mandatory reporting system. The system should identify and capture safety occurrences and take a "whole building" approach to safety. The system should also be accessible to APs and allow safety occurrences (namely fire and structural safety issues) to be formally reported to the BSR as soon as practically possible within the mandated time.
Each AP will be responsible for providing residents in their part of the building with certain information as soon as reasonably practicable. This information must be provided when the building is first occupied, when a new resident moves in, or when the information becomes out of date.
Residents will have the right to request further safety information relevant to the building, and the PAP or relevant AP will be responsible for providing such information as soon as reasonably practicable, subject to certain exemptions.
Contact details for APs will need to be displayed prominently in the building
Resident Engagement Strategy
The PAP must also ensure that there is a resident engagement strategy in place. The APs must provide a written copy of the strategy to ever resident who is 16 and over in the area they are responsible for.
Building Safety Complaints System
The PAP must incorporate and set out suitable mechanisms through which building safety complaints can be made (although this can be incorporated into an existing complaint system).
The PAP must set out its complaints policy. This must be provided to residents by the PAP or relevant AP and the PAP must display instructions on how to make a building safety complaint in the common parts of the building.
- Golden thread
The PAP and AP(s) must keep prescribed information and documents relevant to building safety risks in the 'golden thread'; a single source of information which enables people to access information to support building safety. The information should be regularly reviewed to ensure it remains proportionate and relevant. The PAP and AP(s) can decide how best to meet the golden thread requirements; however, the golden thread must be digital and secure form unauthorised internal and external access.
The PAP will retain overall responsibility for the golden thread including ensuring the APS can use and access it. Where there are multiple APs, they are each responsible for keeping information about the part of the building they are responsible for in the 'golden thread'.
Only "relevant content" must be stored in the 'golden thread' and the BSR intends to provide further guidance on what is relevant. The Government's partial response to the consultation on the new building safety regime for occupied higher-risk buildings ("Consultation") covered key building information and provides further detail on what information is proposed to be included in the golden thread.
The golden thread will hold information that:
- shows that the building was compliant with applicable building regulations during its construction and provide evidence of meeting the requirements of the new building control route throughout the design and construction and refurbishment of a building; and
- allows those responsible for the building to identify, understand, manage and mitigate building safety risks in order to prevent or reduce the severity of the consequences of fire spread or structural collapse throughout the life cycle of a building.
- Duty to provide information
The PAP and AP(s) are under a duty to cooperate and coordinate with each other to ensure the overall safety of the building.
The Consultation also proposes that the PAP and AP(s) should share relevant information with each other to manage building safety risks, subject to data protection requirements, and share information with other third parties including the Responsible Person for the purposes of the FSO, residents, the BSR, a new PAP or AP, residents' landlords, and the Client where building work is taking place.
Key building information
The PAP must provide the BSR with key building information about their building to allow the BSR understand characteristics of all higher-risk buildings and to analyse and understand trends and risks across all buildings in scope. This will be submitted alongside (but not as part of) the application for registration. It has a different purpose to golden thread and will include information on the materials used in construction of the building and structural information We can provide a summary of the safety case guidance from the BSR on request.
Those with an interest in high rise residential buildings should be urgently:-
assessing whether their properties meet the definition of a HRB;
considering whether they meet the definition of an AP and/or PAP;
liaising with any other dutyholders to ensure they understand and are fulfilling their obligations;
identifying and resourcing competent advice to put in place a system for managing building safety risk, preparing safety cases, and documenting the golden thread where they are obliged to do so; and
preparing applications for registration for those buildings for which they are the relevant dutyholder.
Legal Director, Global Investigations
Associate, Global Investigations