Building Safety Act 2022

Part 4: Higher-risk buildings

Introduction

Section 61: Overview of Part

Effect

552. This section is intended to assist the reader of the Act to understand the provisions that follow. It sets out the main elements of Part 4 of the Act. This section is not intended to have legal effect; rather it guides the reader through the remaining provisions of this part of the Act, which are intended to have legal effect.

Background

553. This is a new provision.

Meaning of "building safety risk"

Section 62: Meaning of "building safety risk"

Effect

554. The new regulatory regime will regulate "building safety risks" in higher-risk buildings. These are the risks that the Accountable Person will manage in occupation, via the safety case, in order to prevent an incident involving these risks.
555. This section defines those "building safety risks" as risks to the safety of persons in or about buildings with regards to risks arising from the building resulting from the occurrence of: fire spread, structural failure, and any other risk that may be prescribed by regulations in the future.
556. This section is drafted using fire spread as the intention is that the fire must have spread from one part of the building to another in order to be considered a building safety risk. For example, this includes a fire spreading from one compartment to another within the building or from inside the building to the outside of the building. The intention is not to capture a fire spreading within a compartment.
557. The intention behind the term structural failure as a building safety risk is to capture when the structural integrity of the building fails in doing so poses a risk to the safety of people. This is likely to manifest as part or all of the building collapsing.
558. This section is drafted to capture risks inside and outside the building such as fire spreading on the external wall of a building but is limited to risks that are associated with the building and/or arising from the building itself. Risks are also limited to those affecting people in and about buildings.
559. This section provides a power for the Secretary of State to define, in regulations, new "building safety risks" which, once prescribed, would then need to be regulated in higher-risk buildings. This section will therefore allow the future scope of the regulatory regime to remain flexible should evidence emerge, for example, that another risk arising from a building has the potential to cause a major incident (serious injury or death to a significant number of people).
560. The power to prescribe a new building safety risk will be by regulations subject to the affirmative procedure in both Houses of Parliament. Before making any regulations prescribing new building safety risks, the Secretary of State must consult with the Building Safety Regulator. The Secretary of State must also consult any persons that they consider appropriate.
561. In addition to the requirement to consult in this section, the Secretary of State can ask the Building Regulator to advise them as to whether a particular new building safety risk should be prescribed and the Building Safety Regulator is obliged to provide such advice on request (section 64). Alternatively, the Building Safety Regulator may proactively recommend to the Secretary of State to specify a new building safety risk (section 63).
562. In prescribing a new building safety risk, if the Secretary of State is giving effect to regulatory advice or recommendation the requirement to consult the Building Safety Regulator is switched off, although the Secretary of State still must consult such other persons as they consider appropriate.
563. Schedule 5 will support this function of the Building Safety Regulator and requires the Building Safety Regulator to keep the safety of people in and about buildings in relation to risks arising from buildings under review.
564. Once prescribed, the Secretary of State will have the power, by regulations, to remove a prescribed risk from the definition of building safety risks. This power will apply only to prescribed risks and not to the risks expressly set out on the face of the Act: fire spread and structural failure – these will remain at the heart of the building safety regime.

Proposed use of power

565. It is not proposed to prescribe any additional building safety risks using the power in this section at this time.

Background

566. This is a new provision.
567. The Independent Review focused on fire and structural safety risks and recommended these were the initial scope for building safety risks in the new regime.
568. The Government sought research from the Health and Safety Executive in relation to risks that are considered to be catastrophic to verify our approach and focus. The conclusions of this research are that the major accident hazards in scope for safety management in a higher-risk building would largely be rapid onset escalating fire, structural, or explosion events. Explosion events can trigger a rapid onset escalating fire or structural event.

     Example The following is a hypothetical example. After the new occupation regime has been operating for two years, the Secretary of State may feel that changing weather systems mean high winds pose a risk to windows of higher-risk buildings which does not relate to the structural integrity of the building. If the Secretary of State comes to this view, they must consult the Building Safety Regulator before making regulations to prescribe high winds as a new building safety risk. The Building Safety Regulator is under a duty to provide advice if requested to do so and may proactively recommend that high winds should be prescribed as a new building safety risk. The Secretary of State will also consult other appropriate bodies – in this scenario this might include structural engineers, environmental and weather experts. If, following a consultation on including a new risk, the Secretary of State decides to add the new risk, regulations will be laid in Parliament under the affirmative procedure. Subject to Parliament’s approval, the occupation regime will then regulate for risk of fire spread, structural integrity and risk of high winds in higher-risk buildings.

Section 63: Recommendations about regulations under Section 62; and Section 64: Advice about regulations under section 62

Effect

569. The new regulatory regime will regulate building safety risks in higher-risk buildings – building safety risks are defined in section 62. The Act provides a power for the Secretary of State to prescribe new building safety risks in section 62. This may be done only following consultation with the Building Safety Regulator and appropriate persons.
570. Section 63 sets out that the Building Safety Regulator may proactively recommend to the Secretary of State that a new "building safety risk" should be prescribed. Before making a recommendation, the Building Safety Regulator must be satisfied that if a new "building safety risk" occurred in a higher-risk building or a particular type of higher-risk building, it would have the potential to cause a major incident (serious injury or death for a significant number of people).
571. The Building Safety Regulator may also recommend to the Secretary of State to specify a new "building safety risk" and a new class of higher-risk building simultaneously. Before making such a recommendation, the Building Safety Regulator must be satisfied that if the new building safety risk occurred in the new class of higher-risk building it would have the potential to cause a major incident (serious injury or death to a significant number of people), that the risk of it occurring in the new class of higher-risk building is higher than in other buildings, and that the new occupation regulatory regime should apply to the new class of "higher-risk building".
572. The Building Safety Regulator may also recommend the removal of a previously prescribed building safety risk on the grounds that it would not cause a major incident. The Regulator is unable to recommend under this section that fire spread or structural safety are removed from the definition of building safety risks.
573. When making a recommendation, the Building Safety Regulator must include details of the issues that have been considered to reach the recommendation.
574. Supplementary to section 62 and section 63 is section 64. In addition to the requirement to consult in section 62, the Secretary of State can ask the Building Safety Regulator to advise them as to whether a particular new "building safety risk" should be prescribed. The Building Safety Regulator is obliged to provide the requested advice.
575. Schedule 5 will support this function of the Building Safety Regulator and requires the Building Safety Regulator to keep the safety of people in and about buildings in relation to risks arising from buildings under review.
576. If the Secretary of State does not follow the recommendation of the Building Safety Regulator under section 63, then they must publish a document which sets out the Regulator’s recommendation, the Secretary of State’s decision not to follow the recommendation and the reasons for that decision.

Background

577. These are new provisions.

     Example The following example is purely hypothetical. Several years after the new regulatory regime is transitioned in, the Building Safety Regulator, through its duty to keep the safety and standard of buildings under review, becomes aware of a construction product with previously unknown consequences which has the potential to cause a major incident. This could be a similar scenario to the historical issues of using asbestos. One of the actions the Building Safety Regulator may take is to provide a recommendation to prescribe a new building safety risk and regulate the risk through this regime. It would also recommend that the categories of buildings affected become higher-risk buildings.  If the Secretary of State accepts these recommendations, they must consult other appropriate people and, undertake a cost benefit analysis of the addition of a new category of building to the definition of higher risk building before they can make regulations to put the recommendation into effect. After some time, protocols for dealing with the product may have become widely known and the product may be less prevalent in buildings. Therefore, the Building Safety Regulator may recommend to the Secretary of State to remove the product as a prescribed risk, as it is no longer appropriate for it to remain a building safety risk within this regime. The Secretary of State may make regulations to put this recommendation into effect after consulting other persons they consider appropriate.

Meaning of "higher-risk building"

Section 65: Meaning of "higher-risk building" etc and Section 66: Regulations under section 65: procedure and Section 67: Regulations under section 65: additional procedure in certain cases

Effect

578. The new regulatory regime will regulate building safety risks in "higher-risk buildings" in England. Section 65 defines the "higher-risk buildings", which will be regulated by the new occupation regime, as at least 18 metres in height or having at least 7 storeys and containing at least two residential units. Residential units are either a dwelling or any other unit of living accommodation, for example student accommodation where basic amenities, such as cooking facilities, a toilet and personal washing facilities are shared with others in the building.
579. Section 65 gives the Secretary of State the power, by regulations, to supplement this definition (subsections (2) and (3)), for example by defining building, storey and technical details such as the method for measuring the height of a building. Subsection (4) provides that the definition of "building" in regulations may include other structures, erections or movable objects. The ability to have a broad definition aligns with section 121 of the Building Act 1984. Regulations made under this power are subject to the negative resolution procedure.
580. Section 65 also gives the Secretary of State the power (used in the way described in (3)(c), by regulations, to exclude classifications of building from the definition of "higher-risk building". This means a building may be caught by the definition in this section but then excluded through regulations made under this power and therefore not defined as a "higher-risk building". Regulations made under this power are subject to the affirmative resolution procedure, i.e. they must be laid in draft, debated and approved in both Houses of Parliament before they can be made.
581. Section 65 gives the Secretary of State the power to amend section 65, apart from subsections (2) and (5). This power could be used to amend the definition of "higher-risk building". Regulations made under this power are subject to the affirmative resolution procedure, i.e. they must be laid in draft, debated and approved in both Houses of Parliament before they can be made.
582. When making regulations to amend the definition of "higher-risk building", this can be done by reference to a building’s size, design, use, purpose or other characteristic (section 166).
583. Section 66 stipulates that the Secretary of State must consult the Building Safety Regulator and any other appropriate persons before making regulations. It also states that the Secretary of State does not need to repeat this consultation with the Building Safety Regulator if they have received a recommendation or requested advice. This includes when the Secretary of State proposes to make regulations to remove a category of building from the definition of higher-risk building.
584. Section 67 further stipulates the requirements at when the Secretary of State must meet when they proposes to make regulations which would result in a description of building being added to the definition of "higher-risk building", and therefore subject to the new occupation regulatory regime., They must have received a recommendation from the Regulator (section 69) or request advice from the Regulator (section 70) and they must undertake and publish a cost benefit analysis. If the costs or benefits cannot be reasonably or practicably estimated, then the Secretary of State must provide an explanation of this

Proposed use of power

585. At the start of the new regulatory regime, it is proposed to supplement the definition of "higher-risk building".

Background

586. This is a new provision.
587. The Independent Review identified that it is important to ensure that the Government can respond in the future, where necessary, to amend the definition of "higher-risk buildings" in light of either critical new information emerging or experience of operating the new regime.
588. Following pre-legislative scrutiny, the Housing, Communities and Local Government Committee recommended including the definition of "higher-risk buildings" within the Act, rather than in regulations.

     Example The following example is purely hypothetical. After the new regime has been operating for two years the Secretary of State may decide that consideration is needed as to whether single storey premises in areas of high flood risk should be higher-risk buildings because of a concern about structural failure following recent flooding incidents. If the Secretary of State came to this view, they must request advice from the Building Safety Regulator. The Building Safety Regulator must consider whether single storey premises in areas of high flood risk meet the three conditions specified in section 70(2). In this hypothetical example, the Regulator considers the conditions are met. The Building Safety Regulator must also consider whether the application of Part 4 of this Act should be modified if it is applied to single storey premises in areas of high flood risk. The Regulator does not consider that the application of part 4 should be modified. The Regulator must then make a recommendation to the Secretary of State to amend the definition of a "higher-risk building" and provide a statement of the issues it considered in coming to that recommendation. Having considered the recommendation, the Secretary of State may be minded to agree and make regulations to amend the definition of "higher-risk buildings". They must then consult any other persons the Secretary of State considers appropriate and undertake a cost benefit analysis, if they have not already done so whilst requesting advice from the Regulator. Having considered the recommendation, the representations made and the cost benefit analysis, the Secretary of State will decide whether to amend the definition of "higher-risk building". If the Minister chooses to make the amendment, the regulations will be laid in Parliament using the affirmative procedure and be accompanied by the requisite documentation. If the Secretary of State chooses not to make the amendment, then the Secretary of State must publish a document setting out the Regulator’s recommendation, their decision not to implement it and the reasons for their decision.

Section 68: Modification of Part in relation to certain kinds of higher-risk building

Effect

589. The new regulatory regime in Part 4 of the Act will regulate building safety risks in higher-risk buildings. Section 65 provides for the definition of "higher-risk building" in Part 4 of the Act to be amended by regulations.
590. This section provides some further flexibility. It gives the Secretary of State the power to modify Part 4 of this Act in relation to particular categories of higher-risk buildings. This power could be used at the same time as bringing a new type of building within the definition of higher-risk building or could be used in relation to an existing type of higher-risk building. The power is needed as there might be cases where it is not appropriate to apply every provision set out in Part 4 of this Act to all types of higher-risk buildings, and in such cases the Secretary of State may decide to modify how Part 4 applies to that type of building.
591. When providing advice under section 70 or making its recommendation under section 69 regarding the definition of "higher-risk building", the Building Safety Regulator must also consider whether it is appropriate to make modifications to how Part 4 should apply to that description of building.
592. This power to modify parts of the regime applies with respect to the in-occupation regime only. Amendments to the Building Act 1984 already provide for a power to have different provision in building regulations for higher-risk buildings. This includes applying differing requirements for specific types of higher-risk buildings where appropriate.
593. The power to amend section 65: Meaning of "higher-risk building" etc. apart from subsections (2) and (5), the power to exclude categories of building from the definition of "higher-risk building" by regulations (section 66) and the power to modify the application of the regime to higher-risk buildings (this Section) will all be subject to the affirmative procedure.
594. Before making any new regulations under this Section the Secretary of State must consult with the Building Safety Regulator, as well as any other persons the Secretary of State considers appropriate.

Proposed use of power

595. See section 65 above for the definition of "higher-risk building" in relation to Part 4 of this Act. It is not proposed to make any modifications under this section to the regulatory regime for the types of building falling within this definition.

Background

596. This is a new provision.

     Example The following example is purely hypothetical. After the occupation regime has been operating for two years, the Secretary of State may feel that it is not appropriate for the resident engagement requirements to apply to higher-risk buildings which consist of boarding school accommodation which only houses minors, given the nature of the occupants. If the Secretary of State comes to this view, they must consult the Building Safety Regulator and other appropriate persons before making regulations. Having considered the consultation responses, the Secretary of State will then decide whether or not to make the regulations making the modification.

Section 69: Recommendations about definition of "higher-risk building" etc

Effect

597. The new in occupation regime will regulate building safety risks in higher-risk buildings. Section 65 sets out the definition of "higher-risk building" for Part 4 of this Act.
598. This section provides that the Building Safety Regulator must recommend to the Secretary of State that a particular description of buildings should be subject to regulation under the regime if the conditions of the section are met. The conditions are: the Building Safety Regulator must be of the view that building safety risks in the type of building in question are higher than in buildings in general, that if the building safety risks arose in the type of building in question it could cause a major incident (serious injury or death to a significant number of people), and that the Regulator considers it appropriate for the regulatory regime to apply.
599. In making recommendations, the Building Safety Regulator must also make a recommendation as to whether the application of Part 4 should be modified for the description of building which it has recommended should come into scope of the regulatory regime (using the power in section 68). This is because there might be cases where it is not appropriate to apply every provision of the regime in occupation to a certain description of building, and so when making its recommendation about bringing a description of building into scope of the regulatory regime, the Building Safety Regulator must also consider which provisions it thinks are appropriate to apply to that description of building.
600. When making a recommendation to add a description of building to the definition of "higher-risk building", the Building Safety Regulator must provide the Secretary of State with a statement of the issues considered.
601. If the Secretary of State chooses not to follow a recommendation of the Building Safety Regulator, then they must publish a document which sets out the Regulator’s recommendation, the Secretary of State’s decision not to follow the recommendation, and the reasons for that decision.
602. The Building Safety Regulator may also recommend the removal of a description of higher-risk building from the regulatory regime.
603. Schedule 5 will support this function of the Building Safety Regulator as it requires the Building Safety Regulator to keep the safety of people in and about buildings in relation to risks arising from buildings under review.
604. The Building Safety Regulator would use the powers in this section if, following the commencement of the regulatory regime, the Building Safety Regulator independently considers, either through evidence or experience of operating the regime, it needs to make recommendations to the Secretary of State to amend the definition of "higher-risk building", because the tests in subsection (1) are met.

Background

605. This is a new provision.

     Example The following is a hypothetical example. Two years after the regime comes into force, with experience of operating the regime, the Building Safety Regulator may decide that consideration is needed as to whether single-storey premises in areas of high flood risk should be higher-risk buildings because of a concern about structural failure following recent flooding incidents. In order to make a recommendation to the Secretary of State, the Building Safety Regulator must consider that the building safety risks in relation to this type of building are higher than in buildings in general and that if the risk materialised it has the potential to cause a major incident. If that is the case, and if the Regulator thinks it appropriate, the Regulator must recommend to the Secretary of State that single-storey premises in areas of high flood risk, should be considered higher-risk buildings. In this example the Building Safety Regulator must also consider whether Part 4 should apply in its entirety to single-storey premises in areas of high flood risk, or whether it should be modified or disapplied in part. The Secretary of State would then consider this recommendation. In this example, if the Secretary of State agreed with the recommendation, they would then have to consult other appropriate persons and undertake and publish a cost benefit analysis. Following that, if the Secretary of State chooses to make regulations under Section 65 to bring single-storey premises in areas of high flood risk into scope of the in-occupation elements of the regulatory regime, the regulations would be subject to the affirmative resolution procedure in both Houses of Parliament. Subject to Parliament’s approval, this type of building would then be regulated by the Building Safety Regulator subject to a suitable transition period. If the Secretary of State disagreed with the Building Safety Regulator and chose not to prescribe single-storey premises in areas of high flood risk as higher-risk buildings, the Secretary of State would be required to publish a document setting out the original recommendation, and stating both their decision not to follow the recommendation and reasons why.

Section 70: Advice about definition of "higher-risk building" etc

Effect

606. The new in occupation regulatory regime will regulate building safety risks in higher-risk buildings in England. The Secretary of State can ask the Building Safety Regulator to advise them as to whether a type of building should become a higher-risk building, or a type of building should be removed from that definition. The Building Safety Regulator is obliged to provide such advice on request.
607. This section sets out that if the Secretary of State asks the Building Safety Regulator to provide advice as to whether a new description of building should be added to the definition of "higher-risk building", the Regulator must consider whether the conditions at subsection (2) (a) - (c) of the section are met. The conditions are: the Building Safety Regulator must be of the view that building safety risks in the type of building in question are higher than in buildings in general, that if the building safety risks arose in the type of building in question it could cause a major incident (serious injury or death to a significant number of people) and that the Regulator considers it appropriate for the regulatory regime to apply.
608. If the Building Safety Regulator considers the conditions are met, it must consider which parts of the occupation regulatory regime should apply. The Regulator must then recommend to the Secretary of State that the new description of building is added to the definition of "higher-risk building", specify whether Part 4 should be modified and provide a statement of the issues it considered alongside the recommendation.
609. If the Building Safety Regulator considers the conditions are not met, it must provide advice that the new description of building should not be added to the definition of "higher-risk building", and provide a statement of the issues it considered.
610. This section also sets out that the Building Safety Regulator must provide advice as to whether a description of building should be removed from the definition of "higher-risk building", if the Secretary of State requests it.
611. Section 65 provides for the Secretary of State to amend the definition of higher-risk buildings in regulations. The power is flexible because section 68 gives the Secretary of State a power, by regulations, to apply only parts of the in occupation regulatory regime to descriptions of higher-risk buildings.
612. Schedule 5 will support this function of the Building Safety Regulator as it requires the Building Safety Regulator to keep the safety of people in and about buildings in relation to risks arising from buildings under review.

Background

613. This is a new provision.
614. The Independent Review identified that it is important to ensure that the Government can respond quickly in the future, where necessary, to broaden the definition of higher-risk buildings in light of either critical new information emerging or experience of operating the new regime.
615. The Building Safety Regulator will oversee the building safety regulatory system and will analyse data from the operating regime to be able to fulfil this duty.

     Example The following is a hypothetical example. After the new occupation regime has been operating for two years, the Secretary of State may decide that consideration is needed as to whether single-storey premises in areas of high flood risk should be higher-risk buildings because of a concern about structural failure following recent flooding incidents. To understand more about the issue the Secretary of State could formally request advice from the Building Safety Regulator on inclusion of this type of building in the definition of higher-risk buildings. The Building Safety Regulator would be required to provide the Secretary of State with advice. If the Regulator considered the three conditions set out in this section, subsections (2) (a) - (c) were met, it would also be required to explain whether any modifications should be made to the regulatory regime, as set in in Part 4 of this Act, in relation to its application to the proposed new type of building. Following this, the Regulator must recommend to the Secretary of State that single-storey premises in areas of high flood risk should be higher-risk buildings, whether any modifications to the regulatory regime should be made and provide the Secretary of State a statement of the issues it considered in coming to that recommendation. Where the Secretary of State is proposing to make regulations to give effect to the advice of the Building Safety Regulator then the Secretary of State would not be required to re-consult the Building Safety Regulator, but would have to consult such other persons as the Secretary of State considers appropriate. The Secretary of State must also undertake and publish a cost benefit analysis. If the Secretary of State chooses to make the amendment, the regulations will be laid in Parliament using the affirmative procedure. If the Secretary of State chooses not to make the amendment, then they must publish a document setting out the Regulator’s recommendation, their decision not to implement it and the reasons for their decision.

Meaning of "Accountable Person" and other key definitions

Section 71: Meaning of "occupied" higher risk building etc

Effect

616. The majority of this part of the regulatory regime will apply only to buildings which meet the definition of "higher-risk buildings" (section 65) which are "occupied". This section defines the meaning of "occupied" and requires that the building is in multi-occupation by residents of two or more residential units.
617. This section also creates a power for the Secretary of State to amend the definition of "occupied" and the definition of a "resident" of a higher-risk building. There is also a power to define the meaning of being a "resident" of a residential unit. These powers ensure that the regime could be adapted in the future.

Background

618. This is a new provision.
619. The Independent Review identified that there should be a clear dutyholder during occupation who will have statutory obligations to maintain the fire and structural safety of the building. These will take effect on occupation of a building in scope.

Section 72: Meaning of "Accountable Person" etc

Effect

620. This section sets out the definition of an Accountable Person. For the purposes of this part of the Act the Accountable Person is the entity responsible for meeting the statutory obligations under Part 4 for occupied higher-risk buildings.
621. Subsection (1) states that the Accountable Person is the person who is under a relevant repairing obligation for any part of the common parts of the building under a lease or by virtue of an enactment. This will normally be the landlord or a superior landlord. But where there is no person with a relevant repairing obligation the Accountable Person is the person who has the legal estate in possession of any part of the common parts of the building
622. It therefore makes provision for management bodies to be defined as Accountable Persons. In circumstances where the lease sets out repair and maintenance obligations on that management body, this includes Right to Manage Companies.
623. Subsection (2) sets out circumstances when a person who would have been an Accountable Person under subsection (1)(a) would no longer be considered an Accountable Person for the building. This may occur when another person is under a relevant repairing obligation for all the relevant common parts or if their repairing obligations in relation to all the common parts are subsequently obligations of a Right to Manage Company.
624. Subsections (3) and (4) identifies the person with the relevant repairing obligation for the common parts of the higher-risk building as an Accountable Person where the ownership arrangements consist of a complex chain of leases. This may occur when for example, a person who holds a legal estate in possession in any of the common parts has a superior landlord or landlord who has agreed, in a superior lease, to keep the common parts of the building in repair. lease, to keep the common parts of the building in repair. lease, to keep the common parts of the building in repair. lease, to keep the common parts of the building in repair.
625. Where this is be the case, the superior landlord or landlord will be an Accountable Person for those parts of the building, instead of the person who holds a legal estate in possession of those common parts.
626. Subsection (5) provides that where the title to a higher-risk building is held in commonhold, the commonhold association will always be the Accountable Person for the building.
627. Subsection (6) defines the key terms used within this section.
628. Notably, common parts include the structure and exterior of the building and any part of the building which is provided for the use of the residents in the building, except for those demised to individual dwellings.
629. It also clarifies in accordance with Section 114 references to a lease as being:
     • a lease granted for a term certain exceeding 21 years, whether it is (or may become) terminable before the end of that term by notice given by the tenant or by re-entry or forfeiture; or
     • a lease for a term fixed by law under a grant with a covenant or obligation for perpetual renewal, other than a lease by sub-demise from one which is not a long lease.

630. Subsection (7) gives powers to the Secretary of State to amend the definition of an Accountable Person by way of regulations.

Background

631. This is a new provision.
632. The Independent Review identified that there should be a clear dutyholder during occupation who can be held to account and will have statutory obligations to maintain the fire and structural safety of the building. Building ownership in the UK is complex and the definition has been devised to ensure that the right person is defined as the Accountable Person according to their obligations that have been demised under concepts in property law.

     Example From commencement of this part of the Act, the Accountable Person(s) will be defined as such and therefore responsible for the statutory obligations under the building safety regime. This will in the main be the freeholder of the property, but in the case where the interest of the building has been demised to other lessees, and they retain the obligation to repair and maintain a common part as defined in this section, the definition will also make those persons Accountable Persons. This will include individuals, investment companies, local authorities and housing associations. In the future the Government may take the decision to widen the scope of the regime and the Secretary of State will, by regulations change the definition to identify the appropriate Accountable Person for those new buildings brought into the scope of the Building Safety Regime.

Section 73: Meaning of "principal accountable person"

Effect 

633. This section sets out the definition of a Principal Accountable Person. For the purposes of this part of Act they will be responsible for meeting specific statutory obligations for the whole of the occupied higher-risk building where there are either more than one Accountable Person or where they are the sole Accountable Person.
634. Subsection (1) sets out that the persons who may therefore be the Principal Accountable Person for a higher-risk building are either: the only Accountable Person in the building; or when there is more than one Accountable Person, they are the entity that is either the owner of or has the repairing obligations for the structure and exterior of the building.
635. Subsection (2) sets out that the relevant parts of the structure and exterior of a building refers to its structure and exterior except so far as parts included in a demise of a single dwelling or of premises to be occupied for the purposes of a business.
636. Subsection (3) sets out that the First tier Tribunal has the power to define who is the Principal Accountable Person for the building where there is more than one owner who meets the definition for being a Principal Accountable Person under subsection (1)(b). The First tier Tribunal will be able to determine any such definition under the powers set out in section 72(2).
637. This section is linked to section 109 as each Accountable Person must cooperate and coordinate with every other Accountable Person in the building.
638. Under Section 93, the Secretary of State will put into regulations a requirement for each Accountable Person for the building who is aware of a lack of cooperation from another Accountable Person, to have their own duty to report such lack of cooperation to the Building Safety Regulator.

Background

639. This is a new provision.
640. The Independent Review identified that there should be a clearly defined dutyholder during occupation who can be held to account and will have statutory obligations for ensuring that fire and structural safety is being effectively managed for the whole building. Building ownership in the UK is complex and the definition of a Principal Accountable Person will ensure that there is a lead Accountable Person, the Principal Accountable Person, specifically responsible for various obligations under the regime. This will include applying for registration, and preparing the safety case report, avoiding the possibility of any relevant parties being able to absolve themselves of obligations and duties under this part.

     Example In a building with a single Accountable Person, that Accountable Person will be responsible for all the Accountable Person duties in Part 4. Where there are two or more Accountable Persons, provisions are in place to determine that one of them will be assigned as the Principal Accountable Person with overall responsibility for meeting specific statutory obligations for the whole building. The Principal Accountable Person will have the same statutory obligations for assessing and managing building safety risks in their own area of the building as other Accountable Persons in the building. In a building where there is a freeholder which retains repairing obligations for the exterior and structure of the property, and there is a superior leaseholder which retains repairing obligations for all the other "inner" common parts, both entities will be Accountable Persons and the freeholder will be the Principal Accountable Person. In a building where there is a freeholder which does not retain repairing obligations, a superior leaseholder with repairing obligations for the exterior and structure of the property and a management company where every lease in the property states that the management company is responsible for the remainder of the common parts, the superior leaseholder and the management company will be Accountable Persons. The superior leaseholder will be the Principal Accountable Person.

Section 74: Part of building for which an accountable person is responsible

Effect 

641. This section sets out that the parts of a higher-risk building for which an Accountable Person is responsible for will be determined in accordance with regulations.
642. These regulations will provide clarity to Accountable persons about the areas that fall under their remit for the purposes of fulfilling their duties under the Act.

Background

643. This is a new provision.

Section 75: Determinations by the Tribunal

Effect

644. This section sets out that an "interested party" may apply to the tribunal for a determination as to who is the Accountable Person(s) for the building, who the Principal Accountable Person is, or to determine the parts of the higher-risk building for which any Accountable Person is responsible for.
645. Subsection (2) sets out that where upon application to the tribunal for a determination as to who the Principal Accountable Person, and where it appears that there is more than one Accountable Person that satisfies the definition in Section 73, the tribunal can make the decision as to who the Principal Accountable is as it considers appropriate. This could be in circumstances where they hold a legal estate in possession of the structure and exterior or have a relevant repairing obligation in relation to the relevant parts of the structure and exterior of the building), the tribunal will decide as it considers appropriate, who the Principal Accountable Person for the building is.
646. Subsection (3) defines an interested person that may apply to the tribunal for such a determination as being either the regulator, a person who holds a legal estate in any part of the common parts of the building or, a person who is under a relevant repairing obligation in relation to any part of the common parts (or who claims to be under such an obligation).
647. Subsection (4) aligns the definition of relevant repairing obligation and common parts with the definition as set out in section 72.

Background 

648. This is a new provision.
649. The Independent Review identified that there should be a clearly defined dutyholder during occupation who can be held to account and will have statutory obligations to maintain the fire and structural safety of the building. This section provides certainty through the tribunal of where it is unclear who is the Accountable Person(s) for the building are, who the Principal Accountable Person is, or the parts of the higher-risk building for which any Accountable Person is responsible for.

     Example If no one is clearly identified as the Principal Accountable Person or refuses to acknowledge that they are the Principal Accountable Person, the Regulator can apply to the tribunal for a determination as to who meets the statutory test for being Principal Accountable Person in the building. The tribunal’s determination would bind that person to act as the Principal Accountable Person and be liable for the obligations on a Principal Accountable Person. There may also be complex questions from a person who holds a legal estate in some part of the common part of the building such who the Accountable Person is for that part - this section can be invoked in these circumstances to allow the tribunal to decide and resolve complex issues

Registration and certificates

Section 76: Requirement for completion certificate before occupation

Effect

650. This Section creates an offence for an Accountable Person, as defined in section 72. This offence is allowing occupation of a single residential unit or more in part of a higher-risk building, as defined in section 65, for which they are the responsible Accountable Person, without a relevant completion certificate. This certificate will be evidence that the relevant building work complies with all applicable building regulations’ requirements. This will apply to new builds; extensions to higher-risk buildings; and to building work that creates a higher-risk building.
651. Subsection (5) of this section gives the Secretary of State the power by regulations to set out the description of the completion certificates to which the offence in this section will apply. 

Background

652. The Independent Review of Building Regulations and Fire Safety made several recommendations for stringent new building control procedures to increase regulatory oversight of the design and construction of higher-risk buildings and of building work subsequently carried out on them.  Dame Judith Hackitt’s recommendation was that duty holders meet applicable building regulations’ requirements before starting building work and before occupation begins. 
653. Under the new regime, Gateway two will take place at the current deposit of plans stage before building work starts. Gateway three will take place at the current completion certificate stage when building work is complete. At Gateway three, the duty holder will make a completion certificate application reflecting the "as-built" building. The Building Safety Regulator will assess the application, carry out a final inspection of the building work and, if satisfied, issue a completion certificate as evidence that the building work complies with all applicable building regulations’ requirements.
654. A completion certificate must be issued before the Principal Accountable Person can subsequently register the building for occupation as required under section 76 of the Act. It will be an offence to occupy a building that has not been registered. The Act therefore creates a "hard stop" to occupation via section 76. The registration of higher-risk buildings however will be a one-off process. As buildings are often occupied in stages, this means that registration would not be a "hard stop" for subsequent phases of occupation.   
655. This section ensures that the "hard stop" to occupation intended at Gateway three applies to high-rise residential buildings which are 18 metres or more in height, or at least seven storeys, including when buildings are occupied in phases.

     Example A new higher-risk building is to be occupied in phases where occupation commences in the completed part of the building while building work continues in the other parts of the building. The Building Safety Regulator has issued a completion certificate for the completed part of the building under the Gateway 3 completion certificate application process. The Principal Accountable Person has then been able to register the building for occupation as it has the necessary completion certificate. The building has multiple Accountable Persons and one of them begins to occupy another part of the building for which there is not a requisite completion certificate as evidence that the relevant building work complies with all applicable building regulations’ requirements.    The Accountable Person who has permitted occupation of this specific part of the building without the necessary completion certificate can be prosecuted.

Section 77: Occupation: registration requirement

Effect

656. The Principal Accountable Person, as defined in section 73, must ensure that the higher-risk building is registered before it becomes occupied and commits an offence if they fail to do so. Subsection (2) sets out that is a defence for a Principal Accountable Person charged with an offence under this section to prove that they had a reasonable excuse for failing to register the building.
657. Subsection (3) sets out the maximum penalty for the criminal offence of breaching the registration requirement. The offence will be triable either way; the broad range of sentencing outcomes gives the courts options to address the different degrees of culpability possible with a strict liability offence. If tried by magistrates, the offence will carry a maximum penalty of an unlimited fine and/or 12 months’ imprisonment (six months until the commencement of paragraph 24(2) of Schedule 22 of the Sentencing Act 2020). If tried in the Crown court, the maximum penalty will be an unlimited fine and/or two years’ imprisonment. Any fine placed on the Principal Accountable Person for a breach of this requirement would not be recoverable from residents (i.e. through service charges), as set out in the implied terms.

Background

658. This is a new provision.
659. It enables the Building Safety Regulator to take a systematic approach to the oversight of buildings in scope of the new regime. The obligations on Accountable Persons in Part 4 of the regime apply where higher-risk residential buildings become occupied. The meaning of "occupied" for these purposes is set out in section 71. Registration will provide information about the building to the Building Safety Regulator who will then be able to use this for the effective regulation of higher-risk buildings.

     Example For new buildings, the Principal Accountable Person will be required to register their building before it becomes occupied. If the Principal Accountable Person fails to do so, they will commit an offence, as detailed above, unless they have a reasonable excuse. For existing occupied buildings, the Principal Accountable Person will be required to register their building within a transitional period following the new regulatory regime coming into force. If the Principal Accountable Person fails to register the building within that period, they will commit an offence, as detailed above, unless they have a reasonable excuse. Information required in the registration process will be set out in regulations and will likely include core details of the building, details of the Accountable Persons, Principal Accountable Person, and an address in England or Wales at which notices can be served on the Principal Accountable Person/Accountable Persons. Regulations will also set out a requirement for the Principal Accountable Person to inform the regulator in the event of any updates or changes to information provided in the initial registration application, which the regulator will use to keep the register up to date. The process is likely to be digitalised. Information obtained from registration will allow the regulator to produce the national register of higher-risk buildings, and will also ensure the Accountable Persons are identified to the regulator. This information will also be used to support the regulator in prioritising its notifications to the Principal Accountable Person requiring an application for a Building Assessment Certificate, as set out in section 79.

Section 78: Registration of higher-risk buildings

Effect

660. This Section makes provisions for registration, and applications that must be made by the Principal Accountable Person.
661. The Building Safety Regulator may include a building on the register of higher-risk buildings if the required information has been provided and must also publish a copy of the register in a manner it considers appropriate. Buildings may be removed from the register where they are no longer occupied or are no longer a higher-risk building as set out in section 65.
662. Subsection (4) allows the Secretary of State, through regulations, to make provision about the register, including the information that it contains the procedure for updating or otherwise revising the register and the procedure for removing a building from the register.
663. Subsection (5) gives the Secretary of State a regulation-making power to set out the requirements of the registration application. This includes the form and content, information, and documents to be provided, the way in which the application needs to be made and the circumstances and method for withdrawal of an application.

Background

664. This is a new provision.
665. The Independent Review identified that there should be clear dutyholders during occupation who will have statutory obligations to maintain the fire and structural safety of the building. The registration system ensures that dutyholders identify themselves to the Building Safety Regulator, who is then able to use this information to operationalise compliance and enforcement activity.
666. An important recommendation from the Independent Review was that the name and UK contact information of the dutyholder(s) in occupation should be notified to the Building Safety Regulator and to residents and any other landlords of dwellings in the building. Notification of this information to the Building Safety Regulator will likely be accomplished through secondary legislation made under this section. The regulator will also be responsible for keeping the register up to date should any information provided at registration subsequently change.

     Example Before new buildings become occupied, the Principal Accountable Person will need to come forward and register their details and that of the higher-risk building with the Building Safety Regulator. For existing occupied buildings, the Principal Accountable Person will be required to register their building following a transitional period once the new regulatory regime comes into force. Once the applicant has met the requirements of registration, the Building Safety Regulator will add them to the building register. The Building Safety Regulator will publish the register. Information required in the registration process will be set out in regulations and will include core details of the building, details of the Accountable Persons, Principal Accountable Person, and an address in England or Wales at which notices can be served on the Principal Accountable Person/Accountable Persons. The process is likely to be digitalised. Information obtained from registration will allow the regulator to produce the national register of higher-risk buildings, and will also ensure the Accountable Persons are identified to the regulator. This information will also be used to support the regulator in prioritising its notifications to the Principal Accountable Person requiring an application for a Building Assessment Certificate, as set out in section 79.

Section 79: Occupied building: duty to apply for building assessment certificate

Effect

667. As part of the new building safety regime, the Principal Accountable Person will be responsible for registering the higher-risk buildings that they are responsible for with the Building Safety Regulator (see section 77 for the obligation to do so). The Principal Accountable Person will also be required to apply for a Building Assessment Certificate as per this section.
668. This section allows the Building Safety Regulator to require applications for the Building Assessment Certificate. This section will enable the regulator to issue a notification to the Principal Accountable Person, directing them to apply for the Building Assessment Certificate. The Principal Accountable Person must then apply for the Building Assessment Certificate within 28 days of the notice being given.
669. Failing to apply for a certificate in the requisite timescale, when directed to do so by the Building Safety Regulator, without a reasonable excuse, will be an offence. If found liable on summary conviction a Principal Accountable Person can face an unlimited fine or imprisonment up to 12 months, or both; and on conviction on indictment can face a fine, imprisonment for up to 2 years, or both. In relation to an offence committed before paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 comes into force, the reference to 12 months is to be read as a reference to 6 months.

Background

670. This is a new provision.
671. The Independent Review identified that there should be clear dutyholders during occupation who will have statutory obligations to maintain the fire and structural safety of the building. The requirement to apply for a Building Assessment Certificate, and the building assessment that follows, provides a mechanism for the Building Safety Regulator to assess whether the dutyholders are, at that point in time, complying with the relevant Part 4 duties. The Building Assessment Certificate provides a transparent outcome to that assessment

     Example Building Assessment Certificates issued by the Building Safety Regulator are intended to provide an indication to residents that the regulator assessed the Accountable Person(s) for their building to be meeting specified statutory requirements at the time of assessment. The statutory requirements include, among others, that reasonable steps are being taken under section 84 to prevent building safety risks materialising and to reduce the severity of any incident resulting from such a risk materialising. The circumstances and likely timings under which a Principal Accountable Person can expect the Regulator to issue the notice requiring them to apply for certification (the "call-in") will be set out in the regulator’s Strategic Plan, which the regulator must follow, and which will be approved by the Secretary of State. For any building that passes through Gateway three and is registered, the call-in will likely be within a defined period following occupation. For existing occupied buildings, the regulator will be able to create tranches of buildings, for assessment according to tranche, calling in buildings in stages over an extended period. Existing buildings will likely be tranched according to factors such as height and other risk factors. It is intended that all existing occupied buildings will be initially assessed over a 5-year period. The Building Safety Regulator’s approach to calling in existing buildings in tranches will necessarily be flexible to accommodate emerging risk factors and intelligence, allowing buildings to be called in earlier than originally outlined in the Strategic Plan in some cases, if necessary. Should the regulator’s overarching approach to tranching shift as a result, the regulator would revise its Strategic Plan to reflect the updated operational timescales. The Building Safety Regulator will also be responsible for calling in buildings for reassessment periodically. A maximum period by which the regulator must assess any given building for its Building Assessment Certificate will be set out in regulations made by the Secretary of State. Within this maximum period, the regulator will be able to take a risk-based approach to calling in buildings for reassessment, and this approach will be outlined in the Strategic Plan. There may be scenarios under which reassessment is automatically triggered, such as a significant refurbishment, and these circumstances will also be set out in the Strategic Plan. A Building Assessment Certificate will not be issued by the Building Safety Regulator if the Accountable Person(s) are failing to meet the specified statutory obligations, save for where the regulator considers that the breach can be remedied promptly and is done so, further to the terms of a notice issued pursuant to subsection (4) of this section.

Section 80: Applications for building assessment certificates

Effect

672. This section sets out the requirements with regards to the types of information and documentation that needs to be submitted by the Principal Accountable Person with their application for a Building Assessment Certificate as set out in Section 79. Subsection (1) sets out that the application must include: a copy of the most recent Safety Case Report, prescribed information about the Mandatory Occurrence Reporting System, prescribed information that demonstrates the Accountable Persons are meeting their duties with regards to provision of information, and a copy of the resident engagement strategy, as set out in section 91. The Secretary of State has the power to make regulations prescribing the information set out in this subsection. Subsection (2) allows the Secretary of State to make further provisions regarding the application process by regulations. This includes the form and content, the way in which the application should be made, and anything that must accompany it and circumstances and method of withdrawal of applications.

Background

673. The Independent Review recommended that there needs to be a Building Safety Regulator for the whole of the building (referred to as the Joint Competent Authority in the Review) in relation to fire and structural safety in occupation which can hold dutyholders to account with robust sanctions where necessary. The Building Assessment Certificate is a mechanism that allows the Building Safety Regulator to assess whether, at the time the application is considered, the Accountable Persons are complying with the relevant duties placed on them. The issuance of the certificate by the regulator provides assurance that the Accountable Persons are meeting their requisite statutory obligations at that time.

     Example This section sets out some of the documents that must be provided with an application for a Building Assessment Certificate, including a Safety Case Report, where the most recent one has not already been provided to the Regulator. It is intended that the Secretary of State will also make regulations setting out other documents and information that will be required, along with practical details such as how an application will be made. The Building Safety Regulator will assess the documents provided as part of the application for the Building Assessment Certificate and decide whether Accountable Persons are complying with all relevant duties.

Section 81: Building assessment certificates

Effect 

674. Once the Principal Accountable Person has applied for a Building Assessment Certificate, pursuant to a direction and as required by section 79, subsection (2) of this section requires the Building Safety Regulator to assess whether the relevant duties are being complied with. This subsection also enables the Building Safety Regulator to inspect the building in connection with that assessment.
675. The Building Safety Regulator must issue a Building Assessment Certificate if it is satisfied that, at the time of assessment, the Accountable Persons for the building are complying with the relevant statutory obligations. If the Building Safety Regulator is not so satisfied, it must refuse to issue the Building Assessment Certificate, unless subsection (4) applies; if so, it must notify the Principal Accountable Person. Subsection (3) details these duties on the regulator.  
676. Subsection (4) makes provision for the regulator to issue a notice to the Principal Accountable Person if it finds that a relevant duty is not being complied with on assessment, but the regulator considers that it can be remedied promptly. This allows for the Building Safety Regulator to issue a Building Assessment Certificate if, notwithstanding a breach of relevant compliance, the contravention is rectified promptly according to the terms of the regulator’s notice. 
677. The obligations on the Principal Accountable Person and Accountable Persons are detailed in subsection (5) and include duties to: assess building safety risks under section 83; manage building safety risks under section 84; produce a Safety Case Report under section 85; comply with the Mandatory Occurrence Reporting System under section 87(4); provide information to the regulator, residents and other persons under section 88; and produce a Residents’ Engagement Strategy under section 91.
678. Subsection (6) gives a power to the Secretary of State to set out, in regulations, the matters pertaining to the notices in this section and the Building Assessment Certificate, including form and content, and the way in which they are to be given, and the period in relation to which a certificate must be given. 

Background

679. The Independent Review identified that residents in higher-risk buildings need assurance in terms of the fire and structural safety of their buildings. Provisions relating to a Building Assessment Certificate help to ensure statutory obligations under the new regime are being met, by confirming that at the time of assessment, the regulator was satisfied that the Accountable Persons were complying with the relevant statutory obligations. 

     Example The way in which the Principal Accountable Person can expect to be issued notices and certificates by the regulator, under this section, will be set out in regulations. The information that will be included on the Building Assessment Certificate will also be set out in regulations. This is likely to include the date on which the assessment was carried out by the regulator, and details of the Accountable Person(s) at the time of assessment. Once the Principal Accountable Person has applied for the Building Assessment Certificate by submitting the prescribed information and documents to the Building Safety Regulator, the regulator will consider the application and decide whether the relevant statutory duties are being complied with at the time of assessment. The regulator may also undertake an inspection of the building before making its decision. If the Building Safety Regulator is satisfied that all relevant duties are being complied with at the time of assessment, then the regulator must issue the Building Assessment Certificate. If the regulator finds a relevant duty is not being complied with on assessment, but the regulator considers that it can be remedied promptly, then it may issue a notice to the Principal Accountable Person instead of immediately refusing the application for the Building Assessment Certificate. The notice to the Principal Accountable Person will briefly describe the contravention and specify a short period by which the contravention should be remedied. If the Principal Accountable Person complies with the notice, and the contravention is remedied within the specified period, then the regulator may issue the Building Assessment Certificate. If the contravention is not remedied within the specified period, then the regulator must refuse to issue the certificate. Under section 82, once the Building Assessment Certificate has been issued by the Building Safety Regulator, it must be displayed in a prominent place within the building.

Section 82: Duty to display building assessment certificate etc

Effect

680. This section places a duty on the Principal Accountable Person to display the building’s most recent Building Assessment Certificate, any relevant compliance notice, and a prescribed notice.
681. Subsection (1) places a duty on the Principal Accountable Person to display together several documents in a conspicuous position within the building. Paragraph (a) requires that a notice, in a form and containing information prescribed in regulations made by the Secretary of State, about the Accountable Person, is displayed. Paragraph (b) requires that the most recent Building Assessment Certificate for the building is displayed. Paragraph (c) requires that any relevant compliance notices issued by the Building Safety Regulator are displayed.
682. Subsection (5) defines a "relevant" compliance notice as a compliance notice that has been given to an Accountable Person, where the regulator has provided a copy to the Principal Accountable Person (if the notice was not given to the Principal Accountable Person), and where the regulator has not notified the Principal Accountable Person that the notice has been withdrawn.
683. The Building Safety Regulator may place a building in special measures by applying to the First-tier Tribunal for an order appointing a Special Measures Manager. Subsection (2) places a duty on the Principal Accountable Person not to display the Building Assessment Certificate for the building when such an order is in force. The requirements to display a notice about the Accountable Persons still applies.
684. Failure by the Principal Accountable Person to comply with the requirements to display in subsection (1) or the requirement to not display a Building Assessment Certificate in special measures in (2)(b), without a reasonable excuse, is an offence. If found liable on summary conviction the Principal Accountable Person can face an unlimited fine or imprisonment up to 12 months, or both; and on conviction on indictment can face a fine, imprisonment for up to 2 years, or both. In relation to an offence committed before paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 comes into force, the reference to 12 months is to be read as a reference to 6 months. In either case, the Principal Accountable Person would be liable to pay a daily fine following conviction until the duty is complied with.

Background

685. This is a new provision.
686. The Independent Review identified that residents in higher-risk buildings need assurance in terms of the fire and structural safety of their buildings. Provisions relating to a Building Assessment Certificate help to ensure statutory obligations under the new regime have been met, by confirming that at the time of assessment, the regulator was satisfied that the Accountable Persons were complying with all the relevant statutory obligations.
687. The duty to display the Building Assessment Certificate ensures that residents are informed about the Building Safety Regulator’s most recent assessment of their building, and are assured that at the time of assessment, the regulator was satisfied that all relevant statutory duties were being complied with.
688. The duty to display a notice containing the name and contact details of the Accountable Persons ensures residents know who is responsible for oversight and managing the building safety risks for their building, and how to contact them to raise any concerns.
689. The duty to display a relevant compliance notice ensures that residents are informed about any subsisting concerns of the Building Safety Regulator about the building.

     Example This section requires the Principal Accountable Person to display several documents in a conspicuous position within the building, primarily so that they can be viewed by residents. Once the Building Safety Regulator has issued the Building Assessment Certificate, the Principal Accountable Person must display it in a conspicuous position within the building. Alongside the Building Assessment Certificate, the Principal Accountable Person will need to display a notice containing prescribed information about the Accountable Persons. The information to be contained in the notice and the form it must take will be specified in regulations. It is intended that it will specify the name(s) and contact details of the Accountable Person. This will provide transparency to residents and owners of residential units in the building, so that they know who is responsible for managing the building safety risks for their building, and how to contact them to raise any concerns. Finally, the Principal Accountable Person must display any relevant compliance notices issued by the Building Safety Regulator. A "relevant compliance notice" is defined in this section as a compliance notice that has been given to an Accountable Person, one which the regulator has provided a copy of to the Principal Accountable Person, and a compliance notice where the regulator has not informed the Principal Accountable Person that it is withdrawn. If the compliance notice is issued to an Accountable Person who is not the Principal Accountable Person, the regulator will issue a copy of the notice to the Principal Accountable Person, who will have a duty to display it in the building. The Building Safety Regulator may place a building in special measures by applying to the First-tier Tribunal for the appointment of a Special Measures Manager. The Tribunal may issue a Special Measures Order, as detailed in Schedule 7. This section ensures that, while a Special Measures Order is in place, the building’s Building Assessment Certificate is not displayed, thereby signalling clearly that the Special Measures Order prevails over any previous assessment of the building by the regulator. Similarly, the Special Measures Order causes any previous compliance notices to cease to have effect, save for the liability prior to the order being made, as detailed in Schedule 7. Any withdrawn compliance notices would no longer be displayed. The Building Safety Regulator will undertake building re-assessments periodically. When a re-assessment is undertaken, the regulator will issue a new certificate if it is satisfied that all relevant duties were being complied with. The Principal Accountable Person must display the most recent Building Assessment Certificate in lieu of the old one, so that any previous certificates issued will be taken down, having been superseded by the most recent certificate

Duties relating to building safety risks

Section 83: Assessment of building safety risks

Effect

690. This section provides that every Accountable Person is under an ongoing obligation to carry out an assessment of the building safety risks in/of/arising from, and relevant to, the part of the higher-risk building for which they are responsible. The definition of building safety risks is that provided for in section 65.
691. The assessment must be suitable and sufficient so that the Accountable Person is able to comply with their safety duties imposed by this Part of the Bill, including managing building safety risks and providing information about the building to other persons (under section 84 and section 89 respectively). The assessment must include consideration of hazards that originate in an area outside their responsibility developing into a risk which enters the area for which they are responsible.
692. This duty will apply as soon as the building is in multiple occupation by residents, and the first assessment must be carried out as soon as it is reasonably practicable after that point. New Accountable Persons must carry out their risk assessment as soon as it is reasonably practicable to do so after having become the Accountable Person.
693. Further assessments must be carried out by the Accountable Person at regular intervals, when directed to do so by the Building Safety Regulator, when the Accountable Person suspects the assessment is no longer valid, or they become aware of a significant change to the building.
694. The Accountable Person is defined in section 72 as a person with a legal estate in possession of any part of the common parts of a higher-risk building or a person who does not hold legal estate but is under a relevant repairing obligation in relation to any common parts. The definition of occupied is set out in section 71.
695. Where there are multiple Accountable Persons within a building it is expected that they will co-operate and co-ordinate with every other Accountable Person carrying out their obligations. This includes their carrying out their risk assessment duties under this clause and sharing information about building safety risks relating to the whole building in good time.

Background

696. This is a new provision.
697. The Independent Review identified that a new approach, built on existing risk management principles, was needed to manage building safety risks to residents of higher-risk buildings and ensure that the whole building is properly, regularly and proactively considered by dutyholders against the principles of what is reasonably practicable to reduce and manage risk.
698. The Independent Review recommended new responsibilities be placed on dutyholders to proactively manage risks and work with residents (both those residing in the property and, depending on the ownership model, the landlord or leaseholder of the flat) to ensure that the building remains safe throughout its life cycle.

     Example 1 Both higher-risk buildings that have passed through the Gateway process and are recently occupied, as well as existing higher-risk buildings that have long been occupied by residents will be covered by this clause. Undertaking a suitable and sufficient risk assessment of the building safety risks is the initial step of a systematic approach that the Accountable Person will need to adopt, to achieve the outcome of managing the building safety risks. That is to say the Accountable Person will follow a set process of identifying the hazards within their building, deciding who might be harmed by those hazards, evaluating the likelihood and consequence of those hazards developing into a building safety risk, deciding on the measures that are needed to lower the risks of the hazards becoming a building safety risk to an acceptable level, deciding what measures are needed to mitigate further risk of harm to residents in the event a building safety risk is realised and ensuring those measures remain fit for purpose whilst the building is occupied. The Accountable Person should review their assessment of the risks where there has been a significant change to matters which may impact on the spread of fire or structural collapse, and their management of those risks. Even where they are of the opinion that a change to the building would not alter the level of risk, the assessment should be undertaken to verify if that assumption is correct. Example 2 The following would be appropriate in terms of a regular review where a building is fully occupied (and settled) and/or the building has been occupied for some time. The Accountable Person has scheduled a review of the building’s risk assessment to comply with the duty and checks that the assessment of the potential causes of fire remain valid. The potential causes of the outbreak of fire or rapid fire development beyond a single fire compartment are confirmed by the assessment to be: hoarding, uncontrolled combustible materials in the common corridors; unchecked fire spread through voids and penetrations; uncontrolled or unreported penetrations through walls by residents (or their contractors); uncontrolled changes to front doors of flats (meaning they are no longer 30 minutes fire resisting), damage to fire resisting doors in the common areas; obstructed open vents (especially in winter when common areas can get very cold and windy). No new foreseeable causes of escalation are found and that the existing control and mitigation measures are adequate to deal with the identified potential causes of fire spread, and their cumulative effect. They schedule a further review in 3 months. Example 3 The Accountable Person reassesses the building safety risks when there has been a significant change in the building, for instance when refurbishment work was carried out, such that a previously in-use alarm system was taken out of use; or when new residents with mobility impairments move in meaning that assumed compartmentation that relied on residents having the ability to escape fire/respond to emergencies in certain ways which no longer applied. Example 4 The Accountable Person reviews their assessment of the risks as there has been a significant change to matters which may impact on the spread of fire or structural collapse and their management of those risks, due to the change to the timing of bin collections which means that a bin store is no longer big enough to store all the building’s cumulative waste for the whole period between collections, with the potential for rubbish bags to be left outside, increasing the risk of fire spread. In that case, the Accountable Person would make a new assessment of risks and the ways of managing those risks given the likely build-up of bin bags, and to update their steps/actions to ensure the risks do not materialise.

Section 84: Management of building safety risks

Effect

699. This clause imposes an ongoing duty on Accountable Persons to take all reasonable steps and actions necessary to manage building safety risks, (which are defined in Clause 62, preventing them materialising in their building and to mitigate the severity of such an incident if it does occur.
700. The duty to take the necessary steps will apply as soon as the building is occupied. Any necessary steps must be taken promptly.
701. This duty will run parallel to that of needing to undertake a suitable and sufficient risk assessment, under clause 82.
702. To make informed decisions, the Accountable Person should have identified the relevant hazards to their building in accordance with their risk assessment duty, decided who might be harmed by those hazards and evaluated the likelihood and consequence of those hazards developing into a building safety risk within the part of the building for which they are responsible. This clause then requires the Accountable Person to decide on and take all those steps or measures that are reasonably needed to both prevent the risk of fire spreading, structural collapse and any other prescribed matter and to mitigate the severe impact of such an incident on those in or around the part of the building for which they are responsible.
703. When deciding on the measures needed to meet the duty, Accountable Persons must have regard to a set of principles, set out in regulations, ordered to form a best practice approach to risk management, from most efficient to least efficient, the most efficient being to avoid risk.
704. Where those measures prove insufficient, the Building Safety Regulator will have the power to direct Accountable Persons to take the steps needed in order to comply with the duty through a compliance notice issued under Clause 99.
705. The Accountable Person is under an ongoing duty to ensure these measures are kept under review and Subsection (5) requires a systematic approach, that is used in other risk management frameworks, to be adopted to ensure the Accountable Person fully understands the measures employed and that those measures remain appropriate and effective whilst the building is occupied.
706. Where there are multiple Accountable Persons within a building it is expected that they will co-operate and co-ordinate with every other Accountable Person carrying out their obligations. This includes taking steps under this clause jointly/in co-ordination with other Accountable Persons, and jointly setting up and agreeing processes for adopting a systematic approach to ensuring the measures employed remain effective. The outcome should be that the safety arrangements across the whole building will work together (or at a minimum not conflict) to manage building safety risks.

Background

707. This is a new provision.
708. The Independent Review identified that a new approach, built on existing risk management principles, was needed to manage risks to residents in higher-risk buildings and ensure that the whole of the building is properly, regularly and proactively considered by a dutyholder against the principles of what is reasonably practicable to reduce risk.
709. The Independent Review recommended new responsibilities be placed on dutyholders to proactively manage risks and work with residents (both those residing in the property and, depending on the ownership model, the landlord or leaseholder of flats) to ensure that the building remains safe throughout its life cycle.

     Example 1 Both higher-risk buildings that have passed through the Gateway process and are recently occupied as well as existing higher-risk buildings that have long been occupied by residents will be covered by this clause. The Building Safety Regulator will have the power to issue guidance as to how those building safety risks may be managed and mitigated to an acceptable level and relevant factors to be taken into account in assessing what it is reasonable/ practicable to do and what circumstances may be relevant. For example, the Accountable Person takes on management of a higher-risk building and when the first residents move in, sets about assessing the building safety risks. They undertake an assessment of building safety in accordance with the duty to undertake a suitable and sufficient risk assessment. Golden thread and Gateway information is used to gather intelligence on the safety measures designed into the building and confirms the suitability of those measures by inspecting the premises and understanding how residents are using the building. They consult guidance issued by the Building Safety Regulator as to how those building safety risks may be managed and mitigated, the likely relevant factors to be taken into account in assessing what it is reasonable to do and what circumstances might be relevant. A key control measure, to ensure that the existing protective measures continue to provide safety, is to subject contractors to a building safety induction, tailored to the specific building. On checking the induction pack, the Accountable Person realises that the training materials are out of date and require updating. The induction pack is updated across the organisation and tailored to accurately reflect specific buildings. The Accountable Person makes resident safety the focus of the induction pack and uses the content to populate sections of the Resident Engagement Strategy. As part of the system for ongoing management of risk, the Accountable Person includes a regular review of training materials to make sure they remain relevant and up to date. Example 2 There may be instances where the Accountable Person, as a first step, needs to gather intelligence on the safety measures designed into the building. The building may be a stock transfer from a housing association that was subject to a management takeover. The building safety information handed over might be incomplete. There might be no evidence supporting the fire resistance of fire compartments, which have been assumed based on what should be there, rather than what is actually present. In this instance, they might contract for invasive structural surveys to give them a reliable starting point and evidence for the baseline resistance of the building to a major fire or structural collapse. In this instance, the Accountable Person knows that the building is designed to operate a stay-put strategy in the event of a fire. The invasive survey provides evidence that the compartmentation is reliable and has not been compromised. However, the survey identifies that the electronic security doors to the residential floors do not release in the event of power failure, for instance resulting from a fire in the electrical circuits. This finding would potentially lock residents on their respective floor plate. This security feature was part of the original building design but did not take fire safety into account. The entrapment risk is assessed as a high consequence, low likelihood event, but the Accountable Person decides to install a green break-glass box to over-ride the electronic locks from the residential side, to put any potential likelihood beyond doubt. Residents are informed of the reason for the override being installed. Inspection of the override feature is included in the maintenance and auditing schedule once the works are complete. Example 3 The Accountable Persons undertakes ongoing steps to meet the section 84 duty: A resident notifies the Accountable Person that combustible materials are being stored in common areas. A spot check is undertaken, and empty cardboard boxes are found stacked in a stairwell. The boxes are removed, and a reminder notice is put on the resident’s internet pages, the preventative signage prohibiting storage in common areas is improved scheduled walkthroughs of the common areas are increased both in terms of time and frequency. Example 4 The risk assessment undertaken for the purposes of complying with clause 82 highlights the necessary steps to reduce (or further reduce) building safety risks. The building safety risks are assessed as a part of a planned regular assessment. It is clear that the bin store is the likeliest source of a fire and there have been several incidents of residents dropping discarded cigarettes butts down the bin chutes, which have resulted in the fire brigade needing to be called out. As this is a building from the 1960s, the chutes are located in common areas and the store is next to the entrance and smoke often comes up the chute when there has been a fire. Having consulted guidance issued by the Building Safety Regulator as to best practice, fire shutters on fusible links are fitted to the base of the chute, and open sprinkler heads directed into the bin beneath the chute, and fusible link sprinkler heads above the other bins stored against the walls within the bin store are installed. The resident internet pages are updated to advise residents of the actions taken and to remind them not to throw any hot materials (including cigarettes) down the chutes. The safety signs in each chute room are also improved. At a regular site inspection, it is identified that one of the anti-vehicle barriers installed close to the building has been knocked out of position and needs to be replaced, to be fit for purpose and to reduce any risk of accidental mechanical damage to the building structure from vehicular transport. Residents are notified that the barrier will be replaced, a competent company is contracted to replace the barrier, and, in the meantime, cones are put out to ensure vehicles are kept a safe distance from the building to reduce the risk of damage. As part of the ongoing management of building safety, the maintenance team undertake regular inspections of service risers into the building. They note on their inspection that the padlock has been removed on the electrical supply room and people have been able to gain access. The padlock is replaced with a keypad system, the scheduled inspections are made more frequent, the resident internet pages are updated and all warning signage on services risers are made more prominent.

Section 85: Safety Case Report

Effect

710. This section provides that the Principal Accountable Person is under a duty to produce a Safety Case Report that demonstrates that building safety risks have been both assessed and all reasonable steps have been taken to prevent building safety risks, defined in section 65, materialising in the building and to mitigate the severity of such an incident if it does occur.
711. The duty to prepare a Safety Case Report containing an assessment of the building safety risks relating to the building and any steps taken under clause 83 starts to apply as soon as the building is occupied. Regulations may also be made by the Secretary of State under the power in subsection (3) to set out other requirements about the form and content of Safety Case Reports.
712. Once the Principal Accountable Person has written their Safety Case Report, they must notify the Building Safety Regulator, under clause 86.
713. The Safety Case Report will be the vehicle through which Accountable Persons are able to demonstrate compliance with their ongoing duty to prevent fire spread and structural collapse and reduce the severity of any incident. The clause provides a duty on the Principal Accountable Person to revise it following any further assessments of the building safety risks relating to the building under section 83 and following the taking of any further steps under section 84. The intention is that at any point the Safety Case Report demonstrates that the arrangements Principle Accountable Person/Accountable Persons have in place are reasonable for managing the specific building. Where there is a change to the Principal Accountable Person, it is expected that the new Principal Accountable Person will prepare a revised Safety Case Report, reflecting their assessment and risk management practices, including policies and procedures, as soon as reasonably practicable after becoming the Principal Accountable Person.
714. The Safety Case Report can be reviewed and revised under a Principal Accountable Person’s own volition, however the Building Safety Regulator, under this clause, can direct an Accountable Person to undertake an assessment of building safety risks, which in turn may result in additional safety arrangements being required and the Safety Case Report having to be reviewed and revised.
715. Where there are multiple Accountable Persons in a building, it is required that there should be a single Safety Case Report to be produced by the Principal Accountable Person for that building. It is intended that all Accountable Persons in the building should co-operate and co-ordinate carrying out their obligations. This includes carrying out their risk assessment and risk management duties and sharing information about building safety risks relating to the whole building in good time to enable a single Safety Case Report to be produced.

Background

716. This is a new provision.
717. The Independent Review recommended new responsibilities should be placed on dutyholders to proactively manage risks and work with residents to ensure that the building remains safe throughout its life cycle. It sets out that the dutyholder should do this by undertaking regular safety case reviews of the building, in which they must demonstrate to a regulator that they are reducing and managing building safety risks.
718. The new "safety case review" system is therefore the main way that the Building Safety Regulator will hold the Principle Accountable Person/Accountable Persons to account for identifying the hazards and risks in their building, describing how risks are controlled and the safety management system in place, so that building safety risks are reduced and all reasonable steps are taken to prevent major incidents arising from building safety risks, and reduce the impact should an incident occur. Safety case reports will be reviewed by the Building Safety Regulator as part of the Building Assessment Certificate application process.
719. Safety case requirements are employed in many high hazard industries. They provide the means by which dutyholders demonstrate to themselves and regulators that they are effectively identifying and managing risks to an acceptable level. In a safety case review system, the dutyholder provides information to the regulator to demonstrate that they have considered what could go wrong, what the worst-case scenarios are, the consequences if those scenarios are realised and to show that they have preventive, protective and reactive measures in place to manage the risks of the scenarios occurring. This is an ongoing process, and the safety case is reviewed often and when a significant change has occurred to ensure the management systems in place remain relevant. .
720. As part of their Safety Case report, the Accountable Person will need to set out that the building is safe for occupation (i.e., meets the outcome of clause 84), through the sum of the measures they have in place to support that claim, that decisions have been taken in accordance with the prescribed principles and direct the reader to the evidence that supports that argument.

     Overview   In safety case review systems, there are two key terms:  Safety case – the full body of evidence, comprising a comprehensive and structured set of documents. It will often include evidence from test results, detailed safety analysis reports etc. For the purposes of the regulation of higher-risk buildings this may also be referred to as the golden thread information (the concept of golden thread goes further, to include specific digital standards).  Safety Case Report – a summary of the key components derived from the full body of evidence, with appropriate references to supporting evidential documents, which makes the claim of and argument for safety.  It is the Safety Case Report in this regime that is the key document and will be required for all occupied high-rise residential buildings. The Accountable Person will produce a safety case report following an assessment of building safety risks and the taking of reasonable and proportionate steps to ensure those risks are managed on an ongoing basis. The Report should provide a summary of the risk assessment and safety measures across the building and will need to comply with the content requirements set out in secondary legislation. It will need to be submitted to the Building Safety Regulator, most often as part of an application for a Building Assessment Certificate. Example The Principal Accountable Person has written their safety case report, submitted it to the Building Safety Regulator and obtained a Building Assessment Certificate. After a period of time, they undertake a scheduled review of their assessment of building safety risks in the building. This review identifies an issue not previously accounted for, and the Principal Accountable Person concludes that they should introduce an additional safety measure to ensure the risk is controlled. The documentation and data created as part of the revised risk assessment and introduction of reasonable additional safety measures are part of the wider safety case, so the Principal Accountable Person revises the Safety Case Report to ensure it presents an accurate reflection of the building. They then notify the Building Safety Regulator that they have updated their safety case report. The Building Safety Regulator requests that the report be submitted for review, as the changes made regarding the assessment of building safety risks and steps in place to manage them have changed significantly.

Section 86: Notification and provision of report to the regulator

Effect

721. As soon as the Principal Accountable Person has complied with the duty to produce a Safety Case Report as described in section 85, they must notify the Building Safety Regulator. The notification must be sent as soon as reasonably practicable.
722. When a Safety Case Report is revised, owing to a change in the assessment of building safety risks, a change to an Accountable Person in the building, or a change to the steps being taking to manage building safety risks, the Principal Accountable Person must notify the Building Safety Regulator.
723. This section also provides a power for the Building Safety Regulator to require the Principal Accountable Person to send in their Safety Case Report for review by the Building Safety Regulator. If requested by the Building Safety Regulator, the Safety Case Report must be provided by the Principal Accountable Person as soon as is reasonably practicable.
724. This section also gives a power to the Secretary of State to set out in secondary legislation, with accompanying guidance, the form and process that a notification will need to follow in order to enable the Building Safety Regulator to make a decision as to whether the Safety Case Report needs to be called in for assessment.

Background

725. This is a new provision.
726. The Independent Review recommended new responsibilities should be placed on dutyholders to proactively manage risks and work with residents to ensure that the building remains safe throughout its life cycle.
727. The Building Safety Regulator’s assessment of safety case reports is one of the main ways Accountable Persons will be held to account. Safety case reports will need to demonstrate that potential building safety risks have been properly assessed and that proportionate measure are in place to reduce and control them on an ongoing basis. Safety case reports will be reviewed by the Building Safety Regulator as part of an application for a Building Assessment Certificate.

     Example 1 In the context of a high-rise residential building already in possession of a Building Assessment Certificate, following a change in the assessment of building safety risks, the Principal Accountable Person updates their safety case report. Once the report has been amended, the Principle Accountable Person notifies the Building Safety Regulator. The Building Safety Regulator decides to assess the Safety Case Report at this stage, rather than waiting until the Principal Accountable Person is required to apply for a renewal of the Building Assessment Certificate, as described in Section 80, due to the extent of the changes made to the Safety Case Report. Example 2 The Building Safety Regulator requests a copy of a Safety Case Report from a Principle Accountable Person, because an incident in another building for which they are responsible reveals that building safety risks had not been properly considered and as a result of the incident, recommendations have been made. If the Building Safety Regulator requests a copy of the Safety Case Report, it is likely that an update will be required. The review of the Safety Case Report by the Building Safety Regulator requires there to be an update to the current assessment of building safety risks for that building, and where needed further steps are taken to manage the risks. Example 3 An Accountable Person notifies the Building Safety Regulator that they have made revisions to the Safety Case Report for a building for which they are responsible, to accommodate new steps they have taken in the light of recommendations from an inquiry. Upon receiving the notification, the Building Safety Regulator requests submission of the revised Safety Case Report and assesses it. The regulator is not confident from their assessment that the steps taken are sufficient and decides to inspect the building to investigate further. The inspection confirms that the steps employed are insufficient and the Building Safety Regulator works with the Accountable Person to ensure all reasonable steps are in place. If needed the regulator could direct the Accountable Person to take these measures under section 84 and/or to issue a compliance notice under section 99 which requires that contraventions of the Accountable Person’s obligations are remedied, but in this instance these enforcement actions are not needed.

Duties relating to information and documents

Section 87: Mandatory reporting requirements

Effect

728. This clause will place a duty on the Principal Accountable Person to establish and operate an effective mandatory occurrence reporting system and a further duty on Accountable Persons to ensure reportable information related to the safety of an occupied building is given to the Building Safety Regulator in a manner specified by the Building Safety Regulator. The system will be assessed as part of the Building Assessment Certificate application.
729. The power is flexible as it is expected that reportable information may be varied and subject to change over time in line with developments of the safety landscape of buildings.
730. Information submitted in an occurrence report cannot be used as evidence in criminal proceedings against any person, except in relation to specific circumstances as laid out in the clause. Information from reports can be used by defendants in their own defence. An equivalent provision will be made in building regulations for the design and construction phases.

Proposed use of power

731. It is intended that the power given to the Secretary of State will be used to require Accountable Persons to report certain structural and fire safety occurrences to the Building Safety Regulator, similar to those duties that exist in other industries such as aviation. This will involve reporting to the Building Safety Regulator any structural or fire safety event that occurs in or about the part of a higher-risk building for which the Accountable Person is responsible and which represents a significant risk to life safety. Mandatory occurrence reporting will complement voluntary occurrence reporting, which will capture safety occurrences not of a high enough risk to be required reporting under mandatory occurrence reporting.
732. Secondary legislation will prescribe which occurrences which must be reported to the Building Safety Regulator. This will be based on occurrences which, if they were to occur within a higher-risk building, would likely meet the threshold of a significant risk to life safety. Guidance will be provided to Accountable Persons to assist them in determining whether an occurrence must be reported as laid out in secondary legislation.
733. The specified manner of reporting will likely be via an online portal. Current proposals for the timeframe for reporting are an immediate notification to the regulator as soon as a mandatory occurrence is identified, followed by a full report as soon as practicable and not later than ten calendar days from the time of the occurrence being identified.
734. The occurrences specified in secondary legislation may include the discovery of a structural safety or fire safety related defect.

Background

735. This is a new provision.
736. The Independent Review recommended that it should be mandatory for key dutyholders to report particularly dangerous safety-related events to the Building Safety Regulator. This section contributes to the fulfilment of this recommendation.

     Example A discarded cigarette starts a fire in the bin room of a higher-risk residential building. Smoke is detected by sensors and the bin chute plates automatically close to provide compartmentation, but the plates have not been appropriately tested and are not of the correct specification. As a result, smoke is allowed to pass up the bin chutes and into resident’s rooms. This presents a significant risk to life safety. A resident reports the incident through the building’s mandatory occurrence reporting system. The Accountable Person responsible for the area where the incident occurred immediately notifies the Building Safety Regulator that a mandatory occurrence has been identified, and a full report is sent to the regulator as soon as is practicable and no later than ten calendar days from the occurrence being identified. Upon receiving the report, the regulator could, at its own discretion, use it as a basis for further investigation or enforcement measures. Such a report would also help the regulator to identify potential trends of similar such incidents across the sector. Additionally, valuable lessons learnt contained within the report could be shared with industry by the regulator, helping others to proactively identify and resolve similar issues on other sites and improve best practices across the sector.

Section 88: Keeping information about higher-risk buildings

Effect

737. The new regulatory regime will regulate building safety risks in higher-risk buildings. This section places requirements about information keeping on the person responsible for higher-risk buildings – the Accountable Person. Higher-risk building is defined in section 65.
738. This section imposes a requirement that the Accountable Person must keep and maintain certain required information about the building (the prescribed information) and ensure it is up to date as far as possible. If the Accountable Person does not have the prescribed information this section imposes a requirement that they obtain this information, unless it is not practicable for them to do so.
739. The prescribed information is also called the "golden thread" of information. The specific documents, data and information that will make up the prescribed information will be set out in regulations.
740. The prescribed information will generally be information about the building and information relevant to the management and reduction of building safety risks (as defined in section 62) in the building.
741. This section also imposes a requirement that the prescribed information must be kept in accordance with prescribed standards. Regulations will set out the principles to which the information should be stored and kept, to ensure the information is accessible.
742. The Building Safety Regulator will also be able to issue statutory guidance about how to comply with the duties in this section under the power set out in section 108(1)(c). The guidance will provide best practice examples and detail to support the Accountable Person in fulfilling their duties under this section and the regulations.
743. Regulations may also be made under this section to set out when the duties to keep and obtain the prescribed information will apply.

Proposed use of power

744. Regulations made under this section will set out what the "prescribed information" is and what "prescribed standards" it needs to be stored/kept in accordance with, and when the duties to do so will apply.

Background

745. This is a new provision.
746. The Independent Review identified that a golden thread of information would ensure more effective building safety management throughout a building’s life cycle. Therefore, it is important to ensure that the persons responsible for building safety maintain and have access to accurate and up to date information.
747. Requiring the prescribed information to be stored to the prescribed standards will improve the accessibility of this important information which is likely to be key in enabling compliance by the Accountable Person with their safety case-related duties in sections 83-86.

     Example Information that must be obtained, kept up to date and in accordance with prescribed standards could for example include information about the alarm system that is installed in the building and when it was last tested or information about where the fire stopping is in the building. This information must be stored digitally (to the required prescribed standards set out in regulations and exemplified in statutory guidance). This information can then be used for example to inform the Accountable Person’s risk assessment under section 83. Capturing the information and storing it in an accessible fashion will also ensure that those working on the building can be made aware of key aspects of the building that may be affected by their work.

Section 89: Provision of information etc to the regulator, residents and other persons

Effect

748. This section sets out that the Secretary of State may make regulations requiring the Accountable Person to share prescribed information and documentation about their building in certain prescribed circumstances. This section enables the Secretary of State to make regulations to set out the manner, form and standards which must be met in provision of this information and documentation.
749. This section sets out that the Accountable Person may be required to provide prescribed information, or copies of that information, to the Building Safety Regulator, to other Accountable Persons in the building, to residents of the building and owners of flats in the building, or other prescribed persons. This section allows regulations to be made setting out the other prescribed persons which means the other types of person who the information and documentation should be supplied to.
750. This section also enables the Secretary of State to make regulations to set out exceptions to any duty imposed under any regulations made under this section.
751. Residents means all adults (aged 16 or over) lawfully residing at the property. This section also extends to the legal owner (where this is not the same as the residential occupier) of an individual residential unit, for example a non-occupying leasehold landlord who is renting out an individual flat.

Proposed use of this power

752. Regulations under this section will set out the circumstances in which an Accountable Person for a higher-risk building must provide others with prescribed information and documentation about the building. This will include a requirement that the Accountable Person has to provide all new residents with a range of building safety information. Regulations will also set out other circumstances in which the Accountable Person is required to provide residents with information and, requirements for the Accountable Person to provide the regulator with information about the building.
753. Regulations will also detail information that will need to be shared with the Regulator to enable it to effectively regulate and oversee buildings in scope. This will include a provision requiring the Accountable Person to notify the Regulator when it appoints an insolvency practitioner (administrator, trustee in bankruptcy, liquidator) under the Insolvency Act 1986. This will help enable the Regulator to effectively regulate and oversee buildings in scope
754. Regulations under this section will also lay out what information or documentation must be shared, the form of the prescribed information, the way in which it must be given, the standard to which it must be given, and any exceptions to any duty imposed under the regulations.
755. Regulations will also detail information that will need to be shared with the Regulator to enable it to effectively regulate and oversee buildings in scope. This will include a provision requiring the Accountable Person to notify the Regulator when it appoints an insolvency practitioner (administrator, trustee in bankruptcy, liquidator) under the Insolvency Act 1986.

Background

756. This is a new provision.
757. The Independent Review identified the importance of accurate and up to date information for ensuring building safety. Access to information is essential and this provision ensure that the Accountable Person is required to share prescribed information in certain circumstances.
758. Regulations will include requirements on the Accountable Person to share specified information with residents, the regulator and other prescribed persons. The availability and accessibility of this information to the regulator and residents is crucial to ensure people feel safe in their homes and ensure those responsible for building safety are held to account. This section and section 88 are intended to help ensure that residents, the regulator and other persons have this information, and those who need to be are provided with relevant information about that particular building.
759. Regulations will include a requirement on the Accountable Person to share specified details about the Insolvency Practitioner with the Regulator to ensure that it has a complete picture the state of affairs of the individual or company and to help to ensure the ongoing safety management of the building whilst insolvency proceedings are progressed.
760. Regulations under this section will also set out the circumstances when the Accountable Person must provide information to the regulator and the form in which this information should be submitted. Regulations may also make requirements to ensure information is presented to the regulator in a standard format as this will enable the regulator to more easily review and analyse the information. This will support the regulator in their role in ensuring building safety and holding Accountable Persons to account.

     Example The Accountable Person for a higher-risk residential building must collect and maintain information relevant to the safety of that building (prescribed information). They must provide prescribed information from this to their residents. When a person purchases a leasehold flat within their property, the building owner must ensure the new leaseholder is provided with the prescribed information.

Section 90: Provision of information etc on change in Accountable Person

Effect 

761. This section applies where the Accountable Person for a higher-risk building changes. It relates to section 88, and regulations made under that section which will set out "prescribed information" that must be obtained, kept up to date and kept in accordance with specified standards. This prescribed information is also known as the golden thread. 
762. This section sets out requirements on the "outgoing Accountable Person" i.e. one who is selling or otherwise changing their interest in the building so that they are no longer an Accountable Person. These requirements are that outgoing Accountable Person must provide certain information, or copies of certain documents, to their successor, the "incoming" Accountable Person and to the Regulator. This section gives the Secretary of State the power to issue regulations setting out the information and documents (or copies of documents) that must be provided by the outgoing Accountable Person to their successor Accountable Person, the circumstances when they must provide it, the timescale within which they must do so and any standards that the information must be provided in accordance with.  
763. This section also allows the Secretary of State to issue regulations to set out what information needs to be given by the outgoing Accountable Person to the Regulator.  
764. This section also gives the Secretary of State the power to issue regulations setting out that disclosure of information to the "incoming" Accountable Person or the Regulator under this section does not breach- any obligations of confidence owed by the outgoing person in relation to that information. Not complying with these requirements will be an offence with a maximum penalty of an unlimited fine and/or 12 months’ imprisonment in the magistrates’ court (six months until the commencement of paragraph 24(2) of Schedule 22 of the Sentencing Act 2020).  If tried in the Crown Court, the maximum penalty will be an unlimited fine and/or two years’ imprisonment. If the breach continues after conviction, the court will also be able to impose an ongoing penalty until such time as the breach is remedied; that penalty will be set at a daily rate of no more than a level 1 fine (currently £200). 

Proposed use of power

765. Regulations under this section will set out the circumstances in which an Accountable Person for a higher-risk building must hand over the prescribed information and documents (or copied of documents) about the building. In particular, these will provide for when an outgoing Accountable Person must provide the prescribed information and documents (or copies of documents) to the incoming Accountable Person, what that information should contain and standards that it must accord with.  
766. Regulations will also set out what information an outgoing Accountable Person must provide to the Regulator, when they have to provide it and in what manner. This will include informing the Regulator when there is a change in Accountable Person or Principal Accountable Person or changes in their contact details. 

Background

767. This is a new provision. 
768. The Independent Review identified that a "golden thread" of good quality information would ensure more effective building safety management throughout a building’s life cycle. Therefore, it is important to ensure that provisions are made so that golden thread information and documentation is provided by one Accountable Person to those who purchase or obtain an interest in the building from them. Penalties are available where the Accountable Person does not comply. 
769. It is also important that the Regulator is informed when there is a change in Accountable Person or change of Designated Accountable Person or a change to their contact details. Provisions made under this section will ensure that the Regulator is aware who is responsible for the safety of the building and has up to date contact details for this person or persons.  

     Example The Accountable Person for a higher-risk building has to collect and maintain information relevant to the safety of that building (prescribed information). When they sell the building, they must ensure that all this information is handed over to the buyer. Requirements setting out how the information is stored, and the format of the information are intended to make this information accessible to new owners.

Engagement with residents etc

Section 91: Residents’ engagement strategy

Effect 

770. This section requires the Principal Accountable Person, to produce and act in accordance with a Residents’ Engagement Strategy. This is a strategy that should promote the participation of residents and owners of a residential unit (e.g. flat owners) in decision-making about building safety risks in their building. In preparing and implementing the Residents’ Engagement Strategy we expect every other Accountable Person in the building (if there is more than one) to cooperate with the Principal Accountable Person as much as possible. The high-level requirements for the content of the Residents’ Engagement Strategy are set out in subsection (3) and confirm that the strategy will need to contain:  
     • the information that will be provided to residents about decisions relating to the management of the building;  
     • the scope of what residents will be consulted on; 
     • the methods that will be used to seek residents’ views; and  
     • details of how the appropriateness of the strategy will be measured and reviewed.

771. The Principal Accountable Person must review (and where necessary or appropriate revise) the Residents’ Engagement Strategy at specified times which can be set out by the Secretary of State in regulations. 
772. This section also requires the Principal Accountable Person to consult residents and owners of a residential unit on the Residents’ Engagement Strategy itself in prescribed circumstances. Any representations received as part of this consultation must be considered when the strategy is next reviewed. The Secretary of State has the power to establish in regulations in what circumstances the strategy will be consulted on. 
773. Each Accountable Person is responsible for providing a copy of the strategy to residents and owners of residential units in the part of the building for which they are responsible. 
774. The Secretary of State has the power to make regulations to add to the requirements around the content of the Residents’ Engagement Strategy. It is envisaged that these provisions will also be supported by Good Practice Guidance to provide practical help to Principal Accountable Persons in developing their Residents’ Engagement Strategy including worked examples and templates, for which the Residents Panel should be one of the statutory consultees (see section 11). 

Background 

775. The purpose of the Residents’ Engagement Strategy is to promote the participation of residents in building safety decisions that affect them and to make it clear to residents when and how they can expect to be involved.  
776. The Independent Review found that residents did not have a strong enough voice in the safe management of their homes and specifically that they often did not have the chance to offer views and participate in the decision-making process. 
777. This requirement is designed to tackle that by placing an obligation on Principal Accountable Persons to have a Residents’ Engagement Strategy that sets out how they will deliver inclusive and effective resident participation and involvement in relevant building safety decisions. Where there is more than one Accountable Person it is expected that Accountable Persons will cooperate with the Principle Accountable Person to agree the content of the Residents’ Engagement Strategy and play a role in promoting participation in line with the strategy.  

Section 92: Requests for further information

Effect 

778. This section provides that an Accountable Person shall provide certain information or a copy of certain documentation to a resident or an owner of a residential unit (e.g. a flat owner) in a higher-risk building on request. This will supplement the building safety information that residents and owners of flats will be provided with automatically under section 89. A list of this building safety information and documentation that can be obtained on request will be set out in regulations to be made by the Secretary of State. The regulations may also make provision about the way and form in which information is provided.
779. The Secretary of State may also make regulations which set out the circumstances when an Accountable Person is exempt from the requirement to provide the information or document requested. 
780. In a building managed by multiple Accountable Persons, each Accountable Person will be responsible for providing the requested information or copy of documents to residents and owners of residential units in the part of the building for which they are responsible. Accountable Persons have a duty under section 109 to co-operate and co-ordinate with the Principal Accountable Person in discharging their duties. 

Background

781. The purpose of this section is to ensure that residents and owners of residential units in a higher-risk building can request additional information on building safety beyond the information they receive automatically. This is intended to allow residents and owners to access this information without making the initial provision of information overly burdensome on Accountable Persons. 
782. In addition to recommending that residents should automatically receive key building safety information (see section 89), the Independent Review also recommended that further and more detailed information about the safety of their building should be made available to any resident on request. The further building safety information that may be requested by residents of higher-risk buildings under this section will be set out in regulations and is currently envisaged to include the following: 
     • Fire risk assessments for the higher-risk building; 
     • Outcomes of Building Safety inspection checks for the higher-risk building; 
     • The detail as to how any details as to how building safety assets in the higher-risk building are managed; 
     • The detail of any details of preventive measures in place for the higher-risk building to prevent fire spread and/ or other building safety risks from occurring; 
     • Information on the maintenance of fire safety systems within the higher-risk building; 
     • The fire strategy for the higher-risk building; 
     • Any recent structural assessments for the higher-risk building; and 
     • Planned and historical changes to the higher-risk building which are relevant to building safety. 

783. This section also provides that the Secretary of State may make regulations setting out the circumstances when an Accountable Person is exempt from the requirement to make some or all of this information or documentation available. The purpose of this section is to ensure that providing of this information does not create new safety, security or privacy risks. The exemptions are anticipated to include information related to: 
     • the security of the building and/or the residents of that building. For example, technical and operational information about the lifts in a building. That information could be misused by someone who wanted to cause damage to the building and/or harm to residents; 
     • the security of other buildings in the vicinity. For example, information about the technical system that controls sprinklers in a building. Disabling the sprinkler system could have a negative impact on surrounding buildings because of the risk of fire spread. 

784. Any disclosure made under this section will also have to comply with relevant data protection legislation.

Section 93: Complaints procedure operated by principal accountable person

Effect

785. This section requires the Principal Accountable Person to establish and operate a complaints system for the investigation of relevant complaints.  
786. A relevant complaint in this section is defined in the Act as a complaint that relates to a building safety risk (as defined in section 62) as regards the building or the performance by an Accountable Person for the building of any duty under Part 4 of the or regulations made under it.  
787. More detail on the requirements of the complaints system will be set out in secondary legislation, such as, but not limited to, how a complaint can be made, the way in which complaints must be handled and investigated and how a complaint can be escalated to the regulator. 
788. Though the requirement for establishing and operating the complaints procedure sits with the Principal Accountable Person, in buildings managed by multiple Accountable Persons, we expect each Accountable Person to work with the Principal Accountable Person where necessary. Accountable Persons will be responsible for putting right any issues relating to the performance of their building safety duties or issues in the part of the building they are responsible for.  

Background

789. The purpose of this section is to make sure there is a clear route for escalating concerns about building safety in higher-risk buildings.   
790. The Independent Review found that residents did not have a strong enough voice in the safe management of their homes and specifically that they often struggled to get their complaints addressed. This requirement is designed to tackle that by placing an obligation on Principal Accountable Persons to have a system in place to receive and investigate relevant complaints, including the ability to refer a complaint to the regulator.

Section 94: Complaints procedure operated by the regulator

Effect

791. This section requires the Building Safety Regulator to establish and operate a complaints system for the investigation of relevant complaints, as defined in the Act, that are referred to the regulator through the Principal Accountable Person’s complaints procedure or that are made directly to the regulator. Although complaints may be made to the regulator, the onus will always be on the appropriate Accountable Person to put right building safety issues that they are responsible for.  
792. In establishing or making significant changes to their complaints system the Building Safety Regulator must consult with the Residents’ Panel which will be established as one of the regulator’s Advisory Committees – see section 11 for more detail.  
793. The Secretary of State may by regulations make provision in relation to the establishment and operation of the regulator’s complaints system.  
794. A relevant complaint in this section is defined in the Act as a complaint that relates to a building safety risk (as defined in section 62) as regards the building, the performance by an Accountable Person of any duty under Part 4 of the Building Safety Act (or regulations made under it) or the performance by a Special Measures Manager for the building of a function conferred by a special measures order.  

Background

795. The purpose of this provision is to increase access and transparency with regard to building safety redress, providing a clear route of accountability for building safety complaints to be addressed.  
796. It is expected that building safety complaints will be handled by the Principal Accountable Person’s complaint system and issues put right by the appropriate Accountable Person. This provision ensures that where this is not possible or the system fails, that building safety concerns will still be heard by the Building Safety Regulator.  
797. The Independent Review found that residents did not have a strong enough voice in the safe management of their homes and specifically that they often struggled to get their complaints addressed. The duties on the Principal Accountable Person and the Building Safety Regulator contained in the Act are designed to tackle that by requiring relevant complaints to be properly handled and investigated.  Where building safety complaints are not resolved satisfactorily under the Principal Accountable Person’s procedure this section allows for there to be a clear escalation route to the Building Safety Regulator.  

Residents’ etc duties

Section 95: Duties on residents and owners

Effect

798. This section provides that residents of a higher-risk building (aged 16 or over) and owners of residential units in higher-risk building must: 
     • not act in a way that creates a significant risk of a building safety risk materialising;  
     • not interfere with a relevant safety item; and 
     • comply with a request made by the appropriate Accountable Person for information reasonably required to perform their duties to carry out an assessment of building safety risks and to manage those risks. 

799. The duties apply to residents of all tenures living in the building including but not limited to leaseholders, social housing tenants, and private renters; the duties also apply to non-resident owners of residential units. The duties are about residents’ behaviours and actions, including in responding to requests for information from the appropriate Accountable Person to ensure they can assess and manage building safety risks.  
800. The provision places a set of clear responsibilities on residents in relation to helping to keep their building safe, including ensuring that Accountable Persons can carry out their building safety duties. The Accountable Person is, by virtue of sections 95 and 96, able to enforce these duties by issuing contravention notices, which can be enforced through application to the courts.  
801. "Relevant safety item" means anything in or which forms part of the common parts (as defined in section 71) of a higher-risk building that is intended to improve the safety of anyone in the building or in its vicinity in relation to a building safety risk. For example, signage, sprinklers, fire extinguishers etc. All residents (and owners of residential units) are required not to interfere with a relevant safety item, this means damaging it, removing it, or interfering with its intended function. This applies unless the resident has a reasonable excuse to "interfere" with the relevant safety item, for example: using a fire extinguisher to put out a fire. 

Background

802. The purpose of this section is to ensure residents and owners of residential units in higher-risk buildings play their part in keeping buildings safe. The Independent Review recommended that residents should have a clear understanding of their responsibilities in relation to helping to keep their building safe.

     Example A resident’s items are being stored in front of a fire exit in the common parts and are blocking access to the fire exit. This would be considered a breach of a resident’s duties, as in the event of a fire, residents may not be able to safely evacuate through this fire exit due to the blockage, thereby interfering with the intended function of a safety item, the fire exit. In this instance the Accountable Person may investigate the matter in order to make sure residents’ safety isn’t being put at risk. As part of this investigation the Accountable Person would be able to require the resident to take action to address the breach of their building safety duties. This could include the Accountable Person issuing a contravention notice to the resident who has breached their duties.   Residents are required to comply with a request made by the appropriate Accountable Person for information reasonably required to perform their building safety duties. For example - An owner of a flat has replaced their front door which is a fire door. The owner did not inform their Accountable Person prior to carrying out these works and has not provided the Accountable Person with any information on the specification of the new door. Replacing a fire door could affect the passive fire safety systems and compartmentation. The Accountable Person in this instance would be able to request the specification of the door and any other pertinent information from the owner of the flat in order to assess whether the new door poses a building safety risk.

Section 96: Contravention Notices

Effect

803. This section enables an Accountable Person for an occupied higher-risk building to serve a notice on a resident or owner of a residential unit in their part of the building, where it appears to them that the person in question has not complied with one or more of the residents’ duties under section 95. A notice under this section is a notice that specifies:
     • the alleged breach of a duty; 
     • what the resident should do so that they are no longer in breach and a reasonable time for doing so; 
     • anything the resident should not do to avoid further breaches of the duty; and 
     • what may happen next if the resident fails to comply with the notice.

804. Where the Accountable Person believes that a resident or owner has breached section 94(2)(b) (interfering with a relevant safety item) they may ask the resident to pay for the repair or replacement of that item if the repair or replacement is necessary. That sum must not exceed the reasonable costs of repair or replacement. 
805. Following service of a notice on the resident, the appropriate Accountable Person may apply to the county court to make an order. The court may make an order provided that it is satisfied that: 
     • a contravention notice has been given; 
     • the resident or owner of the residential unit has breached the duty alleged in that notice; and  
     • it is necessary to make the order. 

806. An order made by the county court under this section may require a person: 
     • to provide specified information, or do a specified thing, within a certain time;  
     • not to do a specified thing; or 
     • to pay a sum if that has been requested, that sum cannot exceed the sum in the original notice. 

807. The Secretary of State may by regulations make provision about contravention notices under this section, including: 
     • details about the form of a notice and the way it is to be given; and 
     • further provision about the content of a notice. 

Background

808. The purpose of this section is to allow the Accountable Person to make sure residents and owners of residential units comply with their duties under section 95 in order to keep the higher-risk building safe. In many cases where a resident is in breach of their duties, it would be reasonable for Accountable Persons to discuss an alleged contravention with the resident first to try to resolve the matter before issuing a contravention notice.  
809. The Independent Review recommended that residents should have a clear understanding of their roles and responsibilities to help to keep their building safe. Residents need to be made aware of the impact of their actions and their role in keeping their building safe. It is important for residents to understand that in certain circumstances their actions may pose a risk to the safety of their dwelling, their fellow residents, and the building they live in and that the Accountable Person has the ability to ensure residents comply with these duties.  
810. The focus is on resident behaviours (and the behaviour of residential unit owners) and their co-operation with the Accountable Person in keeping the building safe. Where this fails the Accountable Person is able to investigate and enforce those duties.  

     Example A resident continues to block a corridor with their belongings, despite previous communications from the Accountable Person on this matter. The corridor is an important escape route from the higher-risk building in the event of a fire. The Accountable Person issues a contravention notice. This notice sets out that the resident has breached one of their duties by blocking an escape route and requests that the resident removes their belongings immediately. The notice also mentions that failure to comply with the request in the notice would mean that the Accountable Person may make an application to the courts for an order.

Section 97: Access to Premises

Effect

811. This section provides that the county court may, following an application by the Accountable Person for an occupied higher-risk building, make an order to allow entry in respect of any premises in the part of the building for which the Accountable Person is responsible.  
812. The premises referred to in this section refer to residential units or other spaces controlled by the owner or resident such as a garage or storage cupboard that does not form part of the residential unit. 
813. The court must be satisfied that the order is necessary for the purpose as set out in the request. In requesting access, the Accountable Person must do so in accordance with principles prescribed in regulations under section 83.  
814. Before the court makes an order it must ensure that it is satisfied that: 
     • the Accountable Person has made a written request, setting out its purpose and an explanation for why access is needed. It must also provide at least 48 hours’ notice before access is required and access must be requested at a reasonable time; 
     • the request has been made in connection with the Accountable Person’s duties under sections 83 or 84 to assess or manage building safety risks or in connection with a potential breach of a duty on residents and owners of residential units under section 95; and 
     • it is necessary to make the order for the purpose mentioned in the request for access.  

815. An order made under this section may permit access for the purpose requested and, if necessary for that purpose, may permit the taking of measurements, photographs, recordings or samples. 
816. If an order is made, it must specify a date or a time period during which the relevant person must allow the Accountable Person, or a person authorised by them, access to the premises. 
817. A relevant person (aged 16 or over) includes the resident, or if the premises is not occupied, it may be the owner or a person controlling the premises.  

Background

818. The purpose of this provision is to make sure the Accountable Person is able to secure access to a residential unit when required for managing or assessing a building safety risk. It is expected that in the majority of cases, residents and Accountable Persons will be able to agree on whether access is necessary and how it should be granted without a formal request under this provision. 
819. Residents (aged 16 or over) and owners of residential units in higher-risk buildings are required, by virtue of section 95, to comply with three duties designed to ensure that residents play their role in ensuring the safety of the building they live in and to ensure the Accountable Person is able to discharge their duty to effectively manage the risk of fire or structural failure. Those duties are: 
     • Not to act in a way that creates a significant risk of a building safety risk materialising; 
     • Not to interfere with a relevant safety item; and 
     • To comply with a request, made by the appropriate Accountable Person for information reasonably required for the purposes of their duty to assess and manage building safety risks. 

820. The Accountable Person may need access to one or more spaces in the higher-risk building that are controlled or occupied by a resident or by an owner of a residential unit. This access may be required so that the Accountable Person can confirm whether a resident has breached a specified duty, or in order to perform their own duties to assess and manage building safety risks and take reasonable steps to minimise them.

     Example An Accountable Person is informed by one of their residents that they will be carrying out a renovation of their flat. The flat has a supporting column within its footprint. The Accountable Person in this situation may want to inspect the work in order to ensure that the column has not been compromised and could therefore request access. If the resident refused to grant access, the Accountable Person could apply for access to assess whether this work poses a building safety risk.

Enforcement

Section 98: Duty on regulator to enforce Part

Effect

821. This section is self-explanatory.

Section 99: Compliance notices

Effect

822. This section enables the Building Safety Regulator to issue a compliance notice to an Accountable Person where they are contravening, or appear likely to contravene, a "relevant requirement" under this Part of the Act or a requirement set out in regulations made under it. Regulations may set out requirements that are excluded from enforcement action under this section. The notice will either require that particular, specified steps are taken within a period of time set out in the notice or will require the relevant person to remedy the contravention in question within the period of time set out in the notice.
823. If the contravention is one that places people in or about the building in imminent danger, in the Building Safety Regulator’s view, the compliance notice is termed an "urgent action notice". The consequences of this are i) that the regulator is likely to set a shorter period to rectify the contravention and ii) any appeal against the notice will not suspend its effect unless the Tribunal determines that it should (see section 103(3)).
824. If the person issued with a compliance or urgent action notice does not comply by the date specified, or otherwise breaches the notice, the Building Safety Regulator will be able to prosecute for the breach. The offence of breaching a notice will be triable either way, reflecting that not only will a contravention have occurred, but a formal opportunity to rectify it will have been refused. If tried by magistrates, the offence will carry a maximum penalty of an unlimited fine and/or 12 months’ imprisonment (six months until the commencement of paragraph 24(2) of Schedule 22 of the Sentencing Act 2020). If tried in the Crown court, the maximum penalty will be an unlimited fine and/or two years’ imprisonment. Under section 161, certain corporate officers could also be liable for prosecution.
825. These notices will be appealable to the First-tier Tribunal (see section 103 for further detail).

Background

826. This section introduces a power for the Building Safety Regulator to address non-compliance with the new regime for the safety of higher-risk buildings without having to resort immediately to criminal prosecution.
827. These measures have been modelled on notices under section 21 of the Health and Safety at Work etc Act 1974 and are intended to be used in similar circumstances.

     Example The Building Safety Regulator becomes aware that an Accountable Person has not been maintaining the information as required by section 88 and regulations made under it. The Regulator issues a compliance notice to the Accountable Person identifying the contravention in question and setting a period of time for the Accountable Person to rectify that contravention.

Section 100: Compliance notices: supplementary

Effect

828. This section enables the making of regulations to set out further detail as to how compliance notices will work in practice, including what should be specified in notices; how notices should be given to relevant persons; how notices can be amended or withdrawn; and how arrangements can be made to extend the set period for compliance.
829. This section also requires the Building Safety Regulator to notify other relevant bodies where it serves a compliance notice, including the local authority, relevant Fire and rescue authority, the Regulator of Social Housing (in appropriate cases) and any other body prescribed in regulations.

Section 101: Offence: contravention giving rise to risk of death and serious injury

Effect

830. This section creates an offence of breaching a "relevant requirement" under the new regime set out in this Part of the Act, or regulations made under it, without reasonable excuse, where that failure places those in or about the building at a significant risk of death or serious injury arising from a building safety risk. A "relevant requirement" is defined as a requirement that is not excluded from enforcement action by secondary legislation. "Building safety risks" are defined in section 62.
831. The offence is triable either way, with a maximum penalty of an unlimited fine and/or 12 months’ imprisonment (six months until the commencement of paragraph 24(2) of Schedule 22 of the Sentencing Act 2020). If tried in the Crown court, the maximum penalty will be an unlimited fine and/or two years’ imprisonment. If the breach continues after conviction, the court will also be able to impose an ongoing penalty until such time as the breach is remedied; that penalty will be set at a daily rate of a level 1 fine (currently £200).

Background

832. Where a requirement under the new regime is breached, the Building Safety Regulator would normally be expected to use a compliance notice as described in the previous sections to secure compliance from the Accountable Person – or an urgent action notice, where the contravention places people in or about the building in imminent danger. For the most serious breaches of these requirements, where the failure places those in or about the building at a significant risk of death or serious injury, the Building Safety Regulator will be able to move directly to prosecution for the offence described in this section, if it considers that to be the most effective and appropriate course of action.

     Example On a first inspection of an existing higher-risk building, the Building Safety Regulator finds evidence that, while the building’s main exit route is in constant use, the emergency exit at the foot of the stairs is seldom used and, over time, has warped to the point where it has become stuck in the frame and cannot be opened, even by putting a shoulder to it. In addition, the building’s office is on the ground floor and has no self-closing device on the door, with numerous ignition sources in the office and deliveries stored there, giving a high risk of fire open to the living accommodation. This means that a fire in the office would affect the means of escape for anyone wanting to evacuate because, due to the stuck emergency exit, they have to pass the office and, for the accommodation on the ground floor, the fire and smoke will be right outside their front doors. Given the potential seriousness of these risks, the Building Safety Regulator issues the Accountable Person with an urgent action notice (as described in section 99), requiring the issues to be rectified within seven days. In addition, as the Building Safety Regulator has found similar failings in other buildings under the control of the Accountable Person, and given the significant risk of death or serious injury to those living in the building, the Building Safety Regulator decides it would be appropriate to prosecute the Accountable Person for this offence and seek a significant penalty from the courts to punish this non-compliance.

Special measures

Section 102: Special measures

Effect

833. This section provides for the special measures regime as detailed in Schedule 7.

Background

834. This is a new provision.
835. Schedule 7 details the procedure that the Building Safety Regulator must follow before applying for a special measures order; the appointment of a special measure manager by the First-Tier tribunal and further provisions in relation the operation of the special measures regime.

Appeals etc

Section 103: Appeals against compliance notice etc

Effect

836. This section sets out that a person receiving a compliance notice (as described in section 99 above) may appeal against that notice to the First-tier Tribunal, and that an appeal of a compliance notice that is not an urgent action notice (see section 99(4)) will suspend the effect of the notice pending the resolution of the appeal (subsection (3)). As set out in the note above in respect of section 99, given the greater seriousness of the issues justifying the issue of an urgent action notice, this section sets out that an appeal against such a notice will not suspend its effect (subsection (4)(b)) unless the First-tier Tribunal determines that it should (subsection (4)(a)).
837. Subsection (2) sets out the grounds on which an appeal can be made, while subsection (5) provides that the recipient of a compliance notice can apply to the Tribunal for an extension of any time limit set by the regulator in the notice, whether or not an appeal is lodged.

Section 104: Appeals against decisions of the regulator made under this Part

Effect 

838. This section relates to Part 4 only and sets out that affected persons (defined in subsection (4)) have the right to appeal certain decisions made by the Regulator.
839. These decisions are:
     • where the regulator declines to register a higher-risk building or removes one from the register;
     • where an application for certification is refused; and
     • where the regulator gives a direction to the Accountable Person.

840. This section also sets out on what grounds an appeal may be made.

Background 

841. This section provides a right of appeal for certain decisions the Regulator will make for higher-risk buildings under this legislation.

     Example The Building Safety Regulator has declined to issue a Building Assessment Certificate for a higher-risk building due to non-compliance with prescribed criteria. This is appealed by the Accountable Person to the First-tier Tribunal on one of the grounds specified in this section. The Tribunal, under this section, can either confirm, vary or quash the Regulator’s decision.

Section 105: Appeals against decisions of the regulator made under regulations

Effect

842. This section relates to Part 4 only and creates a provision to give a right of appeal to prescribed persons regarding decisions made by the Regulator that are set out in secondary legislation.

Background

843. This section is intended to be used to provide a comprehensive right of appeal for the decisions the Regulator will make for higher-risk buildings under this legislation that are created in regulations.

     Example The Building Safety Regulator may wish to create new duties or requirements in regulations as the regime settles in. New duties and components will require a route of appeal. This section provides a degree of flexibility in introducing of the building safety regime where it sees fit through the making of regulations under this Part of the Act.

Section 106: Appeals: supplementary

Effect 

844. This section is supplementary to:
     • Section 103: Appeals against compliance notice etc;
     • Section 104: Appeals against decisions of the regulator made under this Part; and
     • Section 105: Appeals against decisions of the regulator made under regulations

845. It sets out what the tribunal can do on determining an appeal, how the tribunal must consider an appeal, and that new evidence and information can be presented.
846. This section also allows regulations to make provision about the effect of an appeal on a regulatory decision; for example, they may provide that bringing an appeal suspends, or does not suspend, the effect of a regulatory decision.

Background 

847. This section supplements the overall package of appeal provisions for decisions made by the Regulator under this legislation.

     Example The Building Safety Regulator has decided to remove a building from the register because it appears to the regulator that the building is not occupied. The Accountable Person for the building appeals against that decision. During the period of the appeal, regulations may specify that the building remains on the register until the appeal decision is reached.

Section 107: Enforcement of decisions of the First-tier and Upper Tribunal

Effect 

848. This section ensures that tribunal decisions are enforceable. In practice, it means that any decision of the First-tier or Upper Tribunal under or in connection with Part 4 of the Act, other than a decision ordering the payment of a sum, will be enforceable with the permission of the county court in the same way as orders of the county court.

Background 

849. The general position is that the tribunal does not have enforcement powers of its own, other than powers to enforce payment for a sum of money. As such, where it is necessary to have powers to enforce tribunal decisions, it is usual to insert a provision in legislation to enable the county court to enforce those decisions.

     Example The Regulator issues a direction to an Accountable Person to carry out an assessment of building safety risks under section 83. In the event of an appeal by the Accountable Person, the tribunal’s decision on the appeal can be enforced with the permission of the county court in the same way as orders of the county court.

Miscellaneous and general

Section 108: Guidance

Effect

850. This section sets out the areas of the building safety regime where the Building Safety Regulator may issue guidance with statutory force, including the process to be followed in relation to the guidance and the potential consequences of complying – or not complying – with the content of that guidance.
851. Subsection (1) sets out the areas where the Building Safety Regulator may issue guidance; they are:
     • mandatory reporting requirements for Accountable Persons;
     • duties to keep or give information to residents and others; and
     • how an Accountable Person should operate a complaints procedure for residents.

852. Subsections (1), (2) and (5) set out that the regulator may issue, withdraw or amend guidance, but only with the consent of the Secretary of State. Subsection (3) makes clear that, as with the approved documents issued in accordance with Part 1 of the Building Act 1984, compliance with the guidance can be relied on in court or Tribunal proceedings as tending to establish compliance with the provision to which the guidance relates, while not following the guidance will tend to establish non-compliance with the relevant provision.

Background

853. Historically, there has always been detailed guidance (the Approved Documents) to give further detail in respect of the functional requirements set out in Building Regulations. This section sets out those areas of this Act where similar guidance, with statutory force, is needed to give guidance to those with duties under the new occupation regime.

     Example 1 In order to assist Accountable Persons with setting up and operating a complaints procedure for the residents of higher-risk buildings, the Building Safety Regulator will have the power to set out in guidance with statutory force the key features of such a scheme. Even if the Accountable Person does not have particular experience in operating such a scheme, if they stick to the requirements set out in the regulator’s guidance, they will have comfort that, because of subsection (3), they will be able to rely in court or tribunal proceedings on compliance with the guidance as tending to establish compliance with the legal requirements.

Section 109: Cooperation and coordination

Effect

854. Subsection (1) and (2) set out that where there is more than one Accountable Person for an occupied higher-risk building that they must, when carrying out their duties, cooperate and coordinate with all other Accountable Persons for that building as far as possible.
855. This section requires the Accountable Person for a higher-risk building to assist a Responsible Person who, within the same building, also has responsibilities for the fire safety of the occupants and people who might be affected by a fire. The Accountable Person must therefore cooperate with each Responsible Person so that they can carry out their duties under the Regulatory Reform (Fire Safety) Order 2005.
856. Responsible Person(s) are defined under Article 3 of the Regulatory Reform (Fire Safety) Order 2005.

Background

857. This is a new provision.

     Example Higher-risk buildings are often mixed use, owned and managed by more than one entity, and include commercial areas that are not for residential use, such as shops, gyms, restaurants etc. There are many different ownership models, many of them complex with different bodies responsible for managing the same or similar risks within different part of the building or its structure, such as roofs or individual floors. To support the "whole building" approach set out in the Independent Review, this section requires Accountable Persons and Responsible Persons under the Fire Safety Order to work together to share relevant fire safety information. The duty on Accountable Persons to cooperate with each other is crucial to the success of the regime in, for instance, running a single Residents’ Engagement Strategy for the whole building and enabling the golden thread to operate effectively. The Accountable Person and Responsible Person should proactively share the results of their risk assessments, including providing an overview of the risks and safety measures that are in place to control the identified risks. The Accountable Person should factor these results into their own decision making and ensure that the safety arrangements they have are suitable for controlling any additional risks that may arise from a part of the building which is out of their direct responsibility. Furthermore, both the Accountable Person and Responsible Person are dutybound to ensure that their safety arrangements do not have the effect of rendering the others’ arrangements ineffective.

Section 110: Managers appointed under Part 2 of the Landlord and Tenant Act 1987

Effect

858. This section makes amendments to section 24 of the Landlord and Tenant Act to ensure that building safety is kept discrete from other management functions and that any failings on the part of an Accountable Person are dealt with via the Building Safety Regulator. Accordingly, this section provides that a tribunal cannot appoint a manager under section 24 where the breach of obligations complained of by tenants is a breach of the Accountable Person’s building safety obligations. It further provides that when appointing a manager under section 24 the tribunal cannot confer upon that manager any building safety functions which are due to be carried out by an Accountable Person.

Background

859. Section 24 of the Landlord and Tenant Act 1987 allows tenants to apply to the tribunal for appointment of a "manager" of their choosing to take over management functions where a landlord has failed to comply with its obligations. If that principle were to be carried through into building safety, it could compromise the authority of the Building Safety Regulator. The amendments to section 24 ensure that the new regime is compatible with existing legislation and provides clarity as to avenues of redress for breach of obligations. Under the Act, redress should be sought through the residents’ complaints mechanism to the Building Safety Regulator who can arrange for the appointment of a Special Measures Manager if there have been persistent breaches of building safety obligations by the Accountable Person.

     Example If the residents of a building are unhappy with their Accountable Person, they will be unable to circumvent the regulator by going to the Tribunal to obtain the appointment of their own manager, whose responsibilities would then overlap with those of the Accountable Person. . In the event that there are breaches of the implied building safety terms, it will be for the Building Safety Regulator to take enforcement action and/or make arrangements for the appointment of a Special Measures Manager, as it deems appropriate.

Section 111: Building safety directors of resident management companies

Effect

860. This section enables resident management companies that are Accountable Persons under Part 4 of the building safety regime to appoint a building safety director for the purpose of supporting them in meeting their Part 4 building safety duties if they wish to do so. This section has retrospective effect as it amends existing articles of association.  
861. Subsection (2) provides that the articles of association of a resident management company which is an Accountable Person have effect as if they allowed: 
     • the appointment of a director of the company, for a building safety purpose; 
     • the fact that any such director can be paid; and 
     • the removal of any such director. 

862. The details of all of these will be set out in regulations. 
863. Subsection (3) sets out that the changes to the articles of association mentioned above will affect all new and existing resident management companies notwithstanding anything in the company’s articles of association. 
864. Subsection (4) defines "building safety purpose" as the purpose of supporting the resident management company in complying with its duties under this Part or under regulations made under this Part. It also sets out that a resident management company will be defined in regulations made by the Secretary of State. 
865. This section is linked to section 112, which inserts section 30E into the Landlord and Tenant Act 1987 to enable this section to function by implying terms into relevant leases so that costs incurred by a residents’ management company in remunerating a director appointed under this section can be recoverable as a service charge under the lease. 
866. This section is also linked to section 161(4) that sets out that where a "relevant company" (which includes a resident management company) appoints a paid director for a building safety purpose, all unpaid directors of the company will be relieved of their personal criminal liability for breaches of  Part 4 duties. 

Background

867. This is a new provision.  
868. The Independent Review identified that there should be a clearly defined dutyholders during occupation who can be held to account and will have statutory obligations for ensuring that fire and structural safety is being effectively managed. The Independent Review was also clear that accountability must always remain with the dutyholders.  
869. This section ensures that responsibility for building safety duties will remain with the resident management company Accountable Person and that they are empowered to continue managing their buildings while also giving them the option to appoint a professional building safety director to support them in managing their Part 4 duties where necessary.  

Landlord and tenant etc

Section 112: Implied terms in leases and recovery of safety related costs

Effect

870. This section refers to the implied building safety terms in relevant leases.  
871. All written leases set out obligations on the part of the landlord, and on the part of the tenant. These are usually in the form of "covenants"; the landlord covenants with (promises) the tenant to do "X" and the tenant covenants with the landlord to do "Y". 
872. The Landlord and Tenant Act 1985 has implied covenants into short leases in relation to repair and human habitation. As a result, even if an agreement is signed to the contrary or if there is no written agreement, the landlord is always under an obligation to keep in repair the structure and exterior of the property and the installations for essential services in the property, and to keep the property fit for human habitation. At the same time, there is an implied covenant on the part of the tenant to grant access for repairs. 
873. This section amends the 1985 Act to provide new implied covenants in relation to building safety. These apply to all leases of dwellings in higher-risk buildings in England.  
874. The landlord covenants with the tenant to comply with their building safety duties if they are an Accountable Person, to co-operate with any Accountable Person and to comply with any relevant terms of a special measures order. The tenant covenants with the landlord to allow access for building safety purposes, to comply with the residents’ building safety duties and to comply with any relevant terms of any special measures order. 
875. This section makes additional provision for "relevant leases" – those which are for a fixed term of 7 years or over under the terms of which tenants have committed to pay a service charge which varies in accordance with the landlord’s expenditure on the upkeep of the building. The additional provision will enable the landlord to pass on the running/management costs of the new regime to the tenant through the service charge. 

Details of the Section 

876. This section amends the Landlord and Tenant Act (1985) in accordance with the changes set out below. 

30C implied terms relating to building safety

877. This section sets out implied terms (covenants) for the landlord and tenant. In the lease there is implied a covenant by the landlord: 
     • where the landlord is an Accountable Person for the higher-risk building, to comply with their building safety duties;  
     • to cooperate with any person in connection with a relevant person (an Accountable Person or Special Measures Manager) complying with their building safety duties; and  
     • where an special measures order made under Schedule 7 as introduced by section 102 of this Act for the higher-risk building is in force, to comply with that order so far as it relates to the landlord.  

878. In the lease there is implied a covenant by the tenant: 
     • to allow the landlord, an Accountable Person or a Special Measures Manager or a person authorised by one of those persons to enter the premises for a relevant building safety purpose; 
     • where the tenant is a resident of the higher-risk building, to comply with their duties under sections 95 and 97 of this Act; and 
     • where an special measures order made under Schedule 7 as introduced by section 102 of the this Act , to comply with that order so far as it relates to the tenant.  
879. Subsections (4), (5) and(9) give definitions for what is meant by terms including "cooperate", "a relevant building safety purpose", "building safety duty", "relevant person" and "resident". 
880. Subsection (6) confirms that entry is required only at reasonable times and if the tenant has been given at least 48 hours notice.  
881. Subsection (7) states that the disclosure of information should not breach any obligation of confidence owed by the landlord in relation to that information and any other restriction on the disclose of information.  
882. Sub section (8) confirms that the disclosure of information is not required if it would contravene data protection legislation.

30D Liability for building safety costs

883. This section applies to relevant leases of premises which consist of or include a dwelling in a higher-risk building.  It provides that for those leases, the cost of taking building safety measures will always be recoverable under the service charge. 
884. In this section, relevant lease means a lease: 
     • that is granted for a term certain 7 years or more, whether or not it is (or may become) terminable before the end of that term by notice given by the tenant or by re-entry or forfeiture; and  
     • under which the tenant is liable to pay a variable service charge.  
885. Subsection 4 sets out a list of activities deemed building safety measures for the purpose of this section. 
886. Subsection (5) sets out that legal and other professional fees, fees payable to the regulator and management costs can be incurred and charged as part of building safety measures to the extent that they are incurred in connection with taking those measures. 

30E Liability for remuneration of building safety director of resident management company etc 

887. Section 30E implies terms into relevant leases with the effect that costs incurred by residents’ management companies or right to manage companies in remunerating a director appointed for the purpose of supporting them with their Part 4 duties can be recoverable as a service charge. It also ensures that there is no barrier in leases to such an appointment taking place. 

30F Restrictions on contracting out of section 30C to 30E 

888. This provides that a covenant in a lease, or other agreement, intending to contract out, or restrict, certain provisions in section 30C, 30D or 30E has no effect.  

30G Jurisdiction of county court 

889. This provides that the county court is the court for determining any question or issue under sections 30C to 30E.

30H Specific performance of implied terms 

890. This provides that the court may order a party to a lease to comply with the obligations (implied covenants in the lease) under section 30C(2) or (3).  The order can apply in relation to parts of the building not let to the leaseholder and notwithstanding any rule that would otherwise restrict the remedy.  

20F Limitation of service charges: excluded costs for higher-risk buildings 

891. New section 20F lists certain costs incurred in connection with Part 4 of this Act that cannot be taken into account in determining the amount of service charge payable by a tenant under the lease. 

Background 

892. This is a new section to align the Landlord and Tenant Act 1985 with Part 4 of the Building Safety Act. It ensures that there are dedicated provisions in relevant leases of dwellings in higher-risk buildings dealing with the putting in place and operation of building safety measures, the recovery of associated costs, where appropriate, and the securing of access to all dwellings for building safety purposes. 

Section 113: Provision of building safety information

Effect

893. This section inserts into the Landlord and Tenant Act 1987 two new sections applying to dwellings in higher-risk buildings. Section 47A requires certain building safety information to be included in certain demands, for example, for rent or service charges. Section 49A places a duty on landlords to give tenants notice of that building safety information.   
894. When serving a written demand for rent, service charges or an administrative charge, the demand must include the relevant building safety (see below).  
895. If the information is not provided then any service charge or administration charge demanded will not be treated as due until such time as the information is supplied. This section only postpones the requirement to make payment and those sums become payable once the information is provided. This rule does not apply where there is a court- or tribunal-appointed receiver or manager in place, whose functions include the receiving of service charges or administration charges or a special measures order is in place for the building. 
896. Under section 49A the landlord must give written notification of the relevant building safety information. The requirement may be fulfilled by giving such notice to a prospective tenant before the tenancy commences.  
897. Where a landlord fails to give such notice to a tenant, this section states that any rent, service charge or administration charge due from the tenant to the landlord is not due before the landlord gives the notice to the tenant. This section only postpones the requirement to make payment and those sums (including any arrears accrued) become payable once the information is provided. This rule does not apply where there is a court or tribunal-appointed receiver or manager in place whose functions include the receiving of rent, service charges or administration charges or a special measures order is in place for the building. 
898. The requirement applies to landlords of dwellings in higher-risk buildings (other than those to which Part II Landlord and Tenant Act 1954  (business tenancies) apply) and applies regardless of the length of the lease or tenancy. 
899. The relevant building safety information in both sections 47A and 49A is (a) a statement the premises consist of or include a dwelling in a higher-risk building and (b), the name and contact details of the principal accountable person, any special measures manager and the regulator.  
900. The provisions will apply to all existing leases (including tenancies) in affected buildings when they come into force. 

Background

901. This section amends the Landlord and Tenant Act 1987 to ensure tenants of higher-risk buildings, including those who may be subletting from a long leaseholder, are adequately informed by the landlord about those persons that are responsible for building safety in their building and are able to contact them.

Section 114: Commonholds

Effect

902. This section amends the Commonhold and Leasehold Reform Act 2002, ensuring building safety is adequately considered.
903. In the case of land held on a commonhold basis, the commonhold association will be the Accountable Person. This section makes amendments making it mandatory for a commonhold community statement for a higher-risk commonhold in England to make provisions requiring the commonhold association to comply with its duties under Part 4 of this Act in relation to each commonhold unit and in relation to the common parts.
904. It also ensures that the commonhold community statement for a higher-risk commonhold must make provision requiring the directors of the commonhold association to make an annual estimate of the income required to be raised from unit-holders to meet the building safety expenses of the association, and requiring each unit-holder to make payments in respect of the percentage of any estimate which is allocated to their unit in relation to building safety expenses.
905. Subsection (8) part (3) provides that "building safety expenses of the association" includes expenses incurred by the commonhold association or special measures managers in relation to measures required or permitted to be undertaken by Part 4 of this Act or regulations under this Act. 
906. Subsection (9) includes interpretations of terms made in amendments to the Commonhold and Leasehold Reform Act 2002 and ensures they align with the Building Safety Act. 

Background

907. This is a new section to align the Commonhold and Leasehold Reform Act 2002 with the Building Safety Act ensuring building safety and the costs associated adequately extend to higher-risk commonholds.

Interpretation

Section 115: Interpretation of Part 4

Effect

908. This section provides definitions of key terms used in Part 4 of the Act. It also clarifies that the requirements in Part 4 do not apply to the Palace of Westminster.