Building Safety Act 2022

Policy background

11. On 14 June 2017, a fire broke out at Grenfell Tower, a 24-storey residential tower block in West Kensington, London. Starting on the Tower’s fourth floor, the fire quickly spread throughout the building and took 24 hours for firefighters to bring under control. 71 fatalities were confirmed by the coroner – and a further former resident passed away in January 2018.
12. Following the fire, the Government commissioned the Independent Review of Building Regulations and Fire Safety, led by Dame Judith Hackitt. Dame Judith’s final report, Building a Safer Future 1 , was published on 17 May 2018. The Independent Review found that the system for ensuring fire and structural safety for high-rise residential buildings is not fit for purpose. The Independent Review made 53 recommendations, calling on the Government to:
    • create a more effective regulatory and accountability framework to provide greater oversight of the building industry;
    • introduce clearer standards and guidance;
    • put residents at the heart of a new system of building safety regulation, empowering them with more information, engaging them on how risks are managed in their building and ensuring effective routes for raising and escalating safety concerns; and
    • help to create a culture change and a more responsible building industry from design, through to construction, management and refurbishment.
13. The Government accepted all the findings and recommendations of the Independent Review.
14. Proposals for a new system for ensuring fire and structural safety in buildings were outlined in the consultation Building a Safer Future: Proposals for Reform of the Building Safety Regulatory System 2 , published on 6 June 2019.
15. The Government’s response to the consultation was published on 2 April 2020 3 and a draft version of the Act was published for pre-legislative scrutiny on 20 July 2020 4 . The HCLG Committee reported on 24 November 2020 5 and Government responded on 26 May 2021 6 .
16. The Welsh Government asked the UK Government to make a number of changes to the Building Act 1984 on their behalf. These will allow the Welsh Government to use the Building Act to implement a regime for design and construction that is appropriate for Wales, while bringing forward primary legislation through Senedd Cymru in relation to wider proposals, particularly those relating to the occupation phase. The Welsh Government has published a white paper, "Safer buildings in Wales" 7 , which sets out proposals for comprehensive reform of legislation that contributes to building safety in Wales, including how this Act is intended to apply to Wales.
17. The Welsh Government has provided further detail on their intentions in relation to individual sections, where relevant, in the "commentary on provisions" section. The intention is that the regulation and oversight of the design, construction and refurbishment of higher-risk buildings and the building control system in Wales will be addressed through the extension of local authority and Welsh Minister functions. For example, the building control authority for higher-risk buildings will be a local authority, and Welsh Ministers or their delegated body will be responsible for the registration and regulation of registered building control inspectors and registered building control approvers in Wales.
18. Alongside the new building safety regime, this Act amends provisions within the Fire Safety Order which applies to all non-domestic premises in England and Wales. As part of the Government’s response to the Independent Review, the Home Office issued a Call for Evidence on the Fire Safety Order in 2019, which informed the legislative proposals outlined in the Fire Safety Consultation in 2020 to strengthen the Fire Safety Order and implement recommendations from the Grenfell Tower Inquiry Phase 1 report requiring changes in the law. The Government’s response to the consultation was published on 17 March 2021.
19. The amendments to the Fire Safety Order build on the Fire Safety Act 2021, which clarifies that the FSO applies to the structure, external walls and flat entrance doors in buildings containing two or more sets of domestic premises. The amendments require that all Responsible Persons (RPs) must record their fire risk assessments; must not appoint a person to assist them with undertaking a fire risk assessment unless that person is competent; must provide specific, comprehensible and relevant information about fire safety matters to residents of buildings containing two or more sets of domestic premises, and must keep records of this information; must take such steps as are reasonably practicable to identify other RPs in the same premises, inform each other of their name and United Kingdom address and of the parts of the premises for which they consider themselves to be an RP and to record that information; that a departing RP must provide specific fire safety information to incoming RPs; and, for higher-risk buildings including a domestic dwelling, must identify and co-operate with Accountable Persons (as defined in the Building Safety Act) in the same premises. In addition, the Act increases financial penalties for three specific criminal offences under the FSO and expressly provides that compliance or non-compliance with guidance issued in accordance with Article 50 of the FSO may be relied upon by the Court as supporting compliance with or breach of the Order. The Welsh Government have expressed their consent for these amendments where relevant to extend to Wales.
20. The following provides an overview of the proposals within the Act. This explanation is not organised in the same way as the provisions in the Act itself (see the "Overview of the Act" section for a summary of provisions as they are ordered in the Act). Detailed, section-by-section explanations of all of the Act’s measures are provided in the "commentary on provisions" section.

The Building Safety Regulator

Functions of the Building Safety Regulator

21. The Act establishes the Health and Safety Executive as the Building Safety Regulator, to underpin the key regulatory reforms in the new building safety regime.
22. The Building Safety Regulator has two objectives focused on securing the safety of people in and around buildings, and improving building standards. It will also regulate in line with best practice principles including being proportionate, transparent, and targeting its activity at cases where action is needed.
23. The Building Safety Regulator has three core functions. These are:
    • Implementing the new, more stringent regulatory regime for higher-risk buildings. This means being the building control authority in England in respect of building work on higher-risk buildings and overseeing and enforcing the new regime in occupation for higher-risk buildings. The Building Safety Regulator will work closely with, and take advice from, other regulators and relevant experts in making key decisions throughout the lifecycle of a building. It will have powers necessary to bring together teams including Fire and Rescue Services, and local authority expertise (notably Local Authority Building Control teams) to assist it in making regulatory decisions.
    • Overseeing the safety and performance of all buildings. This has two key aspects:
      • Overseeing the performance of the building control sector. This will involve developing key performance indicators (KPIs) related to building control work, data collection and powers to impose sanctions for poor performance.
      • Understanding and advising on existing and emerging building standards and safety risks including advising on changes to regulations, changes to the scope of the regime and commissioning advice on risks in and standards of buildings.
    • Assisting and encouraging competence among the built environment industry and registered building inspectors. This has two key workstreams:
      • Assisting and encouraging improvement in competence of the built environment sector through several functions, including establishing and setting strategic direction of the proposed industry-led competence committee, carrying out research and analysis and publishing non-statutory advice and guidance.
      • Establishing a unified building control profession with competence requirements for registration as a building control professional that will be common across both public sector (local authorities) and private sector (registered building control approvers, currently known as Approved Inspectors).

24. As the regulator leading delivery of the more stringent regulatory regime, the Building Safety Regulator will be responsible for all regulatory decisions under the new regime during the design, construction, occupation and refurbishment of higher-risk buildings.
25. The Building Safety Regulator will work closely with, and take advice from, other regulators and relevant experts in making key decisions throughout the lifecycle of a building. It will have the powers necessary to bring together teams including Fire and Rescue Services and local authority expertise (notably Local Authority Building Control teams) to assist in making major regulatory decisions.

Committees

26. To assist in carrying out its functions, the Act provides the Building Safety Regulator with the power to establish and maintain committees to advise on building functions. The Act also provides the Building Safety Regulator with a duty to establish and maintain three specific committees. These are:

• Building Advisory Committee. Replacing the Building Regulations Advisory Committee for England (BRAC), this committee will give advice and information to the Building Safety Regulator about matters connected with most of its building functions.
• Committee on industry competence. This is concerned with the competence of those in the built environment industry. The committee will advise both the Building Safety Regulator and those in the built environment industry about industry competence, and provide oversight of industry’s work to improve competence.
• Residents’ panel. This committee will consist of higher-risk building residents and other relevant persons (if any) that the Building Safety Regulator considers appropriate. The Building Safety Regulator will consult this committee on certain matters which it is expected would be of particular interest and importance for residents of higher-risk buildings.

A more stringent regime for higher-risk buildings

27. One of the Building Safety Regulator’s three functions is to implement a more stringent regime for higher-risk buildings.
28. The Building Safety Regulator will be responsible for all regulatory decisions under the new regime during the design, construction, occupation and refurbishment of higher-risk buildings in England.
29. The Act gives the Secretary of State the power to amend the definition of a higher-risk building and the definition of building safety risks through affirmative regulations in light of research or on the basis of independent evidence and advice from the Building Safety Regulator.

Higher-risk buildings in design and construction

Dutyholders

30. The Act allows for a new dutyholder regime to be incorporated across the lifecycle of higher-risk buildings. This is based on the principle that the person or entity that creates a building safety risk should, as far as possible, be responsible for managing that risk.
31. Many aspects of the regime, as described below, will be taken forward through secondary legislation. The description here is intended to provide an overall explanation of how the Government intends to use the powers in this Act in England.
32. When buildings are designed, constructed or refurbished, those involved in the commissioning, design, construction or refurbishment process will have formal responsibilities for compliance with building regulations. These provisions will apply to all work to which building regulations apply, and these dutyholders will include those appointed under the Construction (Design and Management) Regulations 2015 (CDM 2015). The main dutyholder roles under CDM 2015 are:

• Client - Any person or organisation for whom a construction project is carried out, including as part of their business.
• Principal Designer - Appointed by the Client under CDM 2015, when there is more than one contractor working on the building project. Role is to plan, manage, monitor and coordinate the pre-construction phase, when most design work is carried out. The Principal Designer is in control of the pre-construction phase.
• Principal Contractor - Appointed by the Client under CDM 2015, when there is more than one contractor working on the building project. Role is to plan, manage, monitor and co-ordinate the construction phase. The Principal Contractor is in control of the construction phase.
• Designer - Carries on a trade, business or other undertaking in connection with which they prepare or modify a design or instruct any person under their control to prepare or modify a design
• Contractor - Manages or controls construction work (e.g. building, altering, maintaining or demolishing a building or structure). Anyone who manages this work or directly employs or engages construction workers is a contractor.

33. Dutyholder roles may be fulfilled by either an individual or an organisation/legal entity. A dutyholder can hold more than one role in a building project. The Principal Designer will be a designer and will therefore also have designer duties; and the Principal Contractor will also be a contractor and will therefore also have contractor duties.
34. The Act also confers power to introduce general duties in relation to planning and managing work to which building regulations are applicable, to ensure compliance with the requirements of building regulations. This is to ensure that dutyholders engage with the requirements and the safety and performance outcomes they are trying to secure, and do not view building regulations as a tick-box exercise.

Industry competence

35. The Act provides powers to impose competence requirements on the Principal Designer and Principal Contractor, and other persons, and to impose duties on persons making appointments in relation to building regulations to ensure that those they appoint meet the competence requirements. This is to ensure everyone doing design or building work is competent to carry out that work in line with building regulations. Statutory guidance will be provided to support these requirements.
36. For higher-risk buildings, the Act provides powers to prescribe documents to be supplied with building control applications, which the Government proposes to use to require a signed declaration from the Client that they have assessed and are content with the competence of the Principal Designer and Principal Contractor.

Gateways

37. The amendments to the Building Act 1984 in this Act, coupled with existing powers both in the Building Act 1984 and in other legislation, will allow for the creation of a new Gateway regime. This will ensure that building safety risks are considered at each stage of a new higher-risk building’s design and construction.
38. The new Building Safety Regulator will oversee the building work and ensure appropriate measures are being implemented to manage compliance. Building work carried out in existing higher-risk buildings will also be overseen by the new Building Safety Regulator. This will either involve building control applications with plans and prescribed documents proportionate to the proposed refurbishment being submitted to the Building Safety Regulator, or by work being carried out under the Competent Person Scheme and being notified to the Building Safety Regulator. This is however separate to the Gateways process.
39. Gateways policy will be implemented through statutory instruments in England, which will set out the practical details of the Gateways approach. The essentials of each Gateway are detailed below.

Planning Gateway one

40. Planning Gateway one introduces a number of new requirements in the planning system by amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015 (as amended). These ensure that fire safety matters as they relate to land use planning are incorporated at the planning stage for schemes involving a high-rise residential building. This description is provided here for information purposes only; this Act contains no provisions in relation to this stage.
41. Planning Gateway one:
    • involves the Health and Safety Executive (HSE) being a statutory consultee before permission is granted for development which involves or is likely to involve a high-rise residential building in certain circumstances;
    • requires relevant applications for planning permission to include a fire statement (on a form published by the Secretary of State, or one to substantially the same effect) to ensure applicants have considered fire safety issues as they relate to land use planning matters (for instance layout and access); and
    • helps inform effective decision-making by local planning authorities (or the Secretary of State as the case may be) so that those decisions and the actions that flow from them properly reflect and respond to the needs of the local community.

Gateway two

42. Gateway two occurs prior to construction work beginning on a higher-risk building. It replaces the current building control "deposit of plans" stage; at this stage an application will need to be provided to the Building Safety Regulator with their full design intention.
43. Gateway two provides a "hard stop" where construction cannot begin until the Building Safety Regulator is satisfied that the dutyholder’s design meets the functional requirements of the building regulations and does not contain any unrealistic safety management expectations.
44. Dutyholders will be required to submit key information to the Building Safety Regulator as part of the building control application, to demonstrate how their proposals will comply with the requirements of building regulations. Design decisions in relation to fire and structural safety must be well considered and justified, to ensure they will work effectively for the building in use.

Gateway three

45. Gateway three is equivalent to the current completion/final certificate phase, where building work on a higher-risk building has finished and the Building Safety Regulator assesses whether the work has been carried out in accordance with the building regulations.
46. At this point all golden thread documents and information must be handed over to the new building owner. Dutyholders will be required to submit to the Building Safety Regulator a building control application with prescribed documents and information on the final, as-built building.
47. Gateway three is a "hard stop" where the Building Safety Regulator will assess the application against applicable requirements of the building regulations, undertake final inspections of the completed building work, and issue a completion certificate on approval. Only once Gateway three has been passed can the new building be registered with the Building Safety Regulator. The registration process is distinct to the Gateway three process, and both processes must be completed before occupation of the building is allowed to commence. This increased regulatory oversight is to ensure that no building, or part of a building, is occupied before it is safe, and that building owners have the information they need to manage building safety during occupation.

Golden thread of information

48. The Act includes provisions to require the creation and maintenance of a golden thread of information. The intention is to ensure that the right people have the right information at the right time to ensure buildings are safe, and building safety risks are managed throughout the building’s lifecycle.
49. This information will ensure that the original design intent and any subsequent changes to the building are captured, preserved and used to support safety improvements.
50. For new builds, the dutyholders must start to collect this information during the design and construction process. Once construction is complete, the information must be handed over to the new building owner. This information will be managed by the Accountable Person during occupation.

Occurrence reporting

51. Provisions are included in the Act that require mandatory occurrence reporting (MOR) to be undertaken for higher-risk buildings. All structural and fire safety occurrences which could cause a significant risk to life safety will need to be reported to the Building Safety Regulator.
52. Dutyholders in design and construction will be required to establish a framework and process for reporting mandatory occurrences, which must include enabling workers on-site to report mandatory occurrences. Dutyholders will also be required to report such mandatory occurrences to the Building Safety Regulator.
53. In occupation, the Accountable Person will be required to set up a framework and process to capture and report mandatory occurrences to the Building Safety Regulator. Where a building has multiple Accountable Persons and a Principal Accountable Person (see paragraph 55) the Principal Accountable Person will be required to establish and oversee a single mandatory occurrence reporting framework and process for the whole building. Each Accountable Person will be responsible for ensuring compliance with MOR in the area for which they have responsibility, and each Accountable Person will have a responsibility to coordinate with the Principal Accountable Person, who will have a lead responsibility in ensuring that the whole building is under an effective mandatory occurrence reporting framework and process.
54. The Act also includes measures which will require the Building Safety Regulator to publish aggregated information it has received from dutyholders as part of the mandatory occurrence reporting regime on an annual basis, and a section requiring the Building Safety Regulator to make arrangements for a person to establish and operate a system for the voluntary reporting of information about building safety.

Higher-risk buildings in occupation

The Accountable Person and Building Assessment Certificate

55. The Accountable Person is the dutyholder during occupation. They may be an individual, partnership or corporate body and there may be more than one Accountable Person for a building.
56. Where there are multiple Accountable Persons in a building, one of them will be identified as the lead Accountable Person, known as the Principal Accountable Person. There will be a duty on Accountable and Responsible Persons in a building to cooperate with each other and with the Principal Accountable Person. It will be backed up by enforcement and sanctions, so that it becomes an offence not to cooperate. Where reference is made to the duties of an "Accountable Person", this should be taken to also mean duties to be either discharged and/or coordinated by a Principal Accountable Person in circumstances where there are multiple Accountable Persons in a building.
57. The Act places a duty on the Accountable Person to register any building that is in scope of the new regime with the Building Safety Regulator before it becomes occupied. Existing occupied buildings will have to be registered within a fixed transition period following the new regime coming into force.
58. The Act places a duty on the Accountable Person to apply to the Building Safety Regulator for a Building Assessment Certificate. The Building Safety Regulator will issue a Building Assessment Certificate if it is satisfied that the Accountable Person is complying with the statutory obligations placed on them. The Accountable Person is required to display the most recent issue of the certificate in a prominent position in the building.

Duty to manage risks and safety cases

59. The Act creates an ongoing duty on the Accountable Person to assess the building safety risks relating to their building, to take all reasonable steps to prevent a building safety risk materialising, and to limit the severity of any incident resulting from such a risk. Building Safety risks are defined in the Act as risks to the safety of persons in or about buildings resulting from the occurrence of fire spread, structural failure and any other risk that may be prescribed by regulations in the future.
60. The Accountable Person will need to demonstrate how they are meeting this ongoing duty via their safety case and Safety Case Report, which they will be required to keep up to date. The safety case comprises the full body of evidence relating to the assessments and ongoing management of building safety risks.
61. The Accountable Person will be required to submit the building’s Safety Case Report to the Building Safety Regulator as part of the process for issuing a Building Assessment Certificate or on request from the Building Safety Regulator. The report should summarise all the key components of the wider safety case, providing a justification for the safety measures in place. It will include references to supporting documentation and safety information, including all the evidence that supports how these building safety risks are being assessed and managed, contained within the golden thread of information. A key part of the report will be the overview of the Accountable Person’s safety management system (SMS), which explains the policies, procedures and processes they have in place across the organisation to deliver continuous management of building safety risks.
62. The Safety Case Report should set out the building safety risks in the building and how these are being managed on an on-going basis, to ensure resident safety.
63. The Act also includes that the Accountable Person must review the risk assessments on which their arrangements for managing building safety risks and Safety Case Report are based, and revise the report if they consider the report is no longer valid or they are requested to do so by the Building Safety Regulator. Where a Safety Case Report is revised, the Building Safety Regulator must be notified. In addition to assessing the Safety Case Report as part of the Building Assessment Certificate process, the Building Safety Regulator may request the submission of a Report where necessary, for example following a notification of a revision.
64. On assessment, if the Building Safety Regulator is of the opinion that the Safety Case Report does not demonstrate that the ongoing duty is met, they will enter into a dialogue with the Accountable Person on what further measures are needed in their risk management and safety arrangements and should be evidenced within the Safety Case Report.
65. Where agreement cannot be reached, the Building Safety Regulator will be able to issue a compliance notice, setting out specific areas of concern and, where appropriate, actions the Accountable Person must take in order to ensure the duty is met. Continued failure to comply with the notice means there is continued breach of the statutory obligation and criminal and/or Special Measures proceedings may ensue.

Residents and redress

66. The Act places statutory obligations on the Accountable Person that will help to promote a strong partnership with residents. These obligations cover engagement and participation, complaints handling, information provision and the role of residents in helping to keep the building safe.
67. The Accountable Person will have an obligation to produce and keep up to date a Residents’ Engagement Strategy setting out how they will create inclusive opportunities for residents to participate in decision-making about their building.
68. The Accountable Person will be required to put in place an internal complaints process for safety complaints, and residents will be able to escalate safety concerns where there is a risk to building safety to the Building Safety Regulator. There will also be a duty to cooperate between the Building Safety Regulator and other regulators, ombudsmen and redress schemes to support effective complaints handling.
69. Alongside this, residents will have a clear legal obligation to comply with a request made by the Accountable Person for information reasonably required for the purpose of fulfilling their duty to either assess or manage building safety risks. They will be required not to act in a way that creates a significant risk of a building safety risk materialising, nor to interfere with a relevant safety item.
70. The Act also makes changes to the way the Defective Premises Act 1972 operates. That Act enables a person with a legal or equitable interest in a dwelling to sue a person (including a corporate body) who carried out work to "provide" that dwelling, i.e. built it from new or converted it from another type of building. The Act amends the 1972 Act and the Limitation Act 1980 to extend the period within which legal action may be brought. The limitation period is extended retrospectively from six years to 30, and prospectively from six years to 15. The limitation period under (the yet to be commenced) section 38 of the Building Act 1984 is also extended from six to 15 years. The Act also creates a new duty on those who do any work on a building which contains a dwelling to ensure that the work does not render the dwelling unfit for habitation. The duty will apply only to those who are doing work on a building in the course of business. The new duty will also be subject to a 15-year prospective limitation period.

Historic Remediation Costs

71. The Act also brings forward measures to protect leaseholders from the costs associated with the remediation of historical building safety defects in medium- and high-rise buildings. The Act protects qualifying leaseholders (those living in their own homes or with up to three UK properties in total) from all costs associated with the remediation of unsafe cladding, and provides additional protections from non-cladding costs, including the costs associated with interim measures such as waking watch patrols.
72. The Act means that building owners and landlords are now liable to pay to fix historical fire safety defects if they are (or are linked to) the developer of a building with fire safety defects, or if they meet a minimum contribution threshold. If these tests are not met, non-cladding costs can be recovered from qualifying leaseholders; however, these costs are subject to fixed caps.
73. The Act contains enforcement provisions to ensure the protections are complied with, including mechanisms to require landlords to fix, and pay to fix their buildings, and to secure funds during the process of winding up a company.

Enforcement and sanctions

74. The Building Safety Regulator will have the power to ensure compliance with the measures outlined in the Act through a combination of toughened existing powers and new powers.

Toughened existing powers

75. The Act seeks to extend time limits in sections 35 and 36 of the Building Act 1984 to apply formal enforcement powers in relation to non-compliance with building regulations. This will extend the time limit from one year to ten years for section 36 notices, which require correction of non-compliant work; the Act makes the section 35 offence triable either way (i.e. in either the Crown court or a magistrates’ court), which removes altogether the time limit for bringing prosecutions for that offence.

New powers

76. The Building Safety Regulator will have powers to prosecute all offences in Parts 2 and 4 of the Act (including Schedule 2), and the Building Act 1984. In addition, for all offences in the Building Act 1984 and Parts 2 and 4, where an offence is committed by a corporate body with the consent or connivance of a director, manager etc of that corporate body, or is attributable to their neglect, that person will be liable to be prosecuted as well as the corporate body.
77. The Building Safety Regulator will be able to issue compliance notices (requiring issues of non-compliance to be rectified by a set date) and, in design and construction, stop notices (requiring work to be halted until serious non-compliance is addressed).
78. Failure to comply with compliance and stop notices will be a criminal offence, with a maximum penalty of up to two years in prison and an unlimited fine.
79. The Act includes powers of entry to gather evidence for compliance action. A warrant from a magistrates’ court will be required for premises used wholly or mainly as a private dwelling, or where force needs to be used to enter any premises.
80. The Building Safety Regulator will also hold to account local authorities, registered building control approvers and registered building inspectors, for example where they have not registered or are performing below the set standard, and will be able to suspend or remove inspectors from the register and to prosecute where necessary.
81. The Act also includes powers for the Building Safety Regulator to apply to the First-tier Tribunal for an order appointing a Special Measures Manager to take over the functions of the Accountable Person, where there is a significant failure or repeated failures to comply with their statutory duties.

Building control reform

82. The Act includes provisions to improve competence levels and accountability in the building control sector by creating a unified professional and regulatory structure for building control, changing and modernising the existing legislative framework.
83. The Building Safety Regulator will be required to establish and maintain a register of building inspectors (individuals) and building control approvers (either organisations or individuals). These changes introduced through the Act are reflected in new titles for individuals and organisations.
84. Individuals and organisations currently known as "Approved Inspectors" who wish to continue undertaking building control work will need to register as "building control approvers".
85. The role of a registered building inspector being introduced through this Act is new. A registered building inspector is an individual who will be able to provide advice to local authorities or registered building control approvers overseeing building work. Many inspectors in local authorities and Approved Inspectors are expected to transition to this role.
86. The Act also removes the ability for a person carrying out building work on higher-risk buildings to choose their own building control body where building control is required. The Building Safety Regulator will be the building control body for these buildings.
87. Additional amendments to existing legislation:
    • give obligations to the local authority, registered building control approver and person carrying out the work to cancel an initial notice when the work covered by the notice becomes higher-risk building work;
    • amend the existing powers and obligations for local authorities, registered building control approver and the person carrying out the work to cancel initial notices for non-higher-risk building work;
    • give powers to the Building Safety Regulator to be able to enforce building regulations when non-higher-risk building work becomes higher-risk building work;
    • allow the Secretary of State to make regulations as to how the new regulatory regime for higher-risk buildings will be applied (if at all) to a public body designated under sections 5 or 54 of the Building Act 1984;
    • enable a local authority and the Building Safety Regulator to seek information from a registered building control approver where it has ceased to supervise a project;
    • require the Building Safety Regulator to set up the new national electronic register/portal of information governing the work of registered building control approvers;
    • amend the existing powers to give the Secretary of State the ability to designate bodies for the purposes of publishing criteria for and/or approving an insurance scheme; and
    • create a new process to appoint a new registered building control approver where an existing approver ceases to supervise work and the existing works may or may not have been signed off by the previous approver.

Other provisions

Strengthened Fire Safety Order

88. To support the whole-system approach to the management of building and fire safety in higher-risk buildings in occupation, the Act includes provisions to strengthen the Fire Safety Order in order to support greater compliance and effective enforcement, which will better protect relevant persons’ safety in regulated premises. These amendments are proportionately aligned to risk. The amendments require that:
    • the Responsible Person must record their fire risk assessment;
    • the Responsible Person must not appoint a person to assist them with making or reviewing a fire risk assessment unless that person is competent;
    • the Responsible Person must record their fire safety arrangements;
    • for buildings consisting of two or more sets of domestic premises, the Responsible Person(s) must provide specific fire safety information to residents about relevant fire safety matters, and must keep records of the relevant fire safety matters;
    • the Responsible Person must take reasonable steps to identify themselves to all other Responsible Persons in the same premises, inform them of their name and United Kingdom address and the part of the premises they consider themselves to be Responsible Person for and keep a record of that information;
    • departing Responsible Persons must provide specific relevant fire safety information they hold to incoming Responsible Persons for premises or parts of premises for which they are responsible, keeping records of the fire safety information;
    • for higher-risk buildings in England, the Responsible Person must identify and co-operate with Accountable Persons in the same premises to enable them to carry out their duties under the Building Safety Act;
    • increased financial penalties of unlimited fines apply for the criminal offences of impersonating an inspector, failing to comply with any requirements imposed by an inspector, and failing to comply with requirements relating to the installation of luminous tube signs; and
    • Article 50 of the FSO (recently amended by the Fire Safety Act 2021) which relates to the provision of guidance for Responsible Persons, be amended to expressly provide that the Court may take compliance or non-compliance with such guidance into account when considering offences of breach of the Order.

Construction products

89. The previous regulatory framework for construction products, derived from the EU Construction Products Regulation 2011 (EU No 305/2011) as retained in UK law, covers some of the products placed on the UK market. This framework only applies to products where a designated standard has been adopted or a UK Technical Assessment applies - some 400 product families. The Act provides powers so that all construction products marketed in the UK fall under a regulatory regime, allowing them to be withdrawn from the market if they present a risk.
90. The Act creates powers to make provision for regulation of all construction products placed on the UK market. Firstly, it takes powers to make regulations requiring manufacturers to ensure that the products they supply are safe.
91. The Act also creates powers for the regulation of "designated products", which covers the same products regulated by the EU framework.
92. The Act creates the concept of a "safety critical product" and gives the Secretary of State the power to make regulations to place safety critical products on a statutory list. The Act takes powers for the regulation of such products against safety critical standards.
93. The Act creates powers to create new civil penalties and criminal offences for breach of the new regulations. The existing regime is mainly enforced locally by Trading Standards. The Act creates powers for an enforcement regime to support the new regulatory regime as well as create additional enforcement powers for the existing regulatory regime for the Secretary of State, which will pave the way for us to set up a national regulator for construction products within the Office for Product Safety and Standards (OPSS) to discharge these powers. These powers will allow Trading Standards’ existing enforcement regime to be extended to cover the new regulatory requirements. The Act also creates powers to allow for charging and provide for recovery of costs.
94. The Act creates powers to make regulations allowing the sharing of information about construction products between regulators, which could include, for example, between the new national regulator for construction products, the Building Safety Regulator and local authority building control.
95. The Act provides an ambitious toolkit of measures which will allow those directly responsible for defective building work to be held to account.
96. One of these measures introduces a new cause of action which allows for manufacturers and sellers of construction products to be held accountable where the use of a construction product in construction works causes or contributes to a dwelling being unfit for habitation on completion of those works. This applies retrospectively, in relation to construction products which are cladding products only, and where the relevant products are in breach of regulations, inherently defective, or have been mis-sold. Prospectively, it applies to all construction products, where the relevant product is in breach of regulations, inherently defective, or has been mis-sold. The limitation period for work completed before commencement will be 30 years; the limitation period for work completed after commencement will be 15 years.
97. The causes of action in this act apply equally in England and Wales and Scotland. The Act provides a power for the causes of action to be extended, by regulations, to Northern Ireland.
98. A further power in the Building Safety Act to make regulations will enable the Secretary of State to make a costs contribution order or apply to the court for an order to be made, to require construction products manufacturers, their authorised representatives, importers and distributors ("economic operators") to pay for or contribute towards the cost of remediation works.
99. The Secretary of State would be able to use this power following a successful prosecution for non-compliance with construction product regulations, where use of the relevant product in the construction, or further works, has caused or contributed to making dwellings unfit for habitation.
100. This power applies UK wide.

New Build Warranties

101. At present, 10-year warranties are provided on new homes as a requirement to obtain mortgage finance rather than as a legal requirement. As part of the general aim of improving the safety and standards of buildings, this Act mandates provision of warranties in law.
102. The Act sets a legal requirement for the developer of every new build home to provide a warranty for the benefit of a purchaser. The warranty must meet minimum standards, which will be set in regulations. The warranty must be for a minimum term of no less than 15 years.
103. The Act also enables the Secretary of State to set out in regulations i) the level of financial penalties that could be issued to developers selling new build homes without a compliant warranty, including provision for interest or additional penalties for late payment and ii) the process for considering and issuing such penalties and the right to appeal.
104. The minimum warranty term of 15 years mirrors the extended limitation period to bring litigation under section 1 of the Defective Premises Act 1972 and section 38 of the Building Act 1984.

Improving the competence of architects

105. The Act amends the power for the Architects Registration Board (ARB) to monitor competence of the architects on their Register. To use the title "architect", a person must be on the Architects Registration Board’s Register. Currently, architects are not required to undertake Continuing Professional Development (CPD) or any competence checks throughout their career.
106. This power extends to all architects on the Register. The Architects Registration Board will set the criteria, in consultation with relevant bodies (such as the Royal Institute of British Architects) and other bodies in the sector, where appropriate. If an architect does not meet these requirements, the Architects Registration Board will have the power to remove them from the Register. The architect will be able to appeal such a decision to the new Appeals Committee, to be introduced by the Act.
107. Existing architects will be able to apply to the Architects Registration Board for time extensions if they are unable to meet the prescribed criteria by the set date. If they do not meet the criteria by the extended date, they will be removed from the Register.
108. Until now, if an architect was sanctioned, their ruling was listed on the Architects Registration Board website. The Act amends the Architects Act 1997 to allow disciplinary orders to be listed alongside the architect’s name on the Register, to increase transparency for consumers wishing to procure architectural services. The Architects Registration Board will create rules to determine the length of time until a disciplinary order is "spent" and can be removed from the Register.
109. The Act allows the Secretary of State to make regulations about fees that the Architects Registration Board can charge. Such regulations will enable the Architects Registration Board to expand their list of chargeable services, as the current list is limited and does not cover the full range of services provided by the Architects Registration Board. The intention is that this would be on a cost-recovery basis, as the Architects Registration Board is self-funded.

Removal of the democratic filter

110. The Act includes provisions that enable social housing complainants to escalate a complaint to the Housing Ombudsman service directly, once they have completed their landlord’s complaints process, thereby increasing the speed of redress.
111. This is achieved by removing the existing requirement ("the democratic filter") for social housing residents wishing to escalate their complaint to the Housing Ombudsman to do this via a "designated person"; that is, an MP, Councillor or recognised tenant panel, or wait eight weeks after the end of their landlords’ complaints process.

New Homes Ombudsman scheme

112. The Act includes provisions that allow relevant owners of new build homes to escalate complaints to a scheme to be known as the New Homes Ombudsman scheme. The Secretary of State must make arrangements for a scheme to be available for complaints against members of the scheme to be investigated and determined by an independent person.
113. The New Homes Ombudsman scheme must meet minimum requirements set out in the Act. The Act includes provision for the Secretary of State to provide financial assistance to the New Homes Ombudsman scheme.
114. The Act introduces a power to require developers, or developers of a specified description, to become, and remain, members of the New Homes Ombudsman and to provide information to new build homebuyers about the scheme, and makes provision for sanctions should developers breach these requirements. Developers who receive a sanction will be able to appeal that decision. The Act includes the provision for the Secretary of State to make payments to enforcement bodies to investigate and impose sanctions in respect of breaches by a developer.
115. The Act also includes provisions requiring the person who maintains the scheme to maintain a register of members, which must be available for inspection by members of the public.
116. Finally, the Act introduces a power to issue or approve a code of practice about the conduct and workmanship expected of members of the New Homes Ombudsman scheme. Where a code of practice is issued or approved by the Secretary of State, the Secretary of State must ensure the current version of the code is published.
117. The New Homes Ombudsman scheme, (which will include provision about the matters in relation to which complaints about members may be made under the scheme) must include provision for complaints about non-compliance with the code of practice.