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Social Housing Speed Read – The Building Safety Bill

The Building Safety Bill has been four years in the making, much speculated over, and on 5 July 2021, was finally published by the Government.

Whilst leaseholders were hopeful that the Bill would provide them with additional protections – preventing the hefty costs of remediation works from being passed down to them – the Bill is primarily focused upon the construction and maintenance of high risk buildings.

The Bill does however acknowledge the existing ambiguity – particularly for residents – around who is responsible for ensuring the fire safety of a building and whether or not said person is considered competent. The Bill aims to rectify this, requiring fire information to be provided to residents – by the person responsible for the building – and emphasising the need for competence amongst those carrying out risk assessments.

Below we provide a brief summary of the highlights of the Building Safety Bill:

Higher Risk Buildings

The Bill creates the concept of “higher-risk buildings”, being a building that is at least 18 metres high or has at least 7 storeys and contains at least 2 residential units.

Accountable person

The Bill also creates the concept of an “Accountable Person”, being ‘the person who either has the legal estate in possession of, or is under a relevant repairing obligation, for any part of common parts of the building’. This person is most likely to be the freeholder or management company; where both exist, the freeholder will be the “Principle Accountable Person”.

The Accountable Person is responsible for:

  • ensuring statutory duties are met;
  • registering the building with the Regulator – new high-rise buildings must be registered before occupation;
  • applying for a building assessment certificate;
  • conducting an assessment of building safety risk;
  • registering a case report within the “Golden Thread”;
  • creating a resident engagement strategy and complaints procedure;
  • appointing a building safety manager who will run the building on a day to day basis.

This appears to be an onerous and expensive role – with some owners looking to outsource this position – as failure to register the building or apply for a building assessment certificate may attract criminal liability.

Gateway Points

The Bill has introduced three “gateway points” when developers must demonstrate adherence to the requirements of the Bill, in the design and build of new high rise blocks.

  1. Planning – applications discuss fire safety issues and include a fire statement; this is due to come into force on 1 August 2021.
  2. Construction – building control approval must be obtained from the Building Safety Regulator prior to construction; developers may be prosecuted if they commence building without the Regulator’s approval.
  3. Completion – before occupation, the Regulator will assess/inspect the building and issue a completion certificate.

Construction

During construction, the ‘principal contractor’ and ‘principal designer’ will be responsible for signing a declaration confirming that the building complies with building regulations. They will be subject to a duty to ensure that any works carried out by them, or completed under their control, complies with building regulations.

The Golden Thread

The “Golden Thread” is the concept of accruing information throughout the design and construction of new high rise buildings – concerning how the building has been designed, built and managed – which will be provided to the owner upon completion and added to by the Accountable Person. This information will be stored electronically for the life of the building.

Sanctions

If a building is failing to meet the regulations, it may be put into “special measures”; in which case the Regulator shall appoint a manager to take control of the safety of the building.

The Bill will also create an “Office for Product Safety and Standards” (OPSS) which will have the power to recall from the market those products considered to be a safety risk and prosecute those UK manufacturers who fail to comply. Should the OPSS declare a product as “safety critical”, manufacturers will have to declare its use. The OPSS will also maintain a national complaints system.

Leaseholders

Despite leaseholders campaigning for stricter sanctions for building developers and to prevent the costs of remediation being passed on to them, the Building Safety Bill’s main focus is to ensure the safe construction and maintenance of buildings.

Under the Bill, leaseholders will not be liable for capital works – e.g. removing unsafe cladding – but may be reasonable for remediation costs if the building owner can prove they have exhausted alternative routes to recover the costs.

Leaseholders will be directly responsible for ongoing (not historical) costs, by way of a building safety charge.

Claiming against developers

The Bill has extended the limitation period for leaseholders to claim against the original developers of a building, from 6 to 15 years. This will include construction and refurbishment works and will apply retrospectively.

Despite this radical extension, there are still many high rise buildings that will not benefit from this amendment.

The Bill will bring section 38 of the Building Safety Act into force, meaning leaseholders can claim against developers for breach of duty relating to building regulations. This will also apply for 15 years retrospectively. This amendment is, however, limited by the difficulty leaseholders may have in accruing sufficient evidence to prove breach of the regulations at the time of construction.

If a leaseholder’s claim would contravene human rights or has already been settled or dismissed, this may be a defence to the extended limitation period.

The Building Safety Regulator

The Bill has introduced a new independent regulatory body responsible for overseeing the safe design, construction and occupation of “high-risk buildings”.

The Regulator will be led by Peter Baker, who was the director of building safety and construction at the Health and Safety Executive, and is expected to be fully operational within 12 – 18 months.

The Regulator will:

  • implement a more stringent regulatory regime for high risk residential buildings;
  • promote competence among industry professionals and regulators;
  • oversee the performance systems of all buildings (one regulator will be able to provide guidance on building performance as well as building safety).

The Regulator will establish and maintain three committees to advise on building functions, namely: a resident’s panel; an industry competence committee; and a building advisory committee.

The Regulator may investigate a building if they have concerns and issue a compliance notice, non-compliance with which is a criminal offence.

The Regulator will also have the power to revoke the registration of private building approvers who fall short of the Government’s standards. It may also recommend the Government takeover failing Council building control departments.

Register of Building Inspectors and Building Control Approvers

The Regulator will be responsible for creating and maintaining a register of building inspectors and building control approvers. This change is resultant of the heavy scrutiny which the building control sector has been subject to since the fire at Grenfell. Prior to Grenfell, many buildings, which did not meet building standards, were signed off by local authority and private inspectors.

The Regulator will set and enforce minimum standards and reporting requirements for building inspectors and control approvers; those who are underperforming will be removed from the register.

The New Homes Ombudsman

This has been created to tackle building safety defects in new build homes. Developers will have to become members of the Ombudsman and failure to do so will attract sanctions.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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