Building Safety Act FAQs

It builds on the recommendations within Dame Judith Hackitts’ Independent Review of the Building Regulations and Fire Safety final report published in May 2018. RICS has been working closely with and advising government on the changes

The Building Safety Act 2022 (Commencement No.1, Transitional and Saving Provisions) Regulations 2022 (Statutory Instrument no.561) were published in May 2022 setting out a timeline for implementation of some of the provisions of the Act this year.

Part 1: Introduction

Part 2: The Regulator and its functions

Part 3: Building Act 1984

Part 4: Higher-risk buildings

Part 5: Other provisions about safety standards, etc

Part 6: General

In addition there are 11 Schedules;

Schedule 1: Amendments of the Health and Safety at Work etc Act 1974

Schedule 2: Authorised officers: investigatory powers

Schedule 3: Co-operation and information sharing

Schedule 4: Transfer of approved inspectors’ functions to registered building control approvers

Schedule 5: Minor and consequential amendments in connection with Part 3

Schedule 6: Appeals and other determinations

Schedule 7: Special measures

Schedule 8: Remediation costs under qualifying leases

Schedule 9: The New Homes Ombudsman Scheme

Schedule 10: Amendments in connection with the new homes ombudsman scheme

Schedule 11: Construction products regulations

See this link to the Act table of contents, with interactive links to each section.

Explanatory Notes have now been published, with interactive links to sections and pages, which will help you navigate through this lengthy Act. These notes also have;

Commencement

Financial implications of the Act

Related documents

And finally 3 Annexes;

Annex A – Territorial extent and application in the UK (subject to devolved nations take up). See attached pdf.

Annex B – Hansard References

Annex C – Glossary

The Fire Safety Act 2021 was also implemented in Wales, by The Fire Safety Act 2021 (Commencement) (Wales) Regulations 2021, which came into effect on 1st October 2021.

The Building Safety Act 2022 has not yet been implemented in Wales, and no new national regulator such as the BSR has been set up. More information on changes in Wales will be posted here for future reference. See this link to the Audit Wales report published August 2023 on building safety in Wales.

The Building Safety Act 2022 does not generally apply in Scotland. For the only relevant parts refer to the Annex A – Territorial extent and application in the UK (subject to devolved nations take up).

The Act will create a clear, proportionate framework for the design, construction and management of safer buildings in England in the years to come (note the Act will not apply to Scotland and in limited parts to Wales, and Northern Ireland).

It will strengthen the construction products regulatory regime, with new requirements to make sure more products are safe, while paving the way for a National Regulator for Construction Products to oversee and enforce the rules.

A new developer tax, and a levy on developers, are also being introduced to ensure that the industry makes a contribution to the costs of correcting existing defects in buildings. To date, over 30 large developers have committed to a Government pledge to rectify defects in buildings they built going back 30 years. Not all developers have yet committed.

Regulations to implement the first phase of the Responsible Actors Scheme passed into law on 3 July 2023. Eligible developers who do not join the Scheme and comply with its conditions will have planning and building control prohibitions imposed on them.

Change made:

Updated with information on and links to the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023, that passed into law on 3 July 2023.

An Interim Industry Competence Committee has been established by the Health and Safety Executive (HSE) ahead of the Act requirements for an Industry Competence Committee, and this interim committee will be ensuring that competence of all involved in the design, construction, and management of buildings is ramped up, including resident engagement and communications.

RICS is currently reviewing our pathways and competencies framework, comparing our requirements at the point of entry to the profession against the frameworks being created for the new regulated roles.

This follows making knowledge and understanding of fire safety a core competency requirement for chartered building surveyors in 2018, having already been a core competency requirement for chartered building control surveyors.

Any changes will be consulted on; however, we do anticipate that for those professionals who wish to work on HRBs, there will need to be an accreditation with demonstrable third-party validation as well as a public register. Training will also be developed to support our professionals through these changes.

The new role of Building Safety Manager (BSM) is now scrapped.

It will also require a ‘golden thread of information’, with safety considered at every stage of a building’s lifetime, including during the earliest stage of the planning process (Gateway 1).

Building owners will need to demonstrate that they have effective, proportionate measures in place to manage safety risks, and will need to register their buildings. Any incidents will also need reporting to the Building Safety Regulator, which will be within HSE.

The Regulatory Reform (Fire Safety) Order 2005 will also be amended, to ensure tougher sanctions for non-compliance. Those who don’t meet their obligations may face criminal charges.

And if residents feel concerns are being ignored, they can raise them with the Building Safety Regulator (BSR) directly.

All homeowners will also have more than twice the amount of time, from six years currently to thirty years, to claim compensation for sub-standard construction work as a result of amendments to the Defective Premises Act 1972, extending the time in accordance with the Limitation Act.

This will apply retrospectively – meaning that, properties built up to 30 years prior to this change coming into effect will be able to bring a claim for compensation for defective work.

However, the Act will not affect the current requirements for leaseholders to contribute towards the costs of remediation for combustible cladding and other building/fire safety defects where government funding is not available, for blocks below 11m. For buildings 18m+ / 7-stories or more, the Building Safety Fund is available for cladding remediation and the Government have committed again to the principle that leaseholders should not have to pay. For 11-18m buildings, a further £4Billion fund has been announced, and developers and product manufacturers are expected to pay. However, there is a cap of £10K outside London, and £15K within Greater London so leaseholders may have to still contribute, but only if all other options have been exhausted.

The leaseholder protection provisions of the Building Safety Act came into force 28 June 2022, at which point landlords will be financially liable, in law, for the remediation of historical building safety defects. Moreover, the ultimate owners of buildings can no longer hide behind shell companies: they must take responsibility for the dangerous buildings they own. Anyone who chooses to breach the statutory protections will be committing a criminal offence. Individuals involved in such criminal activity could face up to 10 years in prison, in addition to the consequences for their companies. Criminal exploitation of leaseholders will be treated as a matter of the utmost seriousness.

RICS is aware that there is a potential issue with leaseholders being granted lease extensions after 14 Feb 2022. These may not have the protections granted by the BSA. We recommend leaseholders seek legal advice and carefully consider how to preserve the BSA protections before proceeding with a lease variation or new lease.

The Building Safety Regulator was established to protect high-rise residents from unsafe building practices in England in response to the Grenfell Tower fire.

Under the Building Safety Act, high-rise residential buildings which are 18 metres tall or higher, or at least seven storeys, with two or more residential units are defined as ‘higher-risk’.

Across England there are approximately 12,500 of these buildings and the new regulator will require all of them to be registered from April 2023, with a named person responsible for maintaining their safety.

A new campaign aimed at owners and managers of high-rise residential buildings will highlight their new legal duties. It will call on those responsible for the safety management of higher-risk buildings to prepare for a new wave of regulatory change to ensure that they are ready to step up and comply.

The registration process is a crucial stage in setting up the new building safety regime. Registering buildings in scope will be a legal requirement and owners and managers who fail to comply by October 2023 will be investigated and may face prosecution.

Applying to register a high-rise residential building? See this guidance for a Principal Accountable Person here.

Guidance on registering multiple structures

The Department for Levelling Up, Housing and Communities has published guidance to help register buildings with complex structures.

If your building has two or more structures that are attached, you need to assess the ‘independent section’ criteria to see if they count as one building or should be registered separately.

A higher-risk building (HRB) is defined as a building in England that:

is at least 18m in height or has at least 7 storeys; and

contains at least 2 residential units.

A ‘residential unit’ is defined as a ‘dwelling’ or any other ‘unit of living accommodation’, and so has wide meaning.

The concept of ‘dwelling’ as applies under the Landlord and Tenant Act 1985 is likely to apply (‘a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it’).

The addition of the alternative ‘unit of living accommodation’ gives the term a much wider meaning since it is likely to include (for example) student accommodation and other temporary accommodation where basic amenities are provided (although secure residential institutions, hotels, & military barracks / MOD living accommodation are not within scope).

The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 regulations indicate that, during the construction phase, the definition of higher-risk buildings is extended to include care homes and hospitals that meet the height requirement. Note that this extension does not apply to the occupation phase.

Construction phase – There is a new building control regime, ‘Gateway’ requirements, and the imposition of various duties, culminating in obtaining a Completion Certificate from the Building Safety Regulator (BSR) before occupation can occur.

Occupation phase – There is a new occupation regime, with a requirement for Accountable Persons and the Principal Accountable Person to fulfil various duties, including for the latter the duty to ensure that the building is registered with the BSR.

What is a ‘relevant building’?

New rights and remedies have also been introduced to protect leaseholders (amongst others) in relation to existing relevant residential buildings in England that:

are 11m+ in height or more than 5 storeys; and

contain at least 2 dwellings.

These include:

Remediation Orders – which can be sought against a landlord (usually the building owner) to require the remediation of specified relevant defects.

Remediation Contribution Orders – which require a specified body corporate or partnership to make payments to a specified person for the purpose of meeting costs incurred or to be incurred in remedying relevant defects. There is a very wide scope of who can be subject to these orders, with the courts even able to look beyond the corporate veil to parent and sibling entities, or to consider those who were associated with an insolvent landlord.

Schedule 8 Leaseholder Protections – which include that landlords cannot include the costs of cladding remediation works into the service charge.

Note that the application of these provisions is narrower since the wide-ranging alternative ‘unit of living accommodation’ is not relevant to the definition of buildings in scope for these protections.

A copy of the regulations can be found here and the associated explanatory memorandum can be found here. A government response to the consultation on the regulations can be found here.

Read the HSE guidance published here.

The regulations set out the high-level information (the key building information) that the Principal Accountable Person (the person responsible for the repair of the structure and exterior of the building) will have to provide to the Building Safety Regulator. The regulations also clarify the parts of a higher-risk building for which Accountable Persons are responsible, when there are multiple Accountable Persons.

The key building information is high-level information that will enable the Building Safety Regulator to: analyse trends and risks in high-rise residential buildings; prioritise the assessment of the fire and structural safety in existing high-rise residential buildings and so effectively tranche the call-in and assessment of Safety Case Reports; identify similar buildings or systems if an issue emerges. The key building information is high level information and will not contain all the information that will be required in the golden thread.

Clarifying the parts of a building for which Accountable Persons are responsible is essential where there is more than one Accountable Person involved in the ownership of a higher-risk building. Residential building ownership is not always straight forward with multiple Accountable Persons having entered complex lease arrangements dictating the repairing responsibilities of different parts of the building. The regulations will enable those involved in the building safety management of a higher-risk building to identify which Accountable Person is responsible for a particular part of a building in relation to their responsibilities under the Building Safety Act.

is at least 18m in height or has at least 7 storeys;

Sections of The Fire Safety (England) Regulations 2022 also are applicable to buildings over 11m / 5 stories or more, so it is important to know the height of a building.

Counting the number of storeys should be fairly easy, but remember not to include the basement if the floor is below ground level – it is only the ground floor and all stories with accommodation above, not including plant rooms etc on/in the roof.

To measure the building to establish it’s height in metres, use the useful diagram D6 in p.145 of Approved Document B (Volume 1: Dwellings) to the Building Regulations – see this link. Remember to measure to the finished floor level of the uppermost habitable storey to the ground level on the lowest side of the building.

The extended limitation period for claims will apply both prospectively and retrospectively. The changes allow for residential property owners to challenge sub-standard construction work that may have become apparent after the existing six-year limitation period. This means that work that had previously been discounted as being out of time, could now be resurrected and claims be brought as a result of the retrospective effect of the changes.

Since the Grenfell tragedy, a hardening PII market and insurers concern around the building regulations alongside exposure to fire safety, have resulted in the reduced availability of PII and significant increases in premium cost. The retrospective extension of the period of limitation will not be viewed positively by insurers, who have been concerned by changes to building regulations, and brings back into scope previously discounted risks which have not been priced into their reserves for claims or into the premiums of the risks that they are currently underwriting. At a time when insurers are assessing their construction exposure, the increased limitation period for which claims can be made may result in insurers assessing their involvement in the market.

As a result, the legislative change is likely to negatively impact the availability and cost of PII for RICS regulated firms in an already extremely challenging market. We will work with Government, insurers and other stakeholders to limit the impact of these measures as the legislation is implemented and ensure that adequate and affordable PII remains in place.

The report should give the reader confidence that you:

• have identified your building’s major fire and structural risks
• are managing and controlling them

These will be required to be prepared by the Accountable Person (see below) and will be called in by the BSR every 5 years, starting with 2024, and who will issue a Building Assessment Certificate. The certificate will not certify a building is safe. The intention will be to start with the riskier potentially less safe buildings. Details of what should be in a Safety Case Report are here. These reports will be available to residents on request.

HSE have published a further five guides on preparing for the new safety case regime and asks for your help in sharing this information. The guides are designed to help those in control of high-rise residential buildings (HRRBs) to meet their legal duties under the Building Safety Act, 2022. As part of the new regime, any ‘in scope’ building will need to prepare a safety case to demonstrate that the building is safe from the risks of fire spread or structural collapse. An ‘in scope’ means buildings that are at least 18 metres in height or have at least seven storeys and at least two residential units.

The purpose therefore is to ensure that fire safety is thought about at the earliest stage possible and not end up being overlooked at planning permission stage and baked in to any development when it could then prove problematic trying to change the design at a later stage. A development must pass PGO to progress to Gateway 2 (before building work starts).

It only applies currently to residential HRBs and educational accommodation buildings.

Further information is available on the Planning Portal here.

The AP will usually be an organisation or business but could also be an individual.

The AP will have a duty to take all reasonable steps to:

• prevent a building safety risk happening, with building safety risk defined as ‘spread of fire and/or structural failure’

• reduce the seriousness of an incident if one happens.

Competence validation will be an expected strong focus, and RICS is working with HSE to understand further how this will need to be demonstrated in future.

The Building Safety Regulator (BSR) intends to open a register of building control professionals in England on 1 October 2023. RICS is seeking approval as an independent competence assessment scheme provider to ensure that its members can demonstrate their competence to fulfil the different registration classes as defined in the newly published Building Inspector Competence Framework (BICoF). A survey has been issued to all members involved in building control to inform this.

The HSE BSR has now published (28 April 2023) the final version BICoF for the transitional period to April 2024 here. See also this link to the OSRs (Operational Standards Rules) and Code of Conduct published by the BSR.

The Code of Conduct for Registered Building Inspectors (RBIs) and Professional Conduct Rules for Registered Building Control Approvers (RBCAs) have now been updated and published 3rd July 2023.

All Registered Building Inspectors, public and private sector, must comply with the Code of Conduct coming into force in April 2024. It sets out the standards of professional conduct and practice required of individuals performing their role as a building inspector registered with the Building Safety Regulator.

The Professional Conduct Rules apply to Registered Building Control Approvers. They set out standards of professional conduct and practice expected of Building Control Approvers in the private sector registered with Building Safety Regulator coming into force in April 2024.

a new legal requirement for all Responsible Persons to record their fire risk assessment in full (previously only the significant findings needed to be recorded and only in specific circumstances);

a new legal requirement for all Responsible Persons to record the identity of the individual (their name and/or if applicable, their organisation) engaged by them to undertake and/or review a fire risk assessment;

a new legal requirement for all Responsible Persons to record their fire safety arrangements (demonstrating how fire safety is managed in their premises);

a new legal requirement for all Responsible Persons to record (and as necessary update) their contact information, including a UK based address, and share this with other Responsible Persons and residents of multi-occupied residential premises where applicable;

a new legal requirement for all Responsible Persons to take reasonably practicable steps to ascertain the existence of other Responsible Persons and, where applicable, Accountable Persons (a new legal entity made under the Building Safety Act 2022 in the case of higher-risk residential buildings) who share or have duties in respect of the same premises, and to identify themselves to said persons;

a new legal requirement for the departing Responsible Person to share all ‘relevant fire safety information’ with the incoming Responsible Person;

a new legal requirement for all Responsible Persons in a building containing two or more sets of domestic premises to provide residents with relevant fire safety information in a format that is easily understood by the residents;

an increase in the level of fine that can be issued for offences in relation to the intentionally deceptive impersonation of a fire inspector, failure to comply (without reasonable excuse) with specific requirements imposed by a fire inspector (such as by not providing a copy of the fire risk assessment when requested), and failure to comply with requirements relating to the installation of luminous tube signs, to the maximum possible, bringing them into line with all other offences under the FSO, and;

a new legal provision that in court proceedings for alleged breaches of the Fire Safety Order, compliance with or deviation from guidance issued under Article 50 may be relied upon as tending to establish whether or not there was a breach of the Fire Safety Order.

https://www.gov.uk/government/publications/check-your-fire-safety-responsibilities-under-section-156-of-the-building-safety-act-2022

S.156(4) is not at this stage being commenced (duty on RPs to appoint a competent fire risk assessor).

The BSR will begin assessing Building Assessment Certificate applications in April 2024.

All building control professionals will need to register with the BSR by 1st April 2024 – the register will open in October 2023.

S.156 of the BSA comes into force 1st October 2023. This makes a number of amendments to the Regulatory Reform (Fire Safety) Order 2005. S.156(4) is not at this stage being commenced (duty on RPs to appoint a competent fire risk assessor).