The Bill is intended to ensure that building safety is a top priority and to address issues with a lack of accountability during the life cycle of a building. It creates an independent Building Safety Regulator which will be established by the Health and Safety Executive (HSE). The Building Safety Regulator will oversee the design, construction and occupation of high-risk buildings and will also give advice to local regulators, landlords and building owners, the construction and building design industry as well as to building occupants.
Gateways to achieve a ‘golden thread’
A new ‘Gateway’ regime will ensure that building safety risks are considered at each stage of a building’s planning and design, construction, and pre-occupation.
Gateway one covers the planning stage of a building, and will largely utilise existing planning permission processes. Planning applications will need to demonstrate that fire safety requirements have been considered and incorporated into the proposals. The Building Safety Regulator will have specialist fire safety input, to assist the Local Planning Authority in their approval processes.
If the Building Safety Regulator becomes aware of construction of a high risk building that has not been through gateway one, they have the powers to issue a ‘stop notice’, requiring construction to cease immediately.
Gateway two requires the Building Safety Regulator to be satisfied that a building’s design meets the functional requirements of the Building Regulations. Construction duty holders will need to submit critical information to the Building Safety Regulator to demonstrate how the building, once built, will comply with the requirements of Building Regulations.
Gateway three begins when construction of the building is completed, and the building control body assesses whether the work has been carried out in accordance with the Building Regulations. Documents and information on the final, as-built building must be submitted to the Building Safety Regulator who will then issue a completion certificate, if they are satisfied.
All three Gateways are intended to create ‘golden thread’ of safety information about a building, ensuring the right information is available to the right people, at the right time.
Mandatory Occurrence Reporting
The Bill establishes a Mandatory Occurrence Reporting System for the compulsory reporting of what is referred to as ‘structural and fire safety occurrences’ to the Building Safety Regulator. Dutyholders in the design and construction of buildings and the building Accountable Person are required to establish reporting processes for mandatory occurrence reporting.
Explanatory notes supporting the Bill state that secondary legislation will include a list of categories of occurrences which must be reported, and that reporting will likely be via an online portal.
Reportable occurrences are expected to include substandard products provided for use in construction which impact safety, defective installation of fire proofing, structural failures of a building, failure of building components such as fire doors, failures of installed fire safety systems as well as major events such as fires.
The Bill introduces new roles for building safety management once it is occupied.
An Accountable Person is defined as the dutyholder of a building during its occupation (after the building has passed gateway three). This could be an individual, a partnership or corporate body. An Accountable Person’s responsibilities include:
Registering a building with the Building Safety Regulator.
Applying for a Building Assurance Certificate, which is issued when the Building Safety Regulator is satisfied the Accountable Person is complying with their duties under the Bill.
Assessing (and revising as necessary) building safety risks and taking all reasonable steps to prevent the occurrence, and control the impact of, a major incident arising from building safety risks in or around the building.
Preparing (and revising as necessary) a safety case report for a building which contains their assessment of the building safety risks and the steps that have been taken to prevent a major incident.
Keeping information on a building and ensuring it is up to date.
Developing systems for investigating complaints and for Mandatory Occurrence Reporting.
Appointing a Building Safety Manager.
Building Safety Manager
A Building Safety Manager can be an individual or organisation whose principal role is to support the Accountable Person in the day to day management of fire and structural safety in the building. Their responsibilities include:
Managing occupied buildings in accordance with the safety case report.
Ensuring requirements of the Building Assurance Certificate are complied with.
Notifying the Accountable Person if the building safety assessment is no longer valid or more needs to be done to prevent a major incident.
Operating the building’s complaints system.
Mandatory Occurrence Reporting.
Complying with all directions given and statutory notices issued by the Building Safety Regulator.
Cooperating with other occupiers or owners of the building, including any other person acting as the Responsible Person under the Fire Safety Order, to secure an integrated approach to managing building safety risks.
Special Measures Manager
Where there have been repeated breaches of the statutory obligations by the Accountable Person, the Building Safety Regulator can apply to the First-Tier Tribunal (concerned with property and land disputes) for an order to put in place to appoint a Special Measures Manager. They will be appointed to manage the fire and structural safety of the building in accordance with measures set out in the order made by the Tribunal.
What does this mean for ‘existing’ dutyholders?
In two words? Possible upskilling.
A competency steering group (CSG) worked with the Ministry for Housing Communities and Local Government (MHCLG) to define competency standards for dutyholders under the Bill. Working Group 8, within the CSG has developed a competency framework for Building Safety Managers which includes building systems, building operations, risk management, leadership and planning, operational practice and monitoring and control.
Their report outlines how a Building Safety Manager could be assessed for competence, including completion of an online assessment, the production of a development portfolio and a professional interview (possibly similar to becoming a Chartered Member of IOSH). The report also contains a lengthy model job description.
Property managing agents who currently carry out day to day building management duties for property owners will need to review their existing competencies as to whether they can fulfil their duties under the Bill if they wish to act as a Building Safety Manager. Housing providers will need to consider how they will create Building Safety Manager roles for their properties.
The Bill will certainly present some challenges for an Accountable Person, who are typically quite far removed from day to day property management and may not event be based in England. How would they attain the knowledge and competence to fulfil their responsibilities? Chances are, they will look to ‘outsource’ these tasks (but not their accountability) to others, most likely the Building Safety Manager.
Application of the Bill in the future
Existing buildings which fall into scope (residential buildings above 18m or six storeys in height) are expected to comply with the Bill. The Government is expected to provide further detail on how existing buildings will be brought under the Bill, but this will most likely be a defined time period for transition and compliance.
Explanatory notes supporting the Bill state that: ‘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’. This means that other buildings could be brought into scope in the future, such as residential premises under the 18m/six storey threshold, hospitals, care homes, prisons, and offices.
When will the Bill come into force?
General opinion is that the Bill will not come into force until 2024, however the work that might be needed to comply with the Bill, shouldn’t be put off. The work is likely to include considering which current and future buildings will fall into scope of the Bill, gathering information to create the ‘Golden Thread’, thinking about what document storage requirements you need in order to record building information, the work needed to bring existing buildings up to standard (so they can continue to be occupied), what upskilling might be needed for dutyholders and finally, how all this will be paid for.