Building Safety Act 2022
The Building Safety Act 2022, provides a new framework for the design, construction and occupation of “higher risk” buildings. These are defined as those having at least 18 metres or 7 storeys in height and comprise of at least 2 domestic premises. It introduces a new duty holder: the “Accountable Person”.
Who does this apply to?
This Act applies to the built environment industry, to building owners and managers, building inspectors, local authorities and to residents/homeowners of certain new and existing high-rise residential buildings, establishing new legal duties to keep those buildings safe during occupation.
When did it change?
The Act received Royal Assent on 28 April 2022; the vast majority of provisions will come into force over 12-18 months, as secondary legislation is developed.
In the Act “the built environment industry” means:
• persons carrying on, for business purposes, activities connected with the design, construction, management or maintenance of buildings, and
• employees of such persons.
What does it mean?
The Building Safety Act 2022 (the Act) introduces a strengthened regulatory regime for high-rise and other in-scope buildings (higher-risk buildings), improving accountability, risk-management and assurance.
The Act has 6 Parts, and contains provisions intended to secure the safety of people in or about buildings and to improve the standard of buildings. In summary:
Part 2 contains provision about the building safety regulator and its functions in relation to buildings in England.
Part 3 amends the Building Act 1984 (see ‘What’s changed?’ section below for details).
Part 4 is about occupied higher-risk buildings in England, and imposes duties on accountable persons. It contains provisions about the management of building safety risks as regards occupied higher-risk buildings.
Part 5 contains further provisions, including:
• provisions about remediation and redress
• provision requiring a new homes ombudsman scheme to be established
• powers to make provision about construction products
• further provision about fire safety
• provision about the regulation of architects
• provision about housing complaints.
Part 6 sets out general provisions.
Some definitions
• The built environment industry (section 30) means:
– persons carrying on, for business purposes, activities connected with the design, construction, management or maintenance of buildings, and
– employees of such persons.
• Building safety risk (section 62): a risk to the safety of people in or about a building arising from any of the following occurring as regards the building:
– the spread of fire
– structural failure
– any other prescribed matter.
• Higher-risk buildings (section 65): a building in England that:
– is at least 18 metres in height or has at least 7 storeys, and
– contains at least 2 residential units.
• Occupied higher-risk building (section 71): a higher-risk building is “occupied” if there are residents of more than one residential unit in the building.
• Accountable Person (section 72): the duty holder with overall responsibility for building safety under the Act. This is the person who owns or is responsible for the repair of the common parts of the building (including the structure and the exterior).
• Principal Accountable Person: for a building with just one Accountable Person, that person will automatically become the Principal Accountable Person for that building. Where there are multiple APs for a building, one person will be designated as the Principal Accountable Person (either the building owner or the person responsible.
• Mandatory occurrence reporting system: an accountable person for an occupied higher-risk building must, in prescribed circumstances, give prescribed information to the regulator by the prescribed time and in the specified way. The information that may be prescribed is information that relates to a building safety risk as regards the part of the building for which an accountable person is responsible.
• Common parts in relation to a building: the structure and exterior of the building, except so far as included in a demise of a single dwelling or of premises to be occupied for the purposes of a business, or (b) any part of the building provided for the use, benefit and enjoyment of the residents of more than one residential unit (whether alone or with other persons).
• The regulator: Building Safety Regulator (BSR).
• Safety case report: this report must contain any assessment of the building safety risks by an accountable person for the building, and a brief description of any steps taken by an accountable person for the building. The principal accountable person must revise a safety case report if they consider it necessary or appropriate.
Overview of some key provisions
Part 2 The regulator and its functions
The Building Safety Regulator
The Act names the HSE as the new Building Safety Regulator in England. The three main functions of the BSR are:
• overseeing the safety and standards of all buildings
• helping and encouraging the built environment industry and building control professionals to improve their competence
• leading implementation of the new regulatory framework for high-rise buildings.
The BSR will regulate high-rise buildings. These are buildings with 7 or more storeys or that are 18 metres or higher, and either:
• have at least 2 residential units
• are hospitals or care homes (during design and construction).
The BSR is the building control authority for high-rise buildings.
The regulator must provide such assistance and encouragement to relevant persons as it considers appropriate with a view to facilitating their securing the safety of people in or about higher-risk buildings in relation to building safety risks as regards those buildings.
The regulator must make arrangements for a person to establish and operate a voluntary occurrence reporting system. A “voluntary occurrence reporting system” is a system to facilitate the voluntary giving of information about building safety to the person who operates the system.
Committees
The BSR must establish and maintain three specific committees:
- Building Advisory Committee
- Industry Competence Committee
- Residents’ Panel.
- Building Advisory Committee
The regulator establish and maintain a committee to be known as the Building Advisory Committee, with the following function:
• to give advice and information to the regulator about matters connected with any of the regulator’s building functions except its functions relating to the competence of:
– persons in the built environment industry, and
– registered building inspectors.
The Building Regulations Advisory Committee for England, established under section 14 of the Building Act 1984, is abolished. - Committee on industry competence
The regulator must establish and maintain a committee concerned with the competence of persons in the built environment industry (“industry competence”). The functions are:
• monitoring industry competence
• advising the regulator in relation to industry competence
• advising persons in the built environment industry in relation to industry competence
• facilitating persons in the built environment industry to improve industry competence
• providing guidance to the public (or a section of the public) about ways of assessing the competence of persons in the built environment industry
• carrying out analysis and research in connection with the functions above. - Residents’ panel
This committee must consist of:
• the residents of higher-risk buildings who the regulator considers appropriate
• such relevant persons (if any) as it considers appropriate.
The regulator must take all reasonable steps to ensure that the committee includes:
• one or more residents of a higher-risk building who are disabled,
• a body that represents, supports or promotes the interests of any description of disabled people that includes residents of higher-risk buildings, or
• a member of a body within the above.
The committee is to give advice to the regulator about such matters connected with the regulator’s building functions and relating to higher-risk buildings as the regulator may specify.
The regulator must consult the committee before issuing or revising any of the following:
• guidance to residents of higher-risk buildings about any of their rights or obligations under Part 4 of the Act or regulations made under that Part
• guidance relating to any duty under regulations made under section 89 (Keeping information about higher-risk buildings) to give information or documents to residents of higher-risk buildings or owners of residential units in such buildings
• guidance relating to any of sections 91 to 93 (Residents’ engagement strategy; Complaints procedure) or 95 (Duties on residents and owners) or regulations made under any of those sections (engagement with residents etc, and residents’ duties).
Enforcement
The BSR will:
• exercise its powers in line with regulatory best practice
• take a consistent and proportionate approach
• target enforcement activity at cases where action is needed
• work closely with existing regulators such as local authorities and fire and rescue authorities.
Offences include intentionally obstructing an authorised officer exercising a relevant building function; impersonating an authorised officer; providing false or misleading information to the regulator.
Part 2 of the Act covering the regulator also sets out provisions about:
• plans and reports
• reviews and appeals
• fees and charges
• required documents.
Part 4 Higher-risk buildings
This Part contains provisions about the management of building safety risks as regards occupied higher-risk buildings.
Provisions made in this Part of the Act relate to:
• Definition of building safety risk (as above).
• Recommendations about regulations.
• Definition of higher-risk buildings (sections 65 to 70) and other key definitions (sections 71 to 75).
• The registration of higher-risk buildings and about building assessment certificates (sections 76 to 82).
• The assessment and management of building safety risks, including provision requiring a safety case report to be prepared and revised (sections 83 to 86).
• The keeping and giving of information and documents to the regulator, other accountable persons, residents and others (sections 87 to 90).
• Engagement with residents etc (sections 91 to 94), including:
– provision requiring a residents’ engagement strategy to be prepared and revised
– provision requiring complaints systems to be established and operated.
• Duties on residents and make provision for the enforcement of those duties (sections 95 to 97).
• Enforcement (section 98 to 101).
• Appointment of a special measures manager, to undertake duties under this Part in place of an accountable person, and make further provision in connection with that appointment(section 102 and Schedule 7).
• Appeals (sections 103 to 107).
• Miscellaneous areas, including provision about cooperation and coordination (sections 108 to 111).
• Certain terms to be implied into leases, and contain other provisions affecting the relationship between landlord and tenant or affecting commonholds (sections 112 to 114).
Registration and certificates
Section 76 – Requirements for completion certificate before occupation – applies if any of the following works are carried out:
• The construction of a higher-risk building.
• The creation of additional residential units in such a building.
• Works to a building that cause it to become a higher-risk building.
Registration of higher-risk buildings
On an application by the principal accountable person for a higher-risk building the regulator may register the building. The regulator must publish the register (section 78).
Duty to display building assessment certificate
The principal accountable person for an occupied higher-risk building must ensure that the following are displayed together, in a conspicuous position in the building:
• A notice in the prescribed form containing prescribed information about accountable persons for the building.
• The most recent building assessment certificate relating to the building.
• Any relevant compliance notice.
It is an offence if a person contravenes this, without reasonable excuse.
Duties relating to building safety risks
Section 83 – Assessment of building safety risks – sets out that an accountable person for an occupied higher-risk building must assess the building safety risks as regards the part of the building for which they are responsible, as soon as reasonably practicable after the relevant time.
Further such assessments must be made:
• At regular intervals.
• At any time that the accountable person has reason to suspect that the current assessment is no longer valid.
• At the direction of the regulator, within a timeframe as specified.
Safety case report (section 85)
The principal accountable person for an occupied higher-risk building must as soon as reasonably practicable after the relevant time prepare a report (a safety case report) containing:
• any assessment of the building safety risks made under section 83 by an accountable person for the building, and
• a brief description of any steps taken under section 84 by an accountable person for the building.
The principal accountable person must revise a safety case report if they consider it necessary or appropriate to do so.
“The relevant time” means the time when the building becomes occupied, or if later, the time when the person becomes the principal accountable person for the building.
The regulator must be notified as soon as reasonably practicable after a safety case is prepared or revised (section 86).
Mandatory reporting (section 87)
An accountable person for an occupied higher-risk building must give prescribed information to the regulator by the prescribed time and in the specified way.
The information that may be prescribed is information that relates to a building safety risk as regards the part of the building for which an accountable person is responsible.
The principal accountable person for an occupied higher-risk building must establish and operate an effective mandatory occurrence reporting system which complies with prescribed requirements.
Engagement with residents
Section 91 sets out provision for residents’ engagement strategies, the aim of which is to promote the participation of relevant persons in the making of building safety decisions. The strategy must be reviewed at prescribed times (by the principal accountable person), and revised if considered necessary or appropriate. Relevant/prescribed persons must be consulted on the strategy and feedback considered when it is next reviewed. The principal accountable person for an occupied higher-risk building must also act in accordance with the strategy.
The strategy must include information about:
• The information that will be provided to relevant persons about decisions relating to the management of the building.
• The aspects of those decisions that relevant persons will be consulted about.
• The arrangements for obtaining and taking account of the views of relevant persons.
• How the appropriateness of methods for promoting participation will be measured and kept under review.
As soon as reasonably practicable after the strategy is prepared or revised, each accountable person for the building must give a copy of the strategy to:
• each resident of the building who:
o is aged 16 or over, and
resides in a residential unit in the part of the building for which the accountable person is responsible
each owner of a residential unit in that part of the building
o any prescribed person.
Provisions are also set out in relation to complaints procedures (sections 93-94), and on obligations of residents and owners (sections 95-97).
Under section 98, the regulator has a duty to enforce this Part of the Act and regulations made under it.
Remaining sections of this Part of the Act refer to special measures, appeals, miscellaneous and general, and landlord and tenant etc.
Part 5 Other provisions about safety, standards, etc
Sections 116-155 Remediation and redress: other provisions
The Act has provided new rights to redress. Measures have been introduced with the aim of enhancing the ability of building owners, landlords and leaseholders to seek compensation for historical building safety defects and the use of defective or unsafe products. These measures aim to ensure that those responsible for contributing to the building safety crisis meet the cost of rectifying their mistakes.
To achieve greater accountability for fire and building safety issues during the lifecycle of buildings that are in scope, the Act includes measures increasing access to redress through the Defective Premises Act 1972 (the DPA).
Section 1 of the DPA requires that those involved in constructing a dwelling ensure that the dwelling is ‘fit for habitation’ when the work is completed. The courts have held that dwellings need to remain fit for habitation for a reasonable period thereafter. If, following completion of the work, a dwelling is not fit for habitation, a claim for compensation can be brought by the person who originally commissioned the dwelling, or any person subsequently acquiring a ‘legal or equitable interest’ in the dwelling, such as the building owner, a homeowner or a leaseholder.
The Building Safety Act 2022 has substantially increased the period in which building owners, homeowners and leaseholders can make a claim for compensation following the completion of the defective work under section 1 of the DPA. The limitation period has been extended retrospectively (that is for work already completed) from 6 to 30 years. This means that claims can be brought for work that was completed up to 30 years prior to the relevant provision of the Act coming into force (so back to 28 June 1992).
The limitation period has been extended prospectively (that is for work completed in the future) from 6 to 15 years. For future work, the Act has significantly expanded the type of work that is subject to the duty under the Defective Premises Act 1972. It will now include refurbishments and other work to an existing dwelling
Other measures for redress introduced by the Act include powers for the High Court to make a Building Liability Order and ensures that the original developer can be required to fund remediation work. The Act has also has introduced a new cause of action that will enable claims to be brought against construction product manufacturers and sellers for their role in causing problems associated with building safety.
Section 156 – Fire Safety
Within Part 5 of the Act, section 156 sets out amendment of Regulatory Reform (Fire Safety) Order 2005 – see the What’s changed? section below for more details.
Part 5 of the Act also covers:
• New homes ombudsman scheme.
• New build home warranties.
• Construction products (Schedule 11 contains provision for regulations relating to construction products; this includes general safety requirements).
• Liability relating to construction products.
• Construction products: costs contribution orders.
• Housing complaints made to a housing ombudsman.
Part 6 General
The final part of the Act addresses general areas, for example liability of officers of body corporate etc, where an offence under Part 2 or 4 is committed by a body corporate (eg any director, manager, secretary or other similar officer of the body corporate).
Review of regulatory regime is addressed by section 162, whereby the effectiveness of the regulator may be reviewed, or the effectiveness of the regulation of construction products in the United Kingdom.
Schedules
There are 11 Schedules to the Act:
• Schedule 1 – Amendments of the Health and Safety at Work etc Act 1974
• Schedule 2 – Authorised officers: investigatory powers
• Schedule 3 – Cooperation 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:
– Part 1 – Amendments of the Building Act 1984
– Part 2 – Other amendments
• Schedule 6 – Appeals and other determinations
• Schedule 7 – Special measures
• Schedule 8 – Remediation costs under qualifying leases etc
• Schedule 9 – The new homes ombudsman scheme
• Schedule 10 – Amendments in connection with the new homes ombudsman scheme
• Schedule 11 – Construction products regulations.
What’s changed?
Part 3 Building Act 1984
Part 3 of the Act makes amendments to the Building Act 1984.
Amendments made by Part 3:
• Provide that the regulator is the building control authority in relation to higher-risk buildings in England.
• Require the regulator (for England) and the Welsh Ministers (for Wales) to establish and maintain registers of building control approvers and building inspectors.
Building control regime for higher-risk buildings (Gateways 2 and 3)
The Building Act 1984 was considered insufficient to implement the more stringent measures required by the new regime. Amendments to the Building Act 1984 are made so that new provisions can be made in building regulations.
Further details below, but in general terms amendments to the design and construction regulatory framework for higher-risk buildings introduce the following measures:
• Competence requirements, those appointed to work on a higher-risk project must have the relevant skills, knowledge, experience and behaviours necessary to undertake the role. Organisations must have the right organisational capability.
• Dutyholders that will have accountability and statutory responsibilities when buildings are designed and constructed. Duties will be for those persons and organisations who commission, design and undertake building work to which building regulations apply. Duties will be established in secondary legislation. [Draft regulations for delegated powers have been issued.]
• ‘Gateways 2 and 3’ which will provide rigorous inspection of building regulations requirements, ensuring that building safety is considered at each stage of design and construction.
• A requirement of building information to be created (commonly known as a ‘golden thread’), stored and updated throughout the building’s lifecycle.
• Mandatory reporting to the new Building Safety Regulator of fire and structural safety occurrences which could cause a significant risk to life safety.
Building control authorities and building regulations
“Higher-risk building” means a building in England that:
• is at least 18 metres in height or has at least 7 storeys, and
• is of a description specified in regulations made by the Secretary of State.
For the purposes of this Act as it applies in relation to Wales, “higher-risk building” means a building of a description specified in regulations made by the Welsh Ministers.
The Building Act 1984 (Sections 91, 121) is amended as detailed in Section 32 of the Act (Building control authorities).
The regulator is the building control authority in relation to any higher-risk building in England or any proposed such building.
Changes are also made in Schedule 1 to the Building Act 1984 (building regulations), in relation to:
• Procedural requirements etc: general.
• Applications for building control approval.
• Certificates: approved schemes.
• Obtaining, keeping and giving information and documents.
• Reporting requirements: duty to establish and operate system.
• Form and content of documents etc.
• Inspection, testing etc.
• Applications to building control authorities: extension of period by agreement.
• Appeals.
Dutyholders and general duties
Other amendments to the Building Act 1984 insert/amend provisions around the following:
• Appointed persons.
• General duties:
o building regulations may impose duties on relevant persons in connection with the planning or management of the work, and require relevant persons to co-operate with other relevant persons.
• Industry competence – regulations may impose competence requirements, which is a requirement relating to:
o the skills, knowledge, experience and behaviours of an individual
o the capability of a person other than an individual to perform its functions under building regulations.
• Lapse of building control approval etc.
• Determination of certain applications by Secretary of State or Welsh Ministers.
• Compliance and stop notices.
• Breach of building regulations: including Offence of contravening building regulations.
• Liability of officers of body corporate etc.
• Revocation etc of certain provision made under section 2(2) of ECA 1972.
Part 3 of the Act also makes amendments/insertions to the Building Act 1984 in relation to building control approvers and building inspectors. This section covers:
• Regulation of building control profession.
• Transfer of approved inspectors’ functions to registered building control approvers.
• Functions exercisable only through, or with advice of, registered building inspectors.
• Default powers of appropriate national authority.
• Higher-risk building work: registered building control approvers.
• Higher-risk building work: public bodies.
• Insurance: removal of requirements.
• Plans certificates.
• Cancellation of initial notice.
• New initial notices.
• Information gathering.
• Information.
Miscellaneous and general amendments are also detailed, including minor and consequential amendments.
Schedule 5 of the Act details the minor and consequential amendments in connection with Part 3:
• Part 1 – Amendments of the Building Act 1984
• Part 2 – Other amendments.
Part 5 Other provisions about safety, standards, etc
Amendment of Regulatory Reform (Fire Safety) Order 2005 (section 156)
The Order is amended to place fire safety duties on the Responsible Person (RP) who has control of these premises so that the RP (amongst other things):
• Record their fire risk assessment in full.
• Ensure that they do not appoint a person to assist them in making or reviewing a fire risk assessment unless the person is competent.
• Record the identity of any person appointed by the RP to assist them – with making or reviewing an assessment under Article 9.
• Record their fire safety arrangements.
• Take reasonable steps to ascertain whether there are any other RPs that share or have duties in respect of the premises.
• Inform the other RPs concerned of their name; an address in the United Kingdom at which they, or someone acting on their behalf, will accept notices and other documents; and the part of the premises for which they consider themselves to be an RP, and keep a record of that information.
• When an RP (the outgoing RP) ceases to be an RP and another person becomes the RP, the outgoing RP must give the incoming RP any relevant fire safety information they hold. The RP must keep records of relevant fire safety information in order to do so. This provision contains a regulation making power enabling the Secretary of State to extend the list of relevant fire safety information that must be provided and to include details of the times when, and the form in which, all of the information must be provided.
Co-operation with accountable persons
This article applies in relation to premises which consist of or include a residential unit in a higher-risk building.
The responsible person must take such steps as are reasonably practicable to establish if there are one or more other persons who are accountable persons in relation to the premises. If there are, the RP must co-operate with each accountable person for the purpose of the accountable person carrying out their duties under the Building Safety Act 2022.
Amendments to the Architects Act 1997
The Architects Act 1997 is amended in relation to
• Discipline and continuing professional development (section 157).
• Appeals Committee (section 158).
• Architects Registration Board: fees and discharge of functions by a committee.
Schedule 1 – Amendments of the Health and Safety at Work etc Act 1974
Schedule 1 sets out the details of amendments made to the Health and Safety at Work etc Act 1974; these are mainly in relation to powers of the Executive: buildings in England.
For a full explanation of all provisions, the Act should be consulted in full.
Parliament
May 2022