In order to fund the remediation of high-rise residential buildings, in line with its proposed regime for reform the Government opened the 'Building Safety Fund' (BSF) for applications in March 2020. Anticipating the implementation of the Building Safety Act 2022 (the Act), which re-instated previously time-barred claims against the original design and constructions teams responsible for defective buildings, the Government closed the BSF to new applications in June 2021. Presumably, they thought the funding issue had been solved by the Act.
However, in light of the new method of assessment for safety under code of practice PAS9980:2022 (the PAS) and the swathe of previously un-assessed buildings, a whole raft of new un-safe and defective buildings has been identified that would meet the BSF criteria for funding. As a result, the Government responded by re-opening the BSF for applications on 28 July 2022.
Applications are to be made by the responsible entity, which can be the:
- freeholder;
- head leaseholder;
- right-to-manage company (RTM);
- resident management company (RMC); or
- registered provider of social housing such as a local authority or housing association.
The responsible entity can authorise a managing agent to act on their behalf in managing the application to the BSF on a day-to-day basis.
The criteria for making a new application to the BSF are as follows:
- the building is a minimum of 18 metres tall (with 30cm tolerance);
- the building has at least one qualifying residential leaseholder;
- the building has cladding, as defined in the PAS; and
- the building has a Fire Risk Appraisal of External Wall construction (FRAEW) following a PAS assessment which recommends actions (namely, remediation works) to address fire risks to life safety presented by the defective external wall system.
All new applications should contain an FRAEW following the PAS methodology unless they have:
- committed to or started works to remove and replace cladding on or after 11 March 2020, but before 28 July 2022; and
- not completed remediation works to remove and replace cladding by 28 July and the application is for these works.
While the Act has made building owners and landlords responsible for making buildings safe, it is only in cases where these entities are not funding the repairs and are unable to procure funding or remediation from the original design and construction team that public funding is available through the re-opened BSF. In that respect, as before, the applicant must look first to the original design and construction team to procure funding of the remediation works before the application to the BSF will proceed.
If you need advice on whether your building is eligible for an application for Government funding or require assistance in any part of the BSF application process, please contact Bhavini Patel and Mark Pritchard, the joint Heads of Howard Kennedy's Building Safety Group.
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