The Building Safety Act 2022 ("the Act") creates a number of new duty holder roles, each tasked with ensuring the safety of higher-risk buildings during the lifetime of their design, construction, and subsequent occupation. Two such roles are the Accountable Person and the Principal Accountable Person. If you are the asset manager, landlord, RTM Company or management company then you may well be the Accountable Person or Principal Accountable Person of a higher-risk building.
As a reminder, a higher-risk building is one which is 18 metres in height, or it has 7 storeys with 2 or more residential dwellings.
Who is who?
An Accountable Person is any person (whether an individual or body corporate) who either owns the 'common parts' of a higher-risk building or is under an obligation to repair and maintain those 'common parts'. 'Common Parts' are defined within section 72 of the Act and extend to both the 'structure and exterior of the building' and also 'any part of the building provided for the use, benefit and enjoyment of the residents'. It is not difficult to imagine therefore that they may well be a number of Accountable Persons in respect of any one building when you account for the freeholder, a potential management company, a housing association, and also any residents' Right to Manage companies.
Where there a multiple Accountable Persons in respect of one building, one of them will be the Principal Accountable Person. This will typically be the Accountable Person whose repairing obligations include the structure and exterior of the building, but the Accountable Persons can also ask the Tribunal to determine the issue for then.
Where there is only one Accountable Person, they will automatically also be the Principal Accountable Person.
It is noteworthy that it is not possible to delegate the role of the Accountable Person or Principal Accountable Person and so it is not possible to employ a managing agent to fulfil this obligation in the traditional way whereby an independent third party is engaged to manage a building and keep it in repair.
The Accountable Person's Responsibilities
The gov.uk guidance sets out a vague definition of the duties of an Accountable Person. They are 'responsible for assessing and managing the risks posed to people in and about the building from the structural failure or the spread of fire in the parts of the building they are responsible for'. Examples given within the guidance as to how Accountable Persons go about doing are equally unhelpful; 'accountable persons must engage with residents about the building's safety' to quote just one.
A well-advised Accountable Person will ensure that they are informed of any building safety risks within their building (or the parts of the building they are responsible for). Such risks may arise in a number of different ways but examples of such responsibilities include the absence of adequate fire-safe doors, the absence of emergency exit lighting, and an absence of knowledge among building occupiers as to the appropriate steps to take in an emergency. Where such risks exist, Accountable Persons should be remedying them.
The Principal Accountable Person's Responsibilities
The Principal Accountable Person has the same responsibilities as an Accountable Person, but with a number of additional duties that they alone are responsible for. A number of those additional duties are now entrenched by The Higher-Risk Buildings (Management of Safety Risks etc.) (England) Regulations 2023, though it is not an exhaustive list.
The primary additional duty is the registration of the higher-risk building with the Regulator. That responsibility is particularly onerous, and is discussed in more detail here.
The Principal Accountable Person has overall responsibility for the safety of the building, and so must ensure that any other Accountable Persons within the building are complying with their own obligations. They will need to liaise with those Accountable Persons to produce a Safety Case Report, which will identify and assess any risks in the building, together with details of all steps taken to eliminate or mitigate those risks. This is an ongoing obligation over the lifespan of a building and the Principal Accountable Person is expected to demonstrate ongoing review of the Safety Case Report.
The Principal Accountable Person must also engage with residents so as to allow them to actively participate in making building safety decisions, and they must ensure that any information pertaining to building safety is displayed clearly within the building so that it may be accessed and inspected by residents.
That is not the sole extent of the additional duties imposed on Principal Accountable Persons, but clearly, they are extensive.
How will the regime be enforced?
The Accountable Person and Principle Accountable Person will be accountable to the Building Safety Regulator. If the Regulator considers that there has been a breach of the duty holder obligations then it can issue notices of compliance, stop notices and it may deem the building uninhabitable.
The regulations now in force also provide for the implementation of building assessment certificates. Within 28 days of the Regulator’s direction, a Principal Accountable Person must apply for a building assessment certificate and supply all required information (for example the most up to date Safety Case Report and the most up to date residents' engagement strategy). The Regulator will assess the documentation and determine whether the obligations imposed on a duty holder have been met.
The failure to comply with the Accountable Person and Principal Accountable Person regime will amount to a criminal offence.
What next?
It is not always immediately clear who the Accountable Person or Principal Accountable Person is, and our Building Safety Group can help you to identify where you sit within the list of duty holders. We can also provide guidance on the Safety Case Report and ongoing duty holder obligations.
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