The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 (SI 2023/907) (the "907 Regulations") were laid before Parliament earlier this year and provide greater clarity on the duties owed by any Accountable Person ("AP") or Principal Accountable Person ("PAP") of high-risk buildings.
When do the 907 Regulations come into force?
The 907 Regulations will come into force simultaneously with s83 of the Building Safety Act 2022 (the "2022 Act"), the section of the 2022 Act which deals with the assessment of building safety risks. s.83 of the 2022 Act applies to occupied, higher-risk buildings (at least 18m or 7 storeys high). Pursuant to s83 of the 2022 Act, the AP must assess, as soon as reasonably practical after the building becomes occupied or, if later, the time when the person becomes an AP for the building (the 'relevant time'), the building safety risks for the part of the building for which they are responsible. These assessments must be made regularly and at any time the AP has reason to suspect the current assessment has been invalidated. The Building Safety Regular ("BSR") can also direct that an assessment is carried out.
Regulation 3: the building assessment certificate
s.79 of the 2022 Act provides that the PAP for the building must apply for a building assessment certificate within 28 days of being directed to do so by the BSR. Regulation 3 of the 907 Regulations provides the detail necessary in order for an application to be made.
The BSR will give a building assessment certificate if the AP/PAP is complying with its duties in relation to:
- assessing building safety risks (s83 of the 2022 Act);
- managing building safety risks (s84 of the 2022 Act);
- the safety case report (s85 of the 2022 Act);
- the mandatory occurrence reporting system (s87(5) of the 2022 Act);
- the provision of information to the regulator and residents (s89 of the 2022 Act); and
- the residents engagement strategy (s91 of the 2022 Act).
Regulation 3(5) provides that the application must include:
- the address, postcode and, if applicable, name of the building;
- the name of the PAP;
- the registration number given to the building on the register;
- a description of any changes to the information relating to the building contained on the register, including the date those changes occurred; and
- details of any compliance notice given under s. 99 of the 2022 Act and in force in relation to the building.
Further details as to what the building assessment certificate must contain is set out in Regulation 3(6).
Regulation 4: management of building safety risks
Regulation 4 of the 907 Regulations sets out the principles with which the AP must comply for the purposes of s84 of the 2022 Act (management of building safety risks). For example, the AP must combat building safety risks at source by introducing proportionate measures to address, reduce, mitigate and control the risk at the earliest opportunity. This, alongside the duty to avoid building safety risks (risks arising from the spread of fire or structural failure), impose onerous duties on the AP. It will be fundamental for APs and PAPs to have competent third party advisors (such as fire engineers and structural engineers) to assist with their duties regarding building safety risks.
A key theme across the suite of regulations has been competency. Regulation 4 provides that the AP must ensure any person responsible for or assisting with compliance with a duty within Part 4 of the 2022 Act (the part relevant to higher-risk buildings) must have the competency to do so. An individual is deemed to have the relevant competency if they have the skills, knowledge, experience and behaviours necessary to perform the functions for which they are responsible in a satisfactory manner.
Regulation 5: the safety case report
Pursuant to s85 of the 2022 Act, upon the building becoming occupied the PAP must prepare a safety case report as soon as reasonably practicable containing:
- any assessment of the building safety risks (made under s83 of the 2022 Act); and
- a brief description of the steps taken to manage these risks (under s84 of the 2022 Act).
Such steps may include remedial works and, therefore, APs and PAPs must ensure they maintain adequate records of any work done and when it was completed.
Regulation 5(1) sets out what must be included in the safety case report. This includes, but is not limited to, a description of the possible scenarios of building safety risks that have been identified by the AP under s83 of the 2022 Act and the likelihood of those risks materialising (Regulation 5(1)(c)) and a description of the steps taken by each AP to demonstrate compliance with s84 of the 2022 Act (set out above at Regulation 4).
Importantly, the PAP must include a description of emergency plans in place for the building which details information such as:
- the equipment in place to allow the emergency services to respond to an emergency;
- information to support the emergency services in their response planning; and
- a description of the expectations on residents and how they are to respond to emergency situations.
This information is to be available electronically and the AP must inform the BSR of any revisions to the safety case report in accordance with Regulation 5(3).
The information will be critical in the event that emergency services are called to respond to an incident.
Regulation 6: mandatory reporting requirements
Pursuant to s87 of the 2022 Act, the AP for an occupied higher-risk building must give information to the regulator in specific circumstances. Having a 'mandatory occurrence reporting system' enables the AP to be able to comply with the provisions of s87.
Regulation 6 sets out the information which must be provided if a safety occurrence has taken place. A safety occurrence is defined as an incident or situation relating to the structural integrity of or spread of fire in a higher risk-building that meets the risk condition. The risk condition is met in relation to a part of a building if the use of that part of the building without the incident or situation being remedied would be likely to present a risk of a significant number of deaths, or serious injury to a significant number of people.
Regulation 6(2)(b) sets out what the report must contain. For example, details of the date and time of the safety occurrence, the details of the safety occurrence itself including the details of any injury that may have occurred and a description of the measures taken to mitigate or remedy the safety occurrence.
The Government Guidance published on 02 October 2023 confirms that this duty is not only aimed at AP's during occupation, but also applies to the principal contractor and designer whilst work is being carried out to the higher-risk building, either during the construction of the building or due to works being undertaken at a later date.
If you are responsible as the AP or PAP, it is imperative that you read and understand the 907 Regulations and the impact they have on your ongoing duty to manage the safety of occupied higher-risk buildings.
The Building Safety Group at Howard Kennedy can assist if you require further advice on what these, or any other regulations related to the Building Safety Act, mean for you.
This blog is part of a series published by Howard Kennedy LLP on the Building Safety Act. For more information, please contact Lucy Moon or Stuart Duffy. For other blogs, please click here. The Building Safety Group is led by Howard Kennedy's Building Safety Chairs Mark Pritchard and Bhavini Patel.