All change: Higher Risk Buildings and the Duty Holder Regime!

On 17 January 2024 further provisions under Part 4 of the Building Safety Act 2022 ("BSA") came into force. These sections extend the framework for the ongoing duty to assess and manage building safety risks in occupied higher risk buildings (HRB). This is commonly known as the "duty-holder regime". If you are a landlord of residential leaseholders, an asset manager or a managing agent, these obligations will be imposed on you if you are the Accountable Person (AP) or Principal Accountable Person (PAP) of a HRB. A failure to comply without reasonable excuse is a criminal offence. 

There is a requirement for this information to be held in electronic format throughout the life cycle of a building. All documents, reports and policies prepared under the duty-holder regime must be kept under review and they must be readily accessible to residents, the Building Safety Regulator ("the Regulator"), and other interested parties such as the Fire Brigade. It is a system that can be transferred from one person to another without the data and information being lost. The recording of the information in this format alone is an extremely onerous obligation and APs and PAPs will need to ensure they have robust IT systems to ensure compliance with the obligations. 

In addition, the Higher-Risk Buildings (Management of Safety Risks etc.) (England) Regulations 2023/907 ("Regulations") provide the detail of what prescribed steps must be taken to ensure compliance with the duty-holder regime. 

This note provides a guide for APs and PAPs, outlining the obligations now in force. It is not an exhaustive list of the obligations. 

What is a higher risk building: 

A higher risk building is a building which is 18 metres or taller in height or has 7 storeys and contains at least 2 residential units ("HRB"). To better understand the identification of APs and PAPs see our article. 

KEY OBLIGATIONS 

Registration

For new HRBs, the PAP must register the building with the Regulator prior to occupation, and key property information must be submitted within 28 days of registration. For guidance on registration see our article. The building safety register is now accessible to the public through this link.

Management of building safety risks

• As soon as reasonably practicable an AP must carry out an assessment of building safety risks for the part of the building for which they are responsible. It is a prescribed risk assessment. The AP must keep this under review. 
• If the AP delegates responsibility of compliance with the duty holder regime, the AP must ensure that person has the relevant competence to undertake that function. This competency must be kept under review. 

Safety case reports

• The safety case report is a concise and comprehensive report which demonstrates compliance by the PAP with the duty-holder regime. It must be kept in electronic form, reviewed at appropriate times and shared with the Regulator in accordance with the Regulations. 
• The Regulations specify the contents of the safety case report. Examples of what it should include are the AP's risk assessment and steps of how building management risks and safety measures are tested and maintained.

Building assessment certificate 

• The PAP must apply for a building assessment certificate within 28 days of the Regulator requesting it to do so. The building assessment certificate will demonstrate that the Regulator is satisfied that the AP and PAP have complied with the duties imposed on them. Once received, the PAP must display the certificate in a prominent place in the HRB.
• The contents of the application for the certificate is prescribed by the Regulations but it should include the up-to-date safety case report, prescribed information about the mandatory occurrence reporting system (see below), evidence of compliance by the AP of the carrying out assessments of the part of the building they are responsible for and provide a copy of the residents' engagement strategy. This is not an exhaustive list of the requirements. 

Mandatory reporting requirements 

• The BSA imposes an obligation for the better management and recording of "safety occurrences" which occur during the occupation of an HRB. Safety Occurrences is widely defined and includes incidents which impact on the structural integrity or fire safety of a HRB. 
• The PAP is responsible for ensuring there is an electronic single reporting system in place which is accessible to residents and users of the HRB; it must be kept under review and be capable of being shared with the Regulator.

Residents engagement strategy

• The PAP has a duty to positively engage with residents of HRBs who are registered owners, 16 years old or older and/or occupiers ("Residents") of residential units within the HRB. It is not enough to simply engage with the registered owners.
• The Regulations require the PAP to ensure participation by Residents in making building safety decisions. "Building safety decisions" mean decisions about the management of the HRB or any decisions made by the AP to enable it to perform its functions. 
• The engagement strategy must be reviewed at least every two years, when there has been a mandatory occurrence report or if there has been a material change to the HRB. There is an obligation to share the strategy with Residents. 

Complaints procedures 

• The complaints procedures must include how complaints will be dealt with, what investigations will take place and timeframe for responses. The BSA and the Regulations also set out the process which must be followed to ensure a complaint is dealt with fairly. 

KEEPING OF INFORMATION ABOUT A HRB AND THE GOLDEN THREAD 

In addition to compliance with the production of reports and policies, there is a requirement to store and keep information in an electronic format in a prescribed format. The requirements of the electronic records are set out in The Higher Risk Buildings (Keeping and Provision of Information etc.) (England) Regulations 2024 ("the Information Regulations"). The AP is responsible for compliance with the Information Regulations. 

The prescribed information to be kept is known as the ‘golden thread’ of documents. It is a key feature of the duty-holder regime and is designed to be the core record keeping process for the design, construction, and operation of the building. 

The Information Regulations state the prescribed information must be kept and maintained in electronic format throughout the lifecycle of a building. It must be easily transferable and secure. It is intended that information should be readily available in the event of an incident, capable of being updated with ease and shared with the relevant authorities and the Regulator if required. It is expected to be instantly accessible and it should be capable of being transferred from one AP to another.

Sanctions for non-compliance 

The BSA permits the Regulator to issue contravention notices or compliance notices requiring an AP to take specified steps within a specified period to remedy the contravention or avoid the contravention occurring.

The BSA creates a criminal offence where an AP (or PAP) contravenes the provisions of Part 4 (unless the relevant provisions are explicitly excluded from being within the ambit of s.101 of the BSA) and this places anyone at a significant risk of death and/or serious injury.

Key takeaways 

1. The duty holder regime has two limbs: compliance and storage. Landowners, asset managers and managing agents (where the responsibility can be delegated) will want to ensure they have a compliant electronic platform where the prescribed information is kept. The holding of information electronically throws up all sorts of issues relating to the storage of personal data and security issues which will need to be addressed. The system must be secure yet readily accessible. 
2. Many of the duty holder obligations require constant review. It is important that those responsible for these duties have a system for review in place from the outset, diarising key dates. 
3. Where duties can be delegated by an AP or PAP, the onus is on them to ensure the person undertaking the role is competent to deal with the issue. There is a need for an AP and PAP to check credentials and keep those checks under review. 
4. The Health and Safety Executive acting as the Regulator has advised that it will start making requests for applications for building assessment certificates from April 2024. If you have not already started this process, you must do so now. 
5. You should check your policies on mandatory occurrence reporting, the residents engagement strategy and complaints procedures. You should ensure that all leaseholders and Occupiers are aware of these policies and that they are actively engaged in the production of the residents engagement strategy. 

We have an experienced and dedicated Building Safety Group at Howard Kennedy LLP. If you would like further information please contact the Co-Head of our Building Safety Group: Bhavini.Patel@howardkennedy.com