The draft Building Safety Bill was published last year and attracted significant comment. It has since passed the pre-legislative scrutiny stage, and the revised draft went before Parliament on 5 July. Subject to its passage, it is due to be enacted in late spring 2023.
The bill identifies the key legal dutyholders for building safety and their responsibilities. These are highly unlikely to change during its course through Parliament, so owners and organisations operating or servicing residential buildings more than 18m or seven storeys high should be making preparations now.
Indeed, in her review of Building Regulations and fire safety, Dame Judith Hackitt advised the sector not to wait for legislation but to get on with improving building safety and the competence of all those working in the sector.
The draft bill sets out a new regime that imposes duties on a particular individual or organisation throughout the life cycle of higher-risk buildings (HRBs), defined as those of more than 18m or seven storeys in height with two or more dwellings, two or more rooms used for residential purposes, or student accommodation. The bill also makes provision for this definition to be revised in future. The regime is based on the principle that the person or entity creating a building safety risk should, as far as possible, be responsible for managing that risk.
It should be noted that the new building safety regulator to be established by the legislation – as part of the Health and Safety Executive – will be responsible for all types of construction work. While much of the bill relates only to residential buildings of more than 18m or seven storeys high, the revised Building Regulations apply to all construction and not just work on residential buildings.
The legislation will apply to all persons involved in building work throughout the design and construction phase, in particular imposing new duties on those appointed under the Construction (Design and Management) Regulations 2015. There will be a specific requirement, for instance, to sign off the building as complying with the Building Regulations at handover. The draft bill also creates new dutyholders whose responsibilities apply when the building is in occupation.
'The draft bill sets out a new regime that imposes duties on a particular individual or organisation throughout the life cycle of higher-risk buildings'
The accountable person (AP) is the new dutyholder responsible for the safety of HRB residents during occupation. Where there is more than one AP for a specific property, there will also be a principal AP (PAP).
The bill defines an AP for an HRB as either 'a person who holds a legal estate in possession in any part of the common parts', or 'a person who does not hold a legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of the common parts'.
'Common parts' in turn mean '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 '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)'.
If multiple APs cannot agree on who will act as the PAP, the matter can be settled by the First-Tier Tribunal. Where there is a need, for example, to maintain the golden thread of information recommended by the Hackitt review or appoint a building safety manager, the PAP is obliged to consult, cooperate and coordinate with the other APs and vice versa, so they can all execute their duties appropriately.
The bill makes provision to appoint a professional and competent building safety manager (BSM), unless the AP themselves is appropriately competent or has the necessary resources to operate and manage occupied buildings directly on a day-to-day basis. There are also provisions in the bill for the regulator to place the building under special measures if the AP and or their BSM is not fulfilling their duties.
However, the draft bill deliberately uses the term 'appoint', which does not necessarily mean 'employ'. The explanatory notes state that, while the BSM 'might be responsible for carrying out certain duties, accountability will always lie with the AP'. Nonetheless, if the BSM does not fulfil their duties they could be subject to a fine, although not to imprisonment.
The appointed BSM can be a competent individual or an appropriately resourced organisation. In the latter case, this organisation must also select one of its senior personnel as the nominated individual (NI), who would carry out much of the actual function of the individual BSM and be expected to have the same competence.
The BSM or NI must be appointed before occupation of a new HRB, with their primary function being to support the AP. The same requirements will eventually apply to existing, occupied stock, but it is anticipated there will be a transition period before they come into force, the length of which is as yet undefined.
Support provided by the BSM or NI will include the day-to-day management of building risks, as set out in the safety case report. This is a document that the AP will have had to provide to the regulator to secure a building assessment certificate; effectively, permission to occupy.
The report should explain how and why the building is safe to occupy, and how it will remain safe during occupation. It will draw on the golden thread of information about the building, which is held as the safety case.
It will also be informed by the building risk assessment, setting out the construction type, the design intent for life safety – including active and passive fire protection – and the management systems in place to ensure these remain fully operational, as well as specifying who the AP or PAP and their supporting BSM or NI are.
The submission of the report to the regulator will be legally required to include a tenant engagement strategy, describing how the AP is going to ensure the occupants' voices are heard when significant building safety matters are decided, and a process for managing complaints and other matters.
Dame Judith's vision was that an individual BSM have an intimate understanding of each building for which they are deemed responsible, and an effective relationship with its residents.
The bill, however, does not specify how many buildings a BSM or NI can manage. This will depend on the complexity of the buildings under their control, the integrity of the individuals responsible, and the respective building risk assessments. The bill is unclear as to how the regulator will evaluate whether the BSM's or NI's individual oversight of the building and its residents is suitable or sufficient. Indeed, it is also unclear how closely the bill will seek to realise Dame Judith's vision of a competent individual being responsible for overseeing the management of risk for specific residential buildings under the scope of the legislation.
If this vision is to be realised, best practice may be to assume a ratio of one individual BSM or NI to a small number of buildings; perhaps as small as one to six, and maybe no higher than one to 15 depending on the complexity of the building, demographics of the residents and other relevant factors. However, the ratio for organisational BSMs will be much greater. Individual BSMs and NIs will therefore need to recognise when their understanding of the buildings for which they are responsible may be exceeded.
Working Group 8 (WG8) of the Construction Industry Council's Competence Steering Group (CSG) has set out the necessary proficiencies for building safety management in a recent report. These competences are defined in the bill as the skills, knowledge, experience and behaviours that a professional is expected to hold.
While no one expects a single person to be expert in all of these areas, WG8 says they will be required to be 'competent enough to be confident to challenge expert opinion and reports', and to understand adequately any information that is provided to them.
On this basis, the BSI is developing a publicly available specification (PAS) 8673 Framework for competence of building safety managers, which is due for public consultation in August ahead of publication in December.
The PAS framework will outline the competences and offer guidance on how these are to be assessed. It is anticipated that the requirements will include health and safety as well as fire and structural safety, in relation to the forthcoming legislation.
An independent, not-for-profit industry-led organisation, the Building Safety Alliance, has recently been established with the specific aim of independently assessing individuals wishing to be certified as compliant with PAS 8673. It will also manage a national register of those thus certified. The alliance and its processes will be subject to appropriate oversight by a recognised third party.
The alliance will not provide training, however; it currently advises all those seeking certification to review their competences, so they can evidence those they hold, and identify any gaps they can fill over the next few months with existing training providers.
Organisations acting as BSMs will need to consider how to evidence their competence. As a starting point, they will need to consider the complexity of their portfolio, and assure themselves – and the regulator – that they have an adequate cohort of competent NIs.
Once the promised guidance is issued by Ministry of Housing, Communities & Local Government or the regulator, it can be anticipated that BSMs will also need to show that they have access to all the all the necessary resources to ensure their competence including, for example, building risk assessments.
On a practical level, all organisations taking on the role of BSM will need to consider which of their staff is best placed to become the NI. This is likely to be a senior manager, given they are likely to have the necessary experience to demonstrate their competence and appropriate access to all required resources.
Consideration should perhaps be given to entering a separate contract for the BSM function, to keep it apart from any existing provision of facilities or property management services. They also need to think about how they are going to maintain a golden threads of information for multiple buildings, and who in particular is going to keep an eye on compliance with all the safety case reports.
An additional consideration is how the organisation will manage any conflicts of interest that could arise between the various dutyholders, depending on how the appointment of an individual or organisational BSM and the employment of the individual BSM or NI is managed between the interested parties through contractual arrangements. These are complex challenges.
Furthermore, plans will have to be made to ensure that contractors engaged to work on, in or around HRBs are appropriately competent. All parties will also need to consider whether contractors should be required to evidence compliance with, for example, the core criteria for building safety in competence frameworks in BSI Flex 8670, published in April. CSG Working Group 2 is looking at this issue in particular.
Finally, there is the challenge of BSMs obtaining affordable and available professional indemnity insurance (PII). The government has not yet announced any intention to step in to establish a PII scheme – as it has for external wall systems assessors. How any BSM will obtain PII is therefore currently unknown.
RICS comments: 'We are working closely with key stakeholders including the shadow Building Safety Regulator on this important new industry role.'
Related competencies include: Fire safety, Health and safety, Legal/regulatory compliance, Maintenance management
Prof. Sara Wilkinson FRICS, Dr Gill Armstrong, Dr Kusal Nanayakkara, Mark Willers FRICS, Prof. Jua Cilliers and Dr Robert Fleck 08 December 2023