Andrew Saunders answers questions on recent updates impacting the Building Safety Regulator regime.
Fire safety has undergone dramatic legislative changes in the past 18 months, causing considerable confusion across the sector. In order to address this, Ventro Group was keen to provide sector-leading events in 2023, offering insight and fostering industry dialogue through their quarterly series of webinars.
In the most recent instalment, Andrew Saunders from the Building Safety Regulator (BSR) examined the recent updates brought forth by the Building Safety Act, with a particular emphasis on the expectations placed upon Accountable Persons (APs) and Principal Accountable Persons (PAPs). With interest in the topic understandably high, there were a large number of questions submitted from the engaged audience, and in this article, F&RM delves into the wealth of insights provided by his answers.
Can the PAP delegate their responsibilities to an AP under a contract?
AS: PAPs (and APs) cannot delegate their legal responsibilities under a contract. If they meet the definition of an AP/PAP under the Act, then they have those legal duties.
They can use contracts to get others (e.g. managing agents, consultants etc.) to carry out some of the day-to-day work involved with the new duties – e.g. maintenance etc., but the PAP/APs retain the legal duty.
Is the exclusion of hospitals and care homes from Part 4 requirements because it is assumed similar activities will already be in place under the Regulatory Reform (Fire Safety) Order 2005, regarding these types of property?
AS: Having checked with a colleague at the Department for Levelling Up, Housing, and Communities, his answer is that several pieces of legislation including the Health and Social Care Act 2008, the Health and Safety at Work etc. Act 1974 and the Fire Safety Order already provide for the safety of care home residents.
The higher-risk regime must provide proportionate rigour where most necessary. Stakeholders considered that the additional safety risks to hospitals and care homes occurred when they were built or when building work was being carried out in them. During use, care homes and hospitals, through various existing pieces of legislation, are already subject to duties to make them safe.
There are rumours that the height for the Building Safety Act is set to be reduced to 11m in the future. How likely is this?
AS: I am not aware of any plans to change the scope of the Act at the current time. There are provisions in the Act for the scope/definitions to be amended, so it could change in the future but not necessarily. This will depend on incidents, emerging knowledge, and government policy (among other things).
There is some confusion with registered providers around the BSR requesting key building information (KBI) again, having already provided this to the regulator once. Are you able to provide any further clarity on this?
AS: I am aware that those PAPs who have started, but not submitted, a registration application have been contacted following the end of the transition period. For applications to register a building less than 28 days ago, the PAP has 28 days to provide the KBI.
It may be that some of those started applications are duplicates of already submitted applications, so it appears BSR is asking again for KBI.
I am not aware of anyone being contacted and asked to resubmit KBI. There is a requirement to keep it up to date, but that does not involve resubmitting it all.
Is the building safety case report (BSCR) a collection of documents that evidence how we are keeping the building safe? Or is it a 50-page document that outlines safety management systems, document links, etc? I have heard that we will need to submit a BSCR, the building safety case as a longer document, and a resident engagement strategy to get a building assessment certificate (BAC).
AS: The safety case is a collection of information, documents, reports, etc. related to managing building safety risks. The safety case report uses this information to make a demonstration that all reasonable steps have been taken. It is based on the information in the wider safety case and will likely make reference to the wider safety case. The difference with the report is that it needs to make the argument that building safety risks are being managed. A collection of documents in themselves do not do that without a linking narrative.
When applying for a BAC, the PAP will have to provide a copy of the safety case report for the building, the residents’ engagement strategy for the building, and information about the mandatory occurrence reporting system (either in the safety case report or separately).
Although BSR may, as part of the assessment process, request specific additional information or documents referred to in the safety case report, PAPs will not have to submit the entire safety case.
How is it possible to achieve full building evacuation safely in a single staircase building, especially if firefighting is taking place? How can a safety case and fire risk assessment (FRA) take this circumstance into account?
AS: The Building Safety Act requires APs to take all reasonable steps to manage specified building safety risks (spread of fire and structural failure). Although it may require APs to take additional measures in existing buildings (depending on the assessment of risk and what is, or may, be reasonable), there is no requirement to bring all buildings up to the standards that would be required if built today.
Single staircase buildings are common, but it is important not to see the staircase in isolation. It is one of a number of control measures in place to manage risk. These include compartmentation, fire doors, cavity barriers, etc. Some buildings have other measures that will contribute to managing risk such as automatic opening vents or sprinklers.
The safety case report should consider the control measures in place holistically rather than in isolation. One single control measure is unlikely to manage a risk on its own. In buildings with multiple staircases, other measures will still be required in order to manage risk.
Many buildings are designed to operate a ‘stay put’ policy in the event of an incident. In those buildings the design and control measures are focused on preventing a fire going beyond the compartment where it started. In some circumstances full evacuation is appropriate and this should be considered in the assessment and safety case report.
Do you share the registration and KBI with other core government departments e.g. Home Office? There have been some surveys released from other government departments that have overlapped with information we have already submitted previously to the BSR.
AS: BSR does not currently share this information with other departments, but it may do so in the future. We do liaise regularly with other government organisations.
When will we know the buildings that will be invited? Will we be told in advance?
AS: Now that the transition period for registration has closed, BSR is reviewing its tranching and prioritisation of existing buildings. In November 2023, we published BSR’s strategic plan which included some headline information about our approach. BSR is looking to publish more information about which year PAPs are likely to be directed to apply for a BAC, with the first applications being requested in April 2024. It will not provide an exact date or month when buildings will be assessed, but will give all PAPs a general indication and will help PAPs with a larger number of buildings with their prioritisation. BSR hopes to publish this early in 2024.
PAPs should not have to wait until directed to apply for a BAC to prepare their safety case report or residents’ engagement strategy. This is because, although most of the duties are qualified by the wording that what they require should be done “as soon as reasonably practicable” when the duty is in force, it would not be acceptable to wait four or five years before taking the necessary action.
BSR’s strategic plan can be found here.
Can you give an indication of the number of hours it will take to assess a BSCR to help with budgeting for costs for this task?
AS: Unfortunately, it isn’t possible to put a figure on the number of hours an assessment will take. Buildings will vary in complexity and how well the building safety risks are being managed.
Each application will be assessed by a team. PAPs can help to minimise the amount of regulatory time that assessment will take by:
- making sure you include all the elements required by the Act and Regulations, and associated guidance on https://www.gov.uk/. This will minimise BSR requests for further information or other types of intervention.
- using headings or a table of contents in the BSCR to help signpost assessors to where information can be found. If including appendices, make sure the titles, number, or letter references match with their descriptions in the main report.
- ensuring you provide a demonstration (claim, argument, evidence) that you have taken all reasonable steps, rather than simply a list of controls and systems.
As a smaller private landlord managing just four buildings, one of our buildings is six storeys high but could be over the height of 18m due to a plant room on the roof, will this fall under this regime?
AS: Regulation 5(1) of The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 sets out how to determine the height of a building for the purposes of the Act.
This states “the height of a building is to be measured from ground level to the top of the floor surface of the top storey of the building (ignoring any storey which is a roof-top machinery or roof-top plant area or consists exclusively of roof-top machinery or roof-top plant rooms).”
In the case described, the roof top plant room would not be included in the height. Further information can be found at https://www.gov.uk/.
It sounds like the BSR are not necessarily including all large panel systems (LPS) buildings in the first tranche. Is this because of the data on KBI showing larger numbers of buildings with ACM? Also, do you know when the table will be re-released?
AS: We do, currently, expect to invite buildings with unremediated ACM cladding to apply for a BAC during the first year (from April 2024). The position on LPS buildings is still being developed. An earlier answer provides further information on what we plan to publish.
If an invite to apply for a BAC has not been received by a PAP, would it be good practice for a notice to this effect to be displayed in the building to inform residents of this fact?
AS: There is no requirement to do so under the Act/Regulations, but you may find it helpful to provide this information. Existing buildings will be assessed over a period of five years from April 2024, so some buildings, particularly the shorter in-scope ones, may not be directed to apply for several years.
We do have some anecdotal evidence of solicitors and insurance companies already requesting BACs, even though this part of the Act has not yet come into force.
How can you amend a small mistake on the KBI registration now it has been sent?
AS: The self-serve function for making amends to information on already submitted applications is now live.
- If you need to make changes after you have submitted your application you can do this using the self-service function in the registration portal
- You have 14 days to inform BSR of changes to your registration information if your application has already been submitted
- You have 28 days to inform BSR of changes to your key building information if your application has already been submitted.
How do we register new handover buildings after the September deadline?
AS: The registration/KBI portal remains open as there will be an ongoing need to register new buildings. The process should be the same as that used for existing buildings.
Is there a recommendation for APs regarding the number of properties that they manage?
AS: There is no limit to the number of buildings you can be AP (or PAP) for. In fact, if you meet the legal definition of an AP (or PAP) you cannot delegate the legal duty. The more buildings you have, the more resource you are likely to need and the more sophisticated your management systems are likely to need to be.
We are a head leaseholder in a block that is owned by a hotel holding. We only occupy three floors in the building. The hotel building contains ACM which may be combustible. Are we responsible for registering the building with HSE?
AS: This will depend on who the PAP is, as it is the PAP that has to register the building. Where there are multiple Accountable Persons for a building, the PAP will be the AP with responsibility for the structure and exterior of the building.
What is your opinion on a PAP/AP being responsible for those carrying out FRAs in buildings? For example, a BAFE SP205 company, and therefore accredited, subbing out the FRA to an ‘assessor’ who is not individually registered and cannot prove competency.
AS: We need to distinguish between different regulatory regimes and their respective requirements and duty holders. Fire risk assessments (FRAs) are a requirement of the Regulatory Reform (Fire Safety) Order 2005 (FSO) and the dutyholder under this legislation is the Responsible Person (RP). The regulator for the FSO is the local fire and rescue service.
Assessment of building safety risks (spread of fire and structural failure) is a requirement of the Building Safety Act 2022, the duty holders are APs, and BSR is the regulator. The AP and RP may be the same, but this will not necessarily be the case.
BSR will expect those with duties under the Act to ensure that people doing work are competent. BSR also expects PAPs to be an ‘intelligent customer’ and make reasonable checks on competence as you would when choosing any contractor or external service.
If a particular technical specialism is required – such as fire or structural engineering – then membership of a relevant professional body or other accreditation can help to demonstrate competence.
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Andrew Saunders is the Operational Policy Advisor at the Building Safety Regulator.