The long-awaited regulations which will govern how safety risks for occupied Higher-Risk Buildings are to be managed were finally published on 17 August 2023, although further regulations defining the contents of the Golden Thread are still awaited.
The new regime, the details of which are set out in the below regulations (the Management Regulations), is expected to go live on or shortly after 1 October 2023, and will apply to every occupied Higher-Risk Building in England, imposing new and specific management duties on the Accountable Persons and the Principal Accountable Person.
The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023
Unlike the provisions governing the design and construction of new Higher-Risk Buildings, there will be no transitional period for the in-occupation duties, albeit the calling in of Higher-Risk Buildings for a full assessment by the Building Safety Regulator (the BSR) will not commence until April 2024.
As expected, the substance of the regulations broadly follows the Government's proposals as set out in the consultation on this new regime which ran last summer. Here, we examine some of the key features of the new duties on Accountable Persons and the Principal Accountable Person.
Registration of Higher-Risk Buildings
Since April this year, Principal Accountable Persons have been able to register their Higher-Risk Buildings with the BSR, and must ensure that they have done so prior to 1 October. So, before the other in-occupation management duties are considered, this registration requirement will be the most urgent priority for any building owners or managers who have yet to complete their registration.
Principles for management
As an overarching duty, the Accountable Persons will need to manage the building safety risks for their Higher-Risk Building (or the part of the building that they are responsible for) in accordance with a set of "prescribed principles".
These are listed in the Management Regulations and include seeking to avoid building safety risks altogether if possible, or otherwise identifying proportionate measures to mitigate such risks. The principles also require Accountable Persons to "adapt to technical progress" by utilising new technology where available, carry out engagement with residents (on which see further below), as well as ensure that any managing agents appointed to assist with discharging these duties have the relevant competence.
Given that the Accountable Persons will always retain ultimate legal liability under the Building Safety Act, it will clearly be in their self-interest to ensure that their managing agents are suitably qualified and consistently deliver their services to the requisite standard. To reinforce this, the Government advised in its response to the consultation that "Accountable persons should therefore carry out their own due diligence to monitor and review the work of the agent".
Safety case report and Building Assessment Certificate
At the heart of the Accountable Person duties is the safety case. This is the cumulative evidence of compliance with all of the other duties, and according to the consultation response, comprises all of the detailed "assessments of building safety risks and the measures in place to manage those risks" and kept as part of the Golden Thread.
The safety case is then distilled into a safety case report which must be submitted to the BSR at any time if requested and as part of an application for a Building Assessment Certificate. The Management Regulations now provide further detail on the required format and method of submission of the safety case report, which must include:
- possible scenarios of building safety risks identified by the Accountable Persons, the likelihood of them arising and the consequences if they do materialise;
- a summary of the system for managing building safety risks, including policies and procedures for assuring the competence of designers and contractors appointed for works to the building; and
- a description of emergency plans and how these interact with emergency services.
In turn, an application for a Building Assessment Certificate must include a range of other information and documentation in addition to the safety case report, such as details of any compliance notices, information demonstrating compliance with the various Accountable Person duties and a copy of the residents' engagement strategy (on which see further below).
From April 2024, the BSR will start calling in the highest priority Higher-Risk Buildings and directing the Principal Accountable Person to apply for a Building Assessment Certificate, with the expectation that all existing Higher-Risk Buildings will be assessed within five years (and with each Higher-Risk Building then being re-assessed at intervals of no more than five years).
Responding to residents
A key theme of many of the new management duties is to ensure that the residents' voice is heard and that residents are involved in the decision-making process insofar as it relates to building safety risks. In this regard, the Management Regulations flesh out many of the details of the resident-focused duties outlined in the corresponding provisions of the Building Safety Act, including:
- Mandatory occurrence reporting – how the system for reporting "safety occurrences" (i.e. building safety incidents that could lead to a significant number of deaths or injuries) is to be operated, what information needs to be included in each notification to the BSR, and the timeframe in which such reporting must be done;
- Complaints procedure – what information must be explained to residents in the complaints policy, how complaints are to be dealt with and how unresolved complaints can be escalated to the BSR; and
- Residents' engagement strategy – this element had already been fairly detailed in the Building Safety Act itself, and requires the Principal Accountable Person to establish a strategy for consulting all residents and owners of dwellings in the building (over the age of 16) on decisions relating to the management of building safety risks. The Management Regulations now stipulate how often this strategy must be reviewed, when and how residents must be consulted, and what information the strategy must contain.
One aspect not covered by the Management Regulations is the range of documentation that must be provided to residents and other stakeholders. This duty is closely related to the Golden Thread and will be dealt with as part of further regulations (on which see further below).
Golden Thread
Finally, as has been endlessly discussed, the new regime will require Accountable Persons to maintain a Golden Thread of information throughout the lifecycle of the building, the purpose of which is to enable all stakeholders to have ready access to a "single source of truth" as regards all relevant safety aspects of the building. But notably absent from the Management Regulations (and the corresponding response to the consultation) are provisions which define the contents of the Golden Thread.
Instead, those provisions are expected to be set out in a further piece of secondary legislation (the Higher-Risk Buildings (Keeping and Provision of Information etc.) (England) Regulations 2023) due to be published in the Autumn – which will leave very little time for Accountable Persons to procure compliance with those requirements.
Meanwhile, the Management Regulations do set out the requirements as to the format of the Golden Thread, namely that it must be kept in an electronic format which is accurate, transferrable, accessible, intelligible, secure and only changed in accordance with procedures which record the person who made the change and the date of that change.
All of these features align with what was expected, save that there is no requirement for all of the Golden Thread to be stored in a single system, with the consultation response noting "feedback from stakeholders about their use of multiple systems and how this can deliver effective outcomes". Nor do the Management Regulations mandate any particular "standards for structuring information, data coding or an index structure", with the consultation response merely reiterating the Government's encouragement to use BIM standards.
Next steps
Detailed guidance will be issued by the BSR on the full range of Accountable Person duties, but time is running out for building owners who have yet to commence preparatory compliance work in readiness for the new regime going live. Urgent advice will need to be sought from specialists and new appointments may need to be made to supplement any existing managing agent retainers.
