11 May 2023
by Claire Moore

The Building Safety Act 2022 received Royal Assent on 28 April 2022. While the Act sets out the broad, overarching regime, much of the detail is contained in secondary legislation. The new regime has been introduced incrementally as legislative provisions have come into force and as guidance has been published.  

Organisations that own or manage buildings and those responsible for building safety should be aware of three important developments: 

  1. Details of which buildings will be within scope of the new regime have been released. This should allow organisations to plan based on which aspects of the Act will be applicable to them.  
  2. Councils and housing associations who own or manage buildings should be aware of the deadline of 30 September 2023 to register high-rise residential buildings. Failure to do so is a criminal offence.  
  3. The Health and Safety Executive (HSE) has published new guidance providing more detail around the roles and duties of Accountable Persons and Principal Accountable Persons.   
What buildings are in scope of the new regime? 

In December 2022, the government published its response to the consultation on the draft Higher-Risk Buildings (Description and Supplemental Provisions) Regulations. This brings clarity on which buildings are within scope of the higher risk regime. 

During the design and construction phase, residential buildings (at least two residential units), care homes and hospitals which are at least 18m in height, or have at least seven storeys, will be subject to the new regime. This includes new builds and building work to existing buildings, including refurbishment.  

During the occupation phase, higher-risk residential buildings (HRBs), which are at least 18m in height or at least seven storeys, will be subject to the occupation requirements of the new regime. The occupation requirements will not apply to care homes and hospitals. 

The draft Regulations also exclude certain categories of buildings, including secure residential institutions such as prisons and certain accommodation relating to defence forces.  

Deadline for HRB registration 

Existing, occupied HRBs are required to be registered by the Principal Accountable Person (PAP) for the building by 30 September 2023, via the Government website. Failure to register an occupied HRB is an offence. The requirement to register does not apply to hospitals, care homes, secure residential institutions, military premises or prisons.  

Councils and housing associations will need to consider, firstly, whether any housing stock they own or manage comes within the definition of a HRB and, secondly, whether they fall within the definition of an ‘Accountable Person’ (AP). 

An AP is defined as a person who holds a legal estate in possession, or a person who is under a relevant repairing obligation, in relation to any part of the common parts. This may be the person who owns or has a legal obligation to repair any common parts of the building.  

If the building has more than one AP, then the PAP is the one who is accountable for the external walls and structure of the building.  

In order to register, basic information must be provided about the building and about the PAP and APs. Once the application is made, more detailed information will be requested about the structure and safety of the building which must be provided by no later than 30 September 2023 or 28 days after the initial submission. 

The information provided will form the basis of the safety case report which must be completed at a later date.  

New buildings completed after 1 October 2023 must have a relevant completion certificate or final notice and must be registered before occupation. 

The registration information provided will be used by the new Building Safety Regulator (BSR) to help it prioritise buildings for the building assessment certificate process starting in April 2024. 

Guidance for Aps and PAPs 

On 5 April 2023, the HSE published guidance on the roles and duties of APs and PAPs

Broadly, APs are responsible for assessing and managing the risks posed to people in and about the building, from structural failure or the spread of fire in the parts of the building they are responsible for. 

The guidance sets out the specific steps APs must take to achieve this, including: 

  • Putting in place measures to prevent and mitigate building safety risks 
  • Reporting of issues and incidents 
  • Engaging with residents 
  • Keeping, updating and providing information about the building 
  • Transferring building safety information to incoming APs 
  • Notifying the BSR if there is a change to an AP.  

There are additional requirements on PAPs, including registration of the building. 

PAPs also have overarching duties to ensure that the structural and fire safety risks are managed properly for the whole building and to check that APs have discharged their duties.  

The PAP has duties, including: 

  • Compiling a safety case report for the building 
  • Operating a reporting system to record building safety issues and incidents 
  • Operating a complaints system 
  • Displaying information within the building 
  • Preparing a residents’ engagement strategy 
  • Applying for a building assessment certificate when directed by the BSR. The PAP must notify the BSR about changes to the building safety risks and safety case report.  
Potential offences 

It is crucial for those organisations in scope to keep track of developments as the new regime is introduced. Failure to comply will, in some cases, be a criminal offence.