Building Safety Act 2022 Advice & Guidance

Building Safety Act 2022 Advice & Guidance

The Building Safety Act 2022 received Royal Assent on 28 April 2022, making ground-breaking reforms to give residents and homeowners more rights, powers, and protections – so homes across the country are safer.

 

 

Background to the Building Safety Act  

In February 2017, Professor John Cole CBE published a report into the defects that led to the closure of 17 schools in Edinburgh. Just a few months later, in June 2017, the tragic fire at Grenfell Tower in London claimed the lives of more than 70 people. Both incidents were followed by official inquiries, and their subsequent reports made for uncomfortable reading for all those in the industry. These incidents have placed the construction industry under the microscope and highlighted the need for an urgent review of the way in which quality and safety are managed. 

In July 2020, the Government published the Draft Building Safety Bill, which was  designed to take forward fundamental reform of the building safety system and address the issues identified by Dame Judith Hackitt DBE in her independent review, Building a Safer Future.

Following Parliamentary scrutiny and input from industry stakeholders, the Building Safety Bill received Royal Assent and became an Act of Parliament (the Building Safety Act 2022) on 28 April 2022. 

What is the Building Safety Act 2022? 

The Building Safety Act 2022 will bring in several measures intended to make buildings and residents safer. 

For more information on how the Act you can read our recent article in Barbour ABI titled "The Building Safety Act 2022 - One year on". 

 

Building Safety Act 2022 - Frequently Asked Questions (last updated - 6 April 2023)

Throughout this section of the page you can find a series of frequently asked questions about the Building Safety Act 2022 and aspects of the new safety regime. 

Introduction - What is the Building Safety Act 2022?

1. Why was the Building Safety Act introduced?

The Building Safety Act 2022 (referred to as ‘The Act’) was introduced following the tragic failures in building safety that led to the Grenfell Tower Fire and subsequent deaths of seventy-two people. 

The Act is designed to take forward a fundamental reform of the building safety system and address the issues identified by Dame Judith Hackitt DBE in her independent review, Building a Safer Future. When first announced the Government stated that the Act would “deliver the biggest changes to building safety for nearly 40 years and make residents safer in their homes.”

Numerous trade, professional and industry bodies have supported the passage of the Act and recognise the need for fundamental reform of the building safety system.

2. When was the Act passed through the UK Parliament? 

The Building Safety Bill was first introduced to the UK Parliament in an announcement made in July 2020. The Bill then made its way through the UK Parliament at speed, gaining Royal Assent and becoming a formal law (The Building Safety Act 2022) on 28 April 2022.

3. What does the Act mean for the construction industry? 

The Building Safety Act 2022 makes ground-breaking reforms to give residents more rights, powers, and protections – so homes across the country are safer. For the construction industry, it means an overhaul in existing regulations, creating lasting change and makes clear how higher risk buildings should be constructed and managed to ensure that those who use them are safe and feel safe.
    
4. How does the Act protect leaseholders from cladding remediation charges? 

According to the Government’s guidance, through new leaseholder protection measures, the Act eradicates the idea that leaseholders should be the first port of call to pay for historical safety defects.

Building owners will not legally be able to charge qualifying leaseholders (defined under the Act but including those living in their own homes and with no more than three UK properties in total) for any costs in circumstances where a building (in the majority of cases meaning those over five storeys or eleven metres tall) requires cladding to be removed or remediated.

Qualifying leaseholders will also have robust protections from the costs associated with non-cladding defects, including interim measures like waking watches.
 

Evolution of the Act

5. How flexible is the Act for future changes? 

The Building Safety Act 2022 is primary legislation which establishes in law a framework for building safety both during design and construction and in occupation. A lot of the detail of how the Act will operate in practice will be defined in secondary legislation, known as Statutory Instruments.

Many of these pieces of secondary legislation are being developed over the coming months, with some elements already in motion. Last year, the Government published an indictive timeline for the secondary legislation (found here) although delays due to the change of leadership are already evident. 

Since the Act gained royal assent on 28 April 2022, the Department for Levelling Up, Housing and Communities (DLUHC) has launched several consultations seeking views on the secondary legislation including the Building Inspector Competence Framework (BICoF), changes to the building control profession and the building control process for approved inspectors and the Building Safety Levy.

6. What other pieces of building and fire safety legislation exist?

      a. Fire Safety Act 2021

Before the Fire Safety Act 2021, there was ambiguity as to whether the external walls and flat entrance doors of a multi-occupied residential building should be included in the fire risk assessment for the building required under the Regulatory Reform (Fire Safety) Order 2005 (the ‘Fire Safety Order’ (FSO)).

The Fire Safety Act clarifies that the FSO applies to the structure, external walls (including balconies, doors and windows) and flat entrance doors in multi-occupied residential buildings with two or more sets of domestic premises.

The Act will require Responsible Persons (RP) of multi-occupied residential buildings, with two or more sets of domestic premises, to update their fire risk assessment to include an assessment of the building’s structure, external walls, and flat entrance doors.

The Fire Safety (England) Regulations 2022, which came into force on 23 January 2023, set out the information that the RP must provide to local fire and rescue services. This includes the requirement for RP’s of buildings over 18 metres, or 7 storeys in height, to provide information on the design and materials of external walls and floor/building plans.

      b. Building Act 1984

The Building Act 1984 is the primary, enabling legislation under which secondary legislation such as the building regulations are made. It empowers the Secretary of State (for England and Wales) to make regulations for the purpose of securing the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings.

The Building Act has been amended and updated several times since its original enactment in Parliament. DLUHC publishes guidance called ‘Approved Documents’ on ways to meet building regulations all of which can be accessed here.

Under Part 3 of the Building Safety Act 2022, the Building Safety Regulator becomes the building control authority for higher risk buildings.

      c. Defective Premises Act 1972

The Defective Premises Act 1972 requires those involved in constructing a dwelling to ensure that the dwelling is ‘fit for habitation’ when the work is completed. 

The Act enables claims to be made for defective work relating to the construction of dwellings where the work renders the dwelling unfit for habitation. 

Following the advent of the Building Safety Act, the limitation period (deadline) for claims under the Defective Premises Act is now extended from 6 years to 15 years for new claims. Furthermore, where the claim relates to construction rather than refurbishment, there will be a retrospective 30-year limitation period.

Scope of Buildings in the Act

7. What is the definition of a High-Risk Building? 

The Building Safety Act 2022 defines “higher-risk building” as a building in England that is at least 18 metres in height or has at least 7 storeys and, for the purpose of the part of the new regime that regulates occupied buildings, contains at least 2 residential units.

The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (Regulation 2) which are due to come into force on 6 April 2023, specifies that hospitals, care homes and buildings containing at least two residential units will fall within the scope of the design and construction part of the new regime. All higher risk buildings will now need to be registered with the regulator within the next six months. Those responsible for higher risk buildings who do not register their buildings in the next six months could face criminal charges. 

Hotels, secure residential institutions (e.g., prisons) and military premises (e.g., military barracks and buildings containing accommodation provided by the Ministry of Defence) are excluded from both parts of the new regime.

Hospitals and care homes are excluded from the in-occupation part of the new regime as they are regulated as workplaces through the Regulatory Reform (Fire Safety) Order 2005.

8. Are there plans for all buildings to be in scope? 

The focus of the Building Safety Act 2022 is on higher risk buildings (HRBs) that are at least 18 metres or seven storeys high. However, certain provisions relating to the remediation of relevant defects focus on self-contained buildings, in England that contain at least two dwellings and are at least 11 metres or has at least five storeys.

The Act introduces significant changes to the way in which building safety is regulated, with significant consequences for developers, owners, landlords and tenants of all residential buildings and not just HRBs. 

Currently, there are no plans to extend the Building Safety Act 2022 to cover all buildings, however, the legislation has the flexibility for more buildings to be brought into scope over time. This is why we advise all construction companies to familiarise themselves with the Act.

Separately, it would be advisable for all contractors who have carried out works to residential developments to maintain records of any existing records of practical completion of works and, moving forward, maintain sufficient records of each and every project for a period of at least 15 years under changes to the Defective Premises Act 1972 (see 7.c). 

New Roles Created by the Act

9. What are the new roles created by the Act? 

Plans have been enshrined in the Building Safety Act 2022 to create two new roles to oversee the operation of the new building safety regime. These new roles are intended to create a clear line of responsibility for matters relating to building safety defects and will provide leaseholders and tenants with a point of contact for information about the safety of their buildings. The two new roles that have been created are the Building Safety Regulator (BSR) and Accountable Person (AP). 

      a. Building Safety Regulator

The Government has named the Health and Safety Executive (HSE) as the new Building Safety Regulator (BSR). The HSE website sets out the primary functions of the BSR. These are: 

• To oversee the safety and standards of all buildings. 
• To help and encourage the built environment industry and building control professionals to improve their competence. 
• To lead the implementation of the new regulatory framework for high-rise buildings. 

The HSE will regulate buildings with seven storeys or that are 18 metres or higher, and either: 

• Have at least two residential units.
• Are hospitals or care homes (during design and construction).

There are a number of other responsibilities that the HSE will take on. These include being a statutory consultee for planning applications, providing dutyholders with clear accountability and statutory responsibilities, enshrining the golden thread of building information as well as maintaining a register of occupied higher risk buildings and building inspectors and approvers. 

Crucially, the HSE is responsible for maintaining the golden thread of information. To date they have provided a list of the ways in which information will need to be stored as part of the golden thread. These include: 

• Kept digitally.
• Kept securely. 
• Be a building’s single source of truth.
• Be available to people who need the information to do a job.
• Be available when the person needs the information.
• Be presented in a way that person can use. 

      b. Accountable Persons 

Part 4 of the Act identifies that the dutyholder for occupied buildings is the Accountable Person (AP) (or the Principal Accountable Person (PAP) where there is more than one Accountable Person). The AP is defined as the person who is in possession of the common parts of a building, for example corridors or lobbies, or has the relevant repairing obligation. The underlying purpose of the AP is to create a clear line of responsibility for the safety of a building.

In terms of responsibilities the AP will need to take steps to prevent any building safety risks occurring. 

APs will be required to register their existing buildings with the BSR between April 2023 and October 2023, for any new buildings APs must register a building before its first occupation. As mentioned above it will be a criminal offence to not register a building. 

They must also assess the building safety risks relating to the building and demonstrate how they are meeting this ongoing duty via a Safety Case Report, prepare a Residents’ Engagement Strategy to promote the participation of residents in the making of building safety decisions, and establish a framework and process for reporting mandatory occurrences to the Building Safety Regulator. Finally, an AP must apply for and display a Building Assessment Certificate. 

10. What happened to the Building Safety Manager role? 

The Government scrapped plans to appoint a Building Safety Manager (BSM) under the Building Safety Act 2022 following concerns that the role would be too costly for leaseholders. The Government stated that this would offer flexibility in the regime to enable the accountable person(s) to determine the most appropriate arrangement for their buildings and residents. However, the legal duties imposed on the AP in the Act means that they need to have suitably competent people to undertake the role and many organisations are appointing people to perform the function of the BSM.

11. What is the difference between an ‘accountable person’ as set out in the Building Safety Act and a ‘responsible person’ as set out in the Fire Safety Act 2021? 

As noted under 9.b. the ‘Accountable Person’ as set out in the Building Safety Act 2022 is the organisation or person(s) who owns or has responsibility for higher risk buildings (HRBs).

This differs from the ‘Responsible Person’ as set out in the Fire Safety Act 2021, which, under Article 3 of the Fire Safety Order, the ‘Responsible Person’ of a premises must assess the fire risks to people on the premises or within its vicinity (these are described as ‘relevant persons’ in the order). The first assessment helps identify the fire safety precautions the Responsible Person must take to comply with the Fire Safety Order.

The Fire Safety Order applies to:

• all workplaces and commercial buildings
• non-domestic parts of multi-occupied residential buildings - this includes those areas clarified by the Fire Safety Act

This includes:

• balconies
• structures
• external walls
• flat front doors

The Health & Safety Executive (HSE)

12. Who is the Health & Safety Executive (HSE)?

The Health and Safety Executive (HSE) is the national regulator for workplace health and safety. HSE’s stated purpose is to “ensure that people feel safe where they live, where they work and, in their environment.” 

The HSE has produced a 10-year strategy that underlines the goals and aims of the organisation. 

You can read more about the HSE here.

13. What role does the HSE have to play in the new building safety regime?

The Government has named the HSE as the new Building Safety Regulator (BSR). The primary functions of the HSE as the new BSR have been listed in question 11a. 

The BSR will also hold a register of all building control inspectors. Registration will open in October 2023 and remain open until April 2024.  

14. What is the residents’ panel and what powers will it have? 

As part of their responsibilities in the Act the HSE will be required to set up and run a Statutory Residents’ Panel. The Panel will be made up of around 20 existing HRB residents from different locations and housing types, including social housing, private rent, and leasehold owners. 

The role of the Panel will be to:

• Give BSR advice on aspects of its operation based on real-life experience. 
• Provide input on guidance relating to residents, plus other BSR documents and procedures.
• Assist BSR with developing its annual statement on resident engagement.
• Be empowered to set up workgroups to undertake in-depth projects.
• Provide input on BSR residents’ research.
• Help to test BSR communications material. 

The first meeting of the Panel took place in December 2022. So far, the Panel has provided lived experiences to the Regulator on the experience for tenants in HRBs.

The National Regulator for Construction Products

What is the National Regulator for Construction Products?

In January 2021, the Government announced that the Office for Product Safety and Standards (OPSS) would take on responsibility for the national regulation of construction products. 

What role do they have to play in the new building safety regime?

The National Regulator for Construction Products (NRCP) was created in line with the recommendation made in Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety.

The Regulator’s primary responsibility is to ensure homes will be constructed using ‘safe’ materials. The regulator will have the power to remove any product that represents a significant safety risk and to prosecute companies that break the rules.

OPSS started work to establish the new Regulator in April 2021 and has begun to lead and coordinate work that will set a new regulatory approach for construction products. The intention is that the NRCP will become fully operational once the subsequent secondary legislation have been approved by Parliament. This new legislation would give OPSS all the necessary legal powers to carry out its duties as the Regulator in full.

New Homes Quality Board (NHQB)

17. What is the New Homes Quality Board (NHQB)? 

The NHQB is an independent body which has been established to increase quality in the built environment. Broadly, the purpose of the NHQB will be to establish a framework to ensure that there is a high standard of new homes and services and that there is power of redress for purchasers where the quality of new builds is not achieved. 

The NHQB, at present, is constituted of representatives from consumer bodies, lending industry peers, Homes England, developers, providers of new home warranties and independent members. 

Amongst its various duties the NHQB will: 

• Provide support and information to consumers and industry. 
• Hold the register of developers of new build homes. 
• Collect an annual registration fee from developers to fund the new arrangements. 
• Discipline and sanction poorly performing developers. 
• Report and publish details on industry performance.

You can read more about the NHQB here and New Homes Ombudsman here. 

18. What role do they have to play in the new building safety regime? 

Another key role that NHQB will play is to put in place and oversee the New Homes Ombudsman Service as well as to develop a new industry code of practice called the New Homes Quality Code. 

The New Homes Ombudsman will adjudicate any complaints made against the new quality code and provide redress for new home buyers. Government has stated that access to the Ombudsman’s services will be free to consumers. 

The above-mentioned Code, which was launched in October 2022, is asking developers to register with the Ombudsman as a commitment to providing quality new build homes. Registration with the Ombudsman will help to provide purchasers with assurances that the home they are buying is of a certain quality. If this is not the case, purchasers will be protected by the Ombudsman who will be able to enforce alterations to bring the quality of the home up if the developer is registered with the Ombudsman. This can be checked through a list of registered developers. 

Golden Thread

19. What is the Golden Thread?

Dame Judith Hackitt, in her report, Building a Safer Future, recommended the introduction of a ‘Golden Thread’ to support dutyholders in designing, constructing and managing their buildings as holistic systems, taking into account building safety at all stages in the lifecycle.

The golden thread is both the information that allows you to understand a building and the steps needed to keep both the building and people safe, now and in the future. A full definition of the golden thread has been published here.

Building owners and managers will need greater traceability to avoid attention from the Building Safety Regulator and to understand and document all the materials and assets that were used during the construction process.

The intention is to ensure that the right people have the right information at the right time to ensure buildings are safe and building safety risks are managed throughout the building’s lifecycle.

20. When does the Golden Thread come into place? 

The Act creates a legal duty on dutyholders and APs to obtain, create, keep and give information or documents in accordance with prescribed standards. The Higher-Risk Buildings (Key Building Information etc.) Regulations 2023 clarify that the prescribed information, known as key building information, must be submitted within 28 days of applying for registration and must be in electronic form.

Guidance on storing a building’s information can be found here.

21. Is the industry aware of the responsibilities of the Golden Thread? 

CIOB partnered with i3PT Certification back in December 2020 to publish the findings of an in-depth survey that examined the UK built environment’s ability to deliver a digital golden thread of information. It found that most respondents were confident in their own understanding of the golden thread, however less than half believe that the appropriate people in their organisation share the same level of understanding. A full copy of the report can be found here. 

22. What information is required to be stored as a result of the Golden Thread?  

The Golden Thread is a digital record of all project and asset data, detailing how a building was designed, built, managed and operated. It acts as a live repository, linking all data, recording decisions and therefore giving a clear accountability trail to reduce risk and improve safety. It also introduces a three-stage gateway process, with the requirement for a safety case review at each gateway. These are discussed in further detail under point 23.

Gateways

23. What are the gateways?

Under the Act there is a requirement to demonstrate building safety though a new system of gateway points during design & construction, and a Safety Case Report during occupation. Importantly the gateways apply for construction, refurbishment and on any works in HRBs.

There are three gateways that developers will need to go through. These are: 

• Planning Gateway One - introduced on 1 August 2021 to ensure that fire safety matters, as they relate to land use planning, are incorporated at the planning stage for schemes involving a higher risk residential building.
• Gateway Two - will occur prior to construction work beginning on a higher risk building and replaces the current building control ‘deposit of plans’ stage. It provides a ‘hard stop’ where construction cannot begin until the Building Safety Regulator is satisfied that the design meets the functional requirements of the building regulations. For complex schemes there will be allowances for plans to be submitted in phases, but this will be at the discretion of the HSE. 
• Gateway Three - is equivalent to the current completion/final certificate phase, where building work on a higher risk building has finished and the Building Safety Regulator assesses whether the work has been carried out in accordance with the building regulations. Only once Gateway Three has been passed can the new building be registered with the Building Safety Regulator and occupation of the building allowed to commence. There is a proposed 12-week period for the HSE to approve the application for a Completion Certificate and it will be an offense for the building to be occupied without this certificate. 

If details are changed between Gateway Two and Gateway Three applicants will need to submit these changes to the regulator for approval.  

During the Building Safety Regulator Conference, the HSE provided a list of some of the prescribed documents to be submitted as part of the gateway process. These included:

• Construction Control Plan. 
• Fire and Emergency File. 
• Building Regulations Compliance Document.
• Planning Statement. 
• Mandatory Occupancy Report.
• Change Control Plan.
• Competence Declaration.
• Description of Mandatory Occupancy Reporting System.
• Plans, details and specifications. 

Enforcement

How will the new regime be enforced?

As noted in 9.a. the Building Safety Regulator will oversee building owners of higher-risk buildings to ensure that they are carrying out their legal responsibilities under the Act. Its enforcement approach will:

• exercise its powers in line with regulatory best practice.
• take a consistent and proportionate approach.
• target enforcement activity at cases where action is needed.
• work closely with existing regulators such as local authorities and fire and rescue authorities.

During the recent Building Safety Regulator Conference, held on 22 March 2023, the HSE provided further information about the enforcement powers that have been provided to the Regulator. These have been captured in the image below provided to delegates at the conference.

 

Further information on the Regulator and its enforcement can be found here.

25. Has anyone been penalized under the new Act? 

There has yet to be a formal prosecution under the Building Safety Act 2022, however, the Government has used the legislation to take its first steps to launching legal action against a block owner who failed to carry out necessary cladding works. The freeholder has 21 days to remediate a 15-storey block in Stevenage, Hertfordshire, or face court action. 

Secondary Legislation

27. What will be contained within the secondary legislation?

A variety of consultations have been published, seeking views from the public on the package of secondary legislation. These include a consultation on the Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations. Although now outdated, the Government’s Building Safety Bill ‘transition plan’ outlined the main areas of secondary legislation.

The Building Safety Act 2022 (the Act) received Royal Assent on 28 April 2022. With many key aspects of the Act now in force, industry professionals are still getting to grips with the implications and ensuring their businesses and operations are compliant. This short blog takes an opportunity to look at the current state of play and what the future holds for building safety in the UK.

Earlier this year (March 2023) the Government hosted its first Building Safety Regulator (BSR) conference at Central Hall in Westminster. The event served as an opportunity to hear directly from the new Regulator (which sits within the Health & Safety Executive) about important changes that came into effect from April 2023 for full implementation in October 2023.

The main takeaway from the conference was the Building Safety Regulator would become fully operational from April 2023 and the principal accountable person (the person who is legally responsible for the structure and exterior of the building) will be required to register high-rise residential buildings from 1 April 2023. There is a six-month registration period before it becomes mandatory and a criminal offence for a high-risk building to not be registered with the BSR (April 2024). Further detail on the registration process can be found here.

Building control professionals and private building control organisations will also have to register with the BSR and registration will open in October 2023. They will have six months before it becomes mandatory (April 2024).

The other important change is the ‘golden thread’ of information. Dame Judith Hackitt, in her report, Building a Safer Future, recommended the introduction of a golden thread to support dutyholders in designing, constructing and managing their buildings as holistic systems, taking into account building safety at all stages in the lifecycle.

The purpose of the golden thread is to ensure all relevant parties have accurate information to understand a building and the steps needed to keep both the building and people safe, now and in the future. Further guidance on storing a building’s information can be found here.

Industry preparedness for the golden thread is still largely unknown. Back in December 2020, the Chartered Institute of Building (CIOB) partnered with i3PT Certification to publish the findings of an in-depth survey that examined the UK built environment’s ability to deliver a digital golden thread of information. It found that most respondents were confident in their own understanding of the golden thread, however less than half believe that the appropriate people in their organisation share the same level of understanding. While much information about the principle of the golden thread and the documentation to be stored by dutyholders has been released, the BSR Conference and the questions asked by attendees highlighted that the industry still has a long way to go to get to grips with this complex legislation.

But it is not just the industry that might not be ready and there are concerns around the timetable to get the necessary secondary legislation through parliament, whether the BSR has the capacity to enforce the Act as well as wider issues around the shortage of building control inspectors to carry out the new functions. The shortage issue is seen as such a problem that the Government announced plans in March 2023 to spend £42m on recruiting more than 200 building inspectors and fire-protection officers to support its new high-rise building safety regime.

The industry is also still waiting for a new permanent appointment following the retirement of Peter Baker, who was the Chief Inspector of Buildings at the BSR in May2023.

As secondary legislation continues to be laid out by the Government, the CIOB has encouraged members and wider industry to understand the implications of the Act, regardless of if they are working on higher-risk buildings. Government has alluded to the fact the building safety regime will continue to evolve over the coming years, and it is likely that many of the new regulations will come into force on other types of buildings. Our advice and guidance page can be read here.