The Draft Building Safety Bill

On Monday 20^th July 2020, the Governmentpublished a draft of their highly anticipated Building Safety Bill, whichintroduces extensive reforms and fundamental changes to current building safetylegislation. The Building Safety Bill is a long-awaited response to Dame JudithHackitt’s Independent Review of Building Regulations and Fire Safety; followingthe Grenfell Tower Tragedy in June 2017. 

The overall ethos of the Bill is that it introduces “a newera of accountability” and stresses that residents are at the heart of the newregime and “will never be ignored”. It advises that the industry should preparefor substantial change, and that the new Building Safety Regulator will beessential for ensuring that the new regime is effective.

In this article, we have outlined some of the most crucialchanges and what they will mean for the industry. Starting with some of theimportant new roles that are to be introduced.

BuildingSafety Regulator

The Building Safety Regulator will be a new body that hasbeen set up to oversee building safety management and enforce building safetyrequirements.

The Bill has announced that the Building Safety Regulatorwill be situated within the Health and Safety Executive (HSE) and will be accessibleto all parties including residents (see section below on Resident EngagementStrategy for further details). The regulator will have three main functions,which are, to implement the new, more stringent regulatory regime forhigher-risk Buildings, to oversee the safety and performance of all buildings,and to assist in ensuring competence among the built environment industry andregistered building inspectors. They will also be responsible for issuinglicences authorising building occupation.

Accountable Person

The Accountable Person (AP) for a building is likely to be the Landlord/Freeholder or a third party appointed on their behalf, for example, the Managing Agent. The AP will have defined competency which is not yet known.

BuildingSafety Manager

The Building Safety Manager (BSM) will be appointed to assist the Accountable Person (AP) meet their objectives. The BSM can be an individual or corporate role. Where the BSM is not an individual, the BSM must appoint an individual acting under its control to be the nominated individual for the building; the AP must be satisfied of the person’s capability to perform the functions of a BSM.

Overall, the BSM must maintain the safety case and they musthave the correct skills, knowledge, experience and behaviours to allow them todo so.

What dowe mean by Safety Case?

The Bill requires the Accountable Person for the building todemonstrate to a Building Safety Regulator that they are doing everything thatcan be reasonably expected of them to ensure that fire and structural buildingsafety risks are being managed; this will be in the form of a Safety Case. TheAccountable Person for an occupied higher-risk building must, as soon as reasonablypracticable, prepare a Safety Case containing their assessment of the buildingsafety risks and any steps they have taken in relation to those risks.

Safety Cases are commonplace in high risk industries such asRailway, Nuclear and Petrol-Chemical; where higher levels of confidence insafety must be demonstrated. So, they are not a new concept, only new toresidential property management.

Building AssuranceCertificate

The Accountable Person for an occupied higher-risk buildingmust make an application for a Building Assurance Certificate in relation to thebuilding. It would be a criminal offence for a person having control of abuilding not to make a valid application for its registration. The BuildingSafety Regulator would not permit buildings in scope to be occupied until acertificate has been issued and the building has been successfully registered.

This is likely to be a much easier process for new buildsthan for buildings already in use. For existing buildings, it has been proposedthat there be a transitional implementation period allowing for investigationworks to commence, to collect detail on the building’s history.

The Building Assurance Certificate will identify the AccountablePerson, the Building Safety Manager, the building for which the AP isaccountable, and the conditions for ensuring the building is safe forresidents.

ResidentEngagement Strategy

Dame Judith Hackitt’s Review found that, residents did nothave a strong enough voice in the safety management of the building they livein. It was therefore recommended that, building owners develop a ResidentEngagement Strategy to work towards resolving this.

As a result, residents will be placed at the heart of thenew regime. The Draft Bill states that “those that build and manage high risebuildings will need to actively demonstrate how they have considered residentssafety in their work, and residents will have access to safety informationabout their building.” In order to do this, the Bill therefore requires thatall Accountable Persons produce a Resident Engagement Strategy, to promote theparticipation of residents and flat owners in the decisions being made inregards to the safety of their building. The Accountable Person also has theduty to provide a copy of the Strategy to each resident or flat owner (aged 16or over) and the strategy should include:

• The information that will be provided to residents/flat owners about decisions relating to the management of the building.
• The aspects of those decisions that theaccountable person will consult residents/ flat owners about.
• The arrangements for obtaining and taking accountof the views of residents/ flat owners, and how this will be measured.

One of the specific concerns that The Independent Review ofBuilding Regulations and Fire Safety addressed was that residents oftenstruggled to get their complaints addressed, therefore, the Engagement Strategywill aim to give residents an effective escalation route to voice theirconcerns to the Building Safety Regulator (where the AP has not resolved them).

Duties’ of Residents

Of course, residents will also have their own duties toassure the safety of their buildings. A resident of an occupied higher-riskbuilding, aged 16 or over, must:

• Comply with a request, made by the AP for thebuilding, for information reasonably required.
• Keep in repair and proper working order anyrelevant items (any electrical or gas installation or appliance that is in thedwelling in which the resident resides or is controlled by a resident of thedwelling).
• Take reasonable care to avoid damaging anyrelevant safety item (an item that is in, or forms part of, the common partsand is intended to improve the safety of persons in or about the building).

Where it appears to the AP for an occupied higher-riskbuilding that a resident has breached their duty, the AP may give the relevantperson a notice and apply to the court.

What happens now?

Now the draft Bill has been published, it will go through a period of consultation before it is introduced to Parliament.