Building Safety Act and HRBs: Where we are now?

As we start a brand-new year, compliance with the Building Safety Act 2022 (BSA 2022) remains a pressing concern for Principal Accountable Persons (PAPs) and their managing agents. The legislation, aimed at improving the safety of higher-risk buildings (HRBs), has set a series of milestones that many accountable parties have yet to meet. Below, we outline the key obligations and the gaps that still exist in their fulfilment.

Higher-Risk Buildings: What Are They?

HRBs are defined as residential buildings over 18 metres in height or comprising seven or more storeys. These buildings present unique safety challenges due to their size, complexity, and the potential for catastrophic incidents, and the BSA 2022 places a significant responsibility on PAPs to ensure these buildings meet stringent safety standards. The Building Safety Regulator (BSR) – part of the Health & Safety Executive – has estimated there to be 12,500 HRBs in England containing over 1 million residential units.

Registration with the Building Safety Regulator

One of the first critical milestones under the BSA 2022 was the mandatory registration of all HRBs with the BSR by 30 September 2023. Registration is a foundational step, as it establishes a formal record of HRBs under the oversight of the BSR.

Via a legitimate interrogation of the Building Safety Regulator’s portal – through which you can look up an HRB using its postcode – thousands of HRBs remain unregistered. Here is the link to the BSR portal: https://www.register-high-rise-building.service.gov.uk/public-register/search.

This widespread non-compliance poses risks not only to building safety but also to the reputations and legal standing of PAPs and, where relevant, their agents.

Why Are So Many Buildings Unregistered?

1. Ignorance: Many PAPs simply do not know they have several obligations under the legislation. A significant part of this issue stems from a misunderstanding of who qualifies as the Principal Accountable Person, and in many cases, there may be additional Accountable Persons. For buildings without professional management, lay individuals managing their own properties are often unintentionally negligent due to a lack of awareness.
2. Payment Issues: The registration fee of £251, payable to the BSR, has frequently gone astray when payment has been made upon receipt of an invoice. Payments are often resting in suspense accounts because they have not been properly reconciled with the corresponding buildings, creating delays and confusion in the registration process.
3. Measurement Confusion: There is widespread uncertainty about how to measure the height of a building or calculate the number of storeys. This confusion has resulted in many HRBs over 18 metres or seven storeys being incorrectly assessed and left unregistered.
4. Lack of a Comprehensive Database: The BSR does not maintain a definitive list of HRBs. Without a database to cross-reference, the BSR cannot easily identify unregistered buildings, leaving gaps in enforcement.
5. Belligerence: Some PAPs and their managing agents are fully aware of the registration requirements but have chosen not to comply. This deliberate inaction leaves them vulnerable to enforcement actions, including potential prosecution by the BSR.

Resident Engagement Strategies

By April 2024, all HRBs were required to produce a resident engagement strategy. This document is essential for fostering transparency and trust between PAPs and the residents they serve. It outlines how residents will be informed, consulted and involved in decisions affecting building safety. Unfortunately, many PAPs have failed to meet this obligation, leaving residents in the dark about critical safety issues.

The Building Safety Case and Report

The BSA 2022 also mandates the preparation of a building safety case, a comprehensive assessment of risks and mitigation strategies for HRBs. The safety case is the foundation for the Building Safety Case Report, a summary document that PAPs must submit as part of the application for a Building Assessment Certificate (BAC).

Despite the importance of this requirement, many PAPs are unprepared. Without a safety case, PAPs cannot produce a credible report, putting them at odds with the BSR’s expectations and delaying the certification process. This lack of preparedness underscores a broader issue of inadequate planning and resource allocation within our sector.

Mandatory Occurrence Reporting

Another critical requirement under the BSA 2022 is the establishment of a mandatory occurrence reporting (MOR) procedure. This system ensures that significant safety incidents are reported promptly to the BSR. It is a proactive measure designed to identify and address safety risks before they escalate. However, as with other obligations, many PAPs have yet to implement such procedures, leaving gaps in the regulatory framework.

The Road Ahead

The BSR has demonstrated a willingness to enforce compliance, and PAPs who fail to meet their obligations risk severe consequences, including legal penalties. To avoid such outcomes, PAPs and managing agents should take the following steps:

1. Immediate Registration: Ensure all HRBs are registered with the BSR without delay. The first stage of registration is straightforward once you have ascertained the identity of the Accountable Person(s) and measured the height of the building/counted the storeys. The second stage of registration is the requirement to upload Key Building Information (KBI), which is much more involved and usually requires a building safety professional – such as a surveyor – to visit the property and pore through building safety documents and plans.
2. Develop a Resident Engagement Strategy: Such a strategy – unique per HRB – is a crucial step in engaging residents proactively to build trust and meet regulatory expectations.
3. Prepare a Building Safety Case: Allocate resources to assess risks, document mitigation measures, and produce a comprehensive safety case.
4. Submit a Building Safety Case Report: Use the safety case as a foundation for this critical summary document.
5. Implement MOR Procedures: Establish clear protocols for reporting safety incidents to the BSR.
6. Be ready for your invitation to apply for a BAC: This can come out of the blue, even for buildings that you might regard to be of ‘standard’ construction. Given you have just 28 days (once invited) to provide the BSR with a building safety case report, MOR procedure and resident engagement strategy – it’s best to be on the front foot.

If you need help…

Please do reach out for guidance and/or execution when it comes to building registrations, resident engagement strategies, mandatory occurrence reporting procedures and building safety case reports. We are working around the clock to support PAPs and their managing agents.

The Building Safety Act 2022 represents a pivotal shift in the management of high-rise blocks of flats, placing safety and accountability at the forefront. While the challenges of compliance are significant, the consequences of inaction are far greater. PAPs must act now to meet their obligations, safeguard residents, and uphold the integrity of the built environment.

Chris Stansell, Managing Director, Earl Kendrick

Jonathan Channing, Property Management Consultant, Earl Kendrick