Building Safety Bill – implications for the sector

On 20 July 2020, the government published the draft Building Safety Bill. Phil Day, Group Finance Director at Guinness Partnership outlines FPAG's views on the possible implications for the housing sector.

The Bill sets out additional fire and structural safety requirements for building owners in new and existing buildings and proposes to introduce a more stringent regulatory safety regime and the introduction of a dedicated Building Safety Regulator as part of the Health and Safety Executive (HSE).

The new regulatory regime will regulate building safety risks in ‘higher-risk buildings’ which are currently defined as:

• A building which contains more than 6 storeys or the floor surface of the building’s top habitable storey is 18 metres or more, and has:
  • Two or more dwellings (i.e. house, flat or serviced apartment);
  • Two or more rooms for residential purposes (e.g. supported accommodation), or
  • Student accommodation.

The Bill provides the government with the ability to broaden the definition of ‘higher-risk buildings’ in the future and it is widely expected that it will do so in years to come.

Implications for housing providers

The Bill will have wide-ranging implications for housing providers with a number of these identified below:

• Building owners will need to nominate a named Accountable Person. This could be an individual, partnership or corporate body and there may be more than one Accountable Person in a building where ownership structures are more complex.
  
  
• The Accountable Person will be required to appoint a Building Safety Manager who can be an individual or organisation to support them in the day-to-day management of fire and structural safety in a higher risk building – but an organisational Building Safety Manager will still need to have a named individual with whom residents can raise queries and concerns.
  
  
• The Building Safety Bill includes a requirement to produce a Building Safety Case for every new and existing higher-risk building to evidence the buildings’ safety, by identifying risks and the methods of mitigating them.
  
  
• For new developments the Bill introduces a new Gateway regime to ensure that building safety risks are considered and mitigated at each stage of a building’s design and construction. The new Building Safety Regulator will oversee the building work and ensure appropriate measures are being implemented to manage risk.
  
  
• Developers of new build homes* (including conversions) will be required to belong to a New Homes Ombudsman scheme.
  
  
• The Bill includes provisions that enable social housing complainants to escalate a complaint to the Housing Ombudsman service directly, once they have completed their landlord’s complaints process without the need to make their complaint via a designated person / panel or wait eight weeks after the end of their landlord’s complaints process.

The Building Safety Regulator will have powers to prosecute against all offences in the Bill.  Where an offence is committed by a corporate body with the consent of a director or manager etc, or the offence is attributable to their neglect, that person will be liable to be prosecuted as well as the corporate body.

Recovery of building safety costs

The NHF is calling for the government to provide upfront funding for all remedial works so that buildings can be made safe as quickly as possible, then recoup the costs later from those responsible.

Building safety measures which may be recoverable, for example, include:

• The commission and production of the Building Safety Case, resident engagement strategy and mandatory reporting scheme.
• The appointment of the Building Safety Manager.
• Building safety works.
• Monitoring and management of day to day safety in the building, resident engagement and using the mandatory reporting system.
• The costs of compliance with statutory notices, obligations and requirements (but not the cost of enforcement action).
• Fees and other charges payable to the regulator.

In order to recover costs landlords will need to undertake consultation and issue a budget for the annual accounting period with the estimate of the building safety costs to be incurred and the charge payable by the leaseholder before undertaking the works.

* Page 106, section (9) of the Building Safety Bill outlines what is meant by new build homes in this case.