A summary of the 2021 UK Building Safety Bill and the key points you need to know about.
Four years after the Grenfell Tower disaster, The Building Safety Bill has been published, after being first announced in draft form in July 2020. The bill is in response to Dame Judith Hackitt’s Building a Safer Future report following an independent review of the tragedy and has been labelled as the next “key step in an extensive overhaul to building safety legislation” by Housing Secretary Robert Jenrick.
Building control, maintenance and inspection have come under some serious criticism following Grenfell (and rightly so). Hundreds of buildings have been signed off by both public local authority and private-sector inspectors, but later be found to be far from an acceptable standard.
Dame Hackitt’s report’s overarching theme was that building safety and regulation in the UK was far below standard and needed urgent revamping to ensure we don’t have another tragedy like Grenfell. The changes will be widespread and will have a big impact on both the construction and ongoing management of residential building blocks.
At a lengthy 218 pages, it’s a dense read and one which we can’t expect everyone to undertake for some light reading. That’s why we’re here, to break it down into the most important bits. So what is it, what does it mean, who does it affect, and what changes will we be seeing? Read on to find out.
The easiest and most digestible way we thought for you to get the best overview of the important bits was to break it down into key points.
1. The Building Safety Regulator
Following on from Dame Judith Hackett’s call for a new regulatory body to oversee the built environment, the new bill will create a new role of Building Safety Regulator. So what will the role entail, what functions will they serve, what powers will they have, and how will this affect the sector as a whole?
At a glance, what will they do?
Firstly they will oversee the safety and performance systems of all buildings
Secondly, they will encourage the improvement of competence in the built environment sector
Lastly, they will lead the implementation of the new regulatory regime for higher risk buildings
The role will be entrusted with a range of enforcement powers to support its work, as well as having a duty to maintain three committees to advise on building functions. Namely a residents’ panel, a building advisory committee, and an industry competence committee.
This role is already operating in a shadow form but will be fully up and running within 12 to 18 months of the bill being passed. Director of Building Safety and Construction at the Health and Safety Executive Peter Baker will lead the charge on setting this up.
Let’s have a look at some of the functions of the role;
To maintain a register of building inspectors and building control approvers, to drive up the competence of the building control profession.
To set minimum performance standards that building control bodies must meet, and also set reporting requirements.
To continuously assess the performance of building control bodies, with investigatory powers when standards are breached, followed by a series of escalating sanctions and enforcement powers.
To work with the construction industry and technical experts to make recommendations to the government for changes to the building regulations.
And here are some of the powers;
As per increased sanctions and enforcement powers mentioned above, they may remove anyone found to be non-compliant from the register
They may advise the secretary of state to make an order to take over a local authority building control department by appointing officers from another authority.
Furthermore, a new framework will be introduced to oversee the performance of building control bodies and give the regulator far more power to act against those found to be underperforming.
All of the above measures are due to come into force within 12 to 18 months of the bill being passed.
2. Duty-holders, Gateways, and the Golden Thread
This might sound like a Harry Potter movie but bear with us! The bill will also introduce new regulatory measures for buildings at least 18m tall or have at least 7 storeys and 2 residential units. This will include the introduction of duty-holders. But what is a dutyholder and what will they do?
Duty-holders will be responsible for a building’s safety at different points in its life cycle. For example, the principal designer oversees the design phase before the principal contractor takes over for the construction phase, and so on. This person will be responsible for sharing info and appointing people with the correct skills, experience and competence
The lifecycle will be split into Gateways (prior to construction, prior to occupation and so forth) and the building owner must show compliance at each of these gateways.
Gateway 1 will be during the planning process and requires those submitting planning applications to consider fire safety issues such as site layout, water supplies for firefighters and access for fire appliances.
It’s worth noting that Gateway 1 is being introduced through amendments to existing secondary planning legislation rather than through the Building Safety Bill. As a result, it has come about much quicker than changes planned through the new bill itself. It came into force on August 1st 2021.
Gateway 2 comes before building work starts. Building control approval must be obtained from the Building Safety Regulator and applicants will have to show how their proposals comply with regulations. Info regarding the dutyholder, competency and golden thread will be submitted here too.
Gateway 3 happens before occupation. An application will be reviewed by the Regulator which will assess whether the building is fully compliant and inspections may be performed before issuing a completion certificate.
Gateways two and three will be introduced within 12 to 18 months of the bill being passed.
The Golden Thread
And last but far from least is the Golden Thread. Called for in Dame Hackitt’s report 4 years ago, The Golden Thread is designed to make up for areas where compliance has been severely lacking in the past. Essentially it’s where all building info will be stored digitally and constantly updated, including materials used and inspection reports. The lack of cohesion and continuity in years gone by has been an issue, so this should help tackle that.
The government intends for this new regulatory regime to be in place within 12 to 18 months of the bill being passed.
3. The Accountable Person
The bill also makes reference to an accountable person. This does seem to imply a singular person but the Government has acknowledged that a building could and most likely will have multiple accountable persons. This person(s) responsibilities will include;
To assess risks and take all steps possible to prevent a safety risk from occurring.
To register existing occupied high-rise residential buildings with the Building Safety Regulator (This will be mandatory).
To conduct an assessment of building safety risks and register these in a safety case report, to be stored within the aforementioned Golden Thread.
To create a resident engagement strategy and complaints procedure for residents to voice any concerns.
To apply for a building assessment cert confirming they are fulfilling their duties by submitting the aforementioned case report to the Building Safety Regulator.
To appoint a Building Safety Manager
4. The NEW Fire Safety Order
As Grenfell tragically demonstrated, fire safety in the UK was subpar, and information on compliance testing and the competency of those carrying it out wasn’t always clear and transmissible. This is where our IoT compliance devices can come into play, with automated, accurate and reliable testing. Read more on that here.
As a result, we’ve seen a lot of pawning off of responsibility. To tackle this the bill will look to reform the Fire Safety Order and make it clearer for residents who to go-to for any fire safety concerns. This responsible person will also be required to keep updated fire safety information for residents.
There’s an emphasis on competence in this portion of the bill, although the definition is loose – ”someone who has sufficient training and experience or knowledge and other qualities to enable the person properly to assist in making or reviewing the assessment”.
The Government is hoping for these reforms and overhauls to be in effect between 6 to 12 months after the bill is passed.
To ensure adherence tougher fines will be put in place for any responsible person(s) who breaches the Fire Safety Order. And on that note…
5. Fines and Sanctions
To really show they’re not messing about, the new bill has brought in some stringent fines and sanctions to make sure people stick to the rules. Some of which include;
Directors or managers of companies responsible for building safety will be personally liable for failings with new criminal offences for the worst offenders, and up to 2 years in prison.
Not registering buildings with the Building Safety Regulator or not applying for a building assessment certificate could result in criminal action.
The Building Safety Regulator can investigate areas of concern and issue compliance notices. Failure to address the problems will also be a criminal offence.
Serious failings may mean a building given to a new manager appointed by the Regulator in the interests of safety.
Should a developer begin to build without gaining regulatory approval, this could also lead to prosecution.
Attempts to exploit or frustrate the system (for example providing false information) could also result in criminal punishment.
The regulator may investigate building control bodies and de-register private approvers that daily to meet standards.
They can also recommend the Government take over a failing council building control department.
Failure to adhere to the aforementioned Fire Safety Order can result in considerable fines.
Furthermore, the National Regulator of Construction Products will have the power to remove products from the market if they are deemed a safety risk, and may prosecute those who fail to comply (if they are UK based).
The last point is particularly poignant given the revelations about a defective insulation board on Grenfell Tower which emerged at the public inquiry.
6. Good News for Leaseholders!
In recent months the Government has come under criticism for failing to take a committed stance on protecting leaseholders from paying to fix issues that are not of their making. At present, the law means leaseholders contribute towards building works including safety work such as removing dangerous cladding, through the payment of service charges.
The draft version of the Building Safety Bill proposed the idea of a flat rate ‘building safety charge’ separate from service charges. The argument from many Ministers being it would add transparency to the system.
Whereas this sounded good, there was criticism over the inclusion of a clause allowing building owners to backdate costs for defects that may have occurred before residents moved in. So naturally, the Housing, Communities and Local Government Select Committee recommended this clause be axed.
The Government accepted this and the bill now only allows for this building safety charge to cover ongoing costs of the new regulatory regime (the Building Safety Bill/Building Regulator period onwards). £16 is the estimated cost of this new building safety charge once it’s fully incorporated, although the initial 2 year transition period will be more costly. This new charge is expected to come into place between Spring and Winter 2023.
It’s worth mentioning that this won’t completely protect leaseholders, but it puts the ball in their court a bit more. A legislation explainer said the bill;
“does not make leaseholders liable for the costs of undertaking capital works, for example, removing unsafe cladding. However, where existing leases allow for these remediation costs to be passed on, the Building Safety Bill will bring forward measures to protect leaseholders, by placing additional duties on the building owner to explore alternative cost recovery routes before passing costs to leaseholders.”
So what does this mean in plain English? Basically, the building owner will have more responsibility to try everything in their powers to fix the problem without charging the leaseholder. Only once they can prove they’ve tried everything (without success) can they ask leaseholders for any money.
And while we’re here, it’s worth remembering that this bill is much more focused on the construction, inspection and maintenance of new high-rises, and not so much on fixing safety issues in current buildings.
7. Legal Liability Lengthened
Another big change is an amendment to the Defective Premises act 1972 which states that if a dwelling is unfit for habitation, a leaseholder can make a legal claim within 6 years after construction. This proved tricky in the past however as some leaseholders looking to make a claim against the original developer found their building was developed long before the 6 year period.
The amendment changes this timeframe from 6 to 15 years and is a big step that will now cover refurbishments too, having only covered construction before. This is great when you think about the amount of refurbishment and remediation that will be needed to fix the numerous buildings with fire safety issues at present.
It also increases accountability for developers when they know they will be liable for more than twice as long. This will come into force 2 months after the bill gets passed. So going off that being in about 12 months would make it sometime in 2022, making the new cut-off point next year 2007, then 2008 and so on.
There has been scepticism as to how effective this will actually be, as plenty of blocks were built long before the new 15-year period. Furthermore, there’s the question of whether leaseholders of buildings built within the 15-year period will have the resources or ability to launch a timely and costly legal claim against a large developer. A further obstacle is that these buildings may well have been built to the standards of the time.
Another big change was the proposal to repeal Section 38 of the Building Safety Act. Of course, we know you know it already! But here’s a refresher – Section 38 makes it possible to claim against a developer for a breach of duty with regards to building regulations.
Sounds good right! The only thing is since being put into the act it hasn’t really been enforced. The new bill will aim to change this, and the timeframe is also 15 years in which to claim.
8. The New Homes Ombudsman
Quite simply, here we have a new role to combat the number of new builds in recent years hitting the news for a range of building safety defects. The main difference between this role and the Building Safety Regulator is that this role revolves specifically around disputes relating to new homes, and providing a solution to problems that arise.
A further benefit is transparency, directness and clarity. At present, there are four different authorities to which they may need to register a complaint. The ombudsman will aim to streamline this process. So let’s look at some functions, powers and sanctions;
To enforce a code of practice for new residential properties.
To provide a simple way for homeowners to make complaints.
To force builders to make improvements.
To ban shoddy contractors from any government schemes such as Help to Buy.
So how will this affect homebuilders? Well, it means they will have to;
Stay up to speed with news about the housing ombudsman in the coming months.
Register with the New Homes Ombudsman once it officially launches.
Comply with the new code of practice.
They will be legally required to register with the ombudsman.
The housing ombudsman will only mediate disputes up to the value of £50,000, but this should cover the majority of cases. It is expected this role will come into force within 12-18 months of Royal Assent.
9. The Construction Products Regulator
The goal of the Regulator is to identify and report products whereby their defectiveness or failure in an emergency could cause serious harm or death.
In the wake of the Grenfell Tower Disaster, the public inquiry revealed many tragic shortcomings. One of which was the inadequate combustible materials used to construct the building. The inquiry found some product manufacturers managed to dodge the thorough and required testing processes required to get their product to market.
That’s scary enough even before you think about how many of these manufacturers’ products are in place on buildings nationwide, potentially unbeknownst to their occupants.
The solution to situations like this is the establishment of a new regulator for construction products, which will take its place within the pre-existing Office for Product Safety and Standards (OPPS).
The goal is to identify and report products whereby their defectiveness or failure in an emergency could cause serious harm or death.
The OPSS in tandem with the new Construction Products Regulator to ensure all products are up to standard, and to ensure enforcement of improved construction product regulations. This will include the power to remove products that pose a safety risk from the market. They will also carry out or commission their own product testing to investigate non-compliance within the sector.
Further responsibilities of the Construction Products Regulator and OPSS will include maintaining a national complaints system and the encouragement of local trading standards to ensure any safety concerns or risks can be identified and tackled as quickly as possible.
Once again this role will come into play 12-18 months after the bill is passed.
So there’s our (somewhat) condensed guide to the New Building Safety Bill. A bill that aims to provide the safety regulation overhaul that has been desperately needed since well before the Grenfell Tower Disaster. Unfortunately, sometimes it’s tragedies such as this that force reforms and changes that are long overdue, but better late than never.
With much of the new bill not enacted between 12-18 months, it’s hard for us to really tell what kind of effect it will have on the sector. However, from what we’ve come across in our deep-dive of the bill and the new roles, measures, powers and sanctions, we’re feeling quite confident about it being a major step in the right direction of never having such a terrible tragedy as Grenfell occur again in our times.
If you fancy a bit of heavy reading you can check out the bill in full here, or read about the transition plan here.