Building Safety Act 2022 in higher education – are you prepared?

The much anticipated Building Safety Act 2022 is now law after receiving royal assent in April 2022.

The Act received Royal Assent just before the 5^th anniversary of the tragic Grenfell Tower fire. But the Act is not just about cladding and not just about fire, it is about the safety of buildings as a whole. Whilst much of the detail will be provided in future Regulations and many of the provisions are not therefore yet in force, the Act gives us advance warning of what is to come.

Some of the changes and requirements of the Act will apply to all buildings. Section 3(1) of the Act tasks the new Building Safety Regulator (part of the Health and Safety Executive) to secure the safety of people in or about and the overall standards of all buildings (not just higher-risk ones).

The key provisions for the higher education sector are however those which apply to “higher-risk” buildings, generally defined as buildings which are 18m or more high or have 7 or more storeys and which have a residential element.

New duties

For these “higher-risk” buildings that are already occupied:

• From 23 January 2023, information must be provided to the fire service, including a floor plan and details of design and construction (including external walls). This requirement comes from updates made to the Regulatory Reform (Fire Safety) Order 2005.
• Between April and October 2023 - The buildings must be registered with the Building Safety Regulator. Failure to register will be a criminal offence. If the Building Safety Regulator so directs for the relevant building - within 28 days from request, a Building Assessment Certificate must be obtained from the Building Safety Regulator (who must be satisfied that all duties are being complied with).
• An Accountable Person must be appointed to have legal responsibility for ensuring that fire and structural risks are understood, and that appropriate steps and actions to mitigate and manage these risks are taken. This person must be named when the building is registered.
• Other requirements that are expected to come into force in 2023 include:
  • A safety case must be prepared by the Accountable Person to demonstrate how building safety risks are being managed proportionately for each building
  • A golden thread of building information must be created, stored and updated throughout the building’s lifecycle.
  • In relation to residents:
    • The accountable person must prepare and promote a resident engagement strategy encouraging residents to participate in relevant decision-making about their building’s safety.
    • A complaints procedure must be provided with appeal to Building Safety Regulator if Accountable Person has not resolved their concerns to ensure that their concerns are addressed and not dismissed.

In some case, the costs of complying with the above can be recovered from leaseholders of high-risk buildings, but these provisions will not apply to standard student accommodation as they only apply to leaseholders with leases over 7 years or more.  The cost of fixing historical building-safety risks should be borne by the original developer.  Where the developer cannot be found the costs should be borne by the freeholder.

There are even more requirements coming into force in the next 12-18 months for higher-risk buildings during construction. These include:

• Using the Building Safety Regulator as the sole building control body.
• A number of stringent gateways at each of which building safety must be evidenced to the Building Safety Regulator. These include during the planning stage (this requirement already being in force), before construction starts and then before occupation will be permitted.

Given the reputational and financial risks associated with building and fire safety, not to mention moral duties and the duty of care owed to staff and residents, now is the time for those with higher-risk buildings to be reviewing their estates and buildings (both existing and proposed) to ensure that they are safe. This is particularly important due to the new duty on dutyholders to report to the Regulator structural and fire safety occurrences that could cause a significant risk to life.

Remediating unsafe buildings

The Building Safety Act 2022 also introduced a raft of new powers, including the ability for enforcement action to be taken to ensure that safety defects are remediated.

Under section 123 and the subsequent Regulations, power is given to a number of named entities (including the Secretary of State, the regulator, a local authority, a fire authority or a person with a legal or equitable interest in a building) to apply to the First-tier Tribunal for a 'remediation order'. The purpose of such an order is to require the responsible landlord (or other party to the lease, such as a management company) to remedy specified defects in a building within a specified time. The same categories of persons can also apply to the First-tier Tribunal for a 'remediation contribution order' requiring particular companies or partnerships (e.g. former landlords, superior landlords, developers or parties associated with them) to make payments for the purposes of funding the costs of remediating building safety defects in a building. The Tribunal can make a remediation contribution order where it is just and equitable to do so.

Landlords and owners of tall buildings with safety defects will know that the remediation of safety defects is not always a quick or straightforward task, and nor is the process of securing funding from the Government’s Building Safety Fund. There are a multitude of risks to be managed – with resident safety being the most significant of those risks.

If you would like more information about this topic, or assistance with auditing your estates and identifying whether any additional actions need to be taken to improve the safety of buildings, or if you want to discuss health and safety matters more generally, please contact Legal Director Louise Mansfield or partner Steve Eccles.