Building Safety

To oversee the new legislative framework, the Building Safety Act 2022 introduces three new bodies: a Building Safety Regulator, a National Regulator for Construction Products and a New Homes Ombudsman. 

The new bodies will each have different roles and responsibilities under the regime. 

The Building Safety Regulator is a newly established body which forms part of the Health and Safety Executive (HSE). As the regulatory body responsible for implementing and enforcing the new Building Safety Regime, the Building Safety Regulator’s primary objectives include regulating higher-risk buildings, raising the standards of all buildings regardless of a building’s height, and to provide assistance to professionals to improve their competence, in particular, professionals involved in the design and construction of buildings and building control. 

The Building Safety Regulator has committed to creating two governance committees. The first will be known as the ‘Industry Competence Committee’ which will primarily focus on monitoring competence within the industry, providing advice to the Building Safety Regulator and producing guidance to enhance competence across the industry. 

The second committee, the Building Advisory Committee, will advise and support the Building Safety Regulator in relation to its building functions. 

Separate to the committees, the Building Safety Regulator formed a Residents Panel in December 2022, consisting of 18 members who either live in or rent a residential property contained within a high-rise building located in England. The panel includes leasehold owners and residents of private and social housing who will assist the Building Safety Regulator by providing real life experience to be incorporated into research and guidance documents. 

The Office for Product Safety and Standards (OPSS) has extended its remit to take on responsibility as the National Regulator for Construction Products (NRCP). 

The NRCP is expected to be responsible for ensuring that all construction products placed on the UK market are safe and — where non-compliance is identified — take action to remove the products from the market and/or consider appropriate enforcement action.

As required under the Building Safety Act 2022, a New Homes Ombudsman Scheme is to be established to assist owners of new build homes to escalate concerns or complaints concerning their properties where the developer has been unwilling or unable to resolve the issues.

Homeowners can use the New Homes Ombudsman Scheme where the complaint relates to the New Homes Quality Code of Practice. The New Homes Quality Board published a Code of Practice in December 2021 which sets out the requirements to be fulfilled by developers at every stage of selling a new home, from marketing and selling the property until two years after purchase.

The provisions of the Building Safety Act 2022 and the Building Safety Regulator have placed greater emphasis on the requirement for duty holders to collect, store and maintain information about a building throughout its lifecycle. This is known as the ‘golden thread of information’ — a new concept introduced by the Building Safety Act 2022.

The golden thread of information refers to the information recorded concerning the initial design, construction, completion and occupation of higher-risk buildings. Duty holders are required to provide information during the design and construction phase, and it is for the accountable person to maintain the information during the occupation phase. Any information concerning how a building was constructed, what standards were met, and the materials used will all form part of the golden thread of information. 

The information must be updated and stored throughout the lifetime of the building. The data collected should act as a valuable tool in assisting those responsible for the building to identify, manage and mitigate any safety risks. It should also demonstrate and evidence that the building was designed and constructed in accordance with the relevant building regulations in force at the time. 

The information forming part of the golden thread must be proportionate, accurate, trusted and presented in a format that is accessible and easy to navigate. All data must be stored electronically and record who inputs, changes or updates any information saved.

A principal accountable person must also prepare and maintain a safety case report for higher risk buildings. The safety case report must set out any safety risks relating to the building, in particular risks associated with the spread of fire or structural hazards, and detail how such risks will be managed. This information will form part of the golden thread and is intended to remain with the building for its entire lifecycle.

The Building Safety Regulator has the power to prosecute and take enforcement action against individuals and corporate bodies where non-compliance with the Building Safety Act 2022 and accompanying secondary legislation occurs. Non-compliance is a criminal offence and can lead to potentially unlimited fines that can't be insured against and will result in a criminal conviction.

Where an offence is committed by a corporate body with the consent, connivance or neglect of a director, then the director or officer of the corporate body may also be prosecuted alongside the corporate entity. Where an individual commits an offence and contravenes building regulations, the offence may result in imprisonment of up to two years and/or an unlimited fine. 

The time limit for bringing a prosecution has been extended from 12 months from the date of completion (under the Building Act 1984) to ten years from the date of completion. The time limit for serving notices requiring removal or rectification of work that is non-compliant with building regulations has also been significantly extended under the Building Safety Act 2022 — from 12 months to ten years.

A corporate body (alongside its directors and officers if an offence is committed with their consent, connivance or as a result of their neglect) may also be prosecuted for criminal offences committed in contravention of health and safety legislation. Corporate bodies may be subject to an unlimited fine which will be determined by a number of factors as set out in the Definitive Sentencing Guidelines published by the Sentencing Council in 2016. 

Factors to be considered by the court include the seriousness of the offence, the company’s annual turnover and mitigating/aggravating offences. 

For individuals prosecuted for health and safety offences, the maximum penalty is two years' imprisonment and/or an unlimited fine. The court may also disqualify the individual from acting as a director if they're considered to be unfit.

The Building Safety Act 2022 brought a range of leaseholder protections which came into force on 28 June 2022, including new financial protections for those who occupy buildings above 11 metres or five storeys with a history of safety defects.

One of the many important purposes of the Act is to ensure that leaseholders are legally protected from the significant financial costs involved in remedying historical defects to buildings. Those who constructed, developed and/or refurbished a defective building are accountable for remedying any defects — even if they no longer own it.

It’s now as a matter of law that the Government bears the responsibility of ensuring that leaseholders are protected from the remediation costs required to make their home safe.

On 5 August 2023, the Building Safety (Leaseholder Protections etc (England) (Amendment) Regulations 2023 (SI 2023/895)) came into force, which replaced the existing regulations on leaseholder protection provisions in the Building Safety Act 2022.

Qualifying leaseholders are protected from all cladding system remediation costs under the Act, including any costs associated with the removal of dangerous cladding. Their contribution towards other historical non-cladding building safety defects will be capped and the cost can be spread over ten years.

Qualifying leaseholders — those whose properties were calculated as being worth less than £325,000 in Greater London and less than £175,000 elsewhere in England as of 14 February 2022 — would be exempt from paying service charge.

The Act protects qualifying leaseholders from relevant landlords looking to pass on remediation costs if — on 14 February 2022 — the net worth of the landlord group was more than £2m per relevant building.

A qualifying leaseholder must also have a long lease of a property in a relevant building and — on 14 February 2022 — the property must have been their main home (unless they owned no more than three UK residential properties in total).

Where the leaseholder had to move out and sublet, the property will be covered if these criteria are met. The protections are automatically passed onto any future buyers. The leaseholder will need to produce a leaseholder deed of certificate to show that they hold a qualifying lease that benefits from the leaseholder protections.

Landlords will also be required to provide a Landlord’s Certificate (within four weeks of the request) to a leaseholder in specified circumstances, including where a service charge demand is made for a remediation cost.

Those who don’t qualify as a ‘qualifying leaseholder’ should check whether the building developer has signed the Building Safety Pledge. Developers who have signed this pledge to remediate life-critical fire safety works in buildings over 11 metres that they have been involved in (whether developing or refurbishing it) over the last 30 years. 

There is also a developer’s fund known as the Building Safety Levy. This allows building owners to apply for help in funding and fixing unsafe cladding to buildings over 18 metres tall. There is also intended to be a scheme for buildings between 11 and 18 metres tall.

This legislation will now also enable any leaseholder to pursue litigation. 

Leaseholders can apply to the First-Tier Tribunal for a remediation order that requires a landlord to remedy defects in a building or a remediation contribution order that requires a landlord, developer or associate to contribute towards the cost of remediation works.

With the aim of improving the rights of redress against those responsible for unsatisfactory workmanship carried out to a dwelling (whether professional consultants, contractors or developers), s.135 of the Building Safety Act 2022 substantially extends the limitation period set by the Limitation Act 1980 for claims under the Defective Premises Act 1972.

The 2022 Act has achieved this by inserting a new section (4B) into the Limitation Act 1980.

This extends limitation as follows:

1. For dwellings due to be completed on and after 28 June 2022, the period of limitation is extended prospectively from 6 to 15 years.
2. For dwellings completed before 28 June 2022, the period of limitation is extended retrospectively from 6 to 30 years.

While there are safeguards in place to ensure fairness in the application of this extended limitation, in practice those businesses and professionals with a history of constructing or advising on the construction of dwellings ought to take due care when it comes to retaining records and updating their document retention policies accordingly.

Old projects — where the risk was previously considered to have expired — should now be reassessed and professionals should look to re-evaluate their liability under historic contracts and warranties against any insurance provision they may have in place.

The building safety regime applies to all buildings but has a special focus on 'higher-risk buildings' (HRBs). 

Broadly speaking, HRBs are defined under s.65 and s.120D of the Building Safety Act 2022 as buildings in England that are at least 18m (or seven storeys) high and contain at least two residential units. However, the exact definition and exclusions depend on the building's phase.

During the design and build phase, exclusions (Reg 7, Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023) include secure residential institutions, hotels and military premises, while care homes and hospitals which meet the height/storey criteria and which contain at least two residential units are caught by the definition of HRBs. 

During the occupation phase, exclusions (Reg 8, Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023) include secure residential institutions, care homes, hospitals, hotels and military premises, regardless of the number of residential units.

For height measurement details and specific criteria/exclusions per phase, refer to the Regulations and the Guidance.

As part of the building safety regime, the Building Regulations etc. (Amendment) (England) Regulations 2023 were implemented to improve the design, construction and management of all buildings. 

Learn more about the specific responsibilities on designers, developers, contractors and others below.

Any person carrying out design work as a designer must:

• Before/when accepting the instruction Have the requisite skills, knowledge, experience and behaviours necessary to carry out the design work. Where the designer is a company (not an individual), it must have the organisational capacity to carry out the design work so that, if built, the design would be in accordance with all relevant requirements. Any person carrying out design work as a designer must also have the skills, knowledge, experience and behaviours necessary and — if a company — the organisational capability to fulfil the duties of a designer under the Regulations in relation to the work. 
• Before starting the works — satisfy itself that the client is aware of its duties for the building works to which the designs relate under all relevant requirements. For example, if the building work relates to a higher risk building (HRB), the designer must satisfy itself that the client is aware of any additional duties placed on them.  
• When designing: 
  • Take all reasonable steps to ensure that the design is such that, if built, the building works would comply with all relevant requirements.
  • Take all reasonable steps to ensure that the design work carried out by you (and by any workers under your control) is planned, managed and monitored so that, if built, that building work is in accordance with all relevant requirements.
  • Cooperate with the client and your fellow designers and contractors (including any BSA principal designer and principal contractor appointed) to the extent necessary to ensure that the designs and building work to which the designs relate would, if built, comply with all relevant requirements.
  • If requested to do so, provide advice to the BSA principal designer or the client on whether any work to which a design it’s preparing or modifying qualifies as higher risk building (HRB) work.
• When carrying out only part of a design of the building work — consider other design work which directly relates to that building work and report any concerns relating to compliance with all relevant requirements to the BSA principal designer.
• In providing a design — take all reasonable steps to provide sufficient information about the design, construction and maintenance of the building to assist the client, other designers and contractors in complying with all relevant requirements.

A client will need to appoint in writing a BSA principal designer (and a BSA principal contractor) to any building project that is likely to have more than one contractor. It’s important to note that these roles are different to the principal designer and principal contractor roles under the CDM Regulations 2015 (CDM).

The BSA principal designer is a designer with control over the design work. The BSA principal contractor is a contractor with control over the building work. Please see our ‘FAQs for contractors’ for further details.

If the client certifies in writing that the CDM principal designer/contractor is treated as appointed as the BSA principal designer/contractor, the client is treated as complying with the requirements of Reg 11D(1).

Where the appointment of a BSA principal designer/principal contractor ends before the end of the project, the client must appoint a new BSA principal designer/contractor as soon as reasonably practicable.

Where the project relates to a high-risk building, this appointment must be made before the application for building control approval is submitted. For all other projects, the appointment must be made before the construction phase begins. This is to ensure that all parties are aware of their duties and responsibilities to the project.

Where there is only one contractor and one designer working on a project (or it’s reasonably foreseeable that there will be only one designer working on a project), that designer must fulfil the duties of the BSA principal designer in the Regulations.

Where there is only one contractor and more than one designer working on a project (or it’s reasonably foreseeable that there will be more than one designer working on a project), the designers must agree in writing which designer is to fulfil the duties of the BSA principal designer. That lead designer must give a copy of the agreement between designers to the client.

There are important competency requirements that must be demonstrated before accepting the role of a BSA principal designer. Anyone being appointed under these roles must have the skills, knowledge, experience and behaviours necessary and — if a company — the organisational capability to fulfil these duties.

Where the BSA principal designer is a company, that company must designate an individual to manage its functions as the BSA principal designer. Before making this designation, the company must take all reasonable steps to satisfy itself that the individual has the skills, knowledge, experience and behaviours necessary to manage the function of the BSA principal designer on behalf of the company to ensure that the company fulfils its duties under the Regulations.

An individual or company should only accept this role of a BSA principal designer in relation to any design work if it satisfies the general competency and/or additional competency requirements expected.

There are additional duties placed on BSA principal designers under Regulation 11M of which a BSA principal designer must be mindful. 

These include: 

• Planning, managing and monitoring the design work during the design phase.
• Coordinating matters relating to the design work so that all reasonable steps are taken to ensure that the design is such that, if built in accordance with that design, the building work would be in compliance with all relevant requirements.
• Taking all reasonable steps to ensure that the designers (and other persons involved in design work) cooperate with the client, BSA principal designer, BSA principal contractor and each other.
• Taking all reasonable steps to ensure that all design work is coordinated so that if built, the building work to which the design relates will comply with all relevant requirements.
• Taking all reasonable steps to ensure that designers (and other persons involved in design work) comply with their duties under the Regulations.
• Liaising and sharing any information with the BSA principal contractor relevant to:
  • the planning, management and monitoring of the building work 
  • the coordination of building work and design work for the purpose of ensuring compliance with all relevant requirements.
• Having regard to any comments provided by the BSA principal contractor in relation to compliance with the relevant requirements. 
• If requested, assisting the client in providing information to other designers and contractors.
• No later than 28 days after the end of its appointment, the BSA principal designer must provide to the client a handover document explaining the arrangements put in place to fulfil its duties under Reg 11M (1)-(3) (paragraphs (a) to (f) inclusive above). See FAQ 7 (below).

If a client fails to make the relevant appointment (or replacement appointments), the BSA principal designer responsibilities are fulfilled by the client until it appoints another person to that role.

For domestic clients (i.e., clients for whom a project is being carried out not in the course or furtherance of a business of that client), the BSA principal designer role passes onto the designer most in control of the design phase.

According to current HSE guidance, the client, BSA principal designer and BSA principal contractor can be the same person or organisation if it has the appropriate competencies.

Trainees cannot assume the role of BSA principal designer.

If you instruct a trainee or apprentice to carry out any work on a project to which these Regulations relate, you must ensure that sufficient supervision is in place to ensure they fulfil these requirements. 

Before any work commences, you must take “reasonable steps” to make sure that all trainees are supervised at all times by implementing suitable arrangements.

You must provide the client with a handover document explaining the arrangements that you put in place to fulfil your duties under the Regulations, namely how you:

• Planned, managed and monitored the design/building work during the design phase.
• Coordinated matters relating to the design work so that all reasonable steps were taken to ensure that the design, if built, would be compliant with all relevant requirements.
• Ensured that designers cooperated with the client, the BSA principal designer, BSA principal contractor and each other.
• Ensured that the design work of all designers was coordinated so that the design, if built, would be in compliance with all relevant requirements.
• Ensured that designers and any other person involved with the design work complied with their duties under the Regulations.
• Liaised and shared with the BSA principal contractor any information relating to planning, management and monitoring of the building work, as well as coordination of the building work and design work to ensure compliance with the relevant requirements.

This ‘handover’ document must be provided to the client no later than 28 days of the appointment ending.

On your appointment, you must review the arrangements that the previous BSA principal designer put in place for fulfilling their duties under Regs 11M(1)-(3). This will involve ensuring that all reasonable steps were taken to ensure that the design, if built, would be in compliance with all relevant requirements.

This situation may arise, for example, where a multidisciplinary company has been appointed as a BSA principal designer but the team with the requisite competency leaves the business and as such, the firm ceases to be able to provide those services. 

If a person (or an organisation) ceases to satisfy the competency requirements, they must: 

• notify the person who asked them to carry out the design work and the BSA principal designer (if they’re a designer and where there is more than one contractor)
• notify the client (if they’re a BSA principal designer or if, at the time, there is no BSA principal designer appointed).
• notify the person who asked them to carry out the design work (in any other case).

Any person carrying out building work as a contractor must:

• Before/when accepting the instruction — have the requisite skills, knowledge, experience and behaviours necessary to undertake the specific project. Where the contractor is a company (not an individual), it must have the organisational capability to carry out the building work in accordance with all relevant requirements and fulfil the duties of a contractor under the Regulations.
• Before starting the works — satisfy itself that the client is aware of its duties under all relevant requirements[2], including the building safety regime. For example, if the building work relates to a higher risk building (HRB), the contractor must satisfy itself that the client is aware of any additional duties placed on it.
• When carrying out works: 
  • Take all reasonable steps to ensure that the building work carried out by you (and by any workers under your control) is planned, managed and monitored so as to comply with all relevant requirements.
  • Cooperate with the client, designers and contractors (including the BSA principal designer and BSA principal contractor appointed) to the extent necessary to ensure that the work complies with all relevant requirements.
  • Ensure that the building works comply with all relevant requirements and provide each worker under your control with appropriate supervision, instructions and information to ensure that the building works comply with all relevant requirements.
  • Take all reasonable steps to provide sufficient information about the work to assist the client, other contractors and designers working on the project to comply with all relevant requirements.
  • If requested to do so, provide advice to the BSA principal contractor or the client on whether any work is higher-risk building work.
• When carrying out only part of the building work — consider other work that directly relates to your building works and report any concerns relating to compliance with all relevant requirements to the principal contractor.

A client will need to appoint in writing a BSA principal designer and BSA principal contractor to any building project that is likely to have more than one contractor. It’s important to note that these roles are different to the principal designer and principal contractor role under the CDM Regulations 2015 (CDM).

The BSA principal contractor is a contractor with control over the building work. The BSA principal designer is a designer with control over the design work. Please see our ‘FAQs for designers’ for further details. 

The appointment of the principal contractor must last for the duration of the project. However, the principal contractor may be replaced if required or if the original contract expires before the end of the project. 

If the client certifies in writing that the CDM principal designer/contractor is treated as appointed as the BSA principal designer/contractor, the client is treated as complying with the requirements of Reg 11D(1).

Where the project relates to a high-risk building, this appointment must be made before the application for building control approval is submitted. For all other projects, the appointment must be made before the construction phase begins. This is to ensure that all parties are aware of their duties and responsibilities to the project.

There are important competency requirements that must be demonstrated before accepting the role of a BSA principal contractor. Anyone being appointed under these roles must have the skills, knowledge, experience and behaviours necessary and — if a company — the organisational capability to fulfil these duties.

Where the BSA principal contractor is a company, that company must designate an individual to manage its functions as the BSA principal contractor. Before making this designation, the company must take all reasonable steps to satisfy itself that the individual has the skills, knowledge, experience and behaviours necessary to manage the function of the BSA principal contractor on behalf of the company to ensure that the company fulfils its duties under the Regulations.

An individual or company should only accept the role of principal contractor in relation to any building work if they satisfy the general competency and/or additional competency requirements expected as per 11F and 11H of the Regulations.

There are additional duties placed on principal contractors under Regulation 11N.

These include: 

• Planning, managing and monitoring the building work during the construction phase.
• Coordinating matters relating to the building work to ensure that the building work is in compliance with all relevant requirements. 
• Taking all reasonable steps to ensure the contractors and any other person involved in relation to the building work cooperate with the employer, principal designer, principal contractor and each other (including any successor in a role). 
• Taking all reasonable steps to ensure that all contractors are coordinated so that the building work is in compliance with all relevant requirements.
• Taking all reasonable steps to ensure that contractors and any other person involved in relation to building work comply with their duties under the Regulations. 
• Liaising and sharing any information with the principal designer relevant to the:
  • planning, management and monitoring of the design work 
  • coordination of building work and design work for the purpose of ensuring compliance with all relevant requirements. 
• Having regard to any comments provided by the principal designer in relation to compliance with the relevant requirements. 
• If requested, assisting the client in providing information to other designers and contractors.
• No later than 28 days after the end of its appointment, the principal contractor must provide to the client a handover document explaining the arrangements put in place to fulfil their duties under paragraphs Reg 11N (1) to (3) ((a) to (f) inclusive above).

If a client fails to make the relevant appointment (or replacement appointments), principal contractor responsibilities are retained by the client until it appoints another person to that role.

For domestic clients (i.e., clients for which a project is being carried out not in the course or furtherance of a business of that client), the principal contractor role passes onto the contractor most in control of the construction phase. However, this assumption may change where there is only one contractor working on a project. That contractor is to be treated as appointed as the principal contractor and must fulfil the duties of the principal contractor set out in the Regulations.

According to HSE guidance, the client, BSA principal designer and BSA principal contractor can be the same person or organisation if they have the appropriate competencies.

Trainees cannot assume the role of BSA principal contractor.

If you instruct a trainee or apprentice to carry out work on a project, you must ensure that sufficient supervision is in place to ensure they fulfil these requirements. 

Before any work commences, you must take “reasonable steps” to make sure that all trainees are supervised at all times by implementing suitable arrangements.

You must provide the client with a handover document explaining the arrangements that you put in place to fulfil your duties under the Regulations, namely how you:

• Planned, managed and monitored the building work during the construction phase.
• Coordinated matters relating to the building work comprised in the project to ensure that the building work is in compliance with all relevant requirements.
• Ensured that contractors and any other person involved in relation to the building work cooperated with the client, the BSA principal designer, BSA principal contractor and each other (including any successor in a role).
• Ensured that the building work of all contractors was coordinated so that the work was in compliance with all relevant requirements.
• Ensured that contractors and any other person involved with the building work, complied with their duties under the Regulations.
• Liaised and shared with the BSA principal designer any information relating to planning, management and monitoring of the design work, as well as coordination of the building work and design work to ensure compliance with the relevant requirements.

This ‘handover’ document must be provided to the client no later than 28 days of your appointment ending.

On your appointment, you must review the arrangements that the previous BSA principal contractor put in place for fulfilling their duties under Regs 11N(1)-(3). This will involve ensuring that all reasonable steps were taken to ensure that the building work is in compliance with all relevant requirements.

This situation may arise, for example, where a company has been appointed as a BSA principal contractor but the team with the requisite competency leaves the business and as such, the firm ceases to be able to provide those services.

If a person ceases to satisfy the competency requirements, they must:

• notify the client (if they are the principal contractor or if, at the time, there is no BSA principal contractor appointed)
• notify the person who asked them to carry out the building work and the principal contractor (if they are one of several contractors)
• notify the person who asked them to carry out the work (in any other case).