The Grenfell Tower tragedy has been the catalyst for significant changes to the regime underpinning the safety of high rise residential buildings (HRBs). These are buildings with at least seven or more storeys or which are at least 18 metres or higher, and contain at least two residential units.
The Building Safety Act 2022 (BSA) and the raft of Statutory Instruments made (with many more still to come) have created new and, in some cases, onerous obligations on the owners of these blocks. There are reportedly 12,500 such blocks within the UK and local authorities will own many of them. Local authorities will be readying themselves for the new obligations. Senior officers and elected members will no doubt take comfort from their schemes of delegation.
Housing department officers will have delegated responsibility to put in place the mechanism to ensure compliance with all aspect of the BSA. But the potential for criminal liability to attach to elected members and senior officers means that curiosity is essential.
Do you know what your council is doing to ready itself for compliance with the new regime? If you don’t then you need to find out.
The BSA identifies a new dutyholder for HRBs who will be known as the Accountable Person (AP). This will be the organisation or person who owns or has responsibility for the building. If a building has more than one AP responsible for the structure and exterior of the building they will be the Principal Accountable Person (PAP). When buildings have a single AP, that entity or person is the PAP. Local authorities will typically be, uncontroversially, the PAP for their own tower blocks.
As the PAP, local authorities will have a duty to take all reasonable steps to prevent a building safety risk happening (defined as ‘spread of fire and/or structural failure’) and to reduce the seriousness of an incident if one happens. As the PAPs, local authorities are also required to register existing buildings with the Building Safety Regulator (BSR), and register all new buildings before occupation.
Registration of existing HRBs can be done anytime between April 2023 and October 2023. Councils will be getting on with this now. All occupied HRBs must be registered by October 2023. The local authority as PAP also has the following responsibilities:
- Apply for a building assessment certificate;
- Conduct an assessment of fire and structural safety risks and keep it under review;
- Prepare the safety case report. This should demonstrate that all building safety risks have been assessed and the PAP has taken all reasonable steps to control them;
- Comply with mandatory occurrence reporting requirements;
- Prepare a Resident’s Engagement Strategy and keep it under review; and
- Keep and update prescribed information about the buildings.
The BSA creates a number of new offences. Because the consequences of failing to comply with BSA requirements could potentially lead to a catastrophe, the consequences on the PAP for breaches of duty are therefore significant.
The PAP in the local authority context is the council (corporately), section 161 of the BSA confirms that where an offence committed by a body corporate:
(a) is committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, or
(b) is attributable to any neglect on the part of any such person. That person as well as the body corporate commits the offence and is liable to be proceeded against and punished accordingly. The term ‘director’, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
The terms used in section 161, like manager or secretary, are not easily translatable to a local authority context. However, the relevant definitions from the Companies Act leave little doubt that elected members and council officers are both susceptible to prosecution, if they connive or consent to an offence or are negligent.
What is neglect in this context? It is difficult to be certain because these are new offences. I started this article by referencing curiosity. The more the better.
Senior officers and elected members, particularly those with a relevant department of portfolio linked to the HRB should satisfy themselves that their council has a clear and timed plan for compliance with the requirements of the BSA, both to achieve the first step in registration of all HRB and thereafter to ensure ongoing compliance.
Don’t let a lack of enquiry lead to potential neglect. If you are not clear about your council’s path to compliance with the BSA – act now to find out.
Scott Dorling is a partner at Trowers & Hamlins
@Trowers
