Since its introduction, the Building Safety Act 2022 (the “Act”) has greatly changed the landscape of dealing with fire safety matters in higher-risk buildings (“HRBs”). Among the changes brought in by the Act is the introduction of the roles of ‘accountable persons’ (“APs”) and the ‘principal accountable person’ (“PAP”). APs and PAPs have duties to take proper measures to preserve the building safety for HRBs, as well as engaging with residents and reporting to the Building Safety Regulator. Failure by APs and PAPs to get to grips with their duties leaves them open to potential criminal prosecution.
What is a HRB?
Under the Act a HRB is a building which is:
- at least 18m in height or has at least 7 storeys; and
- contains at least 2 residential units.
Care must be taken, as what is considered a HRB differs between construction and occupation of a building. Additionally, certain buildings are currently excluded from the HRB regime, such as hotels, care homes, prisons and military accommodation. However, it is important to note that since it contains residential units, student accommodation will be considered a HRB provided it meets the height/storeys threshold for a HRB.
What is an AP?
APs are the individuals or organisations responsible for managing the fire and structural safety risks of a HRB. An AP is an individual or organisation that owns or has a legal obligation to repair any common parts of the building. The common parts under the Act include the structure and exterior of the building (excluding the residents’ leasehold demise) and the parts of the building used in common with other residents, such as corridors, lobbies, staircases, lifts etc.
Typical examples of APs include:
- a freeholder or estate owner;
- a landlord;
- a management company;
- a resident management company;
- a right to manage company; or
- a commonhold association.
What are APs’ duties?
APs are to take all reasonable steps to prevent fire and structural safety risks from happening, and to reduce the seriousness of fire safety incidents if one does arise. Broadly, APs’ responsibilities include the following:
- where construction or certain works are carried out to the HRB, ensuring the HRB is not occupied prior to the issuing of a completion certificate from the Building Safety Regulator;
- collating and producing ‘golden thread’ documents and ensuring this is kept up to date;
- assessing building safety risks for the parts of a HRB for which they the APs are responsible on an ongoing basis;
- engaging with residents and other APs; and
- providing information to the Building Safety Regulator.
What is a PAP?
PAPs are APs which have additional responsibilities under the Act. Each HRB must have one clearly identifiable PAP.
Where a HRB only has one AP, that AP will also be the PAP. Where there is more than one AP, the PAP will generally be the person or company legally responsible for maintaining and repairing the main external structure of the HRB.
AP vs PAP Responsibilities – What are the Differences?
As well as having the general responsibilities of APs, PAPs have the following additional responsibilities including but not limited to:
- registering the HRB with the Building Safety Regulator and obtaining the Building Assurance Certificate;
- producing a ‘safety case report’ of information identifying fire and structural issues and management of fire safety;
- displaying prescribed information in the building;
- ensuring a system is in place to provide key information to APs;
- establishing and operating a system to deal with investigation of complaints in relation to building safety risks or performance of APs’ duties; and
- preparing a residents engagement strategy to facilitate resident participation in the decision-making process concerning building safety.
Overall, PAPs’ duties are generally more encompassing and onerous than APs’ more general duties.
What are the Consequences of Failing to Comply with Duties?
APs and PAPs can face severe sanctions for failing to comply with their duties under the Act. The Building Safety Regulator can take a range of enforcement actions, including issuing compliance notices and applying for an order appointing a special measures manager to take over the building safety duties from all APs for that building. In some cases, APs and/or PAPs may face prosecution resulting in a fine or imprisonment for a term not exceeding two years.
APs and PAPs cannot delegate their legal obligations. However, they can employ others (e.g. a managing agent) to carry out the APs’/PAP’s duties on the APs’/PAP’s behalf. APs/PAPs nevertheless remain accountable for ensuring the duties are carried out and should therefore make sure they have a contract in place with any party to whom the APs/PAPs delegate duties.
The new duties which fall on both APs and PAPs are nuanced and it is important for APs and PAPs to fully understand their responsibilities under the Act, especially given the potential consequences for failure to comply.
If you have questions about the Building Safety Act, the Building Safety Fund or any cladding and/or building safety issues, please contact Alex Hurley, Charles Wilson, Brenna Baye or any other member of our Building Safety and Cladding Team.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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