Accountability for Higher-Risk Buildings under the Building Safety Act 2022 02 September 2024
1. Part 4 of the BSA 2022 introduced a new regime for managing “building safety risks” in “higher risk buildings”. Key to the understanding of the scope of these provisions is the definition of “higher risk building” (as it is only such buildings, which can be limited in some instances to parts of buildings, which are subject to these new duties) and the “accountable person” who is the person who is responsible for performing these statutory duties. It is also necessary to consider the nature of a “building safety risk” which shapes the content and extent of the duties imposed by Part 4.
Building Safety Risk
2. “Building safety risk” is defined by section 62(1) to mean a risk to the safety of people “in or about” a building from any of the following occurring as regards the building: (a) the spread of fire, (b) structural failure and (c) any other prescribed matter. To date, no other occurrences which would amount to a building safety risk have been prescribed by regulations under s.62 but the power is there for any government of the day in the future to add to the list of risks for which the accountable person is responsible in a higher risk building.
3. The “risk” which has received the most attention in this context when considering the duties of the accountable person is the risk of the spread of fire. However, the reference to “structural failure” cannot be overlooked. Whoever the accountable person is (which will usually but not always be the landlord) irrespective of the covenants agreed in the leases of units in the building, that person will owe duties to take action in relation to “structural failure”. Clearly the reference to the “failure” of the structure of the building will require a risk of serious structural damage before these duties are engaged. Nevertheless, buildings which suffer from construction defects or ageing buildings where structural problems are emerging could impose potentially onerous duties on the accountable person in this regard, where the structural defects pose a safety risk to “people in or about the building”.
4. The accountable person is subject to extensive and detailed obligations with regard to collating and presenting information about the higher-risk building under Part 4. Under s.91, the accountable person must prepare a “residents’ engagement strategy” for the purpose of “promoting the participation of relevant persons in the making of building safety decisions” about the management of the building.
5.However the duties of accountable persons are not limited to the provision of information. Under s.84, they extend to taking reasonable steps for the purpose of (a) preventing a building safety risk from materialising and (b) reducing the severity of any incident resulting from such a risk materialising. It is made clear by s.84(2) that this duty may “involve the accountable person carrying out works to the part of the building for which they are responsible”. Under s.84(3), when taking such “reasonable steps” the accountable person must act in accordance with “prescribed principles” which are set out in reg. 4 of the Higher Risk Buildings (Management of Safety Risks etc.) Regulations 2023 (2023/907). This sets out a list of broad principles for avoiding, evaluating and addressing building safety risks and the accountable person must adhere to this list of principles.
6. This positive statutory duty to undertake works, where applicable, to manage and where it is considered reasonable to do so, eliminate the risk of the spread of fire or damage caused by structural defects, is novel and wide-ranging. It is imposed irrespective of the repairing obligations agreed between landlord and tenant in leases of the flats in a building. Where it is a landlord of any part of the building who is an accountable person (which will usually be the case), this statutory duty opens up the landlord to becoming subject to a remediation order under s.123 even if the “relevant defects” which are the subject of that order are not within the scope of the landlord’s covenants in the lease (because under s.123(3), a “relevant landlord” is a landlord who is subject to an obligation to repair or maintain the relevant defect not just under the lease but also by virtue of an enactment). Likewise a manager who is a party to a lease (under s.123(4)).
Higher Risk Building
7. It is only “higher risk buildings” which are subject to these duties. S.61 provides that a higher-risk building is a building that is at least 18m in height or has at least 7 storeys and contains at least 2 residential units. Given that only two residential units are required in a 7+ storey building to engage these duties, the duties are capable of applying to a predominantly non-residential building, such as a multi-storey office block or retail centre with a handful of residential units on a single floor. “Residential unit” is defined (by s.115) as a dwelling or “any other unit of residential accommodation”. An example of such other unit of residential accommodation given in the Explanatory Notes is student accommodation where cooking and washing facilities are shared.
8. Importantly, this definition has been supplemented by the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023, made under s.62. Reg. 4 provides further detail about what will constitute a “building” for this purpose by reference to the “structure” (which is defined as a “roofed construction with walls”):
- Where a “structure” is not attached to any other “structure” that structure is a “building”.
- Where a structure which is not attached to any other structure contains two or more “independent sections”, each “section” is a “building”.
- Where two or more structures are “attached”, that set of structures comprises a single “building”, but if they contain one or more “independent sections”, each such section is a “building”.
- An “independent section” is a section that:
- has access which can be reached from anywhere in the section, for persons to enter and exit the wider building; and
- either (i) has no access to any other section of the wider building, or (ii) only has access to another section of the wider building which does not contain a residential unit. For this purpose, access is a doorway or similar opening except where it is intended for “exceptional use”, including emergency use or for maintenance purposes.
9. Therefore, within a single detached “structure” or multiple structures which are attached to each other, there may be a number of “independent sections” each of which constitutes its own “building”. If there are “independent sections” which do not contain two or more dwellings, the Part IV duties will not apply in relation to that section of the overall structure (or attached structures). That might apply, for example, to the commercial parts of a building if they are independently accessed (other than for emergency or maintenance purposes). However if the commercial and residential parts share a common reception area / entrance foyer they will comprises a single “section” for this purpose and thus a single building to which the Part IV duties will apply. Access from one part of the structure to another is therefore the key indicator as to whether an otherwise self-contained section of the building is subject to the Part IV duties or not.
Accountable Persons
10. The final piece of the jigsaw requires consideration of who is an “accountable person” who will be subject to the duties under Part IV of the Act. In Unsdorfer v Octagon Overseas Ltd [2024] L & TR 22, the Deputy President of the Upper Tribunal (Lands Chamber) said (at para. 19):
“The status of accountable person is not granted by a determination of a tribunal or by an agreement between owners or occupiers of the building; it applies by virtue of the 2022 Act , and it carries with it duties, breach of which exposes the accountable person to the risk of criminal sanctions. Nor can the accountable person decline or renounce the status (other than by disposing of the interest or obligation which gives rise to it).”
11. Section 72(1) provides that a person is an “accountable person” for a higher risk building if:
(a) a person holds a legal estate in possession in any part of the common parts (but not where either each of the long leases of which that person is the lessor provides that some other person, e.g. a management company, is responsible for repairing / maintaining the common parts, or if an RTM company has been appointed); or
(b) the person does not hold a legal estate in the common parts but is under a “relevant repairing obligation” in relation to any part of the common parts. “Common parts” includes the structure and exterior of the building.
12. By s.72(6), a “relevant repairing obligation” is an obligation to maintain or repair which arises either “under a lease” or by virtue of an enactment. It was therefore held, in Unsdorfer v Octagon Estates (above) that a manager appointed by the Tribunal under Part 2 of the Landlord and Tenant Act 1987 could not be an “accountable person” because the duties of the manager derive from the order of the Tribunal rather than either the leases or the 1987 Act itself. If that analysis is correct (and the Unsdorfer case is currently being appealed to the Court of Appeal), it would seem that a court-appointed receiver or manager could not be an accountable person and nor could a receiver appointed under a fixed or floating charge.
13. S.73 provides for a “principal accountable person” who, where there is more than one person who is an “accountable person”, is the one who either holds an estate in possession in the structure and exterior of the building or who has a relevant repairing obligation in relation to the structure and exterior.
14. S.75 gives the first tier tribunal jurisdiction to determine who are the accountable persons for a higher risk building, who is the principal accountable person and which parts of the higher risk building each accountable person is responsible for under s.74. The allocation of responsibility for different parts of a building which has more than one accountable person is dealt with by the Higher-Risk Buildings (Key Building Information etc.) Regulations 2024. Under these Regulations:
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an accountable person is responsible for that part of the common parts for which they have a legal estate in possession or a repairing obligation (reg. 28);
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an accountable person who holds a legal estate in possession in or has a repairing obligation for any part of the exterior is responsible for any balcony attached to that part of the building (reg. 29);
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for residential units which are not let on long leases, the responsibility lies with the accountable person who has either the right to let it or who has let it (otherwise than on a long lease). Where a residential unit is let, the responsibility goes with either the lessor (if that person is an accountable person under s.72) or otherwise the accountable person for the common parts nearest to the main entrance of that unit (reg. 30).
15. These duties are still new (the duty to register higher-risk buildings came into force in October 2023 and the other positive duties of accountable persons in January 2024). They are novel and wide-ranging and it remains to be seen what impact they will have on the running and management of the buildings to which Part 4 applies.
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