The role of ‘Accountable Person’ under the new Building Safety Act
The new Building Safety Bill, published in July 2020, (along with other building safety measures e.g. Fire Safety Bill) comes in the wake of Dame Judith Hackitt’s high profile Independent Review of Building Regulations and Fire Safety following the Grenfell tragedy.
The Hackitt Review set out a number of recommendations for a more robust regulatory system for building safety.
The Bill addresses the Hackitt Review’s recommendations and represents the most radical overhaul to building safety law in decades. The Bill is anticipated to be enacted later this year, at which point it will become the Building Safety Act. As of yet, there is no guidance on whether there will be any transition period to allow the construction industry time to implement any requirements under the Act. It is therefore very sensible to start preparing for the impact at this early stage, to ensure compliance when the Act becomes law.
The Explanatory Notes to the Bill explain that it is divided into five parts, with Part 4 being “concerned with higher-risk buildings when they are occupied, defines and places duties on the Accountable Person (the dutyholder in occupation) and Building Safety Managers in relation to building safety risks in their building.”
Applicability of the Act
Unless there are any amendments prior to the Bill becoming law, certain elements of the Act will apply to all buildings, but many of the changes are focussed on “higher-risk” buildings. The definition of “higher-risk” buildings as it currently stands covers all buildings with a height of 18 metres or more, or more than six storeys (whichever is reached first) and which contain two or more dwellings, or two or more rooms for residential purposes, or student accommodation. Residential care homes, secure residential accommodation and temporary accommodation are excluded from the definition of “higher-risk” buildings. It is worth bearing in mind that there may be amendments prior to the Act becoming law, so the definition could be subject to change in scope. In addition, the Act will initially apply to new builds but is expected to apply to existing buildings in due course, although the detail on that is unclear.
Role of “Accountable Person”
The new “Accountable Person” role is applicable to the “higher-risk” buildings once the building is in occupation.
The Accountable Person will have a number of statutory duties, including:
- Ongoing duty to assess building safety risks, taking all reasonable steps to prevent the occurrence of a major incident in the building as a result of these risks;
- Providing a ‘Safety Case Report’ which demonstrates how building safety risks are being identified, mitigated and managed on an ongoing basis;
- Appointing a competent Building Safety Manager to support the Accountable Person in managing fire and structural safety risks in the building day-to-day;
- Submitting the prescribed documents and information on the final, as-built building to the Building Safety Regulator (in order for them to issue the completion certificate);
- Establishing a framework for mandatory occurrence reporting, and the Building Safety Manager will be required to report occurrences to the Building Safety Regulator;
- Registering the building and applying for a Building Assurance Certificate (NB: It is important to note that existing buildings that are already occupied will also need to be registered, and existing buildings which are unoccupied at the introduction of the new regime will have to be registered by the point the building is occupied.)
Who is the “Accountable Person”?
There are “dutyholders” in relation to design and construction throughout the different phases of construction, including those appointed under the CDM regulations (e.g. Principal Designer, Principal Contractor etc). The dutyholder role is based on the principle that the person or entity that creates a building safety risk should, as far as possible, be responsible for managing that risk. The Accountable Person will be the dutyholder during occupation (where “occupation” is defined as being in multi-occupation by two or more resident households under a contract or licence).
The Accountable Person is defined under the Bill as the person who either has the legal estate in possession of, or is under a relevant repairing obligation, for any part of the of the common parts of the building. They may be an individual, partnership or corporate body and there may be more than one Accountable Person for a building. The Bill makes provision for management bodies to be defined as Accountable Persons in circumstances where there is a lease which sets out repair and maintenance obligations on that management body.
Can an Accountable Person also be a Building Safety Manager?
Corporate clients who construct or purchase buildings falling under the “higher-risk” definition and who retain any responsibility for repair and maintenance for common parts e.g. cladding, stairwells etc, will be the Accountable Person for the purposes of the Bill. For example, this could include entities who own/manage affordable homes classified as “higher-risk” under the Bill (as explained above).
The Accountable Person will be responsible for appointing a Building Safety Manager to assist them in their day to day duties. When considering an appropriate Building Safety Manager the Accountable Person must ensure their chosen nominee has the organisational capability (where the Building Safety Manager will not be an individual) or the relevant skills, knowledge, experience and behaviours (where the Building Safety Manager will be an individual) to perform the role competently. The Accountable Person must notify the Building Safety Regulator of their chosen Building Safety Manager, but it is important to note that the Regulator has the power to veto the appointment. The Building Safety Manager has their own statutory duties under the Bill, distinct from those of the Accountable Person. However, the Accountable Person can appoint itself to the role of Building Safety Manager.
Where a corporate Accountable Person requires a Building Safety Manager employed by them to also perform the day to day duties of the Accountable Person, then they would effectively be “wearing two hats” and could carry out their duties as a Building Safety Manager to ensure the corporate Accountable Person fulfils its duties. In other words,
- for the purposes of notification to the Building Safety Regulator: a corporate Accountable Person can nominate itself as Building Safety Manager, but
- within the commercial organisation itself this role can actually be carried out by a suitably qualified and experienced Building Safety Manager.
This could save a corporate Accountable Persons additional administrative tasks whereby the Building Safety Manager must be nominated to and approved by the Regulator, and any turnover in staff would then necessitate further notification and approval each time. If a corporate Accountable Person appoints itself, then it merely has to prove organisational capability and the individual(s) actually carrying out the role within the commercial organisation can change without the need to notify the Regulator.
The new role of Accountable Person seeks to identify and hold to account a person/entity to ensure building safety risks in higher-risk buildings are identified and rectified early, and on an ongoing basis to maintain safety standards for residents. These new requirements for Accountable Person and Building Safety Manager to register and report to a Regulator require them to consult with and provide a forum for residents to raise any issues regarding building safety. The aim is to raise building safety standards so that the terrible tragedy that befell Grenfell is never repeated.