Among the key provisions of the Act is the creation of specific duties and responsibilities assigned to parties known as ‘dutyholders’, designed to instil a culture of accountability and competence throughout the lifecycle of a building.
Following on from our previous article, dutyholder roles became part of Building Regulations via secondary legislation1 which came into force on 1 October 2023 and which now apply to all works subject to building control. These regulations extend the dutyholders’ obligations in the construction of buildings, with enhanced requirements for higher-risk buildings.
Who are the Dutyholders?
The dutyholders are individuals or entities involved at various stages of a building's life cycle, from design and construction to occupation and ongoing maintenance.
The Act categorises dutyholders into three main roles:
- Accountable Person: This is typically the building owner, who holds ultimate responsibility for the safety of the building. The Accountable Person is entrusted with appointing the other dutyholders, ensuring they have the necessary skills and knowledge, and maintaining a comprehensive and accessible safety case for the building.
- Building Safety Manager: Appointed by the Accountable Person, the Building Safety Manager is responsible for day-to-day oversight of building safety. This includes monitoring and managing risks, maintaining the building's safety case, and acting as a liaison between dutyholders and residents.
- Principal Designer/Contractor: Dutyholders involved in the design and construction phases of a building fall under this category. They are responsible for ensuring that safety considerations are integrated into the design and construction process, and for passing on crucial safety information to the next dutyholders.
New Duties and Competency Requirements
The new duties imposed on dutyholders encompass a broad spectrum of responsibilities, including:
- Dutyholders are now required to develop and maintain a comprehensive safety case for each high-rise residential building. This safety case must include detailed information on the building's design, construction, and ongoing safety measures.
- Dutyholders must demonstrate enhanced competency, ensuring they possess the necessary skills and knowledge to fulfill their roles effectively. Competency requirements are tailored to each dutyholder role, acknowledging the diverse skills needed at different stages of a building's life cycle.
- Developers/clients must ensure adequate arrangement are in place to plan, manage and monitor the project in accordance with all applicable Building Regulations. They are also required to ensure the parties appointed to the project (e.g. the principal designer and contractor) have the required competencies to perform their roles. Failure to appoint will result in the principal designer and principal contractor responsibilities being retained by the client.
It is important to note that the duties imposed by the Act on principal contractors and principal designers remain separate to their duties under the Construction Design and Management Regulations 2015 (‘CDM’) although the same party can fulfil both roles if competent to do so.
Whilst ‘competency’ has not been defined, the standard PAS 8671:2022 for principal designers has been published to be of assistance. There is an additional requirement for designers involved in work relating to higher-risk building to attest that they have not been subject to any serious sanctions (e.g. fire safety conviction or compliance notice) within the last five years.
For projects involving the construction or refurbishment of higher-risk buildings, there is a new obligation on the developer/client to submit a formal declaration to the Building Safety Regulator that competency requirements have been checked and met by all parties engaged in the project. This must be supplemented by a declaration of compliance within five days of completion of the project to the local authority which goes above and beyond the usual Final Certificate required under the Building Regulations. The declaration of compliance must also be signed by the principal contractor and the principal designer involved in the project, which seeks to ensure all key parties involved maintain and share accountability for the end result.
The Act includes provisions to facilitate the adaptation of existing buildings and dutyholders to the new regulatory framework. This transitional period allows dutyholders to update their processes and competencies gradually.
Challenges: Addressing Concerns and Managing Responsibilities
While the Building Safety Act 2022 represents a step forward in ensuring the safety of high-rise residential buildings, it has not been without its challenges.
Residents, especially those living in existing high-rise buildings, have expressed concerns about the implications of the new dutyholder obligations. These concerns range from potential disruptions during the transition period to uncertainties about the competence of dutyholders appointed by building owners.
Dutyholders face the challenge of adapting to their enhanced responsibilities and managing the associated risks, including potential insurance challenges. The newly created Building Safety Regulator (‘BSR’) has been given various enforcement powers ranging from substantial fines to potential prison sentences to ensure dutyholders meet their obligations under the Act, although it remains to be seen how these powers will be used.
To navigate these challenges, dutyholders must prioritise robust risk management strategies. This includes investing in ongoing training and professional development to meet competency requirements, establishing clear lines of communication with residents, and working collaboratively with other dutyholders to ensure a unified approach to building safety.
Insurance
From an insurance perspective it is important that a policyholder fully understands the role that they are accepting in relation to a contract. A contractor or a provider of professional services may be encouraged to accept the role of Accountable Person as well as that of Principal Designer /Contractor. This role carries additional responsibilities, it is unlikely to be included within their business description and therefore cover may not apply. It is therefore vital that if there is a necessity to accept the role, this should be discussed with professional indemnity brokers and the insurers to accept and endorse the policy appropriately.
The role of Principal Designer is likely to be included within the business description of many architects or engineers – if they previously accepted this role under the CDM regulations. Whilst the role under the Building Safety Act 2022 is separate and distinct, there is generally no necessity to amend the policy. If the professional has previously notified insurers that they undertake work where the professionals accept responsibility for Building Regulations Compliance and Health & Safety, it should be accepted by insurers that a designer under the Act will ensure that safety considerations are integrated into the design and passed to the relevant parties.
For those policyholders without a specific mention of Principal Designer in the business description, it is now important that its added. The generic title of Architect, Engineer or Building Contractor, should not be relied on as adequate to cover the responsibilities under the newly defined roles. On proposal forms, when providing insurers with details of contracts undertaken, it is also important, to specifically state when any of the duty holder roles have been accepted.Conclusion: Embracing Accountability
As dutyholders adapt to their new roles and responsibilities, collaboration between building owners, residents, and various dutyholder categories will be paramount. By addressing concerns, actively engaging with stakeholders, and effectively managing the challenges posed by increased responsibilities, the industry can foster a culture of safety that prioritises the well-being of those residing in high-rise residential buildings.
