May 27, 2021
The following commentary is based on the draft Building Safety Bill. It is therefore subject to change and provided for information only.
The new Building Safety Bill introduces a duty on the Accountable Person for a higher-risk building to produce a Building Safety Case. The Building Safety Case is a key part of the system that will assess, control and manage risks of occupied higher-risk buildings.
In simple terms, the Building Safety Case is expected to contain:
The Building Safety Case must be submitted to the new Building Safety Regulator as part of registering the building and securing a Building Assurance Certificate. Failure to register an occupied higher-risk building and securing a Building Assurance Certificate will be a criminal offence. Similarly, new build higher risk buildings will need to be registered before they can be occupied.
The Building Safety Case will be used by the Building Safety Manager on a day-to-day basis to manage the higher-risk building. As part of their duties, the Building Safety Manager will continually review and assess the risks within the building and whether any further steps need to be taken to manage them. Where the risks change or the steps required to manage them changes, the Building Safety Case will need to be updated.
The Government is expected to detail the structure and content of the Building Safety Case later in 2021. However, the Government have worked on several pilots and with early-adopters, giving us an insight into what the cases should contain:
The Building Safety Case will be used by the Building Safety Manager to manage building safety and compliance on a day to day basis.
The Building Safety Case is not just an administrative tick-box exercise. It must make a convincing case to the Regulator that the higher-risk building can be occupied and risks are being reasonably and effectively managed.
For that reason, the case will undoubtedly be stronger taking a ‘whole building’ approach, showing how all aspects of fire safety, compliance, repairs and maintenance and lifecycle works contribute to the safety of the building and its occupants.
The Accountable Person has a duty under the Act to take all reasonable steps to prevent a major incident occurring due to a building safety risk and secondly, to reduce the severity of any such incident.
Major incident is defined in the draft Bill as one that results in a significant number of deaths or serious injury to a significant number of people. Pre-legislative scrutiny recommended this definition of major incident be amended to include incidents that might reasonably foreseeably cause death or serious injury. This would be a significant amendment and increase the range of potential incidents that the Accountable Person must take all reasonable steps to prevent.
Some ‘reasonable steps’ may require investment in the building whilst others might involve changes in procedures or rules. Developing a Building Safety Case with competent specialists will highlight what actions need to be considered at the earliest opportunity.
The skills and capabilities needed to develop an effective Building Safety Case will to some extent depend upon the building itself and the information available.
For an existing building where the Accountable Person has little documentation about the construction or systems it contains, specialist fire engineering and surveying resource may be needed to clearly understand the building, its materials and how it might respond to rapid onset events, such as fire or explosion.
For new-build properties, this information should be available as part of the ‘golden thread’ of building information provided to Accountable Persons on handover from the dutyholders through construction (i.e. the Principal Contractor).
In all cases however, the Accountable Person should ensure their Building Safety Case is developed by a team with expertise in fire risk assessing, fire engineering, building systems compliance, maintenance, emergency planning and human factors. They should also be experienced in the format and structure of safety cases – using a Claim, Argument and Evidence approach to ensure the case is robust.
Learning from other regulated sectors, such as nuclear, oil and gas, Building Safety Cases would value from being peer reviewed before they’re submitted to the Regulator. Getting an effective peer review may help strengthen the case and significantly reduce potential delays to approval.
The duty to produce a Building Safety Case will be introduced when the new Building Safety Bill comes into force. However, given the potential information gathering and surveying needed to develop a Building Safety Case, would-be Accountable Persons from many organisations including housing associations, institutional investors and block managers are already taking steps to get started.
In pre-legislative scrutiny from a House of Commons select committee, the Chief Executive of the HSE suggested they would expect safety cases to be developed in tranches and prioritised by risk factors. These risks could include the vulnerability of residents, construction materials used or building height. This suggests that Accountable Persons with multiple higher-risk buildings in their portfolio would be expected to prioritise them by risk.
Accountable Persons should therefore consider their approach and the resources that will needed to meet this approaching duty at the earliest opportunity.