Increased regulatory scrutiny of higher-risk buildings is bringing construction management responsibilities into sharper focus. Douglas Rhodes and Cecilia Busby explain the legal requirements and what they mean for compliance in practice.
Landlords and management companies responsible for higher-risk buildings (HRBs) should now be familiar with the regime for registration of their occupied buildings with the Building Safety Regulator (BSR).
Mandatory registration has been necessary since October 2023 and all HRBs should now be registered.
What may be less familiar is the follow-up to this registration process. The BSR is now working through the list of HRBs and directing the principal accountable person (PAP) to apply for a building assessment certificate (BAC).
The BSR has already directed more than 1,400 PAPs in the most at-risk buildings to make the application, but many in the first wave are now finding that their application has been rejected.
In this article, we look at the requirements for an application, timings, deadlines, and the sort of preparation that PAPs should be thinking about, as well as what happens if the application is rejected.
What is a BAC?
A BAC is issued to the PAP of an occupied HRB, demonstrating that the systems and procedures in place for managing fire and building safety in the building meet the standard required under the Building Safety Act 2022 and associated legislation. It is essentially a certificate of compliance.
The BSR currently aims to assess all 12,500 HRBs over the first five years and then reassess them every five years, or earlier if there have been major building works or any safety incidents in the meantime.
How do you apply for a BAC?
The PAP cannot proactively apply, but needs to wait for the BSR to direct them to apply.
At this point, the PAP has 28 days to upload a range of documents – including the safety case report, resident engagement strategy and information about the mandatory occurrence reporting system – to the BSR’s online portal.
These should already be prepared, as PAPs have a legal duty under the BSA to prepare and maintain such documents and systems, as well as holding all the information required to safely operate the building’s fire safety strategy and any evacuation plan.
What happens after you submit?
The application will be assessed by a multidisciplinary team, including a BSR regulator, a fire safety specialist and a structural assessor. If the team considers that the assessment cannot be properly made on the basis of the documents, it may request further information or arrange a call or meeting, or potentially make a site visit. The landlord will be required to pay for the BSR’s chargeable assessment time at hourly rates.
If the BSR is satisfied with the application, it will approve it and issue the BAC, which must be displayed prominently in a shared space, for example the lobby of the building.
If it considers there are minor issues, easily remediable within seven days, it will issue a ‘prompt remedy notice’ and will then approve if the PAP can evidence compliance.
However, if the regulator is not satisfied, it will refuse the BAC and send either a contravention letter or a compliance notice, listing the issues and a deadline for compliance. This must be displayed prominently in the building, and rectification carried out.
It is possible for such enforcement action to be appealed to the First-tier Tribunal, although we have not yet seen any such appeals.
If the PAP can evidence compliance within the deadlines set, the BSR will ask them to reapply. If not, the regulator may take enforcement action, which can include prosecution.
Prosecution is likely to be a last resort, however, for cases where there has been significant and repeated non-compliance or evidence of dishonesty or obstruction.
How can you prepare?
Tim Galloway, deputy director of the BSR’s building safety division, has urged PAPs to use the BAC process as a test of the robustness of their procedures, and the effectiveness of their systems – aiming to satisfy themselves, first and foremost, and the BSR only secondarily, that they are complying with their obligations.
The application should demonstrate, rather than assert, that the systems and processes in place ensure compliance with the PAP’s obligations, rather than just ticking boxes.
Where there are identified issues, the safety case report needs to be clear about what needs to be done, what is being done, where the gaps are and what is being done to bridge them.
As a top tip, the BSR has cautioned against simply flooding the regulator with hundreds of documents and hoping this will cover all the bases. First, this approach does not demonstrate a clear understanding of what is or isn’t relevant and important, and second, it will add to the BSR’s chargeable assessment time.
In the coming years, those involved in construction management of HRBs can expect to be increasingly asked to provide input into documents that will ultimately form part of a BAC application once the building is occupied.
Douglas Rhodes is a partner and Cecilia Busby an associate at Trowers & Hamlins.
