The opening months of 2024 have brought a number of important updates in building safety. In this update, the building safety team at JB Leitch provide a succinct overview of the most notable areas property management professionals should be aware of.
Reinsurance Support
In mid-March, The Association of British Insurers (ABI) announced a risk-pooling Fire Safety Reinsurance Facility, with cover starting from 1st April 2024.
Reinsurance support is now in place to launch the Fire Safety Reinsurance Facility, in an industry intervention to help improve the availability of insurance for certain buildings with combustible cladding and other fire safety issues.
The Facility has been established by (re)insurance broker McGill and Partners with extensive support from the Association of British Insurers (ABI) and through working in partnership with the British Insurance Brokers’ Association (BIBA) which will ensure brokers are made aware of the Facility.
It has two key intentions – to expand capacity for insurers already writing business for affected buildings and to encourage competition across the market so that more firms will provide cover. The ultimate solution remains the urgent need for works to take place to make buildings safe and resilient. The Facility is expected to run for three to five years whilst this happens.
The first step will be for the participating insurers – Allianz, Aviva, Axa, RSA and Zurich – to enter higher-risk buildings they currently insure, and which are awaiting remediation works, into the Facility at the point of their annual renewal. These firms have continued to be active in the market and are the top five firms providing insurance cover for commercial and residential buildings.
Buildings insurance premiums will continue to be based on a variety of risk factors, such as the type and age of the building, previous claims history and other property risks such as storm/flooding or escape of water. External factors such as construction costs and supply shortages will also have an impact.
More information on how the Facility will work is available here. Information for brokers representing the affected buildings is available from the British Insurance Brokers’ Association.
Remediation & Remediation Contribution Orders
Readers will no doubt be aware that attention has been given to questions such as the interpretation of what is just and equitable and how, in practical terms, the BSA will be applied in practice. Taking the recent Triathlon Homes LLP v Stratford Village Development Partnership and others [2024] case as an example, the decision will be of interest to residential block landlords and managers, supporting earlier judgments finding that RCOs may be made in respect of costs incurred prior to the commencement of the Building Safety Act 2022, that conditions may be imposed on an RCO – in this case, that funds should be repaid where actions against third parties are successful – and providing some guidance on the application of the ‘just and equitable’ test to determine when an RCO should be granted.
Please make sure you continue to visit the Case Law & Comment section at JBLeitch.co.uk where we will soon be publishing some more notable decisions on the trajectory of RO & RCOs.
Preparing a Building Assessment Certificate Application
The Health and Safety Executive has published new guidance (4th April) on preparing a Building Assessment Certificate (BAC) application for Principal Accountable Persons (PAPs).
The PAP for a high-rise residential building must apply for a BAC when told to do so by the Building Safety Regulator (BSR) within 28 days.
The Golden Thread
On 13th January 2024, new Regulations (the sixth commencement regulations made under the Building Safety Act 2022) have brought into force various sections in Part 4 of the Building Safety Act. Sections now enacted include:
- Sections 79 to 82 which impose requirements with regard to registration of occupied higher-risk buildings and obtaining and displaying a building assessment certificate for such a building;
- Sections 83 to 86 which impose duties with regard to assessing and managing building safety risks, the safety case report and its provision to the regulator;
- Sections 87, 88 and 90 which impose and are in relation to duties to report certain safety information, keeping prescribed information and documents for higher-risk buildings and for sharing that information and documents with various interested parties;
- Sections 91 to 94 which impose requirements in relation to a resident engagement strategy for a higher-risk building, requests by residents for further information or documents about their building, and the complaints procedures to be operated by the principal accountable person and the building safety regulator;
- Sections 95 to 97 which impose duties on residents and provide for contravention notices when those duties are breached and for access to residential units;
- Sections 98 to 101 which impose requirements in relation to enforcement by the regulator;
- Section 102 (and the accompanying Schedule 7) which creates the special measures regime, an enforcement tool of last resort; and;
- Section 111 which makes provisions in relation to articles of associations of resident management companies.
Readers will note that sections 91 and 94 relate to the requirements in relation the resident engagement strategy, part of the “golden thread” of information. The HSE guidance outlines how Principal Accountable Person’s and those supporting them, should approach the Resident Engagement Strategy.
A range of case studies is also available to help others gain insight on good practice in resident engagement. The guidance document sets out key considerations and principles to help the Building Safety Regulator Principal Accountable Persons (PAPs) and Accountable Person (APs) engage effectively with residents and is available via the link below:
hse-engaging-with-residents.pdf (buildingsafetyhub.org.uk)
The HSE case studies to assist on the process of developing and implementing the strategy can be found on the Making Buildings Safer campaign website here:
Residents Engagement Strategy Case Studies (buildingsafety.campaign.gov.uk)
With regard to the development of building safety case reports, The BSR has published a ‘Safety Case Toolkit’ guide for Accountable Persons (defined under section 84) to assist them in preparing a safety case report. A safety case report must demonstrate that all reasonable steps have been taken to prevent building safety risks happening and reduce the seriousness if they do. Readers will be aware that the safety case report is a document that summarises the safety case for a high-rise residential building. It identifies the building’s safety risks and explains how the risks are being managed. Building safety risks are the risk of the spread of fire or structural failure.
A safety case report should be submitted as soon as possible when:
- the building is already occupied or becomes occupied
- you become the principal accountable person
Approved Document B & Second Staircases
In October last year, the government announced intended transitional arrangements to accompany new guidance relating to second staircases in new residential buildings in England above 18 metres.
In a statement released on the 19th February 2024, Michael Gove stated that the Building Safety Regulator will publish the new guidance on second staircases before the end of March, making clear the need for a second staircase in new multi-occupancy residential buildings that have a top occupied storey above 18 metres, and confirming that evacuation lifts will not be called for as a matter of course, providing housebuilders with the clarity they need to progress developments.
The official statement goes onto state that the revised statutory guidance, known as Approved Document B, represents general guidance: it will not be exhaustive, and the design of each high-rise building will continue to receive individual scrutiny from experts, now via the Building Safety Regulator. The fire safety design for any higher risk buildings above 18 metres will be subject to review at Planning Gateway One by fire safety professionals, and by a multi-disciplinary team at Gateway Two, who must be satisfied that the final fire safety provisions are appropriate to the requirements of each individual building. It remains the responsibility of the owners and those carrying out building works, including developers, to demonstrate that the functional requirements of the building regulations have been met.
Read the official statement here:
Written statements – Written questions, answers and statements – UK Parliament
Should you wish to discuss any areas of building safety, contact the team directly at: BuildingSafety@jbleitch.co.uk
JB Leitch are specialist solicitors for freehold investor and property management companies. Whatever the tenure and whether it's residential, mixed-use or commercial - if you manage it, we can help.
