Building Safety Act 2022: Identifying the accountable person and principal accountable person
Market Insight 28 June 2022 28 June 2022
Cladding and Building Safety
The Building Safety Act 2022 (the “Act”) received Royal Assent on the 28 April 2022 and will bring about sweeping changes to the way in which building safety risks are assessed in higher-risk buildings, in particular those which contain at least two residential units, which are occupied.
The Act attempts to reduce the risk of residents playing ‘piggy-in-the-middle’ whilst landlords, building management companies, contractors and developers argue about which party is responsible for resolving any given building safety risk.
This has resulted in the creation of two new, crucial, roles which must be filled for each higher-risk building which has been occupied:
- accountable person(s); and
- principal accountable person.
Whilst the legislation imposing some of the key duties and obligations pertaining to these roles is not expected to come into force until 18 months after the Act receives Royal Assent, it is important to identify at an early stage who is likely to assume these roles.
A failure to comply with the duties of an accountable person or principal accountable person could lead to criminal prosecution and lead to a custodial sentence. The stakes are high and it is important to be prepared to identify whether you hold one these roles and, if so, understand the duties and obligations that you will be required to discharge.
Identifying the accountable person(s)
The Act defines an accountable person as someone who:
- Holds a legal estate in possession of any part of the common parts; or
- Does not hold a legal estate in any part of the building, but who is under a relevant repairing obligation in relation to any part of those common parts.
The first part of the test under the Act suggests that the accountable person could be the building owner, which is normally the landlord for higher-risk buildings. However, it is possible that the leaseholders are also the owners of the building if they own a share of the freehold.
Alternatively, the accountable person could be someone who does not own the building but instead has a ‘relevant repairing obligation’. This means that the role could be assumed by the:
- Leaseholders (even if they don’t have a share of the freehold)
- Building management company.
It is possible to have a different accountable person for each part of a higher-risk building and the Act does not seek to impose any limits on how many accountable persons there may be.
There is no ‘one size fits all’ approach to identifying who the accountable person(s) is or are and each higher-risk building will need to be reviewed on a building-by-building basis, taking into account any contractual agreements and how the building is managed.
Key points to consider are whether:
- The contractor or developer has agreed to take on repairing obligations for a defined period of time after construction and, if so, which parts of the building this covers.
- There is a building management company managing the building and, if so, whether its role covers the entire building or just certain parts or sections.
- Leaseholders have repairing obligations in their leases.
Duties and obligation of the accountable person(s)
Once you have established that you are an accountable person, there will be a number of obligations and duties imposed upon you.
Ensuring that a Completion Certificate has been issued prior to occupation
A Completion Certificate would be required if:
- Work has been carried out to construct a new higher-risk building;
- Work has resulted in the creation of additional residential units; or
- The work carried out on a building would see it become a higher-risk building.
The accountable person would commit a criminal offence if a higher-risk building was occupied without a Completion Certificate.
Duties to both assess and manage building safety risks
Accountable persons are responsible for assessing and managing building safety risks for the parts of the building for which they are responsible.
This is in order to both prevent building safety risks materialising and also when they arise, to reduce the severity of any particular incident.
Comply with mandatory reporting requirements
This is where the Building Safety Regulator can require that certain information is reported to it as a matter of course, the details of how and when this is required is to be set out by the regulator.
Keeping prescribed information and prescribed standards and keeping that information up to date
This would involve ensuring that the golden thread of information that has been created before and during the project is both maintained and updated, where appropriate, whilst the building is occupied.
It is important to ensure that any document destruction policies do not see any information deleted. The Act also expects that, where an accountable person does not hold information, that the accountable person will ask for and obtain it.
Respond to residents’ requests for information
The Act expects there to be more engagement with residents on building safety risks going forward. However, this is not an absolute right and an accountable person cannot be expected to provide information which would otherwise put them in breach of data protection laws.
Identifying the principal accountable person
Unlike the accountable person there will only be one person who occupies the role of principal accountable person. This role effectively gives someone overall responsibility for ensuring that building safety risks are being managed appropriately and that the various duties and obligations are being complied with. This is reflected in the nature of the duties that comes with this role.
The Act provides that where there is only one accountable person, that person will automatically become the principal accountable person. If, as the case may be, a building has different accountable persons for different parts of the building, the Act states that the principal accountable person will be the one responsible for the structure and exterior of the building.
A principal accountable person would be subject to these additional ongoing duties and obligations:
- Register the building – Details of how to apply for registration and what information is required is to be set out in secondary legislation, although this requirement will apply to both new and existing buildings.
- Applying for a Building Assessment Certificate – Details of how to apply for registration and what information is required is currently unclear, but this requirement will apply to both new and existing buildings.
- Applying for a building assessment certificate – This is something that the Building Safety Regulator can require a principal accountable person to apply for and it’s an opportunity for the Building Safety Regulator to satisfy itself that the various duties and obligations are being complied with, which will result in the issuing of a building assessment certificate.
- Display building assessment certificate in prominent location – It would be a criminal offence not to.
- Preparation of a safety case report – This is a report which details all of the building safety risks identified by the accountable persons in respect of their part and also setting out a brief description of what action those accountable persons are taking in relation to those risks.
- Establish and operate mandatory occurrence reporting system – This ties in with the ongoing duty that accountable persons have to report prescribed information to the Building Safety Regulator. It will be the principal accountable person’s responsibility for establishing and creating a framework through which the accountable persons can make these reports.
- Responsibility for preparing a residents’ engagement strategy and establishing a complaints procedure.
If you have any questions on the contents of the article or the Act more generally or, alternatively, you consider that your organisation would benefit from some training on the Act and the changes that this will have on the industry, please feel free to contact Chris Leadbetter, Kate Lister or Thomas Wheeler.