Building safety: Liability for educational institutions for students in private rented accommodation

The impact of Building Safety legislation has been seismic and continues to develop. This article considers how far building safety duties on educational providers may reach in relation to privately owned student accommodation.

High density accommodation, such as student accommodation, by its nature is more likely to be high-rise and therefore fall within the concept of a ‘Higher-Risk Building’ imposed by the legislation.  A ‘Higher-Risk Building’ (HRBs) is currently defined in England as one which is over 18 metres, or which has at least seven storeys (whichever is the lower) and has two or more residential units. This is likely to cover any student accommodation which meets the height requirement.

There are specific (more onerous) requirements that apply to HRBs, and each HRB has a ‘Principal Accountable Person’ who is criminally liable for failure to comply with them.   All existing HRBs had to be registered with the new Building Safety Regulator by October 2023.

Student accommodation ‘Higher Risk Buildings’       

As estates management teams in educational institutions navigate the tricky road through registration and remediation of legacy HRBs within their estate, they may feel understandably concerned to ensure they are discharging their duties. They will need to comply with ongoing management of the HRB which will include ongoing monitoring of compliance with legislation (particularly as it continues to evolve) and also includes providing residents with:

• safety information, regular inspections and access to safety personnel; 
• frequent and clear communication in respect of any safety issues, maintenance work and changes in protocols;
• emergency plans.   

Privately owned student accommodation

However, student housing stock may be sourced from outside the education provider’s estate, where they do not own/operate it.  For example, housing under accommodation guarantees or nominations agreements, and/or more simply lists of nearby private accommodation made available to students.  To the extent this housing is defined as an HRB, it is less clear what duties are owed by the educational body to the students occupying such buildings in the area of building safety.

Wider legal / regulatory duties

As we wait for case law to develop on this point, or for the issue of further guidance, providers are advised to ensure they are taking reasonable steps to identify and discharge any legal duties they may owe to students, even in relation to something as apparently remote as providing a list of privately owned accommodation.  This may include, depending on the particular facts and circumstances, taking steps to assess which of these accommodations are HRBs and are (or should be) registered as HRBs. It is possible to check the register of registered HRBs provided you have a post code. Click here. 
Other legal and regulatory frameworks can also be relevant when considering what steps to take and what, how and when information should be provided to students and prospective students.  This may include for example:
•    health and safety laws
•    consumer law 
•    the Office for Students’ regulatory framework

Food for thought

It is crucial for providers to consider and identify the legal and regulatory duties they may owe in respect of their students in private rented accommodation and take stock of what information they provide to those students, particularly as such duties may be much wider than initially assumed.  Providers should also put systems in place to address and discharge their duties, health/fact check the information they are passing on and carry out any extra checks required.  This is with a view to avoiding legal and regulatory challenge and potential criminal liability (including for those involved) and the significant potential reputational and financial risks which may arise.       

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