The Government has introduced the Building Safety (Remediation of Unsafe Cladding etc) Bill to accelerate the identification and remediation of residential buildings with unsafe cladding.
In our first two blogs in this series, we looked at what registration of medium-rise residential buildings is expected to involve and the consequences of failing to comply.
In this blog, we start to look at some of the other new duties proposed by the Bill. The new duties are set out in Part 1 of the Bill and this blog will cover the first duty – the duty to carry out assessment of risks in the external walls.
Which buildings will need to be assessed?
The Government proposes that the requirement to assess will apply to all multi-occupied residential buildings in England which
• are at least eleven metres in height, or have at least five storeys
• contain at least two dwellings
• are self-contained or a self-contained part of a building
• were completed before 28 June 2022
The Bill adopts the definition of ‘Chapter 1 Buildings’ to differentiate between this definition and other similar definitions throughout the Bill and other building safety legislation. We will discuss each of the different classes of building in more detail in future blogs in this series.
Who has a legal duty to assess?
The duty falls on the “responsible entity” for the external walls. Broadly, this means a person who is required under a lease or legislation to repair or maintain all or part of those walls. Where there is more than one responsible entity, the duty applies jointly and severally.
We will consider which parties may be considered a responsible entity in more detail in a later blog in this series.
What will the assessment involve?
Section 2 of the Bill indicates that, for many buildings, there will be two stages to the required fire risk assessments.
The first stage will be a more general “Article 9 fire risk assessment”, which must comply with the requirements of Article 9 of the Fire Safety Order. No further assessment of the external walls will be required if the Article 9 fire risk assessment does not identify any, or any suspected, fire safety risks in relation to the external walls of the building, and does not recommend that a fire risk assessment of the external walls be carried out.
If an Article 9 fire risk assessment recommends that a fire risk assessment of the external walls needs to be carried out, responsible entities will be required to carry out a fire risk assessment that complies with the requirements of subsequent regulations. The government guidance suggests that this will be a Fire Risk Appraisal of External Walls (FRAEW) and that it will need to follow the PAS 9980 methodology, with the detailed requirement to be set out in regulations. PAS 9980 provides a risk-based methodology for assessing fire spread over or within the external walls of existing blocks of flats.
The Bill appears to permit a responsible entity to proceed directly to the external wall assessment. An Article 9 fire risk assessment operates as an exception to that duty where it identifies no relevant external wall risks and does not recommend further assessment. This may mean that, where external wall risks are already known or suspected, responsible entities can proceed directly to the more detailed assessment in order to comply with their new duties in relation to external walls.
Will existing assessments need to be repeated?
The Bill states that an Article 9 fire risk assessment carried out since 16 May 2022, which is compliant with Article 9 of the Fire Safety Order and reaches the relevant conclusions in relation to external walls, will be a valid exception to the assessment duty.
The Bill also recognises certain external wall assessments completed after 16 May 2022 but before the new duty comes into force. Broadly, an existing assessment may qualify where it would satisfy the requirements applying to an assessment carried out under the new regime.
The government guidance accompanying the Bill suggests that compliance may be based on whether the assessment was compliant at the time it was undertaken, but this is not yet explicit in the Bill and therefore the final position will depend on the detail contained within subsequent regulations.
Building owners and managers should therefore establish:
• what external wall assessments they already hold
• when those assessments were undertaken
• whether they meet the relevant requirements
• whether the assessments and supporting records are complete and readily available
When will the assessment need to take place?
The Bill states that all buildings covered by this obligation must have a completed assessment within 10 months of the legislation coming into force.
Will assessments be audited?
The Bill also proposes mandatory auditing of FRAEWs to ensure consistency and quality. The Government's guide says that FRAEWs which recommend mitigation or remediation will need to be submitted to Homes England for audit by the assessment deadline. Homes England will also have power to audit a proportion of FRAEWs which conclude that no work is required.
What happens if a building has not been assessed?
Failure to complete an assessment within the required period, without a reasonable excuse, will be a criminal offence. The Government's guide says that this may result in prosecution or escalating financial penalties designed to deter continuing non-compliance.
What comes next?
Assessment is only the first step. Where intolerable fire safety risks are identified, the Bill also creates new duties to address those risks. In the next blog in this series, we will consider the proposed duties to mitigate and remediate those risks.
Our content explained
Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.