High-rise building safety reform: new duties for landlords and tenants

The consultation is open until 31 July 2019. The government will consider responses over the summer and publish a response in the autumn.

We expect any changes from the published proposals to be fine-tuning rather than a fundamental rethink, so organisations in the new 'dutyholder' roles need to begin planning now.

Who will have duties?

Currently, residents report that they can find it challenging to identify and communicate effectively with the landlord who is responsible for the building. To address this, the government plans to implement Dame Judith Hackitt's recommendation to implement a robust and challenging set of responsibilities for fire and structural safety during the occupation of buildings in the scope of the new regime.

Specific duties will attach to a new 'accountable person' for the building, and to the building safety manager appointed by them. Residents will also have obligations to allow the accountable person and the building safety manager to discharge their duties effectively.

The role of the accountable person

The 'accountable person' role is significantly more onerous than the obligations for common areas which exist under the current fire safety and housing legislation.

The accountable person will be identified based on their right to receive funds which contribute to the cost of the maintenance and upkeep of the structure of the building. This will usually be the owner of the building or a management company.

The accountable person's duties will include:

• registration – ensuring that buildings within scope are under their control and registered with the new building safety regulator. The accountable person must provide the regulator with an official address in England or Wales where they can be contacted. Only the regulator, not the accountable person, will be able to transfer legal accountability, for example when the building is sold;
• key appointments – appointing a named, competent building safety manager who must be registered with the regulator;
• resources – ensuring that adequate measures are in place to manage building safety, including ensuring that the building safety manager has access to the funding and co-operation necessary to carry out their role;
• the 'golden thread' of information about the building – providing the regulator with a safety case demonstrating that they are ensuring that building safety risks are reduced so far as is reasonably practicable. The safety case must be reviewed every five years and may result in the regulator imposing remediation conditions in the building safety certificate;
• compliance – with all requirements in the building safety certificate issued by the regulator.

The role of the building safety manager

The building safety manager will carry out the day to day functions of ensuring that the building is safely managed and maintained. This will include engaging residents and overseeing building works and others employed in management, maintenance or checks of the building.

If the accountable person fails to appoint a building safety manager, the regulator will appoint one and impose orders to divert part of the rent or service charge to pay for it.

A focus on senior management

If the dutyholders in the accountable person and building safety manager roles are organisations rather than individuals, the government is considering whether there should be a single accountable person at board level who can be identified as having responsibility for building safety. How that individual discharged their duties would inevitably become a focus for the regulator if there is a failure of the fire and structure safety measures for a building.

The new regulatory regime will be underpinned by a variety of new offences attracting civil and criminal sanctions. We anticipate that these will be accompanied by powers to prosecute directors and senior managers alongside organisations for offences which have taken place with their consent or connivance, or which are attributable to their neglect. Robust systems will therefore be required to provide assurance to senior management that the organisation is complying with its duties.

Residents' responsibilities

The accountable person and the building safety manager will have to ensure that they have the cooperation of residents so that they can effectively manage fire and structural risks.

The government has proposed to create a new requirement for residents of buildings in scope of the new regime to cooperate with the accountable person. This is an area of some concern, as a recent call for evidence on how landlords and residents can work together revealed that 75% of landlords have been refused entry to a property on at least one occasion despite having a fire safety concern. Residents can also harbour concerns about their neighbours.

The detail of this proposal will need to be carefully thought through to balance the rights of residents in relation to their individual homes with the duties of the accountable person and the concerns of neighbours. For example, it might include:

• providing reasonable information about work to their property;
• allowing access, with reasonable notice, to inspect and carry out necessary work; and
• undertaking fire and structural safety-related maintenance.

The government intends for residents to be at the heart of the new building safety system. The accountable person responsible for building safety during occupation will be required to proactively provide residents with information on the safety of their building - for example, by way of a tenant handbook. Residents will also be entitled to request a much broader range of information, such as maintenance records and the specification of fire safety equipment, subject only to an exemption if disclosing the information could compromise the safety and security of the building. Where this information is not forthcoming, a complaint can be pursued with the accountable person and, from there, to the regulator.

Some information about the building may be made publicly available. The regulator will also maintain public registers of accountable persons and building managers.

The accountable person must also put in place a mechanism for residents to raise concerns about building safety. One part of the remit of the new regulator is to provide a route for escalation of resident safety concerns which have not been resolved by the landlord and building safety manager. Failure to participate in that process, or to comply with the regulator's decision, is likely to lead to a review of the building safety certificate.

Katherine Metcalfe is a health and safety law expert at Pinsent Masons, the law firm behind Out-Law. Pinsent Masons, in partnership with the British Property Federation, will be hosting a free event to analyse what these proposals mean for the commercial real estate industry on 12 July 2019.