Guidance

Building Safety Regulator approach to enforcement: factsheet

Updated 25 July 2022

Applies to England

Building Safety Regulator approach to enforcement: Statement of intent

Produced by the Health and Safety Executive

Introduction

The Health and Safety Executive (HSE) is the national regulator for occupational health and safety in Great Britain. It works with local authority environmental health departments to protect people at work and those who might be affected by work activities, including members of the public.

Further information on HSE’s approach to enforcement in the workplace is provided at the end of this document.

The government proposes, in clause 2 of the Building Safety Bill, to appoint HSE as the Building Safety Regulator in England.

The Building Safety Regulator will be an independent regulator with its own powers, strategic plan, and programme of work. It will give expert advice to local regulators, landlords and building owners, the construction and building design industry, and to residents.

HSE is working with a range of stakeholders including the Ministry of Housing, Communities and Local Government (MHCLG), the Home Office, local regulators, building control bodies, residents, building owners, housing providers, the construction industry, the Local Government Association, Local Authority Building Control, and the National Fire Chiefs Council. We are also working to develop our approaches to engaging with residents.

This factsheet has been prepared by HSE to help the reader of the Bill and to inform debate. It does not form part of the Bill and has not been endorsed by Parliament.

In this factsheet high-rise buildings means those residential buildings that are 7 storeys or more, or 18 metres or more in height and in the design and construction phase only, also includes care homes and hospitals that meet the same height threshold. The Building Safety Bill refers to high-rise buildings as higher-risk buildings.

Aims and objectives

The Bill proposes that the Building Safety Regulator will have two objectives:

• securing the safety of people in and around buildings in relation to risks from buildings
• improving building standards

The Building Safety Regulator will:

• implement a new, more stringent regulatory regime for high-rise buildings in England
  • being the building control authority in England for building work on high-rise buildings
  • overseeing and enforcing the new regime in occupation of high-rise buildings
• oversee the safety and performance of all buildings. This has two aspects:
  • overseeing the performance of other building control bodies (local authorities and registered building control approvers (currently known as approved inspectors))
  • understanding and advising on existing and emerging building standards and safety risks
• promote competence among industry professionals and regulators to raise standards in the design, construction, and management of buildings

HSE intends that the Building Safety Regulator will deliver evidence-based, proportionate, and targeted engagement and interventions with dutyholders. The Building Safety Regulator’s programme of work will include communication activities to advise and support dutyholders and residents. Enforcement activities and sanctions will be targeted to improve the safety and performance of buildings. We will continually engage with our stakeholders to ensure that our work is well-informed, credible, and effective.

The Bill provides for greater regulatory scrutiny and we expect a series of hard stops at key stages during design and construction to be introduced through secondary legislation. During occupation of buildings in scope, the Bill requires dutyholders to demonstrate ongoing management of building safety risk through their safety case report. It will give the Building Safety Regulator a wide range of tools to achieve improved building safety performance and to deliver the culture change identified in Dame Judith Hackitt’s review Building a Safer Future. The Building Safety Regulator will be responsible for the regulatory decisions during the design, construction, occupation and refurbishment of high-rise buildings.

The Building Safety Regulator’s activities to achieve building safety and performance outcomes will include:

• work with and through intermediaries to provide advice and guidance
• direct engagement with people and organisations who have legal responsibilities (dutyholders)
• granting permission to proceed with construction work and issuing completion certificates at appropriate points in the construction and occupation phases
• a process of providing certification following assessment of the in-occupation safety case
• formal enforcement and sanctions where necessary

Regulatory principles

HSE intends that the Building Safety Regulator’s approach will be proportionate in accordance with clause 3 of the Building Safety Bill and the Regulators’ Code 2014.

There will be a clear principle that the person or entity that creates, or is responsible for, a building safety risk should be responsible for preventing, managing, and controlling that risk. This includes building designers, who have a responsibility to design a building that complies with relevant building regulations.

The Building Safety Regulator recognises the importance of supporting businesses and housing providers to comply and grow, to meet the need for safe, good quality homes.

The Bill makes clear that the Building Safety Regulator’s regulatory approach should apply the principles of proportionality, transparency, consistency, and accountability. This approach will provide public assurance that building safety is being delivered while striking the balance between quality, safety and costs to residents and the taxpayer. It will be informed by an understanding of the business environment and the needs of residents.

In securing sustained safety outcomes, the Building Safety Regulator’s response will be proportionate to the safety risks and to the seriousness of any breach of the law. Regulatory intervention will be targeted on activities where there is high actual or potential harm arising from any breach. In judging how far dutyholders have taken steps to reduce or mitigate safety risks, the Building Safety Regulator will balance the degree of risk against the money, time or trouble needed to avert that risk in the particular circumstances, as well as the impact of any action on businesses and residents.

The Building Safety Regulator will expect that dutyholders, in turn, will adopt a sensible and proportionate approach to managing safety, focusing on significant risks.

The Building Safety Regulator’s approach to formal enforcement and sanctions will serve the public interest and will be undertaken in a fair, equitable and consistent manner, targeting and taking firm action against those who repeatedly offend, act irresponsibly, or whose actions could cause serious harm. It promotes the principle that those who create the risk are responsible for managing that risk and are held accountable when they fail to do so.

Indicative Enforcement Policy Statement: Developing the approach to enforcement

It is intended that the Building Safety Regulator will employ a variety of methods to encourage and support dutyholders to meet the requirements of relevant Building Regulations and to manage fire and structural risks in buildings in a sensible and proportionate way. This reflects the aims in chapter 8 of the document: A reformed building safety regulatory system: government response to the Building a Safer Future consultation, published by MHCLG in April 2020.

The appropriate and proportionate use of enforcement powers, regulatory tools, and sanctions by the Building Safety Regulator will be set out in a published Enforcement Policy Statement (EPS). The EPS will inform the exercise of discretion and professional judgement by Building Safety Regulator staff according to the circumstances found.

The EPS will set out the general principles and approach which those working for the Building Safety Regulator or delivering its functions should follow when considering their regulatory decisions, including enforcement decisions. The EPS will cover the purpose of enforcement action: to prevent harm by requiring dutyholders to manage and control risks effectively, to achieve the objective of securing safety of people and improving building standards. This includes:

• ensuring action is taken immediately to deal with serious risks
• promoting and maintaining sustained compliance with the law, and
• ensuring that those who breach the law, including individuals who fail in their responsibilities, may be held to account (this includes bringing alleged offenders before the criminal courts)

The EPS will be informed, developed, and refined through engagement and consultation with key stakeholders including relevant government departments and regulatory partners. Through this process, we may come to the view that the existing HSE EPS is sufficiently flexible to accommodate our new responsibilities as the Building Safety Regulator or requires some amendment but is still the right vehicle.

The regulatory regime for high-rise buildings enhances, overlays, and overlaps the existing legislative framework, and provides an additional level of rigour to the management and control of the spread of fire and structural failure. The EPS will take into account the enforcement principles of partner regulators to ensure consistency of approach, avoid duplication, and where necessary enhance standards. This will provide assurance and clarity to dutyholders and residents on the standards expected and how regulators will respond where these standards are not met.

The EPS will be the foundation of operational guidance and instructions that will provide further detail on the approach to enforcement and sanctions. These will be developed through engagement with a range of key stakeholders including relevant government departments, regulatory partners, industry forums, dutyholders, and residents. The views of parliamentarians will also be welcome.

Instructions will include:

• criteria for selection of incidents and residents’ complaints for further inquiry and investigation, and
• the Building Safety Regulator’s investigation procedures and enforcement management arrangements to steer the action it takes. This will include a decision-making framework to assist in ensuring that Building Safety Regulator’s enforcement and sanctions decisions are in line with the EPS

The EPS will set out the five enforcement principles and how they will be applied when the Building Safety Regulator conducts enforcement activities:

• proportionality in how the Building Safety Regulator applies the law and secures compliance
• targeting of enforcement action
• consistency of the Building Safety Regulator’s enforcement approach
• transparency about how the Building Safety Regulator operates and what stakeholders can expect, and
• accountability for its actions

Applying the enforcement principles

The Building Safety Regulator will adopt a proportionate approach to enforcing safety and standards across the built environment. Enforcement action will be proportionate to risk and to the seriousness of any breach of the law. This will include any actual or potential harm arising from any breach, its likelihood, and the impact of the action taken.

The Building Safety Regulator will target its assessment, inspection and investigation resources:

• on those buildings and activities giving rise to the most serious risks
• where the hazards are least well controlled, or
• where the effectiveness in managing building safety is in doubt

This will be informed by operational intelligence, data, analysis, science and research. Enforcement activity will be focused on the most serious risks and/or breaches of the law, and on those who are responsible for and best placed to control those risks.

The Building Safety Regulator will adopt a consistent approach to enforcement of the law. However, because every situation will be different, enforcement decisions will require the appropriate exercise of discretion and professional judgement. The degree of risk and the seriousness of any breach, including the attitude and competence of management, incident history and previous enforcement action, will inform the exercise of this discretion. The Building Safety Regulator will ensure consistent decision making through its EPS and enforcement management arrangements, including benchmarking and peer review.

Where non-compliance is identified, the Building Safety Regulator will take a transparent approach to clearly and promptly explain the enforcement decision taken, the reasons, and the actions required to achieve compliance. The Building Safety Regulator will clearly outline options that the dutyholder may consider, including where relevant, what they have to do and what they don’t have to do. They will discuss reasonable timescales with the dutyholder and explain what will happen if they fail to comply. Transparency also involves keeping residents and other interested parties informed of relevant enforcement action. The Building Safety Regulator will publish its EPS and regulatory decision-making criteria.

As a regulator, the Building Safety Regulator will be accountable to all and its enforcement actions can be judged against the principles and standards set out in its EPS, performance standards and decision-making criteria. Businesses, building owners, residents and others will need to know what to expect from the Building Safety Regulator and how to raise any complaints they may have.

Annex: An overview of HSE and further information on the work of the Building Safety Regulator

HSE – our history and role

With roots stretching back to 1833 the modern HSE is an independent regulator with over forty years’ experience helping Great Britain work well. Using world leading science, we have helped protect millions of people from devastating injury and suffering.

HSE leads the way but does not act alone. Everyone has a part to play – employers, unions, workers, trade associations, professional bodies, academics, and others.

Working in partnership is one of our strengths. It is at the heart of how we protect workers and the public:

• We concentrate on the most serious risks. We target industries with the greatest hazards, and sectors with the worst risk management record
• We are firm and fair when using our legal powers. Inspection helps us check that serious risks are managed sensibly. When things go wrong, investigation helps us get to the truth and learn lessons
• We hold employers to account for their failures and get answers for victims and make workplaces safer

The world of work is always changing. We use science to understand these changes. And that understanding helps us all prepare for the workplaces of tomorrow…so Great Britain continues to be one of the safest and best places to work and do business.

The anticipated work of the Building Safety Regulator

The Building Safety Regulator will operate across four key areas:

As the regulator for building work, to secure compliance with the general duties and technical performance requirements set out in the Building Regulations

The strengthened regime will provide greater regulatory scrutiny, more transparency and demand a more systematic approach by dutyholders. It will regulate and hold to account those participating in the design and construction of new buildings, and the refurbishment of existing buildings that are within scope of the new regime.

The regime seeks to increase competency and improve management arrangements in the safety and standards of buildings. It integrates the philosophy adopted by HSE in regulating health and safety in hazardous industries, introducing a permissioning regime to provide a series of hard stop decision points in the design and construction of high-rise buildings. Dutyholders must evidence compliance with the Building Regulations before receiving authorisation for a project to progress, supported by inspections at key stages during construction and a final inspection before a completion certificate is issued.

As a regulator of occupied high-rise buildings, to assure that dutyholders are managing building safety risks (the spread of fire and structural major incident hazard) under their control

The proactive approach and regulation of risks will be delivered through a safety case regime, focusing on major incident scenarios associated with the spread of fire and/or structural failure.

Under this regime, a building specific safety case report must be produced. The safety case report identifies the fire and structural hazards associated with the building. It sets out how the risks they present are being managed to prevent the risks materialising and reduce the severity of any incident resulting if the risks do materialise. The adequacy of the safety case will be assessed by the Building Safety Regulator, working with multi-disciplinary teams, as part of the building assessment certification process. This will ensure an aligned and coordinated regulatory approach and the sharing of intelligence with partner regulators.

Oversight of the performance of building control bodies

The Building Safety Regulator will monitor the performance of local authority building control bodies and private sector building control approvers. We will also oversee and regulate individuals working as building inspectors. Building inspectors and building control approvers will be subject to a registration requirement and the Building Safety Regulator may suspend or remove inspectors from the register and address performance and professional misconduct. There will be improved competence and accountability through the creation of a unified professional and regulatory structure.

Securing the safety of people in or about buildings, improving the standard of buildings and increasing competence

The Building Safety Regulator will meet the objectives within Part 2 of the Bill though wider engagement, communication, guidance, and standard setting. This will drive industry cultural change to secure the safety of people, improve the standards of buildings, incentivise compliance and secure resident engagement to provide a stronger voice for residents.

The Building Safety Regulator will monitor industry performance to inform priorities, set direction, facilitate improvement in competence of both industry and the building control profession and influence their operational standards. This will identify systemic issues in building stock and be further informed through, investigation work, collaboration with regulatory partners and intelligence through a mechanism for the voluntary reporting of relevant occurrences.

Further information

Produced by the Health and Safety Executive 09/21 HSE FS4.