Guidance

Regulating the risk to people from the spread of fire and structural failure in occupied high-rise buildings: factsheet

Updated 25 July 2022

Applies to England

Regulating the risk to people from the spread of fire and structural failure in occupied high-rise buildings: Developing a balanced and proportionate regulatory approach

Produced by the Health and Safety Executive

Introduction

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

The framework for effective and proportionate regulatory decision-making by the Building Safety Regulator is being developed as part of the programme to establish it in HSE. The remit of the Building Safety Regulator and its powers and functions may change as the Bill passes through Parliament.

This factsheet therefore represents an early position in the development of the Building Safety Regulator’s regulatory approach regarding occupied high-rise residential buildings in England to help inform debate over the coming months.

The concepts outlined in this note have been discussed with a cross-section of interested stakeholders, including: the Department for Levelling Up, Housing and Communities (previously the Ministry of Housing, Communities and Local Government), the Home Office, the Joint Regulators Group, the Early Adopter group of organisations, the Industry Response Group, the financial services industry and chartered surveyors.

It forms part of the response to Recommendation 27^{[footnote 1]} of the Pre-Legislative Scrutiny of the Building Safety Bill by the Housing, Communities and Local Government Select Committee.

In this factsheet high-rise buildings means those residential buildings that are 7 storeys or more, or 18 metres or more in height. The Bill refers to these buildings as higher-risk buildings.

Developing our regulatory approach

This will involve:

• establishing principles for a balanced and proportionate approach to underpin our regulatory activity, which focuses on achieving safety outcomes and has regard for the principle that it is the responsibility of the respective dutyholders to manage and control building safety risks; this document is part of this process

• publishing an Enforcement Policy Statement to ensure its principles and approach to enforcement, when developed, are clear. This document will meet the requirements of the Regulators’ Code

• developing the guidance and benchmarks we will use to steer the regulatory response to problems we find. The guidance and benchmarks will help dutyholders and regulators understand what the requirements of the law mean in practice. As a regulator, the Building Safety Regulator will use the guidance and benchmarks as part of its regulatory decision making

• enabling a range of regulatory approaches from advice, communications-based influence, through to use of enforcement and sanctions

• involving stakeholders in the development of the instructions and protocols for regulatory colleagues on those regulatory responses

• increasing the evidence-base and our understanding of the issues across occupied high-rise residential buildings, feeding this into our targeting and intelligence

• partner regulators working together to define regulatory interfaces to ensure the regulator which is best placed to respond is confident on their role and action

• working with colleagues across government and with our stakeholders to develop appropriate communications, including guidance to help those with legal duties understand the practical steps they need to take to discharge their responsibilities

• establishing monitoring and review mechanisms to learn lessons and adapt the approach

Our early thinking on what ‘reasonable steps’ will include

The Bill requires that an accountable person for an occupied high-rise building must take all reasonable steps for the following purposes:

• preventing a building safety risk materialising as regards the part of the building for which they are responsible

• reducing the severity of any incident resulting from such a risk materialising

A ‘building safety risk’ is a risk to the safety of people in or around a building arising from the spread of fire or a structural failure. The Bill makes provision for other building safety risks to be included in the building safety regime where evidence supports this.

The reasonable steps that will need to be taken to prevent or reduce the severity of the spread of fire or structural failure will include the physical attributes of the building, management arrangements and other systems:

• the systems, arrangements and physical attributes should be proportionate to the risk
• for some existing buildings this may require improvements or alterations to be made, but only up to the point where people are safe from the spread of fire and structural failure
• it is not always possible to retrofit current standards and a proportionate approach will be taken to ensure people are safe from the spread of fire and structural failure. It may be necessary to phase improvements and alterations, but interim measures may be needed until more permanent arrangements are implemented
• where we find that reasonable steps are not being taken to prevent or reduce the severity of a building safety risk, the Building Safety Regulator will apply the enforcement tools and sanctions proposed under the Bill to require dutyholders to manage and control risks effectively. This will be done in a way that is proportionate to the building safety risks and the seriousness of any breach of law. 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, are held to account
• the Building Safety Regulator will coordinate its activities with regulators responsible for other building safety regimes (for example, fire and rescue services, building control departments and environmental health departments) to minimise unnecessary overlaps and delay. We will seek to ensure that any action is taken in response to a building safety risk or an incident efficiently by the regulatory body best equipped to deal with the risks and achieve the required safety outcomes
• where we find failings have put, or are putting, people at serious risk, we will seek to hold the dutyholders involved to account, including through prosecution in the criminal courts where appropriate

The Bill places a requirement on accountable persons to act in accordance with the ‘prescribed principles’^{[footnote 2]} when taking steps to manage building safety risks. We will seek for these principles to be applied and for the risks in the building to be considered holistically:

• as a general rule, we will expect the dutyholders’ approach to managing and controlling building safety risks to include a proportionate combination of risk prevention, control and mitigation, giving proper consideration to each one to ensure a safe outcome for residents
• there may also be a need to provide short term or interim arrangements until more permanent measures can be implemented
• there will also be a need to ensure effective systems of testing and maintenance etc are in place
• the objectives of this combination of measures may be limited to enabling people to be evacuated without loss of life, and to ensuring that emergency personnel are able to respond effectively; prevention of damage to the building limited only to the extent necessary to achieve these
• the overall cost of measures must be proportionate to the benefit in terms of risk reduction, within the framework provided by appropriate Principles of Prevention

Further information

Produced by the Health and Safety Executive 09/21 HSE FS2.

1. Recommendation 27 ‘We recommend that the government publish with the Bill statutory guidance describing the kind of actions that accountable persons will have to take to comply with their duty to “take all reasonable steps” to avoid a “major incident”. We also recommend that the definition of “major incident” be amended to include incidents that might reasonably foreseeably cause death or serious injury.’ ↩

2. See draft regulations: Higher-Risk Buildings (Prescribed Principles for Management of Building Safety Risks) Regulations [2022]. ↩