1. Introduction
The government has made funding available to ensure buildings with unsafe cladding can be remediated at pace. However, too many landlords are still failing to act quickly enough, preventing safety work from starting and damaging residents’ quality of life.
Landlords have always been responsible for keeping their buildings safe. Where buildings have unsafe cladding or other fire and structural safety defects, landlords need to fix these without delay. The government has made funding available to ensure buildings with unsafe cladding can be remediated at pace. However, too many landlords are still failing to act quickly enough, preventing safety work from starting and damaging residents’ quality of life.
Regulators – local authorities, fire and rescue authorities and the Building Safety Regulator – have statutory powers to make sure landlords take the necessary steps to make and keep their buildings safe, and to secure the safety of people in or about buildings in relation to risks arising from buildings. Regulators have operational discretion in the delivery of their regulatory duties and use of powers which are set out in law and are guided by national guidance as well as their own enforcement policies and operational procedures.
Government interventions including the creation of funding programmes and changes to legislation have changed the remediation landscape. The purpose of this guidance is to support regulators to enforce permanent remediation in the changed building safety landscape. It is designed to provide clarity and support to regulators in their roles and the delivery of their statutory duties, and to address areas of ambiguity.
By providing a framework for determining the lead regulator at a relevant (i.e. unsafe) building, this guidance will support regulators to work together effectively to enforce remediation where landlords are failing to fix their unsafe buildings.
The Deputy Prime Minister has asked metro mayors in England to convene local remediation acceleration plans, and to work with regulators to increase the pace of remediation in their area. This guidance applies equally whether regulators are part of a mayoral area, but regulators should be aware where they are working as part of a local plan and coordinate with their mayor and other regulators as set out in that plan. The government expects that this guidance will be key in supporting regulators and mayors to deliver their local remediation acceleration plans.
This guidance is addressed to regulators but is publicly available. It may be of interest in understanding remediation topics, such as how remediation should progress or what regulators’ responsibilities are. This guidance also provides additional information (organised thematically in Annexes A to F) to support regulators with remediation enforcement considerations.
The guidance applies in respect of regulatory activity by local authorities and fire and rescue authorities at:
- multi-occupied residential buildings between 11 and 18 metres in height or with 5 or 6 storeys,
- that need – or may need – remediation work or other mitigations to address fire and structural safety defects, including, but not limited to, unsafe cladding.
The guidance also applies in respect of regulatory activity by local authorities, fire and rescue authorities and the Building Safety Regulator at:
- multi-occupied residential buildings over 18 metres in height or with at least 7 storeys,
- that need – or may need – remediation work or other mitigations to address fire and structural safety defects, including, but not limited to, unsafe cladding.
In this guidance, ‘unsafe buildings’ is used to refer to the buildings specified above.
The term ‘remediation’ is used in this guidance to refer to the process of remedying fire and structural safety defects, including, but not limited to, external wall systems and their unsafe cladding and components. Successful remediation must bring unsafe buildings to a sustainably safe and liveable condition.
As used in this guidance, ‘permanent remediation’ refers to the remediated state in which no interim measures are required to protect life. ‘Sustainably safe’ refers to buildings that have been permanently remediated and therefore made safe – acknowledging that no building can be made ‘permanently safe’, as further issues may arise at any time.
Interim arrangements (or interim measures) should consist of measures to ensure that residents who need to evacuate are alerted to a fire at the earliest opportunity to enable them to escape safely.
Where remediation is in scope of a government programme, it is the government’s priority that this remediation should progress without delay. Much enforcement work is likely to focus on this type of remediation. However, the decisions of regulators in individual cases must respond to the relative risks and the actual situation before them and must not be skewed by the availability or otherwise of government financial assistance.
1.3.1 A Proportionate approach to Remediation
Where remediation work to address issues with the prevention, control or mitigation of fire is not in scope of the existing Publicly Available Specification (PAS 9980), regulators have discretion to take a proportionate approach to the remediation of fire safety defects. ‘Proportionality’ will have a different meaning for each regulatory purpose, but in general, taking a proportionate approach to remediation seeks to find permanent solutions that will remove or mitigate the fire and structural safety defects at a building, so that residents can be and feel safe in their homes. See 2.3 for further information on proportionality in remediation.
First and foremost, regulators are required to meet their statutory duties under the relevant legislation. Regulators also need to have regard for the individual circumstances and arrangements in their area when carrying out their regulatory activities.
The principles in this guidance can be used by regulators to complement, but not replace, existing guidance. Regulators’ inspection, investigation and enforcement policies should continue to be guided by the principles of the Regulators’ Code. Regulators may therefore find it helpful to consider this guidance alongside other available guidance, including departmental guidance on Remediation Orders. See Annex F for links to other relevant guidance.
The remediation enforcement landscape is complex, comprising of multiple pieces of legislation, wider government interventions and a complex leasehold property ownership system. This section provides context about the regulatory regimes for building safety (see 1.5.1), the funding programmes for remediation (see 1.5.2) and the leasehold system of property ownership (see 1.5.3).
1.5.1 The regulatory regime for building safety
The main legislative building safety regimes in England are the Housing Act 2004, the Regulatory Reform (Fire Safety) Order 2005 (“the Fire Safety Order”, or “FSO”) and the Building Safety Act 2022. This legislation gives regulators powers to inspect and enforce building safety.
| Legislation | Applicable regulator(s) | Scope of legislation | |
|---|---|---|---|
| Housing Act 2004 | Local authority | Residential premises, meaning- a dwelling, Houses in Multiple Occupation (HMO), unoccupied HMOs, any common parts of a building containing one or more flats. | |
| The Regulatory Reform (Fire Safety) Order 2005 | Fire and rescue authority, the Health and Safety Executive, where the building is a construction site, or both if the building is occupied during construction work. | The common parts of residential buildings containing at least two sets of domestic premises. | |
| Building Safety Act 2022, Part 4 | The Building Safety Regulator | Building safety risks in higher-risk buildings (at least 18 metres or 7 storeys in height, and at least 2 residential units). | |
| Building Safety Act 2022, Part 5 | Local authorities, fire and rescue authorities, and the Building Safety Regulator | Building safety risks in relevant buildings (at least 11 metres or 5 storeys in height, and at least 2 residential units). |
For more information on regulators inspection and enforcement powers under their respective legislation, see Annex A.
1.5.2 funding programmes for remediation
The government has put measures in place to make funding available to fix unsafe buildings. It is a top priority for government for the remediation programmes to be completed, and regulators should understand and have regard for how remediation is funded and by whom in their enforcement decisions. (See Annex D for further information on considerations for enforcing remediation.)
A number of major developers have signed a contract with the government to remediate buildings they had a role in developing or refurbishing, even where they no longer own the building.
Where a developer cannot be identified or has not yet agreed to pay to remediate its own buildings, the government has made funding available to pay for work to address life safety fire risks associated with cladding systems at buildings above 11 metres in height. These schemes are the Aluminium Composite Material (ACM) cladding scheme, the Building Safety Fund and the Cladding Safety Scheme.
Funding for any remaining defects not met by a developer or government grant is dealt with in accordance with the leaseholder protections set out in the Building Safety Act 2022. Any costs not recoverable from leaseholders must be met by landlords.
See Annex B for more information on the funding programmes for remediation.
1.5.3 Glossary of key terms
In England, medium and high-rise residential buildings are often owned under a system called leasehold. For ease of reference when navigating this guidance, a glossary of terms relevant to the leasehold system is provided below:
- Accountable Person and Principal Accountable Person (AP/ PAP): an organisation or individual who owns or has a legal obligation to repair any common parts of the building. Each building must have one clearly identifiable AP, known as the PAP. The PAP is usually an organisation, like a commonhold association, local authority or social housing provider, but an individual can be the PAP, for example if the individual is the owner of the building.
- Freeholder: the person who indefinitely owns the land on which a freehold property is built.
- Head lessee: a landlord who leases their property directly from a freeholder. A head lease typically covers the entirety of a building.
- Landlord: a person who owns all or part of a building, and issues a lease to a leaseholder, or to another landlord. Landlords can derive their ownership either by virtue of being the freeholder, by leasing their property from a freeholder, or from leasing from another landlord.
- Leaseholder: a person who has signed a lease agreement with a landlord, giving them the right to occupy their property for a set period of time.
- Relevant landlord: any landlord under a lease or superior landlord at the qualifying time (as defined in Schedule 8 to the Building Safety Act 2022).
- Resident Management Company (RMC): a company which is party to the lease, whose shares are owned by leaseholders. RMCs usually have the repairing obligation for their building.
- Responsible Person: An organisation or individual responsible for fire safety on premises under the FSO. An employer who has some control over the workplace is a responsible person. For other types of premises, a responsible person can be anyone who has control over a premises in connection with carrying out a trade, business or other undertaking, for example, a landlord, manager or occupier; or the owner where this is not applicable. A responsible person ensures fire safety throughout the area of the premises which are under their control, including a requirement to complete a fire risk assessment.
- **Right-to-Manage Company (RTM): a company formed by leaseholders to allow them to take over management of the repair and upkeep of their building, under sections 73-74 of the Commonhold and Leasehold Reform Act 2002. RTMs usually have the repairing obligation for their building. See the government’s guidance for more information on setting up and running an RTM company.
The term ‘landlord’ is used in this guidance to refer to freeholders, head lessees and any other landlords who hold superior leases over all or part of the building. When used in the general sense, the term also encompasses Responsible and Accountable Persons, and people who are responsible for remediation.