2. Principles for remediation enforcement
This chapter sets out guiding principles for regulators in the context of remediation of multi-occupied residential buildings.
Landlords have always been responsible for remediating unsafe buildings. Where they fail to do so, regulators play a key role in making sure buildings are made safe. Regulators will determine the regulatory approach to take to ensure buildings are made safe on a case-by-case basis, and that landlords are appropriately managing building safety risks.
The Regulators’ Code seeks to promote proportionate, consistent, and targeted regulation. Regulators should have regard for the code, which sets out several things regulators should do, including:
- carry out their activities in a way that supports those they regulate to comply and grow,
- choose a proportionate approach and avoid imposing unnecessary regulatory burdens through their regulatory activities,
- base their regulatory activities on risk and consider risk at every stage of their decision-making processes, including choosing the most appropriate type of intervention, and allocating their resources where they would be most effective in addressing those priority risks.
The Building Safety Regulator has also set out principles for its enforcement work (proportionality, consistency, targeting, transparency and accountability), in its enforcement policy statement.
This chapter sets out guiding principles for regulators in the context of remediation of multi-occupied residential buildings. It is informed by the principles set out in the Regulators’ Code. These principles will help to inform regulators’ decision-making and ensure they can achieve the best building safety outcomes:
Residents’ needs are at the heart of all remediation. The intended outcome of remediation work is to make residents safer, and their needs should be considered throughout the entire remediation process. Residents should be kept informed and engaged, with the purpose of minimising negative impact where possible.
With residents’ needs in mind, regulators should approach enforcement work with urgency and ensure action by themselves or other regulators is taken as soon as is reasonably possible.
Regulators should ensure that they are easily contactable by residents (see 3.5), and that they engage regularly with residents to share updates and information.
A resident-centred approach to remediation means that, although leaseholders do have the ability under the Building Safety Act 2022 to apply for remediation and remediation contribution orders, it should generally be regulators that take action to compel landlords to remediate their unsafe buildings. Regulators have a number of other enforcement tools at their disposal, as set out in this guidance. Regulators may choose to use remediation or remediation contribution orders if they wish, but it is up to them to select the most appropriate regulatory tool. (See 5.4.1 for further considerations where leaseholders have decided to act – for example by applying for a Remediation Order.)
All residential buildings above 11 metres in England have a pathway to fix unsafe cladding through several funding programmes (see Annex B). Where landlords are failing to undertake works to remediate unsafe cladding or are not progressing works quickly enough, regulators should use the enforcement tools available to them to compel landlords to remediate their buildings and make them sustainably safe.
The Fire Safety Act 2021 clarifies that the Fire Safety Order covers the external walls of multi-occupied residential buildings, and it is therefore beyond doubt that fire and rescue authorities’ enforcement notices may include directions that the Responsible Person (RP) should undertake to remove or mitigate unacceptable structural fire risks from unsafe cladding within a specified period.
There may be cases in which risk mitigating measures can be acceptable as a more proportionate, sustainable alternative to remediation (see section 3.4.1).
Interim measures such as waking watches and fire alarms are sometimes necessary to ensure life safety at a building where there are fire safety defects. However, these measures are normally a temporary solution.
For example, the Simultaneous Evacuation Guidance published by the National Fire Chiefs Council and other partners is clear that where a Waking Watch is used it should only be in place for the shortest period possible and the landlord or building owner should move quickly to install an alarm. There is no excuse for a Waking Watch to be in place for an extended period or for the use of interim measures to be used to either replace or delay remedial works.
The Regulators’ Code states that regulators should take a proportionate approach to regulation and regulatory activity. This means that regulatory activities should not impose unnecessary burdens on those they regulate, and regulators should identify the most appropriate enforcement tool, ensuring that their regulatory actions are reasonable and effective.
One of the key principles of the government’s approach to building safety is to make sure buildings are made proportionately and sustainably safe. The approach aims to deliver a safe level of risk management, whilst preventing unnecessary, expensive works that would be disruptive for people living in the buildings being remediated.
The British Standards Institution (BSI) developed Publicly Available Specification (PAS) 9980 guidance for a more proportionate and consistent assessment of the risk posed by the external wall of a building. A Fire Risk Appraisal of External Wall (FRAEW) to the PAS 9980 methodology that meets scheme requirements is used to identify what, if any, works are required to address the life safety fire-risks associated with cladding and external wall systems.
Regulators should have regard for how remediation is funded and by whom in their enforcement decisions There may also be non-cladding related defects that require remediation, which government is not funding. Regulators will decide when a defect requires remediation, and the work that is required to make it safe, in line with their own legislation and enforcement policies.
Regulators should choose which enforcement tool to use based on several factors, including the level of risk and how likely the landlord is to comply (see Annex D). Communication with other regulators (see 2.4) will inform this decision, and clear enforcement escalation strategies will ensure enforcement action is appropriately increased where it is needed (for example, to deal with non-compliance).
Where landlords are making slow progress or remediation projects are stalled, regulators should choose interventions that will increase the pace of remediation, with the purpose of reducing negative impacts on residents.
To reflect new legislation and ensure they can use the most effective intervention in each case, regulators are expected to keep their operational and enforcement policies under review.
Effective partnership working between regulators (see 4.1 will enable regulators to undertake regulatory action more effectively.
Partnership working agreements between regulators should set out how they will:
- agree a lead regulator (see chapter 4),
- know what actions are being taken, and by which regulator, to avoid duplication and ensure no buildings are missed,
- share and verify building information between themselves to inform their enforcement decisions.