5. Annex A: Regulatory regimes

This section summarises regimes for building safety.

This section summarises the following regimes for building safety:

• See 5.1 for local authority enforcement under the Housing Act 2004
• See 5.2 for fire and rescue authority enforcement under the Regulatory Reform (Fire Safety) Order 2005
• See 5.3 for the Building Safety Regulator enforcement under the Building Safety Act 2022 Part 4
• See 5.4 for regulatory action under the Building Safety Act 2022 Part 5

This information is provided for background, and regulators should continue to have regard for existing guidance published on their powers (see 1.4).

To complement this section, you can find further guidance on:

• the use of regulators’ powers in different enforcement scenarios in chapter 6.
• considerations for when to use different powers to compel permanent remediation in non-emergency scenarios in Annex D.
• considerations for when to use different enforcement powers in complex scenarios in Annex E.

5.1 Local authority enforcement under the Housing Act 2004 

Local authorities’ primary building safety enforcement regime is the Housing Act 2004’s system for regulating fire safety in residential premises. The Act ensures that buildings used for housing meet acceptable standards. This includes adequate protection for those in and around the building from fire and structural safety risks. 

5.1.1 Inspection powers 

Section 239 of the Housing Act 2004 provides local authorities with the power to enter a premises and carry out an inspection.

Local authorities use the Housing Health and Safety Rating System (HHSRS) in their inspections to evaluate the risk of hazards causing harm and identify mitigations to appropriately control the known risks. An HHSRS assessment covers 29 prescribed hazards and categorises them by seriousness. This includes fire, flames and structural collapse and falling elements.

To support an HHSRS assessment, inspecting officers exercising their power of entry can take samples of any articles or substances found on the premises, and bring other persons with them (such as qualified experts) for assistance. Local authorities can use these powers to help them assess the building’s external wall system.

As set out in the HHSRS guidance, investigation, sometimes destructive, can be conducted to establish the extent or seriousness of some structural problems. In some instances, it may also be necessary to commission investigations by a structural engineer. 

Local authorities must have regard for the relevant HHSRS guidance, when carrying out housing inspections and assessing hazards (HHSRS operating guidance) and when taking enforcement action following the identification of hazards (HHSRS enforcement guidance).

In 2018, an addendum was published to the HHSRS operating guidance regarding the assessment of high-rise residential buildings with unsafe cladding (HHSRS: assessment of high-rise residential buildings with cladding systems). This addendum is under review.

5.1.2 Enforcement powers 

Following an HHSRS inspection, local authorities have:

• a duty to enforce if they identify hazards at the most dangerous category 1 level,
• a discretionary power to enforce where less serious category 2 hazards are identified.

To discharge their duty to enforce under the Housing Act 2004, local authorities can serve a hazard awareness notice, improvement notice, prohibition order or take emergency remedial action.

Hazard awareness notices: 

• Local authorities can serve a hazard awareness notice where they identify a category 1 hazard (section 28) and/or a category 2 hazard (section 29).  
• A hazard awareness notice advises the party on whom it is served of the existence of a hazard at the premises. 
• The notice must specify the nature of the hazard, the deficiency giving rise to the hazard, the authority’s reasons for deciding to serve the notice and details of any remedial action the authority believes it would be appropriate to take to remedy or mitigate the hazard.  
• There is no penalty if the notice’s recipient does not take the recommended actions. 
• Schedule 1 to the Housing Act 2004 contains provisions on whom a hazard awareness notice (and copies of the notice) should be served on, based on premises type.  

Improvement notices: 

• Local authorities can serve an improvement notice where they identify a category 1 hazard (section 11) and/or a category 2 hazard (section 12).  
• An improvement notice requires the party on whom it is served to take specified remedial action to remove or reduce the hazard by a set time. The time for compliance cannot be less than 21 days from the date of service.  
• Schedule 1 to the Housing Act 2004 contains provisions about whom an improvement notice (and copies of the notice) should be served on, based on premises type.  
• A reduction from a category 1 hazard to a category 2 hazard is the minimum level of action required in an improvement notice, but requirements can extend further. 
• If the respondent fails to complete the works by the specified time, the local authority may wish to prosecute for non-compliance. This may result in the respondent being ordered by the appropriate court or Tribunal to pay an unlimited fine. The respondent will typically be the entity that the notice was served on. Where the entity was a company, directors and officers of that company can also be prosecuted.
• Local authorities can withdraw the improvement notice at any time or extend the compliance time. 
• Local authorities also have the power under Schedule 3 to the Housing Act 2004 to take forward any action and/or works required by an improvement notice themselves, if the respondent has failed to do so by the deadline. Local authorities can take forward works in default with (Schedule 3, Part 1) or without (Schedule 3, Part 2) the landlord’s consent. Local authorities can typically recover costs incurred from the party on whom the improvement notice was served. As it is the responsibility of landlords to fix their buildings, there is no default expectation that local authorities will step in and use their works in default powers to remediate medium and high-rise buildings. There may be some unique cases however, where a local authority might believe this action is appropriate. Where a local authority is considering using their works in default power to progress fire safety remediation in a block of flats, they may wish to discuss the options available to them with the department first.

Prohibition orders:

• Under sections 20 to 27 and 43 to 44 of the Housing Act 2004, local authorities can either issue a prohibition order or an emergency prohibition order.
• A prohibition order comes into force after 28 days of issue. It restricts the use of part or all of a building deemed unsafe and includes details on the required remedial action to make the building safe for re-occupation. Using or permitting use of the premises after a prohibition order has been served constitutes an offence, carrying an unlimited fine and a further fine not exceeding £20 for every day or part of a day they continue to offend after conviction.
• An emergency prohibition order comes into force immediately. It is used on buildings where the local housing authority are satisfied that a category 1 hazard exists that poses an imminent risk of serious harm to the health or safety of any of the occupiers of those or any other residential premises. Non-compliance with the order is not an option, as local authorities restrict access to the building.
• Where the local authority intends to take emergency measures, the duty to consult relevant parties (such as other regulators) applies only so far as it is practicable to do so before taking the action. Partnership working agreements (see 4.1) should include procedures for this.

Emergency remedial action:

• Under section 40 of the Housing Act 2004, if a local authority is satisfied that a category 1 hazard exists that poses an imminent risk of serious harm to the health or safety of any of the occupiers of residential premises, they can take emergency remedial action to remove it.
• Emergency remedial action is defined in Section 40 para 2, and under this power, the local authority can enter the building at any time to make alterations intended to remove or mitigate the hazard(s). Action can be taken against more than one category 1 hazard in the same residential building.
• Under Section 42, local authorities can recover reasonable expenses incurred in taking emergency remedial action.

5.2 Fire and Rescue Authority enforcement under Regulatory Reform (Fire Safety) Order 2005

Fire and rescue authorities’ primary fire safety legislative regime is the Regulatory Reform (Fire Safety) Order 2005 (“the Fire Safety Order”). The Fire Safety Order provides a framework for managing fire safety in multi-occupied residential buildings in England and Wales. Under Article 26, fire and rescue authorities have a duty to enforce the provisions of the Fire Safety Order and any regulations made under it. 

Responsible Person(s) have a duty to fulfil the fire safety requirements under the Fire Safety Order. The Home Office has published guidance (PDF, 513KB) setting out which parties constitute a Responsible Person or duty holder, and their associated responsibilities.

Where a Responsible Person has not complied with a relevant provision, fire and rescue authorities can take enforcement action under the Fire Safety Order to require compliance.  

The Fire Safety Act 2021 clarified that external walls, common parts and flat entrance doors are in scope of the Fire Safety Order. This means that:

• Where a building contains two or more sets of domestic premises, a suitable and sufficient fire risk assessment carried out under the Fire Safety Order must include an assessment of the building’s structure, external walls, common parts and flat entrance doors.
• fire and rescue authorities’ enforcement powers under the Fire Safety Order can be used in respect of external walls.

5.2.1 Inspection powers 

Article 27 of the Fire Safety Order provides fire and rescue authorities with the power to enter a building (at any reasonable time) and carry out an inspection without the use of force.

Fire and rescue authorities typically operate a risk-based inspection programme (i.e., prioritise buildings according to risk and in line with their operational procedures) but can also carry out reactive and targeted inspections when necessary.  

An inspector exercising their power of entry can: 

• Make enquiries to determine whether the provision of the Order has been complied with and identify the Responsible Person(s).
• Require the production of any records and/or plans which are required to be kept under the Fire Safety Order, such as a fire risk assessment. The fire and rescue authority can also inspect and take copies of these records. 
• Take samples of any articles or substances found in the premises to assess their fire resistance and/or flammability. In the case of any article or substance, fire and rescue authorities can cause it to be dismantled or subjected to any process or test. 

5.2.2 Enforcement powers

Where a breach of the Fire Safety Order is found, the fire and rescue authority may decide to take enforcement action. Fire and rescue authorities will have the discretionary choice to serve a notification of fire safety deficiencies or an enforcement notice. 

Notification of fire safety deficiencies: 

• Where a fire and rescue authority determines that a breach does not warrant statutory enforcement action, they may wish to serve a non-statutory notification of fire safety deficiencies on the Responsible Person.
• The non-statutory notification will identify the non-compliance to be addressed, and steps considered necessary to remedy them.
• If the Responsible Person does not make satisfactory progress, the fire and rescue authority may escalate to statutory enforcement. 

Enforcement notices: 

• Under Article 30 of the Fire Safety Order, fire and rescue authorities can serve an enforcement notice on the Responsible Person(s) or relevant duty holder (where the duty holder is responsible for the provision under article 5(3)).
• The enforcement notice will specify the Fire Safety Order provisions that have not been complied with and require the respondent to remedy the failure by a specified date. The timeframe specified for compliance cannot be less than 28 days.  
• The enforcement notice may include directions as to the measures to be taken. Fire and rescue authorities can also withdraw the notice at any time, or extend the compliance time if they so wish.  
• If the respondent fails to comply with the notice, the fire and rescue authority can prosecute. This may result in the respondent being ordered by the appropriate court to pay an unlimited fine and/or receive a maximum prison term of two years. The respondent will typically be the entity that the notice was served on. Where the entity was a company, directors and officers of that company can also be prosecuted.

Prohibition notices:

• Under Article 31 of the Fire Safety Order, fire and rescue authorities can issue a prohibition notice that prohibits or restricts the use of all or part of a premises deemed a threat to life.
• Fire and rescue authorities can serve a prohibition notice if use of the premises creates a risk so serious that use of the premises ought to be prohibited or restricted. The fire and rescue authority’s assessment of this risk will include any factors affecting the means of escape from the premises in the event of fire.
• The prohibition order can take immediate effect if the authority believes there is or will be an imminent risk of serious personal injury. This must be stated in the notice. Otherwise, the notice will take effect from a specified date or time.
• The penalty for continuing to use the premises after the notice has been served is an unlimited fine and/or maximum of two years in prison.
• A prohibition notice may also include measures that the Responsible Person(s) must take to remedy the risk. Fire and rescue authorities may set out options to remedy any particular fire safety defects.

5.3 The Building Safety Regulator and the higher-risk buildings regulatory regime 

Part 4 of the Building Safety Act 2022 creates a new regulatory regime for higher-risk buildings. Section 65 of the Act defines “higher-risk buildings” for the purposes of Part 4 as buildings that are at least 18 metres in height or have at least 7 storeys, and contain at least 2 residential units.

Section 98 of the Building Safety Act 2022 establishes that it is the duty of the Building Safety Regulator to enforce the provisions of Part 4 of the Act and any regulations made under it. 

5.3.1 Registration of higher-risk buildings

Under the higher-risk buildings regime:

• all higher-risk buildings must be registered with the Building Safety Regulator, and
• the requirement to manage fire and structural safety risks is placed on the Accountable Persons.

Accountable Persons are required to assess building safety risks and take all reasonable steps to ensure those risks are mitigated and controlled to a proportionate level.

From April 2024, the Building Safety Regulator started directing Accountable Persons to apply for a Building Assessment Certificate. If the regulator is satisfied that all duties are being complied with, they must issue a Building Assessment Certificate.

5.3.2 Enforcement powers

If the Building Safety Regulator believes that building safety risks are not being managed effectively, they have enforcement powers under Part 4 of the Act to issue a compliance notice, urgent action notice or apply for special measures.

Compliance notices:

• Where the Building Safety Regulator identifies that a landlord has contravened, is contravening or is likely to contravene a relevant requirement under Part 4 of the Act, they can issue a compliance notice requiring the Accountable Persons to take specific steps by a set date.
• This power is provided for under section 99 and section 100.
• The Building Safety Regulator must take reasonable steps to notify the relevant local authority and fire and rescue authority when issuing a relevant compliance notice.
• The penalty for non-compliance is an unlimited fine and/or up to two years in prison.
• Under section 103, Accountable Persons have the right to appeal a compliance notice to the appropriate Tribunal. Lodging an appeal has the effect of suspending the notice pending the outcome of the appeal.

Urgent action notices:

• When a contravention of a Building Safety Act 2022 Part 4 requirement places people in or about the building in imminent danger, the Building Safety Regulator can issue a compliance notice and specify that it is an ‘urgent action notice’.
• In such cases, the Regulator is likely to set the Accountable Person a shorter period of time to rectify the contravention.
• An appeal against the notice will not suspend its effect unless the appropriate Tribunal determines that it should.

Special measures:

• Where there has been a serious failure by the Accountable Person, or a failure on two or more occasions, to comply with their duties under Part 4, the Building Safety Regulator can apply to the First-tier Tribunal for an order to put the building into special measures.
• If special measures are granted, a special measures manager will be put in place to carry out the functions of all Accountable Persons under Part 4 and any regulations made under it. This includes the receipt and spend of service charges and ground rent.

Prosecuting for an offence:

• Under section 101, it is an offence for Accountable Persons to contravene a requirement that places people in or about the building at critical risk.
• Critical risk is defined as a significant risk of death or serious injury arising from a building safety risk.
• The Building Safety Regulator has powers to prosecute directly (without first issuing a compliance notice) if they believe Accountable Persons have committed on offence under section 101.
• If Accountable Persons are found guilty of an offence, they are liable on summary conviction (i.e. magistrates court) or on conviction on indictment (i.e. Crown Court) for imprisonment and/or a fine.

The Building Safety Regulator has issued an enforcement policy statement, describing their regulatory functions and enforcement approach.

5.4 Regulatory action under the Building Safety Act 2022 Part 5 

The Building Safety Act 2022 has strengthened regulators’ and leaseholders’ ability to get unsafe buildings fixed, by providing them with additional remediation tools that can be used to make sure buildings are made safe.   

Under Part 5 of the Act, the Building Safety Regulator, local authorities, fire and rescue authorities, leaseholders, the Secretary of State, and others can apply for remediation orders and remediation contribution orders to compel relevant parties to fix, or pay to fix, their unsafe buildings.

Remediation orders: 

• Under section 123 of the Building Safety Act 2022, interested persons (see above) can apply to the Property Chamber of the First-tier Tribunal for a remediation order requiring a relevant landlord to remedy relevant defects within a specified timeframe. 
• The department has published detailed guidance on how to use and apply for remediation orders. 

Remediation contribution orders: 

• Under section 124 of the Building Safety Act 2022, interested persons can apply to the Property Chamber of the First-tier Tribunal for a remediation contribution order requiring a landlord, developer or an associate to make payments in connection with the remediation of relevant defects.  

Both orders can be used in respect of buildings that are over 11 metres or have at least five storeys, which contain at least two residential units, and at least one relevant defect.  

Relevant defects are defined in section 120 of the Building Safety Act 2022, and are explained in chapter 2 of the remediation order guidance. In summary, a relevant defect is a defect created in the last 30 years from defective workmanship (but not from wear and tear or maintenance issues) that gives rise to a building safety risk. A building safety risk in this context is a risk to the safety of people in or about the building, arising from the spread of fire or the collapse of the building or any part of it.  

So long as certain criteria, as defined in section 120, are met, examples of relevant defects could include but are not limited to: 

• unsafe cladding systems 
• combustible balconies and other external attachments 
• lack of compartmentation between flats 
• defective building foundations 

Regulators should take care to discharge their duty to enforce under their respective legislation, where required, if they wish to use their Building Safety Act 2022 powers. For example, if a local authority has identified a category 1 hazard, they may wish to serve a hazard awareness notice to discharge their Housing Act 2004 duty to enforce, and then apply for a remediation order in parallel.

5.4.1 Assisting leaseholder action under the Building Safety Act 2022 Part 5

Leaseholders also have the power to apply for remediation orders and remediation contribution orders. As set out in section 2.1, it is important for regulators to take a resident-centred approach to regulation. This means that while leaseholders have these powers, regulators should not rely on leaseholders to use their Building Safety Act 2022 powers against landlords who put their safety at risk. It is government’s expectation that, in general, it should be regulators that take action to compel landlords to remediate their unsafe buildings, rather than leaseholders.

Where leaseholders have applied for a remediation order or remediation contribution orders, regulators may receive requests from leaseholders to contribute to their application for either order. It is at regulators’ discretion whether to support a leaseholder’s application, except in specific circumstances, for example where there is a duty under the Freedom of Information Act to disclose information that could be used to support such an application.

Regulators are encouraged to consider providing reasonable assistance to a leaseholder’s application where they:

• have capacity and resource to do so, and
• hold valuable information on the relevant defects present at the building. This may be information from building inspections, fire safety audits or compliance and enforcement action taken – especially where this has not been complied with.

Actions regulators can take to assist a leaseholder’s application include:

• Join the application as an interested party. Regulators may receive requests from leaseholders to join and/or support their application for a remediation order. It is at regulators’ discretion whether to accept an invitation to join an application. In practice, being joined into proceedings may involve the interested person:
  • being subject to Tribunal directions,
  • being directed to produce evidence,
  • attending and participating in Tribunal hearings,
  • making submissions to support the case.

• Contribute to the leaseholder’s case as an expert witness. Regulators could discuss with the applicants if it would be beneficial for them to contribute to their case as an expert witness. This might allow the regulators to submit valuable evidence of the relevant defects and/or the landlords’ recalcitrance. This includes providing a witness statement and perhaps being prepared to give evidence during a Tribunal hearing and be subject to cross examination.

• Share evidence. If regulators have evidence that might be helpful to support an applicant’s case, and are legally able, they may wish to share this with the applicant. Additionally, under Rule 20 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the First-tier Tribunal can order any person to produce any documents in that person’s possession or control which relate to any issue in the proceedings. The use of this power is at the Tribunal’s discretion, but they may direct regulators to present information they hold on the building’s relevant defects.