7. Annex C: Considerations for determining a lead regulator
This information is provided to support regulators to understand which legislative regime(s) may be best equipped to deal with different enforcement cases.
As set out in chapter 4, regulators should agree partnership working agreements between themselves at local level. These agreements should form the basis for triaging and deciding which regulator will lead on a case and conduct the initial inspection. There should be no doubt which regulator is leading on each case.
Tables 1 and 2 in chapter 4, broadly set out which regulator’s respective legislation will apply at a building, depending on:
- the height of the building,
- the location of the defect,
- the defect type,
- the legislative regime that best addresses the defect type.
This Annex provides information on how these factors relate to regulators’ powers under their respective legislation (the Housing Act 2004, the Fire Safety Order and the Building Safety Act 2022 Part 4). This information is provided to support regulators to understand which legislative regime(s) may be best equipped to deal with different enforcement cases.
Regulators may wish to use the tables in chapter 4 and information in this annex as a starting point to identify which regulator may have the most appropriate inspection and enforcement powers to take action at an unsafe building.
The legislative regimes apply to buildings of different heights. Regulators may wish to consider the height of the building when deciding which authority is best placed to be the lead regulator.
7.1.1 Buildings over 18 metres in height or with at least 7 storeys
There are three main regulatory regimes which apply to buildings that are over 18 metres in height or have at least seven storeys. These are the Housing Act 2004, the Fire Safety Order and the Building Safety Act 2022 (see chapter 4).
The Building Safety Regulator is the regulator for higher-risk buildings that are over 18 metres in height or have at least seven storeys. The Building Safety Regulator may typically lead on enforcing safety in high-rise residential buildings. However, this will be assessed on a case-by-case basis and the BSR will agree with other regulators who the lead regulator is in each case.
There is a projected five-year transition period in which the BSR will assess all high-rise buildings for the Building Assessment Certificate for the first time. While the BSR does this, local authorities and fire and rescue authorities will continue to play a role in enforcing building safety in higher-risk buildings, and there may be some cases where a local authority or fire and rescue authority takes enforcement action at a higher-risk building.
As set out in chapter 4, regulators should agree a lead regulator for each building, considering the facts on a case-by-case basis.
In line with the principles set out at chapter 4, there may also be cases where the Building Safety Regulator coordinates, as the lead regulator, a multi-agency enforcement approach with other regulators to make sure relevant persons are remediating higher-risk buildings, and the use of different enforcement regimes would result in a holistic outcome for the building. The regulator may also make formal requests for support from local regulators, where appropriate.
7.1.2 Buildings between 11 and 18 metres IN HEIGHT
Local authorities and fire and rescue authorities’ compliance and enforcement powers under the Housing Act 2004 and Fire Safety Order apply to multi-occupied residential buildings of all heights.
The Building Safety Regulator has no powers or duty to inspect or enforce remediation in medium rise residential buildings between 11 and 18 metres.
It will therefore be for local authorities and fire and rescue authorities to decide between themselves, who is leading where the building is between 11 and 18 metres.
The legislative regimes extend to and deal with different parts of the building. Regulators may wish to consider where the defects are located, when deciding which regulator should lead on the case. The Local Government Association’s principles for effective regulation of fire safety in flats, also provides guidance on how the Housing Act 2004 and Fire Safety Order relate to different defects.
7.2.1 Non-domestic parts
The Housing Act 2004, the Fire Safety Order and the Building Safety Act 2022 Part 4 powers all extend to the non-domestic parts of a flat block. Non-domestic parts of a residential block of flats typically include, but are not limited to:
- communal stairways
- corridors
- hallways including fire doors and lifts
- lobbies and reception areas
- the building’s foundation
- structure and external walls
- car parks and bin storage
- doors leading into communal areas such as flat entry doors, and
- fire exits and escapes.
7.2.2 Domestic parts
The domestic parts of a flat block are typically the building’s individual dwellings (i.e., individual flats owned by leaseholders):
- The Housing Act 2004 and the Building Safety Act 2022 Part 4 powers apply to the domestic parts of a flat block.
- The Fire Safety Order duties do not extend to the domestic parts of the building.
Action by a local authority or the Building Safety Regulator (if it is a higher-risk building) may therefore be more appropriate where there are concerns about building safety in individual dwellings.
The Building Safety Regulator’s powers extend only to those matters which concern the spread of fire (i.e. a fire spreading from one compartment to another within the building or from inside the building to the outside of the building) or structural failure. The Building Safety Regulator will not normally intervene where issues are related only to fires that would be contained within the individual unit.
7.2.3 Compartmentation issues affecting the common parts
The Housing Act 2004, the Fire Safety Order and the Building Safety Act 2022 Part 4 can all be used to deal with breaches in compartmentation that affect the common parts of a multi-occupied residential building. This includes compartmentation issues between flats and the common parts of the building (e.g., flat front doors leading into the common parts), and any related fire doors.
Where the building is in scope of the higher-risk building regulatory regime, the Building Safety Regulator may be the most appropriate authority to lead, and will work with other regulators to determine if this is the case.
Where the building is not in scope of the regime and there are breaches in compartmentation that affect the means of escape, the Housing Act 2004 or Fire Safety Order may be an appropriate enforcement mechanism to address the problem.
7.2.4 External walls
For fire and rescue authorities:
- The Fire Safety Act 2021 clarifies that the Fire Safety Order covers external walls of a multi-occupied residential building.
- If a Responsible Person is failing to produce a suitable and sufficient fire risk assessment of the building including its external walls, fire and rescue authorities can serve an enforcement notice on the Responsible Person.
- Fire and rescue authorities may be the most appropriate regulator to lead where there is a need to obtain or demand the production of a fire risk assessment including of an external wall system. Local authorities do not have powers to compel the production of a fire risk assessment.
- A Fire Risk Appraisal of External Walls (FRAEW) conducted to the PAS9980 industry standard, is used for applications to government funding schemes (see Annex B). A FRAEW will contain recommendations about remedial work required to address risks associated with the external wall system. Whilst fire and rescue authorities can compel the production of a Fire Safety Order compliant assessment of a building’s external walls, they cannot compel the production of a PAS9980 standard FRAEW.
- Fire and rescue authorities also have powers under Article 27 of the Fire Safety Order to enter a premises – if permitted by the occupier or as part of a joint inspection or multi-disciplinary team – in order to inspect the external wall systems. These include the power to take samples to assess their fire resistance and/or flammability.
- In some cases, it may be appropriate for a fire and rescue authority to take the lead and assess a building’s external wall system under the Fire Safety Order – subject to partnership working agreements.
- This may be appropriate where, for example, the fire and rescue authority has a greater level of expertise than the other regulatory body where an external wall system is especially complex. Some fire and rescue authorities may have suitably qualified fire engineers in their team with the expertise to join an inspection and support a competent assessment of an external wall system.
For local authorities:
- Local authorities’ inspection and enforcement powers under the Housing Act 2004 also cover a building’s external wall systems.
- The HHSRS operating guidance for cladding systems (PDF, 309KB) confirms that in assessing the hazard of fire in the common parts, the local authority inspector should also consider the building’s external walls and the presence of any external cladding system.
- Local authorities can also request information about the materials in the external wall system when exercising their powers of entry.
- If a local authority does not have in-house personnel with the expertise to assess various types of external wall systems, they may wish to use their new burdens funding from the department (where applicable) to bring in an external fire engineer to advise and join the inspection. The power to do so is explicit in section 239(8) of the Housing Act 2004.
- Local authorities can also contact the Joint Inspection Team if they need assistance to assess a building’s external wall systems.
- The Joint Inspection Team is hosted by the Local Government Association and funded by the department. They are a multidisciplinary team with fire engineers, building control surveyors and environmental health professionals who assist local authorities to inspect flat blocks over 11 metres in height using the Housing Act 2004. This includes assessing external wall systems and all types of unsafe cladding. Following the inspection, the Joint Inspection team will provide the ‘host’ council with a detailed report of their findings and recommendations.
For the Building Safety Regulator:
- The Building Safety Regulator’s assessment of buildings in scope of the higher-risk buildings regime will include assessing whether the Accountable Persons have sufficiently identified and managed building safety risks in the external wall system.
- The Building Safety Regulator started assessing buildings from Spring 2024. It is estimated it will take the Regulator around five years to assess the performance of the Accountable Persons for all existing buildings for the first time, alongside any new buildings that come into scope in the same period.
- All buildings with un-remediated ACM cladding will be assessed in the first year of implementation, assisted by local authorities and fire and rescue authorities through regional multi-disciplinary teams.
The legislative regimes apply to different types of building safety defects. Regulators may wish to have regard for the type of defect(s) present, when deciding which enforcing authority is most appropriate to lead the case.
If all identified or suspected defects do not fall under one legislative regime, more than one regulator may take regulatory action at the building. Partnership working agreements may contain arrangements for taking joint action with another regulator.
7.3.1 Fire safety issues
The Housing Act 2004, the Fire Safety Order and the Building Safety Act 2022 Part 4 can all be used to assess and enforce fire safety issues in multi-occupied residential buildings:
For local authorities:
- fire is one of the 29 prescribed hazards they must assess using HHSRS.
- in relation to fire safety, the Housing Act 2004 is primarily focussed on the risk to residents from fire in individual dwellings and their escape routes, in addition to ensuring the reduction of risk in the building as a whole.
For fire and rescue authorities:
- the Fire Safety Order provides a framework for regulating fire safety in the common parts of multi-occupied residential buildings.
- it is focussed on the management of fire risks in the building and the risk to residents’ safety from a fire in the building, except within individual dwellings.
For the Building Safety Regulator:
- as the building control authority for the higher-risk buildings regime, the Building Safety Regulator has a duty to ensure Accountable Persons are complying with relevant Part 4 requirements, including requirements to identify and managing building safety risks in their property.
- the relevant definition of building safety risk under the Building Safety Act 2022 includes the risk to the safety of people in or about a building arising from the spread of fire (section 62).
7.3.2 Structural safety defects
For fire and rescue authorities:
- the Fire Safety Order’s duties do not apply to structural safety issues that do not create a fire safety risk.
For local authorities:
- structural collapse and falling elements are one of the hazards prescribed under HHSRS.
- External structural hazards can range from falling slates, eaves gutters, bricks or windows, to the collapse of external walls.
- Internally, it could include floor, ceiling and staircase collapse.
- it may be appropriate for them to lead and conduct the initial inspection where there are structural as well as fire safety issues present.
For the Building Safety Regulator:
- the relevant definition of building safety risk under the Building Safety Act 2022 includes the risk to the safety of people in or about a building arising from structural failure (section 62).
- it may be appropriate for the Building Safety Regulator to lead where there are structural safety issues at a building in scope of the higher-risk buildings regime.
7.3.3 Insufficient smoke detection and/or or fire alarm systems
The installation of smoke alarms, or automatic fire detection and alarm systems, can significantly increase the level of safety by automatically giving early warning of fire.
For fire and rescue authorities:
- the Fire Safety Order regulates the management and maintenance of fire safety measures such as smoke detection and fire alarm systems in the communal areas.
For local authorities:
- the HHSRS operating guidance confirms that in assessing the hazard of fire in the building’s common parts and individual dwellings, local authorities should consider the: i) functioning and maintenance of the smoke control, and ii) automatic fire detection and alarm systems.
- the operating guidance also confirms that where the building has interim fire safety measures such, as waking watches, these should not be considered in the hazard assessment under the HHSRS. HHSRS focuses on the physical structure of the building – not temporary precautions.
For the Building Safety Regulator:
- their powers under the Building Safety Act 2022 Part 4 extend to ensuring Accountable Persons have sufficient smoke detection and fire alarm systems in place.
7.3.4 Doors to flats that are not appropriate fire resisting doors
Entrance doors to dwellings should be made of appropriate materials and properly fitted, and, where appropriate fitted with self-closers, to limit the possibility of the fire spreading into common parts.
The Housing Act 2004 and the Fire Safety Order powers can all be used in relation to flat front doors that lead to the common parts of the building.