8. Annex D: Considerations for enforcing remediation in non-emergency scenarios
Regulators decide what enforcement action to take on a case-by-case basis. Regulators may wish to have regard for the considerations in this annex, when determining what action may be appropriate and proportionate in a specific case.
These considerations are intended to support effective decision making and are not a prescriptive approach that regulators must follow. Local authorities, fire and rescue authorities, and the Building Safety Regulator should continue to have regard for the Regulators’ Code and their own enforcement policies.
Typically, enforcement action will be determined by which regulator is leading the case and undertaking regulatory activity. If a regulator has identified non-compliance within their regulatory regime, they may have a duty to take enforcement action. A regulator’s duty cannot be transferred onto or discharged by another enforcing authority, which is why in some cases more than one regulator may have a duty to take enforcement action under their respective regimes.
There may also be cases where regulators wish to exercise their powers under Part 5 of the Building Safety Act to apply for a remediation order or remediation contribution order. Following the introduction of the Building Safety Act 2022, regulators should have updated their enforcement policies to include how they intend to use remediation orders and remediation contribution orders. Regulators may wish to use the considerations below to inform this.
When deciding on the most appropriate enforcement power to use, regulators may find it helpful to consider the following factors in conjunction with another:
Under the Regulators’ Code, regulators need to base their regulatory activity on risk. This includes when choosing the most appropriate type of intervention.
8.2.1 relatively low risk defects
Where the risk associated with the defect is relatively low, it may be appropriate and proportionate for regulators to use their non-statutory compliance enforcement tools.
For example, where a local authority identifies less serious hazard at a building (for example, a category 2 hazard), they may wish to first issue a hazard awareness notice. An advantage of a hazard awareness notice is that it affords the respondent more flexibility to act on the local authorities’ recommendations, without a mandatory deadline. This may be proportionate to address less serious fire and structural safety defects. However, it is good practice for the authority to monitor whether works have been carried out following a hazard awareness notice, otherwise it would not be fulfilling its purpose.
Similarly, fire and rescue authorities may wish to use a Notification of Fire Safety Deficiencies where there is minor non-compliance with the Fire Safety Order. A Notification of Fire Safety Deficiencies may be appropriate for low risk remediation cases, as it does not carry a penalty for non-compliance and relies on the respondent working with the regulator to achieve compliance.
8.2.2 Higher risk defects
Where the risk and urgency of remediating a defect is greater, regulators may use their more statutory powers such as:
- improvement notices (local authorities)
- enforcement notices (fire and rescue authorities), or
- compliance notices or urgent action notices (the Building Safety Regulator).
These powers are useful to address more serious risks, as they allow regulators to require action by a specified time. Regulators may also seek to prosecute for non-compliance.
The Building Safety Act 2022 Part 5 powers (remediation orders and remediation contribution orders) may also be appropriate tools where the risk is higher.
Where there is an imminent and credible risk to life due to the severity of the defects, regulators may wish to use their emergency powers (see Annex E).
The government expects landlords to remediate their buildings without delay. The length of time that constitutes an unreasonable delay will depend on the case. Regulators can use their evidence gathering powers and engagement with landlords and other parties, to establish the length and cause of a delay.
Where the building is in a government fund, the reasonableness of a delay will typically depend on:
- when the cladding was discovered,
- how long the building has been in the fund,
- when the government funding scheme opened, and
- the reasons given by the responsible party for the delay.
See 9.4 for enforcement considerations where buildings are stalling in government remediation programmes.
8.3.1 using statutory notices to address delays
Where remediation work has been delayed for an unreasonable period of time, it may be appropriate for regulators to use their more severe enforcement powers such as:
- improvement notices (local authorities),
- enforcement notices (fire and rescue authorities) or
- compliance notices or urgent action notices (the Building Safety Regulator).
Statutory notices are a serious and effective enforcement action to accelerate remediation progress. The severe penalties they carry for non-compliance should compel remediation work by a mandated deadline.
Regulators should be aware that in some cases, the issuing of a statutory notice may follow a multi-staged approach. Regulators can issue, vary and withdraw notices. Regulators may also need to respond to appeals against the notice and/or take further steps if the respondent fails to comply in full or part. For example, regulators may choose to prosecute, extend the current notice (where they have powers to do so under their legislation) or serve a new notice.
Regulators’ enforcement policies may wish to account for the fact that some egregious actors may take advantage of the multi-staged approach and use the various stages as opportunities to obfuscate and delay remediation.
8.3.2 using action under the Building Safety Act 2022 part 5 to address delays
Regulators may also consider using their powers under the Building Safety Act 2022 Part 5 to apply for a remediation order or remediation contribution order.
There is no time threshold a landlord’s inaction must cross for a remediation order to be bought against them. Regulators can apply for a remediation order as long as the case meets the application criteria.
In some cases, remediation orders may be an effective route where remediation work is delayed, as:
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If respondents do not want a remediation order made against them, they have to engage with the process from the start and present a defensive case to the First-tier Tribunal. Placing the onus on the respondent to engage can help drive remediation progress from the date the application is made against them.
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Tribunal decisions are made public. Remediation orders can generate public and reputational pressure on respondents to accelerate remedial work. The threat of a Tribunal order and public hearing process may – in some cases – be enough to compel the respondent to progress remedial works following an application and resolve the issue without litigation.
As set out in the Regulators’ Code, regulators should recognise the compliance record of those they regulate when deciding on their enforcement approach.
If the landlord and/or other relevant parties are engaged in the process and the regulator has reason to believe they would comply with enforcement action, they may wish to use their non-statutory powers, and work with the landlord to achieve compliance.
In some cases, regulators may have concerns that the intended respondent would not comply with regulatory action. This may be the case where, for example, the landlord has a history of regulatory non-compliance and/or has failed to engage with the regulator, despite opportunities to do so.
8.4.1 considerations for Issuing statutory notices
Improvement notices, enforcement notices and compliance notices all carry potentially substantial penalties for non-compliance. In many cases, a statutory notice and the threat of these penalties may be sufficient to compel a stalling landlord to fix their building.
However, egregious actors - especially those with a history of non-compliance – may seek to obfuscate the process and not engage with the regulator or carry out the works required in a notice.
Local authorities and fire and rescue authorities can formally force respondents to engage with an improvement notice or enforcement notice once the compliance date has passed, by escalating the case to prosecution if appropriate.
8.4.2 Considerations for regulatory action under the Building Safety Act 2022 part 5
Remediation orders are also a compelling action for recalcitrant landlords to comply with and have the strategic benefit that respondents must engage with the process and present a defensive case to the First-tier Tribunal if they do not wish for an order to be made against them.
In some cases, the threat of a Tribunal order and public hearing process may compel the respondent to proactively engage in the process, start progressing remedial works and even resolve the case without the need for litigation. Remediation orders may therefore be a particularly helpful tool where there are concerns about a respondent’s likelihood to comply with regulatory activity.
In some cases, regulators may also wish to use their Building Safety Act 2022 Part 5 powers and apply for a remediation order or remediation contribution order, following non-compliance with previous enforcement action. For example, if a landlord has failed to comply with a statutory notice, regulators may wish to prosecute for non-compliance and/or apply for a remediation order or remediation contribution order in parallel. This may ensure the landlord is made fix, or pay to fix their building, and cannot just accept a penalty for non-compliance.
In some cases, a lack of funding may cause remedial works on a building to be delayed. Annex B sets out the funding routes available for remediation.
There may be cases where remediation is delayed because a landlord or other relevant party:
- fails to apply for government funding they are eligible
- unreasonably stalls in one of the government’s funding schemes
- unreasonably refuses to or delays signing the grant funding agreement which allows government funding to be released
- fails to provide the funding they are liable for under the Building Safety Act 2022
Where remediation is stalling for one of the above reasons, initial regulatory enforcement action may focus on compelling the landlord or other relevant party to take forward remedial work. This could be achieved by serving a statutory notice. This action may incentivise the relevant party to provide or apply for funding.
If funding remains a blocker following initial action, regulators may wish to consider applying for a remediation contribution order to:
- formally enforce a landlords cost liability, and/or
- pursue a developer or an associate who has the necessary capital