The draft Building Safety Bill has been published and landlords have been given a clearer picture of how the new building safety regulatory environment will look. In continuing preparations, this article looks at the concept of the "Accountable Person", who or what is it? And what is its role in the new regime?
A key factor that has dominated discussions on the failings that led to the Grenfell Tower fire is the fact that no one person had assumed responsibility for the fire and structural safety of the building block. The Hackitt Report "Building a Safer Future" (May 2018) therefore set out recommendations for a dutyholder regime that would ensure - at all stages in a building's design, development and operation – a "person" was identified as responsible for the management of fire and structural risks and obligated to take appropriate steps to mitigate them, amongst other duties. The Accountable Person is the dutyholder in the occupation phase of a higher-risk building.
Who is the Accountable Person?
The definition of the Accountable Person in the draft Bill is not straightforward. It is defined as the "person" who either has the legal estate in possession of, or is under a repairing obligation, for any of the common parts of the building (which includes the exterior). The draft Bill further provides a test to ascertain who the Accountable Person is in scenarios where there is more than one person who holds a legal estate in possession in the common parts or any part of them. It further envisages that a management body may be designated the Accountable Person where repair and maintenance obligations have been imposed on it .
The Secretary of State has reserved the right to make regulations to amend the definition where there is more than one Accountable Person in a higher risk building. This secondary legislation is likely to provide useful clarification. We have also been promised guidance on other difficult issues surrounding the identity of the Accountable Person, such as identifying the Accountable Person in complex ownership structures, what happens if the Accountable Person goes insolvent, or the impact of the obligations on an Accountable Person comprising minority shareholding structures.
Local authorities and Registered Providers of social housing need to consider how the dutyholder obligations of the "Accountable Person" function will be incorporated within the governance framework of their organisations. These obligations may well require a designated person or team within the organisation to take on direct control of the role/dutyholder obligations. MHCLG's consultation paper of June 2019 envisaged that landlords should identify, at Board level, a person responsible for building safety across the portfolio of higher-risk buildings, this is missing from resulting draft Bill, but does go to highlight the envisaged seniority at which the building safety regime needs to be addressed, discussed and discharged.
What will it do?
The Accountable Person must register a higher-risk building with the Building Safety Regulator (the Regulator) and apply for the Building Assurance Certificate prior to any actual occupation of the new building (including dealing with any conditions of the Certificate). This raises significant challenges for the Accountable Person (and its Building Safety Manager) for existing buildings as they will need to apply for the certificate during the envisaged transitionary phase of the new regime (the length of which is likely to be determined by the Regulator) to avoid breaching thet ensuing legislation. This is likely to involve intrusive surveys, significant data gathering, making the case for safety for each individual building, drafting the Resident Engagement Strategy and liaising with the Regulator.
The Accountable Person's overarching responsibility during the occupation stage is to understand the fire and structural risks in relation to a building, and take appropriate steps to mitigate and manage those risks on an ongoing basis.
In practice, this will primarily be discharged by its appointment of a "competent" Building Safety Manager (BSM) who will be responsible for carrying out the required day to day building safety functions.
The Accountable Person cannot sub-contract its overarching responsibility and therefore ensuring the BSM's "competency" on an ongoing basis will be essential. The Accountable Person will need to "understand" the risks identified in the safety case and instruct the BSM accordingly. This will require continuous communication and an active relationship between the Accountable Person and BSM, and a "hands-off" approach by the Accountable Person is unlikely to be effective or acceptable to the Regulator.
The Accountable Person has significant obligations and duties to discharge as the dutyholder in occupation. Although the daily regime will be discharged by the BSM, it will be incumbent on the Accountable Person to adopt a pro-active approach to ensuring that fire and safety risks are effectively identified, mitigated or managed. Harsh sanctions attach to serious failures of these obligations and it is therefore essential that in scope organisations give early consideration as to their governance and vires structures; training requirements; and how to articulate their building safety objectives across their businesses, down their supply-chains and to their residents.
