Building a Safer Future – How can councils and their ALMOs best manage the responsibilities?
The draft Building Safety Bill raises important issues for councils with tower blocks and the ALMOs which manage them.
The Accountable Person
The so- called Accountable Person is responsible for important safety functions both before a 'higher-risk building' is occupied and during its occupation. Primarily, the Accountable Person must:
- register higher-risk buildings prior to occupation;
- assess building safety risks and produce Safety Case Reports;
- apply for a Building Assurance Certificate;
- establish a system for the investigation of complaints;
- take all reasonable steps to prevent a major incident;
- appoint a Building Safety Manager; and
- engage with residents about building safety decisions.
The draft Bill (at section 61) provides that the Accountable Person in relation to a higher-risk building is a 'person' who
61(1)(a) holds a legal estate in possession in any part of the common parts (subject to subsection 2 – see below); or
61(1)(b) is under a relevant repairing obligation in relation to any of the common parts.
A person / entity is stated to be under a 'relevant repairing obligation' where "the person is required, under a lease or by virtue of an enactment, to repair or maintain that thing." Importantly, residential tenants are not caught by this simply because they are obliged to use, repair or maintain a property in a tenant-like manner.
This definition of Accountable Person allows for more than one person to be identified as an Accountable Person. The explanatory notes which accompany the draft Bill state that subsection 2 sets out the test for identifying the Accountable Person where there are two or more persons with a legal interest in a higher-risk building. We anticipate that further Government guidance or secondary legislation will be required to supplement this, but we would not typically expect ALMOs to be caught by subsections 61(1)(a) / (b) or (2) as they do not usually have a legal interest in the properties they manage, nor do they have a 'relevant repairing obligation'; their repair and maintenance obligations are imposed by a management contract rather than a lease or an enactment (i.e. a law).
What, then, does this mean for councils and ALMOs? As currently drafted, councils will be the Accountable Person and will need to think about how they navigate this responsibility when it is the ALMO which conducts the day to day management of the relevant buildings and holds/collects/commissions all of the necessary health and safety information. Changes to current management agreements will likely be required to document this co-operation.
Following the Government consultation document in 2019, we had anticipated that corporate Accountable Persons would be required to nominate a board level (or similar) individual to undertake this role (as is required of the Building Safety Manager under the draft Bill). It remains to be seen whether this will be addressed in the anticipated additional guidance / secondary legislation, and will be something for councils to keep under review.
Building Safety Manager
The Building Safety Manager must be appointed by the Accountable Person. The Building Safety manager is required to:
- manage each occupied higher-risk building in accordance with its Safety Case Report;
- provide certain prescribed information to the Building Safety Regulator; and
- operate the complaints system devised by the Accountable Person.
In the council/ALMO context, we would expect councils to appoint their ALMOs as the Building Safety Manager. As mentioned above, where a corporate entity is appointed as Building Safety Manager, there is a requirement that the entity appoints a named individual to discharge the Building Safety Manager role. The person nominated to this role must have "the appropriate skills, knowledge, experience and behaviours to manage their functions".
Links with other legislation
Section 102 of the draft Bill obliges the Accountable Person to co-operate with the Responsible Person under the Regulatory Reform (Fire Safety) Order 2005 (where this is a different person). Councils and ALMOs will need to bear this in mind, as many ALMOs act in this capacity on behalf of councils.