The last few months have seen a flurry of parliamentary activity on the Draft Building Safety Bill (the Bill). First published on 20 July 2020, the Bill will reform the building and fire safety system and have a fundamental impact on the way the construction industry operates. The Bill addresses the remediation work needed to make existing buildings safe and widens liability for building owners, developers of those buildings and product manufacturers. It will also change the way that buildings are designed, planned and constructed through the implementation of the "golden thread" policy, first proposed by Dame Judith Hackitt (see the recommendations of Independent Review of Building Regulation and Fire Safety and the Building Regulations Advisory Committee (BRAC): Golden Thread report of 27 July 2021) and the new gateway regime (gateway one of which is already in force).

Recently announced government amendments to the Bill require the industry to propose solutions to the building safety crisis that has affected multiple leaseholders across the UK. Discussions between the industry and government on those solutions are ongoing.

The Bill is in the final stages of review in the House of Lords and, with Royal Assent expected to be given this summer, many in the industry are taking prudent steps to prepare for its implementation. For guidance on how the Bill could affect your business, get in touch with one of the Key Contacts.

Quick Links

  1. The Building Safety Bill – recap of aims
  2. Progress of the Bill through Parliament
  3. Government amendments to the Bill
  4. DLUHC Committee inquiry into building safety, funding and remediation
  5. New government factsheets published (23 March 2022)
  6. Government discussions with the industry on proposed solutions
  7. Procurement Guidance on improving building safety
  8. Latest ISSG report – change of culture needed
  9. Related legislation and guidance
  10. EWS1 Building safety forms and introduction of PAS 9980:2022
  11. The Building Safety Fund (BSF)
  12. Welsh approach to building safety – overview
  13. Scottish approach to building safety – overview

 

The Building Safety Bill – recap of aims

An overview

  • Following the Grenfell Fire of 14 June 2017, Dame Judith Hackitt was appointed to lead and, in 2018, published the Independent Review of Building Regulation and Fire Safety setting out her recommendations (the Hackitt Review). The government consulted on its proposals for improving safety and minimising the risk of fire in high-rise buildings in its Building a Safer Future consultation (from 2 April 2020). The draft Bill was first published on 20 July 2020 and its provisions were heralded by the Ministry of Housing, Communities and Local Government Committee (MHCLG) as "the biggest changes to building safety in nearly 40 years".
  • The Bill now comes under the sponsorship of the Department for Levelling Up, Housing and Communities (DLUHC), (formerly the MHCLG), under the leadership of Secretary of State, Mr Michael Gove. Its aim is to improve building safety regulations, clarify the regulatory system and make residents safer in their homes. Key features include:
    • substantial changes to the regulatory building safety framework by means of amendments to the Building Act 1984. New measures include the creation of three "gateways" to manage and control risk at key stages in the design, planning and construction of high risk buildings. (The first gateway has already been launched);
    • a new Building Safety Regulator who will sign off works at key stages in the building process;
    • new obligations that will apply throughout the life cycle of a building;
    • new roles to manage buildings at higher risk;
    • competency requirements for those involved with buildings;
    • enforcement processes in the event of a breach;
    • a legislative framework to protect buyers of new-build homes enabling secondary legislation to create a new homes ombudsman scheme;
    • changes to the construction products regime;
    • a £1 billion Building Safety Fund to remove dangerous cladding from high-rise buildings (which has already been established);
    • improved access to claims under the Defective Premises Act 1972, not least by lengthening the periods within which claims can be brought; and
    • new measures to hold the industry accountable for remediation works.
  • Further information on the background to the Bill can be found in the Grenfell Tower Fire: Background (House of Commons Library, 20 January 2020). The latest version of the Bill is available here: https://bills.parliament.uk/bills/3021.

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Progress of the Bill through Parliament

When will the Bill's provisions come into force?

  • In January 2022, Mr Gove proposed new amendments to the Bill as summarised below. The Bill is progressing through Parliament and has just completed the Report Stage of the House of Lords. Current indications are that the Bill will receive Royal Assent in summer 2022.
  • The government's Outline Transition Plan setting out its plan for implementing the new regime was published on 5 April 2021. An infographic showing the timetable for implementation of theBill'sprovisions following Royal Assent can be found here. It sets out a useful guide to the expected commencement of the Bill's provisions.

Highlights of the Bill's progress through Parliament

  • The Bill was introduced into Parliament on 30 June 2021 and completed its progress through the House of Commons on 19 January 2022. (See the round-up of Parliamentary activity here: Lords examines Building Safety Bill at report stage.) The latest version of the Bill can be found here.
  • On 10 January 2022, the government announced its intention to amend the Bill to protect leaseholders from the costs of building safety remediation and require the construction industry to pay for the remediation works needed. (For more information, see Government amendments to the Bill.) The third reading in the House of Commons was held on 19 January 2022.
  • The House of Lords Library Briefing on the Building Safety Bill, which was published on 28 January 2022, explains the history of the Bill's progress through the House of Commons and the new government policy to building safety set out in the Bill. Additional information was published in the House of Lords Library, Leaseholders: fire and building safety (28 October 2021).
  • At the Second Reading stage in the House of Lords (2 February 2022), a number of changes were proposed for Committee Stage to reflect the government's announcement of 10 January 2022 including support for leaseholders living in unsafe flats; and the proposed imposition of legal obligations on developers and cladding manufacturers unless industry proposals were made. (See Hansard: Building Safety Bill, Volume 818 debated on Wednesday 2 February 2022.)
  • Following the announcements made on 10 January 2022, the government published amendments to the Bill on 14 February 2022. The amendments aimed to enshrine in law both the government's promised protections for leaseholders and its powers to penalise industry players who do not cooperate in finding a solution for the building safety crisis.
  • The House of Lords Committee sittings took place on 21, 24 and 29 February 2022 during which the Lords scrutinised the Bill and the proposed amendments on a line-by-line basis. The final day of Committee Stage took place on 2 March 2022. The line-by-line examination focused on amendments in clauses 128 (Building industry schemes), 129 (Building industry schemes: supplementary), 133 (Building liability orders: associates) and 135 (Duties relating to work to dwellings etc.) of the Bill.
  • The House of Lords debated and voted on amendments to the Bill in the report stage (the line by line examination) on 29 March 2022.The amendments discussed covered clauses 1, 3, 4, 5, 11, 12, 20, 29, 31, 41, 47, 57, 60, 74, 79, 80, 95, 120, 129, 130, and 136 of the Bill. As at the time of writing, the updated Bill was still due to be reprinted and published.
  • The Third Reading, regarded as the "tidying up" stage of the parliamentary process, was scheduled for 4 April 2022.

Concerns highlighted by the Delegated Powers and Regulatory Reform Committee (DPRRC)

  • As part of the process of scrutinising the Bill in the House of Lords, the Delegated Powers and Regulatory Reform Committee (DPRRC) raised concerns on three clauses in the Bill (see The Delegated Powers and Regulatory Reform Committee, HL Paper 158 on the Building Safety Bill; Judicial Review and Courts Bill; Office for Demographic Change Bill [HL] (10 February 2022):
    • clause 12 enables government ministers to change or abolish the committees to be set up under clause 9 to 11 of the Bill (namely, the Building Advisory Committee, the Committee on Industry Competence and the Residents' panel). The DPRRC considers that clause 12 "contains an inappropriately wide delegation of power in so far as it allows Ministers to repeal clauses 9 to 11";
    • the widely drafted clause 46 of the Bill which enables Ministers to amend sections 5 (Exemption of public bodies from procedural requirements of building regulations) and 54 (Giving, acceptance and effect of public body’s notice) of, and Schedule 4 to, the Building Act 1984 (Provisions Consequential Upon Public Body’s Notice). The DPRRC recommends that further information be sought on the government's intentions for the regime relating to those using public bodies' notices; and
    • Schedule 11 of the Bill which creates a power for the Secretary of State to make regulations in relation to the marketing and supply of construction products placed on the UK market. The first, but not subsequent, regulations must be made under Parliament's "affirmative procedure" (i.e. they must be actively approved by both Houses of Parliament). The DPRRC recommends that the affirmative procedure apply to all regulations made under Schedule 11 paragraph 10(1).
  • Lord Greenhalgh, Minister of State for Building Safety and Fire at DLUHC, responded to the above matters in a letter to the Rt Hon. the Lord McLoughlin CH, Chair of DPRRC in the Building Safety Bill: Government Response HL Paper 168 on 7 March 2022. The letter explained the government's position but added that further thought would be given to reassure the DPRRC on the issues highlighted. For example, on clause 12, the government believes the three Committees are the right ones for the near future. However, this Bill is intended to provide a structure for long-term improvements to the building regulatory system and the government wants the Bill to provide sufficient flexibility for the Building Safety Regulator to be able to adapt its Committee structure to changing circumstances.

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Government amendments to the Bill

Government proposes amendments to the Bill

(10 January 2022)

  • On 10 January 2022, Mr Gove wrote to the construction industry to highlight the plight of leaseholders saddled with cladding bills for "problems they did not cause" and to warn developers that they must pay to fix the cladding crisis. He gave developers until early March 2022 (which has since been pushed back to late March 2022) "to agree a fully funded plan of action" (see the press release of 10 January 2022 and Mr Gove's speech to the House of Commons on 10 January 2022). Mr Gove wants their agreement to progressing "all necessary remediation work at pace – prioritising those with greatest risks first and in all cases finding the quickest and most proportionate solution to make buildings safe". In addition, he wants them to: "make financial contributions to a dedicated fund to cover the full outstanding cost to remediate unsafe cladding on 11-18 metre buildings, currently estimated to be £4 billion; fund and undertake all necessary remediation of buildings over 11 metres that they have played a role in developing; and provide comprehensive information on all buildings over 11 metres which have historic safety defects and which they have played a part in constructing in the last 30 years".
  • Mr Gove acknowledged that the government must take responsibility for the failures that led to the Grenfell Tower fire and drew attention to the government's financial provision through the ACM remediation programme and the Building Safety Fund (BSF). He also acknowledged that some developers have already taken action to fund remedial works. However, he added that "too many other [developers] have failed to live up to their responsibilities", and warned that the government will have to "impose a solution in law" if those others do not step up. Such measures could include: restricting access to government funding and future procurements, using planning powers and pursuing companies through the courts.

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DLUHC Committee inquiry into building safety, funding and remediation

DLUHC committee consults on the proposed amendments to the Bill

  • On 19 January 2022, the DLUHC Committee launched an inquiry into building safety, funding and remediation to review the proposed amendments to the Bill of 10 January 2022. The inquiry took evidence from a range of stakeholders on: whether those proposals went far enough; what, if anything, was missing; the potential impacts of the announcements and how any negative impacts could be addressed; how the announcements might affect the DLUHC's wider objectives (including the building of affordable housing); and what else respondents would like to see in the funding arrangement to be agreed with industry.

Responses to the consultation of government proposals

  • The DLUHC inquiry closed on 16 February 2022. The DLUHC Committee received 106 responses from interested parties including leaseholders, industry bodies, developers and contractors. The responses, which can be found on the inquiry website, include oral transcripts from the inquiry and various letters received from specific bodies. The following are examples of some of the responses:
    • "…there is no silver bullet solution to the issue of increased buildings insurance premiums for high-risk residential buildings." "Government intervention may be required to provide cover for those buildings at the highest risk." "Due to the significantly changed market and wider economic conditions, no market or Government led intervention is likely to return buildings insurance to pre-Grenfell levels." (Association of British Insurers)
    • "it is essential that leaseholders are protected from significant costs for works to their homes. Social housing residents must also not be left to shoulder the burden of this crisis, which has been caused by constructors, product manufacturers and the regulatory system." (Mr Betts MP on behalf of G15, the group of London's largest not for profit housing associations)
  • In the Construction Industry Council (CIC)'s response to the DLUHC inquiry, the CIC agreed with the principles set out by Mr Gove on 10 January 2022 "that leaseholders should not have to pay to remediate buildings that are unsafe and that those clearly responsible for profiteering at the expense of fire safety should be removed from government schemes that provide them with work or that provide grants, subsidies or loans to their customers". It also agreed with the government pressing ahead with the Building Safety Fund (BSF) and providing more funding for fire alarms. The CIC raised concerns that:
    • the proposed changes affect a far wider range of construction than the scope referred to in the announcements;
    • the changes to the Defective Premises Act 1972 (DPA), which increase the period of liability to 30 years (see the government amendments to the Bill dated 14 February 2022), could lead to unintended consequences meaning insurers leaving the construction professional indemnity insurance market which would make it hard for businesses, especially smaller businesses, to operate in construction. This will have a deleterious impact on the capability to remediate unsafe buildings, build new housing (including affordable housing) and potentially militate against levelling-up policy intention. The CIC also said the changes to the DPA would affect all buildings, not only those that are high risk/high rise; and apply to all types of defects that render a dwelling "unfit for habitation", not just those relating to fire safety (or safety generally);
    • similar issues apply to the changes to the Building Act 1984 and may result in inability to access professional indemnity insurance, whether for their work or for fire safety risk specifically, as well as increases in both premiums and excesses;
    • cost might be prioritised over value at the expense of safety and the government should lead by example in "paying a fair price for its construction projects, and not accept the lowest cost available". The guidance in the Construction Playbook was welcomed and a suggestion made that promotion of accessible design stage guidance should be encouraged;
    • professionals need to be paid fees commensurate for the services for carrying out their building safety roles; and
    • state intervention might be needed to ensure the provision of PII to suitably competent and experienced engineers undertaking remedial works via the BSF.

The DLUHC report on Building Safety: Remediation and Funding

  • After considering the evidence collated in the inquiry, the DLUHC Committee's report on Building Safety: Remediation and Funding (the Seventh Report of Session 2021/2022), published on 11 March 2022, recommended that the government:< >scrap the cap on non-cladding costs for leaseholders;instead of the piecemeal method of funding remediation according to building height and type of defect, implement the Committee's proposed Comprehensive Building Safety Fund (to cover the costs of remediating all building safety defects on buildings of any height where the original "polluter(s)" cannot be traced;publish, within two months, all available data on the number of buildings of all heights with historic building safety defects − cladding and non-cladding − including data it has received from developers and manufacturers;identify all relevant parties who played a role in the building safety crisis, such as product suppliers, installers, contractors and subcontractors. Legally require them, as it has done for developers, to (i) contribute payment to put right any individual faults in which they played a part, and (ii) contribute to collective funding for building safety remediation − ideally [the Committee's] recommended Comprehensive Building Safety Fund. So that efforts to identify responsible parties do not delay remediation works, the government should, where necessary, fund works upfront and recoup its costs;remove VAT on building safety activity;require insurers to contribute to funds for remediation as they covered the actions of developers who failed to comply with building safety and have since received increased premiums despite remediation works being undertaken;take steps to hold overseas developers and other relevant foreign firms to account;when appropriate to do so, set out the actions it has taken;make industry players compensate leaseholders for remediation and interim costs already paid out and pay for works that have been started or specified including for interim measures and for rises in insurance premiums;allow social landlords full access to funds for building safety remediation (ideally the Committee's recommended Comprehensive Building Safety Fund);ensure the Affordable Homes Programme is protected at its current level and that social housing tenants do not pay the price through costs or diversion of funds away from maintaining their homes or other vital services;ensure professional indemnity insurance cover for those conducting PAS 9980 assessments – whether as an extension of the scheme for external wall assessors or as a separate scheme;monitor and report to the DLUHC Committee on: its assessment of the impact of the introduction of PAS 9980 on the numbers of buildings that need to be inspected and remediated; its estimate of the number of currently qualified fire risk assessors and how this will increase in the coming months; andempower the Building Safety Regulator, and not building owners, to decide whether a building needs a fire risk assessment. The Building Safety Regulator should set the standard that a building needs to meet; set out the methodology for undertaking assessments; and provide a review process which enables consistency of decisions.Summary from page 7 of the report)

     

  • A summary of the report can be found here: Building safety – the Government must ensure leaseholders and social housing tenants do not foot the bill for safety works, says Levelling-Up Committee (published 11 March 2022). The government has two months to reply to the recommendations (see the web version of the report).

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New government factsheets published (23 March 2022)

The Building safety leaseholder protections factsheet

  • The Building safety leaseholder protections factsheet (updated 23 March 2022) explains who is protected under the new legal leaseholder protections for historic building safety defects and the impacts of the Building Safety Bill when it comes into force. "The [Bill] now includes clauses that seek to change the terms of [relevant] leases, making building owners liable for the costs of remediating historical safety defects in a building. These clauses will set out in law the principle that government has long advocated – that building owners should not pass on costs to leaseholders for remediation works wherever possible."

New government factsheets published

  • On 23 March 2022, the government published/updated a series of factsheets on the Building Safety Bill. The factsheets provide more information on the key provisions of the Bill.
Dutyholders: factsheet Industry competence: factsheet
Building control regime for higher-risk buildings (Gateways 2 and 3): factsheet Safety case: factsheet
Safety management systems: factsheet Mandatory Occurrence Reporting: factsheet
Building Safety Regulator: factsheet Amendments to the Regulatory Reform (Fire Safety) Order 2005: factsheet
Accountable Persons: factsheet Golden thread: factsheet
Refurbishments: factsheet Building control registration and regulatory oversight: factsheet
Wider changes to the Building Act 1984: factsheet Building Safety Levy: factsheet
Architects Competence: factsheet Architects Fees: factsheet
Building Safety Charge: factsheet for landlords and building owners Building Safety Charge: factsheet for leaseholders
Construction products regulatory framework: factsheet Fire Safety Order interaction with the new regime for higher-risk buildings: factsheet
New Homes Ombudsman: factsheet Special Measures: factsheet
Building Assessment Certificate: transitional arrangements for existing buildings: factsheet Redress: factsheet
Residents’ Voice: factsheet  

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Government discussions with the industry on proposed solutions

DLUHC clarifies developer commitments to remediation

  • On 3 February 2022, the DLUHC requested more information from developers on buildings over 11 metres that they have worked on and provided additional information on the government's expectations of developers in regard to commitments to remediate. See the DLUHC letter to developers with attached Key Features Document, 3 February 2022.
  • The DLUHC confirmed it was taking steps to codify the commitments expected from developers based on their two fundamental propositions: (1) developers to commit to remediating those buildings which they themselves played a role in developing or refurbishing; and (2) developers to provide financial contributions towards a fund which will cover the costs of all other 11-18 metre buildings with critical life cladding safety defects. The commitments, which will be legally binding once agreed, include:
    • a commitment to prompt remediation of historical defects that are already identified or are discovered in future in buildings the developer or persons associated with it has had a role in developing;
    • regular reporting on pace and transparency of work;
    • compliance with agreed controls and frameworks on the proportionality of the work to be undertaken;
    • contribution to an 11-18 metre remediation fund for those buildings where direct remediation has not occurred or cannot occur;
    • evidence of senior officers and managers being fit and proper persons to undertake major-scale development with lasting social and economic impact; and
    • suitable processes to audit, assure and review membership, including consequences of joining and conditions of admission for new entrants.
  • A Key Features Document was attached to the DLUHC letter setting out:
    • a proposed method for codifying these commitments;
    • invited views on how best to: apportion contributions between participants as well as over time; operationalise and structure the fund; and ensure a proportionate approach to work, focused on critical life safety to the benefit of residents;
    • conditions that will apply to all relevant developers who commit to the terms of the remediation scheme. The scope of the conditions includes making financial contributions to the cost of remediation works relating to cladding defects on all 11-18 metre residential and mixed-use buildings; and funding and undertaking all necessary remediation work relating to buildings in which the developer played a role in developing or refurbishing.
  • Developers (who are defined as entities generating or expected to generate profits from developing residential land exceeding £[10] million per annum or those developers electing to join the scheme) were warned that those who did not meet the required criteria risked being excluded from government services, funding and planning-/construction-related services such as planning control.
  • In the Home Builders Foundation (HBF) letter to Mr Gove of 25 February 2022, HBF executive chairman, Stewart Baseley, confirmed that HBF remains "committed to the principle that leaseholders should not have to pay for necessary remediation costs arising from the design or construction of buildings they live in, and [HBF] wants to work constructively with [the DLUHC] to achieve this". Mr Baseley set out what HBF members would be able to commit to including: funding remedial works using a proportionate and risk-based approach (to be agreed); remediating buildings dating back to 1 January 2000; and withdrawing from the BSF – applicable to buildings over 18 metres.

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Procurement Guidance on improving building safety

Procurement Guidance on improving building safety

26 January 2022

  • The DLUHC has commissioned and published Collaborative procurement guidance for design and construction to support building safety (26 January 2022). It was written by Professor David Mosey of King's College London and Russell Poynter-Brown of On-Pole Limited working in collaboration with the Procurement Advisory Group. The report reminds us of Dame Judith Hackitt's recommendations that procurement processes used across the construction industry need to be improved urgently. The guidance "examines evidence of the ways in which collaborative procurement can lead to safer, better-quality outcomes, and explains how clients and their project teams can use collaborative procurement". The guidance:
    • supports the new regulatory regime reforms and recommends procurement and contracting questions that should be addressed in advance of each "gateway" application;
    • supports public and private sector clients and their advisers when implementing collaborative processes, relationships and systems as features of their procurement strategies, procedures and contracts for relevant projects;
    • breaks down collaborative procurement into four specific proposals for adoption on any relevant project: "Selection by value that avoids a race to the bottom (Section 5); Early supply chain involvement that improves safety and reduces risks (Section 6); Collaborative relationships that improve commitments and involve residents (Section 7); and a golden thread of information that integrates design, construction and operation (Section 8)"; and
    • explains what systems sustain and enhance a collaborative culture (Section 9); how strategic collaboration can embed improved safety (Section 10); how collaborative procurement enables public and private sector clients and their teams to achieve other improvements in economic, social and environmental value as well as safety improvements (Section 11); and outlines team-building techniques through which the collaborative culture of in-scope building projects can be cultivated (Section 12).
  • The DLUHC intends the guidance to be updated regularly and to reflect secondary legislation accompanying the Bill.

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Latest ISSG report – change of culture needed

The third annual report of the Industry Safety Steering Group

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Related legislation and guidance

The Fire Safety Remediation Charges (Recovery and Enforcement) Bill

  • The Fire Safety Remediation Charges (Recovery and Enforcement) Bill is a Private Member's Bill that was presented to Parliament on 24 January 2022 by Ms Daisy Cooper MP. It aims to "introduce a moratorium on recovery and enforcement action by freeholders and managing agents relating to service charges increases, fees or demands for payment in respect of leaseholders’ share of the costs of fire safety remediation work". The second reading of the bill in the House of Commons is scheduled for 6 May 2022.

Fire Safety Act 2021

  • The Fire Safety Act 2021 received assent on April 2021 and was introduced to update fire safety measures in multi-occupied buildings. Further information about the background to the Act can be found in the Lords Library briefing The Fire Safety Bill Briefing for the Lords Stages.

Leasehold reforms planned

Building Safety Data Release, published 17 February 2022

  • Meanwhile, the government continues to publish its monthly data from its Building Safety Programme. The 51st monthly data release from the government’s Building Safety Programme can be accessed here: Building Safety Programme: monthly data release – January 2022.
  • This latest publication confirms that, at the end of January: 93% (449) of all identified high-rise residential and publicly owned buildings in England had either completed or started remediation work to remove and replace unsafe Aluminium Composite Material (ACM) cladding; 415 buildings (86% of all identified buildings) no longer have unsafe ACM cladding systems; 100% (160) of social sector buildings have either completed or started remediation; and 88% (199) of private sector buildings have either completed or started remediation.

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EWS1 Building safety forms and introduction of PAS 9980:2022

Background to EWS1 forms and recent guidance

  • External wall fire review process forms (EWS1 forms) were developed by the Royal Institution of Chartered Surveyors (RICS), UK Finance and the Building Societies Association "to support the valuation process for high-rise residential buildings with cladding". The form has been used to report on whether combustible material on the external façade of a residential building is present/absent. An EWS1 form is not a government or regulatory requirement, nor is it a building or life safety assessment.
  • RICS guidance on how to determine whether a building needs an EWS1 form was published on 8 March 2021 and effective from 5 April 2021. The guidance note was intended to support valuers undertaking valuations for secured lending purposes on domestic residential blocks of flats in the UK. For further information on EWS1 forms, read the RICS FAQs.
  • Amongst the government's proposed building safety measures proposed on 10 January 2022 were:
    • the withdrawal of the Building safety advice for building owners, including fire doors (also known as the Consolidated Advice Note (CAN)) on the basis that it "has been wrongly interpreted and driven a cautious approach to building safety in buildings that are safe". The CAN, which was published in January 2020, included measures for building owners to take to ensure their buildings are safe. Lenders relied on the CAN to justify their requirement for a completed EWS1 certificate; and
    • government support for new proportionate guidance for fire risk assessors from the British Standard Institution's updated guidance.
  • The government withdrew the CAN on 10 January 2022. Future assessments are to be undertaken in accordance with British Standard PAS 9980:2022 (assessing the external wall fire risk in multi-occupied residential buildings (although PAS 9980:2022 is not proposed as a replacement to an EWS1 form and previous guidance on how to use an EWS1 form is retained).
  • The government published EWS1 (or equivalent) lender data on mortgage valuations for flats: April to December 2021, United Kingdom on 17 February 2022. The data received by the DLUHC shows that most mortgage valuations for flats do not require an EWS1 form or equivalent.
  • PAS 9980:2022 – Assessing the external wall fire risk in multi-occupied residential buildings was published in March 2022 to provide "a methodology for the fire risk appraisal of external wall construction and cladding of existing multi-storey and multi-occupied residential buildings". It is "particularly intended for use by competent fire engineers and other competent building professionals tasked with advising on the fire risk of external wall construction of existing blocks of flats".

RICS updates EWS1 form

  • RICS, UK Finance and BSA updated the EWS1 form on 16 March 2022 to reflect the withdrawal of the CAN.
  • RICS also updated the RICS guidance note. In summary, the criteria for the guidance remains valid but, following the withdrawal of the CAN, the guidance note now identifies what interim work is needed and includes a boilerplate stating that this guidance was drafted with reference to government guidance in force at the time, which has now been withdrawn and replaced with the publication of PAS 9980:2022. The guidance note remains valid and under review by RICS’ independent Standards and Regulation Board.
  • RICS believes the EWS1 form, which has been made electronic, will be easier to use – although its use should reduce as more Fire Risk Assessments are carried out under the PAS 9980.

London Mayor issues EWS1 guidance to support leaseholders

  • The Mayor of London, Sadiq Khan, launched new guidance to encourage landlords and managing agents to help leaseholders get EWS1 forms, to facilitate EWS1 inspections and to understand building safety risk. The EWS1 form provides "a simple assessment of building safety to support mortgage, lease and staircasing negotiations". Leaseholder and building safety organisations support the new guidance.
  • The guidance recommends that landlords and managing agents should commit to facilitating EWS1 assessments, prioritise the most at-risk buildings for assessment and clearly set out how the costs of an EWS1 assessment will be met, shared or reimbursed. Leaseholders should be kept fully informed, about not just EWS1 assessments, but also the costs and implications of wider building safety issues. See Mayor to help leaseholders get vital building safety information.

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The Building Safety Fund (BSF)

Guidance on the Remediation of Non-ACM Buildings Information Relating to the Building Safety Fund

  • The government announced the creation of its Building Safety Fund (BSF) in March 2020 confirming it would provide £1 billion in funding in 2020 to 2021. The BSF was intended to support the remediation of unsafe non-Aluminium Composite Material (ACM) cladding systems on residential buildings 18 metres and over in both the private and social housing sectors. The government guidance on the Remediation of non-ACM buildings, which provides information relating to the BSF for the remediation of unsafe non-ACM cladding systems, was updated on 17 March 2022.
  • Information relating to the BSF for the remediation of unsafe non-ACM cladding systems was updated on 17 February 2022. It includes "guidance for private sector building owners whose leaseholders would otherwise incur the costs through service charge arrangements and social sector housing providers who have demonstrated during the registration process that the costs of remediation are unaffordable or are a threat to financial viability".

Building Safety Fund: A step by step guide for leaseholders and residents

  • New government guidance, applicable to England: Building Safety Fund: A step by step guide for leaseholders and residents, was published on 20 January 2022. It provides a guide to the BSF process for leaseholders and residents of buildings over 17.7 metres with cladding systems that meet the BSF criteria. The aim of the BSF is to protect leaseholders from the cost of addressing fire safety risks, caused by unsafe non-ACM cladding systems on high-rise residential buildings. To help leaseholders and residents understand wording used in the BSF Leaseholder and Resident Service, a Building Safety Fund: Leaseholder and Resident Service glossary has also been published.
  • (Note that the process is slightly different for social housing applications and the DLUHC has a separate in-house team which deals with these.)
  • The guidance outlines the process of applying to the BSF. The application is made by the building's responsible person (for example, the freeholder or head leaseholder) who registers for funding and prepares the project plan for the required works for approval by the delivery partner (Homes England or The Greater London Authority). Once the plan is approved as eligible under the BSF, the responsible entity signs a legal agreement and the building works progress. Once finished, the responsible entity must submit a certificate to their delivery partner showing the works comply with building regulations and project costs. Remaining payments under the BSF will not be paid until all terms and conditions are met.

BSF process tracker launched

The Building Safety Fund Leaseholder and Resident Service

  • The Building Safety Fund Leaseholder and Resident Service is an online service set up to provide leaseholders and residents with access to information about the status of their building's application to the BSF. The service improves transparency in the process and highlights failures by building owners to take action to make buildings safe.
  • Government guidance, Find support as a leaseholder or resident of a building in the Building Safety Fund (BSF) process, was published on 11 March 2022. The guidance explains the BSF process and supports leaseholders or residents of a building that has applied to the BSF. It contains useful information such as a step-by-step guide, FAQs on the service, a glossary and a template letter for writing to the building's "responsible entity".

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Welsh approach to building safety – overview

Safer Buildings in Wales – reform proposals

  • The Bill gives powers to the Welsh government to implement its own reforms to building safety in Wales. Developers working across England and Wales will therefore need to understand and implement different regulations as appropriate.
  • The Welsh government published and consulted on its proposed changes to the residential building safety regime in Wales as set out in its White Paper, Safer Buildings in Wales: A Consultation published in January 2021. The consultation documents can be found here and guidance for residents was set out here: Safer Buildings in Wales: consultation guidance for residents. The consultation ended in April 2021 and the Welsh government's response was published in December 2021.
  • While the Welsh government is taking a similar approach to reform as the UK government, including new "duty holder" roles and a golden thread flowing through a building's lifespan, there are some differences to be aware of. In summary, it covers all buildings containing two or more dwellings (i.e. not individual dwellings) which will have to have an "accountable person" and undertake an annual fire risk assessment. Buildings of 18 metres and over will be subject to the strictest requirements. Generally, the building control function for buildings of 18 metres or more will fall to local authorities.
  • The timing for the implementation of new Welsh regulations is expected to follow the UK timetable. Further details on the Welsh approach to building safety reform can be found on the Welsh government's home safety and repairs website.

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Scottish approach to building safety – overview

Overview of the Scottish approach to building safety

  • The Building Safety Bill applies to England and Wales but there are also provisions that apply to Scotland (for example, the new homes ombudsmen scheme). In Scotland, currently, building safety requirements are covered by the Building (Scotland) Act 2003 (under which the Building Scotland Regulations 2004 were introduced) and fire safety is dealt with in the Fire (Scotland) Act 2005 (under which the Fire Safety (Scotland) Regulations 2006 were introduced).
  • Following the Grenfell Fire, the Scottish ministerial working group on building and fire safety has been meeting since June 2017 to "oversee reviews of building and fire safety frameworks, regulations and guidance, and any other relevant matters, to help ensure that people are safe in Scotland's buildings". They have:
  • The ministerial group has confirmed (here) that "Building standards in Scotland are not retrospective and unless evidence arises to the contrary, buildings that have a building warrant and valid completion certificate [will be taken as having] complied with the regulations at the time. Where evidence of non-compliance or fire safety concerns arise, for whatever reason, then building owners should take immediate action to investigate and manage the situation."
  • Developers working across the UK will therefore need to understand and implement different building safety regulations depending on where they are building.