What is going on with Building Assessment Certificates?

For others, failure may be to do with the absence of a bespoke resident engagement strategy for the building, which is one of the requirements of the safety case.

“There does seem to be a general lack of understanding of the difference between the provision of information to residents and a strategy for consultation and engagement,” says Mr Saunders. “We have had a number of resident engagement strategies, which simply say ‘this is what we’re going to tell people’ and that’s great, but the law requires more than that. We have even had the extreme of one applicant for student accommodation, which said they weren’t going to consult residents because they were students.”

Nonetheless, there are some buildings where much more serious issues are emerging. “We have found a few cases where we’ve needed to take action urgently,” says Mr Saunders. “We don’t have the power to require a decant or to prohibit the occupation of a building, but where we’ve got anything we feel needs resolving urgently, we will notify the relevant local enforcing authority, usually the local fire and rescue service, but also sometimes the local council, and they can assess whether to take action under their legislation.”

He says there have been five such cases so far. “In one, for example, we had a building with very, very poor compartmentation [measures that prevent flame and smoke spreading from flat to flat],” says Mr Saunders. “The dutyholder didn’t have a plan to put it right, didn’t have any interim measures in place, was refusing to put a waking watch or anything else in. We obviously worked with the local fire and rescue service, who basically turned around to this dutyholder and said: ‘Well, you either put a waking watch in or we’re going to prohibit the building. It is that serious.’”

He did not name the building in question.

The refusal notice

For those who do need to carry out work, the refusal notice will set out the different legal provisions the BSR is not satisfied with and why. This will be followed by a contravention letter, which may be accompanied by notices setting out the work required to achieve compliance. Once this work is done, the regulator will invite them to reapply.

In the social housing sector, this will hit landlords already struggling under the weight of financial burdens. And in the private sector, it will land with private building owners, who may attempt to pass the costs on to leaseholders in service charges.

This is not to say that the work is not necessary, but the financial burdens could well cause difficulty in the coming months.

For the LPS buildings in particular, the remediation work may involve extensive strengthening, which will take a long time and may not be possible with residents present. The result may be a very large number of buildings being demolished, which begs serious questions about residents’ rights in the interim, rehousing and making sure the process does not result in homelessness and displacement in areas where social housing is in short supply.

David Cormie, director of resilience, security and risk at the engineering consultancy Arup, explains that the law does not require the buildings to be fully brought up to modern standards, but that honesty about the risks and action to mitigate them will be crucial. “The intent of the Building Safety Act is to ensure that risks are properly understood by the building owner and are well managed. So, being upfront about the risks that have been identified, and outlining what actions you are taking to manage them, is the ethos at the heart of the Building Safety Act,” he says.

“Action is needed, though – the perspective of the regulator is that building owners have had plenty of time to prepare, and so will expect building owners to have engaged with the appropriate chartered structural engineers, and for LPS buildings, the necessary structural assessment to have been undertaken. A safety case report that says these activities ‘will be’ undertaken in the future is likely to be frowned upon by the BSR.

“Finally, building owners need to also be looking ahead to the next safety case submission: the regulator will be looking for the risk management plan outlined now having been progressed, and tangible progress having been made in managing the risks in line with the commitments the building owner has made.”

The regulator has a plan for five-year cycles for reviewing assessments.

There will be serious challenges, though. The cost of the remediation work required by the regulator will need to be factored into social housing business cases around the country. 

Where a developer contract is in place, work should be covered if defects count as ‘life safety’. But this is yet to be tested in practice. Leaseholders should also be protected from the cost of waking watches, where they are required, but it is not always clear who will pay for them, and sometimes they have to be put in rapidly to avoid a building evacuation.

And it is not yet known how mortgage providers and insurers will respond to a building that does not pass a building safety case assessment. Will they still be willing to offer mortgages while the works are under way? Will insurance premiums shoot upwards? Both of these things happened as buildings were assessed for dangerous cladding, with serious consequences for all involved.

Other buildings will need to be emptied – some temporarily to allow urgent works to be carried out, some permanently with the building being demolished. This will create huge challenges in terms of temporary accommodation provision and the requirement for rehousing in an already stretched market. With hundreds of safety case assessments to be revealed every month from here on out, this will quickly become a major endeavour.

There is no doubt that the safety of existing buildings needs to be addressed. But for anyone hoping the building safety crisis would go away, the work required to make our buildings safe may only just be beginning.

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