Sections 72 and 73 of the Building Safety Act 2022 introduces the new roles of “Accountable Person” (AP) and “Principal Accountable Person” (PAP) who are responsible for the management of building safety risks in higher risk buildings. These roles are automatically assumed by various entities who have legal or management interests in a HRB.

APs and PAPs assume a number of statutory duties, including ensuring that a completion certificate has been obtained and the building has been registered with the Building Safety Regulator, continually assessing and managing building safety risks, keeping information and reporting to the Regulator, and engaging with residents. There are no provisions within the Act which permit APs or PAPs to delegate their duties to someone else. A failure to observe those duties may result in an offence being committed under the Act which could result in enforcement action and even criminal sanctions. Furthermore, section 161 of the Building Safety Act 2022 allows for piercing of the corporate veil and so sanctions can be applied as against individuals of a company who commit those offences.

There is however an exception to this sanction introduced specifically for resident-led management companies who have appointed a “Building Safety Director” who has been appointed to assist the AP or PAP in complying with their duties, provided that they are remunerated for their services. This replaces the initially proposed “Building Safety Manager” role, which was proposed to be available for all buildings. It appears that the inclusion of these provisions was intended to reflect that resident directors are often laypeople and they would not have the relevant knowledge or ability to comply with the various statutory obligations and who may struggle to come to grips with this wide-reaching and everchanging legislation. There was also a threatened rebellion and mass resignation by these directors which was persuasive.

The Government ran a consultation from 1 December 2022 to 7 February 2023 seeking views on:

• the eligibility requirements for becoming a building safety director
• what leaseholder engagement should take place prior to any such appointment taking place
• the method of appointing and removing building safety directors
• the method of agreeing the remuneration of a building safety director

This consultation was carried out in anticipation of the proposed Resident Management Companies (Building Safety Directors) Regulations and a response was promised within 12 weeks of the consultation closing. The Government has in fact failed to issue its response within that period, nor has it provided any clarity as to why they have not done so, and over 12 months later, these proposed regulations are yet to appear.

This is particularly concerning given that a number of important deadlines have passed since this consultation. In particular:

1. The registration of higher risk buildings. This was required to be done by 1 October 2023.
2. The preparation and submission of Key Building Information. This was required within 28 days of submitting an application for registration.
3. Applying for a Building Assessment Certificate. This involves preparing and submitting, amongst other items, a Safety Case Report containing considerable technical information, as well as details of the buildings Resident’s Engagement Strategy. The application should enable the Regulator to assess whether the AP and PAP are complying with their duties under the Act. Although this information must only be submitted following a request by the Regulator, the AP or PAP must have prepared this information by 1 April 2024.

For resident led APs and PAPs, it is important that they are assisted and supported in complying with these duties. Whilst some may have benefited from advice and support from professional managing agents, this does not shield resident directors from potential personal liability in circumstances where an offence is committed. This is only available in circumstances where a Building Safety Director has been formally appointed, however, save for remuneration, it is still not clear what conditions must be met for their valid appointment.

Written questions were put to ministers in Parliament on these issues and the Government was asked whether the deadline for compliance with the most recent deadline would be extended for resident led APs and PAPs. The response to those questions given on 15 April 2024 was that:

The Government is analysing the responses from the building safety director’s consultation and is considering whether to introduce regulations to enable the optional appointment of a building safety director by resident-led accountable persons in due course.

The requirement to register existing buildings came into force on 6 April 2023. Existing occupied higher-risk buildings had to be registered by 1 October 2023. Appointing a building safety director is not necessary in order to register a higher-risk building. Registration is a simple process, and the Building Safety Regulator has provided guidance to support accountable persons through this process. In addition, existing arrangements, and third-party support, such as from managing agents, can also provide expertise and support resident directors who are accountable persons in complying with their legal duties.

The Government’s response does not address the most recent deadline and does little to alleviate any potential concerns that resident led APs and PAPs may have with regards to their potential individual liability. Whilst they may be able to seek advice and support, although this assumes that the Regulator has sufficient resource, they are not necessarily protected in the event that an offence is then committed.

The lack of regulations also opens the doors for organisations to be taken advantage of by persons purporting to be Building Safety Directors who may well not have the relevant knowledge or experience and who might, in the fullness of time, be found not to meet the criteria for proper appointment when those are finally provided. In the meantime organisation might end up paying significant fees for little actual value which will ultimately be passed on to residents via their service charges with little actual benefit.

Given the potential criminal sanctions, it is important that the Government addresses these issues immediately by responding to the consultation, laying down regulations and extending the deadlines regarding Building Assessment Certificates for resident led organisations.