Introduction
The requirement for a Building Safety Case and Safety Case Report falls under Section 85 of the Building Safety Act 2022 (BSA). It is one of a number of responsibilities introduced by the BSA and is directly relevant to any organisation, business or individual who finds they are now responsible for the monitoring of risks in an occupied Higher Risk Building (HRB).
Section 85 imposes a duty on the Principal Accountable Person (PAP) or Accountable Persons (APs) to prepare a report containing an assessment of the building safety risks and steps being taken to mitigate against any future risk in relation to registered and occupied HRBs. See our introduction to these roles Navigating the Building Safety Act 2022: Demystifying Principal Designer and Principal Contractor Roles Part 1 – Introduction.
1. What is a Building Safety Case and Report?
The Safety Case will form part of the Golden Thread of information and will become the responsibility of any PAP or AP to hold and produce to the Building Safety Regulator (BSR) when applying for its Building Assessment Certificate. Section 79 of the BSA imposes an obligation on the PAP to apply for a Building Assessment Certificate in relation to the occupied building at the direction of the BSR. The regulator must certify when it is satisfied that the PAP has complied with all its relevant duties.
The Safety Case will include a Safety Case Report intended to summarise the Safety Case and any major fire and structural hazards in a building, and how they are being addressed. The Safety Case Report will be submitted at the request of the BSR on applying for a Building Assessment Certificate. The Building Assessment Certificate is a requirement for occupied HRBs and is separate to the BSR completion certificate issued following Practical Completion of building works and prior to occupation. Under section 81 of the BSA this certificate is required for all occupied HRBs and under Section 82 it needs to be displayed in a conspicuous position within the building. Failure to comply may lead to enforcement action.
We explore Mandatory Occurrence Reporting further in this article Building Safety Act 2022 (BSA): Mandatory Occurrence Reporting for Higher Risk Buildings (HRBs) during construction. Mandatory reporting relates to the new duty holder scheme and compulsory roles of the ‘Principal Designer’ (PD) and ‘Principal Contractor’ (PC) to report building safety occurrence incidents, such as structural failure or the spread of fire, to the BSR.
2. What information should be included in a Safety Case Report?
The Higher-Risk Buildings (Management of Safety Risks etc) (England) Regulations 2023 outlines the key information that should be stored in relation to a HRB. This includes:
- The number given to the building on the register;
- A brief description of the building and its wider environment;
- A description of building safety risk scenarios identified by the AP;
- Safety management systems (SMS) for the building; and
- Emergency plans.
HSE has published recent guidance detailing further information required in a Safety Case, this information is available to view on the government website.
3. What information needs to be stored?
Basic building information such as the building’s height, number of floors, when it was built, and any applicable plans and certificates need to be stored. This needs to include any shared facilities such as other nearby high-rise residential buildings, schools, care homes and public transport routes. Newer buildings built after 2005 must have a health and safety file which should be transferred on any change of ownership.
More detailed information will include information on the building’s construction detail such as the primary load-bearing system, stability system, materials used and access and escape routes. This is also applicable to any refurbishment or changes to parts of the building, whereby the buildings’ overall plans, specification and certification requirements will need to be updated as and when such changes occur.
A Safety Case will also need to record a resident profile for the residents in your building to identify those who may have difficulty in evacuating the building. For example, due to age or English not being a first language. Any resident safety information will need to accommodate for non-English speakers.
4. What about risk assessments?
The storage of building information is an essential element of the Safety Case. However, an integral part of the Safety Case Report is for the contributors to both assess risk in their building and to produce or outline the effective risk management systems they have in place to deal with any identified risks.
The first step will involve keeping a record of all risk assessments conducted at regular intervals or otherwise when asked to do so by the Building Safety Regulator. There is no defined requirement of how often these intervals should be, but holding a programme that clearly sets out dates for inspection and ongoing monitoring will help evidence regular assessment.
5. What is a Safety Management System?
A Safety Management System (SMS) is the formal management system or framework in place for managing safety risks. It will form a key part of the Safety Case Report and is intended to help the AP or PAP effectively to assess and then manage the building’s risks. The intention is that once an SMS is implemented its effectiveness and performance will be regularly monitored going forward.
A popular example of an SMS model is the BS 9997:2019 which is the British standard’s model framework on fire risk management systems. Whilst there is no requirement to use a specific form of risk management system, it may be more effective from both a time and quality perspective to adopt a standard already widely used and recognised in the industry.
The guidance makes it clear than any SMS needs to be proportionate to the complexity, use and level of risk present within the building. Factors such as the complexity of the design, the number of buildings managed by any one AP or PAP and as mentioned earlier, the profile of the residents will be key factors in determining proportionality.
6. What happens if the Safety Case Report has insufficient information?
There may be concerns about who is responsible for collating any missing information, or if the available information is adequate to address health and safety risks. Where work has previously been conducted to a building APs and PAPs may be dependent on the various duty holders at the time to have provided sufficient information, such as a health and safety file, to allow them to compile the information needed in the Safety Case Report. On the other hand, older buildings where historic construction work may have been carried out, information may be missing that is difficult or costly to obtain.
Where there are gaps of information it may be a matter of determining how important that information is (proportionally) when considering steps to address any missing information. Relevant factors include the significance of the information, whether it is possible to replace and the time and costs associated in replacing it. Responsible parties may need to consult with various experts to help determine these factors which can lead to further costs.
Guidance suggests consulting:
- Archived paper-based storage systems;
- Planning authority records; and
- Building control records.
To see if any missing information can be identified. There may then be questions about whether existing documents are still valid, particularly where the building may have been refurbished or altered since those documents were created. A record should be kept of all steps taken to identify missing records so that this can be passed to the BSR, if it later becomes necessary.
The Construction (Design and Management) Regulations 2015 (CDM Regulations) require that a health and safety file appropriate to the characteristics of the project is prepared during the pre-construction phase. The content of the file should address the type of risks identified in the Safety Case Report, and likewise the CDM Regulations require that the Principal Designer ensures the file is appropriately reviewed, updated and revised. Importantly, the health and safety file shouldn’t be seen as a substitute for a Safety Case Report, but may be a useful starting point in compiling the necessary information required by the BSA.
7. When must a Safety Case Report be given to the BSR?
Most HRBs having now been registered with the BSR but if not, registration must be done. The next key date for duty-holders to bear in mind is April 2024 when various transitional arrangements for HRBs ends see our article on these arrangements Building Safety Act 2022 (BSA) – Transitional Arrangements For Higher Risk Buildings. From 1 April 2024 the BSR can call upon a PAP / AP to apply for a building assessment certificate.
The PAP will have 28 days from the day on which BSR makes that call to submit its application, and if they fail to do so they will have committed an offence under S79(3) with the risk of summary conviction and imprisonment.
8. What if issues are identified in a Safety Case Report, will the PAP given time to correct these?
Under S81(3)(b) of the BSA 2022 the BSR will refuse a building assessment certificate if it is not satisfied that all the relevant duties have been complied with. Alternatively, S81(4) allows the regulator to issue a notice to the PAP with a brief description of the contravention specifying a period for remedying the contravention. S81(4) will only apply to remedies which can be implemented promptly, allowing the PAP to attempt to remedy the issue and still be awarded a building assessment certificate, rather than submitting a new application.
It is not yet clear what happens when an application for a Building Assessment Certificate is refused and how long an applicant will be given to re-submit the application, particularly whilst the building remains occupied. It is likely that the BSR will use its powers under S99 of the BSA 2022 which allows them to submit a ‘compliance notice’. A compliance notice will specify the steps a PAP should take over a particular period. The notice will be proportionate to the risk identified, and if the application identifies any immediate danger, then under S99(4) the BSR will be able to issue an ‘urgent action notice’.
9. How often should a Safety Case Report be updated?
S86(1) of the BSA 2022 requires the PAP for an occupied higher risk building to notify the BSR as soon as reasonably practicable after preparing or revising a Safety Case Report. The HSE guidance makes it clear that the purpose of a Safety Case and report is not simply a ‘one and done’, but to set in a clear plan for ongoing review and monitoring of the building and its risks, which should be clearly identified in the SMS.
There is unlikely to be a time frame prescribing how often a report should be updated, as again this will be proportionate to the building in question and its risks. We would suggest, however, that any SMS clear shows that there is a system that details ongoing monitoring and review taking place at regular intervals.
Summary
The BSA requirements for all HRBs (as defined in the regulations) are mandatory and PAPs should prepare their Safety Cases and Safety Case Reports as soon as possible and in any event by 1 April 2024, after which time the BSR will call for registration applications. Obviously, it will be prudent to allow sufficient time to gather information and to identify and address any gaps, as well as to identify risks prior to having to apply for a certificate from the BSR.