The New Building Safety Act 2022 Duty Holder Regime

Published on 11th October 2023

Understand how the new Building Safety Act changes affect you

From 1 October 2023, in secondary legislation issued pursuant to the Building Safety Act 2022, and alongside wider changes to the system of building control in the UK, building work started after 1 October to which the Building Regulations 2010 apply, is now subject to a new duty holder regime. Duty holders are defined as including clients, designers, and contractors.

The Building Safety Act (BSA) 2022 is part of the response to the Grenfell Tower fire in 2017.

The events at Grenfell Tower led to a series of government investigations and enquiries which concluded that the system for the management of building safety in the UK was not fit for purpose.
While the focus of the BSA 2022 is on what are called ‘Higher Risk Buildings’ (i.e., those which are over 18 meters, or are at least seven storeys and include at least two residential units, or a care home or hospital), parts of the BSA 2022 apply to a broader range of buildings and construction projects.
The new duty holder regime applies to building work to which the Building Regulations 2010 apply; i.e. most forms of building work including domestic and commercial projects.

The Building Regulations (Amendment) (England) Regulations 2023 (SI 911/2023) make a number of amendments to the Building Regulations 2010. This includes new responsibilities on those who commission building work and who participate in the design and construction process. These parties are defined as being the duty holders. There are additional requirements on those who are responsible in regard to Higher Risk Buildings.

Who are duty holders?

The duty holders are identified as being the clients (e.g. developers, employers), designers, principal designers, contractors and principal contractors. These roles align with those set out in the Construction (Design and Management) Regulations 2015. As with the CDM Regulations, a duty holder can be an organisation or an individual. The same person can be a duty holder under both the CDM Regulations and in regard to the Building Regulations 2010, provided that they are competent to take on those responsibilities. While the CDM Regulations and the Building Regulations cover different aspects of a project’s life cycle, there is some overlap including the importance of the client appointing the right people who understand their responsibilities and who have the necessary skills, knowledge and experience.

Duty holder responsibilities in general during the design and construction phase include:

To plan, manage and monitor the work to ensure compliance with the Building Regulations.
To co-operate with other duty holders, sharing information, communicating effectively, supporting each other in compliance.
Ensure that they and the people they appoint are competent, i.e. have the necessary skills, knowledge, experience and behaviours to carry out design work and building work and only do so within the limits of competence. Where organisations are involved, competence includes having appropriate organisational capability.

Client

Where the client such as a developer or building owner is a duty holder, specific duties include:

Making suitable arrangements for planning, managing and monitoring a project, including the allocation of sufficient time and resource, to deliver compliance with the Building Regulations. In practice, this means appointing the right people, with the right competencies for the work and ensuring those they appoint have systems in place to ensure regulatory compliance.
Where there is more than one contractor working on different aspects of the project, appointing a principal designer to be in control of design work and a principal contractor to be in control of the building work.
Providing building information to every designer and contractor on the project.
Co-operating and sharing information with other relevant duty holders.

NB – As with the CDM Regulations, where there is more than one client then agreement in writing is possible as to who is to be treated as the ‘only client’ for these purposes.

In the case of a domestic client – someone who is having building work carried out but not in connection with a business, such as in connection with their home - as with the CDM Regulations the domestic client’s duties are passed on to another duty holder (e.g. the contractor). That other duty holder will then have duties to, make suitable arrangements for the project, to ensure compliance with all relevant requirements, to take steps to satisfy themselves that any person permitted.

Designers

Duties on designers include:

Not to start design work unless satisfied the client is aware of its responsibilities.
To take all reasonable steps to ensure that, if built, the designed work will comply with all relevant requirements.
To consider and account for the compliance of other elements of the design.

Contractors

Duties on contractors include:

Not to start work unless satisfied the client is aware of its duties.
Ensure the work complies with all relevant requirements.
Provide appropriate supervision, instructions, and information to ensure the work of others complies with all relevant requirements.
Take steps to provide sufficient information about work to assist others with their own compliance.

Principal Contractor

Duties on principal contractors include:

Plan, manage and monitor all building work.
Co-ordinate work so that it complies with the Building Regulations.
Take steps to ensure that, all contractors co-operate, communicate and co-ordinate their work with other duty holders, the work of all contractors is co-ordinated to comply with relevant requirements, contractors and others involved in building work comply with the Building Regulations.
Liaise with the principal designer and share information relevant to the planning, management and monitoring of the design and construction work to ensure compliance with all relevant requirements.
Assist the client in providing information to other designers and contractors.

Competency Requirements

Everyone involved in design or building work must be competent and demonstrate their competence to undertake the work in compliance with the Building Regulations.The British Standards Institute has published a suite of built environment competence standards. There are enhanced competency requirements for Higher Risk Buildings.

Duty holders will be able to demonstrate competence by:

relevant training and qualifications,
membership of a trade or professional body,
having relevant experience,
adopting competence framework relevant to their discipline,
compliance with BSI competency standards.

See also the guide published by the Chartered Institute of Building and the Royal Institute of British Architects – “A Guide to Managing Safety Critical Elements in Building Construction”.

Declaration of competence

The client and principal duty holders (principal designer and contractors) are to provide a signed compliance declaration within five days of completion of the work confirming:

To the best of the client’s knowledge, the work complies with the Building Regulations.
The principal designer and contractor have fulfilled their duties

Liability for non-compliance

A breach of duty holders duties will be a criminal offence. The Building Safety Regulator will set out requirements for enforcement by private and public sector building inspectors and approvers.

Transition

The new duty holder and competence regime does not apply if:

Building work started on or before 1 October 2023; or
Plans for a project have been deposited with a local authority or the “initial notice” for a project has been given to a local authority before 1 October 2023.

Changes to contract terms.

Given that the duty holder regime is intended to be very similar to the CDM Regulations model, parties are likely to adopt a similar approach to identifying which party is taking on a duty holder role and pricing for it.