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Building safety: will repairs and maintenance contracts change?

7 January 2021 | By Katie Saunders and John Forde

The proposed changes in the Building Safety Bill will also likely impact repairs and maintenance contracts, as Katie Saunders and John Forde explain

The discussion around the Building Safety Bill has focussed so far on the proposed safety regime for the design and construction of new higher- risk buildings.  However, the scope of the bill is also expected to affect the maintenance and refurbishment of existing buildings – including contracts for these works. 

The draft bill introduces a new regulatory regime for ‘higher–risk buildings’ which is anticipated to include buildings of more than 18 metres or six storeys above ground level and having two or more dwellings. 

Houses, flats, serviced apartments, supported accommodation and student accommodation facilities are all expected to be in scope, but the secretary of state will have the power to extend the regime to other buildings based on risk evidence.

The draft bill’s proposed amendments to the Building Act and Building Regulations are expected to be limited to the design and construction of new buildings and major refurbishments requiring planning consent. Day-to-day repairs and maintenance works to higher–risk buildings are not expected to be included in the proposed duty holder regime, and will not be required to pass the three-tier gateway approval scheme. 

However, the new Building Safety Regulator will have general powers to impose competency requirements for parties working on all building works, not just for higher-risk buildings. The government is working with the industry-led Competency Steering Group to develop national competency standards for construction works. 

With this in mind, clients commissioning repairs and maintenance work may be required to ensure that their contractors, designers and supply chains meet prescribed competency standards and maintain these throughout their work. 

The new role of accountable person, who will be legally responsible for higher-risk buildings during their occupation, is likely to have a major effect on the way repairs and maintenance programmes are commissioned and carried out. Accountable persons have an onerous range of obligations, including applying for building assurance certificates for higher-risk buildings, producing and updating safety case reports providing residents with key building safety information and developing a resident engagement strategy. 

These obligations will require detailed knowledge of in-scope buildings and close engagement with residents, so that any fire and structure safety risks can be properly assessed and mitigated. 

Given these responsibilities, and the criminal liability attaching to their non-compliance, accountable persons will need to ensure that their repairs and maintenance teams can support them. 

Many landlords already use their repairs and maintenance contractors as their ‘eyes and ears’, since contractors often have the closest and most regular contact with residents and the day-to-day life of the building. It is likely that accountable persons will want to formalise these obligations in repairs and maintenance contracts, and require contractors to report any changes they notice that may affect fire safety, such as accumulation of rubbish or residents making unauthorised changes to their homes or the building. 

Accountable persons will be required to report major risks to the regulator, so it is likely that these obligations will be stepped-down to maintenance contractors. 

Any routine repairs and maintenance carried out by contractors will need to be subject to fire safety requirements and the details of any safety case reports and resident engagement strategies. It is also expected that maintenance contractors will be expected to assist building safety managers in the day-to-day management of building safety, especially around installing and maintaining fire alarms and other fire safety equipment, and undertaking regular inspections of the building and residences. 

Contractors are also expected to be closely involved with delivering key activities in the landlord’s resident engagement strategy, especially when undertaking works while residents are in occupation. 

The draft bill introduces additional requirements on landlords to carry out building safety works, with a mechanism to recover reasonable costs from leaseholders in a similar way to the current regime for maintenance works. 

Accountable persons who are looking to outsource building safety works will need to ensure that their contractors provide sufficient detail about their pricing and specifications to enable a transparent leaseholder consultation process.  

The draft bill is currently moving through the parliamentary approval process, though as yet there is no timetable for the act to come into force. Therefore any long term repairs, maintenance and compliance contracts being procured now should anticipate the obligations in the draft bill, and commissioning clients should have full transparency about contractor prices. 

Katie Saunders is a partner at Trowers & Hamlins and John Forde is a managing associate at Trowers & Hamlins

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