3. Roles of regulators in enforcing permanent remediation

This chapter sets out the good practice approach that regulators are encouraged to take to enforce permanent remediation.

This chapter sets out the good practice approach that regulators are encouraged to take to enforce permanent remediation (see 2.2). It explains key considerations that regulators will find helpful when encountering remediation matters as part of their compliance and enforcement activity. These include:

  • understanding their role in the remediation of buildings between 11 and 18 metres in height (see 3.1),
  • understanding their role in the remediation of buildings over 18 metres in height (see 3.2),
  • monitoring unsafe buildings in their area (see 3.3),
  • taking regulatory action to ensure landlords are taking appropriate action to make their buildings safe (see 3.4),
  • engaging  with residents (see 3.5),
  • understanding their role at social housing buildings (see 3.6).

It will also be critical for regulators to agree a lead regulator at each building. This will avoid duplication of effort and allow regulators to carry out their regulatory activities effectively and in a co-ordinated way. See chapter 4 for principles for agreeing a lead regulator.

3.1 The role of regulators at buildings under 18 metres in height

Buildings that are below 18 metres in height or with fewer than seven storeys are regulated by fire and rescue authorities and local authorities. The higher-risk buildings in-occupation regime under Part 4 of the Building Safety Act 2022 does not apply to these buildings.

Funding for the remediation of 11-18 metre buildings is available via the Cladding Safety Scheme. The department may begin to raise 11-18 metre cases of concern with regulators soon.

The department will provide further guidance to regulators on the identification of 11-18 metre buildings with unsafe cladding that have yet to come forward for funding. Fire safety defects in need of remediation may occur in buildings below 11 metres in height. These buildings are not covered by remediation programmes, but if there are relevant defects regulators may consider interventions under their own policies or through partnership working.

Each regulator will have its own compliance and risk-based approach to prioritisation, and collating and sharing information in this way will allow regulators to make informed decisions about how to prioritise buildings, monitor their progress and understand the enforcement action that may be required. Fire and rescue services and local authorities should ensure they agree between themselves a lead regulator at each building, to avoid unnecessary duplication of work (see chapter 4).

3.2 The role of regulators at buildings over 18 metres in height

The Building Safety Regulator (BSR) is a regulator for higher-risk buildings that are over 18 metres in height or have at least seven storeys and contain at least two residential units. Part 4 of the Building Safety Act 2022 contains the principal set of enforcement powers used by the Building Safety Regulator for higher-risk buildings in scope of that regime.

The BSR will set out in detail how it will work with other regulators, based on the following principles: 

  • The BSR’s principal mechanism for monitoring buildings will be the Building Assessment Certificate (BAC) process, in which it will assess buildings to verify that accountable persons are managing their building safety risks and keeping residents safe. To assess an application, the BSR will set up a multi-disciplinary team (MDT) which will be made up of personnel from the BSR and other specialists, including from local authorities and the fire and rescue service. The MDT will assess whether the accountable persons are meeting their statutory duties. The BSR will issue a BAC once it is satisfied that this is the case.
  • If other regulators are already undertaking enforcement work regarding fire safety defects in a building that the BSR is assessing for a BAC, the BSR will consult with that regulator as part of their regulatory work.
  • It is expected to take 5 years for the BSR to complete all BACs for the first time. In its first year, BSR will prioritise buildings for assessment based on height and number of dwellings. It will also prioritise those buildings where there is ACM cladding, and those buildings of Large Panel System (LPS) construction which may not have been reinforced post-Ronan Point.
  • Complex scenarios, such as mixed-use buildings, may necessitate the involvement of other regulators.

As multiple regulatory regimes apply to buildings that are over 18 metres in height, the BSR and other regulators should agree between themselves who the lead regulator will be at any given building based on the principles set out in this guidance. (see Chapter 4 and Annex A).

3.3 Monitoring unsafe buildings

Regulators should work with the department and with government programmes to share and verify up-to-date building information and maintain a comprehensive picture of the unsafe buildings within their remit and the progress they are making towards remediation.

3.3.1 Working with government programmes to monitor buildings

The government has made resources available through remediation programmes to support the remediation of unsafe buildings (as defined in section 1.1 over 11 metres in height (see Annex B). Making sure landlords are taking the necessary steps to progress buildings through these programmes without unnecessary delay helps ensure remediation is completed at pace.

It should be noted that landlords are not mandated to be part of these programmes, and therefore the programme data is unlikely to show a comprehensive picture of all the buildings in an area.

Where the government is aware of buildings that are progressing towards remediation insufficiently quickly, the department will escalate cases to regulators for their consideration via data shares and by corresponding directly with regulators and mayoral authorities. The department will engage with regulators and, where applicable, mayoral authorities, to share building information in several ways. This does not preclude regulators from taking action of their own volition. 

Regulators should cross-reference government data with their own information, to inform any decision on whether or what enforcement action may be necessary (see 9.4).

3.3.2 Monitoring higher-risk buildings over 18 metres in height

The Building Safety Regulator has its own regulatory regime for residential buildings that are over 18 metres in height or have at least seven storeys (see 3.2).

The Building Safety Regulator began registering higher-risk buildings in April 2023. The deadline for these buildings to register with the BSR was October 2023.

It is projected to take 5 years for the BSR to assess all the buildings in its remit for the BAC. Until the BSR has completed these assessments, regulators should continue to discuss and agree between themselves who the most suitable lead regulator will be at each building.

At buildings where the Building Safety Regulator has confirmed itself as the lead regulator, regulators may continue to share building information between themselves. (See chapter 4 for information about lead regulators and how to determine which regulator this should be, and 3.2 for more information about the role of the BSR at buildings over 18 metres in height.)

3.3.3 Acting when slow or stalled buildings have been identified

If remediation work at a building is not progressing as planned or as directed, regulators should engage with landlords and with the department to understand the contributing factors. Regulators may also need to use their enforcement tools to ensure the building does get fixed within a reasonable timeframe and residents are safe. Where landlords provide valid reasons for delay – i.e., where the delay is outside of the landlord’s control – if necessary, regulators can verify this information with the department to ensure it is accurate.

The department will regularly share data with regulators and mayoral authorities, and flag buildings that have been identified by government programmes as stalled or moving too slowly. This data may inform regulators’ consideration as to potential interventions including whether to use their enforcement tools to hold these landlords to account.

3.3.4 Triage considerations for decisions and prioritisation of interventions

As part of their monitoring activities, regulators should remain alert to landlord behaviours that cause delays or prevent remediation. It is important that regulators take proportionate regulatory action where they identify such behaviours.

Behaviours that cause delays to remediation and may factor into regulators’ decision-making include, but are not limited to:  

  • a landlord unreasonably delaying or refusing to complete a suitable fire risk assessment of their building and/or its external wall system,
  • a landlord ignoring engagement by regulators and/or residents,
  • a landlord misleading a regulator with false information,
  • a landlord continuing to rely on interim fire safety measures rather than progress towards a permanent remediation solution,
  • a landlord failing to apply for a government funding programme they are eligible for and would benefit from,
  • a building unreasonably stalling in one of the government’s funding programmes,
  • a landlord or other relevant party refusing access to the site, thus preventing remediation from progressing even where another party (e.g., a developer) is taking responsibility for it,
  • prolonged delays or inaction in commencing the remediation work on site and/or agreeing the works contract,
  • a landlord failing to meet costs they are liable for under the Building Safety Act 2022, specifically where this delays or prevents remediation or otherwise puts residents at risk.

3.4 Taking regulatory action to enforce remediation

When engaging with landlords as part of their enforcement activity, regulators that identify remediation issues that are not being addressed, or a building that is not progressing to remediation in a reasonable timeframe, have powers to act.

Section 2 of the Regulators’ Code states that “in responding to non-compliance […] regulators should provide an opportunity for dialogue in relation to the advice, requirements or decisions, with a view to ensuring that they are acting in a way that is proportionate and consistent”.  

In practice, this means that regulators can first take non-statutory regulatory action (see 3.4.1) to support those they regulate to comply. If non-compliance continues, or as a first step in more serious breaches, regulators may take statutory enforcement action (see 3.4.2). Regulators also have the power to prosecute if the respondent has committed an offence or otherwise fails to comply with the law and/or remains in breach following statutory enforcement action (see 3.4.3). In the worst cases, early consideration of prosecution may be appropriate.

3.4.1 Actions regulators may take prior to statutory enforcement

Regulators have at their disposal a range of informal approaches and practices to promote and support compliance. Any action short of statutory action (i.e., the service of a notice or order would be considered statutory action) is regarded as non-statutory action.

Examples of behaviour that may lead a regulator to decide that non-statutory regulatory action is appropriate are:

  • the non-compliance with a legislative regime’s requirement does not pose a serious or imminent danger to life or health;
  • the party responsible for remediation is engaged in the process and is working cooperatively with residents and regulators; and,
  • the landlord has a history of complying with their building safety requirements and/or previous enforcement action.

As set out in the Regulators’ Code, regulators should carry out their activities in a way that supports those they regulate to comply and grow. To achieve this, regulators should:

  • request and gather information on who and what is causing the delay, including information on which party(s) hold the repairing obligation at the property.
  • send non-statutory letters, or Notification of Deficiencies letters, to the parties responsible for building safety, setting out the issues and recommended actions.
  • engage with relevant parties (e.g. landlords, RMCs, RTMs, leaseholders etc) to educate them on their building safety responsibilities. This could be facilitated through regular meetings, and sharing information and resources packaged in an accessible format.

Regulators should carry out checks during non-statutory enforcement, to make sure acceptable progress is being made. In all engagement, regulators should be clear there will be formal consequences if progress is insufficient. 

The decision to take non-statutory action should be based on the merits of each case. Where the risk caused by non-compliance is more serious, longstanding or repeated, regulators may escalate straight to statutory enforcement action (see 3.4.2).

3.4.2 Statutory enforcement action

Where landlords are not making sufficient progress towards remediation, regulators have more robust enforcement powers they can use to compel remediation. This may include:

  • issuing a statutory notice under their respective legislation and/or
  • using their powers under the Building Safety Act 2022 Part 5 to apply for a remediation order or remediation contribution order.

The lead regulator should consult with other regulators, and if necessary, co-ordinate enforcement action by multiple regulators to help drive remediation progress, for example where there are multiple relevant defects that would benefit from the expertise of different regulators.

Regulators should continue engaging with the landlord alongside statutory enforcement action, to offer support and advice, monitor compliance and anticipate next steps. 

For more information on statutory enforcement action, see:

3.4.3 Prosecution

Where enforcement action is ignored or not complied with by landlords, this is likely to be an offence which may lead to prosecution.

Regulators have powers to prosecute in a variety of scenarios, for example:

  • Local authorities can serve improvement notices under sections 11 and 12 of the Housing Act 2004, and if the respondent fails to comply by the specified time, the local authority can prosecute for non-compliance. This may result in the respondent being ordered by the appropriate court or Tribunal to pay an unlimited fine.
  • Fire and rescue authorities can serve enforcement notices under article 30 of the Fire Safety Order, and where the respondent fails to comply with the terms of the notice, the fire and rescue authority may take further action including prosecution, considering any aggravating and mitigating factors, as well as the public interest for the latter. Some offences under the Fire Safety Order may result in prosecution without prior enforcement action. Prosecution may result in the respondent being ordered by a court to pay an unlimited fine and/or receive a maximum prison sentence of 2 years.
  • The Building Safety Regulator can issue a compliance notice under Part 4 of the Building Safety Act 2022 requiring the accountable person to take specific steps by a set date. The penalty for non-compliance with the notice is an unlimited fine and/or up to 2 years in prison.
  • All regulators can apply for remediation orders and remediation contribution orders under Part 5 of the Building Safety Act 2022. Respondents will be expected to comply with the requirements of a remediation order or remediation contribution order granted against them (subject to any appeals).

Regulators may wish to move straight to prosecution in the worst cases, where the legislation permits. Regulators would normally be expected to continue to take action to secure remediation alongside any prosecution.

Regulators should work in collaboration with other regulators to ensure that, as far as possible, their time frames for regulatory action are consistent and aligned.

3.4.4 Regulatory action in emergency scenarios

At some buildings, regulators may identify or become aware of severe building safety issues that warrant the use of their emergency powers (e.g., powers that initiate a decant of a building where it is unsafe for occupation). In this guidance, ‘emergency scenario’ refers to cases where there is an immediate and credible risk to life from fire, but not where there is a live fire.

Annex E and 5.1.2 set out principles for effective enforcement in complex scenarios where there is an immediate and credible risk to life. In all emergency remediation scenarios, regulators must act in accordance with their statutory duties, and are guided by locally agreed operational procedures.

3.5 Engagement with residents

As set out in section 2.1, landlords are required to provide relevant building and fire safety information to residents, and regulators should take a resident-centred approach to remediation. This includes engaging with residents and using enforcement tools to make sure landlords are complying with their duties to keep residents informed of remediation activities.

Regulators can expect that residents will report fire and structural remediation issues to regulators and expect regulators to respond and take appropriate action. It is important that residents can easily contact regulators when needed, and that regulators respond promptly, then keep them updated on the actions that are being taken.

Regulators should ensure residents can easily find out who the lead regulator is at any given building, and this regulator will often be the primary point of contact for residents. Regulators must also ensure that Responsible Persons and landlords comply with their duties to regularly engage with residents and provide them with safety information.

3.6 The role of regulators at social housing buildings

The Regulator of Social Housing (RSH) is responsible for regulating registered providers of social housing (RPSH). RSH promotes a viable, efficient and well-governed social housing sector able to deliver more and better social homes.

RSH sets standards that define the outcomes registered providers must deliver. These include:  

  • Economic standards which include the rent standard, that applies to all RPSHs and the Governance and Financial Viability Standard and Value for Money standards that apply to private registered providers only. These standards seek to ensure that RPSHs have adequate governance arrangements in place to deliver their aims, objectives and intended outcomes for tenants, and that RPSHs are managing their finances effectively.
  • Consumer standards which apply to all RPSHs and set outcomes that are designed to improve the quality of housing and services and strengthen the relationship between landlords and tenants.

RSH regulates at the provider level, looking at how well the landlord is delivering the outcomes of the standards overall. This includes outcomes that landlords must deliver about the safety and quality of tenants’ homes set through the Safety and Quality standard. RSH’s assessment of a landlords processes and controls at an organisational level, is in addition to the work of other regulators operating at the building level.

The government and RSH expects all providers of social housing to identify, assess and remediate their buildings at pace. The RSH’s consumer standards require that “all required actions arising from legally required health and safety assessments should be carried out as soon as possible.”(PDF, 289KB)

3.6.1 Data collection and inspections at social housing buildings

RSH’s approach to regulating landlords is different for large landlords (those who own 1,000 or more social homes) and small landlords (those who own fewer than 1,000 social homes).

RSH carries out programmed inspections of large landlords and can also carry out non-programmed inspections where appropriate, including of small landlords. In addition to reviewing information about a landlord as part of an inspection, RSH also gathers and reviews a range of information between programmed inspections, supporting it to identify any risks the landlord might face in delivering the outcomes of its standards and target its work. 

This includes RSH collecting information from RPSHs on the fire safety remediation of the 11 metre plus buildings they are responsible for. RSH uses this data, as well as broader sources of information, as a source of evidence when seeking assurance that landlords are delivering the outcomes of its standards, engaging with landlords on this matter where necessary. This includes through its programme of inspections and in the course of its other regulatory activity. This data is shared with the department and RSH can share the survey data with other public authorities where necessary and in connection to their functions (in accordance with its powers under section 109 of the Housing and Regeneration Act 2008).

RSH’s role in considering whether RPSHs are meeting the outcomes set out in its regulatory standards does not preclude other regulators taking enforcement action in relation to a building owned by RPSHs where they have duties to do so under their respective legislation. In such circumstances, the regulators concerned should work carefully together to ensure a complete data picture and to ensure coherent messaging. To facilitate this collaborative approach, RSH will make relevant information available so that local regulators:

  • can access the outcome of the fire remediation surveys,
  • are aware of those landlords suspected of serious failings against the consumer standards, and that are under investigation,
  • are aware of adverse regulatory judgments in relation to the Safety and Quality standards.

RSH can also meet with local regulators where a more detailed view is needed to fulfil their functions.

Regulators should ensure that they inform RSH of any activity they plan to undertake at a building that might be of interest to RSH.

3.6.2 Enforcement activities

The need to take enforcement activity in the case of a social housing building may indicate wider issues with the RP’s adherence to RSH standards; and failure to meet RSH standards may indicate issues in the delivery of remediation in some of their stock.

If a regulator has a concern about a RPSH (as a whole) not meeting the standards because of failings in the remediation programme, including where they are taking enforcement action in relation to a building owned by a RPSH, they should refer them to RSH. A referral should be made by sending the relevant information about the RPSH to RSH via [email protected]. Regulators should also be notified by the RP concerned where the RSH identifies issues that may be material to action they might take as a local regulator.

The RSH and the BSR are developing a Memorandum of Understanding outlining how they work together.  Schedule 3 of the Building Safety Act 2022 (Cooperation and information sharing), requires: 

  • The BSR and the RSH to cooperate with each other in the exercise of any building function of the BSR, and relevant function of RSH.

It also grants:

  • The BSR and the RSH the ability to disclose to each other information relevant to each other’s functions.