Persons of Interest (Part 4): Responsible Actors

In the fourth and final part of our latest blog series on "persons of interest" within the building safety regime, we look at the role and and responsibilities of Responsible Actors.

Under Sections 126 – 129 BSA 2022, the Government has laid draft regulations, the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (“RAS 2023”), to establish a Responsible Actors Scheme for residential developers.

This will recognise action taken by responsible developers to identify and remediate life-critical fire safety defects in residential buildings 11 meters and over that they developed/refurbished from 30 years prior to 5 April 2022.
Please note that these regulations are currently a draft item of legislation not yet made as a UK Statutory Instrument. The RAS 2023 is expected to be brought into law in England in Summer 2023 and could contain amended provisions then is sited within this Guidance Note.

Becoming a Responsible Actor

Under Regulation 6 RAS 2023, a person is eligible to become a Responsible Actor (“RA”) and a member of the Responsible Actors Scheme (“the Scheme”) if they satisfy the criteria within Regulations 7, 8 or 9 and is not a registered provider of social housing or a wholly-owned subsidiary of a registered provider of social housing.
Regulation 7; Eligible residential property developers
The criteria to become a RA is satisfied if:
a. The party’s principal business is residential property development.
b. The party has been responsible for the development or refurbishment of a relevant building in the relevant building and;
c. The party satisfies the Profit Condition set out in Regulation 11
Regulation 8: Buildings eligible for remediation funds
The criteria to become a RA is satisfied if:
a. The party has been responsible for the development or refurbishment of two or more buildings which have been assessed as being eligible for funding established by the Secretary of State and;
b. The party satisfied the Profit Condition set out in Regulation 11
Regulation 9: Voluntary eligibility
The criteria to become a RA is satisfied if:
a. The party has been responsible for the development or refurbishment of one or more relevant buildings in the relevant period and;
b. The party wishes to become a member of the Scheme.
The Secretary of State must give notice to those parties that are eligible, inviting them to apply to become a member of the Scheme. Those invited must either:
a. Enter into a Self-Remediation Contract (“SRC”) and submit an application for membership to the Scheme or;
b. Give notice that they are not eligible for membership and provide evidence to support that view.
If a party considers that they are likely to be eligible for membership but has not received an invite from the Secretary of State, they may request to become an RA.

Obligations of Responsible Actors

Under Regulation 21 of RAS 2023, an RA must enter into a SRA with the Secretary of State containing Self Remediation Terms (“SRTs”) providing for the developer to undertake remediation of buildings for which they are responsible for.
RAs must in accordance with the SRTs:
• Identify buildings for which they are responsible for which require works to remedy fire safety defects.
• Undertake or procure, at their own cost, the works necessary to remediate or mitigate any fire safety defects in their buildings.
• Accept responsibility for undertaking or procuring remediation works at their own cost and to fund such buildings.
• Make payment to the Government of any amounts paid out by any government fund for remediation works on their own buildings.
• Not undertake or procure others to undertake works that would result in a RA being unable to fulfil its obligations under the SRTs.
• Comply with all other obligations to which they are subject under the SRTs.
• Give the Secretary of State any information required to provide under SRTs.

Revocation of the status of a Responsible Actor

The Secretary of State can revoke an RA’s membership to the Scheme, after giving prior warning, where they fail to comply with the SRTs and the above-mentioned obligations.
Those parties who have received notice inviting them to become an RA but have failed to apply, alongside those whose membership has been revoked by the Secretary of State are defined as an ‘Applicable Person’ for the purposes of RAS 2023 and under Regulation 29, is prohibited from carrying out major development of land in England. (unless the development relates to a critical national infrastructure and is in the public interest).
Applicable persons are also subject to the building control prohibitions under Section 129(4) BSA 2022.
The Secretary of State can also revoke an RAs membership to the Scheme where they have satisfied all of their obligations under the RAS 2023 and the SRTs.

If you would like to discuss the key roles outlined in the building safety regime, please contact our team directly at: BuildingSafety@jbleitch.co.uk