Guidance

Building Safety Regulator enforcement policy statement

Published 1 December 2023

Applies to England

Section 1: Regulating higher-risk buildings

Introduction

1.1 This enforcement policy statement describes the regulatory functions and enforcement approach of the Building Safety Regulator (BSR).

1.2 As BSR, our mission is to protect people and places. Our responsibilities are to regulate building safety and building standards laws, as the appointed building safety regulator in England.

1.3 BSR’s aim is to secure the safety of people in and around buildings and to improve building standards.

1.4 As BSR, we also have a role regulating the building control profession. Section 2 outlines supplementary information which covers how we apply the principles of this policy to regulating the building control profession.

1.5 A fundamental principle of BSR regulatory regimes is to ensure that those who create risk take responsibility for controlling that risk and complying with the law.

1.6 As BSR, we use a wide variety of methods to encourage and support duty holders to manage risks and ensure compliance with the law in a sensible and proportionate way.

1.7 This policy statement sets out BSR’s approach to enforcement, that is, where we take action to enforce the law when issues of non-compliance, hazard or serious risk have been identified.

1.8 The enforcement methods available to BSR include:

• providing written information regarding breaches of law
• verbal warnings
• requiring improvements in the way risks are controlled and managed
• requiring action to be taken to remedy non-compliance
• stopping certain activities where they create serious risks or where they do not comply with relevant requirements
• recommending and bringing prosecutions where there has been a serious breach of law
• seeking appointment of special measures managers when an appointed person for a higher-risk building fails to carry out building safety functions

1.9 BSR has published this policy to ensure that our principles and approach to enforcement are clear. All our regulators are required to follow it.

1.10 This policy statement applies throughout England in relation to regulating building safety and building standards law and is made in accordance with the Legislative and Regulatory Reform Act 2006, the Regulators’ Code, the Deregulation Act 2015 and the regulatory principles within section 3 of the Building Safety Act 2022 (see section 4 ‘Applying the regulatory principles of good practice to enforcement’).

1.11 Fire and rescue services, local authorities as building control bodies, registered building control approvers (RBCAs), local authority housing officers and the Office of Product Safety and Standards all regulate in buildings and residential properties and have their own enforcement policies and arrangements.

2. Our enforcement policy statement

2.1 BSR believes in firm, but fair, enforcement of the law. It is our policy that all enforcement action should be proportionate to the risks, the level of non-compliance and to the seriousness of any breach of law.

2.2 BSR considers that appropriate use of our enforcement powers is important, both to secure compliance with relevant legislation and to ensure that those who have a legal duty (duty holders) are held to account for significant failures.

2.3 The following sections describe:

• the purpose of enforcement
• the principles of enforcement
• the enforcement methods available to BSR regulators
• how our enforcement principles relate to investigations and prosecutions

3. The purpose of enforcement

3.1 BSR takes enforcement action to secure the safety of people in and around buildings and improve the standards of buildings by requiring duty holders to manage the risks arising from buildings.

• As the building control authority for higher-risk buildings, BSR ensures those who carry out building work (including erection or alteration) on or in higher-risk buildings comply with the requirements of building regulations
• As the regulator for occupied higher-risk buildings, BSR takes action to ensure that accountable persons (APs) manage building safety risk in higher-risk buildings

4. Applying the regulatory principles of good practice to enforcement

4.1 BSR applies the following principles when conducting our enforcement activities:

• proportionality in how we apply the law and secure compliance
• targeting of our enforcement action
• consistency of our approach
• transparency about how we operate and what can be expected
• accountability for our actions

4.2 These principles apply both to enforcement in particular cases and to our management of enforcement activities as a whole. They are not applied in isolation but are informed by an understanding of the wider environment in which duty holders are operating, ensuring proportionate decision making and enabling innovation and growth.^{[footnote 1]}

5. Proportionality

5.1 BSR adopts a proportionate approach to enforcing the law. In our dealings with duty holders, we ensure that our enforcement action is proportionate to the risks^{[footnote 2]} or extent of non-compliance and to the seriousness of any breach of the law. This includes the impact of any action on the safety or standard of buildings or the safety of residents.

5.2 BSR expects that duty holders, in turn, will adopt a sensible and proportionate approach to managing risks, and complying with the law, prioritising the most significant risks, for example, those with the potential to cause real harm to residents and other affected by their activities.  

5.3 Applying the principle of proportionality means that BSR regulators will take particular account of how far duty holders have fallen short of what the law requires, and the extent of the risks created.

5.4 Some legal duties under building legislation (Building Act 1984, associated building regulations and Building Safety Act 2022) are specific and absolute whilst others require ‘reasonable steps’. Again, our regulators will apply the principle of proportionality in relation to both.

 5.5 BSR can also adopt a proportionate approach to enforcing the law during the initial phase of an emergency response, so that duty holders, and others, can in turn manage risks effectively and proportionately.

6. Targeting

6.1 BSR uses a risk-based approach to target our regulatory interventions on buildings and activities which give rise to the highest risk, where the hazards are least well controlled or where the effectiveness of managing building safety and building standards is in doubt.

6.2 The Building Safety Act 2022, the Building Act 1984 and associated regulations include requirements to report certain categories of incident to BSR. BSR assesses the impact of those incidents on building safety and building standards and investigate further where action is warranted to secure compliance or make buildings safe.

6.3 BSR’s enforcement actions, across all our regulatory regimes, are targeted towards those who are responsible for, and best placed to, control risks and ensure compliance - whether clients, designers, contractors, landlords, accountable persons or others.

6.4 Where several duty holders have responsibilities, BSR may target our enforcement action against more than one, where it is appropriate to do so in accordance with this policy.

7. Consistency

7.1 BSR adopts a consistent approach to enforcement of the law across different activities that we regulate.

7.2 Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve compliance with the law.

7.3 BSR understands that people managing similar risks in similar buildings expect a fair and consistent approach from our regulators when taking enforcement action. However, consistency is not a simple matter. Every situation is different. Our regulators are faced with many variables in addition to the degree of risk, the level of non-compliance and the seriousness of any breach, including the attitude and competence of management, incident history, previous enforcement action and the functional impact of the action being considered.

7.4 Any enforcement decision therefore requires the appropriate exercise of individual discretion and professional judgement.

7.5 BSR aims to ensure, through the application of our enforcement decision-making framework, the enforcement guidance tool, and through assurance and peer review, that our enforcement decisions are consistent.

7.6 Where enforcement action conflicts with the requirements of other regulators BSR will work with them to resolve the differences, where possible.

8. Transparency

8.1 BSR’s enforcement action should clearly outline to duty holders not only what they have to do but, where relevant, what they do not.

8.2 Where non-compliance has been identified, BSR’s regulators will clearly and promptly explain the decision taken, their reasons, and the actions required to achieve compliance. They will discuss reasonable timescales with the duty holder and explain what will happen if they fail to comply.

8.3 Additionally, BSR’s regulators will differentiate between the actions required to comply with the law and advice given to achieve good practice or inform of upcoming changes to legal requirements. This will ensure that unnecessary economic burdens are not imposed on businesses.

8.4 Transparency also involves keeping those affected by enforcement action informed. This will include residents of higher-risk buildings and others. However, this is subject to legal constraints on disclosure.

9. Accountability

9.1 As a regulator, BSR is accountable for our enforcement decisions and our actions can be judged against the principles and standards set out in this policy.

9.2 BSR publishes information for duty holders, or others affected by our enforcement actions, to raise complaints, request reviews or appeal certain decisions made by us. This information is available online.

10. The methods of enforcement

10.1 BSR has a range of enforcement methods to secure compliance with the law and to ensure a proportionate response to any breaches.

10.2 BSR’s regulators may provide verbal or written warnings regarding breaches of the law following an inspection or investigation. Where appropriate, we may also serve enforcement notices, prosecute or do both.

10.3 In determining what level of enforcement action is appropriate, our regulators exercise discretion and professional judgement according to the circumstances found. They are guided in this process by our enforcement decision-making framework, the enforcement guidance tool, which provides for proportionate and consistent enforcement decisions and considers the individual circumstances of the duty holder and their activities.

10.4 When acting as a building control authority for higher-risk buildings, BSR can serve the following enforcement notices:

• a compliance notice can be served when a duty holder contravenes or is likely to contravene a provision of building regulations
• a stop notice can be served when building work contravenes a provision of building regulations and the use of the building would present a risk of serious harm to people in or around the buildings, or where work is taking place without building control approval, or a compliance notice has been contravened
• a notice requiring alteration or removal of offending work can be served where building work contravenes a provision of building regulations

When regulating occupied higher-risk buildings a compliance notice can be served on an accountable person when it appears to the regulator that there is a contravention that requires action to be taken within a certain time period. If the contravention places people in imminent danger, the regulator can specify that the compliance notice is an urgent action notice.

10.5 Failure to comply with any of these enforcement notices is a criminal offence and can result in prosecution.

10.6 Both prosecution and, where appropriate, simple cautions, are important ways to hold those responsible to account for breaches of the law. Where it is appropriate to do so in accordance with this policy, these measures can be taken in addition to issuing enforcement notices.

10.7 BSR can also apply to a tribunal to appoint a special measures manager, for an occupied higher-risk building. We will consider this action where the accountable person is repeatedly failing to manage building safety risk, is taking no action to comply with duties, and residents are put at risk of serious harm. This action can be taken in addition to prosecution.

10.8 Where regulators have choices about how they exercise their functions, they will:

• consider how they might carry out their activities to minimise likely negative economic impact
• adapt their activities to maximise any likely positive economic impact

10.9 Information on enforcement notices issued and prosecutions are made publicly available through BSR’s website. We will also consider publicising any convictions to draw attention to specific risks or the need to comply with the law.

11. Investigation

11.1 BSR undertakes investigations in order to:

• gather information and establish the facts
• identify the immediate and underlying causes
• identify any lessons to be learnt to prevent recurrence
• gain insight into duty holder performance and the performance of buildings
• identify breaches of legislation
• take appropriate action, including the service of enforcement notices and prosecution to secure sustained compliance with the law, ensure serious risks are controlled and to bring duty holders to account for serious breaches.

12. Prosecution

12.1 Prosecution is an essential part of enforcement, ensuring that where there has been a serious breach of the law, duty holders (including individuals) are held to account. This includes bringing alleged offenders before the courts in England.

12.2 BSR decides whether to prosecute for building safety offences or breaches of building regulations. A prosecution will not commence unless we are satisfied there is sufficient evidence to provide a realistic prospect of conviction and that prosecution is in the public interest.

12.3 We expect, where sufficient evidence has been collected and it is considered in the public interest to prosecute, that prosecution should go ahead.

12.4 The Code for Crown Prosecutors requires the decision to prosecute to be kept under continuous review, so that any new facts or circumstances, in support of or undermining our case, are taken into account in our decision to continue or terminate the proceedings.

13. Public interest

13.1 BSR expects that a prosecution would be in the public interest where, following an investigation or other regulatory contact, one or more of the following circumstances in the (non-exhaustive) list apply:

• death was a result of a breach of the legislation
• the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it
• there has been reckless disregard of legal requirements
• there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance
• there has been a failure to comply with an enforcement notice, or there has been a repetition of a breach that was previously subject to a caution
• false information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk
• regulators have been intentionally obstructed in the lawful course of their duties
• there is an indication that economic advantage has been deliberately sought
• it is appropriate in the circumstances as a way to draw general attention to the need for compliance with the law and the maintenance of standards required by law, and conviction may deter others from similar failures to comply with the law
• a breach which gives rise to significant risk has continued despite relevant warnings
• there is a significant risk of death or serious injury arising from a building safety risk

13.2 BSR will continue to seek to raise the courts’ awareness of the gravity of alleged offences to the full extent of their powers whilst recognising that it is for the courts to decide whether or not someone is guilty and what penalty to impose on conviction.

14. Prosecution of individuals

14.1 Subject to the above, BSR will identify and prosecute individuals, or recommend prosecution, where we consider this is warranted. We will consider the management arrangements and the role played by individual directors and managers. We will consider taking action against them where investigation reveals that the offence was committed with their consent or connivance or was attributable to their neglect and where it would be appropriate to do so in accordance with this policy. Where appropriate, we will seek disqualification of directors under the Company Directors Disqualification Act 1986.

15. Crown bodies

15.1 The Crown is bound by most of the provisions of the Building Act 1984 and the Building Safety Act 2022 but is exempt from prosecution. BSR would seek Crown censure in circumstances where prosecution would otherwise be justified.

Section 2: Regulating the building control profession

1. Introduction

1.1 Under the Building Safety Act 2022, Building Safety Regulator (BSR) is responsible for regulating the building control profession. This includes local authorities, registered building control approvers (RBCAs) and individual registered building inspectors (RBIs).

1.2 RBIs, working for RBCAs or local authorities or part of a BSR multi-disciplinary team, are held to a consistent set of standards.

1.3 Individuals who register as a RBI are subject to a code of conduct, setting out standards and principles of behaviour.

1.4 RBCAs are building control bodies and subject to professional conduct rules setting out standards and principles of behaviour.

1.5 Local authority building control bodies and RBCAs must comply with the operational standards rules (OSRs). The OSRs apply to building control functions delivered by local authorities and RBCAs and relate to organisational structures and resourcing, professional competence, integrity and good building control process management. The OSRs are underpinned by key performance indicator monitoring arrangements. Local authorities and RBCAs are required to provide BSR with data, which will enable BSR to make a judgement about how effectively building control functions are being delivered.

2. Our enforcement policy statement

2.1 As regulator of the building control profession, BSR believes in firm but fair enforcement to raise competence, behavioural and performance standards of the building control profession.

3. The purpose of enforcement

3.1 BSR’s enforcement activities aim to ensure the safety of people in and around buildings and maintain public confidence in the building control profession. They also promote competence and improve standards of compliance across the building control profession.

4. The principles of enforcement

4.1 BSR will assess the performance of local authorities and RBCAs. We will assess performance data and undertake inspections to verify compliance with standards. As the regulator for the building control profession, we will investigate, and act, where individuals or organisations are found to be guilty of professional misconduct under the code of conduct or to have contravened the professional conduct rules and/or OSRs.

5. Proportionality

5.1 BSR will take proportionate enforcement action, considering the seriousness of any misconduct / contravention, how far short the individual or organisation has fallen, or the extent of non-compliance when determining what action we will take. We publish the standards expected via code of conduct, professional conduct rules and OSRs.

6. Targeting

6.1 BSR will use an evidence-based and intelligence-led approach to target enforcement action towards an individual or organisation who has failed to comply with the code of conduct, the professional conduct rules or the OSRs.

6.2 BSR will adopt a risk-based approach in deciding whether to investigate any allegation of professional misconduct or contravention. This will include assessment of factors such as the nature and seriousness of allegation(s) and the extent of any impact or potential impact, including non-compliance, harm or potential harm to persons in and around buildings.

7. Consistency

7.1 BSR aims to ensure, through the application of our enforcement decision making framework and through assurance and peer review, that our enforcement decisions are consistent. We will consider evidence, including representations from the party under investigation. We will apply sanctions based on a decision-making framework.

8. Transparency

8.1 BSR publishes the standards to which we expect building control bodies and individuals to adhere. We will notify individuals or organisations when they are under investigation, provide an opportunity for them to make representations and provide an explanation for our decisions.

9. Accountability

9.1 As the regulatory authority for the building control profession, BSR is accountable for our enforcement decisions and our actions can be judged against the principles and standards set out in this policy.

9.2 We will clearly inform individuals or organisations affected by our enforcement actions of their right to appeal any disciplinary orders made against them.

9.3 In addition, BSR will publish information outlining how we will deal with correspondence and handle complaints.

10. The methods of enforcement

10.1 When regulating the building control profession, BSR can:

• make disciplinary orders
• vary, suspend or cancel registration for RBCAs and RBIs
• impose financial penalties on RBCAs and RBIs
• prosecute criminal offences relating to registration and the OSRs
• issue an improvement notice to a local authority or RBCA if it appears they have contravened the OSR
• issue a serious contravention notice to a local authority or RBCA if it appears that either the OSRs have been contravened and, as a result, the safety of persons in or about building has been, or may have been, put at risk; or they have been given an improvement notice and failed to remedy the contravention(s) contained within that notice
• recommend to the Secretary of State a transfer of a local authority’s building control functions to another local authority or the Secretary of State

11. Investigation

11.1 BSR’s approach to investigation is detailed in our investigation procedure statement. We investigate potential contraventions and professional misconduct by the building control profession. We investigate to:

• collect evidence that is sufficient to effectively inform enforcement decision-making on contraventions or professional misconduct and is admissible at court or tribunal
• determine whether a contravention or professional misconduct occurred
• hold the responsible professional to account, appropriately and proportionately

12. Decisions on making disciplinary orders

12.1 When deciding whether to make a disciplinary order, BSR will consider a number of factors, including:

• the seriousness of the professional misconduct or contravention
• the impact or potential impact arising from the professional misconduct or contravention of the professional conduct rules
• relevant previous conduct (of the individual or organisation)
• the level of cooperation offered by the individual or organisation during investigation
• the steps taken by the individual or organisation to prevent reoccurrence
• early admission to professional misconduct or contravention
• representations provided by the individual or organisation

12.2 On consideration of these factors, BSR may apply an informal resolution, where the individual or organisation may be advised to undertake a course of training or implement improvements to existing systems.

12.3 It will be more likely that a disciplinary order will be made against an individual or organisation where:

• the impact (or potential impact) of the misconduct or contravention on persons in and around buildings was significant (including consideration of actual or potential harm caused)
• the professional misconduct or contravention is sufficiently serious that it may lead to a restriction on the individual’s or organisation’s registration (either variation, suspension or cancellation)
• there is evidence to indicate the professional misconduct or contravention was intentional, reckless or arose due to negligence of the individual or organisation
• there is evidence of repeated professional misconduct or contravention
• the individual or organisation has failed to comply with a formal notice
• there has been intentional obstruction by the individual or organisation during our investigation

13. Prosecution

13.1 In circumstances where a criminal offence is suspected under sections 58L, 58M, 58W and 58X of the Building Act 1984, BSR will apply the Code for Crown Prosecutors when deciding whether to prosecute.

14. Appeals

14.1 If a sanction is imposed against a RBCA or a RBI, they will be informed of their rights to appeal to a first-tier tribunal. Grounds for appeal are that the decision was erroneous in fact, and/or wrong in law, and/or unreasonable, and/or the decision-making process was procedurally flawed. The tribunal may confirm, vary, or quash the decision.

1. See the Regulators’ Code. ↩

2. In this policy, ‘risk’ (where the term is used alone) is defined broadly to include a source of possible harm, the likelihood of that harm occurring, and the severity of its outcome. ↩