As discussed in our recent post the new building safety regime introduced by the Building Safety Act 2022 ("BSA") came in to force on 1 October 2023. The implications of the new safety regime in relation to the design, construction and occupation of residential buildings has been widely discussed. However, it is not generally appreciated that many aspects of the new safety regime have wider application - including application to the healthcare and care home sectors.
Application of Building Safety Regime
The BSA has introduced a new three stage (gateways) building safety regime, overseen by the Building Safety Regulator ("BSR"), governing the design and construction of all new higher-risk buildings ("HRBs") and the renovation or refurbishment of existing HRBs in England. Under the BSA, an HRB is defined as a building over 18 metres or 7 storeys in height and which:
- contains at least two residential units (including student accommodation);
- is a care home; or
- is a hospital.
Expanding upon that definition, for the purposes of the BSA:
- a care home means any facility that provides accommodation, together with nursing or personal care, for those who are or have been ill, mentally unwell, or dependent on alcohol or drugs or who are disabled or infirm; and
- a hospital means any institution or facility for receiving and treating those who are ill, convalescing or need medical rehabilitation, or a maternity home. However, facilities without at least one bed for an overnight stay (e.g. GP surgeries etc.) are not considered hospitals under the BSA.
Accordingly, the procurement of a new healthcare or care home facility and/or the renovation of an existing healthcare or care home facility that falls within the definition of an HRB will be required to comply with the new gateway regime (as considered in more detail in our post).
Failure to adhere to the requirements of the gateway regime is likely to result in significant delays and/or increased costs in the development and/or renovation of any healthcare or care home facility that falls within the definition of an HRB, and could ultimately result in that facility not receiving a building control certificate meaning that the facility cannot be deemed to be complete or legally occupied.
For the avoidance of doubt, the provisions of the new building safety regime governing the occupation of HRBs do not extend to the occupational phase of healthcare and/or care home facilities as the occupation these buildings is already governed by the requirements of the Regulatory Reform (Fire Safety) Order 2005.
One of the objectives of the new building safety regime is the promotion of increased competence across the construction industry and the improvement of standards in design and construction.
To this end, the roles of “Client”, “Principal Designer” and “Principal Contractor" under the CDM Regulations 2015 have been expanded under the new regime to impose additional obligations on these duty holders to promote compliance with the Building Regulations. It is important to note that these expanded duties apply to all construction projects and not just projects relating to the development and/or renovation of an HRB.
Accordingly, anyone who will be the “Client" for the purposes of the development of a new healthcare or care home facility and/or renovation of an existing healthcare or care home facility will need to take appropriate steps to:
- ensure that suitable arrangements are in place to plan, manage and monitor the project;
- ensure that any designers and/or contractors appointed in relation to the project are competent and have the right capabilities in respect of the work; and
- where there are multiple parties working on the project, appoint a “Principal Designer” and “Principal Contractor” in respect of the works.
Failure to comply with the new building safety regime is an offence which can be prosecuted by the BSR. The sanctions for a building safety related offences include unlimited fines and, for individuals, up to two years imprisonment.
The new building safety regime is intended to reduce building safety risks arising during the design and construction of HRBs in England and aims to drive improved standards across the construction industry. As set out above aspects of this new regime apply to the development and/or renovation of health care and care home facilities.
Aside from risking the safety of patients and/or residents of healthcare and care home facilities, failure to comply with the new regime is likely to result is costly redesigns and delays during the development and/or renovation process and, in extreme cases, could mean that a facility cannot legally be occupied. Building safety failures could also result in parties being subject to significant sanctions under the BSA and/or serious reputational issues.
It is therefore vital that everyone involved with the procurement and/or refurbishment of healthcare and/or care home facilities is aware of the requirements of the BSA and engages with their duties and obligations under the new building safety regime.