The Building Safety Regulator – Enforcement powers
Updated: Oct 24, 2022
The Building Safety Act 2022, which incorporates many of the recommendations of the Hackitt Report on the Grenfell fire, has become law. It introduces major changes in the way that residential buildings are constructed and maintained, and oversight of safety standards for construction products. Probably the most significant and immediate of those changes is the establishment of a Building Safety Regulator (BSR), embedded within the Health and Safety Executive (HSE). But what powers will the new regulator have to ensure that the requirements of the Act are observed? Section 22 of the Act covers Authorised Officers. The BSR can authorise a person in relation to specified paragraphs of Schedule 2 (investigatory powers). An authorised officer has significant investigatory powers, and businesses should be aware of what an authorised officer can do in pursuit of their duties. Entry to non-domestic premises without warrant An authorised officer can enter any non-domestic premises without a warrant if they believe it’s necessary to do so - at any reasonable time, or at any time if they believe the situation is (or may be) dangerous. When they do so, they can be accompanied by any person and bring anything they need to carry out their purpose. If they think they’re going to be obstructed while doing so, they can bring a police officer with them. While they’re on the premises, the officer can take measurements, photographs and recordings. They can also seize anything if it looks as though it’s evidence of an offence under the Act. Entry to non-domestic premises with warrant An authorised officer can also apply to a justice of the peace for a warrant in respect of non-domestic premises. Entry to domestic premises (with warrant) If an authorised officer wants to enter domestic premises in the course of an investigation, they can apply to a justice of the peace to obtain a warrant that will allow them to do so. To obtain that warrant, they will need to show that: (a) it’s necessary for them to enter the premises for a relevant purpose, and (b) one of the following conditions is met (i) that entry to the premises for the relevant purpose has been, or is likely to be, refused; (ii) that no person entitled to grant entry to the premises can be found; (iii) that requesting entry may frustrate or seriously prejudice the purpose of entry. Power to require information, documents etc The authorised officer can ask for specified information or documents to be produced and handed over. If the document is held in electronic form, the person providing it must produce it in a legible form or in a form from which a legible form can be readily produced. They can also inspect and take copies of any document that’s produced on request. Providing it’s for a relevant purpose, the authorised officer can ask for facilities and assistance, and they can set a time limit for provision of these.
However, they must provide the person who they're asking with a written notice that sets out the relevant paragraph of the Act and the consequence of failing to comply with that requirement.
Retention of evidence etc The Act also says that anything that has been seized, or any document that has been produced on request can be kept for as long as is necessary in all the circumstances. Penalties for non-compliance Anyone who is asked for documents or information and refuses to do so without a reasonable excuse will be committing an offence. They will be liable: (a) on summary conviction, to imprisonment for a maximum 12-month term for either-way offences or a fine (or both); (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both). What are “summary” and “indictable” offences? Offences fall into three main types in UK law: summary only, either way and indictable only. Summary only offences are of lower severity and can only be tried in the Magistrates’ Court. Indictable only offences are the most serious and can only be tried in Crown Court. A wide range of other offences can be tried in either court and these are known as “either way” offences. “Either way” is where the prosecution/defence make representations, then the Magistrates or District Judge decide whether it is suitable for a summary trial or if it should be committed to the Crown Court (having been deemed unsuitable for the Magistrate’s Court). Legal Privilege It’s important to note that an authorised officer’s powers under the Act don’t allow them to seize anything or require a person to produce a document or information if that could be covered by legal privilege. Offences If a person intentionally obstructs an authorised officer exercising a relevant building function, they will have committed an offence. This is punishable on summary conviction with a fine not exceeding Level 3 on the standard scale (currently £1,000). A person who impersonates an authorised officer with the intention to deceive somebody, commits an offence. This is punishable on summary conviction with a fine. Provision of false or misleading information to regulator If a person provides false or misleading information to the BSR, they will be committing an offence, if that provision is: (a) in purported compliance with a building enactment or a requirement imposed by virtue of such an enactment, (b) in connection with an application made to the regulator under a building enactment, or (c) for the purpose of avoiding enforcement action being taken or continued, and the person knows that it is false or misleading, or doesn’t care whether it is or not. A person guilty of an offence under this section is liable: (a) on summary conviction, to imprisonment for a maximum 12-month term for either-way offences or a fine (or both) (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both). It will be noticed that these powers and penalties are very similar to those of health and safety inspectors, and that is because the HSE will effectively be running the BSR. The HSE’s powers are considerable and although the BSR is only just being established, it is likely that the reach of its powers and their operation will be similar. Therefore, it is crucial that if a business finds itself subject to investigation by the BSR, it should obtain legal advice and representation as soon as possible to ensure it does not inadvertently make its position worse.