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Building Maintenance: Top 5 Risks of Non-Compliance
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The fatal fire that occurred at Lakanal House in 2009 is just one example of how severe the consequences of lax building maintenance can be for occupants. But what about the people who are held accountable for such tragedies: the building owner, or those who are responsible: the Facilities Manager?
As the industry standard for building maintenance, SFG20’s team of Technical Authors have been creating guidance to inform compliant maintenance strategies for over 30 years - so if you've come for practical maintenance advice, you're in the right place.
By the end of this article, you will understand the severity of the risks you take by not complying to the maintenance requirement within Building Safety legislation, including prison time, financial penalties, contractual breach, reputational damage and psychological damage.
1. Prison
Prison time is the most significant threat to building owners and Facilities Managers who fail to comply with building safety legislation. The crime and length of sentence depends upon the level of the negligence and the severity of the incident.
Gross negligence manslaughter is the worst charge FMs or owners can face, as it carries a maximum sentence of 18 years or more depending on how many lives are lost as a result of an incident.
Gross negligence is a conscious and voluntary disregard of the need to use reasonable care which is likely to cause foreseeable grave injury or harm to persons, property or both. The offence of gross negligence manslaughter (GNM) is committed where a death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant.
Most commonly, this offence occurs when a person in an official position commits an unlawful act that they should have known would result in the death of another. However, the crime is not dependent on this act being unlawful. In many cases, the defendant commits a lawful act in a way that renders their actions criminal.
In 2017, a Nottingham based student lettings firm pleaded guilty to 5 breaches of the Regulatory Reform (Fire Safety) Order 2005, and the director spent 3 months in prison.
2. Financial Penalties
Fines are the most common outcome of maintenance negligence and are normally served by the Building Safety Regulator (BSR).
The same student lettings firm mentioned above was ordered to pay a total of £190,000 in fines and compensation costs after the director ignored a prohibition notice served by the Nottingham Fire and Rescue Service following an inspection.
In 2017, the building owner was ordered to pay £570,000 in fines after an uncontrolled fire consumed a large part of the Lakanal House tower block. The fire was directly attributed to poor fire risk assessment and maintenance practices, and were clearly negligent of statutory compliance.
For example, the front doors of many flats were fire resistant but did not have smoke seals, meaning the smoke spread. Unfortunately, this missing element wasn't flagged in any risk assessment or maintenance works.
Residents were given advice to remain in their flats during the fire under the assumption that the building complied with the latest regulations and legislation.
As a result of the lack of smoke signals and other porous structures in the building, 6 residents died of smoke inhalation.
3. Contractual Breach
The contractual consequences of not complying with building maintenance related legislation can be extremely damaging whether you are a building owner, Facilities Manager or contractor.
With the increased regulatory burden placed on building owners and managing agents through the Building Safety Act 2022 and its supporting legislation, parties should ensure they are clear on what their obligations are and provide for them in contracts to avoid disputes further down the line.
Each piece of legislation has slight nuances when it comes to identifying the party who is responsible or accountable.
Accountability Example
Under the BSA22 for example, the Accountable Person is an organisation or individual who owns or has a legal obligation to repair any common parts of the building. Each building must have one clearly identifiable AP, known as the Principal Accountable Person (PAP). The PAP is usually an organisation, such as the landlord/building owner, commonhold association, local authority or social housing provider.
It's a common misconception, but APs and the PAP cannot delegate their legal obligations to others.
APs and the PAP can employ an organisation or individual, like a managing agent, to carry out duties on their behalf. However, the accountability for making sure those duties are carried out and the liability for a building’s safety remains with the APs and PAP.
The PAP must make sure that the structural and fire safety risks are managed properly for the whole building, while APs are responsible for assessing and managing the risks posed to people in and about the building from structural failure or the spread of fire in the parts of the building they are responsible for.
Contractual vs Legislative Obligations
When a maintenance contract is drawn up there is usually a catch all obligation ‘to comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services’.
Failure to do so will place you in breach of your contract.
DON'T FORGET: Duty holders can delegate the works required to maintain compliance, but as duty holders, they cannot delegate their legislative obligation to meet building safety requirements under the Building Safety Act 2022.
You can outsource the work, but not the risk.
Legal vs Financial vs Commercial Risk
Building maintenance risk types defined:
- Adherence to all current legislation is a legal risk.
- The additional costs involved from a change in legislation is a financial risk.
- A breach of contract is a commercial risk.
If you are a contractor, you need to consider where the legal, financial and commercial risk sits within the contract for legislation changing during the term of the contract.
As highlighted earlier, the legal risk will normally be fixed through legislation, but who covers additional costs resulting from legislative change is deemed to be a financial risk and failure to adhere to the obligation within a contract is a commercial risk.
If the financial risk sits with the Contractor, then an allowance should be built into the price, so that works agreed can adapt to ever changing legislation. However, the contracting party may deem the financial risk sits with them and provide a clause where a claim can be made by the contractor for a change in the law of the country in which the service is delivered.
There may be clear remedies available within the contract to deal with the breach. The last resort for parties in dispute will be to seek legal redress through the courts which can be costly both financially and reputationally.
4. Reputational Damage
The reputational damage that comes with gross negligence cannot be overstated.
Lakanal House was considered a model of compliance when constructed in 1954, however lacklustre controls during lifecycle replacement and upgrade work as well as failures in maintenance regimes across the subsequent decades led to the building falling behind modern legislation.
The building owner pleaded guilty to four offences under the Regulatory Reform (Fire Safety) Order. The legal case did not centre on the fire itself, but on the accountability to risk that existed in the building prior to the fire. 
The focus was on the building defects that sat quietly in the background. These defects included serious breaches of fire compartmentation throughout the structure, corridors and staircases in the building.
There were no intumescent strips and smoke seals in fire doors that would have prevented the spread of fire and smoke, and no fire risk assessment existed for the building.
The building owner only had a general risk assessment that covered their whole portfolio rather than this specific building, as that had been acceptable practice historically.
Unfortunately, ignorance is one of the biggest contributors to maintenance-related incidents, but it's not an excuse in the eyes of the law, especially when it is at the expense of human life.
One of the major problems we run into at SFG20 is that many people are working to old versions of the standard. They think that they are compliant with building maintenance legislation, but in reality they are taking huge risks with the buildings and assets they manage, because they don't realise the standard is constantly updated to reflect the latest changes to legislation.
Imagine holding up a print-out of an SFG20 maintenance schedule from 2019 in court as evidence you take compliance seriously – what do you think the judge would say? The solution is just to never get in that situation in the first place by ensuring you have an active license.
5. Psychological Damage
Finally let’s cover the psychological damage that comes from holding responsibility for the consequences of a negligence incident. How would you sleep at night, knowing people were injured or had lost their lives because of your poor decisions?
How would you go about your responsibilities day after day without feeling the stress of continually flouting the law and endangering lives for short-term cost savings and major long-term financial losses?
How can you avoid compliance risks?
The first step to towards combatting compliance risks is to understand your obligations.
To find out how you can avoid risks such as prison time, fines or a lifetime of guilt hit the button below to download our e-guide.
Why download an e-guide from SFG20? The SFG20 mission is to make buildings safer and better, we are the industry standard for building maintenance in the UK, and we've been fighting to raise maintenance standards and improve occupant quality of life for more than 30 years.
Simply put, you won't find another company as driven to support you in mitigating your risk or achieving your compliance goals as SFG20.
If you need further support or clarification on anything in this article, please don't hesitate to contact us, we are always happy to help.
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