The First Tier Tribunal (FTT) have made their first determination in relation to Section 75(1) of the Building Safety Act 2022 as to who is the Accountable Person for a high-risk building. Clause 75(1) of the Building Safety Act 2002 states:
“An interested person may apply to the tribunal for a determination, as regards a higher-risk building, of any of the following—
(a)the person or persons who are accountable persons for the building.
(b)the person who is the principal accountable person for the building.
(c)the part of the building for which any accountable person for the building is responsible.”
The case detailed an estate of 5 higher-risk buildings. Previously, the FTT had appointed a manager of the Estate as per Commonhold and Leasehold Reform Act 2002 which became effective on 1 October 2016. The FTT were to determine two main points:
- Who is the accountable person in relation to the buildings?
- What effect does the appointment of a manager have on the accountable person?
There are two different situations to be considered when determining who might be an Accountable Person:
- An organisation or individual who owns, or claims to own, any part of the common parts of the building (Section 72(1)(a))) or
- A person or organisation who has, or claims to have, a repairing obligation for any part of the common parts (Section 72(1)(b)).
Common Parts is defined in Section 72(6):
(a) the structure and exterior of the building, except so far as included in a demise of a single dwelling or of premises to be occupied for the purposes of a business, or
(b) any part of the building provided for the use, benefit and enjoyment of the residents of more than one residential unit (whether alone or with other persons);
Section 110 of the BSA 2022 amended obligations which relate to appointment of manager:
“An order under this section may not provide for a manager to carry out a function in relation to a higher-risk building where Part 4 of the Building Safety Act 2022 or regulations made under that Part provide for that function to be carried out by an accountable person for that building.”
The FTT determined that the manager appointed by the FTT could not be classified as an accountable person. A manager appointed under an order by the FTT did not have a legal estate in the building and therefore did not satisfy Section 72(1)(a).
In regards to Section 72(1)(b), it was confirmed that despite the FTT appointment of a manager meant they have repairing obligations in relation to the common parts of the building, it was questioned as they whether they are under a relevant repairing obligation.
Relevant repairing obligations are defined in Section 72(6) as “a person is under a relevant repairing obligation in relation to anything if the person is required, under a lease or by virtue of an enactment, to repair or maintain that thing”.
On the basis that the appointed manager does not have any obligations under a lease by virtue of an order of the FTT that imposes obligations on them. It was further questioned whether the appointed manager fell under the “by virtue of an enactment”, however it was determined that this is to be read as a provision made in legislation. Therefore they also did not satisfy Section 72(1)(b).
It was the opinion of the FTT that an appointment of a manager by the FTT is not obligated to undertake provisions in relation to higher-risk buildings as per Part 4 of BSA 2022. These obligations are to be undertaken by the Accountable Person. If however, there are serious failures on two or more occasions by an accountable person, under the BSA 2022 an application can be made for an order appointing an individual to be a special measures manager.