Prepared by Jeremy Weaver, Associate Director at Brady Solicitors Litigation Team. Brady Solicitors advises developers, freeholders, managing agents and residential property professionals on Building Safety Act obligations, fire safety compliance, and residential property disputes.
If you manage a residential building, own the freehold of a block of flats, or sit on an RTM company board, you will have come across both the Fire Safety Act 2021 and the Building Safety Act 2022. They overlap in ways that are easy to misread. Understanding which applies, and when both apply simultaneously, is important.
The Foundation: The Regulatory Reform (Fire Safety) Order 2005
Neither Act can be understood without the Regulatory Reform (Fire Safety) Order 2005, which governs fire safety in non-domestic premises and the common parts of residential buildings. It places duties on the ‘responsible person’: typically the freeholder, the managing agent acting on their behalf, or an RTM company where the right to manage has been acquired.
The responsible person must carry out and regularly review a fire risk assessment, implement appropriate fire safety measures, and ensure that relevant persons can safely evacuate. Criminal liability attaches where such a failure places relevant persons at risk of death or serious injury in case of fire, and, without that qualification, where a fire and rescue authority notice is not followed.
What the Fire Safety Act 2021 Changed
Before the Fire Safety Act 2021, there was genuine uncertainty about whether the Order extended to the structure and external walls of residential blocks, including cladding, balconies, and flat entrance doors. The 2021 Act resolved that uncertainty.
Section 1 of the Fire Safety Act 2021, which came into force in England on 16 May 2022, amended article 6 of the Regulatory Reform (Fire Safety) Order to make clear that, where a building contains 2 or more sets of domestic premises, the Order applies to:
- the building’s structure and external walls and any common parts, including doors and windows in those walls and anything attached to the exterior of those walls, including balconies; and
- all doors between the domestic premises and common parts, which captures flat entrance doors.
Section 3 also introduced risk-based guidance provisions. In proceedings for alleged contraventions of articles 8 to 22 in a building with two or more sets of domestic premises, proof of compliance with guidance tends to establish no breach; non-compliance tends to establish that there was.
The Fire Safety (England) Regulations 2022, in force from 23 January 2023, imposed further duties on responsible persons in high-rise residential buildings, including sharing information about external wall construction with fire and rescue services.
The Building Safety Act 2022: A Separate Framework
The Building Safety Act 2022 operates on different terrain, though the two regimes are not sealed off from one another. Section 156 amended the Fire Safety Order directly with effect from 1 October 2023, strengthening recording duties, requiring responsible persons to give residents fire safety information, and raising the maximum fine for certain offences to an unlimited amount. It also inserted article 22B, requiring responsible persons in higher-risk buildings to co-operate with the accountable person. The BSA is a separate framework with its own duty holders and enforcement body.
The Act establishes the roles of ‘accountable person’ and ‘principal accountable person’ for occupied higher-risk buildings, defined by section 65 as buildings in England of at least 18 metres, or with at least 7 storeys, containing at least two residential units. For those buildings the Building Safety Regulator (BSR) is the oversight authority.
The two frameworks apply. The Act’s other major function is to set out who pays for historical defects, and here it applies a lower threshold. The leaseholder protections in Part 5 and Schedule 8 apply not to higher-risk buildings but to ‘relevant buildings’, defined by section 117 as self-contained buildings, or parts of buildings, containing at least two dwellings and either at least 11 metres in height or at least 5 storeys. Within those, the qualifying leaseholder test and the Schedule 8 protections, which range from caps to outright prohibitions on recovery, apply to relevant defects arising from works completed between 28 June 1992 and 28 June 2022. Remediation orders and remediation contribution orders before the First-tier Tribunal are the enforcement mechanism where works are not carried out or liability is disputed. Remediation contribution orders reach beyond the freeholder to developers and associated companies, whom the Court of Appeal has confirmed sit at the top of the hierarchy.
The two frameworks apply to the same buildings but answer different questions. The Fire Safety Order asks whether the building is being managed safely right now. The Building Safety Act asks who is responsible for historical defects, and who pays to fix them.
Where the Two Regimes Overlap in Practice
External walls and cladding sit under both. A cladding system presenting a fire safety risk falls within the fire risk assessment required by the Fire Safety Order (FSO), as clarified by the Fire Safety Act 2021. The same cladding may also be a relevant defect under the Building Safety Act, engaging the leaseholder protections and potentially a remediation order or remediation contribution order. Whether the works are urgently needed is an FSO question. Who carries them out, and who pays, is a BSA question.
Flat entrance doors are the second. The Fire Safety Act 2021 brought them within scope of the FSO, requiring responsible persons to assess their fire resistance. We regularly see leaseholders argue that wear and tear on fire doors is a building safety defect under the BSA and therefore not their cost. Wear and tear is not automatically a relevant defect, but it is an FSO compliance matter the responsible person must address regardless.
Waking watch is the third, and an expensive one: government data from 2020 puts the average at around £11,400 per building per month, or roughly £137 per dwelling, with London materially higher. Sections 114 to 116 of the Leasehold and Freehold Reform Act 2024, in force from 31 October 2024, brought waking watch and other interim measures within the definition of ‘relevant steps’ in section 120 of the Building Safety Act. Qualifying leaseholders therefore cannot be charged for them under Schedule 8, and the tribunal can determine who bears the cost on a remediation contribution order application under section 124. Section 116 is expressly retrospective, reaching costs incurred, and proceedings pending, before that date. The Interim Measures Alarm Fund, launched on 1 April 2026 and managed by Homes England, funds common alarm installation in eligible buildings to reduce reliance on waking watch.
The Section 20 Problem
A further tension involves section 20 of the Landlord and Tenant Act 1985. Where the cost of works is recovered through the service charge, whether they arise from an FSO obligation, a BSA remediation requirement, or both, the section 20 consultation process must still be followed if any one leaseholder’s contribution will exceed the statutory threshold of £250 per leaseholder.
The difficulty is that urgent works and the consultation timetable do not always align, and a managing agent served with a fire and rescue authority notice may need to begin works before consultation is complete. Dispensation can be sought from the FTT, but freeholders should understand what it now costs them. In Adriatic Land 5 Ltd v Long Leaseholders at Hippersley Point, dispensation for urgent fire safety works was granted on condition that the freeholder could not recover the costs of the application from leaseholders. The Court of Appeal held unanimously that section 20ZA dispensation costs fall within paragraph 9 of Schedule 8, under which no service charge is payable under a qualifying lease for legal or other professional services relating to liability for relevant defects. That much is settled: seek dispensation, but where relevant defects are engaged expect to fund the application yourself as against qualifying leaseholders. The court divided only on whether that protection reaches costs incurred before the Act commenced, and that narrower question is listed for the Supreme Court on 18 November 2026.
Failure to consult does not make the charge unrecoverable outright, but it caps the recoverable contribution at £250 per leaseholder unless dispensation is granted. It is a point that will be examined if the demand is challenged.
Two Enforcers: The Fire and Rescue Authority and the Building Safety Regulator
The Regulatory Reform (Fire Safety) Order is enforced by local fire and rescue authorities, which can inspect buildings, issue enforcement notices, prohibition notices, and bring criminal prosecutions.
The Building Safety Act’s occupation regime is enforced by the Building Safety Regulator, which oversees higher-risk buildings. Outside that regime, building control enforcement sits with local authorities. On 27 January 2026 the BSR moved out of the Health and Safety Executive to become a standalone body sponsored by the MHCLG, a step towards the single construction regulator recommended by the Grenfell Tower Inquiry.
What This Means for Freeholders, Managing Agents, and RTM Companies
A managing agent acting for a freeholder of a higher-risk building will often be the responsible person under the Fire Safety Order and the organisation implementing the accountable person’s obligations under the Building Safety Act. But the roles do not map neatly onto each other. The accountable person is the party holding a legal estate in possession in the common parts, or under a relevant repairing obligation, so an RTM company can be the accountable person for its own building. Identifying who holds each role is the first question, not an assumption. Confusing the two can expose clients to enforcement risk or service charge recovery failures.
We do suggest taking specialist legal advice if you are uncertain which framework applies to your building. If you require any expert legal assistance in relation to fire safety obligations or the Building Safety Act, please do get in touch and one of our team will be happy to help.
