Episode 222 - Regulation 38

This week we will be talking about Regulation 38. This episode content meets PC2 - Clients, Users & Delivery of Services & PC3 - Legal Framework & Processes of the Part 3 Criteria.

Resources from today's episode:

Websites:

• https://www.legislation.gov.uk/uksi/2010/2214/regulation/38
• https://www.approvedinspectorsltd.co.uk/regulation-38/

Thank you for listening! Please follow me on Instagram @part3withme for weekly content and updates or contact me via email me at part3withme@outlook.com or on LinkedIn. 

Website: www.part3withme.com

Join me next week for more Part3 With Me time.

If you liked this episode please give it a rating to help reach more fellow Part3er's!

Transcript

Episode 222:

Hello and Welcome to the Part3 with me podcast. 

The show designed to help Part 3 students kick-start their careers as qualified architects, while offering valuable refresher episodes for practising professionals.

If you’d like to support the podcast and help us keep creating great content, check out the link in the episode notes to subscribe. We also provide one-to-one mentoring to help you prepare for your submissions, exams, and interview, visit our website to learn more, connect with us on LinkedIn via the Part 3 With Me page, find us on Instagram at @part3withme, or email at part3withme@outlook.com.

I am your host Maria Skoutari and this week we will be talking about Regulation 38. Todays’ episode meets PC2 & PC3 of the Part 3 Criteria. 

And make sure to stay until the end for today’s scenario.

Now, if you've been listening to this podcast for a while, you'll know we've spent a good deal of time exploring the Building Safety Act 2022, the various guidances and consulations that have been implemented and taken place since the acts release and what it means for architects working on higher-risk buildings. We've talked about the Accountable Person, the Principal Designer's duties, and the golden thread of information. Today, we're zooming in on one specific regulation that sits right at the heart of that golden thread idea, but that has existed in our regulatory framework for much longer than the Building Safety Act itself. Regulation 38. It's one of those requirements that can sometimes get lost in the noise of project handover, but getting it wrong or ignoring it entirely has real consequences, both legally and in terms of building safety.

So let's get into it.

Starting with, what is Regulation 38 and where it comes from:

In essence, it is designed to ensure that the person who takes responsibility for the building after construction has enough information to manage fire safety properly. Regulation 38 sits within Part 8 of the Building Regulations 2010, which is the principal piece of secondary legislation governing the design and construction of buildings in England and Wales. It is made under the Building Act 1984, and as a statutory instrument it carries the full force of law. The specific regulation we're discussing today, Regulation 38, is titled 'Fire Safety Information,' and it places a legal duty on the person carrying out building work to pass on fire safety information to the responsible person for the building.

The regulation applies in specific circumstances. It is triggered when building work consists of, or includes, the erection or extension of a relevant building, or is carried out in connection with a relevant change of use and where Part B of Schedule 1 of the Building Regulations imposes a requirement in relation to that work. Part B, as many of you will know, covers fire safety, things like means of warning and escape, internal fire spread through linings and structure, external fire spread, and access and facilities for the fire service.

So the question becomes, what is a 'relevant building' for the purposes of Regulation 38? A relevant building is a building to which the Regulatory Reform (Fire Safety) Order 2005 applies, or will apply after the completion of the building work. The Fire Safety Order, which we covered in the previous episode, as you know covers almost all non-domestic premises including offices, shops, factories, warehouses, hotels, care homes, hospitals, and common areas of multi-occupancy residential buildings.

And who is the 'responsible person'? Again, the regulation borrows the definition directly from the Fire Safety Order. The responsible person is, broadly speaking, the employer if the premises are a workplace, or the person in control of the premises in any other case so a building owner, a facilities manager, a managing agent. This is important as architects need to know who they are handing information to, not just that a handover obligation exists.

Now, lets walk through what the regulation actually requires and by when:

Regulation 38 puts the onus squarely on the person carrying out the work to give fire safety information to the responsible person. The timing of this handover is prescribed. Where the building, proposed building, or extension is not occupied during the building work, the information must be provided no later than the date of completion of the work, or the date of occupation of the building or extension, whichever is the earlier. In any other case, for instance, where work is carried out in an occupied building, the deadline is the date of completion of the work.

Now, an important development for England only, is that the regulation has been strengthened. The responsible person is now required to give the person carrying out the work a written notice acknowledging receipt of the fire safety information and confirming that the information provided is sufficient to enable them to understand, operate, and maintain the building, including the fire safety systems in it, after the building work in question. This two-way acknowledgement is significant. It's not simply a case of dropping a folder of documents on a desk at practical completion. There has to be a formal confirmation loop.

And it doesn't stop there. In England, the person carrying out the work must then notify the relevant authority, typically the Registered Building Control Approver or, if the work went through local authority building control, the local authority, confirming that they have given the fire safety information to the responsible person, and either that they have received the acknowledgement notice from the responsible person, or explaining the steps they have taken to obtain it. The timeframes for giving this notification to the authority vary depending on whether the work is subject to self-certification or third-party certification schemes. For most projects going through standard building control routes, the notification must be given within five days of the handover date.

In Wales, the position is simpler in that the person carrying out the work must provide the fire safety information to the responsible person no later than the date of completion, or the date of occupation, whichever is the earlier. The two-way acknowledgement framework and the notification to the relevant authority are, at the time of this episode, an England-only development.

So we've established who must provide information, to whom, and by when. The next question is, what exactly needs to be included in the fire safety information package:

The regulation defines fire safety information as information relating to the design and construction of the building or extension, and the services, fittings, and equipment provided in or in connection with the building or extension, which will assist the responsible person to operate and maintain the building or extension with reasonable safety.

In practice, Approved Document B gives us a great deal of helpful detail on what this means. The aim of Regulation 38 is achieved when the person responsible for the building has all the information they need to do three things:

1. understand and implement the fire safety strategy of the building, 
2. maintain any fire safety system provided in the building, 
3. And carry out an effective fire risk assessment of the building.

At a minimum, an as-built plan of the building should be produced showing, where applicable:

• Escape routes, including exit capacity, that is, the maximum allowable number of people for each storey and for the building as a whole
• The location of fire-separating elements, including cavity barriers in walk-in spaces
• Fire doorsets, fire doorsets fitted with a self-closing device, and other doors equipped with relevant hardware
• The locations of fire and smoke detector heads, alarm call points, detection and alarm control boxes, alarm sounders, fire safety signage, emergency lighting, fire extinguishers, dry or wet fire mains and other firefighting equipment, and hydrants outside the building
• Any sprinkler systems, including isolating valves and control equipment
• Any smoke control systems, or ventilation systems with a smoke control function, including the mode of operation and control systems
• Any high-risk areas, such as heating machinery or places of special fire hazard

In addition to the as-built plans, details must also be provided for:

• Specifications of any fire safety equipment provided, including routine maintenance schedules
• Any assumptions regarding the management of the building that have been built into the fire safety design. For example, if the strategy assumes that certain doors will always be kept closed, or that there will be a minimum number of staff on duty at all times
• Any provision enabling the evacuation of disabled people, which can be used when designing suitable Personal Emergency Evacuation Plans, including the location and mode of operation of evacuation lifts

For complex buildings, Approved Document B Part 2, which covers buildings other than dwellinghouses, makes clear that additional fire safety information would normally be necessary. This might include detailed fire engineering analysis, zone plans for large or phased buildings, system interoperability diagrams for integrated life safety systems, and so on. The level of detail should always be proportionate to the complexity of the building and be agreed with the employer or their agent.

So that covers the general requirements under Regulation 38. Now, why does this regulation matter for architects and why are we mentioning it now:

Some of you might be wondering, why are we covering this now since Regulation 38 has been a requirement since 2010. What's new?

The answer is that Regulation 38 has taken on fresh significance in the post-Grenfell regulatory landscape, and particularly since the Building Safety Act 2022 came into force. The concept of the 'golden thread of information’, the idea that building safety information should be created at design stage, maintained during construction, and carried through to the building's operational life, is one of the central pillars of the Building Safety Act framework. Regulation 38 is, in many respects, the mechanism through which that thread is maintained at the point of handover. Without a robust Regulation 38 process, the golden thread breaks.

For higher-risk buildings, the obligations around information management at handover are even more detailed and are governed by the secondary legislation made under the Building Safety Act. But even for buildings that fall below that threshold, Regulation 38 remains in force and requires proper attention.

As the principal designer on a project, the key duties under the Construction (Design and Management) Regulations 2015 already include managing the pre-construction phase and ensuring that the health and safety file is compiled and passed on at completion. Regulation 38 operates alongside CDM. The health and safety file and the Regulation 38 fire safety information package are not the same document, but they may draw on overlapping material. Architects need to understand how these two handover obligations interact and ensure that neither is overlooked.

There's also a professional conduct dimension. The ARB and RIBA Codes of Conduct require architects to act with competence and in accordance with the legilsation. Failing to comply with Regulation 38, or failing to advise a client appropriately about their responsibilities as a responsible person under the Fire Safety Order, could expose an architect to regulatory scrutiny. And from a practical standpoint, an incomplete Regulation 38 package can delay the issuance of a completion certificate, holding up a client's ability to occupy or sell a building. It has real commercial consequences.

So what are the key steps and practical considerations architects should apply when it comes to Regulation 38:

First, practitioners must identify at the outset whether Regulation 38 applies. If the project involves the erection, extension, or material change of use of a building to which the Fire Safety Order applies or will apply, it needs to be flagged in the project management plan and build the Regulation 38 deliverables into the programme.

Then, it should be established who the responsible person will be. This is not always the same as the client. In some development contexts, the building will be handed to a facilities management company or managing agent. Knowing who will receive the information package and ensuring they are engaged at the right point is important.

The next stage would be to start compiling the as-built information progressively during the construction phase rather than trying to reconstruct it after practical completion. Fire safety information should be drawn from the construction drawings, the fire strategy report, the specifications for fire safety systems, and the commissioning records. In practice, this often means coordinating with the contractor and the fire engineer throughout construction, not just at the end. The format and level of detail of this information should be agreed with the employer early. For straightforward buildings, a set of annotated as-built drawings and an operation and maintenance manual may suffice. For more complex buildings, a structured fire safety manual drawing on multiple information sources may be needed.

And lastly, and this is critical under the England provisions, practitioners should plan for the formal acknowledgement process. The responsible person needs to confirm in writing that the information is sufficient. If they raise queries or request additional information, you need time to respond before any deadlines are triggered. Build this exchange into your programme.

The regulation is not trying to burden teams with unnecessary documentation. Its purpose is functional. The information should be enough to support safe operation, maintenance, and fire risk assessment.

Let’s sum up what we ran through today:

• Regulation 38 of the Building Regulations 2010 places a legal duty on the person carrying out building work to provide fire safety information to the responsible person on completion of a project or on occupation, whichever is earlier. It applies wherever building work engages Part B of Schedule 1 and the building is subject to, or will become subject to, the Regulatory Reform (Fire Safety) Order 2005.
• In England, the regulation has been strengthened: the responsible person must give a written acknowledgement confirming the information is sufficient, and the person carrying out the work must then notify the relevant building control authority. Wales operates under the original, simpler framework.
• The fire safety information package must be sufficient to enable the responsible person to understand and implement the fire safety strategy, maintain fire safety systems, and carry out an effective fire risk assessment. As-built plans, equipment specifications, maintenance schedules, management assumptions, and disabled evacuation provision information are all required.
• Regulation 38 is a key mechanism of the 'golden thread' of building information that runs through the post-Grenfell regulatory framework. Architects, particularly those acting as principal designers, have a professional and legal responsibility to ensure it is properly planned for and delivered.
• Compliance is best achieved by starting early, compiling information progressively during construction, establishing who the responsible person is at the outset, and building the acknowledgement exchange into the project programme.