Building Safety – BSA application to care homes

If you are planning, funding, developing or operating a care home, the Building Safety Act 2022 (“BSA”) should be considered at the very start of the project. Whilst, most often discussed in the context of high-rise residential blocks, it may also apply to certain care home projects.

This article explains when and how the BSA applies to care home projects, including the higher-risk building regime, wider Building Regulations duties, contractual implications and the practical steps stakeholders should consider from the outset.

Qualifying care home projects may fall within the higher-risk building regime during design and construction, even where the completed building is outside the separate in-occupation regime.

For owners, developers, funders and operators, that distinction is important: a project may require Building Safety Regulator oversight, gateway approvals and enhanced information management before it can lawfully be completed and occupied.

In broad terms, a care home will be a higher-risk building for design and construction purposes if it is in England, is at least 18 metres in height or has at least seven storeys, and falls within the statutory definition of a care home. Government guidance identifies higher-risk buildings as including buildings meeting the height or storey threshold and containing at least two residential units, or being a hospital or care home. The term ‘care home’ in this context generally covers establishments providing accommodation together with nursing or personal care.

The practical consequence is that qualifying new-build care homes, and certain works to existing qualifying care homes, are subject to the higher-risk building control regime. The Building Safety Regulator is the building control authority. The project must pass through the relevant gateway process, including building control approval before construction, compliance during the works and completion certification before occupation. This is not simply an administrative overlay, but central to ensuring building safety throughout the design and construction phase. Consequently, it may affect programme, procurement, design development, change control, professional appointments and the evidence needed to demonstrate compliance.

A frequent misconception is that care homes are excluded because they are treated differently once occupied. That assumption is understandable, but can lead to confusion and uncertainty.

Whilst buildings comprising care homes are generally carved out of the in-occupation higher-risk building regime under Part 4 of the BSA, reflecting the existence of other regulatory regimes, including fire safety obligations and care sector regulation, that exclusion does not apply to design and construction works. A tall care home may therefore be within the enhanced regime while it is being built or refurbished, but outside the ongoing accountable person regime once occupied.

That distinction matters particularly for refurbishment projects. Project teams should therefore check at the outset whether the works are higher-risk building work, whether any exemptions apply, and whether transitional arrangements or existing approvals affect the route to compliance. Deferring that analysis until after design development can create delay, redesign risk and contractual uncertainty.

Care home projects also raise particular risk issues because residents may be vulnerable and evacuation strategies, compartmentation, staffing models and operational constraints are often central to the safety case and need to be taken into account when compiling the “golden thread” of information on completion.

Contractual documentation should be reviewed to ensure BSA compliance and risk allocation. Development agreements, building contracts, consultant appointments and funding conditions should address responsibility for gateway submissions, regulator queries, change control, delays arising from approval processes, maintenance of the golden thread, mandatory occurrence reporting and handover information. Standard forms may need careful amendment to reflect the fact that regulatory approval is now a critical path issue.

Where a care home does not meet the higher-risk building threshold, the project will not be subject to the Building Safety Regulator’s higher-risk building control process merely because it is a care home. However, the BSA still has practical relevance.

The wider building control dutyholder and competence requirements introduced through the amended Building Regulations apply more generally to building work, meaning that clients, designers and contractors must still plan, manage and monitor their work so that it complies with the Building Regulations. In addition, existing obligations under fire safety, health and safety and care sector regulation will remain important.

Therefore, whilst the absence of a higher-risk building designation will reduce the gateway and regulator approval burden, it should not be treated as taking the scheme outside the wider building safety framework.

The application of the BSA to care home projects is important to consider on all new-build, extension or refurbishment projects.

Although the higher-risk building regime will not apply in occupation, qualifying care homes may fall within the BSA regulations during design and construction. This should be understood by all project team stakeholders as it will have an impact on regulatory approval, delivery and completion of the scheme.

BSA analysis should be undertaken at the outset, with regulatory classification, gateway responsibility, evidence, information management and contractual risk allocation treated as core elements of the care home delivery.

Even if the higher-risk regime does not apply, the BSA still imposes obligations under the Building Regulations, which need to be properly considered and incorporated as part of the scheme.

We understand that the delivery of care home projects is essential to local social care provision and the wellbeing of residents. Ensuring a clear and practical understanding of the BSA is therefore a central part of delivering successful outcomes for all stakeholders involved and benefiting from the project.

Our specialist social care team advises on a broad range of issues affecting the sector and our Construction & Engineering Team would be delighted to discuss any upcoming developments to ensure that they are procured and managing in compliance with the BSA.