Update on the ‘Responsible Actors Scheme’ (RAS) – RAS officially launched last week

Following draft regulations published in the Spring, last week, the Government launched the Responsible Actors Scheme. 

By way of a quick re-cap, the Government published draft ‘RAS Regulations’ back in April, which set out the legislative basis for the RAS. We discussed the draft regulations in an earlier briefing, which you can access here. 

Following the parliamentary process, the RAS Regulations came into force on 4 July 2023 as the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (SI 2023/753). The final regulations are identical to the draft set that was published in April.

The RAS itself was launched last Monday, 24 July 2023. The scheme is one of a number of responses, on the part of the Government, to the issue of fire safety defects in high-rise buildings that came to light following the Grenfell Tower fire.

The RAS requires certain developers to enter into a ‘Developer Remediation Contract’ with the Government, the terms of which require the member to a) identify and b) remediate / mitigate (or pay for the remediation and mitigation) of buildings over 11m, with life-critical fire safety defects, that were developed or refurbished during the 30-year period that ended 4 April 2022. The members of the scheme must also reimburse the Government in respect of taxpayer-funded work carried out to remediate and/or mitigate the defects in those buildings. 

Developers who are invited to join the scheme will have 60 days to respond to the invitation. In accordance with the new RAS Regulations, the Secretary of State (DLUHC) must publish (and keep updated) a list of members of the scheme and a list of persons subject to the prohibitions.

As at the date of this briefing, two developers have joined the scheme and more will be added over the coming weeks. We will not see any developers on the prohibition list until 22 September 2023 (once the 60-day period has expired). 

The consequences of not entering into such a contract, or for falling foul of its requirements, will cause the RAS member (and their group companies) to be subject to planning and building control prohibitions:

• The planning prohibition prevents developers from carrying out major development of land in England
• The building control prohibitions ensure that any application made by a prohibited person for building control approval will not be accepted by Local Authority Building Control Inspectors.
• For more information on the prohibitions, see our article discussing the draft Regulations here.

To be eligible for the scheme, an entity must fall into one of three categories, as well as meeting the Profit Condition (£10m or higher operating profit over the financial years ending 2017, 2018 and 2019):

1. Residential property developers who developed / refurbished one or more residential buildings over 11m; 
2. Those responsible for developing two or more buildings assessed as eligible for a relevant government cladding remediation scheme; and
3. Voluntary participants.

Entities that do not presently fall in any of caught the above categories are nonetheless advised to keep an eye on the RAS as the Government may eventually expand the scheme to cover other developers who developed or refurbished defective residential buildings over 11m. However, it is important to note that Registered Providers of Social Housing, as well as their wholly-owned subsidiaries, are excluded from the scheme.

The Government promised to issue guidance in advance of the prohibition being applied to any developer. Last week, DLUHC published a “Plain English guide” to the RAS, which can be accessed here.