Updated on 10th January 2025. Please refer to the end for the latest update.

The Housing (Cladding Remediation) (Scotland) Act 2024 (the “Act”) comes fully into force on 6 January 2025.

The Act is the flagship of the Scottish Government’s cladding remediation programme. It provides a framework to assess and remediate unsafe cladding on Scottish buildings from over the last 30 years. The Act puts three key elements onto a statutory basis – Single Building Assessments, the Cladding Assurance Register and the Responsible Developers Scheme. 

The Act was introduced by the Scottish Government to reduce the risk to life from unsafe cladding on high-rise homes. In high-level terms, it applies to multi-residential domestic buildings built or refurbished between 1 June 1992 and 1 June 2022, which stand eleven metres or more above the ground and incorporate some form of external wall cladding system. 

The Act received Royal Assent in June 2024, but only Part 7 (covering interpretation and final provisions) is in force. The Housing (Cladding Remediation) (Scotland) Act 2024 (Commencement) Regulations 2024 will bring the Act fully into force. Scottish Ministers will be able to use its powers to support the delivery of the cladding remediation programme, although secondary legislation is still required. We previously set out our thoughts on the Act here, as an important step forward for building safety in Scotland.

What is in force on 6 January 2025? A brief summary:

• Part 1 – The Cladding Assurance Register (“CAR”) This introduces the CAR which will have entries for buildings where a Single Building Assessment (“SBA”) has been completed. SBAs assess in-scope buildings and report on any risk to human life created or exacerbated by cladding and any remedial work therefore required. They have been piloted by the Scottish Government since 2021, as part of its cladding remediation programme. The CAR will record when an SBA was carried out and detail whether any recommended remedial work was required or has been carried out. The CAR will be maintained by the Scottish Ministers and updated following any additional work assessments (“AWAs”) or associated remedial work. The CAR will mean parties like conveyancers, insurers and mortgage lenders will have access to information about cladding in high-rise residential buildings. We expect that checking the CAR will become a standard step of conveyancing transactions for homes in these buildings, alleviating some of the current uncertainty. 
• Part 2 – Powers to assess and address danger. This covers significant powers granted to Scottish Ministers, such as arranging SBAs and AWAs, as well as remediation work and urgent remediation work in response to an SBA or AWA report. It also confers powers of entry to carry out assessments and associated provisions to address danger, including the power to evacuate premises where there is a substantial risk to occupants’ lives.
• Part 3 – Offences under Parts 1 and 2. This Part makes provision in relation to the commission of offences under Parts 1 and 2. These include offences of providing false or misleading information for the CAR, or failing to supply information reasonably required by the Scottish Ministers without a reasonable excuse. The penalties for these offences will be a fine of up to £1,000 (level 3 on the standard scale). Individuals as well as organisations can commit these offences.
• Part 4 – Engagement with owners and occupiers. This covers various requirements in relation to engagement with owners and occupiers, such as best endeavours obligations on the Scottish Ministers to inform and give a reasonable opportunity for questions, before a premises is entered for the carrying out of an SBA and before any remediation work begins.
• Part 5 – The Responsible Developers Scheme (the “Scheme”). The Scheme will be established under secondary legislation, which is still awaited. The purpose of the Scheme is to ensure that the construction industry addresses and/or contributes towards to the cost of addressing the risk to life caused or exacerbated by cladding, rather than the taxpayer. It builds upon the Scottish Safer Buildings Accord and Development Commitment Letter – voluntary commitments which developers can sign up to, to be followed by a Developer Remediation Contract. The Scheme is likely to be similar in scope to the Responsible Actors Scheme in England. Scottish Ministers are obliged to consult before making the Scheme’s secondary legislation; which will cover who is eligible to join, the conditions of being a member, loss of membership and the consequences for eligible persons who are not a member (which are expected to be commercial consequences, similar to the position in England). 
• Part 6 – Progress reports. This obliges the Scottish Ministers to prepare a progress report on SBAs and remediation work every 18 months, setting out what information must be reported on.
• Part 7 – Interpretation. This includes a definition of SBAs, which are to be carried out in accordance with Standards as specified by the Scottish Ministers, by a person authorised by Scottish Ministers. The SBA Standards are not yet finalised, although an SBA specification document was published by the Scottish Government in June 2024, setting out a methodology which will form part of the Standards. There are also definitions of AWAs, owner and occupier.

Comment

This is a notable update to the building safety regime in Scotland, although there remains uncertainty. The Act is an important “shop front”, putting Single Building Assessments, the Cladding Assurance Register and the Responsible Developers Scheme on a statutory footing.

 However secondary legislation and other progress is still required. Key developments are expected in 2025, such as the SBA Standards (which are expected to be published on 6 January 2025 when the Act is in full force); the form of Developer Remediation Contract between the Scottish Government and developers governing remediation works; the results of the Scottish Building Safety Levy consultation (which closed on 18 November 2024 – see our insight on this here); and the anticipated secondary legislation to establish the Scheme. 

In addition, at the Local Government, Housing and Planning Committee meeting of 10 December 2024, the Scottish Government confirmed that it intends to introduce two additional assessment and remediation schemes, to empower owners and residents to take steps towards assessment and remediation of their buildings and to support and accelerate action where the risks are highest. Further details are awaited on this, but in broad terms one scheme will centre on a new open call for buildings that are potentially affected by unsafe cladding, allowing owners and residents to bring these to the Scottish Government’s attention; and the other will have its own schedule of buildings that appear to be at elevated risk of cladding, with the Scottish Government working with local authorities and fire services to help identify buildings that should be prioritised.

Whilst the Act is an important mechanism to assess and remediate unsafe cladding on Scottish buildings from the last 30 years, Scotland is also expected to develop a wider building safety regulatory regime looking forwards. This may be similar in some ways to the English regime under the Building Safety Act 2022. A “compliance plan approach” is currently being developed by the Scottish Government, to support sustainable improvements to the building standards system and increase the level of compliance with building regulations. It includes a small pilot scheme related to high risk buildings (defined as domestic or residential buildings with any storey at a height of more than 11 metres above the ground, including educational establishments, community/sport centres, hospitals and residential care buildings), which we expect to hear more of in 2025 and beyond. 

Our Building Safety Group is comprised of specialists from practice areas across the firm, including construction and projects, real estate, health and safety and banking. If you require assistance on building safety matters or would like to discuss the policy and legislative landscape and how it does or may affect your business, do get in touch with us.

UPDATE ON SBA STANDARDS: Since this article was written, the Scottish Government has published the Single Building Assessment and Additional Work Assessment Standards here.

We may see changes as the Standards are put into practice – it’s noted they will be kept under review as assessment and remediation of buildings progresses, to ensure they are working in practice and achieving the desired outcomes. Meantime the key points to note are:

• The Standards are made up of 3 parts – the SBA Specification; further provisions on the conduct of SBAs/AWAs; and requirements to retain information. 
  • The SBA Specification is confirmed as being the specification which was published by the Scottish Government in June 2024
  • The requirements for peer review by competent Assessors (set out in section 3.5.1 of the SBA Specification) are expanded upon. The Assessor’s report must confirm the suitability of the SBA against each of the SBA headings and complete the checklist in Appendix B of the SBA Specification. They may also choose to comment on any aspects reviewed following initial peer review. 
  • The importance of updating an SBA where remedial works have been undertaken is emphasised. As set out in section 5.2.18 of the SBA Specification, the commissioning party (the person who instructed the SBA be initiated) is required to have the SBA updated by the original Assessor (or if they are not available, by another industry professional who meets the competency requirements). To do that, the commissioning party must ensure all relevant documentation is available in relation to assessment, design, works and remediation. The Assessor must also assure themselves that any works identified in the SBA recommendation forms and the design plan and work(s) contracts have been implemented and complied with; any building warrant requirements and other required statutory consents have been carried out as necessary; and the completion certificate has been accepted by the verifier/Local Authority. This updating of the SBA is described as an essential step, to allow the Register to be updated and provide assurance that any works undertaken address the risks identified in the initial SBA and that the building is now at a tolerable risk level. 
  • Types of evidence an SBA Assessor may rely on are listed on page 4. These are wide ranging – including but not limited to site visits, photographs, videos, borescope survey and material records. “Cover up release (requiring critical aspects of work to be left uncovered until inspected by Assessor)” is also listed, which would require careful planning during the works. 
  • The requirements to retain information are potentially significant. They require the commissioning party to retain certain material/evidence, as set out at page 4 of the Standards, for a minimum of two years. This will require careful collation and storing of that material by the commissioning party.  
• It is clarified that where assessments have already been carried out, a new SBA must be carried out, to provide reassurance that the assessment meets the Standards. This will incur additional costs to those who have assessments already, however existing information from those may be drawn upon to inform the SBA. 
• The CAR will be regularly updated – the Scottish Ministers intend entries into the CAR will be created within 30 days of receiving the SBA; and updated within 30 days of receiving notification that remedial works have been completed, the SBA has been updated and that the building is now at a tolerable risk level.
• There is a brief Annex to the Standards (not forming part of the Standards and provided for information only). The key points here are:
  • It is emphasised that section 5 of the 2024 Act gives Scottish Ministers the power to require any person to supply information which is reasonably required in connection with assessment and remediation works and to allow them to maintain the CAR. The offences for failing to do so, or for providing false or misleading information are also highlighted. These provisions are described as “a route to additional assurance and compliance at key junctures in the assessment and remediation of a building”. It is also suggested that owners and occupiers may prompt use of the powers under section 5, via requests that merit Scottish Ministers asking for more information.
  • It is confirmed that the Scottish Ministers intend to conduct a “proportionate level of audit”, covering assessments and remedial work, to assess how well the process is operating. This will be for a proportion of buildings, in advance of the CAR being updated to state that Scottish Ministers are satisfied works have been carried out to the Standards. Where an entry is to be audited, notice will be given by Scottish Ministers and the audit will be undertaken by or with input from a suitably experienced, qualified, independent and competent fire risk or external wall assessor. A reasonable request to meet with Scottish Ministers/officials to discuss their approach to assessment and remediation may form part of the audit. Following the audit, the CAR will usually be updated within 30 days.
  • In the event of “significant material difference(s)” between the opinion of the auditing Assessor appointed by the Scottish Government and the Assessor appointed by the commissioning party, a dispute resolution process is suggested (unless other specific dispute resolution provisions apply). This would involve good faith discussion; potential mediation; and/or some form of binding adjudication.

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