Care homes and the Building Safety Act 2022

In the UK, our ageing population is contributing to significant growth in the care home sector.

Current statistics show that demand is outstripping supply and there’s been movement towards larger, more luxurious care homes offering a higher standard of living, where affordable.

Building safety is a hot topic in the construction industry and we are seeing some interesting queries being raised specifically in relation to care homes, particularly because of the importance of building safety for vulnerable residents and the difference in treatment of care homes under different parts of the building safety regime.

Here we look at some key questions we’re being asked about care homes in England under the Building Safety Act 2022 (“the BSA”).

What counts as a care home under the BSA?

A care home is not defined in the BSA itself.

However, associated regulations say it is an establishment that provides accommodation, together with nursing or personal care for persons who are or have: been ill; had a mental disorder; been dependent on alcohol or drugs; or are disabled or infirm. This is under the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (“the 2023 Regulations”), which use the meaning of “care home” from the Care Standards Act 2000.

This definition should be considered carefully. UK Government guidance notes there may be supported and sheltered accommodation such as domestic abuse refuges, children’s homes and supported or sheltered homes for older people and those with additional care needs, which do not fall within the definition of a care home.

Can a care home be a Higher-Risk Building?

Yes, in the design and construction phase under the BSA.

A 'Higher-Risk Building’ (“HRB”) is defined for the design and construction phase by t BSA (section 31) and the 2023 Regulations (regulation 2). Together, these provisions tell us that an HRB is a building in England, that is at least 18 metres in height or has at least 7 storeys and which contains at least two residential units (i.e. a dwelling or any other unit of living accommodation) or is a care home or hospital. 

There are also finer details about HRBs to be considered, such as what constitutes a “building” (whether it is attached to any other structure, has independent sections and certain access), how to measure height and what amounts to a “storey”. This means the question of what is or is not an HRB, is partly a technical question and not just a legal one.

However, a care home is not an HRB in the occupation phase under the BSA. Here, buildings that comprise entirely of care homes and hospitals are specifically carved out from being HRBs, by the BSA (section 65) and the 2023 Regulations (regulation 8).

The explanatory memorandum to the 2023 Regulations explains this difference is because the building safety regime is “focused on providing proportionate rigour where most necessary”. Therefore, including care homes and hospitals in the design and construction phase helps to ensure that HRBs which may be occupied by those unable to evacuate quickly or without assistance, are designed and constructed in accordance with the building safety regime. However, care homes and hospitals are not included in the occupation phase, because they are regulated as workplaces through the Regulatory Reform (Fire Safety) Order 2005. Those in control of these buildings already have duties to make sure they are safe, as well as being subject to the inspection regimes managed by local Fire and Rescue Authorities’ and the Care Quality Commission, who will take action if required.

This means a care home of at least 18 metres / 7 storeys (and meeting the finer details of HRBs as noted above), will be subject to the design and construction requirements for HRBs under the BSA, such as the gateway two building control approval. With the supply and demand challenges and a shift towards larger care home developments, it is likely that more care homes will constitute an HRB for these purposes. However, they will not be subject to the in-occupation requirements for HRBs and they do not require to be registered as HRBs.

What about the Responsible Actors Scheme and care homes?

The Responsible Actors Scheme (“RAS”) is about securing building safety and improving standards of buildings, by ensuring that eligible developers remedy, or contribute to the costs of remedying, fire safety defects in certain buildings. It is provided for under sections 126 – 127 of the BSA and the details are in The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023. These tell us that the RAS applies to residential or mixed-use buildings in England of at least 11 metres high, which have been developed or refurbished between 5 April 1992 and 4 April 2022.

However, the eligibility criteria for developers include that their principal business is residential property development. Here, “residential property” excludes buildings constructed or adapted for use primarily as care homes (i.e. homes or other institutions “providing residential accommodation with personal care for persons in need of personal care because of old age, disability, past or present dependence on alcohol or drugs or past or present mental disorder”, per section 37(2) of the Finance Act 2022). This means the RAS will not extend to developers of such care homes on the basis of their principal business being “residential property”.

Does the Building Safety Levy apply to care homes?

It is proposed that care homes are excluded from the Building Safety Levy ("Levy") in England.

The Levy is provided for under the BSA (section 58). Following two consultations, in March 2025 the UK Government confirmed its proposals for taking this forward as a levy on new residential buildings, to raise revenue to be spent on building safety. The proposals set out an exclusion from the levy for care homes, as well as for NHS hospitals, supported housing, children’s homes and domestic abuse shelters. The next steps are for secondary legislation to be made with further details of the Levy before it is intended to come into effect in autumn 2026.

Conclusions

It is clear that the new building safety regime is relevant for care homes and the additional requirements for HRBs are likely to catch more care home projects in their design and construction phase, as the sector adapts to meet demands.

Further, it is important to note that even if a care home is not an HRB, other aspects of the BSA will apply, including the duty of any client to appoint a Principal Designer and a Principal Contractor for the purposes of ensuring compliance with the building regulations.

Other key parts of the regime like the Levy and the RAS are not relevant for care homes and some developers who do purely care home work.

The BSA is only part of the story for care homes. We should not forget about recent changes to wider fire safety requirements, like the requirement for sprinklers in all new care homes and the expectation that new care homes limit compartment sizes to 10 beds from 2 March 2025.

Related News, Insights & Events