Regulation 38: what is it, and what are your obligations under it?

Regulation 38 of the Building Regulations 2010 applies where 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 Part B of Schedule 1 imposes a requirement on the work. Under it, the person carrying out the work must give fire safety information to the responsible person, and the responsible person must give a notice acknowledging receipt. Approved Document B says the information should include an as-built plan showing the fire resisting construction and the location of fire-separating elements, including cavity barriers.

This article takes the regulation and Approved Document B at their word: who gives the regulation 38 fire safety information, to whom, by when, what it should contain, and where the firestopping evidence belongs in it.

What regulation 38 fire safety information means

A relevant building, in regulation 38 of the Building Regulations 2010, is a building to which the Regulatory Reform (Fire Safety) Order 2005 applies, or will apply after the completion of building work.

Article 3 of the Regulatory Reform (Fire Safety) Order 2005 says that in relation to a workplace the responsible person is the employer, if the workplace is to any extent under his control.

Who gives it, and by when

Under regulation 38 of the Building Regulations 2010, the person carrying out the work must give fire safety information to the responsible person. Where the building, proposed building or extension is not occupied during the building work, the deadline is the date of completion of the work or the date of occupation of the building or the extension, whichever is the earlier. In any other case it is the date of completion of the work.

The acknowledgement notice

Under regulation 38 of the Building Regulations 2010, not the 2023 higher-risk building regulations, the responsible person must give the person carrying out the work a notice acknowledging receipt of the fire safety information and confirming the information provided is sufficient to enable them to understand, operate and maintain the building (and the fire safety systems in it) after the building work in question.

The person carrying out the work must then give a notice to the relevant authority, confirming that they have given the fire safety information to the responsible person, and stating that they have received the notice from the responsible person or, where they have not, the steps taken to obtain it and the dates they were taken. That notification must be given no later than five days after the date referred to in paragraph (2), or 30 days where regulation 20 (self-certification schemes) applies to the work. Where regulation 20A (third party certification schemes) applies, the person carrying out the work instead notifies the third party certifier no later than seven days after the date referred to in paragraph (2).

What the regulation 38 fire safety information should contain

Approved Document B's guidance on fire safety information says the essential information should be sufficient to enable the relevant dutyholder to understand, operate and maintain the building, including the fire safety systems in it, and should make it clear how the fire safety arrangements of the building are intended to operate together. In cases where a fire safety strategy has been prepared, it should be made available to the relevant dutyholder.

An as-built plan should be provided showing, among other things, the fire resisting construction and the location of fire-separating elements, including cavity barriers in walk-in spaces, the fire doorsets, and the locations of detection, alarm, emergency lighting and firefighting equipment. Details should also be provided of the specifications of fire safety equipment, including routine maintenance schedules, and of any assumptions about the management of the building made in the design of the fire safety arrangements.

For complex buildings, Approved Document B asks for a detailed record of the fire safety strategy and of the procedures for operating and maintaining the fire protection measures, including all passive fire safety measures: compartmentation, fire-separating elements, fire resisting construction and cavity barriers.

Where the firestopping evidence fits

Approved Document B defines a fire-separating element as a compartment wall, compartment floor, cavity barrier and construction that encloses a protected escape route and/or a place of special fire hazard, and its as-built plan is meant to show where those elements are. Ask for every pipe, cable and duct that passes through one of them to be recorded as its own seal, with a photograph taken before the ceiling closed.

On a Skyline firestopping installation, every penetration, joint and cavity is photographed before, during and after installation, always before cover-up, tagged and recorded as installed. The evidence pack is handed over at completion and the records are retained for 15 years. Keep that per-seal detail with the as-built plan, and carry it forward with the regulation 38 handover to whoever manages the building next.

Regulation 38 and the golden thread are not the same duty

For higher-risk buildings, the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 set a separate handover duty. In the 2023 regulations, where Part B of Schedule 1 to the 2010 Regulations imposes a requirement in relation to the work, the BFLO information means the fire safety information. See Skyline's golden thread guide.

Home Office guidance on section 156 of the Building Safety Act 2022 says that where you are the existing responsible person, you must provide any new responsible person with any relevant fire safety information. That information includes any information given under regulation 38 of the Building Regulations 2010, such as the information provided when a building is built or extended.

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