Fire safety changes in the development and housing sectors – 2021 and beyond

Howes Percival LLP

17th December 2020

It is often the case around Christmas time that we become a little Dickensian. Reflecting on the past 12 months, enjoying the present and looking forward with optimism for what the New Year will bring. For most people 2020 will be a year etched in our memories but for all of the wrong reasons. So what can we expect in 2021? Ignoring the impact of the planning white paper and Brexit for now, the Development and Housing sectors will see many changes through 2021 and beyond, particularly in relation to construction and safety in multi-occupancy residential buildings. The draft Building Safety Bill published in July has an outside chance of making it onto the statute books by the end of next year. However, before then, we expect a number of new legislative provisions for fire safety will be in force.

BACKGROUND

Since the disastrous events at Grenfell Tower on 14 June 2017, there has been extensive scrutiny to identify what went wrong and what should be done to prevent a recurrence. Dame Judith Hackett made a number of recommendations within her “Independent Review of Building and Fire Safety”. Further proposals have arisen from the Grenfell Tower Public Inquiry; the phase 1 recommendations from the Public Inquiry and Sir Martin Moore-Bick’s report that scrutinised the circumstances surrounding the Grenfell fire. As a result, the Government is introducing new measures to improve building safety, particularly in relation to high-rise residential buildings, through the Building Safety Bill. In addition, we expect the Fire Safety Act will come into force early next year and we will see the output from the recent Fire Safety Consultation, which concluded on 12 October 2020. We explore these below.

However, before looking at what we can expect for the future, it is worth a brief reminder of the here and now.

OVERVIEW OF THE FIRE SAFETY ORDER

The governing legislation for fire safety in England and Wales is the Regulatory Reform (Fire Safety) Order 2005 (the FSO). It provides an assessment based approach to fire safety and ensures that those best placed to identify and manage risks in premises are responsible for doing so. The FSO imposes duties on a “Responsible Person” to conduct a Fire Risk Assessment (FRA) and to implement appropriate fire safety measures to minimise the risks identified in the FRA for all premises falling within scope.

The FSO defines the Responsible Person as:

  • The employer (if the premises are a workplace and to any extent under their control);
  • The person with control of the premises (as occupier or otherwise) in connection with the carrying on of a trade, business or other undertaking; or
  • The owner of the premises.

For multi-occupied residential buildings, the Responsible Person must ensure compliance with the core duties under Articles 8-22 of the FSO as far as matters are within their control. In addition, Article 5(3) of the FSO imposes duties on others having an element of control of the premises for example, those with responsibility for maintenance, repair and safety. As such, the range of duty-holders under the FSO can include, among others:

  • Landlord;
  • Building owner;
  • Building management company;
  • Housing provider;
  • Residential property/scheme managers;
  • Fire risk assessors; and
  • Maintenance contractors

The FSO requires Responsible Persons and duty-holders to take fire precautions to ensure the safety of those lawfully on, or near, their premises. Core duties under the FSO include:

  • Preparation of a suitable and sufficient FRA;
  • Making and giving effect to appropriate fire safety arrangements;
  • Ensuring fire-fighting measures and fire detection equipment is available;
  • Keeping emergency routes and exits maintained and clear;
  • Ensuring the premises, facilities, equipment and any devices are suitably maintained and kept in an efficient state, efficient working order and good repair; and
  • Co-ordination and Co-operation with other duty holders sharing the Premises.

The FSO applies to most types of premises (once in occupation) but does not apply to fire precautions within a domestic dwelling other than any equipment necessary to protect persons outside of the dwelling, for example, heat or smoke detectors. The FSO applies to all communal areas within a multi-occupied residential building including; corridors; riser cupboards; plant rooms; roof voids; fire doors and fire exits.

Local Fire and Rescue Services enforce the FSO. Non-compliance is addressed through enforcement powers ranging from verbal advice to (criminal) prosecution. Failure to provide adequate fire safety measures is an offence if the failure places one or more relevant persons at the risk of death or serious injury in the case of fire. It is punishable by an unlimited fine in the Magistrates’ Court and an unlimited fine and/or two years imprisonment (for individuals) in the Crown Court.

THE FIRE SAFETY BILL

The Fire Safety Bill 2020 (the Bill) was presented to Parliament in March 2020 and, once approved by the legislature, will become the Fire Safety Act. Though small in length, it is big in impact. The Bill amends Article 6 of the FSO with a new paragraph applicable to multi-occupied residential buildings, which states:

“Where a building contains two or more sets of domestic premises, the things to which this order applies include –

a) the building’s structure and external walls and any common parts;

b) all doors between the domestic premises and common parts (so far as not falling within sub-paragraph a)).”

The effect of sub-paragraph a) is that external walls (including doors, windows and anything attached to the walls such as balconies or cladding), previously outside the scope of the FSO, now needs to be assessed as part of the building’s FRA. In addition, in enables the local Fire and Rescue Service to enforce against failings in those parts of the premises. This provision is problematic for a number of reasons. Most existing FRAs will not have included any assessment of the composition of external walls and therefore once in force, such FRAs will potentially be invalid. There are also practical challenges due to a lack of competent and appropriately qualified fire engineers with the experience to assess the risk arising from external wall coverings such as cladding. Most current Fire Assessors undertaking building FRAs would not have the expertise to do this. Nevertheless, FRAs that do not address the external parts of premises may not be suitable or sufficient, potentially exposing the Responsible Person and/or duty-holder to prosecution.

As far as sub-paragraph b) is concerned, the Fire Safety Bill makes little practical difference as flat doors have always been treated as falling within scope of the FSO, given that their integrity is essential to fire protection measures within premises.

THE FIRE SAFETY CONSULTATION

The Consultation is a series of proposals aimed at strengthening the FSO and implementing recommendations from the Grenfell Inquiry Phase 1 report. While there is an element of crystal ball gazing, we expect many proposals put forward for consideration in the Consultation will be implemented through amendments to the FSO or introduced through separate Regulations. There will also be an overhaul of current guidance to help duty-holders comply with the enhanced legislation. Given the background to the proposals, most (not all) of the expected changes will relate to multi-occupied residential buildings.

The Consultation, with 139 separate proposals over 105 pages, covers a number of areas and it is impractical to explore it in full. However, the following are significant changes we may see (either in full or part) over the coming year:

Clarity of Duty-holders

A legal requirement for duty-holders within premises to record who they are, the extent of their responsibilities under the FSO and identify themselves to other duty-holders. This is intended to increase the level of co-operation between duty-holders but will also have the effect of making it easier for enforcing authorities to identify against whom they can take enforcement action for non-compliance.

FRAs and Fire Risk Assessors

There is currently no competency requirement for fire risk assessors within the FSO. Competence is generally scrutinised where a FRA is deemed not to be suitable or sufficient in breach of Article 9 of the FSO. To try to address the variable quality of FRAs, a competence requirement is likely to be introduced for assessors. In addition, there will be requirements for greater transparency of who has undertaken the FRA and the contents of any FRA will need to be recorded in full, rather than the current requirement to record “significant findings.”

Provision of information

Measures will be introduced requiring key safety information to be provided to residents within high-rise residential buildings (of at least 18m in height or six storeys) through the Building Safety Bill. The Consultation proposes similar requirements for multi-occupied premises of all heights under the FSO. The information to be shared is likely to include contact details for duty-holders, risks identified in the FRA, preventative measures in place and evacuation instructions. In addition, there will be a requirement to provide specified information to the local Fire and Rescue Service for high-rise premises such as floor plans, evacuation plans, FRA and information about residents who are unable to self-evacuate. As to how this will be achieved may need clear guidance, but we expect this will lead to some practical and administrative challenges for duty-holders in obtaining, retaining, recording and sharing the relevant information.

Premises information boxes, in which duty-holders can provide important emergency information to the Fire and Rescue Services, are likely to be mandatory in high-rise buildings.

High Rise Buildings

There is a raft of proposed new measures, in addition to the information provisions above, aimed specifically at high-rise residential buildings. These include:

  • Monthly checks and inspections of lifts and key firefighting equipment with real time fault reporting to the local Fire and Rescue Service;
  • Preparation of evacuation plans;
  • A requirement on duty-holders to try and identify residents who may need help to evacuate and to keep a record of who they are;
  • A prescribed frequency for inspection of flat doors (internal and entrance doors) to check integrity, damage, intumescent strips, smoke seals and that self-closing devices are in working order. Frequency of inspections will vary according to the height (and therefore risk profile) of the building but for high-rise buildings may require six monthly inspections of flat doors.

Duty-holders for multi-occupancy buildings will need to start planning for these changes now given that many are resource intensive and they may not have either the staff or expertise available. Some may wish to think about how they will be able to get access in order to undertake necessary checks and whether provisions need inserting into tenancy agreements to facilitate inspections. It is common for duty-holders to have difficulty getting residents to cooperate with their requests to inspect the condition of front entrance doors and detection equipment. To remedy this we expect specific duties for residents will be introduced, requiring them to take care of fire equipment inside their dwelling and notify duty-holders of any changes that could compromise fire safety.

Enforcement

One area of the Consultation that will cause alarm for duty-holders is the proposal that fire authorities will be able to charge for audits and enforcement activities. At present, this is not permitted due to restrictions within the Fire and Rescue Services Act 2004. However, views are being sought as to whether the law should be changed to bring Fire and Rescue Services into line with other regulators such as the HSE (with fee for intervention) and the new Building Safety Regulator. Inadequate resourcing is an ongoing issue with Fire Authorities and, as such, we expect that a charging regime of some form will be introduced. Whether it aligns with the Building Safety Regulator to only relate to high-rise buildings or whether it will cover all premises within scope of the FSO remains to be seen.

We predict 2021 will witness sweeping changes in fire safety and the biggest shake up since the FSO came into force. Responsible Persons and other duty-holders with fire safety obligations would be wise to start planning for them now. This is one New Year’s resolution that they would be wise not to break.

Rob Starr is a member of the Regulatory Team at Howes Percival with extensive experience in fire safety and enforcement matters. If you need more information about anything in this article or are facing enforcement action from the Fire Authorities, please contact our Regulatory Team.

Robert Starr,Director (robert.starr@howespercival.com / 01604222122) 

Alan Millband, Partner (alan.millband@howespercival.com / 01162473521)

The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.

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