In December 2020, Business Defence Lawyer Robert Starr provided an overview of the legal framework for fire safety, including some anticipated changes and the impact these may have on roles and responsibilities.
In the second part of this article, we take a more in-depth look at the newly proposed building and fire safety measures, whilst highlighting some key issues for those in the care sector.
Since the disastrous events at Grenfell Tower on 14 June 2017, there has been extensive scrutiny to identify what went wrong and what can be done to prevent a recurrence. Though the outcome of the Grenfell Tower Public Inquiry will not be known for a while, the Government is looking to introduce significant changes for improved building and fire safety.
The Fire Safety Consultation contains a series of proposals aimed at strengthening the Regulatory Reform (Fire Safety) Order 2005 (the FSO), which is the governing legislation for fire safety in England and Wales.
This involves implementing recommendations from the Grenfell Inquiry Phase 1 report, which will most likely be achieved through amendments to the FSO or the introduction of new regulations.
Although many of these measures will focus on safety within high-rise buildings, there are several changes that will be relevant to all care operators.
Clarity of duty-holders
The first change to anticipate involves 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 (where relevant). This will not be onerous for care homes, where the responsible person (generally the care provider) is usually obvious. It will be more complex under different operational care models such as specialised and retirement housing, where there can be multiple duty-holders. The intention of the proposed change is to increase the level of co-operation between duty-holders. However, it will make it easier for enforcing authorities to identify against whom they can take enforcement action for non-compliance with the FSO.
Fire Risk Assessments (FRAs) and Fire Risk Assessors
To address the variable quality of FRAs, it is also proposed that a competence requirement will be introduced for assessors. Currently, there is no competency requirement for fire risk assessors within the FSO, with competence generally only scrutinised when an FRA is deemed not to be suitable or in sufficient breach of the FSO.
It is not yet clear how this will be implemented. However, it could be beneficial to duty-holders in the sector who want reassurance that their assessor is competent, and their decision to use that assessor will not be forensically examined later.
The downside to this is that the stringent requirements of who can be involved in the assessment or review process may result in increased cost. Particularly for smaller employers who do not have internal specialists on their payroll.
A change that may 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, it is being considered whether the law should be changed to bring Fire and Rescue Services into line with other regulators, such as the HSE (with a 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.
Several proposals are more specific to multi-occupied residential premises, which will include specialised housing (such as extra-care services), as well as sheltered and independent living schemes. Care operators with large housing portfolios, particularly where these are provided through multi-tenanted blocks of flats, should also be aware of these.
Proposals relevant to multi-occupied premises include:
Provision of information
This year could see a change to the way key safety information is provided to residents living in multi-occupied premises. The information to be given is likely to include: contact details for duty-holders; risks identified in the FRA; preventative measures that are 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, the 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.
Furthermore, ‘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.
There are many proposed new measures, in addition to the above, that are aimed specifically at high-rise residential buildings.
- 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 for 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. Although frequency of inspections will vary according to the height (and therefore risk profile) of the building, high-rise buildings may require inspections of flat doors every six months
The Fire Safety Bill
The Fire Safety Bill is set to include a new paragraph applicable to multi-occupied residential buildings. It will not directly influence the assessment of risk in care homes but will affect other types of accommodation and housing schemes. The key part of the Bill 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), which were previously outside the scope of the FSO, now need to be assessed as part of a building’s FRA. In addition, it enables the local Fire and Rescue Service to enforce against failings in those parts of the premises.
This provision is problematic for several reasons. Firstly, most existing FRAs will not include any assessment of the composition of external walls and will potentially become invalid. There are also practical challenges, due to a lack of competent and appropriately qualified fire engineers with the experience to assess risk from external wall coverings. 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.
Regarding sub-paragraph b), the Fire Safety Bill makes little practical difference to flat doors within multi-occupied residential premises. These have always fallen under the scope of FSO, largely because their integrity is central to fire protection measures for these premises.
The Building Safety Bill
The Building Safety Bill (BSB) may also come into effect this year, providing a new enforcement regime for the safe management of higher risk buildings. Once introduced, this will initially be restricted to high-rise residential buildings (subject to a height requirement of six storeys or 18 metres) and could therefore impact specialised housing, such as extra-care and large retirement living schemes. Care operators, particularly those with high-rise flats in their portfolio, should familiarise themselves with Part 4 of the BSB to see whether they may be affected.
Planning for the changes
There is no guaranteed method of predicting whether all of the proposed changes will find their way into legislation. However, given that it has taken three years of government consideration to reach this stage, it is wise for care operators to start planning now. This includes assessing how they are likely to be affected by each of the changes, whilst looking to identify which resources they need to put in place moving forward.
AHR Consultants has a team of experienced competent fire risk assessors. Remove the risk from your premises by appointing us to ensure you are compliant with existing measures and any future changes that the government make.