Fire Safety Act
The Fire Safety Act which covers England and Wales was passed on 29 April 2021; it is not yet in force. Its prime purpose was to address a potential legal ambiguity in the Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order).
Broadly, the Fire Safety Order imposes duties on “Responsible Persons” to take appropriate fire safety measures for premises other than private domestic premises. The Order does not cover individual flats in apartment blocks, but it does cover the common parts. However, the ambit of that coverage was questioned. In particular, the Hackitt Interim Report (Independent Review of Building Regulations and Fire Safety, December 2017) considered that, whilst the common areas of residential buildings, such as shared corridors and staircases, fell within the scope of the Fire Safety Order, the Order did not extend to any aspects of fire safety on the outside of a building, and as such external parts fell outside the scope of the Order. James Brokenshire explained (at the second reading of the Bill on 29 April 2020) that there were differing interpretations as to whether the Fire Safety Order covered external walls and individual flat entrance doors in residential buildings; further, this was leading to an inconsistency in operational practice which at best was unhelpful and at worst was putting lives at risk. In this context, it is worth noting that when the Government put the Bill forward they said the purpose of the change in the law was clarificatory. The Government did not definitively say that the Fire Safety Order in its current form did not apply to the external parts and flat entrance doors in apartment buildings.
That said, the new Act amends the Fire Safety Order to make it clear that Responsible Persons for multi-occupied residential buildings, which are likely to be building owners or managers, will be under a duty to risk assess the structure and external walls (including windows, doors and balconies) of buildings and entrance doors and take general fire precautions to ensure those areas are safe. It is worth noting that under the Housing Act 2004, which comprises a largely reactive regulatory framework, local authorities already have duties and rights to take enforcement action in relation to fire hazards in residential premises including in relation to the structure and exterior of a residential building.
In February, the Government also announced a new levy for England on developers to fund cladding remediation costs, and a fund to pay for the cost of replacing unsafe cladding for all leaseholders in residential buildings 18 metres and over, and a new loan scheme for buildings between 11 and 18 metres. This has received criticism, for example, from the Housing, Communities and Local Government Committee, which said that safety should be assessed on a holistic basis and not by reference to height and materials alone, leaseholders should not have to pay for cladding work, the fund should cover all fire safety defects, not just combustible cladding and social housing. The new Act does not deal with the serious question of who pays for the costs of making residential buildings fire safe - notwithstanding the many attempts by the House of Lords to protect leaseholders from such costs.
A key problem is the lack of capacity in fire risk assessment expertise, especially in relation to assessing the safety of external wall systems. The Act provides that a failure to comply with any applicable “risk based guidance” issued by the Secretary of State in relation to a “relevant building” may be relied on in criminal proceedings as “tending to establish” that there has been a breach of the Fire Safety Order. Likewise, following the guidance can be used in a similar manner to show compliance with the Order. A “relevant building” is a multi-occupied residential building (i.e. containing two or more domestic premises). “Risk based guidance” (yet to be issued) is guidance on how people who have responsibility for more than one set of premises are to prioritise dealing with fire safety in relation to different premises by reference to risk. The aim of the provision is to enable the Act to be brought into force on a single date for all buildings covered by the Fire Safety Order, but underpinned by a risk based approach to focus resources on dealing with the highest risk buildings first (Home Office Fact Sheet 25 February 2021 “Commons Consideration of Lords Amendments” and Lord Greenhalgh, 17 November 2020).
The Fire Safety Act is a far from quick fix (it was introduced in March 2020) to deal with a specific identified concern. Moreover, the Act has not yet been brought into force in England or Wales and it would seem reasonable to assume that it will only come into force when the new guidance is ready. The Act also contains provisions (which come into force 2 months after the Act) allowing the Government to make future regulations to change the scope of the premises covered by the Fire Safety Order and to make concomitant changes to fire safety duties.
Fire Safety Consultation
Looking ahead there is significant policy and legislative work still to be done by the Government. On 17 March 2021, the Government published its response to its consultation on fire safety. This consultation was launched after the introduction of the Fire Safety Bill and was intended to cover matters not addressed by the Bill. It is not possible to cover all aspects of that response here. Moreover, whilst the response identified specific actions which would be taken forward by the Government, it also highlighted many areas which the Government believes need further policy work before concrete proposals can be made.
In relation to the Fire Safety Order, key concrete proposals (which apply to all buildings within the scope of the legislation, not just apartment buildings) include the following:
1. There are many buildings where more than one person has responsibilities under the Fire Safety Order. Consultation feedback indicated that difficulties encountered in identifying Responsible Persons had an adverse effect on compliance and the speed with which enforcement action could be taken. The order already imposes duties of co-operation and co-ordination on Responsible Persons, but it is quite generally worded. The Government intends to introduce amendments which will require Responsible Persons to record their name, the extent of their responsibility for the building and UK-based contact information. Responsible Persons will also be required to take reasonable steps to identify themselves to the other Responsible Persons for a building (as well as Accountable Persons under the Building Safety Bill) and this should be done in an auditable manner. This is with a view to promoting the co-operation and co-ordination between Responsible Persons and to help enforcing authorities identify breaches of the duty to co-operate etc.
2. Responsible Persons will be required to use “competent” persons to carry out risk assessments and record the details of the risk assessors they use. Implementing this will involve sector-led work concerning the competence of risk assessors and other specialists. All Responsible Persons will be required to record their risk assessments and fire safety arrangements (currently there are exemptions where the Responsible Person employs less than 5 people). Subject to ongoing policy development, the intention is to facilitate the sharing of risk assessments with Accountable Persons under the Building Safety Bill and fire safety information with residents.
3. There is a planned overhaul by Government of the existing guidance. The Government proposes to strengthen the status of the guidance issued under the Order; it will look to introduce provisions where a failure to comply with the guidance may be relied on in criminal proceedings for breaches of the Order. This appears to be an expansion of the provision already introduced by the Fire Safety Act in relation to risk assessing multi-occupied residential buildings. There are also proposals to increase the level of fines for certain offences, including the failure to comply with specific requirements imposed by an inspector.
4. Outgoing Responsible Persons will be required to share all relevant fire safety information with incoming Responsible Persons. Importantly, if the outgoing Responsible Person does not have the information it will be required to procure it unless it is impracticable to do so. These requirements will need to be incorporated into real estate transaction processes.
Also, there was strong support for a proposal to strengthen the provisions under the Building Regulations requiring those carrying out building works to provide fire safety information to Responsible Persons, and the Government has said it will do further work to bring this forward.
A critical thread underlying much of the above is making the lines and scope of responsibility under the Fire Safety Order more transparent and traceable. This is twinned with seeking to beef up the measures in relation to the generation and quality of fire safety information and the maintenance of that information throughout the lifetime of a building.
If you require further information about anything covered in this briefing, please contact Claire Sheppard, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2021