In this ebriefing, we identify what we see as the key messages arising from recent prosecutions in the care and housing sectors.
The Regulatory Reform (Fire Safety) Order 2005 (“the Order”) applies to all non-domestic premises, including the communal areas of residential multi-occupancy buildings.
The Order allocates responsibility for complying with the duties set out within it to certain individuals and organisations with ownership or management of a property (referred to as “the Responsible Person”) and other relevant duty holders such as those with maintenance responsibilities.
As explained in our previous article on the Fire Safety Bill, the scope of the Order previously did not clearly cover certain areas of buildings that may pose a serious fire risk, for example, the structure of buildings and the external walls. This was a source of confusion for both those involved in the ownership and management of buildings and enforcement authorities alike. It is this confusion that the Fire Safety Act 2021 seeks to resolve.
The Fire Safety Act 2021
The Fire Safety Act 2021 amends and clarifies the Order as follows:
Section 1 of the Fire Safety Act 2021 clarifies that where a building contains two or more sets of domestic premises, the Order applies to the building’s structure and external walls and any common parts, as well as the doors between the domestic premises and any common parts. The definition of “external walls” here includes doors or windows in those walls and anything attached to the walls (including balconies).
Section 2 of the Fire Safety Act 2021 gives powers to the relevant authority (being the Secretary of State in England and the Welsh Ministers in Wales) to amend the Order to change or clarify the types of premises to which it applies. The purpose of this section is to make it easier for the scope of the Order to be adapted and amended to account for changes in buildings and construction, but also changes in the risks associated with different types of buildings.
Section 3 of the Fire Safety Act 2021 amends article 50 of the Order to confirm that where a person is alleged to have breached the Order, proof of failure to comply with applicable risk-based guidance may be relied on to establish that the breach occurred, and proof of compliance with any risk-based guidance may be relied on to establish that there was no such breach. This section of the Act (and the amendments it implements) only applies to buildings in England containing two or more sets of domestic premises.
The House of Lords had on multiple occasions tried to insert into the Bill during its passage through Parliament, a prohibition stating that the owner of a building may not pass the costs of any remedial work completed as a result of the provisions of the Bill on to leaseholders or tenants. The House of Commons rejected the House of Lord’s proposals on multiple occasions, stating that the issue of remediation costs was too complex to be dealt with in the manner proposed.
It is not clear when the Fire Safety Act 2021 will come into force. It appears that section 1 and 3 of the Act will come into force, at least in England, once the risk-based guidance discussed above is issued.
Those who own and manage buildings to which the Order applies should carefully review the Act to ensure they understand its impact on their operations and the extent of their fire safety obligations. It is now appropriate for those who own or manage such buildings to review their fire risk assessments and evaluate the sufficiency of the measures that are currently in place in relation to:
1) The building’s structure and external walls and any common parts (noting the relatively wide definition of external walls).
2) All doors between the domestic premises and common parts.
There are, however, a number of practical issues associated with the Act that will need to be resolved to ensure the Order (as amended by the Fire Safety Act 2021) can be consistently followed and applied by duty holders and enforcing authorities alike.
The decision to not include the proposed prohibition on passing on remediation costs in the Bill/Act has been heavily criticised by relevant stakeholders (such as the Grenfell United group). The Government has stated that the issues related to remediation costs will be dealt with in separate legislation; this does, however, leave questions unanswered for owners and managers, and leaseholders potentially facing significant costs. With the expanded duties under the Act likely to lead to increased remediation costs, we consider that there will be significant pressure on the Government to provide guidance/take action on this topic.
As discussed above, it is unclear at present when and how the Fire Safety Act 2021 will be implemented. The fire risk assessments now required will be extensive and require consideration of the building’s structure and external walls. There are some concerns that there is a shortage of individuals with the necessary competence and expertise to carry out these wider assessments, and as such, owners and managers of buildings are likely to need sufficient warning to ensure they can comply before the implementation date.
The Act appears to give the Responsible Person (and other relevant duty holders) responsibility for front doorsets of leaseholders’ properties. We expect that guidance and/or clarification will be required by the Responsible Person and leaseholder alike to understand how this will work in practice.
It is not clear yet how the Order (as amended by the Fire Safety Act 2021) will work alongside the Building Safety Bill and the other fire safety and building safety proposals. For example, it is important that building owners and managers understand how the role of the “Responsible Person” will interact with the role of the “Accountable Person” under the Building Safety Bill. For Registered providers of social housing, there are also questions regarding how the amended Order, Building Safety Bill and Social Housing White Paper (and the various roles proposed within them) will interact with each other.
Notwithstanding the above, it is clear that the Fire Safety Act 2021 is a significant step in the Government’s attempts to develop a clearer, more comprehensive and most importantly, safer fire safety and building safety regime. Those who own and manage buildings will likely need to adapt to a raft of fire safety and building safety changes in the coming months and years. The Building Safety Bill is likely to be introduced to Parliament this year and the Government have recently released its response to its Fire Safety Consultation. Within this response, amongst other proposals, the Government states that it intends to put regulations before Parliament before the second anniversary of the Grenfell Tower Inquiry Phase One Report which will deliver on its recommendations (including the measures around checking fire doors and lifts). The response also states that further proposals will be made regarding Personal Emergency Evacuation Plans and Premises Information Boxes.
With the above in mind, it is essential that those who own and manage buildings, not only prepare for the implementation of the Fire Safety Act 2021, but also closely monitor the other proposals and recommendations that are being introduced, considering how these will affect their operations and the functioning of their buildings.
For more information
For further information in relation to this article, please contact your relevant ACS contact or Lorna Kenyon.
A recent High Court case on costs could prove essential reading for clients who have cases in the magistrates' courts.
The employment and pensions team offer practical advice on whistleblowing.
Partners, David Alcock and Sarah Patrice, have been involved in reviewing the new Code of Governance for community-led housing, published on 21 May 2021 by the Confederation for Coop Housing.
Following the eviction ban being lifted on 31 May 2021 and further to our previous ebriefing, the new notice of seeking possession forms are now available on the Government website as Word versions.
The European Court of Justice's standpoint on the Wiener Wohnen landowning developer case, and how the level of influence over the work did not amount to a decisive influence.
The Law Commission's Technical Issues in Charity Law report revealed that many charities struggle with a range of technical issue in the law.
The Law Commission recommended four key changes to the law in respect of mergers and the incorporation of charities which we have detailed in this ebriefing.
Over the last few weeks, we have published individual ebriefings on some of the key changes to be implemented following the Government’s response to the Law Commission’s report.
In April 2021, the Foreign Office halted funding for Oxfam following new allegations of sexual misconduct made against staff in the Democratic Republic of Congo.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.