Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Naturally, everyone is horrified and concerned about the tragic events surrounding the Grenfell Tower fire. In light of the recent event, the CQC itself will be scrutinised and will be expected to take robust enforcement action where it finds a breach of the relevant regulations. There will be no excuses for providers as the letter sets out what the CQC expects and requests that providers review their fire safety processes in registered premises.
This request is consistent with providers’ legal responsibilities under the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Regulatory Reform (Fire Safety) Order 2005 (“the Order”). A failure to ensure the safety of service users can result in a prosecution under the Health & Social Care Act 2008.
As providers will be aware, the 2014 Regulations set out various duties that form the fundamental standards – the standards below which care must not fall. You should remember that providers must assess the risks to service users’ health and safety during any care or treatment and make sure their staff have the qualifications, competence, skills and experience to keep service users safe. Further, the CQC states that service users must not be given unsafe care or treatment or put at risk of avoidable harm. This is a broad brush approach to regulation, but the consequences of failing to comply are significant – both financially and reputationally.
There are three regulations that are especially pertinent in relation to fire safety:
Regulation 12 – safe care and treatment
The intention of this regulation is to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. CQC can prosecute for a breach of this regulation, or a breach of part of the regulation if a failure to meet the regulation results in avoidable harm to a person using the service or exposure to significant risk of harm.
Regulation 15 – premises and equipment
Providers retain legal responsibility under these regulations when they delegate responsibility through contracts or legal agreements to a third party, independent suppliers, professionals, supply chains or contractors.
Regulation 17 – good governance
To meet this regulation, providers must have effective governance, including assurance and auditing systems or processes. The systems and processes must assess, monitor and mitigate any risks relating the health, safety and welfare of people using services and others.
Providers should be aware that the above list is not exhaustive. The letter is a timely reminder for providers to familiarise themselves with the full 2014 Regulations here.
In addition, a range of absolute duties arises under the Order from providing training to employees to ensuring that a suitable system of maintenance by a competent person covers premises, firefighting equipment, fire detection and emergency routes and exits. The Order also requires the responsible person in the service to carry out a fire risk assessment.
The letter sets out that the CQC expects the risk assessment conducted by the responsible person to pay special attention to those at higher risk due to disability.
Boards and executive teams will be concerned to ensure they are fulfilling their governance duties, properly protecting assets and complying with relevant health and safety legislation. Failure to comply can have a range of consequences for individual staff members, officers and board members if found guilty of gross negligence or breach of health and safety legislation.
It is worth noting that providers could find themselves dealing with several regulators at the same time if there is a breach of the Order/Regulations. Although there are some who share information under Memoranda of Understanding, that is not always the case, which means that providers may have to deal with several lines of inquiry.
It is highly likely that fines on prosecutions for breaches of regulations relating to fire risks, especially when vulnerable people are involved, will increase following the Grenfell disaster.
As always prevention is the best cure and we would urge you to revisit your relevant policies to ensure that, should they be inspected, you can satisfy the CQC that you have not only read the letter but taken it seriously.
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