New Fire Safety (England) Regulations are coming into force on 23 January 2023.
The fire safety team at law firm, Addleshaw Goddard, explain the background, what fire safety professionals need to be aware of and the challenges ahead.
The Government continues to implement new legislation following the Hackett review and Grenfell Tower Inquiry. This has resulted in amendments to the existing Regulatory Reform (Fire Safety) Order 2005 (Fire Safety Order) which governs day to day fire safety.
The Fire Safety Act 2021 (FSA 2021), came into force in England in May 2022 and is now fully operational in both Wales and England.
Legislation-FireSafety-20Amidst the publicity associated with the passage into law of the Building Safety Act and the significant challenges it imposes for all operating in the built environment sector, it is important to note that there are also very challenging new fire safety regulations – the Fire Safety (England) Regulations 2022 (Fire Safety Regulations) – which are coming into force on 23 January 2023.
The Fire Safety Regulations apply to multi-occupied residential buildings in England only and impose rules for;
• non-high rise buildings – for example, fire safety instructions must be provided to residents
• buildings over 11 metres – for example, annual checks of fire doors must be carried out
• and buildings over 18 metres – for example, floor plans must now be provided to Fire and Rescue Services.
The Fire Safety Act (FSA) 2021
The FSA 2021 clarifies the scope of the Fire Safety Order in respect of multi-occupied residential buildings, to make clear it applies to the structure, external walls (including cladding, windows, doors and balconies) and individual flat entrance doors between domestic premises and the common parts.
This means that fire risk assessments should be reviewed and updated where necessary to ensure that control measures are put in place to ensure that the building can be occupied safely.
The FSA 2021, and associated regulations, will provide a clearer path for enforcement action and prosecution against any Responsible Person who fails to comply with its obligations. Penalties for offences under fire safety legislation include unlimited fines and/or imprisonment for senior individuals within a business.
Average fines for fire safety offences have risen sharply in the aftermath of Grenfell.
Do the Fire Safety Regulations apply to your building?
The new regulations apply to existing multi-occupied buildings with two or more sets of domestic premises, with various duties applying to buildings of differing heights.
While the legislation will also apply to new buildings when completed, it should also be noted that the Government has updated the Building Regulation’s guidance, Approved Document B to meet the recommendations of the Grenfell Tower Inquiry. This means such buildings face enhanced obligations, and that the Building Safety Act introduces a much tougher building regulations process which will apply in late 2023 to multi-occupied residential buildings that are 18m, or seven storeys or more.
Are you a Responsible Person (RP)?
The concept of a “Responsible Person” is not a new one. The Fire Safety Order already places several duties on the Responsible Person. In the context of the New Regulations, the Responsible Person is the person who is responsible for the safety of themselves and others who use a regulated premises.
This is usually a building owner, but in residential buildings, will include any other person in control of the common parts or exterior of premises.
New duties for the Responsible Person
The Fire Safety Regulations creates the following new duties for the Responsible Person:
1. For multi-occupied residential buildings with two or more sets of domestic premises, the Responsible Person will be required to provide:
• relevant fire safety instructions to residents, including instructions on how to report a fire, and what a resident must do once a fire has occurred, based on the evacuation strategy for the building
• residents with information relating to the importance of fire doors in fire safety
2. For residential buildings above 11m, the Responsible Person will be required to:
• provide fire safety instructions and fire door information
• undertake annual checks of flat entrance doors and quarterly checks of all f ire doors in the common parts.
3. For residential buildings of at least 18m or seven or more storeys, the Responsible Person will be required to:
• provide fire safety instructions, fire door information and undertake fire door checks
• install and maintain a secure information box in the building, which must contain the name and contact details of the Responsible Person and hard copies of the relevant floor plans
• provide up to date electronic floor plans for the local Fire & Rescue Service and store a copy in the Information Box
• send information regarding the design and materials in the external wall to the Local Fire and Rescue, together with details of any risks and mitigating steps taken
• undertake monthly checks on firefighting lifts, evacuation lifts and check the functionality of other key pieces of firefighting equipment. Defects will need to be reported to the local Fire and Rescue Service as soon as possible if the fault cannot be fixed within 24 hours. Records of the outcome of checks will need to be available to residents.
• install signage that is visible in low light or smoky conditions. The signage in stairwells must identify the relevant flat and floor numbers.
Fire Safety (England) Regulations 2022: Practical considerations
“When reviewing internal or external expertise consideration should be given to whether the individual or organisation has the necessary technical expertise to evaluate and communicate the relevant control measures, and particularly to determine technical compliance and to devise controls. In our view, increasingly attention will be paid to whether individuals carrying out risk assessments and identifying control measures have recognised industry accreditations.”
If you own, manage or operate from a building you are likely to be a Responsible Person. If so, you should carefully consider whether the obligations under these Regulations apply to you.
Where you rely on third-party managing agents they will need to be aware of the duties imposed by the Fire Safety Regulations and you must ensure they are obliged to and are in a position to action the new requirements, noting that the Regulations are criminally enforced and that the duties they create are non-delegable, meaning you may still face prosecution if things go wrong.
Industry opinion has voiced its concern regarding the capacity of the building safety industry to be able to provide suff icient resource to implement the new checks and reviews required under the Fire Safety Regulations and other recent changes to fire safety legislation. Thought should be given to the availability, and competency, of personnel when making plans to action requirements of the Fire Safety Regulations.
Given the current and forthcoming requirements of the Building Safety Act (which include the management of “building safety” risks, including fire safety), in addition to the existing requirements of f ire safety law, consideration should also be given to ensuring competence for existing and future requirements.
When reviewing internal or external expertise consideration should be given to whether the individual or organisation has the necessary technical expertise to evaluate and communicate the relevant control measures, and particularly to determine technical compliance and to devise controls. In our view, increasingly attention will be paid to whether individuals carrying out risk assessments and identifying control measures have recognised industry accreditations.
Examples such as membership of accredited schemes such as NAFRAR or FRACS, and compliance with the latest technical guidance and British Standards, such as PAS 9980, should all be considered when looking for evidence of competence. Competence should be monitored as standards evolve to ensure those engaged remain competent, although if (as appears to be expected) there is a shortage of accredited competent individuals flexibility may have to be employed in assessing competence in the short term – for example by reference to experience rather than formal accreditations.
Owners and duty holders should also be aware of the potential costs following on f rom the Fire Safety Regulations. For example, if during a check of firefighting equipment, it is found to fall short of contemporary fire safety standards, it is likely the responsible person will be advised to replace the equipment. Careful consideration should be given to who bears relevant responsibilities for costs under the relevant leases.
Systems need to be in place by 23 January 2023 to ensure ongoing compliance with the Fire Safety Regulations