Last reviewed 5 May 2022

The Fire Safety Act 2021, expected to come into force in spring/summer 2022, amends and clarifies the requirements of the Regulatory Reform (Fire Safety) Order 2005 as it applies to residential properties. Mike Sopp explores the requirements of the Act and how the responsible person can ensure they are compliant with their fire safety responsibilities.

Introduction

April 2021 saw the Fire Safety Act 2021 (FSA) receive Royal Assent. The key purpose of the FSA is to amend the Regulatory Reform (Fire Safety) Order 2005 (RRFSO) in terms of its application to certain properties and associated elements.

Current thinking suggests that the requirements of the Act (in England and Wales) will commence, through the introduction of statutory instruments, in spring/summer 2022.

It is estimated that the changes to be brought in will affect approximately 1.7 million premises that are within scope of the RRFSO.

It is therefore essential the responsible persons for premises within scope are aware of these changes and how they can be applied through best practice.

Background

As a result of the Grenfell Tower fire in June 2017, the UK fire safety regime has been under intense scrutiny and review. In particular, the Dame Judith Hackitt Review and Phase 1 of the Grenfell Tower Public Inquiry made significant recommendations to improve fire safety in higher risk residential premises.

The UK Government manifesto contained a commitment that re-affirmed its intention of “implementing and legislating for all the recommendations of the Dame Judith Hackitt Review and the first phase of the independent inquiry”.

The Building Safety Act, which is the key piece of legislation in implementing the recommendations recently completed the Parliamentary process and received Royal Assent in April 2022.

Along with this, a Fire Safety Bill was introduced in 2020, the key purpose of which is to amend the RRFSO and clarify how this should be applied to common parts in multi-occupied residential buildings.

The Fire Safety Order was originally designed to apply to workplaces, and this meant that how it applied to residential buildings was not entirely clear. As a minimum, it applied (and still does) to the “common parts”, areas for the use of all residents like hallways, staircases and landings.

The FSA now clarifies and extends the requirements through relevant amendments to the RRFSO.

As the explanatory Notes to the Bill noted, “this will be of particular interest to building owners, leaseholders or managers for multi-occupied residential buildings who are likely to be the responsible persons and who need to ensure that they have assessed the fire safety risks of the premises for which they are responsible, and have taken the necessary fire precautions as a result of that assessment”.

The Act is also intended to complement the existing powers that local authorities have to take enforcement action against building owners and managers under the Housing Health and Safety Rating System, provided for in the Housing Act 2004 and the Building (Amendment) Regulations 2018.

Key Changes

The FSA contains 4 clauses. Clause 1 amends Article 6 (Application to premises) of the RRFSO by inserting the following paragraph.

Where a building contains two or more sets of domestic premises, the things to which this order applies include:

  • the building’s structure and external walls and any common parts

  • all doors between the domestic premises and common parts (so far as not falling within sub-paragraph (a)).

A new paragraph 1B then states that the reference to external walls includes:

  • doors or windows in those walls

  • anything attached to the exterior of those walls (including balconies).

This amendment made to Article 6 of the Fire Safety Order by the Fire Safety Act will therefore require fire risk assessments to include the areas noted in the above paragraphs.

Of interest, Clause 2 of the FSA enables the Secretary of State/Welsh Minister to change or clarify the premises to which this requirement applies. In effect this may mean they can extend the scope of buildings to which this requirement applies.

This flexibility can therefore take account of any current and future outcomes from consultations, reviews and inquiries.

The FSA is an enabling Act meaning that secondary legislation is to be utilised to apply the requirements contained in the Act.

It is anticipated that the Regulations in England will be the Fire Safety (England) Regulations, although this is to be confirmed. Under these, Fire and Rescue Services will be empowered to take enforcement action and hold building owners to account if they are not compliant with the revised requirements.

The Act may also provide a foundation for secondary legislation to take forward recommendations from the Grenfell Tower Inquiry phase one, which stated that building owners and managers of high-rise and multi-occupied residential buildings should be responsible for a number of areas including:

  • regular inspections of lifts and the reporting of results to the local fire and rescue services

  • ensuring evacuation plans are reviewed and regularly updated and personal evacuation plans are in place for residents whose ability to evacuate may be compromised

  • ensuring fire safety instructions are provided to residents in a form that they can reasonably be expected to understand

  • ensuring individual flat entrance doors, where the external walls of the building have unsafe cladding, comply with current standards.

Best Practice Guidance

Clause 3 of the FSA amends Article 50 (Guidance) of the RRFSO by inserting the following paragraph.

Where in any proceedings it is alleged that a person has contravened a provision of articles 8–22 or of regulations made under article 24 in relation to a relevant building (or part of the building):

  • proof of a failure to comply with any applicable risk-based guidance may be relied on as tending to establish that there was such a contravention

  • proof of compliance with any applicable risk-based guidance may be relied on as tending to establish that there was no such contravention.

The Government is expected to issue statutory guidance covering the assessment of buildings with a risk-based approach that will have the appropriate status to incentivise responsible persons to comply with such guidance.

At this stage, it is not known whether existing official guidance will be reviewed but publications such as the Fire Safety in Purpose-built Blocks of Flats are currently subject to review.

It is also worth noting that the British Standards Institution recently published PAS 9880: 2022 — Assessing the external wall fire risk in multi-occupied residential buildings.

It gives recommendations and guidance on undertaking a fire risk appraisal of external wall construction and cladding of an existing multi-storey, multi-occupied residential building.

Similarly, there is currently useful guidance available on assessing fire doors, such as that produced by the Architectural and Specialist Door Manufacturers Association and the British Woodworking Federation.

Summary

When the relevant statutory instrument is introduced, the responsible person will need to consider the following:

  • determine whether premises for which they are the responsible person are within scope

  • the need to review current risk assessments for those premises within scope so as to ensure they reflect the changes

  • ensure that the persons undertaking fire risk assessments are aware of the guidance available and are competent to apply such guidance

  • ensure that following the completion of the fire risk assessment, any recommendations are reviewed and action taken to reduce fire risks.

Action to reduce risks should reflect the best practice guidance that will be published as this can be referred to by enforcing authorities.

Further Information

A copy of the Fire Safety Act 2021 is available here.