Last reviewed 8 June 2022
The Fire Safety Act 2021 has now come in to force. It 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.
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.
May 2022 saw the FSA come into force with associated guidance being published that details how the requirements of the FSA can be applied.
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.
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.
The FSA contains 4 sections. Section 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).
According to associated guidance, this will in the case of multi-occupied residential buildings, put beyond doubt “that structure, external walls and flat entrance doors fall within the scope of the Fire Safety Order”.
Of interest, Section 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.
This amendment made to Article 6 of the Fire Safety Order by the Fire Safety Act will require fire risk assessments to include the areas noted in the above paragraphs.
This is noted in official guidance, which states that “the Fire Safety Act will require Responsible Persons to ensure that these elements are included in their fire risk assessments, if they have not been covered already”.
Where the relevant fire risk assessment already covers these building aspects, the guidance states that “the fire risk assessment does not need to be updated again other than after a review as required by article 9 of the Fire Safety Order”.
For those relevant fire risk assessments that do not include the elements noted above, official guidance notes that the Responsible Person and/or the competent fire risk assessor acting on their behalf should “undertake a visual inspection of the external walls”.
Where there is a known or suspected risk from the form of construction used for the external wall, such as the presence of combustible materials used for cladding or external wall insulation, a more detailed fire risk appraisal of the external walls under PAS 9980 may be required.
Best Practice Guidance
Section 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.
In support of the FSA, the Government has published guidance called Fire Safety Act Commencement-Prioritisation guidance in accordance with Article 50 of the RRFSO.
Section 3 of the Fire Safety Act makes clear that if a Responsible Person has followed the article 50 commencement guidance, then they may be able to use evidence of this compliance to demonstrate that they have met with their obligations under the Fire Safety Order (specifically the elements clarified by the Fire Safety Act).
If a Responsible Person has not complied with the guidance they may need to provide alternative evidence of how they have complied with this aspect of their Fire Safety Order obligations.
The guidance includes access to an on-line ‘Fire Risk Assessment Prioritisation Toolkit’. This takes the responsible persons through a series of specific questions, which are each carefully scored to assist them to determine the priority of their buildings for the purpose of reviewing their fire risk assessments.
As noted above, guidance makes reference to PAS 9880:2022 — Assessing the external wall fire risk in multi-occupied residential buildings.
This publication can be utilised to assist in completion of a fire risk assessment. 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.
With the introduction of the Fire Safety Act, 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.