David Smith, Export Manager and FIRESA Council Secretary at the Fire Industry Association explains the Fire Safety Order and asks if you know who is legally responsible for fire protection in your premises?
The Regulatory Reform [Fire Safety] Order, usually referred to as simply the Fire Safety Order [FSO], was enacted in England and Wales in October 2006 with comparative legislation existing in Scotland and Northern Ireland. It pertains to virtually all non-domestic premises, replacing most fire safety legislation with a single Order and accompanying guidance. The key element is the annulment of fire certificates issued by Fire Authorities in favour of the identification of one or more ‘Responsible Persons’, having a legal requirement in respect of fire safety for those premises.
The Responsible Person is liable for the safety of his/her employees and relevant persons through the fire safety management of risk assessments, safety policy, procedures and drills, means of escape (including emergency lighting) and a range of preventative and mitigating measures including fire alarms and extinguishers, fire doors and compartments, and signs and notices. As part of this, they must keep records on risk assessments, policy, procedures, training and drills as well as fire safety systems maintenance. This is responsibility writ large, and failure to meet these legislative demands can result in a two year prison sentence and a £5,000 fine, not to mention the matter of record that an assigned legal duty has not been met and has put lives at risk.
The Prosecution Register (freely available from the Chief Fire Officers Association website) shows that there have been over 10,000 prohibition, enforcement or alteration notices served, and that between 2009 and thus far in 2015, 86 prosecutions undertaken. What is worrying however, is that not all Fire & Rescue Services [FRS] are equally active and/or consistent in their executive roles since Lancashire, Cheshire and West Yorkshire FRSs contribute 24, 19 and 18 prosecutions respectively, accounting for over 70% of prosecutions made by the current 46 such services in England.
The Department for Business, Innovation and Skills [BIS] published a review on FSO Enforcement in August 2013 based on evidence from a range of trade bodies, businesses and regulators. While there was some evidence that Fire & Rescue Authorities provide effective support, the findings are overwhelmingly a cause for concern. Many see the official guidance documents as confusing and sometimes contradictory, while the view is widely held by Enforcing Officers that many small businesses are simply unaware of their specific obligations. Officers are critical that some fire risk assessments are not carried out competently while businesses contend that some officers have questionable capability and training to carry out their enforcement roles. What is manifest is that there is inconsistency across the FRSs and that businesses have a difficult job in complying with their responsibilities and, in fact, the Fire Industry Association [FIA] has heard from a number of commercial premises owners that suggest that a more prescriptive approach to fire safety in the UK would be welcomed. This, of course, takes us beyond the jurisdiction of the FSO itself into the realm of fire safety legislation generally and the requirements encompassed within Approved Document B – Fire Safety published by the Department of Communities and Local Government [DCLG].
Interestingly, the BIS report fails to identify a key difficulty inherent in the FSO, namely, who is defined as the Responsible Person. Under the definition given in the Order, it is the employer ‘if the workplace is to any extent under his control’, otherwise, ‘the person who has control over the premises’, or the owner ‘where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking’. In practice, therefore, it could be the employer or self-employed, but equally it could be a managing agent or owner of shared premises or a contractor with a degree of control over those premises. In other words, the designation of the Responsible Person is not explicit.
It is helpful then that a recent debate on fire safety at Westminster Hall in London contributed to the public discourse on this element of the FSO. Jonathan Evans MP (Conservative, Cardiff North) related the tragic story of the loss of life of a young lady at Meridian Place, a residential property in London’s Docklands, who tried to rescue her boyfriend who was trapped in the blazing building. It has emerged that the fire alarm had not been working for two years, there were problems with fire doors and there was inadequate smoke ventilation – issues which should have been revealed had there been a fire risk assessment conducted more recently than 1997.
This led to deliberation regarding the adequacy of the current legislative framework and questions concerning just who is responsible for fire safety in large scale developments. Evans asked; “who is accountable…is it the owner, the property management company, the residents’ association or the individual tenant? When failings are found, the lines of accountability are not clear enough”.
Further evidence offered during the debate showed that the broader picture is equally alarming. While it is an offence to wedge fire doors open, a recent survey by fire risk assessors exposed that 85% had their self-closing mechanism disconnected and that 80% of escape routes in buildings were obstructed. In 2009, a major fire broke out in Lackanal House in Camberwell, London, which claimed six lives and it was found that the local council had scheduled the building for demolition on fire safety grounds ten years previously. The London Fire and Emergency Planning Authority in its report on the tragedy stated that; “the Authority wishes to explore whether the regime (the FSO) is achieving all that is desirable” and goes on to highlight that; “there are issues about complexity; understanding among responsible persons”.
They felt that there are contradictions or omissions in the overall legislative framework and that the system of devolved managerial and democratic oversight of fire safety lacks common methodologies or performance measures. They cast doubt also on whether the guidance properly informs Responsible Persons.
The Order, therefore, has arguably been inadequately publicised and is insufficiently clear. We might suggest that enforcement is suspect both in terms of coverage of relevant premises and the approach that each Fire Authority takes as the enforcing body.
In response to Jonathan Evans, Stephen Williams, Parliamentary Under-Secretary of State for DCLG, stated that; “fire prevention is always better than cure” and referred to the Fire Kills campaign which provides fire prevention advice to householders. To clarify the situation in residential properties, he referenced the Housing Act 2004 which places responsibility for whole building safety on owners (landlords or freeholders) and housing authorities, while for commercial premises he cited the FSO, and furthermore indicated a review of Approved Document B to be completed by 2016-17.
The previous coalition administration and now the Conservative government has adopted a strategic policy in fire safety that engenders a ‘hands-off’ approach from central government departments, devolving responsibility to individual authorities as part of its Localism agenda and encouraging sector stakeholders to do what they can to improve fire safety in this country. This is in addition to stringent public spending cuts and a reluctance to bring new regulations to the statute book, with the notable exception of requiring landlords to fit smoke and carbon monoxide alarms within their rented properties.
If this sounds like a viable approach with localist democracy at its heart, in reality it is profoundly problematic. DCLG has diminished its personnel count by over 35% since 2010 and is to save a further £230m as part of George Osborne’s efficiency drive announced shortly after the election, and this coming in addition to major cuts expected in the July budget. This is conspicuous in the absence of central government direction on fire safety over the last five years and a lack of investment in projects that can solve some of the problems we have identified.
If this central government policy vacuum is to be filled by Local Authorities, trade bodies and others, then what is the problem? For the Authorities, they are labouring under drastic cuts in their Fire and Rescue grant awards from central government so their own finances are stretched. In addition, there’s a cultural tendency for them to act autonomously, creating regional diversity and rendering a concerted national approach to fire safety issues difficult.
For other bodies such as the FIA, we’re sure we can help and we do as much as we can to achieve tangible progress, but we have no legislative or regulatory powers at our disposal. If the Fire Safety Order is to function as it was intended, and it is imperative that it does, we need not just the will but the means to implement the changes needed.
Export Manager and FIRESA Council Secretary
Fire Industry Association (FIA)
Tel: +44 (0)203 166 5002