In November 2020, we provided an overview of the legal framework for fire safety in care homes and teased some anticipated changes to fire safety legislation that will impact not only on care homes but, more significantly, across the wider care sector. You can view a copy of our previous article here. In this, the second part of our article, we take a more in-depth look at what the proposed new building and fire safety measures include and highlight some key issues for those in the care sector.
Background
Since the disastrous events at Grenfell Tower on 14 June 2017, there has been extensive scrutiny to identify what went wrong and what can be done to prevent a recurrence. This started with the recommendations of Dame Judith Hackett within her “Independent Review of Building and Fire Safety” in May 2018 and continued following phase 1 of the Grenfell Tower Public Inquiry and the report of Sir Martin Moore-Bick, both of which carefully examined the circumstances of the Grenfell fire.
Though the outcome of the Public Inquiry will not be known for a while, the Government is seeking now to introduce significant changes to improve building and fire safety. Given the background, it is hardly surprising that much of the focus of these measures will be towards safety within high-rise residential buildings. However, a number of the anticipated new fire safety measures will be relevant to care operators. These are expected through the Fire Safety Bill 2020 (which will in due course become the Fire Safety Act) and following the recent Fire Safety Consultation (the Consultation), which concluded on 12 October 2020.
The Fire Safety Consultation
The Consultation contained a series of proposals aimed at strengthening the Regulatory Reform (Fire Safety) Order 2005 (the FSO), the governing legislation for fire safety in England and Wales, and implementing recommendations from the Grenfell Inquiry Phase 1 report. It is expected that many proposals put forward for consideration in the Consultation will eventually be implemented through amendments to the FSO or introduced through separate Regulations. There will also be an overhaul of current guidance to help duty-holders comply with the enhanced legislation. Given that it comprises some 139 separate proposals over 105 pages, it is impractical to explore it in detail here. However, the following are significant changes care providers should be aware of and which we anticipate (either in full or part) will be brought in at some point this year.
Clarity of Duty-holders
A legal requirement for duty-holders within premises to record who they are, the extent of their responsibilities under the FSO and identify themselves to other duty-holders (where relevant). This will not be onerous for care homes where the responsible person (generally the care provider) is usually obvious. It will be more complex under different operational care models including specialised and retirement housing where there can be multiple duty-holders. The intention of the proposed change is to increase the level of co-operation between duty-holders. However, it will make it easier for enforcing authorities to identify against whom they can take enforcement action for non-compliance with the FSO.
FRAs and Fire Risk Assessors
There is currently no competency requirement for fire risk assessors within the FSO. Competence is generally scrutinised where a Fire Risk Assessment (FRA) is deemed not to be suitable or sufficient in breach of Article 9 of the FSO. To try to address the variable quality of FRAs, it is proposed that a competence requirement will be introduced for assessors. We will have to wait and see how this is implemented but, potentially, this could be beneficial to duty-holders in the sector who want reassurance that their assessor is competent and their decision to use that assessor will not be forensically examined later. The downside to this is that the more stringent requirements of who can be involved in the assessment or review process may result in increased cost, particularly for smaller operators who do not have internal specialists on their payroll.
Enforcement
One area of the Consultation that will cause alarm for duty-holders is the proposal that fire authorities will be able to charge for audits and enforcement activities. At present, this is not permitted due to restrictions within the Fire and Rescue Services Act 2004. However, views are being sought as to whether the law should be changed to bring Fire and Rescue Services into line with other regulators such as the HSE (with fee for intervention) and the new Building Safety Regulator. Inadequate resourcing is an ongoing issue with Fire Authorities and, as such, we expect that a charging regime of some form will be introduced.
A number of proposals within the Consultation are more specific to multi-occupied residential premises which will include specialised housing (such as extra-care services), sheltered and independent living schemes. Care operators with large housing portfolios, particularly where these are provided through multi-tenanted blocks of flats, should also be aware of these. Proposals relevant to multi-occupied premises include:
Provision of information
Key safety information to be provided to residents living in multi-occupied premises within scope of the FSO. The information to be given is likely to include contact details for duty-holders; risks identified in the FRA; preventative measures in place; and evacuation instructions. In addition, there will be a requirement to provide specified information to the local Fire and Rescue Service for high-rise premises (not defined in the Consultation) such as floor plans, evacuation plans, the FRA and information about residents who are unable to self-evacuate. As to how this will be achieved may need clear guidance, but we expect this will lead to some practical and administrative challenges for duty-holders in obtaining, retaining, recording and sharing the relevant information.
In addition, “Premises Information Boxes”, in which duty-holders can provide important emergency information to the Fire and Rescue Services, are likely to be mandatory in high-rise buildings.
High-Rise Buildings
There is a raft of proposed new measures, in addition to the information provisions above, aimed specifically at high-rise residential buildings. As already explained above, the Consultation does not define what constitutes a high-rise building. The Building Safety Bill, which we mention briefly below, covers buildings of six storeys or a minimum height of 18 metres. It is possible that for consistency, the same height requirement will apply, but there is reference within the Consultation to buildings of four storeys (11m) and above.
Proposals for high-rise buildings include:
- Monthly checks and inspections of lifts and key firefighting equipment with real time fault reporting to the local Fire and Rescue Service;
- Preparation of evacuation plans;
- A requirement for duty-holders to try and identify residents who may need help to evacuate and to keep a record of who they are;
- A prescribed frequency for inspection of flat doors (internal and entrance doors) to check integrity, damage, intumescent strips, smoke seals and that self-closing devices are in working order. Frequency of inspections will vary according to the height (and therefore risk profile) of the building but for high-rise buildings may require six monthly inspections of flat doors.
The Fire Safety Bill
The Fire Safety Bill 2020 was presented to Parliament in March 2020 and was due to be on the statute books last year but was delayed in its passage through the legislature. Though small in length, it is big in impact. The Bill amends Article 6 of the FSO with a new paragraph applicable to multi-occupied residential buildings. It will not directly influence the assessment of risk in care homes but will affect other accommodation and housing schemes. The key part of the Bill states:
“Where a building contains two or more sets of domestic premises, the things to which this order applies include –
a) the building’s structure and external walls and any common parts;
b) all doors between the domestic premises and common parts (so far as not falling within sub-paragraph a)).”
The effect of sub-paragraph a) is that external walls (including doors, windows and anything attached to the walls such as balconies or cladding), which were previously outside the scope of the FSO, now needs to be assessed as part of a building’s FRA. In addition, it enables the local Fire and Rescue Service to enforce against failings in those parts of the premises. This provision is problematic for a number of reasons. Most existing FRAs will not have included any assessment of the composition of external walls and therefore once in force, such FRAs will potentially be invalid. There are also practical challenges due to a lack of competent and appropriately qualified fire engineers with the experience to assess the risk arising from external wall coverings such as cladding. Most current Fire Assessors undertaking building FRAs would not have the expertise to do this. Nevertheless, FRAs that do not address the external parts of premises may not be suitable or sufficient, potentially exposing the responsible person and/or duty-holder to prosecution.
As far as sub-paragraph b) is concerned, the Fire Safety Bill makes little practical difference as flat doors (within multi-occupied residential premises) have always been treated as falling within scope of the FSO, given that their integrity is essential to fire protection measures within those premises.
The Building Safety Bill
It is also worth mentioning the Building Safety Bill (BSB) (published in draft in July 2020) which has a chance of making it onto the statute books by the end of this year. The BSB provides a new enforcement regime, within Part 4 of what will be the Building Safety Act, for the safe management of “higher risk” buildings. Once in force, this will initially be restricted to high-rise residential buildings (subject to a height requirement of six storeys or 18 metres) and could therefore include within its scope some specialised housing such as extra-care and large retirement living schemes. Care operators, particularly those with high-rise flats in their portfolio, would be well advised to familiarise themselves with the contents of Part 4 of the BSB to see whether they will be caught by its onerous provisions. Unfortunately, it is too voluminous to cover to any useful degree within this article.
Absent an accurate crystal ball, it is not possible to predict whether all of the proposed measures set out above will find their way into legislation. However, given that it has taken three years of careful consideration to get to where we are now, it would be wise for care operators to start planning now as to how they will be affected by the changes and what resources they need to put in place for the future.
Rob is a member of the Healthcare team at Howes Percival LLP specialising in regulatory issues and with extensive experience in fire safety and enforcement matters. If you need more information about anything in this article or are facing enforcement action from the Fire Authorities, please contact the Regulatory Team who will be happy to assist.
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