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April 16, 2024

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Legal insight: Common errors in fire safety

Hannah Eales, Partner at law firm Kingsley Napley, discusses the role of Accountable Persons and urges for familiarisation with their duties under building and fire safety regulations. 

I am often asked what the most common errors are in matters of fire safety that lead to responsible persons finding themselves under investigation.

Without a doubt, the main issue in my experience is responsible persons not understanding or appreciating the extent of their responsibilities under the Fire Safety Order (“the Order”) 2005 and more recent legislative and regulatory changes, or not complying with the duties placed upon them as responsible person for whatever reason.

Duty to comply

Credit: Mikolaj/Unsplash

Again, in my experience, many responsible persons do not appreciate the consequences that come from failing to comply with the duties imposed under the Order – aside from the obvious concerns around life safety, the liability of a hefty fine or up to two years imprisonment on conviction for an offence under the Order, as well as the implications upon the responsible person’s business.

Under the Order, responsible persons are under a duty to comply with articles 8 to 22 and any regulations made under article 24. This has been the case since the Order came into effect in 2006.

Recently, further to section 156 of the Building Safety Act 2022 which came into force in October 2023 and amending the Fire Safety Order, responsible persons now have increased responsibilities under the Order over and above those that existed before.


Further reading: The full scope of the Building Safety Act


New responsibilities include:

  • Recording all the findings of any Fire Risk Assessment (“FRA”) – previously responsible persons only had to record the significant findings of the FRA. It also now no longer matters how many employees are employed by the responsible person in terms of the requirements of the FRA;
  • Identifying whether there are other responsible persons in the premises and if there are, sharing with all other responsible persons their name and a UK based address which can receive notices or other documentation. Responsible persons must also inform each other in writing of the extent of their responsibilities under the Order and record this information;
  • In respect of higher risk residential buildings (The Building Safety Act defines a higher risk building as at least 18 metres in height, or with at least seven storeys and containing at least two residential unit) – taking reasonable steps to identify the Accountable Person(s) under the Building Safety Act 2022. The responsible person is required to cooperate with them to enable them to perform any duties they are required to perform under the Building Safety Act.   
  • Sharing any relevant fire safety information with incoming responsible persons to ‘provide a continual record of fire safety information throughout a building’s lifetime.’ The information includes:
    • The FRA and review records;
    • The identity of any person who assisted with the FRA/review;
    • The name and UK address of any responsible person or any person acting on behalf of the responsible person who will accept notices or other documentation;
    • The identity of the Accountable Person (if a higher risk residential building);
    • Any information given under Regulation 38 of the Building Regulations 2010 (such as the information provided when a building is built or extended).
  • Providing information to residents in buildings which contain two or more sets of domestic premises. Such information includes;
    • Any risks to residents identified in the FRA;
    • The fire safety measures provided for the safety of occupants;
    • The name and UK address of the responsible person;
    • The identity of any person appointed to assist with making or reviewing the FRA;
    • The identity of any competent person nominated by the responsible person to implement firefighting measures;
    • Any risks to relevant persons throughout the building that have been identified by other responsible persons in the building.

The Fire Safety (England) Regulations 2022, introduced under article 24 of the Order, came into force in January 2023 and already mandate fire safety instructions that must be shared with residents of multi-occupied domestic premises where resident evacuation would be through common parts. The requirements brought in under the Building Safety Act go further to enhance the provision of information.

In terms of the 2022 Regulations, responsible persons are also required to provide the local fire and rescue service (“FRS”) with the following:

  • Up-to-date electronic building floor plans and to provide a hard copy of the plans, along with a single page building plan (identifying key firefighting equipment), in a secure information box on site;
  • Information about the design and materials of the external wall system and to inform the FRS of any material changes to the external walls. This includes providing information in relation to the level of risk that the design and materials of the external wall structure give rise to and any mitigating steps taken.  The external wall system includes windows, balconies, cladding, insulation and fixings.

Under the Regulations, the responsible person must also:

  • Hannah Eales, Partner at Kingsley Napley

    Undertake monthly checks on the operation of firefighting and evacuation lifts as well as functionality checks on other key pieces of firefighting equipment. Any defects should be reported to the FRS as soon as possible after detection if they can’t be fixed within 24 hours.  The checks need to be recorded and made available to residents;

  • Install and maintain a secure information box in the building, containing the name and contact details of the responsible person and hard copies of the building floor plans;
  • Install signage visible in low light/smoke which identifies flat and floor numbers in the stairwells of relevant buildings;
  • In residential buildings over 11 metres in height, responsible persons are required to undertake annual checks of flat entrance doors and quarterly checks of all fire doors in the common parts.

So it is no wonder, perhaps that the responsible person does not always readily understand or appreciate all that is required of them under the Fire Safety Order and the more recent duties imposed by the 2022 Regulations and section 156 of the Building Safety Act.

Responsible persons need to familiarise themselves with the duties placed upon them and make sure they are complying.

In terms of offences under the Fire Safety Order, it is a defence for the responsible person to prove that they took ‘all reasonable precautions and exercised all due diligence’ to avoid the commission of an offence. It is therefore vital that the responsible person takes the time to understand their responsibilities and acts upon them.

Fire Safety in 2023 eBook

SHP's sister site, IFSEC Insider has released its annual Fire Safety Report for 2023, keeping you up to date with the biggest news and prosecution stories from around the industry.

Chapters include important updates such as the Fire Safety (England) Regulations 2022 and an overview of the new British Standard for the digital management of fire safety information.

Plus, explore the growing risks of lithium-ion battery fires and hear from experts in disability evacuation and social housing.

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Beth
Beth
1 month ago

Hi, interesting article with some great tips for responsible person. There is a reference to Regulation 28 of the Building Regulations – should this be Reg 38?

Rhianna Sexton
Admin
Rhianna Sexton
1 month ago
Reply to  Beth

Thank you Beth! You’re right, it should be 38, we have amended this now.

Brett Edwards
Brett Edwards
1 month ago

While I absolutely appreciate the sentiment of this article and the fact that many organisations fall short of the requirements, would it not also be fair to say that fire safety legislation is poorly written, fragmented, constantly changing, contradictory and poorly interpreted (including by enforcing authorities), making it nearly impossible to satisfy the legislation or those enforcing authorities. Organisations have been set up to fail and cannot ever be in the right (someone will always identify something that wasn’t done correctly and hold them to account for it). Legislation and guidance desperately needs to be revised to make it simple… Read more »