Hannah Eales and Kathryn Sheridan at law firm, Kingsley Napley, discuss the Building Safety Act, and its domino-effect on competency within fire safety.
On 1 October 2023, Section 156 of the Building Safety Act 2022 (BSA) introduced a number of important changes to the Regulatory Reform (Fire Safety) Order 2005, with the intention of improving fire safety. The changes came about following a clear and urgent need for reform following the Grenfell Tower fire in 2017. The changes seek to tighten up and increase accountability of those responsible for fire safety.
The amendments also serve to increase the severity of penalties in respect of some offences under the Fire Safety Order – re-emphasising the seriousness by which compliance with fire safety will be regarded by the courts.
One of the most pertinent changes introduced by the BSA relates to risk assessments. Previously, the Responsible Person was required to only record significant findings arising from a fire risk assessment – that requirement has now been expanded so that all findings must be recorded.
It also expands the requirement to undertake a fire risk assessment regardless of the size or purpose of the premises – whereas previously the requirement existed only where the Responsible Person employed five or more people or the premises were subject to an alterations notice or a licence was In force. Now all premises regulated by the Order are required to undertake a risk assessment.
The BSA also introduced a new Article 9A (not yet in force) that imposes a duty on the Responsible Person to ensure that if they appoint a third party to undertake the fire risk assessment of their premises on their behalf, they have to be satisfied that person is competent to do so. According to Article 9A(2), a person is competent for the purposes of carrying out a fire risk assessment if they have “sufficient training and experience or knowledge and other qualities to enable [that] person properly to assist in making or reviewing the assessment”.
Whilst this provision is not yet in force, its introduction will clearly compliment the Government’s aims of increasing the accountability of business and premises owners whilst at the same time seeking to increase the quality of risk assessments. It will seek to do so by preventing Responsible Person(s) from outsourcing fire risk assessments to those who are clearly not competent and protecting against the instruction of those who lack experience, resulting in recommendations for expensive fire safety measures that aren’t strictly required.
According to the Government, this requirement is not being introduced until guidance in understanding and meeting these new requirements is published. As to the current position, if a Responsible Person does choose to employ a Fire Risk Assessor they should record their name and organisation clearly within the assessment – so there is a clear record as to who completed that assessment which can be shared with residents (where required) and any other Responsible Person.
A further key amendment made by the BSA, aimed at ensuring residents in a building are safe, relates to enhanced duties on the part of the Responsible Person(s) to co-operate and co-ordinate in their approach to fire safety. This typically applies to multi-occupancy buildings where, for example, the occupier and owner are different – i.e. leaseholder and freeholder. In that scenario, amendments to Article 22 require that the Responsible Person(s) must “take such steps as are reasonably practicable to ascertain whether any other responsible person shares, or has duties in respect of, the premises”.
Where there is more than one Responsible Person, they are now under an obligation to exchange names and addresses as well as details as to what part of the premises they consider themselves to be responsible for in terms of fire safety and maintain a record of those communications.
The enhanced duties of co-operation extend to a departing Responsible Person – who under Article 22A is obliged to give the incoming Responsible Person any relevant fire safety information in their possession. The introduction of this requirement plays a key part in preserving corporate knowledge of a premises throughout its lifetime – referred to as part of the “golden thread” within the BSA. The information that ought to be shared with a successive Responsible Person includes details of Fire Risk Assessments, the name of the Assessor and details of any other Responsible Person.
Publication of the Grenfell Tower Inquiry Phase 2 report earlier this month has put fire safety back under the microscope. Compliance with fire safety requirements is not a choice – and a breach of requirements under the legislation is likely to be viewed extremely seriously.
Whilst knowledge and compliance with obligations is fundamental, Responsible Persons also need to be alive to the need to evidence that compliance – and so it is sensible to keep contemporaneous records and detailed decision logs evidencing the steps that have been taken in achieving compliance so that the requisite evidence exists as it will inform enforcement decisions.
