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October 22, 2024

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fire safety

Overlook compliance with fire safety ‘at your peril’

Hannah Eales and Kathryn Sheridan at Kingsley Napley discuss the steps and consequences of non-compliance within fire safety.

Compliance with fire safety is not a choice.

Small businesses are often stretched in so many directions that adherence with fire safety legislation can slip down the list of priorities. However, a failure to comply with fire safety duties has serious implications – not just for the personal safety of employees, residents and visitors to a premises – but to the financial security and future of a business and so should not be overlooked.

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 (“the Order”). The changes were brought in as a legislative response to the Grenfell Tower tragedy with the intention of tightening up and increasing the accountability of those responsible for fire safety.

The Order applies to all non-domestic premises in England and Wales, the communal areas, building structure and external walls of residential buildings and all doors between the domestic premises and common parts.

We have previously set out the key changes made to the Order in our article: Competency and co-operation in Fire Safety. However, the consequences of non-compliance are equally important.

Your local fire and rescue authority are entitled to inspect premises caught by the Order at any time to determine if the law is being complied with. These inspections will often be pre-arranged with an appointed date and time but they can take place unannounced – particularly if there are serious concerns about potential breaches of the Order.

In conducting these inspections, the fire and rescue authority will typically review the findings of the most recent fire risk assessment, review what, if any, changes have been implemented as a result of that assessment, assess what fire safety measures are currently in place, (including testing fire safety equipment) and any immediate fire risks to the premises.

They will also review what training is in place for employees. Remember, the fire and rescue authority have the power to demand production of records and so it is sensible to have these ready for inspection.

The fire and rescue authority have a number of options open to them at the conclusion of an inspection – which are either statutory or non-statutory.

Notification of fire safety deficiencies

If it is determined that there are breaches of the Order that need to be remedied but are not sufficiently serious to warrant enforcement action, the fire and rescue service can opt to take informal action in the first instance by serving a Notification of Fire Safety Deficiencies – which sets out the breach(es) in question, recommended remedial action and a timeframe by which this must take place. If the breach(es) are remedied within the timescale set by the Notice then that will bring the matter to an end. However, if the breach(es) persist, the fire and rescue service will invariably move to enforcement action.

For those inspections which reveal significant breaches of the Order, the Responsible Person for the premises will be served with a statutory notice. These can take the form of:

  • An Alterations Notice;
  • An Enforcement Notice; or
  • A Prohibition Notice.

Alterations notice

An Alterations Notice can be issued to compel a Responsible Person to notify the fire and rescue authority before any changes are made which affect fire safety. Examples of the type of the proposed changes that must be disclosed to the fire and rescue authority include a change to the premises, equipment used on the premises or a change to the use of the premises themselves which may result in a significant increase in risk.

Enforcement notice

Kathryn Sheridan at Kingsley Napley

An Enforcement Notice is intended to compel a Responsible Person into taking action to address fire safety issues in short order. Attached to the Notice is a schedule that sets out the matters that, in the opinion of the fire and rescue authority, constitute a breach of the Order. The schedule will specify what remedial action should be taken and the timescale for doing so, which is usually 28 days. Failure to comply with an Enforcement Notice is a criminal offence and can lead to prosecution.

Prohibition notice

The most serious of the three statutory notices is the Prohibition Notice. These are issued when the risk to life from a premises is so severe that its use needs to be restricted or prohibited altogether until remedial action is taken. Such a notice can result in the immediate partial or complete closure of a premises which can have significant financial and reputational consequences for a business.

Note that there is a right to appeal these notices, provided any appeal is lodged with the local Magistrates Court within 21 days of service.

Failure to comply

Hannah Eales at Kingsley Napley

Failure to comply with a statutory notice is a criminal offence pursuant to Article 32 of the Order. If convicted, a person shall be liable:

  • On summary conviction, to a fine not exceeding the statutory maximum; or
  • On conviction on indictment, to an unlimited fine or to imprisonment for a term not exceeding two years, (or both).

Fines for non-compliance can be substantial – running into the tens of thousands of pounds, depending on the severity of the breaches, the regulatory record for compliance and the turnover of the business. They can be crippling to a small business. For particularly serious breaches, offenders can expect to receive a custodial sentence – even if they are a first-time offender.

It is therefore absolutely vital that those responsible for fire safety take the time and effort to understand their obligations under the Order and implement robust fire safety management.

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