Mysteries of fire safety legislation in the spotlight again

FIRE Correspondent Catherine Levin wades through the latest discussion about fire safety legislation and tries to make sense of it all

As usual, the government published lots of documents just before the summer recess leaving the civil servants to have a nice holiday while the rest of the public sector (and beyond) puzzle over them. This year it is the turn of the Fire Safety consultation, more than 100 pages covering changes to the Fire Safety Order, dealing with the legal aspects in the Grenfell recommendations and a look at the relationship between fire and rescue services and building control.

Alongside the Building Safety Bill that was published just before recess and the ongoing scrutiny of the Fire Safety Bill, there is a lot to understand and it is not an easy task. This article focuses on the Fire Safety Order proposals.

Fire Safety Bill

The government introduced a new Fire Safety Bill into parliament in March 2020. It is a short Bill that expands the definition of domestic premises to include the building’s structure and external walls and any common parts. Kit Malthouse is the Minister for Crime and Policing and provided this explanation during his evidence to the Bill Committee hearing on June 25.

“This Fire Safety Bill is also a move towards enhancing safety in all multi-occupied residential buildings by improving the identification, assessment and mitigation of fire risks in those buildings. It will resolve the differing interpretations of the scope of the Fire Safety Order in such buildings and provide clarity for responsible persons and enforcing authorities under the Order. It will make it clear that the Order applies to the structure, external walls – including cladding – balconies and flat entrance doors in multi-occupied residential buildings.”

Shadow Fire Minister Sarah Jones MP said during the first sitting of the Bill Committee: “Let me start by saying that the Opposition support the Bill. We are here to be constructive. Although clearly, we wish that things had gone faster and that we had been able to do more, we support the Bill and want to make it the best that it can be.”

Assistant Commissioner Fire Safety Dan Daly, London Fire Brigade, speaking on behalf of the National Fire Chiefs Council, gave evidence to the Bill Committee. “It is important that we get this legislation absolutely right so that during occupation, the duties of whoever is responsible, day to day, for the fire safety in those buildings is very, very clear and it does not allow people to pass the buck – so that it is absolutely clear who is responsible, and they will be held accountable.”

The Bill also brings into scope the doors between the domestic premises and the common parts. This latter point might seem trivial, but it has long been contentious. Dennis Davis, speaking on behalf of the Fire Sector Federation, explained: “We picked up the point about common doors in our submission, because it is an issue. It needs to be very clear that the responsible person has access and can control those elements in the same way that they can control the fire safety systems – alarms or detectors – within a dwelling. Clarity in that area would be helpful; there is no doubt about that.”

FBU General Secretary Matt Wrack also gave evidence: “Our approach to the Bill is that we broadly support it. However, we have some concerns about the need for a more joined-up approach on the whole question of the fire safety regime.”

One aspect of joining up is to connect the Fire Safety Bill with the Building Safety Bill. Adrian Dobson, speaking on behalf of RIBA, concurred: “I can highlight a danger whereby gaps might exist. For example, the Fire Safety Order talks about a ‘responsible person’, but the Building Safety Bill talks about an ‘accountable person’ and a ‘building safety manager’. What would be the lines of communication between those roles? Are they fulfilled by the same person? There is a risk there.”

Building Safety Bill

The Building Safety Bill is massive in comparison to the Fire Safety Bill. Running to 142 pages, the Building Safety Bill takes its lead from the contents and recommendations of Dame Judith Hackitt’s independent report.

Expanding on his point about joined-up thinking, Matt continued: “We need to prevent fires from happening, if we can. We need to mitigate the spread of fire where it does occur. We need to know how to fight fires when they occur – we know that they will occur. That is what we mean by a joined-up approach.” He spoke about the reduction in fire safety inspecting officer posts highlighted in last year’s HMFSI reports.

Touching on another of Matt’s favourite themes, he bemoaned the absence of the Central Fire Brigades Advisory Council. “Sadly, it was abolished in 2004, and nothing similar has been put in place to replace it. That is what we mean by a lack of a joined-up approach, and that is what is desperately missing in the fire safety regime in Britain today.”

Kit Malthouse, Minister for Crime and Policing, clarified the status of the Fire Safety Bill by talking about the Grenfell Tower Inquiry Phase 1 Report. “Eleven of the recommendations will require implementation in law. The Fire Safety Bill, which will amend the Regulatory Reform (Fire Safety) Order 2005, is an important first step toward enacting those recommendations. As has been mentioned, the Bill is short and technical; it clarifies the scope of the order. We appreciate that this is the first Bill on fire safety since the Grenfell Tower tragedy, and we intend to legislate further.”

While the House of Commons will complete its committee-led scrutiny, the Bill has moved to report stage and will be picked up again when the House returns in the autumn.

Prior to the publication of the Fire Safety Bill, the government put out a call for evidence on potential changes to the Fire Safety Order. “The intended objectives of the call for evidence were to update the evidence base in relation to how the Fire Safety Order is complied with and enforced and help with the identification and assessment of any changes that might be needed and how they might best be achieved.”

 

“This Fire Safety Bill is also a move towards enhancing safety in all multi-occupied residential buildings by improving the identification, assessment and mitigation of fire risks in those buildings”

Kit Malthouse, Minister for Crime and Policing

 

Strengthening the Fire Safety Order

Two hundred and sixty-four organisations responded to the call for evidence during summer 2019 and in March 2020 the government published a summary of those responses. It concluded that the Fire Safety Order generally works for the premises it regulates but it needs strengthening in some areas to improve standards of fire safety.

The consultation document published on July 20 builds on the call for evidence and sets out a series of questions about various aspects of the Fire Safety Order with a view to potentially introducing legislative changes. There are nine areas under consideration.

Broadly, the consultation is looking at strengthening definitions. The responsible person is at the heart of the Fire Safety Order and yet it continues to be difficult to identify who they are. Daly made an interesting, related observation during his evidence and it goes to the heart of the problem. “Our experience in enforcement terms is that there are those who seek to comply; there are those who seek to comply, but who fail to understand what is required of them; and then there are those who actively seek to dodge the legislation and work their way around it.”

To deal with this problem, the government proposes to amend the Fire Safety Order to require all responsible persons to record (and as necessary update) who they are, the extent of their responsibility under the Order, and their contact information. It does not say where the information should be recorded, but it does make the link with the fire risk assessment so the assumption is that they would be recorded together. There is no suggestion of creating any kind of central register for fire and rescue authorities to consult or for residents to access. Maybe that is a step too far?

The consultation also looks at the relationship between multiple responsible people in a single building and succession planning. ‘To ensure the preservation of fire safety information over a building’s lifetime, the government proposes requiring responsible persons to take steps to share all relevant fire safety information with subsequent responsible persons. This will complement the ‘golden thread’ provisions proposed in the draft Building Safety Bill and maintain a clear thread of information central to ensuring the fire safety across the entirety of a building’s lifetime’.

To assist the responsible person, the Fire Safety Order makes provisions for the publication of government guidance. The suite of guidance supporting the Order is 14 years old and it is about time that it was reviewed and updated. The government should look at National Operational Guidance to see how guidance will not only be created but managed well over time. It looks like some fire and rescue services agree, as the summary of the responses confirms. The consultation also suggests bolstering the status of the guidance by introducing approved codes of practice similar to those that support health and safety legislation.

Competence

An important area of consideration is competence. The call for evidence asked: ‘Are the competent persons requirements sufficient?’ The resounding answer was no. Proposal 3 of the consultation states: ‘The Government proposes to amend the Fire Safety Order to require that any person engaged by the responsible person to undertake all or any part of the fire risk assessment must be competent’.

What makes someone competent? Well, for now, the government is not committing to anything specific, rather waiting for a separate strand of work to complete. The industry-led Competency Steering Group is looking at third party accreditation and a competency framework for fire risk assessors. The final report from this group had not been published at the time of writing but will be an important element to get right.

False Alarms

Sandwiched between discussing changes to charge for enforcement activity and the start of a new section looking at the Grenfell Tower Inquiry Phase 1 recommendations, the consultation document contains a short discussion about charging for false fire alarms. This is not in the call for evidence, but it is a big problem so why not include it in this consultation?

In a previous article in FIRE, the continued high levels of false fire alarms were described as a problem hiding in plain sight. To the year December 2019, false fire alarms accounted for 41 per cent of all incidents attended by fire and rescue services in England. It is no wonder that the government wants to consult on new approaches, it desperately needs new tools to reduce the burden on fire and rescue services.

The consultation offers some explanation of the problems: ‘Where FRAs want to charge, the lack of clarity with terminology, and lack of alignment with BS 5839-1, appears to be a factor in their reticence to do so. Similarly, FRAs who have attempted to charge find it difficult to utilise legislation in court to underpin their decisions where charging decisions are challenged. It is worth noting that the current approach to charging is at the discretion of local FRAs. However, the extent to which charging drives the requisite behaviour change to further reduce the overall number of FFAs warrants further examination’.

The answers to the questions about a charging regime will be important to determine whether government will have the appetite to give the fire and rescue services what they need to reduce time wasted on this perennial problem.

Making sense of all this intensive government interest in fire safety is exhausting, but it is so good to see. It is very easy for ministers to put through legislation to be seen to solve a problem and then move on to another. That was certainly the case with the massive change that came about because of the 2004 Fire and Rescue Services Act and the 2005 Fire Safety Order.

In the world of parliamentary whack-a-mole, problems often re-emerge and need to be dealt with again. Confusing everyone by doing so much at once is perhaps an inevitable consequence of responding to Grenfell, but it has taken more than three years to get this far. Let us hope that the government can reconcile the enormity of change in the Building Safety Bill with the more subtle but equally important changes in the Fire Safety Bill and all the amendments to the Fire Safety Order. It has to make sense as a whole otherwise it is just a lost opportunity.