In the wake of the Grenfell Tower fire, the government commissioned an independent review with a view to considering the current Building Regulations and fire safety procedures in residential homes. The focus of the review is on high-rise residential buildings, which are classified as any residential building over 18m high (i.e. over 5 or 6 storeys). The independent review is aiming to publish its report in the Spring of 2018, however, Dame Judith Hackett, who is leading the review, published an interim report in December 2017, which the government have been attempting to draw attention to.
To date, Dame Hackett has stated that the current regulatory system for ensuing fire safety in high-rise buildings is ‘not fit for purpose’. She has noted, in particular, that:
- Current regulations and guidance are too complex and unclear.
- Clarity of roles and responsibilities is poor and it is not always clear who has responsibility for carrying out requisite requirements.
- Compliance, enforcement and sanctions are too weak. She has found that what has been designed is not what is being built.
- The process for residents to ‘escalate concerns is unclear and inadequate’.
- The system for product testing, marketing and quality assurance is not clear.
Dame Hackett has also criticised landlords who are waiting for her final report prior to assessing what changes need to be made to make buildings safer. She has urged landlords to consider what materials have already been identified and tested as safe and to take immediate steps to make buildings safer.
The final report is likely to be wide-ranging and will have an effect at all levels including design and construction of the building, as well as quality assurance of fire safety materials. Indeed, very recently we learned that the doors fitted in Grenfell Tower resisted flames for just 15 minutes instead of the required 30 minutes, which leads to significant questions regarding the specifications and marketing of fire safety products.
On-going duties regarding occupation of the building – the Regulatory Reform (Fire Safety) Order 2005 (“the Fire Safety Order”)
At present, the main fire and safety duties relating to residential properties are set out in the Fire Safety Order. The Fire Safety Order requires a ‘responsible person’ in all premises to carry out and regularly review a fire risk assessment in relation to the common parts of the building. In the case of flats, the responsible person is usually a landlord.
The responsible person can decide which fire precautions to put in place based on the findings of their own risk assessment. If they feel that they need help in assessing fire risks, they can appoint a ‘competent person’ with expertise in assessing and controlling fire safety risks. It is essentially a self-regulating system and there is no obligation to file risk assessments to ensure compliance.
The responsible person must put in place fire prevention and mitigation measures, which must comprise of the following:
- Measures to reduce the risk of fire and spread of fire;
- The means of escape from fire;
- The measures necessary to assist people in the use of escape routes (such as emergency escape lighting etc.);
- Fire extinguishing appliances where necessary;
- Any fire alarm systems;
- Any emergency plan;
- Maintenance of all the above measures; and
- Maintenance of measures required by legislation for use by fire-fighters.
The Fire and Rescue services are tasked with enforcing the Fire Safety Order. However, they are unable to visit all properties due to lack of resources and many rely on algorithms and complaints to identify the buildings to be visited.
The Fire and Rescue service can issue a statutory notice where a failure to comply with the requirements of the Fire Safety Order may expose occupiers to significant risk. If the notices are not adhered to, unlimited fines can be imposed and, in the most serious cases, a two year custodial sentences can be imposed.
Criticism of the current position
The Fire Safety Order does not impose obligations regarding fire prevention within the actual flats themselves, only the common parts. Fire safety within the flats is covered by the Housing Act 2004, which gives local Environmental Health Officers the power to issue notices with respect of fire hazards inside a flat.
Dame Hackett has already indicated within her interim report, that the overlap and mismatch of the Fire Safety Order and Housing Act 2004 make it ‘significantly more challenging to ensure that there is a sufficient holistic focus on the fire safety of all occupied buildings’. She also notes that local authorities are not implementing the Housing Act in a proactive way to manage fire risks. She has questioned whether local authorities are best placed to understand fire safety issues as opposed to fire and rescue services. The lack of resources within the fire and rescue service has also been noted as impacting upon the ability of the service to fulfil their statutory duties and undertake their inspection responsibilities under the Fire Safety Order effectively.
By way of interim recommendations, Dame Hackett has recommended that risk assessments for high-rise residential buildings must be carried out ‘regularly’ and at least annually and when any significant alterations have been made to the building. She has recommended that the risk assessments should be shared in an accessible way with the residents who live in the building and notified to the Fire and Rescue Service.
Of course, it is very likely that her final report will result in further substantial legislative changes and practices.