The Fire Safety Act 2021

Fire Safety Act 2021.  The Act has been introduced to amend the application of the Regulatory Reform (Fire Safety) Order 2005 (“RRO”) as a result of the Grenfell Tower fire on 14 June 2017.  The provisions of the Act will not come into force until the Secretary of State appoints a date by way of statutory regulations.

The RRO (also referred to as the Fire Safety Order) sets out the fire safety duties of those responsible for non-domestic premises.  However, the RRO also applies to the common parts of domestic premises.  The route to reach this definition is somewhat convoluted.  Article 6(1)(a) states that “[t]his Order does not apply in relation to domestic premises…” which, at first blush, would seem to exclude all parts of domestic premises.  However, the definition of “domestic premises” is limited to “premises occupied as a private dwelling (including any garden, yard, garage, outhouse, or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling).”  Thus, any part of the building that falls outside of this definition, falls into the scope of the RRO.  This means the parts used in common by the residents of a building, such as a communal hallway, the stairwell, the lift, the lobby etc.  The RRO does not expressly define what parts of the premises are those used (or not used) in common which has caused confusion as to how far the Responsible Person’s duties extend. As such, the Government have sought to rectify the lacuna by way of the Fire Safety Act 2021.

In the Queen’s Speech in December 2019, it was said that the Fire Safety Bill would “[p]ut beyond doubt that the Fire Safety Order will require building owners and managers of multi-occupied residential premises of any height to fully consider and mitigate the risks of any external wall systems and fire doors.”

What does the Act do?

Section 1 of the Act amends the RRO to expressly state that where a building contains two or more sets of domestic premises, then the provisions of the RRO apply to “the building’s structure and external walls and any common parts” and “all doors between the domestic premises and common parts”.  The meaning of “external walls” extends to “doors or windows in those walls” and “anything attached to the exterior of those walls (including balconies)”.

The Act only applies to premises in England and Wales.  The Act also gives the Secretary of State and Welsh Ministers the power to amend the type of premises to which the RRO applies or clarify which premises the RRO applies to.

Furthermore, the Act introduces the concept of “risk-based guidance” which can be used to prove whether there has been a breach of the Order.  Section 3 states that where someone is accused of an offence under the RRO or under the regulations promulgated under Article 24 of the RRO then if they can prove that they complied with “any applicable risk-based guidance”, it may be relied on to establish that there was no contravention.  Alternatively, if there is proof that someone so accused failed to comply with risk-based guidance then it will tend to establish a contravention.  It is not known what risk-based guidance will be published; the Act merely states that such guidance will be “about how a person who is subject to the duties mentioned there in relation to more than one set of premises is to prioritise the discharge of those duties in respect of the different premises by reference to risk.”

What will be the effect?

Without knowing the regulations that will be promulgated, it is difficult to know the extent of the application of the Act.  But taking it at face value, the amendment means that anyone carrying out a fire risk assessment under Article 9 of the RRO (whether the Responsible Person or a fire risk assessor on behalf of the Responsible Person) for a building containing more than two domestic premises will need to include features, such as external walls and anything attached to it, as a specific area of consideration in their fire risk assessment.  It is important to remember that given these provisions will apply to buildings that contain more than two domestic premises then it does not only apply to high rise purpose-built blocks of flats.

For those responsible for buildings, the amendment to the RRO will mean that they will need to ensure that their fire safety duties now specifically include these features.  For example, complying with their maintenance obligations under Article 17 by ensuring that features such as the external wall and flat entrance doors “are subject to a suitable system of maintenance and are maintained in an efficient state, in efficient working order and in good repair.”

As a result of the amendment to the RRO, the Fire and Rescue Services will have extended powers of enforcement where the Responsible Person has not complied with their obligations under the RRO in respect of the external walls, windows, or flat entrance doors or any other features that now fall within the scope of the RRO.   Similarly, Responsible Persons will be exposed to the risk of prosecution for failing to comply with their obligations under the RRO in respect of these new fire safety features.

The Fire Safety Act has been introduced alongside what will be the Building Safety Act.   Anyone involved in managing fire safety matters in any type of premises will need to keep abreast of the developments with the Fire Safety Act and the Building Safety Act.  Further, they will need to keep the provisions in mind when reviewing their approach to managing their buildings and identifying and assessing risk particularly in respect of the building’s structure, external cladding, and flat entrance doors.