New guidance on the Regulatory Reform (Fire Safety) Order 2005

Posted on 7th September 2011

Guidance on the Regulatory Reform (Fire Safety) Order 2005 has been published by the Chief Fire Officers’ Association.

This new 135 page document can be accessed free of charge on the Chief Fire Officers’ Assocation website cfoa.org.uk. Its stated purpose is to provide enforcing authorities with a standardised approach to the articles contained within the Regulatory Reform (Fire Safety) Order 2005 in the interests of promoting consistency of application. The document is intended to be “ongoing and progressive” and due to be reviewed again after 3 years so that it can be updated with new learning together with new case law and best practice. It is non-statutory and intended to support not replace the existing Guidance Note no. 1 on enforcement published 23rd October 2007 and again available free from the communities.gov.uk website.

The Fire Safety Order represented something of a sea change in regulatory practice, with traditional routine inspections by a fire officer being replaced with “self assessment”. However while routine inspections may be a thing of the past, there is plenty of enforcement activity and a willingness by Courts to impose significant fines and even imprisonment. As with the Health and Safety at Work Act, individuals can be prosecuted where a company is guilty and the breach is proved to have been committed with the consent , connivance or neglect of a director, manager or similar officer.

There is public pressure on the enforcers to take a firm line, as is apparent from a recent Guardian Newspaper article in which the Alzheimer’s Society accused care managers of needless neglect of fire safety and that urgent action needs to be taken to protect people from the serious and tragic consequences that could occur in the event of a fire. However the same article reports how the cost of compliance can prove prohibitive to some operators such as a home in Stockport where the owners decided not to make the improvements required by inspectors and told residents they had just 28 days to find a new place to live - causing “chaos” for residents.

This year on 8th July at Nottingham Crown Court the owner of two hotels in Mansfield was jailed for 8 months after pleading guilty to 15 offences under the Fire Safety Order to pay prosecution costs of £15,000.00. The Judge said the hotelier (David Liu) had put profit before safety. An external fire risk assessor was also jailed and ordered to pay costs of £5860.00 for his failure to produce suitable and sufficient fire risk assessments.

On 29th June at Southwark Crown Court, the Managing Agent of a block of flats was fined £100,000.00 plus costs of £13,000.00 for three breaches of the Fire Safety Order arising from a fire in Gloucester Terrace, Paddington . The LFB had carried out an audit of the communal areas. The managing agent and lease holder had failed to action the findings of a previous fire risk assessment. The managing agents Douglas & Gordon Limited said afterwards the introduction of the Order has caused difficulties for landlords, managing agents, consultants and enforcing authorities alike when it comes to applying the legislation to blocks of flats like Gloucester Terrace. This was demonstrated by the five separate fire risk assessments D & G commissioned for the building, all of which provided different advice. We welcome the government’s commitment to the provision of new national guidance on fire precautions in blocks of flats”.

The message is that operators of premises of any size or complexity should ask themselves very seriously if they are competent to ensure their own fire safety compliance without external help. If a need for help from external risk assessors/consultants is identified, their competence and experience should be thoroughly scrutinised. The Nottingham case underlines how anything less could land both the owner/operator of premises and the external consultant/risk assessor in jail.

Finally, the secretary of state has made a recent determination under the Fire Safety Order upholding a requirement for door hold - open devices and dismissing arguments by a care home that management arrangements could compensate for the absence of such devices. The secretary of state ruled that the fire authority was right to insist of appropriate self closing or hold open devices on the doors. That was despite inspectors approving the home’s arrangements in 2003. For a link to the full determination click here. At Brachers LLP we are members of the Kent Care Homes Association. We are happy to discuss your ongoing compliance issues and help you find a specialist consultant if you need one. Where the issue has evolved from compliance to enforcement action or a prosecution, our experienced regulatory and health & safety lawyers can help, for example dealing with enforcers during the investigation process and responding to requests for an interview under caution and of course providing representation at such an interview or if the matter progresses to a Magistrates, Crown Court or Inquest Hearing.

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