Journal Detail back to listing
An Update on Fire Safety Legislation in England and Wales
- Feb 2, 2023
- Latest Journal
In November 2022 Colin S. Todd MBE was awarded the Fire Industry Association Lifetime Achievement Award, which is bestowed annually, by the FIA board in recognition of a person who has made a major contribution to the fire safety profession over a long career. The following article authored by Mr Colin S Todd MBE is recommended as essential reading, for lawyers and experts who wish to be up to date with the latest government legislation.
As the result of the tragic fire at Grenfell Tower in June 2017, Government has implemented, and will further implement, major changes to fire safety legislation in England. The situation in Wales will be very similar. The majority of these changes reflect the Hackitt Report1 and the Phase 1 Report of the Public Inquiry into the Grenfell Tower Fire.
These changes do not affect Scotland or Northern Ireland, where the communal areas of blocks of flats do not fall within the scope of fire safety legislation, other than in relation to requirements for maintenance of facilities and equipment provided under legislation for the use, or safety, of firefighters (e.g. rising mains, by which the fire and rescue service can obtain water supplies on upper floors and specially designed lifts for use by firefighters during operational incidents).
This article addresses the following:
• the coming into force of the Fire Safety Act 2021;
• the laying of the Fire Safety (England) Regulations 2022;
• the Building Safety Act 2022, with particular reference to Section 156, which, when it comes into force (possibly in 2023) will further amend the Regulatory Reform (Fire Safety) Order 2005;
• the Government response to the Public Consultation on Personal Emergency Evacuation Plans (PEEPs) for high-rise blocks of flats, and a new consultation on Emergency Evacuation Information Sharing (EEIS).
The coming into force of the Fire Safety Act 2021
The Fire Safety Act 2021 received Royal Assent on 29th April 2021, but did not come into force in England until 16th May 2022; in Wales, it came into force on 1st October 2021.
The purpose of the Act is purportedly to “clarify” the Regulatory Reform (Fire Safety) Order 2005 (“the Fire Safety Order”) in relation to three matters, all relating to blocks of flats (in practice). The “clarification” is that the following all fall within the scope of the Fire Safety Order, namely:
• flat entrance doors, in respect of which, arguably, no clarification was needed, as competent fire risk assessors would be extremely well aware that these doors form part of the Fire Safety Order premises;
• the building structure (see further comments below);
• the external walls of the building and attachments thereto (e.g. balconies).
With regard to the “building structure”, this is, undoubtedly, already causing confusion, with perception by some that all fire risk assessments now need to be intrusive. This is incorrect.
The reference to structure really means, in effect, that there is a need for consideration of compartmentation and means of escape, but the expectation is that, in most cases, this is only considered visually, so, really, this is something of a status quo in relation to long-standing custom and practice.
This was made clear by the then Fire Minister, Lord Greenhalgh, who, in proposing the second reading of the then Fire Safety Bill on 1 October 2020, informed the House of Lords that MPs and industry representatives had raised an issue in relation to the inclusion of “structure” in the Bill. Lord Greenhalgh stated that the concern was that structural assessments should more routinely be carried out as part of fire risk assessments. Lord Greenhalgh assured the House of Lords that this was not the case.
Lord Greenhalgh advised the House that the intention was for a visual inspection of the construction and layout of the building on the basis that it would have been built to resist early structural collapse in the event of a fire. Consequently, Lord Greenhalgh stated that intrusive surveys of buildings are likely to be required rarely and only on the basis that the fire risk assessor has serious concerns about the risks that the structure of the building could pose; otherwise, non-intrusive surveys should normally be carried out.
With regard to external walls, this is a major issue, as, if it is correct to treat the amendment to the Fire Safety Order as purely a “clarification”, this would mean that the external walls of a block of flats always fell within the scope of the Fire Safety Order, so all fire risk assessments carried out since the Order came into force on 1st October 2006 should always have considered the external walls.
The Fire Industry Association (FIA) has estimated that, if this were correct, about 450,000 fire risk assessments were/are not suitable and sufficient. The FIA have produced a publicly available guidance document refuting the suggestion that this is a clarification, but, in fact, is an extension of scope. Regardless of which viewpoint is correct, there is no doubt that, now, external walls in blocks of flats and attachments thereto do fall within the scope of the Fire Safety Order.
To assist with this issue, my consulting practice, C S Todd & Associates Ltd, in collaboration with a number of other leading practices in our field, drafted a new code of practice on fire risk appraisal of external walls on blocks of flats, PAS 9980, which is available as a free download from BSI2. This code of practice is intended for use by competent professionals, but the appraisal will be beyond the competence of most typical fire risk assessors, as it necessitates special skills in relation to the construction of external walls and any cladding affixed to the wall.
PAS 9980 sets out a methodology to conduct and record fire risk appraisals for external walls, using a series of steps to assist in the identification of risk factors, as well as mitigation steps that might improve the risk rating. PAS 9980 also provides recommendations for the competence of professionals engaged in these appraisals.
Walls of traditional masonry construction (i.e. external walls which comprise either two leaves of masonry or a solid masonry leaf) will not normally need a specialist appraisal. Similarly, if it can be determined with reasonable certainty that the as-installed construction has been proven to perform adequately in relation to external fire spread (e.g. by means of the full-scale fire test in BS 8414), specialist appraisal will probably not be required. However, for many modern buildings, particularly those with cladding, compliance with legislation will now necessitate a suitable appraisal of the fire performance of the external walls. Unfortunately, there is a grave shortage of competent persons who are willing (and properly insured) to carry out such appraisals. This is likely to be the case for at least the next year or two.
Accordingly, Section 3 of the Fire Safety Act amends Article 50 of the Fire Safety Order on the subject of guidance. Under Section 3, where, in any proceedings, it is alleged that a person has contravened anything in Articles 8 – 22 of the Order (or regulations made under the Order) proof of compliance with any applicable risk based guidance may be relied on as tending to establish that there was no contravention.
In conjunction with the Act, therefore, the Home Office have produced a risk prioritisation tool to enable people to determine the priority that should be given to further appraisal and/or remediation of external walls in blocks of flats. What this does, in conjunction with Section 3, is allow people to, as it were, wait in the (extremely long) queue for having their external walls appraised if the tool establishes that this is acceptable because of the low priority given to the situation in question.
The laying of the Fire Safety (England) Regulations 2022
The Fire Safety (England) Regulations were laid on 18th May 2022, but do not come into force until 23rd January 2023. The sole purpose of the Regulations is to implement certain (but not all) of the recommendations of the Grenfell Tower Public Inquiry Phase 1 Report. There are 10 fact sheets on the Regulations at Fire Safety (England) Regulations 2022 - GOV.UK (www.gov.uk), each dealing with one of the 10 fundamental requirements of the Regulations.
For all blocks, the RP must:
• display fire instructions prominently within the common parts, setting out:
- the evacuation strategy (stay put or simultaneous evacuation);
- how to report a fire to the FRS, including the correct address, etc;
- any other instructions that relate to action when a fire has occurred.
• provide these instructions to residents as soon as reasonably practicable after they move in or if the instructions change;
• re-issue the instructions at periods not exceeding 12 months;
• provide relevant information to residents about their fire doors as soon as reasonably practicable after they move in. The information must advise residents that:
- fire doors should be shut when not in use;
- residents/guests should not tamper with self-closing devices;
- residents should report any fault with, or damage to fire doors immediately to the Responsible Person;
• re-issue the information about fire doors at periods not exceeding 12 months.
While there is no explicit requirement for translation of any of the information into other languages, the information must be in a comprehensible form that residents can be reasonably expected to understand, so, arguably, this could include a need for translation into different languages.
For blocks over 11m in height (typically a building of five storeys or more):
The RP must use best endeavours to check all flat entrance doors at periods not exceeding 12 months. Checks of the doors within the common parts must be made at periods not exceeding three months.
A record of the steps taken to carry out the checks must be kept, including any case where access was not granted by a resident, along with the steps taken to try to gain access.
There is no intention that these checks should be carried out by specialists. Guidance on carrying out door checks will be available on the gov.uk website. It is likely that these checks can be carried out by staff of the freeholder, such as caretakers.
For high-rise blocks (i.e. blocks of 18m or at least seven storeys):
• there will be a need for wayfinding signage for the FRS on stairway landings and lift lobbies. The purpose of this signage is to enable firefighters to orientate themselves within the building during a fire and readily identify the location of any flat. The signs indicate the floor number and the flat numbers on the floor in question. A detailed specification for the signs can be found in Approved Document B under the Building Regulations (“ADB”). However, it should be noted that, while ADB specifies these in blocks over 11m in height, the Regulations, as applicable to existing buildings, apply only to high-rise buildings;
• a secure information box must be provided at a location that is readily accessible to the FRS. (This was what was previously known as a premises information box.) It must contain, at least, the following information:
- the name, address and telephone number in the UK for the Responsible Person (“RP”);
- name and contact information of persons permitted to access the building on behalf of the RP (e.g. managing agents);
- a block diagram of the building, showing the key fire safety measures;
- floor plans of the building, showing the key fire safety measures on each floor (if all floors are the same, only a typical floor plan need be produced).
It should be noted that there is no requirement to keep information about residents (e.g. disabled people) in the box, though many RPs will do so.
The box must be checked at least annually to ensure the box is secure and accessible to the FRS. An annual check of the accuracy of information in the box is also advisable.
• a record of the design of the external walls must be prepared, including details of the materials of which they are constructed. This record must be transmitted to the FRS electronically.
The information to be recorded is relatively high-level, but must include the level of risk determined by any fire risk appraisal of the external walls and any mitigating measures in relation to the risk.
• the floor plans and building plan, kept in the information box, must be forwarded electronically to the FRS and must be updated when changes are made. A list of information that must be recorded can be found in the Regulations and associated guidance. As well as key fire equipment, locations of main stairways and lifts, for use by firefighters or evacuation, should be recorded.
• there must be monthly routine checks of lifts for use by firefighters (i.e. firemen’s lifts, firefighting lifts and firefighters lifts), evacuation lifts and “essential fire-fighting equipment”, the latter of which comprises:
- rising main inlets and outlets;
- smoke control systems and fire suppression systems;
- any communal fire detection and alarm systems, including detectors;
- evacuation alert systems and door release mechanisms linked to fire alarm systems.
If there are any faults in any of the above, the FRS must be notified electronically if they are not going to be capable of rectification within 24 hours. Then, the FRS need to be notified again when the fault is rectified. Records of all these checks must be kept, and they must be available to residents.
In practice, these checks are simple visual checks or tests that can be carried out by caretakers and the like. There appears to be no intention that specialists, such as contractors, need to be engaged for the purpose (though some major housing providers might choose to use contractors who are doing other general maintenance checks for the purpose).
The Building Safety Act 2022 (with particular reference to Section 156)
The Building Safety Act will come into force in phases over the course of the next year or so. This will require a series of statutory instruments.
In the original Bill, there was a requirement for appointment of Building Safety Managers, but this was dropped from the Act, even though some “early adopters” had already appointed them in anticipation.
A major issue will be the need for “building safety cases” for all high-rise blocks of flats (and possibly other high-rise residential buildings). There is very simple, general guidance by the HSE, who will be the new Regulator for high-risk residential buildings, on building safety cases.
The building safety case will have a focus on fire, but it also will include “building structure”. It is, therefore, unlikely that a building safety case could be prepared by a fire safety specialist alone; it is likely to need a structural engineer or a building surveyor. For example, in the case of buildings with large panel construction of similar construction to Ronan Point, a 22-storey tower block in London, which suffered progressive collapse as the result of a gas explosion in 1968, there would be a need for verification of the structural safety. Slightly different from a typical fire risk assessment, the building safety case will need to consider “worst case scenarios”.
One simple provision of the Building Safety Act is section 156 of the Act, which amends the Fire Safety Order.
The amendment of the Fire Safety Order will have the following effects:
• No longer will a fire risk assessment only need to record the “significant findings”; it will be “the findings”. In practice, for those who have already been producing comprehensive fire risk assessments, this is unlikely to necessitate any material changes.
• The current relaxation, whereby a fire risk assessment need not be recorded in writing in the case of microfirms with less than five employees in the whole company, will be removed, so all FRAs will need to be documented.
• Anyone appointed by the RP to carry out an FRA must be competent. The whole issue of competence is currently subject to close scrutiny between the fire sector and Government. Previous pleas to Government by the fire sector for competence to involve mandatory third-party certification have gone unheeded. One obstacle to any change in the Government position is obviously the limited number of fire risk assessors and fire risk assessment companies that hold such certification.
• There will be a need for yet further information to be given to residents of domestic premises in blocks of flats. This information relates to “relevant fire safety information”, the latter of which must be recorded. The relevant fire safety information is defined in considerable detail within the Building Safety Act.
• There will be further duties in relation to the current Article 22 of the Fire Safety Order about cooperation and coordination between parties.
• One cooperation issue, which will please managing agents, is that, when premises change hands, there will be a need for handover of relevant fire safety information. It is a regular complaint by managing agents that, when they take over management of a building, inadequate information is handed over by the previous managing agent to enable proper operation and maintenance of the building.
PEEPs and EEIS
There has been protracted debate on the issue of PEEPs for blocks of flats. There is no question that, in workplaces, PEEPs are not only practicable, but are essential. In places to which the public resort, it is reasonable to expect there to be Generic Emergency Evacuation Plans (GEEPs).
However, national guidance on fire safety in purpose-built blocks of flats (originally published by the Local Government Association in 2011 and now available on the Government website) had expressed the view that, in blocks of flats, PEEPs were impracticable. Following the fire at Grenfell Tower, this guidance was subject of much debate. Currently, recommendations regarding evacuation of disabled people in the guidance on fire safety in blocks of flats available on the Government website, have been redacted.
The Phase 1 Report of the Public Inquiry into the Grenfell Tower Fire recommended that it be a legal requirement that, in blocks of flats of over 18m in height, the RP must prepare a PEEP for every disabled resident. Accordingly, Government produced a public consultation on the implementation of this requirement.
The public consultation incorporated an emphasis that, whatever the PEEP should be, it must not involve the intervention of the fire and rescue service. Many public responses were in favour of the recommendation. Equally, the view of many in the housing and fire sectors was that, in the absence of staff within blocks of flats, PEEPs were impracticable.
It would appear that, in the public response, and in consultations with the housing sector, no one had been able to give Government an example of the PEEP that had been envisaged, namely one that did not involve the intervention of the fire and rescue service.
The consultation response did not close Government’s mind to any suggestions for practical PEEPs, but, again, pointed out that no one had told them of such a thing and their unequivocal view was that any PEEPs for a block of flats would need to meet a sort of three-step test, which the Fire Minister told the House of Lords they had not found any PEEP to meet, other than rescue by the FRS. These were that the PEEP would need to be practicable, proportionate (e.g. in cost, so eliminating the need for a 24hour staff presence in all high-rise blocks of flats), and safe.
Having abandoned the notion of PEEPs, as described in the consultation, the Government produced a new consultation on a new concept called Emergency Evacuation Information Sharing (EEIS). This would involve a process in which disabled people who identified themselves to the RP would have their name put in a “secure information box” (the new name for what was previously known as a premises information box).
However, as envisaged, this would only apply to buildings with a simultaneous evacuation strategy, including buildings with defective cladding, though simultaneous evacuation often applies to old conversions from large dwellings to blocks of flats, in which compartmentation would not meet current standards.
Buildings with a stay put strategy do not figure in the EEIS consultation. Moreover, the Government response to the original PEEPs consultation actually recommended against having information on disabled people in the secure information box. In practice, people will do so.
While there is no requirement, under the Regulations, for the box to be as secure as a traditional proprietary premises information box, information about disabled people might be useful to criminals, so it is clearly important for the safety and security of disabled people that any personal information about them cannot readily be accessed.
For best practice, secure information boxes should comply with a joint FIA and National Fire Chiefs Council code of practice for premises information boxes, which is a free download from the FIA website3.
Current situation as at November 2022
The EEIS consultation has now closed. Government analysis and response is awaited.
A group of people known as Cladag, have instituted proceedings for a Judicial Review in the High Court against the Home Office for failure to implement the findings of the Public Inquiry in relation to PEEPs. The case is to be heard at the High Court on 6th and 7th December. Clearly, whatever the decision of the Judicial Review, it will have major implications for this very contentious subject going forward.
References
1. Independent Review of Building Regulations and Fire Safety. May 2018.
2. This can be found at PAS 9980:2022 - Digital | 31 Jan 2022 | BSI Knowledge (bsigroup.com)
3. This can be found at FIA and NFCC’s new Code of Practice on the provision of Premises Information Boxes (PIBs) in Residential Buildings
Author
Colin S. Todd, MBE, is the MD at C. S. Todd & = Associates Ltd. He is a specialist in fire protection of buildings, including automatic detection and alarm systems and application of fire safety legislation. Over 40 years experience in the fire safety field and able to advise on fire safety, design of buildings, means of escape, fire risk assessment and issues relating to management of fire safety in buildings. Qualifications include a post graduate in fire engineering, chartered physicist, chartered building engineer and chartered engineer.
In 2021 Mr Todd was awarded the Margaret Law Award which recognizes individuals who have pioneered advancements associated with the engineering fire safety of the built environment by the Society of Fire Protection Engineers (SFPE). In 2017 Mr Todd was voted by his peers as number one in Fire safety in the IFSEC Global Top 50 influencers in security and fire.
This article has been peer reviewed internally by C.S Todd & Associates Ltd.
