After much well publicised debate and controversy the Fire Safety Act is now law – but what remains from the long list of proposed contents?
Section 1 - Premises to which the Fire Safety Order (FSO) applies
The domestic premises exemption from the FSO has been amended to give a clearer and wider scope with relation to common areas by adding a new paragraph:
“(1A)Where a building contains two or more sets of domestic premises, the things to which this order applies include—
(a)the building’s structure and external walls and any common parts;
(b)all doors between the domestic premises and common parts (so far as not falling within sub-paragraph (a)).
(1B)The reference to external walls includes—
(a)doors or windows in those walls, and
(b)anything attached to the exterior of those walls (including balconies).”
This means that any premises that comprises anything other a single private dwelling are without doubt subject to the FSO and that regardless of height or any other factor the external wall system, including balconies, doors and windows falls under scope (and consideration in an FRA, which may in turn require specialist examination). Also, the front doors of flats, previously only implicitly a consideration are now explicitly part of the FSO, requiring access and systems of maintenance.
Section 2 - Power to change premises to which the Fire Safety Order applies
This section makes it easier to alter the scope of the FSO in future through Statutory Instrument as opposed to a full Act of Parliament. Any alteration would require a consultation process to be completed first based on a Draft SI
Section 3 - Risk based guidance about the discharge of duties under the Fire Safety Order
This changes the status of fire safety guidance specifically relating to buildings comprising two or more domestic premises by inserting new paragraphs to Article 50 of the FSO:
“(1A)Where in any proceedings it is alleged that a person has contravened a provision of articles 8 to 22 or of regulations made under article 24 in relation to a relevant building (or part of the building)—
(a)proof of a failure to comply with any applicable risk based guidance may be relied on as tending to establish that there was such a contravention, and
(b)proof of compliance with any applicable risk based guidance may be relied on as tending to establish that there was no such contravention.”
(3)After paragraph (2) insert—
“(2A)Before revising or withdrawing any risk based guidance in relation to relevant buildings the Secretary of State must consult such persons as the Secretary of State considers appropriate.”
(4)After paragraph (3) insert—
“(4)In this article—
“relevant building” means a building in England containing two or more sets of domestic premises.
“risk based guidance” means guidance under paragraph (1) 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.”
This in effect makes enforcement action, particularly prosecution, far easier to effectively apply as in general a prosecution not only has to show a departure from accepted guidance, but that the departure leads to a significant risk to relevant persons. However, with respect to buildings of two or more domestic premises they would in theory now only need to show there was a failure to follow the guidance – this means Responsible Persons must ensure they address FRA actions promptly where they highlight departures from guidance as well as risk
Section 4 - Enactment
Different elements will come in on different dates:
Section 1 – On publication of a relevant Statutory Instrument, with separate SI for England & Wales
Section 2 – After two months from 29th April 2021, namely 29th June 2021
Section 3 – On the date that the SI referenced in Section 1 comes into date
It’s likely that Section 1 may be slightly delayed if anything because it is tied to Section 3 – the problem with Section 3 is that two of the three principal guides for buildings affected by these changes are obsolescent and under review (LACORS and LGA Guide) so until the relevant guidance is in place in a current form it would be difficult to prosecute by not following them alone. Prosecution where a risk to relevant persons is present can still, as always, be commenced.
What happened to the other content in the draft?
Most of the other content was voted down – the most publicised being related to preventing fire safety costs being passed to leaseholders.
The leaseholder costs issue, if dealt with at all, will be dealt with outside the fire safety legislative area.
Other key proposals were to require the owner or a manager of any building which contains two or more sets of domestic premises to:
(a) share information with their local Fire and Rescue Service in respect of each building for which an owner or manager is responsible about the design of its external walls and details of the materials of which those external walls are constructed,
(b) in respect of any building for which an owner or manager is responsible which contains separate flats, undertake annual inspections of individual flat entrance doors,
(c) in respect of any building for which an owner or manager is responsible which contains separate flats, undertake monthly inspections of lifts and report the results to their local Fire and Rescue Service if the results include a fault, and
(d) share evacuation and fire safety instructions with residents of the building
These were too voted out – but only because the Government proposed they would deal with these issues in separate legislation – so expect them to return in some form in either the future Statutory Instruments, the new guidance documents, or both.
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