Following the Grenfell Fire in 2017 the Government has taken a number of steps around fire safety, including the Fire Safety Bill. After several delays to its progress, mainly due to a long-running parliamentary battle over the insertion of a clause to protect residents from remediation costs, the Fire Safety Act (the Act) has finally become law. In this article, we consider the key components of the Act and what the future holds for building safety.
What was in place before?
The Act makes changes to the Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order).
The Fire Safety Order, which is still in force, brought together different pieces of fire legislation. It applies to all non-domestic premises, including communal areas. The Order designates those in control of premises as the “responsible person” for fire safety and they have a duty to undertake assessments and manage risks.
In terms of who is the “responsible person”, for a workplace this will be the employer and any other person who may have control of any part of the workplace, for example the owner or occupier. In all other cases the person in control of the place or activities will be responsible.
The Order is enforced by Fire and Rescue Authorities.
What does the Act do?
The Act requires owners and managers of multi-occupancy residential buildings to reduce the risk of fire through unsafe cladding and entrance doors.
The Act closes a legal loophole which left it unclear whether fire safety legislation applied to certain parts of multi-occupied residential buildings, such as the structure and external walls, including cladding, balconies and windows, and the entrance doors to individual flats that open into common parts.
The Act will bring these areas within the scope of the Fire Safety Order to ensure that the responsible person assesses and mitigates the fire safety risk associated with these parts of the building. Fire and rescue services will be able to take enforcement action and hold the responsible person to account if they are not compliant.
The Act clarifies that for any building containing two or more sets of domestic premises the Order applies to the building’s structure and external walls and any common parts, including the front doors of residential parts. It also clarifies that external walls in the Order include “doors or windows in those walls” and “anything attached to the exterior of those walls (including balconies).” These amendments are widely expected to provide for increased enforcement action in these areas, particularly where remediation of aluminium composite material cladding is not taking place.
Where does the Act apply?
The Act applies to England and Wales. Separate fire safety legislation is in place in Scotland and Northern Ireland. Fire safety is devolved in Wales, but the Act amends the shared legislation, with the same delegated powers applying to English and Welsh Ministers.
The Act also provides English and Welsh Ministers with a regulation-making power to amend the type of buildings the Order applies to in the future.
What about enforcement powers?
The Act generally has been welcomed, with public and industry bodies noting the expected increase in enforcement action by Fire and Rescue Authorities, as well as an expectation that it will impose greater burdens on the responsible person in multi-occupancy residential buildings.
The Act will also enhance the enforcement powers of fire and rescue services and lay the groundwork for regulations requiring responsible persons to share information on wall systems with the fire service and undertake regular inspections of fire doors.
Have leaseholders been left behind?
The progress of the Act was delayed due to disagreements about an amendment on responsibility for cladding remediation. The amendment would have prohibited the owner of a building from passing cladding remediation costs onto leaseholders and tenants.
As the Act went through the “ping pong” process in Parliament, peers in the House of Lords had repeatedly tried to stop the owners of blocks of flats from passing the costs on to leaseholders. However, the amendment was eventually voted down.
Cladding campaigners have been highly critical of the decision, saying that the rug has been pulled out "from underneath a generation of homeowners".
The Act is by no means the end of the process, as much of the content requires a further series of regulations to be made under the Fire Safety Order and they will need to be consulted on over the coming months.
The Building Safety Bill is also closely linked to the Act as it will overhaul the existing fire safety system by imposing new duties designed to increase accountability, transparency and oversight of fire safety throughout the life of a building, with stronger sanctions for breaches of those duties through the introduction of a Building Safety Regulator. We are closely monitoring the progress of the Building Safety Bill and expect it to be passed in late 2021.
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Authors: Rod Hunt, Partner, and Luisa Lister, Professional Support Lawyer