More fire safety responsibilities from 1 October 2023 – understanding Section 156

Recently, we published a blog in relation to the new responsibilities for the Responsible Person (“RP”), following the government’s guidance published in July 2023.

Now, as the legislative changes come into effect this weekend on 1 October 2023, we take a more detailed look at what changes are being implemented by Section 156 of the Building Safety Act 2022, which will amend the Regulatory Reform (Fire Safety) Order 2005 (“the Order”) with the aim of improving fire safety in those buildings regulated by it.

Background

Our last blog gave an overview of the government’s guidance, which aims to support RPs in understanding and meeting the new requirements being put into effect by Section 156. The government’s fire risk assessment checklist has also been updated accordingly.

The government has already published three new fire safety guides earlier this year on (1) small non-domestic premises, (2) small blocks of flats and (3) small paying guest accommodation, all of which replace the 2006 guide titled “Making your premises safe from fire”.

Significantly, the government has confirmed that it is not, at this stage, commencing a requirement for RPs to ensure that anyone they appoint to undertake a fire risk assessment is competent (despite this requirement already being included in Section 156 – see Article 9A below). It was expected that this onus on the RP would come into effect alongside the other changes for 1 October 2023, but this element has been delayed (for now). In the meantime, the government guidance ‘recommends’ that RPs ensure that any fire risk assessors appointed are competent, “in terms of having sufficient training and experience or knowledge and other qualities”.

Below, we take a closer look at the changes brought about by Section 156.

Articles 9 and 9A – Risk Assessments

The current Articles 9(6) and 9(7) of the Order read as follows in relation to risk assessments:

(6) As soon as practicable after the assessment is made or reviewed, the responsible person must record the information prescribed by paragraph (7) where—

1. he employs five or more employees;
2. a licence under an enactment is in force in relation to the premises; or
3. an alterations notice requiring this is in force in relation to the premises.

(7) The prescribed information is—

1. the significant findings of the assessment, including the measures which have been or will be taken by the responsible person pursuant to this Order; and
2. any group of persons identified by the assessment as being especially at risk.

From 1 October 2023, Article 9(6) will be amended to remove the criteria at 9(6)(a) to (c) instead requiring all premises regulated by the Order to record the information prescribed by paragraph 7. The fact that it will not matter how many employees are employed by the RP represents a significant change.

Furthermore, paragraph (7) will omit the word “significant”. This has the effect of requiring all findings of the assessment (however insignificant) to be recorded.

The new Article 9A set out in Section 156 will not come into force on 1 October 2023 (it is the only provision in Section 156 which has been expressly excluded). For completeness, however, a summary of this new provision is as follows:

• The RP must not appoint a person to undertake a fire risk assessment unless that person is ‘competent’;
• A person is to be regarded as ‘competent’ where they have sufficient training and experience or knowledge and other qualities to enable them to assist in making or reviewing the assessment; and
• Where more than one person is appointed by the RP for this purpose, the RP must make arrangements for ensuring adequate co-operation between them.

Notwithstanding that this new onus on the RP is not yet coming into force, the government has still recommended that RPs ensure that any fire risk assessors appointed are competent and reminds RPs in its guidance that they still have a duty to make sure that a suitable and sufficient fire risk assessment is completed.

 

Article 11(2) – Fire Safety Arrangements

The current Article 11 reads as follows in relation to fire safety arrangements:

(1) The responsible person must make and give effect to such arrangements as are appropriate, having regard to the size of his undertaking and the nature of its activities, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.

(2) The responsible person must record the arrangements referred to in paragraph (1) where—

1. he employs five or more employees;
2. a licence under an enactment is in force in relation to the premises; or
3. an alterations notice requiring a record to be made of those arrangements is in force in relation to the premises.

From 1 October 2023, Article 11(2) will be amended to remove the criteria at 11(2)(a) to (c), such that all premises regulated by the Order will now be required to record the information at 11(1). This follows the same logic of the amendment to Article 9 in relation to risk assessments.

 

Article 21A – Provision of Information to Residents of Domestic Premises

Article 21A is an entirely new provision. It applies only in relation to buildings containing two or more sets of domestic premises, imposing a new duty for the RP to give residents of the domestic premises “comprehensible and relevant information about the relevant fire safety matters”.

The relevant fire safety matters are:

• the risks to residents of the domestic premises identified by the risk assessment;
• the preventive and protective measures;
• the name of the RP and an address in the UK at which the RP, or someone acting on their behalf, will accept notices and other documents;
• the identity of any person appointed by the RP to assist them with making or reviewing an assessment under Article 9;
• the identity of any persons nominated by the RP to implement firefighting measures;
• any risks of which the RP has been informed by other RPs in relation to the same premises; and
• any other matters specified in regulations made by the relevant authority.

The RP must also keep records of these ‘relevant fire safety matters’.

Other provisions in Article 21A relate to the government’s ability to update the list of information to be provided to residents to reflect future developments in fire safety and specify the frequency and format in which the information should be provided.

Note that the Fire Safety (England) Regulations 2022 already mandate fire safety instructions that must be shared with residents of multi-occupied domestic premises where resident evacuation would be through common parts. These new requirements go further to enhance the provision of information and help residents feel informed and involved.

 

Article 22 – Co-operation and Co-ordination

The current Article 22 already requires co-operation and co-ordination between RPs where there are two or more RPs who share, or have duties in respect of, premises.

From 1 October 2023, Article 22 will be amended to introduce new duties for each RP to:

• take such steps as are reasonably practicable to ascertain whether any other responsible person shares, or has duties in respect of, the premises;
• inform the other RPs concerned of their name and an address in the UK at which they, or someone acting on their behalf, will accept notices and other documents; and
• inform the other RPs concerned of the part of the premises for which they consider themselves to be an RP, and keep a record of that information.

The positive duty to identify other RPs in relation to the same premises is a wide obligation and care must be taken by RPs to ensure that they have undertaken appropriate due diligence. The government guidance gives the example of multi-occupancy commercial buildings, where other RPs would likely not only include the other businesses, but also a landlord (and possibly a managing agent) who has overall responsibility for the safety within the building.

 

Article 22A – Provision of Information to New Responsible Person

Article 22A is an entirely new provision. It applies where an RP is ceasing to be the RP of a premises, with a new RP replacing them. In such a scenario, the outgoing person must give the new RP any “relevant fire safety information” held by the outgoing person.

The ““relevant fire safety information” means:

• the fire risk assessment and review records (including any fire safety information provided by other RPs);
• the identity of any person appointed by the RP to assist them with making or reviewing the fire risk assessment;
• the name of any other person who is an RP in relation to the premises and an address in the UK at which that person, or someone acting on their behalf, will accept notices and other documents (where known);
• where the premises consist of or include a higher-risk building, the identity of any other person who is an Accountable Person in relation to the premises (where known);
• any information given under regulation 38 of the Building Regulations 2010 (e.g. information provided when a building is built or extended); and
• any other matters specified in regulations made by the relevant authority.

The government guidance states that if the outgoing RP does not have the details of the new/incoming RP, and cannot obtain them from the building owner or manager, then all the required information should be provided to the building owner or manager so that they can forward this onto the incoming RP when they have been identified. The outgoing RP “must make a written record” where this is the case.

 

Article 22B – Co-operation with Accountable Persons

Article 22B is an entirely new provision. It applies only in relation to premises which consist of or include a residential unit in a higher-risk building (defined under the Building Safety Act as at least 18 metres in height, or with at least 7 storeys, and containing at least 2 residential units).

Article 22B mirrors Article 22 to some extent, in imposing a duty on the RP to:

• take such steps as are reasonably practicable to ascertain whether there are one or more other persons who are Accountable Persons in relation to the premises; and
• if there are, the RP must co-operate with each Accountable Person for the purpose of the Accountable Person carrying out their duties under the Building Safety Act 2022.

A reminder that the ‘Accountable Person” means an organisation or individual who owns or has a legal obligation to repair any common parts of the building.

The government guidance states that the purpose of this new requirement is to ensure that the RPs and Accountable Persons take a “whole building approach to building and fire safety in the premises”.

 

Article 32 – Offences

The current Article 32 sets out a number of criminal offences that may be committed by a RP in relation to their duties under the Order.

From 1 October 2023, Article 32 will be amended to effectively remove the limit on fines that may be imposed against RPs for certain offences, serving to act as an increased deterrent against committing them. The relevant offences are:

• intentionally deceptive impersonation of a fire inspector;
• failure to comply (without reasonable excuse) with specific requirements imposed by a fire inspector (such as by not providing a copy of the fire risk assessment when requested); and
• failure to comply with requirements relating to the installation of luminous tube signs.

Note that if one of these offences is committed before 1 October 2023, then the previous level of fines will be imposed (limited to £1,000 per offence).

 

Article 50 – Guidance

The current Article 50 requires the Secretary of State to ensure that such guidance as they consider appropriate is made available to assist RPs to discharge their duties.

From 1 October 2023, Article 50 will be amended to strengthen the status of such guidance. Previously, compliance with or deviation from applicable “risk based” guidance issued under Article 50 could be relied upon in court proceedings as tending to establish whether or not there was a breach of the Order. The words “risk based” have now been omitted, such that compliance (or non-compliance) with any guidance issued under Article 50 may be relied upon.

 

 

Further information

If you have any questions regarding this blog, please contact Hannah Eales or Alfie Cranmer in our Regulatory team. 

 

About the authors

Hannah Eales heads up the firm’s fire safety law team. Hannah has a particular expertise in fire safety law, acting for corporates, individuals, directors, landlords, owners, hoteliers, education settings, public bodies, UNESCO world heritage sites, housing providers, managers and fire safety professionals in respect of compliance with fire safety legislation and regulation. She represents those facing prosecution through the criminal courts for breaches of the Fire Safety Order and has also advised and prosecuted on behalf of fire and rescue authorities nationally. Since 2018 Hannah has also acted in relation to the Grenfell Tower Inquiry.

Alfie Cranmer is an associate in the Regulatory team. He is part of the specialist team working on matters relating to health & safety and fire safety law, acting for individuals and corporate clients dealing with inspections, investigations and enforcement action, in addition to advising on the legal obligations for employers in this area.