Who does fire safety legislation apply to in England and Wales and what is a Fire Risk Assessment?

Drawing on experience advising one of the UK's largest Fire and Rescue Services in relation to fire safety compliance, in this blog our expert Regulatory lawyers Oliver Carlyon and Lee-Anne Beer take a closer look at the legislative framework for fire safety in England and Wales, who the 'Responsible Person' is and some of the key changes introduced under Section 156 of the Building Safety Act 2002 in relation to carrying out a fire risk assessment.

Background

Since the tragic fire at Grenfell Tower in 2017, and as a result of the Grenfell Tower Inquiry's Phase 1 recommendations, a raft of legislation has been introduced which imposes greater duties on those responsible for fire safety. The Building Safety Act 2022 is intended to "secure the safety of people in or about buildings and to improve the standard of buildings". In so doing, it introduces new legislative requirements and amends the existing Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order).

In this article, we go back to basics and look at two key provisions in the Fire Safety Order: who is the 'Responsible Person' and what is a 'Fire Risk Assessment'?

Who is the Responsible Person?

The Fire Safety Order applies in England and Wales to a wide range of non-domestic premises (which includes the common parts of buildings which have two or more sets of domestic premises). Compliance with the Fire Safety Order is a must for any person or organisation defined as the 'Responsible Person' under the legislation.

Article 3 of the Fire Safety Order defines the 'Responsible Person'. A person or organisation may be the Responsible Person if:

• the premises is a workplace and the person or organisation is the employer and has control to any extent over the premises; or
• if the person or organisation has control of a premises in connection with the carrying out of a trade or business or is the owner of the premises.

The question of who has 'control' of a premises is not always straightforward and there may be more than one Responsible Person for a premises. The Government's advice is that the Responsible Person is usually the owner or landlord (see Fire safety: guidance for those with legal duties).

What is a Fire Risk Assessment?

A Fire Risk Assessment is a requirement under Article 9 of the Fire Safety Order and is a fundamental element of the Responsible Person's duties. It is the means by which the Responsible Person identifies the 'general fire precautions' that must be taken to ensure (so far as is reasonably practicable) the safety of persons in, or in the near vicinity of, the premises (as required by Article 8 of the Fire Safety Order).

Requirements in relation to Fire Risk Assessments have been strengthened since implementation of Section 156 of the Building Safety Act 2022, which, as we mention above, was introduced as part of wider regulatory reform in response to the Phase 1 Recommendations of the Grenfell Tower Inquiry.

Since October 2023, it is the duty of every Responsible Person to carry out and record a full Fire Risk Assessment for every premises for which they are the Responsible Person. This has strengthened the previous requirement to record only the 'significant findings' of the Fire Risk Assessment (which only applied in certain circumstances, most notably where there were five or more employees).

Responsible Persons must also ensure that Fire Risk Assessments are reviewed regularly and kept up to date.

Who should carry out the Fire Risk Assessment?

In accordance with Article 9, the Responsible Person must ensure there is a 'suitable and sufficient' Fire Risk Assessment in place for every premises for which they are responsible. It is common for Responsible Persons to contract with a fire risk assessor to carry out the Fire Risk Assessment on their behalf.

Whilst there is currently no legal duty to ensure that a person appointed to carry out the Fire Risk Assessment is 'competent,' section 156 of the Building Safety Act 2022 contains a provision, which, when brought into force, will amend the Fire Safety Order by inserting a new Article 9A on 'Risk assessment: assistance'. When in force, Article 9A will require that:

(1)The responsible person must not appoint a person to assist them with making or reviewing an assessment under article 9 unless that person is competent.

(2) A person is to be regarded as competent for the purposes of this article where the person has sufficient training and experience or knowledge and other qualities to enable the person properly to assist in making or reviewing the assessment.

(3) Where the responsible person appoints more than one person, the responsible person must make arrangements for ensuring adequate co-operation between them.

What should Responsible Persons do now?

Current Government guidance, dated October 2023, states that the requirements in Article 9A will be brought into force 'at a later date' and that relevant guidance will be provided ahead of that date.

In the meantime, Responsible Persons should note that the guidance recommends that anyone appointing a fire risk assessor should ensure that they are competent, in terms of having sufficient training, experience, knowledge and other qualities.

Our comments

It is essential that those who have responsibility for non-domestic premises (which includes the common parts of buildings which have two or more sets of domestic premises) comply with fire safety legislation. An integral part of compliance with the Fire Safety Order is conducting a Fire Risk Assessment in order to identify the 'general fire precautions' that must be taken in order to keep people in or in the near vicinity of the building safe.

The carrying out of a Fire Risk Assessment may be a complex task and Responsible Persons should ensure that those appointed to carry out the Assessment are competent to do so, notwithstanding that Article 9A is not yet in force. As mentioned above, further Government guidance is expected to accompany the coming into force of Article 9A.

For further detail on the changes to the Fire Safety Order introduced by Section 156 of the Building Safety Act 2022, see our article 'Changes to the Regulatory Reform (Fire Safety Order) 2005 – A guide for Responsible Persons in England and Wales'.

Our Regulatory team are here to help both organisations and individuals navigate their fire safety duties. If you would like to discuss any of the issues raised in this blog, please contact Oliver Carlyon.