Caught in the Act

THE MOST prominent piece of legislation to be impacted by the Fire Safety Act 2021 is the Regulatory Reform (Fire Safety) Order 2005, with the new Act of Parliament essentially serving as an adjunct to the latter without actually replacing it. This is due to a legislative sleight of hand that owes more to the UK’s archaic constitution than to any deliberate attempt to confuse.

The good news is that the Fire Safety Act 2021 does clarify many of the vague stipulations in the Regulatory Reform (Fire Safety) Order 2005, such as whether references to external walls in the Fire Safety Order include “doors or windows in those walls” and “anything attached to the exterior of those walls (including balconies).”

With reference to the Building Regulations 2010, which of course encompass Approved Document B (Fire Safety), the law itself has not been directly amended as a result of the Fire Safety Act’s introduction, although guidance has been progressively updated since 2017 to reflect the ongoing outcomes of the Grenfell Tower fire being brought to light by the Public Inquiry. Most significantly, the Building (Amendment) Regulations SI 2018/1230, which came into force in December 2018, instigated a ban on combustible cladding anywhere in the external walls of high-rise buildings over 18 metres in height, which is obviously something that will need to be considered when individuals are undertaking the external inspections mandated by the Fire Safety Act.

The other major post-Grenfell regulation that will be impacted by the Fire Safety Act 2021 is the External Wall Fire Review Form (ie EWS-1), which was introduced in 2019 to standardise assessments undertaken on the external wall construction of residential apartment buildings. Those assessments must be conducted by a designated competent person. While EWS-1 is not directly referred to in the new Fire Safety Act, the definitions of what constitutes part of an exterior wall will need to be considered when external fire risk assessments are transacted.

The Fire Safety Act 2021 clarifies that the ‘Responsible Person’ for each residential building in multiple occupation has a Duty of Care to ensure that the structure and external walls are safe and at low risk from fire. This should allow more effective enforcement action to be taken where residential buildings are found to be non-compliant and where essential remediation has not been undertaken.

However, the Fire Safety Act doesn’t address remediation costs in relation to cladding or its replacement. We can expect further legislation to build on this, particularly so with relevance to evacuation plans, fire safety instructions and the provision of approved entrance doors.

There will continue to be debate over whether or not the Fire Safety Act goes far enough and what else is needed to maximise fire safety provision moving forward, but for now much of the pre-Grenfell Tower legislation remains in place, albeit with numerous clarifications and additions introduced in response to the lessons that have been learned.

Implementation timelines

The biggest question mark in relation to the Fire Safety Act is when and how it can be fully implemented. In deciding not to legislate on precisely who’s responsible for paying for the removal and replacement of defective cladding, as well as other problems such as inadequate fire doors and compromised compartmentation, the Government has left it up to building owners, occupiers and ‘Responsible Persons’ to resolve these issues. That has implications both in terms of the time it will take to address the problems, and also for the newly revised ‘Stay Put’ policy, based on the combination of a BS 5839-6 fire system and a BS 8629-compliant evacuation solution which can only be introduced when a building is fully rectified.

The good news is that guidance is in the process of being prepared. Consultation was recently closed on the content of PAS 9980: Fire Risk Appraisal and Assessment of External Wall Construction and Cladding of Existing Blocks of Fats – Code of Practice, a document that will provide clear guidance on the assessment and remediation of residential building exteriors. It will help the fire risk assessor selected by the ‘Responsible Person’ to evaluate the risk of a fire spreading externally and decide if remediation work is necessary. The finalised document is due for publication in September so it’s unlikely that the Fire Safety Act 2021 will be actively enforced until the beginning of next year.

It’s not yet possible to give a definitive timescale for the Fire Safety Act’s implementation. Imperfect as they are, simultaneous evacuation and BS 5839-1 fire systems will continue to be the norm for non-compliant buildings until they can be rectified. Even once the guidance has been finalised, it’s likely to take several years to complete the inspection and modification procedures for all affected buildings given that there are an estimated 1,700 high-rise residential buildings (over 18 metres tall) in England, not to mention up to 10,000 medium-rise (11 to 18 metres in height) structures as well. A lack of trained external fire risk assessors and cladding surveyors could also become an issue.

What can be done now?

If you’re a building owner, a ‘Responsible Person’, a fire risk assessor or a fire safety system installer, you might have read the prior observations with some degree of frustration. Although the Fire Safety Act is technically law, no enforcement action is going to be taken until the guidance is approved. There will then be a grace period in which inspections and remediation processes can be undertaken.

If your building has already been identified as having defective cladding or other issues, there’s nothing in the Fire Safety Act to prevent you from moving forward with rectification projects, provided that funding for the work has been secured. The only provision is that, once further inspections have taken place under Fire Safety Act-centric guidelines, it’s possible that further defects may be identified.

Most fire systems are being designed and installed with future adaptation in mind. For example, if you need to install a BS 5839-1 system now, it should be possible to convert this in future to a BS 5839-6 system covering the communal areas, with devices inside each residential unit being repurposed for a BS 8629 system. This means ‘Responsible Persons’ can ensure compliance with their current and future responsibilities without the need to pay for an all-new fire system installation once their building becomes compliant.

While at present there’s no specific date in place for the ‘Waking Watch’ provision to end, the available technology means there’s really no need to delay its replacement with an automated fire system which will be more effective at a fraction of the cost.

Looking ahead

By the end of this year, we should have a clearer picture of the timescales involved in implementing the full scope of the Fire Safety Act. Realistically, given the scale of the challenge, the shortage of qualified external fire risk assessors and the continued uncertainty over who will pay for rectification, it could take up to a decade or more for all buildings to be fully compliant, which means that we can expect the combination of simultaneous evacuation and BS 5839-1 fire systems to be permitted until that milestone is reached.

In terms of the further legislation that the Government has talked about, this is likely to be formulated around the final recommendations of the Grenfell Tower Inquiry. We know that there will be an increased focus on communication with both residents and the Fire and Rescue Service, effectively mandating the ‘Responsible Person’ to meet basic standards on fire safety, planning and evacuation. There will also be more stringent (and regular) checking requirements for fire doors, compartmentation and firefighting equipment, as well as a likely obligation for the provision of regularly updated building-specific information cabinets (ie Premises Information Boxes containing floor plans, evacuation plans and a list of the building’s occupants).

While there are still questions to be answered, then, we are finally close to a definitive route out of the post-Grenfell crisis. We can expect further clarification by the end of this year, although the remediation process itself will take several years. As a ‘Responsible Person’, it’s vital that you keep your eye out for further updates and guidance regarding the Fire Safety Act 2021 and in respect of any follow-up legislation as this will inevitably affect your statutory duties and obligations.

Stacey Adams is Market Development Manager at Apollo Fire Detectors (www.apollo-fire.co.uk)