Laying down the law - April 2018

I HAVE regularly been asked about the enforcement of the Regulatory Reform (Fire Safety) Order 2005 [FSO] in specialised housing since I began dealing with fire safety cases in 2006. For the most part, very little has changed over the past 12 years and my answers to such questions have always related to specific sets of premises and situations, as generic answers are almost impossible to give in this particular area. 

There are numerous reasons for this. The main reason is that the FSO does not apply to domestic premises. As nearly all specialised housing involves a degree of private living accommodation, the extent to which the FSO might apply, will always be a difficult question.

The Fire Safety in Specialised Housing guide produced on behalf of the National Fire Chiefs Council (NFCC) was anticipated to offer a clear, concise and practical guide to enforcement. Unfortunately, it was not what we got. The guide weighs in at a hefty 342 pages. So, not so concise. It does contain helpful sections in relation to the possible application (or not) of the FSO, the overlapping legislation and the roles of the CQC and local authorities. 

As far as enforcement goes, I have to say that I was disappointed. For example, Paragraph 30.1 tells us that where residents share a single house, in which all residents live in the manner of a single household, the FSO might not apply. Helpful? 

Where the FSO does apply paragraph 30.4 tells us that the responsible person is, typically, a landlord, housing provider, management company, care or support provider or freeholder; and that in any single building, “There might be several responsible persons”. And if that wasn’t helpful enough, it continues to tell us that there may be other duty holders with similar responsibilities and duties and they could include “a wide variety of people, including, again, a management company, but also fire risk assessors.”

Any the wiser? I’m not. But don’t worry, I might not be that stupid. Paragraph 30.5 reassures me: “In some premises, it can be difficult to determine whether a particular party should be regarded as the Responsible Person or as, alternatively, a person on whom duties are imposed by virtue of a tenancy or contract”. Phew. 

Responsible Person

So, who is the responsible person (RP) in such premises? Or what about a strategy for determining the right RP? Paragraph 30.3 is more conclusive, it states: “Within a workplace, the responsible person is the person who employs people to work there.” Really? I thought article 3 (a) of the FSO stated that this is only the case “If the workplace is to any extent under his control.” 

In specialised housing the employer is likely to be a care provider, whose employees may provide care to relevant persons on the premises. Does the care provider employer have control over the workplace from a fire safety standpoint in that situation? Not if the premises are owned by the residents, or owned by the local authority.

Not much help to the humble fire enforcement officer faced with breaches in premises where there are vulnerable residents, who might not be able to self-evacuate or “stay put”, due to lack of purpose-built accommodation.

We have to acknowledge that the FSO might not apply to the premises. That does not mean that there is no interested regulatory authority. The Housing Act is likely to apply, and CQC regulations are also likely to apply. The CQC regulations require those responsible for the care of the residents to do a person-centred risk assessment. This is not required by the FSO, but it is required by CQC regulations. Here, the guide quite rightly stresses the importance of co-operation, liaison and coordination between enforcing authorities.

Practical advice 

The guide does provide one good piece of practical advice. Paragraph 33.1, states: “Enforcement of measures required to protect vulnerable people should not be unduly restricted by focus on a single legislative regime. Moreover, care should be taken by enforcing authorities not to endeavour unduly to interpret legislation in a manner that was not intended by the regulators who drafted the legislation. Consideration should be given to the legislative regime that can most easily “get the job done”. This may involve co-operation between enforcing authorities. In other words, if the FSO doesn’t apply, be prepared to walk away (once you’ve called the CQC and the local authority and told them ‘it’s over to you’).

Oh, and by the way, the guide is, apparently, already “under review”.

Warren Spencer is managing director of Blackhurst Budd Solicitors. You can see more articles from Warren at www.firesafetylaw.co.uk