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11th November, 2020 by Robert Starr
Robert Starr, Director in the Regulatory Team at Howes Percival, provides an overview of the legal framework for fire safety in care homes ahead of anticipated changes early next year.
Following the tragic events at Grenfell Tower on 14 June 2017, the Government has been consulting on a series of proposals to strengthen existing fire safety legislation and implement recommendations arising out the Grenfell Inquiry. Though many of these proposals are designed to address the complexities surrounding high-rise residential accommodation, a number of potential changes will have an impact on the care sector. In a second part to this article, we will explore what this means for residential care homes and what care operators will need to prepare for in the coming months. Before doing so, it is worth reflecting on the current position.
The governing legislation for fire safety in England and Wales is the Regulatory Reform (Fire Safety) Order 2005 (the Order). It provides an assessment based approach to fire safety (arguably one of, if not the, most significant risks in residential care settings) and ensures that those best placed to identify and manage risks in care premises are responsible for doing so. The Order imposes a number of duties on a “responsible person” to conduct a Fire Risk Assessment (FRA) and to implement appropriate safety measures to minimise the risks identified in the FRA. It is a common mistake for duty holders to allocate this as a specific role to an individual, but the responsible person will be, for the majority of residential care and nursing homes, the operator. In addition, every person with control of the premises (such as a registered manager) and those with maintenance and safety responsibilities (including a fire risk assessor) are likely to have duties under the Order.
The Order imposes obligations on the responsible person and duty-holders to take general fire precautions to ensure the safety of employees, customers and any other lawful visitors to the care home including family members and contractors. Specifically, the responsible person is required to comply with the core fire safety duties outlined in articles 8 to 22 of the Order. These include, among others:
The importance of a comprehensive FRA must not be understated. The FRA must identify any fire hazards (the possibility of a fire occurring and the potential consequences of the fire) and detail the measures that would need to be put in place in order to reduce or eliminate such hazards as far as reasonably practicable. Where the care provider employs five or more employees, any significant findings in the FRA must be recorded in writing. The FRA is the source from which all protective measures stem. Failure to undertake a suitable and sufficient FRA is an offence under the Order where the failings place one or more relevant persons at risk of death or serious injury in the event of fire.
Unlike most workplaces, care homes have unique sets of fire safety challenges. Residents (and sometimes visitors) will often be particularly vulnerable because of their age, disability, mobility issues and medical conditions such as dementia. Many residents, if not all, will require assistance in the event of fire, as they will be unable to reach a place of safety unaided. Those who can vacate the home unaided may not be able to do so quickly, could panic or become disorientated and confused upon activation of an alarm. The care provider will often need to discuss needs with those residents identified as being at risk and put in place specific arrangements for them taking into account their sensory awareness, mobility and medical conditions.
Operators must also take care to ensure that the FRA does not focus solely on physical aspects of the care home such as doors, fire detection and firefighting equipment. Though building related matters are extremely important, there will also be a number of care specific issues that must be addressed through person-centred risk assessments. For example, management of residents who smoke, those reliant on oxygen or those treated with flammable ointments such as paraffin based creams. Such risks will need to be incorporated into the overall fire safety measures for the home. Often, the latter can be overlooked by external fire safety consultants, particularly those without the appropriate level of expertise in the care sector.
The contra position is where care staff complete the FRA. It is not uncommon in smaller care providers who do not have specialist fire assessors on their payroll, for pro-forma risk assessments to be undertaken by home managers. This can be problematic as a one-size fits all approach is rarely appropriate for the management of fire risk. Further, there is a general requirement within the Order that a competent person (with sufficient training, experience and knowledge) be appointed to assist with undertaking preventative and protective measures. Although currently there is no benchmarking of competence within the Order, time served experience in a care setting will rarely impart the necessary competence in relation to the assessment of fire risk. Accordingly, such FRAs can expose the care provider to enforcement action by the local fire and rescue service.
When engaging an external fire risk assessor, it is important to be aware that the duties under the Order do not transfer to that assessor. The care operator will still be under a duty to ensure that a suitable and sufficient FRA is undertaken. As such, it is imperative that in selecting an external assessor, the care provider does what it can to satisfy itself that the assessor is competent and has the relevant skills and experience. The National Fire Chiefs Council has produced a guide on how to select a competent fire risk assessor. Key considerations include:
Care providers should keep detailed records of the selection process. In the event that a FRA is found to have significant shortcomings, the enforcing authority will look not only at the competence of the assessor, but will also scrutinise the selection process undertaken by the duty-holder.
The consequences of failing to comply with the Order can be substantial. In the event of a fire incident, there is the potential for loss of life and serious physical or mental injury to those directly affected by the fire.
There can also be significant financial cost. There are a number of enforcement options available to the enforcing authority for non-compliance with the Order. These range from provision of verbal advice to (criminal) prosecution. Failure to provide adequate fire safety measures is an offence if the failure places one or more relevant persons at the risk of death or serious injury in the case of fire. It is punishable by an unlimited fine in the Magistrates’ Court and an unlimited fine and/or two years imprisonment (for individuals) in the Crown Court irrespective of whether a fire has occurred. However, any care provider found guilty of safety failings following a serious fire should expect a hefty fine. Any fine would be compounded by the irreversible reputational damage of a prosecution and its associated publicity.
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