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17th June, 2021 by Robert Starr
It’s taken a while and has been the subject of numerous skirmishes between the government and the House of Lords, but the Fire Safety Act (the Act) has finally received Royal Assent. The Act is the first stage in implementing the recommendations falling out of the Grenfell Tower Inquiry. Other fire safety changes continue to be considered as part of a package of building safety measures proposed by the Building Safety Bill.
Owners and managers of multiple occupancy residential buildings will need to understand the impact of the Act and what it means for the management of fire risk within their buildings. Robert Starr, Partner in Howes Percival’s Regulatory team explains the new requirements below.
The Act received Royal Assent on 29 April 2021 but is not yet in force.
As previously reported, the Act has been introduced by the government in response to the tragic events at Grenfell Tower over four years ago. It takes into account the subsequent recommendations made by Dame Judith Hackett in her “independent review of building and fire safety”, issues arising from the Grenfell Inquiry and the phase one recommendations made within Sir Martin Moore Bick’s report.
The Act extends the scope of the Regulatory Reform (Fire Safety) Order 2005 (the FSO), the governing fire safety legislation for England and Wales , in respect of multiple occupancy residential buildings. Communal areas within such buildings have always been within scope of the FSO but, it has generally been considered, that the communal areas were limited to internal parts of such premises including halls, corridors, roof voids and stairwells.
Under the Act, external walls including doors, windows and anything attached to those walls (such as balconies or cladding) are now caught by the provisions of the FSO. As a result, Responsible Persons (or the relevant duty holder under Article 5(3) of the FSO) must assess the risk arising from the external walls as part of the overall Fire Risk Assessment (FRA) for the premises. In addition, the relevant duty-holder must manage and where possible reduce, the risk from fire.
The Act also clarifies that doors between domestic premises which lead into common parts of multiple occupied residential premises (for example flat entrance doors) fall within the scope of the FSO. In practice, this clarification makes little difference as competent fire risk assessors have always treated these as being within scope given that their integrity is essential to the overall fire protection measures in place.
As a result of the changes brought about by the Act, a failure on the part of the relevant duty-holder to both properly assess and manage the risk, will expose them to enforcement action by the local fire and rescue service.
No date has been provided by the Government for when the Act will come into force. However, it is unlikely that the Act will commence until formal guidance has been produced to assist duty-holders in the management of external fire risk.
Separate fire safety legislation exists for Scotland and Northern Ireland.
At present, the outcome of a recent consultation for a new code of practice for Fire Risk Assessment and Appraisal of external wall construction and cladding of existing blocks of flats (FRAA) is under consideration. A public consultation of the draft FRAA Code of Practice was launched in April and concluded on 20 May 2021. The Code of Practice, once finalised, will give recommendations and guidance on the undertaking of a FRAA in respect of the external wall construction of a multi-storey, multi-occupied residential building. Specifically, it will assist duty-holders in the consideration of fire spread over or within the walls of a building and whether remediation may be necessary.
Publication of the Code of Practice is expected in September 2021. Given duty-holders will need time to consider and apply the principles within the Code of Practice, it is unlikely that the Act will come into force until early next year.
The draft text for the Act (in the form of the Fire Safety Bill) was originally presented to parliament in March 2020 and, notwithstanding the Covid pandemic, it has taken a long time to get on the statute books despite being, in legislative terms, very short. At the heart of the delay has been an ongoing dispute between the government and the House of Lords over whether the Act should include provisions on who should bear the costs of remediating combustible cladding.
It has long been known that combustible cladding on the external façade, was one of the most significant factors in the Grenfell Tower fire. However, it was not the only reason for the rapid spread of fire. A number of elements of the external wall design and construction were defective and contributed towards the severity of the disaster. Since the fire, many multiple occupied, multi-storey residential buildings have had combustible cladding removed at considerable cost.
During the passing of the Act, the House of Lords tried repeatedly to insert amendments into the Act to prevent Responsible Persons (such as landlords) from seeking to recover the costs of remediating cladding (or otherwise reducing fire risk from the external façade) from residents. The House of Lords motions were defeated. As a result, leaseholders have no statutory protection under the Act against the prospect of hefty contributions towards the cost of remediating any non-compliant external walls. Though the government has committed to addressing the cost of some unsafe cladding removal, this is currently limited to higher rise premises and does not cover any non-cladding related defects.
Duty-holders will need to follow developments closely and be quick to react to the publication of the Code of Practice and commencement of the Act.
Responsible Persons and duty holders will need to ensure that they take steps to undertake a FRAA and address the findings within the premises FRA as well as checking that any existing FRA covers internal doors opening onto common areas. Failure to do so will, once the Act is in force, expose them to enforcement action under Article 9 of the FSO which could include prosecution.
For further information please contact the Regulatory team.
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