The Fire Safety Bill 2020 is the result of the government’s promise of ‘implementing and legislating for all the recommendations of the Dame Judith Hackitt Review and the first phase of the independent inquiry.’1 This article examines the key proposals of the Bill.
Brief in length, but potentially huge in impact, the Fire Safety Bill 2020, presented to Parliament on 19 March 2020, is the most significant proposal to amend fire-safety legislation since the introduction of the Regulatory Reform (Fire Safety) Order 2005 (the Order).
Both the Hackitt Review and the Grenfell Tower Public Inquiry were the government’s response to understanding what went wrong in the Grenfell Tower tragedy in June 2017.
Minister for Security, James Brokenshire pledged: ‘Today’s bill will help bring about meaningful change to improving building safety…’2 ‘We are resolute in our commitment to delivering on them, and significant steps have already been taken to address building safety and fire safety risks.’3
The Bill sits alongside a series of new initiatives introduced by the government as part of its response to the fire at Grenfell Tower:4
- The Building Safety Bill: designed to provide clearer accountability and stronger duties for those responsible for high-rise buildings; to give residents a stronger voice in the system; and to strengthen enforcement and sanctions to deter non-compliance;
- A Call for Evidence on the Order, inviting views on its application and seeking to gather evidence to inform next steps;
- A public consultation to build on the information gathered from the Call for Evidence and to consider what, if any, additional changes are needed to the Order or its supporting guidance to support the Grenfell Tower Phase 1 report’s recommendations;
- A new Building Safety Regulator; and
- The relaunch of the government’s Fire Kills campaign.
What are the key changes?
Clause 1 extends article 6 of the Order to include buildings containing two or more sets of domestic premises in relation to:
- the building’s structure and external walls and any common parts. ‘External walls’ includes doors or windows in those walls, and anything attached to the exterior of those walls including cladding, insulation, fixings and balconies and any common parts; and
- all doors between the domestic premises and common parts. This includes flat entrance doors and other doors adjacent to common parts that provide or line escape routes from multi-occupied residential buildings.5
The Explanatory Notes to the Bill say that: ‘it will also complement the existing powers local authorities have to take enforcement action against building owners and managers under the housing health and safety rating system (HHSRS) provided for in the Housing Act 2004 and the Building (Amendment) Regulations 2018 (SI 2018/1230) which came into force on 21 December 2018 and banned the use of combustible materials within the external walls, and certain attachments to the external walls, of any new building with a storey at least 18 metres in height where:
- the building contains at least one dwelling;
- the building contains certain residential accommodation for the treatment, care or maintenance of persons; and
- the building contains certain rooms used for residential purposes, including student accommodation and school dormitories.
(Including such a building created by a material change of use.)’
The government states that clause 1 ‘removes any ambiguity in the current Fire Safety Order around whether such parts are covered’6 and that ‘These are important clarifications for ensuring that owners or managers (who are usually the “responsible persons” for multi-occupied residential buildings) include an assessment of risk related to fire and fire spread in respect of these parts of the relevant premises. As a result, such persons will be under a duty to take general fire precautions to ensure the premises are safe to those lawfully there.’7
Enforcement action can be taken by fire and rescue services against responsible persons if they have failed to comply with their duties in relation to these parts of such premises.
There are challenges with the government’s approach for both responsible persons and fire risk assessors who also have duties under the Order.
First, what does the definition of buildings containing two or more sets of domestic premises mean? Arguably, two semi-detached bungalows are included as they form one building. That cannot have been the government’s intention and clarity is needed.
Secondly, it cannot have been the government’s intention to include the (partially hidden) structural frame and columns, floors, etc. in the definition of the ‘building’s structure’; rather it would seem more likely that it meant to refer to the part of the building structure comprising external walls, wall systems and cladding. Once again, clarity is needed.
Thirdly, in a pre-cursor to the Bill, the government stated: ‘The government has announced its intention to introduce a Fire Safety Bill which will clarify that building owners and managers of multi-occupied residential premises of any height must fully consider and mitigate the risks of any external wall systems and fire doors in discharging their duties under the Fire Safety Order. We strongly advise building owners to consider the risks of any external wall system and fire doors in their fire risk assessments, irrespective of the height of the building, ahead of the planned clarification.’8
There are two key challenges with this approach. First, fire risk assessors who typically carry out these risk assessments do not have the requisite expertise to undertake what will be required. According to the Local Government Association: ‘There is a chronic shortage of fire engineering expertise in the UK at present. The Government should also set up degree, conversion and apprenticeship schemes to address this.’9
What this may mean in practical terms (at least in the immediate future) is that responsible persons will need to have these newly included parts of their building separately assessed by a chartered fire engineer and if the fire risk assessor feels competent to do so, that separate assessment can feed into the fire risk assessment. Otherwise, fire risk assessors will need to make it clear to their clients before agreeing to take on the work that the assessment of, for example, the external walls and their impact on the fire safety of the building has not formed part of the assessment. Without the assessment of the parts now included in the Order, the fire risk assessment may not be viewed as suitable and sufficient for the purposes of article 9(1) of the Order and those with duties under the Order may become the subject of enforcement action.
The government is alive to these concerns but has not provided any solution. During the second reading of the Bill, the Minister acknowledged: ‘I am aware that the provisions of the Bill will require potentially significant numbers of responsible persons to review and update their fire risk assessments. For many, that will require specialist knowledge and the expertise of the fire risk assessor. We are working with representatives of the sector to understand the particular challenges in delivery. That will inform our approach to the implementation of the Bill, while maintaining a clear and consistent approach to fire risk assessments. In any event, and in line with the independent expert advisory panel’s consolidated advice, I would none the less encourage those with responsibilities to carry out a fire risk assessment under the order as a matter of good practice and to consider flat entrance doors and external wall systems as part of their fire risk assessment for multi-occupied residential blocks as soon as possible, if they have not already done so.’10
Secondly, to comply with clause 1, a visual inspection is unlikely to suffice to be able to identify the material used in the external covering. Intrusive inspection and possibly laboratory testing of material is likely to be needed and even this, on a sampled basis, will not provide a full picture of the safety of the building.
There are other important concerns:
- There needs to be clear delineation and consistency of approach between the Fire Bill and the yet to be seen Building Safety Bill to ensure all involved understand their obligations to comply and how to enforce those duties;
- Are existing fire risk assessments still valid? To what extent and when will these be required to be reviewed? For housing providers with a large portfolio, the ongoing assessment of premises already presents a significant challenge. According to the Local Government Association: ‘There are half a million fire risk assessments in social housing and redoing them all in short order would be very expensive and logistically challenging’; 11
- Additional resourcing is required for fire and rescue services to be able to inspect, investigate and enforce the new law;
- There are likely to be significant increases in insurance costs for buildings, usually passed on to leaseholders, many of whom can ill afford any additional costs.
Clause 2 provides a delegated power to ensure that the relevant authority (the Secretary of State or the Welsh Ministers) can amend the Order to change or clarify the types of premises falling within its scope and allow for amendments consequential to those changes or clarification to be made so that any new types of premises can be brought into the scope of the Order relatively quickly, and according to the government, thereby improving fire safety. Before changes can be made, consultation must be held with anyone who the relevant authority considers appropriate. Who will be considered to be ‘appropriate’ to be consulted with is not defined and explanation will be welcomed.
Clause 3 addresses commencement provisions of what will be the Fire Safety Act 2020.
A final word (for now)
The Bill is in its early stages. It was been considered by a Public Bill Committee on 25 June 2020 where a number of the concerns above were debated and where key stakeholders gave evidence. Given the pressure on the government to make changes, it is expected to come into force this year along with the Building Safety Bill. Before that there will continue to be much debate over its provisions from all involved in fire safety. There remains a multiplicity of issues yet to be resolved as to its ambit and application. As the Local Government Association stated when the Bill was introduced: ‘This Bill is a positive step but needs to be backed up by further effective powers and sanctions, which we have been promised in the forthcoming Building Safety Bill, and sufficient funding to carry out the necessary inspections and enforcement activity.’ 12
Once in force, only a review of its application together with the parallel measures initiated by the government will tell whether the government has made good its promise to make people in blocks of flats feel safer in their homes, and to ensure that a tragedy like Grenfell never happens again.
For more information, email Saba.Naqshbandi@3rblaw.com
References
- Explanatory Notes to the Fire Safety HC Bill (2019-2021) [121]. Available at: https://publications.parliament.uk/pa/bills/cbill/58-01/0121/en/20121en.pdf, paragraph 1.
- Home Office, 19 March 2020. Available at: https://www.gov.uk/government/news/fire-safety-bill
- HC Deb 29 April 2020 vol. 675, col. 345. Available at: https://hansard.parliament.uk/commons/2020-04-29/debates/F392AA3C-F1D7-4FD4-B2AC-C0E3A6FC0E7B/FireSafetyBill
- See FN1, paragraph 6(a)-(e)
- See FN1
- See FN1, paragraph 20(a)
- See FN1, paragraph 21
- Advice for Building Owners of Multi-storey, Multi-occupied Residential Buildings, Ministry of Housing, Communities & Local Government (January 2020). Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/869532/Building_safety_advice_for_building_owners_including_fire_doors_January_2020.pdf, paragraph 1.6
- ‘Fire Safety Bill: Second Reading, House of Commons, 29 April 2020’, Local Government Association (27 April 2020). Available at: https://www.local.gov.uk/parliament/briefings-and-responses/fire-safety-bill-second-reading-house-commons-29-april-2020
- See FN 3, col. 347
- ‘Fire Safety Bill: Second Reading’, Local Government Association (29 April 2020). Available at: https://www.local.gov.uk/sites/default/files/documents/Fire%20Safety%20Bill%20Second%20Reading%20House%20of%20Commons%2029%20April%202020.pdf
- ‘LGA responds to Fire Safety Bill’, Local Government Association (19 March 2020). Available at: https://www.local.gov.uk/lga-responds-fire-safety-bill
About the Author
Saba Naqshbandi is a barrister with over 23 years’ experience in fire safety, acting for notable major companies, individuals and fire authorities in criminal proceedings, inquests and public inquiries, as well as advising on key aspects of fire safety law and policy. Cases include the Grenfell Tower Public Inquiry and the Lakanal House inquests. 3rblaw.com/barrister/saba-naqshbandi/
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