Fire Safety Act: key issues following Royal Assent

It’s a short piece of legislation (less than 3 sides of A4) which makes some significant changes. It clarifies (at section 1) that the Regulatory Reform (Fire Safety) Order 2005 (FSO) applies to the structure, external walls and flat entrance doors in buildings which contain two or more domestic premises. In doing so it puts what the government has said in Advice Notes published following the Grenfell Tower fire on a legislative footing.

The Act also introduces (at section 3) the concept of “risk-based guidance” to support a proportionate approach to assessing the structure, external walls and flat entrance doors in buildings which contain two or more domestic premises. If an owner or manager can show compliance with the risk-based guidance (once available) it will be an indication that the FSO has not been breached (the opposite will be indicated where a failure to comply is demonstrated).

Sections 1 and 3 will come into force on a date to be determined by the Secretary of State or Welsh Minister (for England and Wales respectively). Given the importance of the guidance we suspect these parts of the Act will only be brought into force once it is available. 

The Act also includes a power for the Secretary of State or Welsh Minister to change the type of premises which the FSO applies to in future. This should make it easier to amend the FSO and to respond to future developments with building safety. This added flexibility will mean that owners and architects will need to monitor additions to the remit of the FSO to ensure compliance prior to and during occupation. This part of the Act will come into force on 29 June 2021.

Owners and managers of multi-occupied residential buildings need to ensure that the fire risk assessment for such buildings are reviewed and updated to encompass the structure, external walls and flat entrance doors. This includes balconies and windows. They should not wait until sections 1 and 3 come into force before taking steps to do so.

An EWS1 is a possible way of evidencing that a fire risk assessment has been carried out on the structure and external walls. However, it may be expressly stated not to form a “risk assessment” as required by the FSO in which case a separate assessment will be required. In addition, EWS1s do not cover fire doors so another form of assessment will always be required for those. The EWS1 was initially restricted to residential buildings over 18m in height but the updated version, published on 8 March this year, is no longer limited in this way so can be used in connection with residential buildings of any height.

The shortage of surveyors who are qualified and available to carry out external wall surveys continues to be a barrier to obtaining EWS1 surveys. The RICS rolled out a new training programme to try and address this shortfall at the start of this year and surveyors who have completed this training will be able to carry out surveys on buildings where the system is unlikely to support combustion. However, this does not address the scarcity of surveyors able to carry out surveys/assessments where the system is a fire risk which suggests that the lack of skilled professionals will continue to cause delays.

The restrictions on professional indemnity insurance cover for both surveyors and those wishing to carry out remedial work on high rise residential buildings is another constraining factor. The government is, however, considering a state backed indemnity scheme for those unable to obtain cover for EWS1 surveys which may alleviate the issues - for surveyors at least.

As it stands, the issue of who is responsible for such costs remains largely dependent on what the leases say. 

The efforts of many in the House of Lords, the Labour Party and rebels within the government to introduce changes specifically saying that leaseholders will not be responsible for such costs were unsuccessful. The government response has consistently been that the Building Safety Bill is the most appropriate place for details about cost recovery associated with defective cladding and fire safety works. It is anticipated that the bill will be laid before Parliament at some point during spring/summer 2021. However, the broad drafting of the bill is itself under scrutiny as it envisages remediation costs being recoverable from leaseholders. Any change to the current position is, therefore, some way off.

Landlords and building owners can, of course, apply for government funding to assist with remediation costs to reduce the costs to leaseholders. For example, the Building Safety Fund provides a pot of funding for the remediation of unsafe non-ACM cladding on residential buildings 18m+ (provided the application is submitted before 30 June 2021). The government also announced a further £3.5m of funding to help with the removal of unsafe cladding on residential buildings taller than 18m in early February this year as well as a government-backed loan to assist with cladding remediation costs on residential buildings between 11 and 18m in England. The press reacted to these government announcements by criticising the proposed funding for not covering other costs – for example those related to fire stopping – which means that responsibility for payment of such sums may well fall on leaseholders.

The government is seeking to recover a contribution to the funding it provides via a new residential developer tax. First announced in February this year HM Treasury launched a consultation on the proposed new tax on Thursday last week.  

The fire safety authorities will be able to bring their existing enforcement powers to bear including enforcement and prohibition notices. 

There has been commentary about there being unlimited fines for breaches of the FSO in the press recently. These are part of future changes so do not apply now and a closer analysis of the consultation indicates they will only apply in limited circumstances.

The government has repeatedly committed to implementing all of the changes in the Grenfell Tower Inquiry phase 1 report but has not done so yet. In response to efforts by the House of Lords to amend the Fire Safety Act (when it was a bill under parliamentary scrutiny) to oblige the government to do so, the government has committed to lay draft legislation implementing the phase 1 report requirements before Parliament by 30 October 2021 (the 2nd anniversary of the report). 

We anticipate that the draft bill will cover the following fire safety related changes for high-rise residential buildings.

• A requirement to share information about the materials and methods of construction used in the external walls and floor plans with fire and rescue services.
• The provision of premises information boxes.
• The inspection and testing of lifts designed for use by firefighters.
• The provision of a system or equipment which would allow firefighters to send an evacuation signal to the whole or part of the building.
• The provision of safety information to residents.
• The marking of floor levels in lobbies and staircase landings.

A consultation on personal emergency evacuation plans is also due later this spring.

In short, yes. Over the summer of 2020 the government consulted on ways to improve fire safety. The response was published on 17 March 2021 and in it the government committed to the following changes.

• Where the responsible person (RP) appoints a person to make or review the fire risk assessment the appointee must be competent.
• All RPs must record their completed fire risk assessment.
• All RPs must record (and as necessary update) their contact information, including a UK based address.
• All RPs must take reasonable steps to identify themselves to all other RPs (and where applicable Accountable Persons under the BSB) where they share or have duties in respect of the same premises.
• for all regulated premises in England and Wales, RPs must record the name of the individual, and organisation of persons engaged by them to undertake any or all of the fire risk assessment.
• departing RPs must first take reasonable steps to share all relevant fire safety information with incoming RPs.
• the level of fines will be increased from Level 3 (£1,000) to Level 5 (unlimited) for offences in relation to the impersonation of an inspector, failure to comply with specific requirements imposed by an inspector, and failure to comply with requirements relating to the installation of luminous tube signs.

As yet there is no timescale for when these changes will come into force.