Fire Safety Act 2021 and the “Responsible Person”

The Fire Safety Act 2021 (Act) was made law on 29 April 2021 having been introduced to parliament in March 2020. This is an important piece of legislation with potentially significant ramifications for those organisations considered “Responsible Persons” under the Regulatory Reform (Fire Safety) Order 2005 (the RRO). The Act isn’t yet in force but it is expected to be so by the end of 2021 and is another step towards a strengthened fire safety regime for multi-occupancy residential buildings.

Specifically, the Act extends the RRO to include fire safety responsibilities relating to a buildings’ external structure, and it also increases the number and type of buildings that will be caught by the ambit of the RRO.

What does the Fire Safety Act do?

The main focus of the Act is the amendment of the RRO to clarify that it will apply to the structure and external walls and any common parts (as well as all doors between the domestic premises and common parts) of any building containing two or more sets of domestic premises. The reference to external wall includes doors and windows in those walls as well as anything attached to the exterior of the walls, including cladding and balconies.

Such clarification was considered necessary as it was previously not clear whether the RRO covered the structure and external walls of buildings, meaning responsibility for potentially dangerous external wall systems and structural issues in multi-occupancy residential buildings was not clear.

The Act also amends the RRO to introduce what can be termed “risk-based compliance”. This effectively clarifies that where it is alleged a Responsible Person has contravened the RRO, proof of compliance with any applicable risk based guidance by that Responsible Person may be relied on as tending to establish that there has been no such contravention. The converse also applies insofar as failure to comply with applicable risk based guidance tends to establish there was such a contravention. This does not introduce a statutory defence but does provide a useful benchmark for the Responsible Person that, if complied with, will bring with it an element of assurance. The risk based guidance has not yet been released by the government and it is thought that the Act will not come into force until it has been.

Finally, the Act grants the Secretary of State or Welsh Minister to change the types of premises to which the RRO applies. In practice, this will make it easier to amend the definition of Responsible Person and may have been introduced to allow the application of the RRO to develop in line with the ever-changing fire safety landscape.

Impact assessment

The introduction of the Act means that Responsible Persons under the RRO must make sure that the fire risk assessment and overall fire safety strategy encompasses the building structure and external wall systems, including doors, windows and balconies. Given the tragedy at Grenfell Tower and the issues identified, one would have expected this largely to have been happening in any event, but the Act is enshrining in law that issues relating to cladding fall squarely within the remit and responsibility of the Responsible Person.

In practice this means that once the Act comes into force, owners, landlords and managing agents of multi-occupied residential buildings will have to take steps to identify any dangerous cladding on those buildings (regardless of height) and implement interim measures to ensure that the building can be occupied safely. This may involve the introduction of interim safety measures, such as a waking watch, being in place until remedial works have been completed.

Local authorities do already have duties and rights to take enforcement action in respect of fire hazards in residential premises created by the structure and exterior of residential buildings under the Housing Act 2004, but generally this hasn’t been used as a proactive enforcement tool and we expect regulators to rely on the RRO as amended by the Act to proactively drive compliance in respect of fire safety.

Costs of remediation

During the parliamentary debates in respect of the Act, some MP’s sought to introduce an amendment to ensure that the cost of cladding remediation could not be passed on to leaseholders. However, those MP’s were unsuccessful and the current position is that leaseholders are liable to bear the costs of the remedial works where the lease allows the landlord to pass those costs on. A long-term, low interest loan scheme for buildings between 11 metres and 18 metres tall is in the process of being introduced by the government and this could potentially limit the liability of leaseholders for remedial costs to £50 per month. Further details should be set out further in the Building Safety Bill. For buildings over 18 metres, the government has implemented the Building Safety Fund.

Summary

The Act very clearly places additional duties on Responsible Persons for multi-occupancy residential buildings. Those persons will now have the legal responsibility of proactively identifying potentially dangerous external wall systems and other structural issues and putting in place measures to deal with them (although many have already been doing so). Responsible Persons must therefore make sure that they are fully up to date with government guidance regarding dealing with dangerous external wall systems and, where necessary, that they engage with competent fire safety professionals to make sure the steps they are taking are suitable and sufficient to deal with the risks posed.

Read other items in Health, Safety and Environment Brief - September 2021

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