Fire safety – the new landscape

Fire certification replaced by new risk assessment regime

The Regulatory Reform (Fire Safety) Order 2005, which came into effect on 1 October 2006, aims to simplify, rationalise and consolidate existing fire safety legislation for most workplaces and other non-domestic premises in England and Wales into one composite Order, and replaces fire certification under the Fire Precautions Act 1971 with general duties to ensure safety from fire risk.
The 1971 Act ceased to have effect from implementation of the 2005 Order; and various other primary and secondary legislation was also revised.

The changes in brief

The main provisions of the 2005 Order are as follows:

• Existing multiple overlapping legislation is replaced by one consolidated regime
• The number of fire safety enforcing authorities is reduced (depending on the nature of the premises) to local fire and rescue authorities; the HSE; the MoD fire service; local authorities; and fire inspectors
• Fire certificates have been abolished, certification being replaced by a general duty to ensure the safety of premises against fire
• Responsibility for fire safety now falls on a defined "responsible person" (of which there may be more than one) who:
• Generally will be the employer, owner or person in control of the premises
• Must carry out an assessment of fire risk, and arrange for the removal or reduction of identified hazards and avoidance of risks to persons
• Must ensure proper installation and maintenance of safety equipment and the taking of precautions by a “competent person”
• Provision is made for entry, inspection and enforcement by fire safety authorities
• Offences are specified for failure to comply with duties, with sanctions of fines and/or imprisonment
• Procedures are set for appeals against prohibition, enforcement and other notices.

The changes in practice: wider application

This new risk assessment regime is of wider application than the old certification arrangements.

Under the 1971 Act, a fire certificate was required only for those premises designated by Order for that purpose: these were (1) premises used as hotels and boarding houses, providing sleeping accommodation (a) for more than six employees or guests or (b) above first floor level or below ground floor level; and (2) factory, office, shop and railway premises used as workplaces where either more than twenty people were working at any one time or more than ten people were working elsewhere than on the ground floor. A house occupied as a single private dwelling was expressly excluded from the requirement for a fire certificate. In addition, 1997 Regulations imposed various additional requirements on ‘workplaces’, including fire fighting and emergency escape arrangements. Both the 1971 Act and the 1997 Regulations have now been revoked and replaced by the new regime.

However, the new risk assessment provisions under the 2005 Order are not subject to the same limitations as to property type or numbers of workers; the new regime extends to cover all non-domestic premises, subject to a limited number of specified exceptions (such as agricultural land, mines etc.) and applies to “any place” (i.e. not just buildings, but also open land, vehicles, installations, and other moveable structures).

In addition, a wider range of persons now enjoy protection under the legislation, with “relevant persons” extending both to persons lawfully on the premises and others in the immediate vicinity of the premises at risk from a fire on the premises concerned.

The changes in practice: guidance notes

During the summer of 2006, in advance and in anticipation of the implementation of the new fire safety regime, the government issued a series of detailed guidance materials on the new law, with individual guides on various property types, as follows: 

1. Offices and shops (e.g. individual units within larger premises, etc.)
2. Factories and warehouses (e.g. warehouse storage, etc.)
3. Sleeping accommodation (e.g. hotels and guesthouses; common areas of flats, etc.)
4. Residential care premises (e.g. care and nursing homes, etc.)
5. Educational premises (e.g. schools, colleges and universities, excluding residential parts, etc.)
6. Small and medium places of assembly (certain places accommodating up to 300 people: e.g. smaller pubs and clubs, etc.)
7. Large places of assembly (certain places where more than 300 people could gather: e.g. larger pubs  and clubs; shopping centres; exhibition centres; sports stadia, etc.)
8. Theatres and cinemas (e.g. concert halls, etc.)
9. Outdoor events (e.g. theme parks; music concerts, etc.)
10. Healthcare premises (e.g. hospitals, doctors and dentists surgeries, etc.)
11. Transport premises and facilities (e.g. airports, railway stations, ports, etc.)

These are all accessible directly from the DCLG website, in the section 'Fire safety law - about the guides' (June 2006)

Being prepared

The 2005 Order creates a more straightforward overall regulatory regime, which will hopefully make it easier for businesses to understand their fire safety obligations. However, it is important to take on board the significantly changed landscape which has been transformed from one of formal certification to a broader canvas of ongoing risk assessment, prevention and mitigation. It is therefore essential that businesses appoint a responsible person to ensure that these new duties are performed, and by suitably competent persons.

The maintenance of a comprehensive and clear risk assessment will be vital, not only for production to the enforcing authorities when required, but also to satisfy the demands of any due diligence exercise as to compliance, when disposing of or leasing the premises.

Fo further information, please contact David Jackson.