The way things currently stand, once a fire certificate is obtained for a commercial building you can be sure of having complied with your duties. However, changes are afoot: on 1 April 2006, subject to parliamentary approval and the availability of guidance to be provided by the Office of the Deputy Prime Minister, the Regulatory Reform (Fire Safety) Order 2005 will come into force. The government’s stated aims in making the Order are to streamline fire safety legislation, reducing the burden on businesses, many of which have been covered by two separate fire regimes, and to improve safety by allowing fire brigades to concentrate on premises which they view as being at a high risk. The Order has been in the pipeline for some time, following reviews and consultations on fire safety law, which concluded that it should be simplified as the current dual regime has lead to widespread confusion.

The Order will apply to most premises operated by employers or the self-employed, the voluntary sector and the common parts of residential developments and houses in multiple use. It will sweep away the old regime of fire certificates prescribed by the Fire Precautions Act 1971 and the Fire Precautions (Workplace) Regulations 1997. Fire certificates will be replaced by a risk assessment approach, which is more in line with the health and safety regime, aimed at protecting ‘relevant persons’ (see below).

However, small business groups have criticised the Order, claiming that by placing the onus to assess risk upon businesses rather than the fire authority, the government is merely shifting public sector costs into the private sector, increasing the burden on small businesses.

The ‘responsible person’

The Order makes fire safety the responsibility of the ‘responsible person’. This is somewhat similar to the Control of Asbestos at Work Regulations 2002, which came fully into force in May 2004, though in those the responsible person is known as a ‘duty-holder’.

Finding the responsible person

Clause 3 of the Order defines a responsible person (see below).

The responsible person of a workplace is likely to be the employer, to the extent that the workplace is under their control. However, a landlord will be the responsible person in relation to common parts, whether in a residential or commercial block.

The control element means that other parties will also be responsible persons to the extent that they exercise any control over the premises. Control means an obligation in respect of the maintenance or repair of the premises. Therefore, where a person has obligations under a lease or other contract in respect of the maintenance or safety of the premises (eg a managing agent), that person is likely to be deemed to have control of the premises and will thus be considered a responsible person.

In multi-let buildings there will clearly be more than one responsible person. This will require the landlord, tenants and managing agents to co-operate to identify and comply with their respective duties. The Order explicitly requires that each responsible person in respect of a premises:

• co-operates with the others so far as is necessary to comply with the requirements and prohibitions set out in the Order;
• takes all reasonable steps to coordinate the measures each takes to comply with the Order; and
• takes all reasonable steps to inform the other responsible persons of the risks to relevant persons arising out of or in connection with the conduct by them of their undertaking.

What does the Order require the responsible person to do?

It will be the duty of the responsible person to comply with the Order and protect relevant persons by taking general fire precautions as well as complying with the more specific requirements set out in detail in the Order. The general measures will include those in relation to:

• reducing the risk of fire and the spread of fire on the premises;
• securing and maintaining the means of escape from the premises;
• the means for fighting fire on the premises;
• the means for detecting fire on the premises; and
• the arrangements for action to be taken in the event of a fire on the premises, including the instruction and training of employees (along with refresher training and further training where any changes are made), and the mitigation of the effect of the fire.

Conduct a risk assessment

The responsible person must also conduct a risk assessment, which must be kept up to date, particularly if there have been any alterations made to the premises or fire precautions, or any changes in use. Where the responsible person has:

• five or more staff;
• the premises are licensed; or
• an alterations notice in respect of the premises requires it,

the responsible person must record certain prescribed information in respect of the assessment. The prescribed information includes the significant findings of the risk assessment, containing the measures that have been or will be taken by the responsible person and any group of persons identified by the assessment as being particularly at risk.

Appoint a competent person

There is a further requirement for the responsible person (with limited exceptions for the self-employed and partnerships where the partners have sufficient knowledge, training and experience), to appoint one or more ‘competent persons’ to assist them in taking preventative and protective measures. The responsible person must ensure that:

• the number of ‘competent persons’ appointed;
• the time available for them to fulfil their functions; and
• the means at their disposal,

are adequate, having regard to:

• the size of the premises;
• the risks to which relevant persons are exposed; and
• the distribution of risk throughout the premises.

The ‘competent person’ must have sufficient training and experience or knowledge, and other qualities, to enable them to assist properly in the preventive and protective measures. There is a presumption that where a competent person is in the responsible person’s employment, they will be appointed in preference to an outside adviser.

Even where a responsible person hires a contractor to carry out the risk assessment or appoints ‘competent persons’ to review the fire safety arrangements, although the enforcing authority can take action against the contractor for an inadequate report, the responsible person remains liable. It is the responsible person’s obligation to make sure that the Order is complied with and they should therefore be confident in the suitability of their appointees.

Who enforces the Order?

In the majority of cases the enforcing authority will be the local fire authority. However, various other bodies will continue to deal with specialist premises. For instance, the Health and Safety Executive will be the enforcing authority in relation to construction sites, ships under construction or repair, and nuclear facilities. Fire officers will have the authority to enter (without force) and inspect any premises. They can enquire as to who is the responsible person, require the production of the risk assessment, and take any sample of articles and substances found in any premises for the purposes of ascertaining their fire resistance or flammability. The enforcing authority will then have the power to issue any of the following notices:

• An alterations notice, stating that the premises either currently constitute a serious risk to relevant persons (whether due to the features of the premises, their use, any hazard present, or any other circumstances) or that they may constitute such a risk if a change is made to them or the use to which they are put. The responsible person would, in this case, be required to notify the fire authority before making any changes which may result in a serious increase in risk.
• An enforcement notice stating that the responsible person has failed to comply with the requirements of the Order identified in the notice, and requiring the responsible person to take action to remedy the failure within a specified period, but not less than 28 days.
• A prohibition notice stating that use of the premises involves, or will involve, such a serious risk to the occupiers that it should be restricted or prohibited. The notice will identify these risks and require the prohibition or restriction to remain effective until appropriate remedial action has been taken.

The provisions for improvement and enforcement notices are in line with the Health and Safety at Work Act 1974, although, somewhat bizarrely, appeals under that Act are made to the employment tribunal rather than the Magistrates’ Court. The likelihood is that fire authorities will carry out spot-checks, but comments from fire authority officials – that the Order is aimed at streamlining brigades’ manpower in order that they can pay more attention to high-risk premises – suggest that it is likely that the majority of these will be aimed at those premises at highest risk of fire.

An appeal under the Order may be made to the Magistrates’ Court within 21 days of the service of any notice relating to alterations and/or enforcement, which has the effect of suspending the operation of the notice until such time as the appeal is finally dealt with or withdrawn. Aprohibition notice will remain in force unless the court directs otherwise. A further appeal is available to the Crown Court by either party. Where an appeal is on a purely technical issue, the parties may agree to refer the matter to the Secretary of State and his decision will be binding.

What are the penalties?

Under the current regime, while a risk assessment is still necessary, once a fire certificate is obtained you can be sure of having complied with your duties. However, in line with the continuous risk assessment approach, in future the onus will be on the responsible person to prove that they took all reasonable precautions and exercised all due diligence to comply with the Order or a notice made under it. Penalties range from a fine of up to £5,000 in the Magistrates’ Court to an unlimited fine and up to two years’ imprisonment if the case is heard in the County Court.

A defence to a prosecution of the responsible person under the Order, therefore, would be that they had done everything they reasonably could to avoid committing an offence.

What should you be doing?

The ODPM is required to provide guidance to responsible persons, which should be issued at the beginning of 2006. All parties that currently have any obligations in respect of fire safety should consider whether their risk assessments are adequate and make sure that they are kept updated. It should be remembered that responsibility for fire safety cannot simply be avoided by getting in external consultants or contractors – their suitability should be carefully checked before they are appointed, as liability still rests with the responsible person.

Do not think you need do nothing until next year. Anyone occupying or having an interest in respect of commercial premises of whatever type, particularly in multi-occupied buildings, should, in the lead-up to the Order coming into force, be assessing the extent and degree of their responsibilities. Employers should remember that they are not responsible solely in respect of their employees, but also those lawfully on the premises and anyone around it who could be affected by a fire. Landlords of common parts and managing agents with obligations in relation to health and safety or maintenance should make sure that they are complying with their duties and update any existing assessments.

All of those involved in multioccupied premises should start coordinating with each other to agree the identity of responsible persons and make sure that they liaise with each other in carrying out fire risk assessments. Above all, remember that the fire assessment must be an ongoing process and all documentation continuously updated and reassessed with any changes made, whether they be alterations to the building itself or changes in occupier or use.  © Property Law Journal