Finalising the fire safety Order
Chris Dyer reports on the shape of the new fire safety regime and what it means for employers.
On 10 May 2004, after a decade of deliberation, plans to simplify and improve the fire safety regime started the final stage of the process of becoming law. Announcing the laying of the Regulatory Reform (Fire Safety) Order 2004 before parliament, fire safety minister Phil Hope said: "By simplifying the law and placing a greater focus on fire prevention, we can begin to reduce the number of fires in businesses, improve fire safety and save more lives."
The Order1 makes employers responsible for fire safety. They will have to assess the risks of fire, take steps to reduce or remove these risks and update the assessment as circumstances change. Employers will also have to meet specific requirements, such as providing adequate means of escape and appropriate firefighting equipment. Fire certificates will no longer be issued, although fire and rescue authorities will continue to inspect premises to check that adequate fire precautions are in place.
Slow progress
The reform of fire safety law has been a lengthy business. A review in 1993 concluded that the existing approach to fire safety was outdated (HSB 226), and a public consultation in 1997 found a general desire for the extensive collection of legislation covering fire in the workplace to be simplified (HSB 265).
In 2002, the Office of the Deputy Prime Minister (ODPM) issued "A consultation document on the reform of fire safety legislation" (Prescott gives order to fire )2. The main proposals put forward in the consultation document were that:
so far as possible, the reform should create one simple fire safety regime applying to all workplaces and other non-domestic premises;
the regime should be based on risk assessment, with responsibility for the fire safety of the occupants of premises and people who might be affected by a fire resting with a defined responsible person;
there should be no separate formal validation mechanism for higher risk premises - fire and rescue authorities would base their inspection programmes on their assessment of the premises considered to present the highest risk;
there should be a duty to maintain those fire precautions required under Building Regulations and other similar legislation that is for the use and protection of firefighters; and
there should be a new statutory duty on fire and rescue authorities to promote community fire safety; for powers of entry for the investigation of fires; and for a power to take away samples for testing.
The consultation document proposed making these changes through an Order made under the Regulatory Reform Act 2001. This Act allows ministers to reform over-complex regulatory regimes without taking up large amounts of parliamentary time, and simplifying fire safety law was seen as a prime example of what the Act could achieve (see box 1).
At the end of the consultation, 276 responses had been sent to the ODPM. The broad thrust of the responses was that the government's approach was reasonable, appropriate and proportionate; orders taken under the Regulatory Reform Act have to meet these criteria as the legislation is not subjected to the usual system of parliamentary scrutiny. In the light of these responses, and after further discussions with stakeholders, adjustments were made to the original proposals that have been incorporated into the Order.
Overlapping regimes
The government believes that the existence of multiple, overlapping general fire safety regimes, and the consequent overlap of responsibilities among enforcing authorities, has been confusing for business. It expects reform of the system to reduce this confusion. The Order consolidates and rationalises many existing fire safety duties, which are currently scattered across numerous statutes and much secondary legislation, and will reduce the number of enforcing authorities dealing with general fire safety matters. At the same time, the government believes it will maintain and enhance the protection given by the existing legislation.
There are two major pieces of general fire safety legislation: the Fire Precautions Act 1971 (see box 2) and the Fire Precautions (Workplace) Regulations 1997 (see box 3).
This means that, in a large number of premises, two separate fire safety regimes apply based on totally different philosophies. The central aim of the Fire Precautions Act is to ensure that, in the event of a fire, occupants can evacuate the premises safely. The Fire Precautions (Workplace) Regulations require employers to identify risks and take steps to remove or reduce them.
Some premises are also subject to licensing, certification or registration regimes, under which yet more fire safety requirements can be imposed. These include licensing Acts, the Theatres Act, the Gaming Act and various children's homes Regulations.
This arrangement produces three broad risks:
Local authorities and other enforcing authorities are prevented from targeting resources for maximum effectiveness.
The failure to address avoidable fires results in economic loss and possibly in deaths and injuries; estimates for 2000 put the total cost of fire for commercial premises at £2.2 billion3.
Repeals and revocations
The fire safety Order will apply in England and Wales and will repeal the Fire Precautions Act and revoke the Fire Precautions (Workplace) Regulations. Nearly all business sectors, including the self-employed and the voluntary sector, will be brought into the new regime. Neither the self-employed who have no employees and work from their own home nor some areas where there are special considerations, such as offshore installations, means of transport and mines, are covered. The Order is concerned with "general" fire precautions and makes a clear distinction between what is required by the Order and "special" precautions that are needed directly in connection with a process, and that need to be considered under health and safety legislation (see box 4).
The Fire Precautions Act and the other workplace fire legislation will continue in force in Scotland until the Scottish parliament puts into place any parallel reforms it thinks appropriate. Reform of fire legislation in Scotland is likely to commence in early 2005. It will encompass changes to the Scottish fire service and will aim to sweep up all fire regulations into one consistent, effective regime.
Dutyholders
The duty to comply with the requirements of the Order falls to the person who is responsible for the premises in use. This will be:
the person in control of the premises in connection with the carrying on of a trade, business or other undertaking (for profit or not);
the owner; or
any other person who at allexercises control over the premises, including contractors who take responsibility for installation and maintenance of fire precautions or preventative measures.
In some premises more than one person might have some level of responsibility.
The responsible person must:
take such general fire precautions as will ensure, so far as is reasonably practicable, the safety of any of their employees; and
in relation to relevant persons who are not their employees, take such general fire precautions as may reasonably be required in the circumstances to ensure that the premises are safe.
"Relevant persons" means:
any person (including the responsible person) who is, or may be, lawfully on the premises; and
any person in the immediate vicinity who is at risk from a fire on the premises.
Risk assessment
The responsible person for the premises and activity must carry out, or have carried out, an assessment of the risk of, and from, fire.
Hazards that are identified must be removed or reduced to as low a level as reasonably practicable. Special consideration must be given to the risks posed by the presence of dangerous chemicals or substances in case of fire. Special consideration must also be given to any groups of people that may be especially at risk in case of fire, whether this is because of their location or any other factor.
The responsible person must take steps to see that everyone in and around the premises will be protected from the residual risks by appropriate fire precautions, including means for detecting and warning of fire, means for fighting fire and means of escape. Fire precautions, including any provided for the use of firefighters, such as firefighting shafts, access points and firefighting riser mains, must be installed and maintained by a competent person; the law currently provides for the installation in new buildings of facilities specifically for the use and protection of the fire service, but nothing to ensure that they are fit for use when they are needed.
Plans must be drawn up covering what staff must do in case of fire and proper training should be provided.
Enforcing the Order
The main enforcing body will be the local fire and rescue authority, although in some special areas other authorities will enforce the Order:
at nuclear installations, construction sites and ships under construction or repair, the enforcing body will be the HSE;
at defence bases and visiting forces, it will be the fire service maintained by the Secretary of State for Defence;
at sports grounds, the local authority with responsibility for issue of safety certificates will be the enforcing authority; and
in Crown-owned or -occupied premises generally, it will be Her Majesty's Inspectors of Fire Services.
If the enforcing authority believes the responsible person has not complied with a requirement of the Order, it can serve an enforcement notice setting out what action should be taken to remedy the situation. The notice will allow reasonable alternatives to be used.
In extreme and urgent cases, the enforcing authority can prohibit or restrict the use of premises until it has been made safe.
In cases where premises could pose significant risk if any elements of use or precautions are changed, the responsible person must tell the enforcing authority of any proposed changes, so that the authority can re-assess the position of the premises in a risk-based inspection programme. The responsible person need not wait for the authorities' agreement before starting work.
Appeals against notices can be made to the magistrates' court. Where the appeal is on a purely technical matter, such as the standard of fire alarm that is appropriate, the responsible person and the enforcing authority can agree to seek determination by the Secretary of State. The determination will be binding on the enforcing authority.
Anyone who does not comply with the requirements of the Order, or an enforcement, prohibition or alterations notice, or who obstructs an inspector, commits an offence. The level of penalties available to the courts is on a par with the level in existing fire safety law. It is a defence for a person to show they had done all they reasonably could to avoid committing an offence.
Integration with licensing
The Order will be the principal legislation for general fire safety. Conditions of licences and permissioning regimes that cover the same general fire safety requirements as the Order will no longer apply. Licences will contain a general condition requiring compliance with the Order. The fire and rescue authority will enforce fire safety law and will take into account the views of the licensing authority on linked risks as part of a statutory consultation process. Breaches of fire safety law will be breaches in licence conditions and the licensing authority will be able to take action on deficient fire precautions by enforcing the licensing law. This will mean that licensing officers can take action when it might not be practicable to consult a fire safety officer. Licences issued under the terms of the Licensing Act 2003 will not contain conditions relating to general fire safety, although the Order will still be applicable.
The Order will apply to the common parts and any workplaces in houses in multiple occupation.
All public bodies with a legislative interest in any premises must consult the enforcing authority before taking any action that may affect the fire safety arrangements. This will protect the responsible person from inconsistent enforcement. Equally, the enforcing authority must consult these other authorities before taking formal enforcement action, unless it is prohibiting the use of premises that are dangerous.
Under the Order, fire and rescue authorities are given a new power to take away items or samples of substances for analysis in connection with the enforcement of fire safety legislation. An officer enforcing fire safety legislation may want to test a substance or article to determine its fire resistance or flammability.
In the consultation on the Order it was proposed to include a power of inspection for the purposes of determining the cause of a fire or the reason for its spread. However, the government decided that the Regulatory Reform Act 2001 does not allow such a provision to be included in the Order as it provides for a new forcible power of entry. This power of inspection to determine the cause, or the reasons for the spread, of fire has been included in the Fire and Rescue Services Bill, which is passing through parliament.
HSW Act disapplied
In premises where the Order applies, the HSW Act, and Regulations made under it, will no longer impose requirements or prohibitions concerning general fire precautions. This disapplication will not apply to the Control of Major Accident Hazards Regulations 1999 (COMAH).
Employees and others who may be affected by work activities covered by the HSW Act, and Regulations made under it, will still be protected by the Order. Its substantive duties impose equivalent requirements on the responsible person in respect of general fire precautions to existing legislation. The Order will apply in some situations not already covered, including certain premises used by the self-employed and the voluntary sector. However, most of these people will already be responsible, under the HSW Act, for the safety of people on their premises and should already be carrying out risk assessments, which should include the assessment of the risk from fire. In that sense, the Order adds few or no additional requirements to existing law (see box 5), although some people, who have not met the requirements imposed on them by existing legislation, might incur expenditure to comply with the Order.
While the changes to existing duties are very minor, the government expects the Order to improve compliance as a result of the clarity achieved through rationalisation, the publicity surrounding its taking effect and new guidance.
Once the Order is approved by parliament, the ODPM will issue guidance on the requirements of the Order. Eleven guides are proposed - each one directed at specific types or uses of premises. The first guide, aimed at offices and shops, is under development and will form a template for the remainder of the series.
Benefits of the Order
The move away from a system based on the certification of prescribed classes or uses of building gives fire and rescue authorities the freedom to develop their inspection programmes on the basis of risk. Inspections will focus on those premises posing the highest risks in comparison with others in the area. The Order also maximises the efficient use of resources since fire and rescue authorities will more often be enforcing fire safety law in their own right, rather than as third parties consulted by those administering other regimes. Businesses in England and Wales will save approximately £1.65 million a year through not having to apply for fire certificates.
On a conservative basis, the average cost of a fire in non-domestic property, including property losses, death, injury and loss of business is estimated to be £25,9004. The majority of this figure, £20,700, is made up of property losses. No attempt has been made to put a cost on the distress caused to victims, families, friends and whole communities where fire causes loss of property, trauma, injury or death. Fires may also damage the natural or built environment and cause the loss of historic artefacts or rare habitats. The negative impact of fire is much broader than can be conveyed by the economic cost alone.
The government is unable to be precise about the reduction in fires or cost savings that might be delivered through greater compliance and more focus on prevention in high-risk properties but it can make a broad assessment. A reduction in the number of fires in England and Wales of 5%, 10% and 15% would achieve annual savings of £39 million, £79 million and £118 million respectively.
According to a survey carried out by the Chief and Assistant Chief Fire Officers' Association (CACFOA), the level of awareness among employers of the requirements of the Fire Precautions (Workplace) Regulations is around 58%. Information from small businesses collected by the ODPM indicates lower levels of awareness, at just over 46%, although where small businesses were asked about specific duties under the Fire Precautions (Workplace) Regulations, the level of awareness was close to that found in the CACFOA survey.
Although compliance may be improved by the Order, it is unrealistic to expect total compliance. There will always be those that do not comply with the law, either through ignorance or negligence. The government thinks a target of 85% compliance is realistic and achievable: a planned advertising campaign and information links to business, such as through the Small Business Service, is expected to contribute significantly towards reaching the target audience.
False alarms
Approximately one-third of all false alarms are generated by faulty apparatus - 228,000 in total in England and Wales in 2000. A proportion of these could be prevented by good practice and improved maintenance. The Order allows fire and rescue authorities to take enforcement action directly against contractors that install or maintain fire protection systems negligently. The power for enforcing authorities to require the maintenance of fire safety facilities provided under Building Regulations should further contribute to reducing the risk from fire, as well as the level of false alarms.
Fewer false alarms will reduce costs to the fire service, costs to business through downtime and disruption and nuisance to both employees and local residents.
No new burdens
Although the move to a system based on risk assessment should not create new duties, because all those covered by it already have to undertake risk assessments under existing legislation, there will be costs involved in purchasing and becoming familiar with the new guidance. There will also be compliance costs for those that have not been meeting their obligations under existing fire safety regimes.
For those not complying with current arrangements for risk assessment and related staff training, the government estimates that most employers (65%) will have to spend an average £196 to comply with the Order.
For those businesses that comply with the existing legislation, outlay should be limited to the cost of purchasing the guidance (£12, or free online) and familiarisation with it. The government expects total costs for an individual business to comply with the Order to fall within a range of £33 and £44.
Change in philosophy
The coming into force of the fire safety Order is significant in that it encompasses a change in the philosophy of risk management relating to fire. The introduction of the Fire Precautions (Workplace) Regulations, quickly followed by amendments widening their scope to encompass certificated premises, was a watershed. The goal-based regime, placing the responsibility of carrying out and acting on a risk assessment with the employer, broke with the previous prescriptive model established by the Fire Precautions Act. Premises and procedures were no longer frozen in time by the issue of a certificate; risk assessment was required to be dynamic to reflect changing conditions.
The government did consider whether under the new regime there might need to be some form of formal validation procedure for premises that were at high risk of fire. It was felt that this might be needed to provide the public with the kind of reassurance that had been offered by the certification process. Such an approach has been abandoned; it was not practicable to define "high risk" in a way that was sufficiently comprehensive and robust to be incorporated into legislation, so as to capture all those premises that might give rise to concern.
Instead, the government says that one of the fundamental advantages of the reform is that fire and rescue authorities will be free to apply their resources to the inspection of premises that they consider, on the basis of their local knowledge, and with the assistance of guidance issued by the Secretary of State, to present the most risk. To reinforce this approach, the government proposes that there should be a duty on the enforcing authority to have an enforcement programme. This would detail how it determines the frequency of inspection of premises where the Order applies in order to monitor and encourage compliance with the law. The duty to develop an enforcement programme is contained in the Fire and Rescue Services Bill.
In developing the programme, the authority will have to take into account all the information available about the use and associated fire risks in the premises in its area. "Such a requirement would make it sufficiently clear that inspection is an integral element of the enforcement process, while leaving the actual decision as to the frequency of inspection at the discretion of the enforcing authority2."
The government says that it has considered very carefully the question of public reassurance and the implications of removing the requirement for fire certificates. "We need to ask what is it about the existing arrangements that give the public this sense of assurance? We believe that this centres on enforcement by the fire service - on the knowledge that the fire service has inspected the premises, examined the fire precautions and declared themselves satisfied."
Under the regime established by the fire safety Order, "the fire service will, of course, continue to do this", the government says. "The fact that the responsible person will be responsible for carrying out the risk assessment does not free him to provide fire precautions to a lower standard than existed before. The new regime is goal-based and, as we have explained, the law will set out the goals very clearly as specific requirements. The responsible person can determine how the goals may be achieved, but it will be for the enforcing authority, in enforcing the law, to assess whether he or she has done so. Effective enforcement is therefore key to the whole process, and this underlines the importance of the authority being seen to have an enforcement programme that targets its inspections on the basis of risk."
The government says that the introduction of the new regime does not assume that there will be any alteration in the level of resources dedicated to fire safety, and the number of inspections carried out is not expected to change.
Chris Dyer is editor of HSB and a freelance journalist.
1"The Regulatory Reform (Fire Safety) Order 2004" and "The Regulatory Reform (Fire Safety) Order: statement by the Office of the Deputy Prime Minister", ODPM, Information Management Division, Ashdown House, Victoria Street, London SW1E 6DE, tel: 020 7944 3146 or visit www.odpm.gov.uk, free.
2"A consultation document on the reform of fire safety legislation: amending various Acts and statutory instruments to simplify, rationalise and consolidate the law with respect to fire safety in buildings in use", July 2002, see above, free.
3"The economic costs of fire", M Weiner, Home Office Research Study 229, see above, free.
4"The Regulatory Reform (Fire Safety) Order: regulatory impact assessment", ODPM, see above, free.
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These Regulations were made to implement elements of two European Community Directives on health and safety at work: the framework Directive (89/391/EEC) and the workplace Directive (89/654/EEC). They apply to virtually all places where people are employed to work, the main exceptions being construction sites, ships and mines. The Regulations, together with those elements of the Management of Health and Safety at Work Regulations 1999 and the Dangerous Substances and Explosive Atmospheres Regulations 2002 (Government implements CAD package ) that impose requirements concerning general fire precautions, require employers to carry out a fire risk assessment; identify the significant findings of the risk assessment; provide and maintain such fire precautions as are necessary to safeguard those who use the workplace; and provide information, instruction and training to employees about the fire precautions. The fire precautions provided in accordance
with these Regulations are intended to protect employees but must take
account of other people present. |
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