The tragic events of 14th June 2017 at Grenfell Tower have brought a renewed focus on fire safety in residential blocks of flats and in particular high residential dwellings. Grenfell was not the first major fire in a high-rise block of flats but it is certainly the most significant. Although much of the talk in the press surrounds the cladding on the building, this will almost certainly not be the only factor which led to such a serious loss of life.
Whatever the causes of loss of life were, managing agents cannot afford to wait for the results of the public enquiry before reviewing their fire safety management precautions.
Skills, Knowledge and Experience
The key consideration in any such review must be to ensure that you have people with the necessary skills, knowledge and experience to plan, manage and monitor fire safety precautions and to undertake fire risk assessments in the areas of buildings and blocks under your control.
The person implementing your fire safety management arrangements must be able to:
- ensure that the appropriate controls are in place to manage fire safety within your portfolio;
- ensure that those who you appoint to undertake risk assessments have the skills, knowledge and experience for the type of assessment required and the building to be assessed; and
- challenge and/or verify the findings and conclusions of any fire risk assessment.
The fire precautions required for a building will depend upon its design and construction.
Most modern residential buildings should be designed to support a ‘stay put’ policy. However, others including many older properties require simultaneous or phased evacuations. Buildings with supported living arrangements may also have alternative emergency plans.
All residential buildings should comply with the compartmentation requirements, travel distances and other general safety requirements of the Building Regulations in place when the building was constructed. However. you should never assume that they do. It may also be necessary to consider making the planning for improvements to current arrangements as part of the findings of a risk assessment.
Increasingly new property is being designed by fire engineers following the standards set out in BS 9991:2015 (Fire safety in the design, management and use of residential buildings). To do this they use scientific and engineering principles, rules, and expert judgment, based on an understanding of the phenomena and effects of fire and of the reaction and behavior of people to fire, to protect people, property and the environment from the destructive effects of fire.
It is therefore essential that the person employed to undertake a fire risk assessment either is in possession of the fire strategy for the building, or has the skills, knowledge and experience to work out how the building was designed to:
• reduce the risk of fire and the risk of the spread of fire;
• provide adequate means of escape from the premises;
• enable fires to be detected and fought;
• enable an appropriate warning to be given in case of a fire; and
• support the arrangements for action to be taken in the event of fire.
Choosing the right person to undertake the assessment of risks and identify the required general fire precautions is key to the whole fire safety management process.
Guidance on fire safety management and fire risk assessment for the block management sector is given in ‘Fire safety in purpose-built blocks of flats’ which is published by the Local Government Association [LGA] 1. Although tailored to purpose-built blocks of flats, much of it is applicable to converted flats also.
Compliance with the guidance is not obligatory, but in response to the coroner’s questions concerning the Lakanal House fire in 20092, the then Secretary of State for Communities and Local Government makes it clear that the document was produced in consultation with the Department for Communities and Local Government [DCLG] and is endorsed by them. It is therefore essential that property managers understand it and ensure that they meet or exceed the relevant suggested standards.
The guidance suggests that a fire risk assessment need not always be carried out by specialists. However, it also goes on to say how important it is for such a person to be competent, as criminal liability will arise if the fire risk assessment is not suitable and sufficient, and people are placed at risk of death or serious injury as a result.
Although the skills, knowledge and experience of a person assessing a high-rise building will differ significantly from a two-storey building, it is generally accepted that all competent fire risk assessors will require an understanding of:
- the intent, objectives and requirements of the Fire Safety Order, as it relates to the building to be assessed;
- the design principles of blocks of flats, including blocks constructed in accordance with previous standards and legislation;
- the causes of fire and means for their prevention;
- relevant fire protection measures, particularly means of escape and compartmentation;
- the appropriateness of fire alarm systems and fire extinguishing appliances in blocks of flats;
- appropriate evacuation strategies for purpose-built blocks of flats, including ‘stay put’ policies;
- fire safety management, as it relates to flats;
- the effect of social and lifestyle factors on the risk to residents of purpose-built blocks of flats, and of the special needs for disabled people in the event of fire.
The scope of a fire risk assessment needs to be relevant to the nature of the premises and the amount known about the structural protection and means of fire containment and protection of the means of escape where applicable. Where a managing agent does not have relevant information, it is essential that they try to obtain this. Where the information cannot be found or does not exist it may be necessary to commission a fire engineer to investigate and report.
Ensuring buildings are safe
Once a fire risk assessment has been completed and you have verified that the suggested actions are appropriate, it is essential that you ensure that actions are closed out by the deadlines set out in the assessment or the action plan.
Where actions cannot be completed on time it is essential that you discuss the matter with your assessor before altering the documented completion dates. Whilst some completion dates may only be advisory, others may relate to a detailed assessment of the risk and require other actions to be taken until appropriate action on these matters could be taken.
For example, in the weeks since the Grenfell Tower fire, local fire authorities have, where high rise buildings that have been found to have inappropriate cladding or sub-standard fire safety controls, required the use of a 24-hour fire watch until appropriate action has been taken.
There are three main pieces of legislation which currently apply to fire safety in residential buildings, these are:
- The Regulatory (Reform Fire) Safety Order 2005 (FSO) 3;
- The Building Regulations 2010 4;
- The Housing Act 2004 5.
Whilst the FSO can present challenges to managing agents, the Building Regulations and Housing Act can offer solutions.
The FSO does not apply to individual flats, but does apply to the common parts of blocks of flats.
The key duties under the FSO are imposed upon the ‘Responsible Person’ which is typically, the landlord (which may be a Residents’ Management Company [RMC]), a Right to Manage Company [RTM] or a ‘head lessee’. However, responsibilities and duties imposed on the responsible person also apply to any other person who “under a tenancy or contract, has a responsibility for maintenance or repair of the premises, maintenance or repair of anything in or on the premises, or for the safety of the premises”. This can include a wide variety of people, including the managing agent.
A managing agent is presumed to have some responsibility because their greater knowledge of the requirements than the landlord or RMC directors. It is essential therefore to clarify responsibility for appointing persons with regard to fire safety, and to clearly document this in your management contract.
The duties of the Responsible Person under the FSO include duties:
- to make a suitable and sufficient assessment of the risks from fire to relevant people, including residents, in order to enable them to identify the general fire precautions; and
- to take such general fire precautions as will ensure, so far as is reasonably practicable, the safety of those people.
General fire precautions include:
- measures to:
- reduce the risk of fire and the risk of the spread of fire;
- provide the means of escape from the premises;
- detect and fight fires;
- give warning in case of a fire; and
- the arrangements for action to be taken in the event of fire.
Compartmentation around flats should ensure that a fire is contained within the flat of fire origin until extinguished by the fire brigade. In flats with a ‘stay put’ policy compartmentation is designed to ensure that those occupants of flats remote from the fire are safe to stay where they are and for the fire and rescue service to safely access the building to fight the fire. Compartmentation and other fire safety measures within a building must also be suitable to allow the building or parts of the building to be safely evacuated whenever the fire and rescue service decide this to be necessary.
Over the years there has been much talk within the industry regarding flat front doors. Fire authorities have frequently enforced against the Responsible Person where flat front doors are deemed not to afford the appropriate degree of protection.
Flat entrance doors are critical to the safety of the common parts in the event of a fire within a flat. The LGA guidance makes it clear that front doors must be self-closing and afford an adequate degree of fire resistance.
Whilst it is often argued, where the flat entrance doors are demised to the lessee, that the Responsible Person’s power to arrange for defects to be rectified is limited. I believe that, the Responsible Person should do whatever they can to ensure that front doors provide the appropriate degree of protection.
In their enforcement guidance on the Fire Safety Order 6, the DCLG makes it clear that fire safety authorities can only enforce against domestic lessee’s using Article 31 of the FSO. Article 31 requires the enforcing authority to prohibit or restrict the use of a flat where “the risk to relevant persons include anything affecting their escape from the premises in the event of fire.” It could be argued therefore that the use of a flat could be prohibited or restricted if the flat front door is not constructed in such a way as to protect the means of escape from a block. Enforcing officers have been reluctant to use their powers under Article 31 to date, but this may change following the Grenfell Fire.
There are however other ways to resolve issues with flat front doors: the first and always the preferred solution being communication with leaseholders. It is likely after the Grenfell Tower fire, particularly in high rise buildings, that many leaseholders will be receptive to initiatives to improve fire safety. However, even when they are not, there are other solutions available to managing agents.
The Building Regulations set standards when a building is designed, constructed or altered. There have been a number of Building Regulations since they were first introduced. The current regulations came into force on 1st October 2010.
The Building Regulations do not require a building to be updated to meet the standards in the current Building Regulations, or that repairs are undertaken to ensure that the level of protection provided at the point of installation is maintained throughout the life of the building. However, any changes to the installed requirements must comply with the current Building Regulations.
So, alterations to, or replacement of, flat front doors is “building work” and therefore subject to the requirements of the Building Regulations 2010. Where doors have been replaced or altered so that they are no longer compliant with the Building Regulations the local authority must take action when they become aware of the breach. Although notifying the local authority may not be the appropriate action in the first instance, it is useful to remind a lessee of their duties in any communication.
Most leases will include a clause requiring leaseholders to comply with statutory requirements in respect of their own demised premises. There will also usually be a clause requiring them to apply for a licence to alter which will usually cover changes to flat front doors and other demised fire safety controls implemented to comply with the Building Regulations in place at the time the building was constructed. Where such clauses exist and the changes made by the lessee breach the requirement of the lease the managing agent can use them to enforce compliance.
Where the lease fails to make ‘satisfactory provision’ for repair or maintenance of the flat, building or estate such an application can be made under Section 35 of the Landlord and Tenant Act 1987 for a suitable clause to be added.
Where all other controls have failed the Housing Act 2004 provides another solution.
The Housing Act 2004 places a duty on local authorities to take appropriate enforcement action where serious hazards, including fire hazards, are identified in residential properties and include powers for local authorities to take action to deal with any less serious hazards. Where a local housing authority is satisfied that a prescribed fire hazard exists in any common parts of a building containing one or more flats, and enforcement action is deemed to be necessary they must consult the fire and rescue authority for the area before taking any such enforcement action.
There are a number of ways in which a local authority may identify the need to deal with hazards in residential accommodation including:
- the local authority’s duty to review housing conditions in their area;
- as a result of a request for enforcement action to the local authority.
When a hazard has been identified a local authority inspector will undertake an assessment using the Housing Health & Safety Rating System [HHSRS] to generate a numerical score.
If a hazard is a serious and immediate risk to a person's health and safety, this is known as a Category 1 hazard. If a hazard is less serious or less urgent, this is known as a Category 2 hazard.
Where a Category 1 hazard is identified the local authority must take action. Action can include:
- serving an Improvement Notice;
- making a Prohibition Order;
- serving a Hazard Awareness Notice;
- take Emergency Remedial Action; and
- making an Emergency Prohibition Order.
Threats to health from exposure to uncontrolled fire and associated smoke is one of the 29 housing hazards considered under the HHSRS. The government’s operating guidance for the HHSRS makes it clear that “The dwelling design, construction and condition should limit the chances of carelessness causing a fire, limit the spread of a fire, howsoever caused, and provide safe and ready means of escape” and “Internal doors (including entrance doors to flats) should be made of appropriate materials and properly fitted, and, where appropriate fitted with self-closers.”
Involving the authorities should never be taken lightly. However, where the risk demands it, enforcement through the Housing Act is a route that could and should be used.
Mechanical and electrical equipment forming part of a buildings fire strategy must be maintained in accordance with the relevant standards so that it is always ready for use: This includes:
- wet or dry risers installed, or suitable access around the perimeter of the building as appropriate, to allow the brigade to fight fires;
- smoke ventilation and extract systems and any associated detection systems;
- fire and smoke detection and alarm systems installed where the building has a strategy requiring evacuation.
New equipment, such as fire alarms, should only be installed where a change of strategy is intended and then only following a detailed review by a competent person, such as a fire engineer.
Managing agents must ensure hot work is avoided and where necessary is undertaken in accordance with a suitable permit to work such as the one set out by the Fire Protection Association in their Management of Hot Work Handbook 7.
Where any work involves holes to be cut through fire compartments the fire stopping of any breaches must be carefully managed and ideally certified.
Would you like to know more?
If you would like to know more about fire safety management ARMA will be running two half day workshops on the 12th October for directors and senior managers which expand on the matters discussed in this article and a one day course on the 7th November on fire safety management for managing agents.
1. Fire safety in purpose-built blocks of flats which is published by the Local Government Association [LGA]
2. Secretary of State for Communities and Local Government in his response to the coroner’s questions following the Lakanal House fire on 3rd July 2009
3. The Regulatory (Reform Fire) Safety Order 2005 (The Fire Safety Order)
4. The Building Regulations 2010
5. The Housing Act 2004
6. Regulatory (Reform Fire) Safety Order 2005 (The Fire Safety Order): Guidance Note No. 1: Enforcement published by the Department Communities and Local Government [DCLG]
7. Management of Hot Work Handbook published by the Fire Protection Association