Significant legislative changes are coming into force in England and Wales from the 1st of October 2023 due to Section 156 of the Building Safety Act 2022.
These changes are not just amendments; they're transformations that will reshape the legal landscape. Failure to comply with these new laws could lead to severe consequences fundamentally different from what we've known before. It's crucial to stay informed and prepared to navigate these changes successfully.
Why is this happening? Following the Hackett report from the aftermath of Grenfell, it was determined that a 'golden thread' of management control should be implemented into the fire safety of buildings in the UK. This means that complete control of fire safety matters should be in place from the initial design concept right through to the demolition of the building. These latest changes in the law aim to make it easier for the local authorities to obtain information demonstrating this control is in place and, thus, compliance.
What is Changing?
Before October of this year, an offence of not providing the appropriate information from a request by the enforcement authority through means of Article 27 of the Regulatory Reform (Fire Safety) Order 2005 would be subject to a fine by the courts not exceeding level 3 under Article 32 of the Order (in simple terms, level 3 would be around the £1000 mark).
This is now changing from around £1000 to unlimited. Yes, indeed, as of the 1st of October 2023, it is now possible to be fined based on the turnover and profit of an organisation for committing an offence under Article 27 of the Regulatory Reform (Fire Safety) Order 2005 rather than a fixed penalty.
The recent amendment, marked by the introduction of Article 22A(5), underscores the necessity to "keep records of relevant fire safety information". This implies that even elements such as fire logs and weekly, monthly, and semi-annual checks, which may not have been documented earlier, must now be recorded. This change is significant as it brings about a higher level of accountability and ensures a systematic approach to fire safety measures. Why is this such a notable change?
The introduction of Article 22A(4) requires Responsible Persons to provide fire safety information under that article upon the enforcement authority's request. Given that it is now a legal requirement under Article 22A(5) to keep records of fire safety information, what was usually part of an on-site audit by the enforcement authority can now be requested in writing at any time (even prior to attending the site) as this should already be in the Responsible Person's possession.
Failure to comply with such a request in a reasonable time would result in an offence to comply under Article 27.1(c) of the Regulatory Reform (Fire Safety Order) 2005, which, as we have already covered, is now subject to unlimited fines. This significant change in the law has the real potential to catch out a lot of businesses and prove a very costly endeavour.
Let's provide an example of what is meant by 'providing appropriate information' and what role the fines will play with a Responsible Person on the wrong side. Let's say that you receive a request under Article 27.1 to provide information on the Responsible Persons of your building for fire safety. You decide to submit a fire safety policy (now required to be recorded for all businesses) or (for domestic properties/management companies) something like a tenancy/lease agreement. You submit this document to the enforcement authority, but it does not detail a clear understanding of the roles of the organisation in terms of who is responsible and what their responsibilities entail. You would have failed to provide the requested 'appropriate' information, leading to the offence potentially being enacted, along with the unlimited fine.
In examples like this, especially where there is more than one Responsible person (like an employer and a landlord), it must be noted that if it is unclear who has what responsibilities in the evidence provided, the enforcement authority will simply charge all parties with the offence. It is, therefore, in your own interest to ensure that this is clear in your organisation's documents.
It is essential that all businesses and organisations fully understand the potential impact of these changes to ensure that they are covered. Remember, in simple terms, it must be recorded and can be requested at any time by the enforcement authority.
Below is a summary of the other significant changes being brought in as a result of S156 of the Building Safety Act 2022. Keep an eye out for the word "recorded", as this information would be also subject to the above requirements:
Conditions and parameters for only certain organisations to have written fire safety policies are gone. It will now be a legal requirement for all organisations (even if that person is the only person in their organisation) to have a recorded (written) fire safety policy.
These policies must include a policy statement of intent (signed by the responsible person), a clear understanding of the responsible person's organisation and description in relation to fire safety and clear fire safety policy arrangements. These arrangements must have a cradle-to-grave understanding of what the arrangement is trying to achieve and how it will be carried out (including resources needed to accomplish this). This is worth bearing in mind when engaging contractors for any works in residential settings (such as work agreements, proforma questionnaires, etc.)
The recent amendment to Article 21 mandates that organisations housing domestic-type residents - including property management companies, social housing providers, semi and supported independent living schemes, student accommodations on campus, and private landlords - are now legally obligated to supply their residents with clear and understandable information regarding fire safety related to their building. This implies that the information must be communicated and made available in a language the residents can easily comprehend.
This information will be required by law to be recorded.
This recorded information, in its simplest form, is determined as;
The Fire Risk Assessment (FRA) and the fire risk assessors details
*Evacuation details/instructions for the building in the event of a fire
A full breakdown of each responsible person, what they are responsible for and their contact details
The fire safety policy, as described in Article 11
Any risks that are known by other responsible parties (for example, a leaseholder that controls a different section of a building from the tenant and the main responsible person)
The manner in which this information is evidenced is left to the judgment of the Responsible Person. They could use classic approaches, such as handing out signed hard copies, or they might prefer more modern methods, like including it as part of a digital tenancy package that requires a confirmation of receipt, for example.
*A failure to provide this information could lead to death or serious injury and, as such, would receive a much higher penalty, including a prison sentence.
This one is probably the most meaningful change that will affect most people. It will become a legal requirement for any change in the responsible person of the premises to ensure that all information related to the fire safety of that building is handed over from the outgoing responsible person to the incoming one. As such, all responsible persons relating to the premises must have this recorded information readily available to them to satisfy these criteria (i.e., building managers, head teachers, library managers, etc.) and ready to hand over to a new incoming person).
This information must include but not be limited to the following;
Regulation 38 (Building Regulations) information (this is usually the buildings fire strategy document)
The fire risk assessment and the assessor identity, including other information on duty holders such as a fire alarm/extinguisher company.
A full detailed breakdown of each responsible person, what they are responsible for and their contact details, including address.
An introduction has been included to ensure that applicable risk-based guidance must be followed when attempting to comply with the Regulatory Reform (Fire Safety) Order 2005.
In a nutshell, should you have a recorded fire risk assessment in place, its findings must follow appropriate risk-based guidance. If the information is unclear, the enforcement authority can request evidence to be presented as to what risk-based guidance was used.
At the time of writing, not much has been released from the UK government in the way of such risk-based guidance. However, existing applicable guidance and codes of practice (such as British Standards BS 9999 and BS 9991 or Approved Document B of the Building Regulations 2010) remain available and are appropriate as a benchmarking material.
In summary, as you can see there is a lot of new information that needs to be absorbed and acted upon by Responsible Persons of buildings. If you're seeking further guidance or require additional information on any points mentioned in this article, don't hesitate to reach out to our team. We're more than happy to lend a hand and guide you through.