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MS EB 2 The Regulatory Reform (Fire Safety) Order
|MS E-Bulletin 002.pdf|
I hear that there’s going to be a new fire safety act – what’s the reason for this?
The government published a consultation document – ‘Fire Safety legislation for the Future’ – more than five years ago. This was followed in July 2002 by a further consultation document from the Office of the Deputy Prime Minister (ODPM), ‘Amending various Acts and statutory instruments to simplify, rationalise and consolidate the law with respect to fire safety in buildings in use’. The ODPM is the Government department responsible for fire safety.
The document’s key proposals were:
• ‘So far as possible, general fire safety legislation should be reformed to create one simple fire safety regime applying to all workplaces and other non-domestic premises.
• The regime should be risk-assessment based with responsibility for fire safety resting with the person responsible for the premises
• Protection should be provided to persons inside a building and those who might be affected by a fire.
• There should be no separate formal validation mechanism for higher risk premises.
• Fire authorities would base their inspection programmes on their assessment of the premises they considered to present the highest risk.
• There should be a duty to maintain those fire precautions required under Building Regulations which are for the use and protection of the fire brigade.
• There will be a new statutory duty on fire 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.’
Don’t these things take ages to go through Parliament and then usually run out of time?
When the Regulatory Reform Act came into force in April 2001 it repealed the deregulation ordermaking provisions of The Deregulation and Contracting Out Act 1994. Basically, this speeds up the law-making process and, as in the case of the new Fire Safety Order, does away with the need for primary legislation. The procedure can now take as little as nine months to complete. The ODPM aims to introduce this Order to Parliament later this year and, subject to Parliamentary approval, the reforms are expected to come into force by Autumn 2005.
But hasn’t The Fire Precautions Act done the job? Why do we need a new piece of legislation?
Good question. We certainly don’t get fires where many lives are lost, and most fire deaths occur in the home, for which there is very little fire legislation (nine times more people die in the home compared to the workplace). The effectiveness of the Fire Precautions Act is shown by the relatively low number of deaths in the workplace each year – but this legislation is over 30 years old and islargely prescriptive. Our knowledge of fire continues to expand, there have been advances in fire technology, and fire engineering has developed as a profession. New developments and the requirements of modern building design mean that prescriptive solutions may not always be achievable, therefore alternative solutions, through fire engineering, need to be found.
Our record on property protection as opposed to life safety may not be so good. We still get very expensive fire losses. In the year November 2001 to October 2002, for instance, there were 126 fires costing more than £250,000, with a total estimated loss of more than £155,000,000. One of the Government’s aims is to reduce fires in nondomestic properties.
A European Framework Directive resulted in the introduction of the Fire Precautions (Workplace) Regulations 1997. These regulations exempted certain premises (by regulation 3(5)), namely,workplaces where a current fire certificate (FPA 1971) is in force. This was not fully in accord with the EC Framework and in 1999 the regulations were amended so that from 1 December 1999, allbuildings and similar premises in which persons are employed are required to have a fire riskassessment carried out irrespective of whether a fire certificate is currently in force. This introduced a new regime of fire safety law and placed responsibility for fire safety in the workplace on its owner or occupier – ‘the responsible person’. This meant that there was an overlap of fire legislation,which had to be complied with. In fact there are over 100 different pieces of primary and secondary legislation with fire safety provisions. The aim of the new legislation is to create, so far as is possible,one fire safety regime that will apply to all premises to which the public have access so that there will be someone responsible for assessing and reducing the fire risk.
I already have a fire certificate. Doesn’t that mean that my premises are safe enough?
Possibly, but how long have you had this certificate? If it dates from the beginning then the provisions made could be more than thirty years old. Do you carry out regular checks, testing,servicing and maintenance? The wiring on a fire alarm system has a life of ten to 15 years, which may be extended if there is regular testing and maintenance. Fire doors in everyday use become worn and distorted; smoke seals erode or become torn or broken; intumescent strips are painted over;closers wear down. The use to which the building is put, as well as layout and occupancy, are all likely to have changed over thirty years so it is probable that some of your fire certificate’s provisions no longer apply, or at least need updating.
In regard to documentation, discussion and debate on the reforms has highlighted the need for some record of the building fire safety measures. Guidance may well recommend a ‘Designed Fire Strategy’. This will be a document that movesthrough the life of the building, from the initial design stage and through its successive usages. It will detail the buildings fire strategy and the procedures and systems for maintaining this.
So what will I have to do?
We won’t know the final requirements until the order has been introduced for parliamentary approval, but information from the ODPM and other sources have given a good indication of what is likely to be included. You should already have carried out a fire risk assessment under The Workplace Regulations and indeed reviewed your fire risk assessments at least annually, or after any changes. This should go a long way towards satisfying the act’s requirements. However, it is quite likely that, although the main focus will be people safety, you will need to go some way further than just a fire risk assessment. Other requirements could include taking steps to reduce risk. Specific measures that may be made under the new
legislation might include the prevention of fire spread and firefighter safety. An important part of the proposals relates to the definition of ‘responsible person’, which will be along the lines of corresponding definitions in other health and safety legislation. Rather than rely on
the fire service to determine the necessary fire precautions, the person responsible for the premises will be accountable for the safety of people present in the building or buildings and will have to decide how to deal with fire risks.An expansion of the classes of premises covered by the legislation may also mean that unoccupied buildings will also be included. In addition residential properties may be included, where someone is employed such as a cleaner or caretaker (but not domestic living accommodation) and this may include maintenance and testing of common fire precautions.
Will I have to change the way I carry out fire risk assessments?
There is more than one way to complete a riskassessment and it is unlikely that the legislation will require you to follow a particular method.
Guidance will be issued for particular types of building or business sectors. This will probably be along the lines of the HSE publication ‘Fire Safety – an employers guide’ A fire risk assessment will be required for virtually all non-domestic properties and a written fire risk assessment, recording the significant findings, will be required for any company with more than five employees. The legislation may also now include the risk to nonemployees. Whatever methodology is used, it will need to address (a) fire prevention by reducing hazards and risks; and (b) mitigating the effects of fire to ensure that people in and around the building are safe.
Who will enforce this new legislation and how will they do so?
Monitoring and enforcement will generally be carried out by the fire service. There has been muchdebate about the training necessary for the fire brigade to carry out this role and how they can ensure a consistent approach.
It is intended that enforcement will be carried out in a similar way to other health and safety legislation. Under the Fire Precautions Act, the Fire Officer would tell you what was needed to be done to make fire precautions adequate. Under the new order they will tell you that the law has not been complied with and why.
A code of practice for enforcing officers may be issued. In the case of a minor breach this can be dealt with informally by verbal or written advice. For more serious breaches, an enforcement notice can be issued, possibly with a schedule attached (although they are not obliged to do this). Just as with existing legislation, the enforcing authority will be able to issue prohibition notices to forbid or restrict the use of all or part of a premises until remedial action has be taken to make the premises safe.
I already have a fire risk assessment under the ‘Workplace Regulations’. Won’t this do?
It depends on what additional requirements may be added to the new fire safety order. But it’s likely that your fire risk assessment will need to be reviewed and extra items considered. You should also consider:
• Fire safety management – you’ve identified the risk reduction measures but how do you ensure that those measures are maintained? Good robust management systems will need to be in place for checking, testing and maintaining your fire safety systems.
• Firefighter safety – how will you make firefighters aware of any hazards in your premises?
• Ensuring competence of people appointed or employed by you who are carrying out workthat affects the safety of the premises. This
could include testing and maintenance of fire safety equipment and systems and even carrying out fire risk assessments.
• Provision and use of fire fighting equipment and measures for fighting fires – one method of reducing the effect of a fire is to extinguish it at source, before it has had time to take hold. Staff will need to be properly trained so that they know when and how to safely use the firefighting equipment provided in the premises.
• Procedures for regular review and updating of the fire risk assessment.
What about contractors?
The responsible person will need to ensure that contractors are competent. The order will include a number of possible offences. Where one has been committed due to a contractor’s negligence, the Government intends that the enforcing authority should take action.
Third-party certification should be encouraged to help ‘the responsible person’ to choose competent contractors.
How will I know if my risk assessment complies?
Following the relevant guidance will be a good indication, although you may use alternative solutions to that offered by the guidance.
Fire Authorities will have a duty to ‘develop and maintain an enforcement programme’. This will include the frequency of inspection of premises to ‘monitor and encourage compliance with the law’. Premises that the fire authority considers to be high risk will be subject to more frequent inspection than low risk ones or those that are known to have good fire safety systems and procedures in place. If the quality of fire safety management in the premises is known to be poor it is likely that inspections will be
The requirement for Fire Brigades to give fire safety advice (established under the Fire Services Act) will also still remain.
What if I want to carry out alterations to my premises? Will I still need to inform the Fire Authority?
If it is a ‘material change’ you will need approval from the Building Control Authority who have to consult the Fire Authority. At this stage the responsible person will probably have to show that a fire risk assessment has been carried out on the proposals and the risk reduction measures are being taken as a result of the fire risk assessment.
What about the Building Regulations?
The Building Regulations will still apply to new buildings or material alterations. There will also be a new requirement that fire safety measures needed to comply with the Building Regulations will have to be maintained. If the building has gone through the Building Regulations process, is certificated on completion and used as designed, then there should be no need for any further process.
It is proposed that a number of local acts will be repealed as they have been overtaken by the Building Regulations or will be covered within the new legislation.
How will I know what standards are acceptable?
British and European standards will all remain acceptable and these and other standards will probably be listed in the relevant guidance. Where other international standards or codes of practice are followed, the responsible person will probably have to prove that these achieve an equivalent standard of fire safety.