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MS EB 6 Reforming fire safety law - is the long wait over?
|MS E-Bulletin 006a.PDF|
In previous bulletins, we have explained how the bulk of current of fire safety legislation is confusing and, in some cases, contradictory. We have also described the probable impact of pending changes in fire safety law.
Now, with the commitment of the Government and in particular the Office of the Deputy Prime Minister (ODPM), that the new legislation will come into force in April 2006, we can accurately predict the impact the law will have on you – and what support you can expect from the Government.
The new legislation is made under the more general Regulatory Reform Order (RRO). This allows the Government to simplify current legislation without going through the normal stages of creating new laws and repealing existing ones. There are restrictions on the way this order can be applied, and concern has been expressed (one of the reasons for delay in application) that the sweeping measures proposed by the new law made the RRO an inappropriate vehicle for much-needed changes. This objection was overcome, however, and we now have – after much consultation, referral and discussion – the new Regulatory Reform (Fire Safety) Order 2005 (RR(FS)O).
What will this order require?
The Fire Precautions Act 1971 (as amended) will be repealed, so there will be no need to apply for, and maintain the conditions of, a fire certificate. Many similar pieces of prescriptive law will also disappear, or be considerably weakened. The current requirement for employers to assure the safety of staff under the Fire Precautions (Workplace) Regulation 1997 (as amended 1999) will also cease. But the principles of the new RR(FS)O are based on those of the current ‘workplace’ legislation, which requires fire risk assessment and self-administration of fire safety standards.
The new law will extend the current ‘workplace’ requirement from the employer to just about all buildings (other than individual residences and some other minor exceptions). The definition of accountability is changed from the ‘employer’ to the ‘responsible person’, who is defined as an individual and organisation having control over the premises. Where previously, some ambiguity may have existed in terms of liability, particularly in multiple-use buildings, the new law makes responsibility clear, in this and other respects. Currently, under the Workplace Regulations, liability is extended to employees with other occupant safety covered in the more general duty-of-care responsibilities of the Health and Safety Regulations.
The proposals now extend the definition of ‘responsible person’ to all of the premises’ occupants – and beyond, particularly where the premises or their surroundings are under the responsible person’s control. There is also a duty to co-ordinate with others who may be affected by the building or its process. An example may be the case of the multiple occupancy premises where a landlord has control of the common parts of the building, and tenants their own domains.
What is unchanged, however, is the need for a fire risk assessment that will now cover these extended responsibilities. As no other form of fire safety record and management will exist, it is obvious that the fire risk assessment process needs to be robust; it needs to be appropriate to the level of risk and the dynamics of the building’s use and occupancy.
Those with control over premises, who may be defined as the ‘responsible person’, should protect their personal liability by defining good policy and procedures that identify and devolve responsibilities down to those who create and manage risk on the ‘shop floor’. He or she should ensure that those with devolved responsibility (including themselves) are competent to accept those responsibilities, and that all measures for fire safety are recorded and auditable. In short, should the worst happen, the systems put in place to record the management of fire safety, including the fire risk assessment process, will be the only defence and means to prove accident rather than negligence.
Fire risk assessment remains the central tool by which the responsible person can control fire safety. The questions that all managers or individuals in this position must ask, are:
What is a fire risk assessment?
What level of detail is required?
What expertise do I or others need to undertake a competent assessment?
The Government has produced a series of guideline publications to support those with responsibilities. Purists amongst the professional fire safety fraternity might argue that the more guidance that is given, the more we look back towards prescriptive compliance rather than risk assessment. But it is fair to say that fire risk assessment, even if guided by set standards, is an improvement on the fire certification system we
currently have. The latter usually applies to premises, as opposed to occupancy, and generally ignores the dynamics and the occupier’s potential for change, while the certificate remains the same.
Early in 2006 the ODPM will issue a series of guidelines for the main risk-group occupancies. These are:
•Offices and shops
•Hotels and boarding houses
•Schools and colleges
•Schools and colleges
•Theatres and cinemas
The guidance documents will be in two parts: undertaking a fire risk assessment using the ‘five step’ process, and criteria for risk identification and safe limits.
Returning to the question raised earlier – Am I competent to undertake the assessment? The answer depends on the type, size, form and distribution of the building and its occupancy, together with the operation carried out. Training courses in fire risk assessment are widely available. These provide the basic skills to undertake simple risk assessments. For more complex risks, professional assistance in setting the system up is an advisable option. What must not be forgotten is that the European Health and Safety Directives, to which current risk-based approaches and the new legislation are intended to respond, is trying to create a ‘safety culture’ in organisations. To hand the process completely over to an external consultant does not entirely agree with the safety-culture principle.
Our concept of fire risk consultancy begins with assisting the client organisation to set up an appropriate fire risk assessment system; then helping them to identify where and what the principal risks are, and after that giving individuals the skills to cope with devolved responsibility so that they can maintain
the system themselves.
No change here. The responsibility for enforcing the new order will remain with the local fire authority. The Government will place pressure on brigades to reduce fatalities and fire damage; a major drive is underway to improve safety for those sleeping in or around their place of work and living in multipleoccupancy dwellings. (It remains a sad fact that the vast majority of fire-related deaths each year occur in the home or place of residence).
Fire Authorities will have the power to ensure that the responsible person has taken appropriate steps to ensure the safety of building’s occupants. If not, and if measures are not taken to the satisfaction of the authority, it can penalise through the courts. Penalties can include fines or even imprisonment for offences such as not carrying out a risk assessment, inadequate fire precautions or giving false information.
o The RR(FS)O is nearly here (April 2006).
o Most existing fire safety management law will be repealed.
o The ‘responsible person’ is the individual who has control over premises, and he or she will have to comply with the law.
o Fire risk assessments are the main tool for measuring and controlling fire risk.
o Fire safety management systems need to be robust; the fire risk assessment process is just part of a safety management system.
o All buildings (with the exception of single dwellings and some other minor exceptions) will fall under the RR(FS)O.
o Responsibilities extend beyond staff to all building occupants and those in the immediate area.
o The Government will issue guidance on fire risk management for main building-use occupancies early in 2006. To There will be individual liability for failings under the order, with financial and imprisonment penalties.