The Office of the Deputy Prime Minister (ODPM) has announced the delay of the coming into force of The Regulatory Reform (Fire Safety) Order 2005 (the Order) replacing fire certificates with a continuous risk assessment approach. The date had originally been set for 1 April 2006. The ODPM says that a new date will be announced as soon as possible.
When the new regulations do come into force who will they affect?
The Order will apply to most premises operated by employers or the self-employed, the voluntary sector and the common parts of residential developments and houses in multiple use.
What will happen about fire certificates?
The Order will replace the old regime of fire certificates which will be replaced by a risk assessment approach aimed at protecting “relevant persons”.
Who are “relevant persons”?
They are:
- Any person (including the responsible person) who is or may be lawfully on the premises; and
- Any person in the immediate vicinity of the premises who is at risk from a fire on the premises.
Who is the “responsible person”?
The Order makes fire safety the responsibility of the “responsible person”. This is similar to the Control of Asbestos at Work Regulations 2002, although in those regulations, the person is known as a “duty holder”.
Clause 3 of the Order says that the responsible person is:
(a) in relation to a work place, the employer, if the workplace is to any extent under his control;
(b) in relation to any premises not falling within paragraph (a) –
(i) the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business or other undertaking (for profit or not); or
(ii) the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking.
So the responsible person of a workplace is likely to be the employer if the workplace is under his control. A landlord will, however, be the responsible person in relation to common parts in respect of both residential and commercial premises.
It also means that other persons additionally will be the responsible persons in so far as they exercise control over the premises.
What does “control” mean?
Control means an obligation in respect of the maintenance or repair of the premises. So, where a person has obligations under a lease or contract in respect of the maintenance or safety of the premises (e.g. a managing agent) that person is likely to be considered to have control of the premises and therefore be the responsible person.
What is the situation with a multi-let building?
In this situation there will be more than one responsible person. The landlord, tenants and managing agents will need to co-operate to comply with their respective duties.
What will the responsible person have to do to comply with the Order?
His responsibility will include (but not be limited to):
- reducing the risk of fire and the spread of fire;
- securing and maintaining the means of escape from the premises;
- the means of detecting fire
- the means of fighting fire
- conducting a risk assessment which must be kept up to date
- appointing a competent person
Who is a “competent” person?
The responsible person (subject to some limited exceptions) must appoint adequate “competent persons” to assist them in taking preventative and protective measures taking into account:
- the size of premises
- the distribution of risk in the premises
The competent person must have sufficient training and experience to enable them to assist in preventative measures.
It is, however, the responsible person’s obligation to make sure that the Order is complied with.
Who enforces the Order?
In most cases it will be the local fire authority.
What are the penalties for non-compliance?
The onus will be on the responsible person to prove that he took all reasonable precautions and exercised due diligence to comply with the Order or a Notice made under the Order.
Penalties, if found guilty of breach, range from unlimited fines up to two years imprisonment.
Further guidance from the ODPM
Originally the ODPM was to have issued guidance for responsible persons at the beginning of 2006. However, in a press release dated 12 January 2006 the ODPM announced that it was to give business and fire safety experts more time to get ready for the new regulations. A new date has not been announced for the publication of the guidance or the coming into force of the Order.
What steps should be taken now?
Those involved in multi-let premises should start co-ordinating with each other to identify who are the responsible persons and that fire risk assessments are carried out.
Employers should remember that they are not only responsible for their employees but also those lawfully on the premises and anyone around the premises who could be affected by a fire.
Note: fire assessment must be an ongoing process which should be documented.
Further information
For further information go to: http://www.odpm.gov.uk/index.asp?id=1002882&PressNoticeID=2057
Who can help?
If you would like further advice about the new fire regulations please get in touch with your usual contact at plainlaw or Philip Horn on 01865 240202 or e-mail him at philip.horn@plainlaw.co.uk
This edition of “The law made plain” is written to provide you with general information. It is recommended that you seek specific professional advice before taking any action.
© Copyright plainlaw 2006
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