Changes to the long-standing Regulatory Reform (Fire Safety) Order 2005 (FSO) duties will place greater reporting and accountability expectations on developers, as well as their dedicated Responsible Person, Accountable Person, and Competent Person. Here, we explore how the duties have changed, and what developers would be advised to do next.
Granted Royal Assent on 28 April 2022, the Building Safety Act 2022 (BSA) has significantly updated the powers, protections and obligations of all stakeholders involved in the design, construction, and management of buildings.
According to its entry on the GOV.UK website: “It overhauls existing regulations, creating lasting change and makes clear how residential buildings should be constructed, maintained and made safe.”
One such change concerns the FSO legislation that forms the backbone of fire safety requirements in England and Wales.
What is the Regulatory Reform (Fire Safety) Order 2005?
The Regulatory Reform (Fire Safety) Order 2005 (FSO), which came into force on 1 October 2006, is one of the key pieces of fire safety legislation applying to buildings, places, and structures – including shared areas in houses of multiple occupancy, blocks of flats and maisonettes – across England and Wales. It does not apply to individual private homes.
Following the Grenfell Tower disaster in 2017, the FSO’s application – particularly concerning high-rise multi-occupied residential buildings – formed part of the ‘Building a Safer Future: Independent Review of Building Regulations and Fire Safety’, published by Dame Judith Hackitt in May 2018.
In 2019, the Home Office also published a Call for Evidence to “update the evidence base in relation to how the Fire Safety Order is complied with and enforced and help with the identification and assessment of any changes that might be needed and how they might best be achieved.”
Although responses indicated that the FSO remained fit for purpose in terms of scope, proportionality, and its risk-based approach, several issues were highlighted, and are subsequently covered by the amends contained within the BSA.
Under section 156 of the BSA, certain duties have been amended or introduced, many of which widen the scope of reporting obligations, as well as expectations concerning cooperation between Responsible Persons and their nominated competent persons.
Coming into force from 1 October 2023, these updated duties need to be understood now to avoid delays, as well as the potential of committing an offence.
What is a Responsible Person?
Under Article 3 of the FSO, there are three possible categories of Responsible Person (RP):
- An employer. This is either an individual or a company with control (to any extent) of a building that is a workplace. A family-run business is also considered a Responsible Person under Article 3, even if it does not immediately see itself as a ‘traditional employer’.
- A person in control of the premises. This person uses the building – as an occupier or otherwise – in connection with a trade, business, or another undertaking. The activity does not need to be for profit. Management companies can be included here, depending on the contract.
- The owner. This catches anyone else who is in control of the premises, outside of those in control for the purpose of trade, business, or another undertaking. As such, it is important to remember that a Responsible Person can be more than one individual.
Amended articles in the FSO
The Building Safety Act has amended three of the FSO’s articles.
Article 9: Risk Assessment
Under Article 9 of the FSO, the Responsible Person must “make a suitable and sufficient assessment of the risks to which relevant persons are exposed for the purpose of identifying the general fire precautions they need to take to comply with the requirements and prohibitions imposed on them by or under this Order.”
Previously, this encompassed a need to record significant findings in any risk assessments, including measures taken by the Responsible Person and any group of persons identified as being especially at risk. A Responsible Person also needed to record the information after reviewing or making the assessment, but only if they met one or more of the following criteria:
- they employed five or more people;
- their premises were subject to a licence made under an enactment (a pub or a bar, for example); or
- their premises were subject to an alterations notice requiring the Responsible Person to report changes that may adversely impact on fire safety.
What’s changed?
Under the Building Safety Act, findings no longer need to be ‘significant’ to be recorded in risk assessments and any subsequent reviews. It has also removed the criteria concerning when Responsible Persons must record information, meaning that all Responsible Persons now have a duty to record an assessment or review – including any findings, ‘significant’ or otherwise – and any measures taken.
Article 11: Fire Safety Arrangements
According to the FSO, a Responsible Person must “make and give effect to such arrangements as are appropriate, having regard to the size of his undertaking and the nature of its activities, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.”
Again, this duty previously only concerned Responsible Persons that met the criteria in Article 9.
What’s changed?
As with Article 9, these criteria have been removed, with the duties in Article 11 now applicable to all Responsible Persons.
Article 22: Co-operation and co-ordination
Where two or more Responsible Persons shared, or had duties concerning, a premises, Article 22 required them to “co-operate with the other responsible person so far as is necessary to enable them to comply with the requirements and prohibitions” as well as co-ordinate any measures and inform each other of relevant risks.
What’s changed?
The Building Safety Act extends these duties. A Responsible Person must now take reasonably practicable steps to ascertain whether any other Responsible Person shares, or has, duties concerning the premises.
Where this is the case, all Responsible Persons are obliged to share their names and an address where they will accept notices and other documents. They must also keep a record of the areas within the premises in which they consider themselves a Responsible Person.
New articles in the FSO
The Building Safety Act introduces four new articles as addendums to existing ones.
Article 9A: Risk Assessment Assistance
To complement the duties regarding creation and revision of risk assessments, Article 9A introduces a requirement for anybody appointed to assist with this to be deemed “competent.”
This is defined as someone who has “sufficient training and experience or knowledge and other qualities to enable the person to properly assist in making or reviewing the assessment.”
If the Responsible Person appoints more than one person, they must ensure that all nominated individuals co-operate and co-ordinate effectively.
Article 21A: Provision of information to residents of domestic premises
Following Article 21, which sets out duties and expectations for safety training, Article 21A requires Responsible Persons to provide “comprehensible and relevant information about the relevant fire safety matters” to residents in a building with two or more sets of domestic premises.
This information should include risks identified in the risk assessment, protective and preventative measures, and the name of the Responsible Persons and any other nominated competent persons. The Responsible Person must also keep a record of this information.
Article 22A: Provision of information to new Responsible Person
In an extension of a Responsible Person’s duties to co-operate and co-ordinate with other Responsible Persons, Article 22A requires them to facilitate the handover of responsibilities and information when they are replaced. “The outgoing person,” according to the Act, “must give the new responsible person any relevant fire safety information held by the outgoing person.”
Relevant fire safety information includes, but is not limited to, risk assessment records and reviews, as well as the names of other Responsible, competent, and – in the case of high-risk buildings – Accountable Persons.
A high-risk building and an Accountable Person are defined in sections 65 and 72 of the Building Safety Act respectively.
Article 22B: Co-operation with the Accountable Person
Where premises “consist of or include a residential unit in a higher-risk building”, a Responsible Person must ensure that they are aware of any Accountable Persons and “co-operate with each accountable person for the purpose of the accountable person carrying out their duties under the Building Safety Act 2022.”
As such, clear and effective channels of communication must be established across all levels of responsibility, with evidence to demonstrate that this is the case.
Meeting the new duties before October 2023
The Building Safety Act’s amendments to Article 32, which covers offences under the Regulatory Reform (Fire Safety) Order 2005, will make breaching both the new and amended articles an offence.
A Responsible Person will have committed an offence where they fail to comply with a requirement or prohibition imposed by these articles, where that failure places one or more Responsible Persons at risk of death or serious injury in case of fire.
With less than two months to go until these new amends are enforced, developer teams working across Gateways 2 and 3 (that is, those subject to ongoing communication, competence, record-keeping, and reporting requirements during both design and construction phases) will need to review processes and ensure that both a Responsible and Accountable Person’s duties are built in. Training should also be updated to account for these changes.