Fire Safety Order - Supplement to guidance note 1: enforcement

Question 1

Introduction

Accepted Answer

1. This circular is issued to draw the attention of enforcing authorities and relevant partners to changes to the FSO by the Fire Safety Act 2021 and section 156 of the Building Safety Act 2022 which have been brought into force by the following statutory instruments:

The Fire Safety Act 2021 (Commencement) (England) Regulations 2022 (S.I.2022/544) which brought section 1 of the Act into force on 16 May 2022 (N.B. section 2 came into force on 29 June 2021, section 3 came into force on 16 May 2022 and section 4 came into force on 29 April 2021 due to the provisions contained within the Fire Safety Act 2021 itself).
The Building Safety Act 2022 (Commencement No.4 and Transitional Provisions) Regulations 2023 (S.I. 2023/362) which brought section 156 (except subsection (4)) into force on 1 October 2023.

2. This circular does not constitute legal advice. It is not a statement of law, nor is it intended to provide a comprehensive description or interpretation of the provisions of the FSO. It is intended to supplement guidance note 1 and the expectation is that all enforcing authorities ensure that their enforcement strategies and operational policies reflect the provisions of the FSO, as amended.

3. Additional guidance issued by the Secretary of State to support compliance with and enforcement of regulations made under article 24 is published separately, as is guidance made under article 50. The government continues working with delivery partners to keep fire safety legislation and supporting guidance under review to help reduce the risk of fire to public safety in the built environment.

Question 2

Background

Accepted Answer

4. In response to the Independent Review of Building Regulations and Fire Safety, the Home Office issued a call for evidence on the application of the FSO. The outcome of this consultation and the Phase 1 report of the Grenfell Tower Inquiry informed the legislative proposals outlined in the Fire Safety consultation in 2020 to strengthen the FSO which have subsequently been brought into effect by the legislation outlined below.

5. Section 1 of the Fire Safety Act 2021 clarifies the parts of premises to which the FSO applies in buildings containing two or more sets of domestic premises. Section 2 of the Fire Safety Act 2021 creates the power for the Secretary of State to make regulations to amend the FSO for the purpose of changing or clarifying the premises to which it applies 鈥� for example, a further clarification could be made where there is a building containing two or more sets of domestic premises.

6. Section 156 of the Building Safety Act 2022 (excluding subsection (4), which has not yet been commenced) introduced various amendments including specific requirements for responsible persons to provide specified fire safety information to residents of buildings containing two or more sets of domestic premises and to provide information to a new responsible person. Further detail is provided below on the updated amendments.

Question 3

Description

Accepted Answer

Clarification of the parts of premises to which the FSO applies

7. The Fire Safety Act 2021 amends article 6 of the FSO to clarify that in buildings containing two or more sets of domestic premises, the Order applies to the building鈥檚 structure, external walls (including, doors, windows, and anything attached such as balconies), and any common parts, as well as all doors between domestic premises and those common parts. The aim is to remove any ambiguity around which parts are covered and thereby aid the consistent application and enforcement of the FSO in such buildings in relation to their:

Structure 鈥� the construction and layout of the building should be visibly built to resist early structural collapse in the event of a fire. Intrusive surveys should only be necessary where there is cause for serious concern about the fire safety risks that the structure of the building could pose.

For avoidance of doubt, the government鈥檚 intention in referring to the 鈥渂uilding鈥檚 structure鈥� is that consideration of this matter should comprise a visual inspection of the construction and layout of the building (e.g. compartmentation) to ascertain, based on the information available, that the building was correctly designed and built to resist early structural collapse in the event of a fire. In addition, effective compartmentation is fundamental to ensuring adequate fire safety in blocks of flats. It is therefore vital to check the common parts to ensure that floors and walls are in good condition and that there are no openings that would permit uncontrolled spread of fire and smoke.
External walls 鈥� the FSO applies to doors or windows in external walls, any other opening (e.g. vents) and any attachment to the exterior of those walls such as cladding, insulation, fixings or balconies.
Doors 鈥� flat entrance doors and any other doors adjacent to common parts that provide 鈥� or line 鈥� escape routes from multi-occupied residential buildings are within scope of the FSO. Therefore, such doors should be visually inspected for compliance and maintenance as fire doors, with the cooperation of residents as appropriate.

In the case of any leasehold flat, arrangements will need to be made by the Responsible Person with the leaseholder to grant access to their flat. The leaseholder may have a statutory duty to comply with the FSO if they have control of the premises to any extent. In the event of an impasse, a Court Order can be obtained for this purpose. However, the intention is that this legal right of access to leasehold flats for the Responsible Person can be facilitated by the Building Safety Act 2022 in high-rise residential buildings, and any new leases should include such a condition to that effect.

8. The intended outcome of this amendment is that all fire risk assessments for buildings containing two or more sets of domestic premises must take these parts of the premises proportionately into consideration. Where this requirement has not been met in full, enforcing authorities retain discretion in determining the type of enforcement intervention most appropriate to achieve the desired compliance outcome on a case-by-case basis.

For example, the fire risk assessment for a house converted into two apartments must take into consideration the structure, external walls, and individual flat front doors where the doors lead onto any shared internal space, such as a shared hallway or stairs leading to the first floor flat.

Duties of the Responsible Person

9. Section 156(2) of the Building Safety Act 2022 amends article 5 of the FSO by extending the range of duties that must be complied with, to include articles 22A and 22B.

Recording of fire risk assessments:

(a) Section 156(3) of the Building Safety Act 2022 amends article 9 of the FSO so all Responsible Persons must now record their fire risk assessment in full.

Previously, the requirement was to include only the 鈥渟ignificant findings鈥� of the assessment along with measures which have been or will be taken by the responsible person to meet their obligations under the FSO and any group of persons identified as being especially at risk. However, all findings must now be recorded in full.

This is so it is easier for enforcing authorities to evidence a breach of the Responsible Person鈥檚 duties under the FSO and to make it easier for the Responsible Person to evidence their approach to compliance. It can also be used to inform any relevant person on the premises of the fire safety risks in the building and how they are being safely and appropriately managed.

Accordingly, article 29(5) of the FSO is amended by section 156(9) of the Building Safety Act 2022 because there is no longer a need to require the Responsible Person for a premises subject to an alteration notice to record separately their significant findings following the risk assessment. This will have already been recorded in accordance with obligations under article 9.

For example, a shopkeeper who works as a sole trader or employs at least one part-time assistant must now record their fire risk assessment to produce to an inspector or other person as evidence of their approach to the management of fire safety for any employee and visitors or customers on their premises.

Equally, a Responsible Person for the common parts of a block of flats where there are no employees must record their fire risk assessment to evidence their approach to ensuring the fire safety of residents, visitors and any maintenance contractors.

Recording of fire safety arrangements:

(b) Section 156(5) of the Building Safety Act 2022 amends article 11 of the FSO so all Responsible Persons must now record their fire safety arrangements for the effective planning, organisation, control, monitoring, and review of their preventive and protective fire safety measures.

Previously the scope of the Responsible Person鈥檚 obligations under this article was more limited. This amendment enables enforcing authorities to assess the adequacy of arrangements in place in relation to the size and nature of the use of the premises. In addition, the recording of this information assures relevant persons of the effective management of fire safety where they work or live.

Accordingly, article 29(5) of the FSO is amended by section 156(9) of the Building Safety Act 2022 because there is no longer a need to require the Responsible Person for a premises subject to an alteration notice to record separately their fire safety arrangements. This will already have been recorded in accordance with obligations under article 11.

Provision of fire safety information to residents:

(c) Section 156(6) of the Building Safety Act 2022 inserts new article 21A into the FSO which specifically relates to buildings containing two or more sets of domestic premises.

This amendment specifies the fire safety matters that the Responsible Person must communicate to residents of the domestic premises. This will enable residents and enforcing authorities to hold the Responsible Person to account on the management of fire safety and the needs of residents in their building. This also gives residents access to relevant fire safety knowledge and reassurance about the building they live in.

The information provided to residents must be relevant and comprehensible to them, and includes:

the risks to residents identified in the fire risk assessment
the preventative and protective measures taken in response to risks identified
the name and UK-based address of the Responsible Person or person acting on their behalf at which they will accept notices and other documents
the name of any person appointed to assist the Responsible Person with making or reviewing the fire risk assessment, and any other person appointed to implement firefighting measures
any risks to residents identified by other Responsible Persons in the building
any other matters specified in regulations made by the Secretary of State

The Responsible Person must keep a record of the relevant fire safety matters, which enforcement authorities can audit, and may request copies, to check compliance.

For example, Responsible Persons of buildings containing two or more sets of domestic premises are required to provide information about relevant fire safety matters to residents in their buildings.

The intention of this provision is to ensure that residents have access to relevant fire safety information about the building they reside in to help ensure they are safe and feel safe in their homes. This information may need to be updated after the fire risk assessment is reviewed, for example, but must be updated to reflect relevant changes of circumstance.

Co-operation and co-ordination between Responsible Persons:

(d) Section 156(7) of the Building Safety Act 2022 amends article 22 of the FSO to specify the actions that Responsible Persons for the same building or otherwise sharing duties for a premises, must take to support and demonstrate compliance with their co-operation and co-ordination duties. The required actions are:

to take reasonable steps to establish whether there is any other Responsible Person and, if so, to exchange:
- their name
- their UK address (where they, or another person acting on their behalf, will accept notices and other documents), and
- the part of the premises for which they consider themselves to be the Responsible Person
to keep a record of that information

Where this requirement has not been met by one or more of the Responsible Persons in question, enforcing authorities may use evidence recorded by the Responsible Persons to determine fault and the type of enforcement intervention most appropriate to achieve the desired compliance outcome with each Responsible Person on a case-by-case basis.

For example, in a mixed-use building comprised of residential and office floors, there is at least one Responsible Person for the office part and at least another one for the residential part of the building.

Even though they may not share duties for the same premises within the building because neither of them is the building owner, they must work together (and, as appropriate, with the building owner) to ensure their fire safety activities enable them to comply with the FSO (such as ensuring fire risk assessments take into account risks identified by the other(s), any fire escape is not obstructed, and informing each other of a defective fire alarm system or fire compartmentation risk).

(e) Section 156(8) of the Building Safety Act 2022 inserts a new article 22A into the FSO.

Article 22A specifies the relevant fire safety information that any outgoing Responsible Person must give to a new Responsible Person. It also imposes a requirement on the Responsible Person to keep a record of such relevant fire safety information for the purpose of planning for the handover of this information to a new Responsible Person.

The sharing of information will assist the new Responsible Person to comply with their duties, such as the undertaking (or review) of a fire risk assessment for their premises and will support the continuity of the management of fire safety. The information shared with the new Responsible Person must include:

records kept in relation to fire risk assessments and reviews
identity of any person(s) appointed to assist with the making of or review of the fire risk assessment
the name and UK address of any other Responsible Person(s), or someone acting on their behalf, that they must cooperate with and, in the case of higher-risk buildings regulated under the Building Safety Act 2022, the identity of any Accountable Person(s)
fire safety information provided by a person carrying out building work following completion of works under regulation 38 of the Building Regulations 2010 or, in the case of higher-risk buildings regulated under the Building Safety Act 2022, regulation 39 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023
any other information specified in regulations made by the Secretary of State

Enforcing authorities may use this information to determine whether the current or new Responsible Person is complying with the FSO, both in preparation for a future handover and by reviewing the information handed over to the new responsible person as required under this article where applicable. For enforcement purposes, the intended outcome is that the current Responsible Person complies with this requirement for an eventual successor to take over their fire safety duties.

Where there is evidence of non-compliance by a previous Responsible Person, this information may be relevant to use for enforcement purposes if that same individual or entity retains Responsible Person duties for other premises located in the enforcing authority鈥檚 area. In these cases, the focus of an intervention with the new Responsible Person should be their compliance with the FSO through the provision of advice as necessary.

For example, the departing Responsible Person must obtain and provide the specified information in an auditable way in preparation for handover to the incoming Responsible Person, before they are no longer the Responsible Person.

If the departing Responsible Person is not able to identify the incoming Responsible Person it is envisaged, they should ascertain the identity with the building owner and/or manager of the building and then provide the relevant fire safety information to the incoming Responsible Person, or, failing that, they should provide the relevant fire safety information to the owner of the building. The owner of the building, as Responsible Person, should then make arrangements to provide this information to the incoming Responsible Person.

Co-operation between Responsible Persons and Accountable Persons:

(f) Section 156(8) of the Building Safety Act also inserts a new article 22B into the FSO which specifically relates to premises which consist of or include a residential unit in a higher-risk building regulated under the Building Safety Act 2022.

Article 22B requires the Responsible Person to take such steps as are reasonably practicable to identify any Accountable Person(s) in relation to the premises. If there is, then the Responsible Person and Accountable Person must cooperate so that the Accountable Person can carry out their duties under the Building Safety Act 2022. This is intended to support a whole system approach to fire safety management in higher-risk buildings.

Where there is a breach of this duty, as with any other duty under Part 2 of the FSO, a Responsible Person may face the risk of enforcement action under Part 3 of the FSO, proportionate to the risk arising from that infraction and resulting risk to the safety of relevant persons.

For example, the Responsible Person鈥檚 fire risk assessment for the common parts of a high-rise residential building may contribute to the Accountable Person鈥檚 safety case report, and the Responsible Person may coordinate activities for the provision of fire safety information to residents with the Accountable Person to combine this information into the resident engagement strategy.

In practice, the Responsible Person should also make the Accountable Person aware of any change in fire safety risks identified and precautions taken in the common parts of the building, and vice versa in relation to building safety risks.

Recording of significant findings and fire safety arrangements in premises subject to an alteration notice:

(g) Section 156(9) of the Building Safety Act amends article 29(5) of the FSO to remove the duty on a Responsible Person for a premises subject to an alteration notice to record separately their significant findings and their fire safety arrangements, given the full fire risk assessment and the fire safety arrangements must now be recorded in all circumstances under article 9 and article 11 respectively 鈥� see 9(a) and 9(b) above.

Levels of fines for breaches of the FSO

10. Subsection 156(10) of the Building Safety Act 2022 amends article 32 of the FSO to extend the range of duties to which it applies to include new articles 22A and 22B (in line with changes to article 5), and to remove the previous maximum cap of 拢1,000 on fines imposed for the offences listed below. This brings them in line with financial sanctions on summary conviction (unlimited fines to be set by a Magistrates Court) for similar types of offences to encourage compliance. The offences are:

failure to comply with requirements relating to the installation of luminous tube signs under article 32(1)(e)
failure to comply with any requirements imposed by an inspector under article 27(1)(c) or (d)
impersonation of an inspector under article 32(2)(f)

Status of Article 50 guidance about the discharge of duties under the FSO:

11. Section 3 of the Fire Safety Act 2021 and section 156(11) of the Building Safety Act 2022 also amend article 50 of the FSO which requires the Secretary of State to make guidance available to assist Responsible Persons to comply with the FSO.

The effect of these amendments is that, where an enforcing authority alleges that contravention of FSO articles 8 to 22B or regulations made under article 24 have occurred, article 50 guidance can be used as a benchmark for compliance. In any proceedings, proof of a failure to comply with applicable guidance may be relied upon as tending to establish that there was a contravention, and conversely, proof of compliance may be relied upon to establish that no contravention has occurred.

The intention is that Responsible Persons and enforcing authorities can consistently refer to this guidance to satisfy themselves that the intended compliance outcomes are met and if necessary, so can a Court.

For example, even if Responsible Persons do not have particular experience in an element of their duties, they can rely on having followed relevant guidance to demonstrate reasonable compliance with their FSO duties in the event of any alleged breach of the FSO coming before a Court.

An enforcing authority would be more likely to support and advise Responsible Persons and any appointed person who can demonstrate that they have followed article 50 guidance, as to what they may or must do to better comply with the FSO in the event of an unsatisfactory first audit.

Conversely, Responsible Persons or any appointed person acting in breach of the FSO through wilful or neglectful ignorance of article 50 guidance would face the risk of more robust enforcement action, proportionate to the risk to relevant persons.

Question 4

Resources

Accepted Answer

Guidance on regulations made under article 24:

Guidance on regulations made under article 50:

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