Landlords, operators and managers of buildings in England that contain 2 or more residential units which share communal spaces will be impacted by the Fire Safety (England) Regulations 2022 (the "Regulations") that come into effect on 23 January 2023. They are laid under the Regulatory Reform (Fire Safety) Order 2005 ("Fire Safety Order"), and implement the majority of the recommendations set out in the Grenfell Tower Inquiry Phase 1 report. Broadly, the Regulations impose additional fire safety duties on Responsible Persons, with criminal sanctions for non-compliance.
Are you ready for the Fire Safety (England) Regulations 2022?
- Which buildings are within scope?
- Who are the Responsible Persons?
- What are the fire safety duties imposed under the Regulations?
- What should landlords do in order to ensure compliance?
- Who will pay for the costs of compliance?
- Are there any useful guides that can be read in order to find out more?
The Regulations apply to all buildings in England that (1) comprise two or more domestic premises, and (2) contain common parts through which residents would need to evacuate in an emergency. This includes the residential parts of mixed-use schemes, blocks of flats (whether purpose-built or conversions), student accommodation, houses in multiple occupation, and seniors housing.
The Regulations are not intended to impact on houses occupied as a single private dwelling, or maisonettes, where two flats exist within a converted house and there are no common parts through which an individual would evacuate in the event of a fire. The Regulations do not apply to domestic premises within the House of Commons or the House of Lords or to military premises.
The definition of "Responsible Person" follows that in the Fire Safety Order, which is:
- employers, where the common part of a residential building is a workplace and the employer is in control of it. This can occur if, for example, a caretaker or concierge is employed, or the communal parts of the building are used for commercial purposes;
- people who control the common parts of the premises in connection with the carrying on of a trade, business or other undertaking, ie a business tenant, the operator of a hostel or student block, or a property management agent; or
- the owner, where the property is empty or the person in control of the common parts of the premises is not carrying on a trade, business or other undertaking.
The Government's guidance clarifies that:
- owners cannot decide to “make” someone else the Responsible Person, nor can the responsibility for compliance with either the Fire Safety Order or the Regulations be delegated to others (though the Responsible Person will often decide to employ specialist contractors to assist them in compliance); and
- there may be circumstances in which there is more than one Responsible Person within the same building.
There could also be "duty holders" who share some of the responsibility for fire safety. The extent of their obligation will depend on (1) the level of control that they have over the premises, and (2) the terms of any contracts and/or tenancy agreements. This category of person could include professionals (such as fire risk assessors or fire alarm engineers) and tenants (depending on the level of control that the tenant has over the common part of the building, for example if they have obligations to undertake maintenance or repairs).
There are 3 levels of obligation, depending on the height of the building:
(i) in all multi-occupied residential buildings, Responsible Persons must provide residents with fire safety instructions and information on the importance of fire doors;
(ii) in residential buildings over 11 metres in height, Responsible Persons will be required to undertake annual checks of flat entrance doors and quarterly checks of all fire doors in the common parts; and
(iii) in high-rise residential buildings (defined as those of at least 18 metres in height or at least seven storeys tall), Responsible Persons will be required to:
- provide their local Fire and Rescue Service ("FRS") with up-to-date electronic building floor plans and place a hard copy of these plans, alongside a single page building plan which identifies key firefighting equipment, in a secure information box on site;
- provide their local FRS with information about the design and materials of the building’s external wall system, and to inform them of any material changes to these walls, and also to provide information about the level of risk that the design and materials of the external wall structure gives rise to and any mitigating steps taken;
- undertake monthly checks on lifts intended for use by firefighters, and evacuation lifts in their building, and check the functionality of other key pieces of firefighting equipment. They will also be required to report any defective lifts or equipment to their local FRS as soon as possible after detection if the fault cannot be fixed within 24 hours, and to record the outcome of checks and make them available to residents;
- install and maintain a secure information box in their building. This box must contain the name and contact details of the Responsible Person and hard copies of the building floor plans; and
- install signage visible in low light or smoky conditions that identifies flat and floor numbers in the stairwells of relevant buildings.
Landlords who employ property management agents or who have entered into operating leases should check the terms of their asset management agreements/ leases to see if the agent/operator could be deemed to have control over the common parts of the building. If so, it would be prudent to ask them to confirm that they have put systems in place to comply with the Regulations, and to include verification of aspects of this (eg the presence of fire doors, signage, and secure information boxes) in their site visits. Landlords with control over the common parts of in-scope buildings will need to comply with the Regulations themselves.
Compliance is likely to mean incurring additional costs, such as fire consultants' fees, the installation of signage and the maintenance of lifts and fire-fighting equipment. The Regulations do not specify who is responsible for the costs of compliance, so it will be up to the parties involved in the ownership, management and occupation of in-scope buildings to decide how these costs should be borne. This will largely depend on the terms of the agreements made by the parties who are likely to be amongst those deemed to be Responsible Persons and/or "duty holders", such as occupational leases, property management agreements and operating agreements.
The Regulations will involve additional duties for landlords and property managers/operators, but they have been broadly welcomed as a set of proportionate measures that will improve the safety of residents of multi-occupied buildings.
Other recent fire safety changes
The Fire Safety Act 2021 altered the fire safety regime by specifying that, for all buildings with two or more sets of domestic premises, the Fire Safety Order applies to the structure and external walls (including cladding, balconies and windows) and all doors between domestic premises and common parts. Fire risk assessments will therefore need to be updated to take these structures into account.