Fire Safety Act 2021: Clarification for the Responsible Person

09 August 2021. Published by Alexandra Anderson, Partner and Katharine Cusack, Partner

The Fire Safety Bill (the "Bill") received Royal Assent on 29 April 2021 and is now known as the Fire Safety Act 2021 (the "Act"). Although the date has not yet been confirmed for when the Act comes into force, this is another significant development on the issue of fire safety.

Background

Fire safety has been a critical concern since the Grenfell tragedy in 2017. The Bill, first proposed in March 2020, was introduced to clarify who is responsible for managing and reducing fire risks in different parts of multi-occupied residential buildings, to prevent future tragedies occurring. 

The legislation brought new fire safety obligations to some leaseholders, building owners and managers for the building structure, external wall, common parts and doors between the domestic premises and common parts.

What changes will the Act bring?

The Act makes amendments to the Regulatory Reform (Fire Safety) Order 2005 ("the FSO") and extends the provisions of the FSO to the following parts of a multi-occupied residential buildings:

  • the building's structure, external walls and any common parts. The external walls include doors or windows in those walls, and anything attached to the exterior of those walls, e.g. balconies and cladding.
  • all doors between the domestic premises and common parts.

Under Article 3 of the FSO, the "responsible person" of a premise (either a building or any part of it) is the person who has control of the premises ("the Responsible Person"), which may include building owners, leaseholders or managers.

Since the scope and scrutiny of fire safety obligations have been increased, the Responsible Person needs to review and update the risk assessment processes accordingly. Once the risk assessment processes are published, the Responsible Person should apply the risk-based guidance (under Section 3 of the Act) in order to comply with their duties in Part 2 of the FSO.

The clarification provided under the Act, extending the provisions of the FSO set out above, means the Fire and Rescue Authorities can now better identify the Responsible Person for these parts. This will clear the path for enforcement action against and/or prosecution of any Responsible Person who fails to comply with the FSO, which could lead to unlimited fines and/or criminal prosecutions. 

Who will pick up the bills?

Even though the Act now provides better clarification on fire safety responsibilities, it does not mention who is to bear the cost of historical or future remediation works to the premises, for the fire safety compliance. Leaseholders could now face footing the bill for expensive remediation works including the removal of unsafe cladding. 

What has the Government done to protect leaseholders? 

The Government has announced that leaseholders in high-rise buildings above 18 metres will bear no costs for replacing dangerous cladding. They will be providing: (i) £5.1bn funding for cladding in high rise buildings over 18m/6 storeys; and (ii) a long-term, low interest loan for buildings between 4 and 6 storeys. 

This funding is unlikely to be sufficient to cover the bills. In addition, there is no mention of any funds to cover the other fire safety costs, such as internal compartmentation, insurance, etc. 

Insurance 

We have addressed the many issues brought about by fire safety in the surveying and insurance market in some of our previous articles. No doubt the Act is going to bring further issues for insurance in relation to the Responsible Person and those who are qualified to carry out fire risk assessments. RICS is already in the process of trying to resolve the problems surveyors face in this area with the training available for those qualified to carry out the risk assessments.  

What’s next?

The Government's updated risk guidance, which is set to be alongside the Act, is yet to be produced.  

Last month, almost a year following the draft, the Government introduced the Building Safety Bill (BSB) to Parliament. The BSB is designed to further clarify where the responsibility for managing safety risks lies throughout the design, construction and occupation of buildings in scope. In order to achieve this, some of the measures introduced include: a new regulator to oversee the building process (with tougher sanctions at their disposal); changes to the law on limitation; changes to the regulation of construction products; changes to the FSO regarding the maintenance of fire safety records; and new dutyholder and Accountable Persons regimes.  Look out for our further update on the BSB next week.

The Act remains silent on who bears the costs of ensuring fire safety and the BSB does little to save leaseholders from the eye-watering sums that will need to be incurred to remove and replace historically unsafe building materials. The Government now faces a backlash from its own party, as well as others, with the opposition calling it a "betrayal" of leaseholders.  The BSB will now have to make its way through the House of Commons and the House of Lords before it becomes law.  

If you would like to understand more about the impact of the Act, please contact Alex Anderson or Kat Cusack for further information.