Fire Safety Act 2021 receives Royal Assent
On 29 April 2021 the Fire Safety Bill – the subject of much debate and commentary – received Royal Assent. The Act applies in England and Wales.
It is a short piece of legislation: it contains just four sections and amends the current Regulatory Reform (Fire Safety) Order 2005 (FSO) in order to bring into law the recommendations made in the Phase 1 report of the Grenfell Tower Inquiry. Broadly, the Act ensures that there are more stringent fire safety measures in buildings with multiple occupiers. The Act is not yet in force – the different sections come into force at difference times, with some yet to be announced.
Key points to note
The Act addresses the following key points:
- It confirms that the FSO will apply to all residential buildings with two or more sets of domestic premises, regardless of the height of the building, when the Act comes into force.
- It brings within the scope of the FSO: the structure of the building, including external walls (doors, windows and attachments (including balconies) fall within the definition of external wall), all doors between the domestic premises and common parts and any common parts. Consequently, where these parts of a building fail to comply with the Act, the Fire Service may take enforcement action.
- It introduces ‘risk-based’ compliance. In essence, the Act provides that where applicable risk-based guidance (to be issued in due course by the Secretary of State) has been followed by the Responsible Person, there is a presumption that the provisions of the FSO have been complied with. Conversely, where the risk-based guidance has not been followed by the Responsible Person, then there is a presumption that the FSO has been breached.
The Responsible Person is defined in the FSO. Where the premises in question are not a workplace, then the Responsible Person is either the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by them of a trade, business or other undertaking (for profit or not), or, where this does not apply, the owner of the building is deemed the Responsible Person.
Leaseholders and cladding
The passage of the Fire Safety Bill through Parliament was particularly contentious as a result of the question of who should bear the costs of remedial works for dangerous cladding. A number of MPs and many members of the House of Lords sought to introduce an amendment to the Bill to ensure that leaseholders would not foot the bill for this work, because of the very high cost. However, the proposed amendments failed and the current position is that leaseholders are liable to bear the costs of the remedial works, where the lease allows the landlord to pass down the costs as part of the service charge. The government is in the process of introducing a long-term low interest loan scheme for buildings between 11 metres and 18 metres tall, whereby leaseholders’ liability for remedial costs would be limited to £50 per month (buildings over 18m in height should benefit from funding via the Building Safety Fund). The details of the loan scheme are expected to be set out in the forthcoming Building Safety Bill and should provide clarification regarding how a monthly cap of £50 could feasibly work where some tenants face bills into the hundreds of thousands of pounds (meaning that in some cases it could take more than 200 years to pay for the remedial works).
Despite the Act not yet being in force, it is advisable for building owners or managers to begin to update the fire risk assessments for buildings in their control (if they have not already done so), ensuring that the requirements of the Act relating to external structure (walls, windows, balconies) and the flat entrance doors which open onto common parts are included in the assessment. Issues around these items are already known to those owning or managing many of the buildings that will be caught by the Act as buyers of flats have been requesting Form EWS1 to indicate the safety of the external walls of apartment blocks in conveyancing transactions for some time.