Legal: Control brings responsibility

In the wake of the Grenfell tragedy, the focus is on the inquiry, what went wrong and how to prevent any type of repetition. The industry itself is under scrutiny about the cladding products used, and litigation is likely. There is, however, a risk that focus on a specific issue such as ACM cladding panels, however understandable, might cause a lack of consideration of the overall regulatory framework. Key to that is the relatively new and comprehensive fire safety regime encompassed in the Regulatory Reform (Fire Safety Order) 2005 (RRO). This order has a number of implications for the industry, and its remit is much wider than either cladding or just building owners. 

The first thing to note is that the order was introduced in late 2006, so in relative terms is a new(ish) piece of legislation (bear in mind we only got national building regulation in 1961). It was intended to be comprehensive and to merge all manner of competing, confusing and perhaps inconsistent legislation that had grown up over a number of years. 

The RRO was intended to produce a single regime based on risk assessment, fire prevention and mitigation measures. The focus was on risk and compliance with continuing monitoring and maintenance of standards/protections. Under the RRO, the term “risk” is defined as being “the risk to the safety of persons from fire”.

One key issue here is: who has ultimate responsibility for the fire safety of a building?

It is all about control. 

The definition in the order is something called the “responsible person”. This is intentionally a wide definition, and that almost inevitably means it is not easy to apply. For instance, while it catches the obvious candidates such as an employer if the workplace is to any extent under his or her control, it also catches a person who has control of the premises (as occupier or otherwise) where their control is in connection with their carrying on of a trade, business or other undertaking (for profit or not). 

The issue can become more complex in the context of multiple use or occupancy buildings, shared occupation, management companies and partly sold-off units. It is also an issue where a contractor is engaged on works to the whole or part of the premises. A building contract, for instance, often gives possession of the site to the contractor for the duration of the works.

The RRO bites on contractors because […]Being in control of a part of a property brings with it all the non-delegable fire safety duties under the regulations of a ‘responsible person’

The RRO bites on contractors because it makes it clear that any person who has, under contract or tenancy, an obligation to repair or maintain premises, or is involved in relation to the safety of the premises, is for the purpose of the RRO deemed to be in control of a part of the property. Being in control of a part of a property brings with it all the non-delegable fire safety duties under the regulations of a “responsible person”. 

The responsible person owes a number of “fire safety duties” that must be complied with. These duties are positive obligations and are generally non-delegable. This means that the responsible person will be liable for their implementation and/or lack thereof. 

The duties of the responsible person (under articles 8 and 22 of the RRO) include requirements to take general fire precautions to ensure that certain people are safe in the event of a fire, carry out a risk assessment and keep this under review, ensure that the premises, any fire safety equipment and emergency routes and exits are properly maintained and kept in working order, and appoint competent persons to help discharge certain duties.

Responsible persons must take “general fire precaution measures” such as measures to reduce the risk of fire on the premises and the risk of the spread of fire on the premises. This also includes elimination or reduction of risks from dangerous substances present in or on the premises. 

The RRO is concerned with the risk to a “relevant person”. This is a wide definition. It is defined as any person who is, or may lawfully be, on the premises and any person in the immediate vicinity of the premises who is at risk from a fire on the premises. 

The RRO applies equally to the internal and external areas of properties, and an area such as a cark park or loading bay will be encompassed by the duties required under the RRO. It does not apply to domestic premises, although the provisions do apply to the communal areas of a block of residential flats. A landlord/management company in control of a relevant part of the premises (for instance, retaining control of its communal parts) may be deemed to be in control of that part and would therefore have to comply with the fire safety duties under the RRO.

Liability for compliance with the RRO rests (primarily) with the responsible person and any person with an obligation to comply with fire safety duties under article 5(3). 

A person found guilty of an offence under the RRO is subject to an unlimited fine, but for the most serious offences proceedings can be brought in the Crown Court. That court has a power to imprison. In addition to potential criminal liability, the responsible person may also have civil liability arising from a breach of its statutory duty (under article 39).

If a responsible person has relied on a risk assessment (carried out by a competent person as defined by the RRO), it will be viewed as a mitigating factor but it will not absolve the responsible person of criminal liability. So the regime aims to prevent passing the buck.