Simpler and more rational? The evolution of regulatory fire safety

Fire Protection

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Simpler and more rational?

The evolution of regulatory fire safety person, getting it right can sometimes be a matter of life and death.

From a Fire Service perspective, the Fire Safety Order changed everything. Systems had to be established to determine (as part of the National Framework mandated Integrated Risk Management Planning process) the risks in their communities. Buildings were not all the same, businesses neither; so given finite resources, databases and inspection schedules were devised to help fire safety teams decide who to visit, when to visit and how frequently.

It resulted “in a big change in the way we behave,” recalls Jonathan Herrick, Lead Officer for Better Regulation at the Chief Fire Officers Association and regular FIRE contributor.

“We were no longer responsible for fire safety through fire certificates, but were instead the enforcing authority intended to ‘police’ it”.

In the early days of the Fire Safety Order, fire and rescue services took a black and white approach to their enforcement role. The guidance and letters developed by CFOA at

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fit for purpose, but if it is not followed,

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Radical Departure This was a radical departure. It used new and novel enabling legislation – the Regulatory Reform Act 2001. It took the Fire and Rescue Service firmly out of the past and into a new future where they were the enforcers and not the enablers. The emphasis for fire safety and risk assessment transferred to the responsible person, the one in charge of the premises.

For some businesses, it meant that fire safety became a consideration for the first time.

The notion of the responsible person placed a burden on people who had never seen themselves as responsible and for many it took time to realise that it was indeed their role and legal responsibility.

In March this year, Jonathan Evans MP said of the Fire Safety Order in a debate in Westminster Hall: “We believe that it is fit for purpose, but if it is not followed, tragic consequences can result.” He was talking about the tragic death of Sophie Rosser in London in August 2012.

Sophie died in the hallway of her apartment building and at the inquest into her death, the coroner noted failings in the management of the fire safety of the building, saying that her death could have been avoided. For the responsible

“We believe that it is

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t is slightly early to be celebrating ten years of the Regulatory Reform (Fire Safety) Order 2005, as it did not actually come into force until October 2006. However, enough time has now passed that it seems like a good time to take a look back at what difference it has made to non-domestic fire safety.

This article concentrates on the fire and rescue service perspective. A second article later this year will look at the impact from a business and industry point of view.

Frequently abbreviated to the Fire Safety Order, this is secondary legislation but by no means minor, as it repealed or amended 21 general Acts and 33 local Acts, and revoked or amended 25 pieces of secondary legislation. No wonder that the parliamentarians of the time noted that “the purpose of the proposal is to simplify and rationalise fire safety legislation”.

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In the first of two articles celebrating ten years of the Regulatory Reform (Fire Safety) Order 2005, FIRE Correspondent Catherine Levin reports on the impact on the Fire and Rescue Service

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Photo by Eddie Howland: www.eddiehowlandphotography.co.uk

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Photo by Eddie Howland: www.eddiehowlandphotography.co.uk

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that time were based on the new law and its understanding of it at the time.

On reflection, says Jonathan, the initial approach was, perhaps understandably, very legalistic. It was written for the benefit of enforcing authorities rather than those they were regulating and based on compliance with the complexities of the law.

As with all CFOA products, the guidance and letters it developed could be “adapted or adopted” by each fire and rescue service.

Inspecting officers were encouraged not to offer advice to the responsible person because of their enforcement role, in order to avoid any conflicts of interest. Although “it is very difficult for someone to comply with every requirement made by the Fire Safety Order,” notes Jonathan.

However, in the years since then, Jonathan says that fire and rescue services have become more confident and pragmatic about how they deal with the Fire Safety Order.

One such example of this is the duration of inspection. In the original audit form produced

by CFOA there were 28 pages for an inspector to complete and this often took many hours. In May of this year CFOA revised the audit process and issued a new, preliminary audit form after extensive consultation. It is now one page long and based on a principle of “safe enough”.

The change in government in 2010 led to a change in emphasis for regulation. The ‘one in, one (and now two) out’ principle reduced the volume of regulation on business. To assist this, the Better Regulation Delivery Office (BRDO) was created. Fire is just one of the many regulators that businesses have to face but there is no one regulatory body, instead there are 46 fire and rescue services in England enforcing the Fire Safety Order.

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Fire Protection

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Primary Authority Scheme One way to reduce the burden of enforcement on the fire and rescue service and larger businesses in particular was to develop the Primary Authority Scheme. According to the BRDO, a Primary Authority “offers businesses the opportunity to form a legally recognised partnership with one local authority, which then provides robust and reliable advice for other councils to take into account when carrying out inspections or dealing with non-compliance.”

The Regulatory Enforcement and Sanctions Act 2008 and the Enterprise and Regulatory Reform Act of 2013 set out and broadened the principles of the Primary Authority scheme.

The Primary Authority Register includes details of the 150 local authorities and more than 3,000 businesses that have formed partnerships.

Examples of fire and rescue authorities that are currently in the scheme include London and its very recent partnership with Coral betting shops, Hampshire and supermarket chain Lidl, West Yorkshire works with Asda, Tyne and Wear with Sainsbury’s and so on.

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“We were no longer responsible for fire safety through fire certificates, but were instead the enforcing authority intended to ‘police’ it”

it does not apply to smaller ones. To deal with this anomaly, the co-ordinated partnership approach has been developed for smaller businesses. This applies to groups of businesses that follow the same regulatory guidance and compliance regime.

So far there are two partnerships focused on smaller businesses. The Association of Convenience Stores is working with Surrey Fire and Rescue Service, and the British Frozen Foods Federation (BFFF) is working with Lincolnshire Fire and Rescue Service. Keiron Davey from Lincolnshire is trail blazing in this area, building on his already strong relationships with the BFFF; the extension of the primary authority principle to smaller businesses gave him and his partners the statutory basis on which to formalise the relationship.

It is an interesting approach that sees Lincolnshire Fire and Rescue Service firmly at the heart of fire safety for the frozen food industry, providing companies with generic advice and a source of information for their own risk assessments.

The BFFF is very complimentary about its working relationship with Lincolnshire, saying: “They skillfully balance their regulatory role whilst understanding the businesses objectives and provide an open and trusting approach embraced by our membership. We have over 2,500 premises signed up to the BFFF scheme with Lincolnshire Fire and Rescue Service.”

Given many of these companies will be too small to have their own in-house expertise, signing up to the co-ordinated partnership demonstrates to the local fire and rescue service a real commitment by the business to fire safety.

And that in itself is a real innovation and difference since the early days of the Fire Safety Order. The fact that many businesses now consider fire safety as an equal to other

Fire Protection

The extent to which the Fire Safety Order has simplified things, as per the parliamentarians’ wish from 2005, is not clear as there are many strong opinions on how the Order works and many arguments on nuance and detail. Speak to those working in this area and the word “simplify” simply does not come up.

should provide a solid, evidencebased foundation on

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lobbying of the new government about

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Safety Order”

Fire Safety Order Gaps Research For London Fire Brigade, the serious fires in housing in recent years with Lakanal House and the death of Sophie Rosser, highlighted above, provided the catalyst for them to commission research from the Building Research Establishment (BRE) to look at what gaps exist in the Fire Safety Order.

The terms of reference for this work (due to report this month) include a look at “any conflicts, misalignment or overlaps with other legislation”. Indeed, Nick Coombe from the London Fire Brigade’s regulatory fire safety department, notes that the: “overlap between housing and fire responsibilities is still problematic.”

Having consulted widely, the BRE report to the London Fire Brigade should be something all fire and rescue services will be interested in seeing. It should provide a solid, evidence-based foundation on which to base any lobbying of the new government about changes to the Fire Safety Order.

Through a combination of guidance from government, CFOA and sheer dint of learning, fire safety in non-domestic premises has had more attention than ever before.

In terms of improved fire safety outcomes, it is hard to know just how much the change in the approach brought about by the Fire Safety Order has made a difference. It is certainly time for someone in the sector to do some serious number crunching to provide some robust evidence and justify any future changes.

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High-profile Prosecutions In March this year a London hotelier was fined £200,000 and ordered to pay nearly £30,000 in costs after pleading guilty to seven offences under the Fire Safety Order. This was London Fire Brigade’s biggest ever fine against a private individual.

Back in November 2009, high street fashion chain New Look was fined a record £400,000 for fire safety breaches after a fire in April 2007.

It was the first case of a large business being prosecuted under the Fire Safety Order.

Andy Jack, who worked on the original legislation while a civil servant in government and now works for London Fire Brigade, agreed that the publicity generated after such large fines was a deterrent. Indeed, he notes that fire and rescue services see a surge in phone calls from businesses seeking advice after any major prosecution.

In the early days of the Fire Safety Order, “confidence was a big issue” recalls Warren Spencer, a specialist fire safety solicitor working with fire and rescue services mainly in the north of England. Officers were not used to being in court, but to their advantage, he says “courts love firefighters”, so with some training and experience, the issue of confidence slowly faded away.

In Warren’s experience over the past eight years, he has found a “great deal of ignorance about fire safety legislation” in business generally. He is convinced there needs to be more education for business that do not see fire safety as a priority. He talks about small and medium-size businesses that “have no regard to fire safety” and larger concerns that “do have regard to fire safety but show systematic failure in compliance.”

For those smaller businesses, particularly new ones, fire safety is not always top of the list of priorities and perhaps there is a role here for Companies House or other organisations that small businesses have dealings with in the early days to reference fire safety requirements. Those larger concerns require a different approach, and the Primary Authority scheme may go a long way to improve fire safety outcomes for big businesses.

Interestingly, in March this year there was a change to legislation that removed the cap on fines that could be levied on businesses being prosecuted in a Magistrate’s Court. This means that fire safety prosecutions no longer have to go to the Crown Court to trigger larger fines and that many more cases are likely to remain in the Magistrates Court.

Looking back over the past ten years, it is clear that the first iteration of the Fire Safety Order is by no means perfect. Fire and rescue services have worked with the new regime and adapted to its idiosyncrasies over time.

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parts of the regulatory regime, such as Trading Standards.

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Photo by Eddie Howland: www.eddiehowlandphotography.co.uk

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