I have regularly been asked about the enforcement of the FSO (FSO) in specialised housing since I began dealing with fire safety cases in 2006. For the most part, very little has changed over the past 12 years and my answers to such questions have always related to specific sets of premises and situations, as generic answers are almost impossible to give in this particular area.
There are numerous reasons for this. The main reason is that the FSO does not apply to domestic premises. As nearly all specialised housing involves a degree of private living accommodation, the extent to which the FSO might apply, will always be a difficult question.
Another significant reason is that there may well be numerous responsible persons or ‘persons with control’ with various responsibilities for the premises and/or relevant persons/residents, thus making enforcement a tricky proposition. Throw in the overlapping legislative regimes such as the Housing Act 2004, and the Health and Social Care Act 2008 Regulations; numerous enforcement regimes such as fire services, local authorities and care providers and it is not difficult to see why a consistent, clear and helpful enforcement strategy has yet to be found.
Which is why the Fire Safety in Specialised Housing guide produced on behalf of the NFCC (National Fire Chiefs Council) was hopefully anticipated. A clear, concise and practical guide to enforcement was exactly what was needed.
Unfortunately, it was not what we got. The guide (published 4 May, 2017) weighs in at a hefty 342 pages. So, not so concise. It does contain helpful sections in relation to the possible application (or not) of the FSO, the overlapping legislation and the roles of the CQC and local authorities. As a guide to the appropriate fire safety precautions for particular types of premises, it may well be extremely useful-but I wouldn’t know about that, as I am no fire safety expert-just a fire safety lawyer, hoping for some guidance in an admittedly difficult area.
But as far as enforcement goes, I have to say that I was disappointed. For example, Paragraph 30.1 tells us that where residents share a single house, in which all residents live in the manner of a single household, the FSO might not apply. Helpful?
Where the FSO does apply paragraph 30.4 tells us that the responsible person is, typically, a landlord, housing provider, management company, care or support provider or freeholder; and that in any single building, “There might be several responsible persons”. And if that wasn’t helpful enough, it continues to tell us that there may be other duty holders with similar responsibilities and duties and they could include “a wide variety of people, including, again, a management company, but also fire risk assessors.”
Any the wiser? I’m not. But don’t worry, I might not be that stupid. Paragraph 30.5 reassures me: “In some premises, it can be difficult to determine whether a particular party should be regarded as the Responsible Person or as, alternatively, a person on whom duties are imposed by virtue of a tenancy or contract”. Phew.
So who is the responsible person (RP) in such premises? Or what about a strategy for determining the right RP?
Paragraph 30.3 is more conclusive. “Within a workplace, the responsible person is the person who employs people to work there.” Really? I thought article 3 (a) of the FSO stated that this is only the case “If the workplace is to any extent under his control;”
In specialised housing the employer is likely to be a care provider, whose employees may provide care to relevant persons on the premises. Does the care provider employer have control over the workplace from a fire safety standpoint in that situation? Not if the premises are owned by the residents, or owned by the local authority.
Not much help to the humble fire enforcement officer faced with breaches in premises where there are vulnerable residents, who might not be able to self-evacuate or “stay put”, due to lack of purpose-built accommodation.
So what can we take from the guide from an enforcement point of view?
Primarily, we have to acknowledge that the FSO might not apply to the premises. That does not mean that there is no interested regulatory authority. The Housing Act is likely to apply, and CQC regulations are also likely to apply. The CQC regulations require those responsible for the care of the residents to do a person-centred risk assessment. This is not required by the FSO, but it is required by CQC regulations. Here, the guide quite rightly stresses the importance of co-operation, liaison and coordination between enforcing authorities.
Where the FSO does apply, the premises should usually be treated in the same way as flats and HMOs, and where the responsible person is the employer, the employer’s responsibility and duties are towards its employees and not necessarily towards the residents of the premises. Paragraph 30.8 states “The FSO imposes a general duty of fire safety care in respect of “relevant persons”. This includes anyone lawfully on the premises …. this does not imply that the FSO requires the provision of staff to evacuate residents in the event of fire, particularly in sheltered and extra care housing.”
So, can any practical guidance be given to the fire safety enforcement officer?
Well, firstly, it should be ascertained whether or not the FSO applies. If it does not, there should not be an attempt to shoehorn the premises into the remit of the FSO. It would usually be wise to ask who owns the premises and who, therefore, has control over the premises, such that fire safety precautions and measures may be carried out.
Secondly, if the FSO does apply, to which parts of the premises does it apply, and who is responsible for, or have control of that part of the premises? Remember, the employer may be a responsible person, but its duties and responsibilities will only be towards its employees, unless the care package provides otherwise. It may be necessary to see details of the care package that exists between the local authority care provider. It may also be necessary to see the lease which details the terms of the sheltered housing.
If the premises are owned by the local authority, and the local authority is providing the care, then surely the local authority will be the responsible person, or a person with control over premises.
The Guide does provide one good piece of practical advice. Paragraph 33.1, states, “Enforcement of measures required to protect vulnerable people should not be unduly restricted by focus on a single legislative regime. Moreover, care should be taken by enforcing authorities not to endeavour unduly to interpret legislation in a manner that was not intended by the regulators who drafted the legislation. Consideration should be given to the legislative regime that can most easily “get the job done”. This may involve co-operation between enforcing authorities.
In other words, if the FSO doesn’t apply, be prepared to walk away (once you’ve called the CQC and the local authority and told them ‘it’s over to you’).
Unfortunately, from an enforcement point of view, I didn’t find the guide at all clear, and although it informed me of the types of premises and potential parties involved, my day of reading felt rather wasted. My search for legal clarity was rewarded with this pearl of wisdom at para. 26.1:
“Ultimately, interpretation of legislation is a matter for the Courts…”
Excellent, hopefully some work there then.
Oh, and by the way, the Guide is, apparently, already “under review”.