05 June 2018

The Hackitt Review: what are the outcomes for fire safety regulations?

Fire safety management remains hugely topical, partly because of the resumption of the Grenfell enquiry, but also due to the publication of the independent Review of Building Regulations and Fire Safety, chaired by Dame Judith Hackitt.  The review published its final report in May 2018 and made a number of significant recommendations.  Although in the first instance, these will be intended to apply principally to buildings of more than 10 storeys which are wholly or partly residential, the review has also recommended extending some of its proposals more widely to other buildings used as living or sleeping accommodation.  This will have implications for those who operate hospitals, hotels, student halls of residence and boarding schools, amongst others.

What are the outcomes of the review?

The review proposes a root and branch reform of the existing regulatory framework.  Given that the Regulatory Reform (Fire Safety) Order, which forms the bedrock of fire safety legislation, was only enacted in 2005, it is clear how unfit for purpose the review has found the existing framework to be.

Other proposals for change include the creation of a Joint Competent Authority (JCA) which would comprise local authority Building Regulation teams, Fire Services and the Health and Safety Executive.  Regulatory powers of this new JCA would be commensurate with the range of options available to regulators such as the Health and Safety Executive at the present time.  The new JCA will have “teeth”.

There is much criticism of how projects are procured and delivered.  Accountability of all parties involved in a project is a key theme, and the review proposes the creation of very clear roles and responsibilities in relation to the construction and refurbishment of high-rise residential buildings in future.  In the first instance, it is likely that building owners will find themselves increasingly responsible and potentially liable for the actions of those they employ.  The model under consideration is the Construction (Design and Management) Regulations.

It is plain that the review also envisages penalties being significantly increased for future breaches of legislation. 

How will the changes be enforced?

The review promises major changes; but even leaving that aside, it is fair to say that the current enforcement regime is one in which companies can find themselves facing significant uncertainty and a multiplicity of hugely varying outcomes.  Prosecutions, in particular, can lead to variable decisions, which can leave businesses feeling that there is little consistency in terms of regulatory intervention, or in how courts approach the sentencing process.  Although there are not vast swathes of fire safety prosecutions every year, once proceedings are issued and a case reaches court, there are potentially serious risks for businesses. 

In part, this stems from the fact that there are no specific sentencing guideline for fire safety offences.  Guidelines were brought in for both environmental offences, and also for health and safety/corporate manslaughter.  These guidelines set out in some detail how a court should approach sentencing.  They came about in part because of a lack of consistency in sentencing practice in the Magistrates’ and Crown Courts.  Fire safety was expressly excluded from the scope of the health and safety/corporate manslaughter guideline, but in practice, it is the nearest in scope to the fire safety regime; and practitioners usually agree that a court should certainly have regard to it when sentencing businesses and individuals. 

The difficultly is that fire safety does not fit neatly into the sentencing guideline for health and safety/corporate manslaughter.  The guideline focusses very much on the degree of risk created by a company’s action (even if no-one is actually hurt).  Given that fire safety breaches that are the subject of prosecution almost always carry the risk that there could be serious injury or death, this tends to mean that fire safety breaches land at the very top of the guideline in terms of seriousness and therefore sentence.  Given that fines are potentially uncapped, it is easy to see how a business could be given a penalty that it simply cannot pay – especially as the penalty is now based on turnover (albeit courts are still meant to consider totality and the offending company or individual’s ability to pay). Outcomes can be business-critical, particularly for smaller or medium sized businesses.  Indeed, a review of the penalties imposed for health and safety breaches since the guideline came into effect, suggests that it is, in fact, the medium- sized businesses that fair worst in terms of the ratio between their turnover and the penalties that are being imposed on them.

The simple fact is that fire safety is now so high-profile because of Grenfell that courts feel emboldened to impose the most severe penalties they can justify.

There are also significant inconsistencies.  For example, in 2017, both Poundstretcher and JD Sports were fined for breaches that were very similar in nature and yet the disparity between the fines was £940,000.

It is not clear how quickly the Government will act on Dame Judith Hackitt’s Review, but it is safe to assume that it will do so and that Building Regulations and Fire Safety Legislation will be subject to a total rethink. 

What should businesses be doing now to prepare for these changes? 

Much will depend on the individual business, and the work it does.  However, as a general rule, these are some of the principal issues to consider:

  • The Hackitt review identified that “the fire safety sector is not as strong nor mature as other areas of engineering expertise, such as structural engineering”.  Companies need to be extremely careful when appointing experts in fire safety to advise during construction and/or refurbishment.  The fire safety sector encompasses a wide range of consultants and contractors of highly varying degrees of expertise and specialism.  It is vital that companies do not select consultants on price alone, or assume that fire safety is simply an “add-on”.  It is, in fact, fundamental to the project; and the ultimate fire strategy for the building must go hand-in-hand with the design process.  Beware of those who offer “off-the-shelf” for risk assessments and other solutions.   Documents and systems need to be proportionate, but will often also need to be bespoke.  Businesses would therefore be well advised to ensure that they obtain appropriate competent support on fire safety, and that their documentation and systems (including their fire risk assessment) are kept up to date;
  • Dame Judith Hackitt concluded that the Approved Documents published in support of the Building Regulations are “ambiguous and inconsistent”.  That will certainly not come as a surprise to many practitioners.  We are likely to see a move away from detailed guidance and towards a more outcomes- focussed basis of regulation.  This will shift the onus for ensuring compliance onto the person creating risk i.e. the developer or landowner who is constructing the building.  There will be a significant need for upskilling within the profession to understand what needs to be achieved in terms of fire safety, and what the respective roles of those involved in the project will be as regards fire safety. 
  • Quality assurance of products is also a significant issue that is highlighted by the report.  One example is cited where a door marketed as 30-minute fire resistant failed in advance of the 30 minutes when being tested.  Companies must ensure that they have full confidence in their supply chain and evidence that products will do what they say on the tin.  If needs be, businesses should consider taking advice from product safety consultants in order to devise a quality assurance protocol for their construction projects.

For more information, or to discuss in more detail, please contact Lyn Dario.

You can read the full Independent Review of Building Regulations and Fire Safety: final report here.