Guidance on the Fire Safety Regulations 2022
The Government has issued guidance on the Fire Safety Regulations 2022/ 547 (FSR) which come into force on the 23rd January 2023. There are no transitional provisions in place. The Regulations will apply in England and Wales only.
The guidance is directed at Responsible Persons (RPs) and others owing duties under the Regulatory Reform (Fire Safety) Order 2005 (FSO), in relation to fire safety in residential buildings, such as a block of flats or student accommodation.
Further to Phase 1 and Modules 1 and 3 of Phase 2 of the Grenfell Inquiry the government recognised that there was a lack of consistency in the application of the FSO and issued guidance clarifying both how and when it was to be applied[1]. The Fire Safety (England) Regulations 2022 represents the Government’s response to the Phase 1 report and the further evidence heard in Module 1 and 3 of Phase 2. Importantly, the Regulations extend the duties imposed by the FSO and require a significant increase in the assessment of and functionality testing of fire safety systems.
Application of the Fire Safety (England) Regulations
The Regulations apply to all buildings in England that comprise two or more domestic premises including the residential areas of mixed use buildings.
The Regulations apply to:
a. the common parts of buildings including communal corridors and stairways;
b. flat entrance doors, the walls and floors that separate domestic premises from other domestic premises, plant rooms, parts of the building that are used in common by residential occupants;
c. All non domestic areas;
d. external walls of the building, including doors or windows within an external wall, and attachments to an external wall (e.g. balconies).
The obvious intent of the Regulations is to fill the lacuna created by the unsatisfactory drafting of the FSO. The Fire Safety Act 2021 clarified that the external envelope of a building is within the ambit of the FSO, the FSR goes further by ensuring further building areas are incorporated within the operational extent of the FSR in one piece of legislation.
Similarly to the FSO, the Regulations do not apply within individual flats however, dissimilarly they do apply to fire safety systems installed within flats such as sprinklers, and smoke detectors connected to a communal fire alarm system.
Enforcement is by the same enforcing authorities who have power to enforce and prosecute under the FSO. In respect of residential occupation the local fire and rescue authority will be the enforcing authority.
Responsible Persons
The concept of a Responsible Person (RP) is a creation of the FSO. However the FSR creates duties for the RP. In common with the general duties under the HSWA 1974 the duties under the FSO and the FSR cannot be delegated to others, notwithstanding that, the RP will commonly require the assistance of others to discharge their duties under the legislation.
The guidance note offers practical assistance as to the likely identity of the RP, being, within the meaning of the FSO, the person who has control of the premises in connection with carrying on a business. It is likely that the freeholder or the managing agents for the building or the residents’ management company will be the RP. If any part of the building is a workplace, the RP will be the employer in that workplace. The control based test for the RP set out within the FSO routinely leads to circumstances where there is more than one RP within the same building, however, the guidance goes onto point out that even in these circumstances, overall control of the building most commonly rests with the freeholder, managing agents or a residents’ management company.
The legal term of art ‘Responsible Person’ commonly leads to confusion. Those who are not legally qualified can sometimes fall into the error of expecting the RP to be a natural person, i.e. a person. It is far more likely that the RP will be a body corporate that is, a limited company, a partnership or a public limited company. The guidance expressly commends that duty holders take legal advice to identify the RP in the event that there is any doubt as to their identity.
General Duties of the Responsible Person under the FSR.
The FSR guidance note provides that RP’s must display fire safety instructions in a conspicuous part of the building. The instructions must be in a comprehensible form that residents can reasonably be expected to understand, and must address:
a. the evacuation strategy for the building (the guidance note recommends that either. stay put or simultaneous evacuation is directed as a minimum);
b. instructions on how to report a fire; and,
c. any other instruction that tells residents what they must do when a fire has occurred.
These instructions must be provided directly to new residents as soon as reasonably practicable after they move into their accommodation. Instructions should be reissued to all existing residents at periods not exceeding 12 months. Revised instructions arising from material changes to the building should also be communicated to residents.
The guidance requires the provision of fire door information to residents. In particular, RP’s must provide information to all residents to the effect that:
a. fire doors should be shut when not in use;
b. residents or their guests should not tamper with self-closing devices on fire doors;
c. residents should report any fault with, or damage to, fire doors immediately to the Responsible Person.
d. information about fire doors must be provided to residents as soon as reasonably practicable after they move into their flat and at periods not exceeding 12 months thereafter.
Duties of the Responsible Person (Buildings over 11m in height)
Fire door checks (Communal areas)
All fire doors in communal areas of a building must be checked at least every three months. Defects in fire doors, frames and self-closing devices should be rectified as soon as reasonably practicable. The guidance is clear that it is not intended that these checks should involve a detailed, technical examination of the fire doors, or of the original standard of installation, nor is it intended that these checks need to be carried out by specialists.
Flat entrance door checks
RPs must use best endeavours to undertake checks of all flat entrance fire doors at periods not exceeding 12 months. A record of the steps taken to comply with this requirement, must be kept. RPs must ensure that the entrance doors are self-closing and should fully close into their frames when the doors are opened at any angle and released, overcoming the resistance of any latch on the door. RPs should check that doors, frames and any glazing are undamaged (and that glazing has not, obviously, been replaced with glazing that might not be fire-resisting), and that any intumescent strips and smoke seals are also undamaged. Defects in the doors, frames and self-closing devices should be rectified as soon as reasonably practicable.
It is not intended that these checks should involve any more detailed, technical examination of the doors, or of the original standard of installation, nor is it intended that these checks need to be carried out by specialists.
Duties of the Responsible Person (High-rise buildings)
Signage
The principles that apply to this signage are as follows:
a. There should be signage that clearly indicates to firefighters the floor number on which they are located and the flat numbers on that floor.
b. When firefighters use a lift designed for their use to reach floors, the same signage should be clearly visible to them when the lift doors open.
c. The signs must be visible both in normal conditions, in low lighting or when lobbies and corridors are full of smoke.
Approved document B provides a a detailed sign specification[2] including the size of the lettering, the typeface to be used, the mounting height and suitable wording. RPs must ensure that the signs are maintained in good condition.
Secure information box
In the event of a fire in any high-rise residential building, it is important that certain information is readily available for the fire and rescue service. The FSR require that the information is held in a secure information box, which must be positioned at a location in or on the building that is readily accessible to the fire and rescue service. The box must be capable of containing the documents required by the Regulations, and it must be reasonably secure from unauthorised access and vandalism.
For the purposes of the FSR a secure information box must contain:
a. the name, address and telephone number within the United Kingdom of the Responsible Person;
b. the name and contact information of such other persons within the United Kingdom as are provided with facilities to, and are permitted to, access the building on behalf of the Responsible Person; and
c. a copy of the floor plans and building plan.
Secure information boxes must be inspected, at least annually, to ensure that they remain secure and accessible to the fire and rescue service. The information within the boxes must be updated whenever a material change to the building takes place.
Information on external wall construction
The cladding design of the external façade of the Tower proved to be an important issue in Grenfell. Some of the materials of construction of the Tower façade were shown in evidence to be flammable. The new guidance places an onerous burden on RP’s to prepare a record of the design of the external walls of the building, including details of the materials from which they are constructed. That record must be provided to the local fire and rescue service by electronic means. The record must identify the level of risk to which the design and materials of the external walls gives rise, as determined by the fire risk assessment that you are required by the Fire Safety Order to carry out. RP’s must also record any mitigating steps that have been taken in respect of that risk.
It goes without say that materials based risk assessments are technically involved and require the input of engineering professionals, it may be that RP’s will need to engage materials specialists in order to comply with the guidance. That approach will highly likely be necessary until such time as the fledgling Construction Product Regulator requires that product manufacturers furnish materials certification with their products. This point is made by the guidance note:
Other than in blocks of flats with external walls of traditional masonry construction, unless the above information is readily available and known to be reasonably accurate, determining the information required by the Fire Safety (England) Regulations will normally require special skills, not normally held by a typical fire risk assessor engaged to carry out the fire risk assessment required by the Fire Safety Order. Where necessary, you must seek the advice and assistance of someone with sufficient training and experience/knowledge. You will, however, remain responsible for compliance with the Regulations.
In the case of external wall construction that is known to be of traditional masonry construction, it might be reasonable to assume that the risk of external fire spread is acceptable without further investigation, in which case this should be recorded within the record provided to the fire and rescue service However, even in the case of low- risk, traditional masonry construction, if there are attachments (such as balconies or decorative cladding) that, because of their combustibility, might result in rapid external fire spread, further appraisal by a specialist is likely to be necessary.
The guidance mandates that, save for traditional masonry construction, the fire safety information provided will comprise the following:
a. an overview of the design of the external wall;
b. brief information on the materials of construction including insulation and cladding;
c. any known defects in the construction;
d. the level of risk presented by the external walls, cladding and any attachments (as determined, where necessary, by an appraisal carried out by specialists);
e. any mitigating steps that have been taken in relation to the risk as identified in the fire risk assessment.
The British Standards Institute has produced the publicly accessible standard PAS 9980:2022: Fire risk appraisal of external wall construction and cladding of existing blocks of flats, Code of practice. PAS 9980: 2022 provides a methodology for the fire risk appraisal of external wall construction and cladding of existing multistorey and multi occupied residential buildings.
The PAS is intended for use by competent fire engineers and other competent building professionals tasked with advising on the fire risk of external wall construction of existing blocks of flats. However, it is expected that the key outputs of this appraisal will also be useful to those for whom such appraisals are carried out and those who make decisions based upon the outcome of fire risk appraisal of external walls (FRAEW). There are a multitude of different stakeholders who will be involved in this process including architects, building control bodies, building owners, landlords, those with responsibilities for management of the external wall, building surveyors, contractors, fire safety engineers, fire and rescue authorities, fire risk assessors, insurers, local housing authorities and managing agents.
PAS 9980:2022 gives recommendations and guidance on undertaking a FRAEW, construction and cladding of an existing multistorey, multi occupancy residential building. The purpose of an FRAEW is to assess the risk to occupants from a fire spreading over or within the external walls of the building, and decide whether, in the specific circumstances of the building, remediation or other mitigating measures to address the risk are considered necessary. The PAS applies where the risk is known, or suspected, to arise from the materials of construction of the external envelope of the building, which includes the identification of combustible materials. The outcome of an FRAEW is intended to inform fire risk assessments (FRA) of multistorey, multi occupied residential buildings and other types of building, including student accommodation, sheltered and other specialised housing and buildings converted into flats, where the evacuation strategy will be similar in nature to a purpose-built block of flats.
These guidance objectives will raise very real resource and funding implications for many building owners. This is a clear attempt to shift both the cost and burden of regulation from the product manufacturer to the user. It is not difficult to see why in many quarters objection is being taken to the end user filling the lacuna created by ineffective safety regulation. The extent to which this approach will be successful remains to be seen. It is however, difficult to see how some of the guidance objectives can be achieved when the core information itself is not readily available and has not been provided to the level required in the guidance by the manufacturer. Any assessment of the flammability of the material and the fire safety risk which the material represents will need to be of practical utility to the fire and rescue services. To ensure that this guidance objective is achievable will highly likely involve a collaborative approach between the local Fire and Rescue Service, engineering professionals and RPs; it is unlikely that unqualified fire risk assessors will have sufficient experience or technical knowledge to satisfy the guidance objectives. It is likely that satisfaction of the guidance objectives will give rise to very real resource and funding implications for RPs and possibly other duty holders under the Building Safety Act 2021.
Floor plans and building plan
In the event of a fire in a large building, building plans are required by fire and rescue service crews. The FSR requires that RPs must prepare a plan for each floor of high-rise residential buildings unless the plan for each floor would be the same in all material respects.
The floor plans must identify the location of all lifts (identifying any lifts designed for use by firefighters or for evacuation purposes) and key fire-fighting equipment in the building including rising mains, smoke control systems and fire suppression systems.
RP’s must also prepare a single-page building plan, which details:
a. the environs of the building and its immediate surroundings;
b. details of the use of the building, for example for commercial or residential purposes;
c. access for fire and rescue appliances;
d. the dimensions of the building;
e. information on the number of storeys of the building and the number of basement levels;
f. information regarding the presence of maisonettes or scissor section flats;
g. inlets for dry rising mains;
h. inlets for wet rising mains;
i. the location of shut-off controls for any sprinkler systems;
j. access points for the building;
k. the location of the secure information box;
l. the location of the central controls for any smoke control system;
m. the location of any firefighting shaft;
n. the location of main stairways in the building;
o. the location of the controls for any evacuation alert system;
A hard copy of the floor plans and the building plan must be placed in the secure information box. Further the local fire and rescue service must be provided with an electronic copy of the plans. These plans must be kept up to date and the fire and rescue service provided with plans as they are revised.
Fire safety systems
In high-rise residential buildings there are multiple different fire safety systems. It is essential that all of these systems operate correctly in the event of fire. To promote good fire safety management the FSR requires routine checking of all such systems and associated equipment. These checks are in addition to the servicing and maintenance of the systems required by the Fire Safety Order.
RPs are required to ensure that operational checks are undertaken of the following systems on a monthly basis:
a. rising mains
b. lifts that are intended for use by firefighters.
c. evacuation lifts that are provided for the evacuation of disabled people in the event of fire
d. smoke control systems
e. fire suppression systems
f. fire detection and fire alarm systems, including any systems linked to other fire safety equipment, such as smoke control systems
g. evacuation alert systems (a visual check of the control and indicating equipment, but not testing of the system)
h. automatic door opening or closing systems linked to fire detection and fire alarm systems
RPs are required to keep records of all the above monthly checks. The records of these checks must be accessible to residents of the building.If any of these checks reveal a fault the RP must take steps the rectify the fault. If the fault cannot be rectified within 24 hours of its discovery, it must, as soon as reasonably practicable, be notified to the local fire and rescue service by electronic means, they must further inform the fire and rescue service by electronic means when the fault has been rectified.
Helpfully the National Fire Chiefs Council (NFCC) has developed a template for information sharing with fire and rescue services[3]. These templates provide a uniform means by which information can be communicated to the FRS in a format that is of operational utility.
Theses guidance led routine checks must confirm that the system or equipment is in efficient working order and in good repair, based on the relevant industry standard or on recommendations made by the manufacturers of equipment within an operators’ manual.
RPs should consider the safety implications of faults and the consequent need for mitigating measures to be put in place. In the event that a fault occurs the FRA may require revision, particularly in the case of faults that will be extant for some time. Faults which impact upon evacuation arrangements which require especial scrutiny. Mitigating measures will be required to ensure the safety of the residents, irrespective of the existence of fire safety system faults. The existence of a fault does not abrogate a duty holder from compliance with their duties under the FSO.
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[2] Approved Document B, Fire Safety 2019 edition incorporating 2020 signage amendments.
[3] https://www.nationalfirechiefs.org.uk/Information-sharing-with-fire-and-rescue-services.