In light of the recent tragic events in London, the issue of fire safety is currently to the forefront of everyone’s attention. In the context of an education institution’s properties, the Regulatory Reform (Fire Safety) Order 2005 ('the Order') sets out relevant obligations, which will be relevant to much of the operational estate as well as halls of residence. This article explores a couple of problem areas arising during property transactions and refurbishments.
To whom do the duties apply?
Duties lie with the ‘responsible person’, which is either the employer in the context of a work place, or the person who has ‘control of the premises’, in connection with the carrying on by them of a trade, business or other undertaking.
Education institutions hold a number of types of properties in their estates under various tenures. It can be difficult to determine who has ‘control' of a premises in the context of leasehold properties. Government guidance suggests that this can be both landlord and tenant, particularly where there is a split repairing responsibility or where the tenant occupies part. If there are common parts (such as in multi-occupier building), it is likely that the landlord/management company is the responsible person for these parts, with tenants being the responsible person for each unit. However, with certain types of sleeping accommodation, including student halls of residence, it will likely be the landlord or management company who is the responsible person for the whole of the facility. When acquiring premises be sure to get clarity as to whether/to what extent you have responsibility in respect of a specific property.
Specific Issues with Assessments
The responsible person must make a ‘suitable and sufficient' assessment of the risks to which relevant persons are exposed (Reg 9). This is not a particularly prescriptive duty; instead putting the onus on the responsible person to decide what is ‘suitable and sufficient’ given the nature of the property, the business and any other relevant factors. The issue may be complicated in relation to leases which often require that the tenant is responsible for all ‘statutory compliance’; an obligation the tenant may overlook or be uncertain how to comply with. There are no definitive criteria for a ‘suitable and sufficient’ assessment, but the Government’s guidance is useful, and is built around some key steps:
- identify the fire hazards
- identify people at risk
- evaluate, remove or reduce the risks
- record your findings, prepare an emergency plan and provide training
- review and update the fire risk assessment regularly.
New property? Be aware that when a property changes hands, responsibility to address the risk assessment falls on the new owner/occupier. A previous owner’s assessment may be informative, but the previous owner is unlikely to have faced the same set of risks as an education institution, so you’ll need your own assessment.
Renewal and replacement? There is no specified time frame for renewal/replacement of risk assessments. The Order and guidance instead refer to certain types of triggers. One such trigger is where material changes are made to the property. Consider whether any alterations affect an existing risk assessment. Even inserting demountable partitioning may affect the assessment, e.g. if the proposed escape route is no longer suitable. Changing the use of all or part of a building is also likely to trigger the need for a review, e.g. from administrative to teaching use.
A common issue with emergency exits
The responsible person must ensure that routes to emergency exits (and the exits themselves) are kept clear at all times. But do you control the escape route? Campuses are often located in close proximity to multiple neighbours. Where the emergency escape route for a property is over land owned or controlled by a private third party, if such route is not properly documented, then the third party may well block or alter this route, making it unsuitable and potentially putting the responsible person in breach. The right to use any third party land for escape should be properly documented. However, a seller/landlord often puts the onus on the purchaser/tenant to inspect and form their own views about the property. An institution should always inspect, prior to acquisition, to understand the escape route. We have seen education providers unable to make full use of a valuable property as a result of these issues. Flag any issues up with your solicitor early.
Why does this matter?
General compliance with regulations is, of course, reason enough, particularly as they are aimed at ensuring the safety of employees and students in the event of fire. However, specific reasons include:
- severe penalties for non-compliance, including fines or imprisonment
- lease and/or funding requirements
- buildings insurance requirements
- the risk of reputational damage.