First published in Partnerships Bulletin.
A particular interest has arisen recently in operational PFI projects due to purported breaches of fire safety legislation due to the discovery of apparent defects in the passive fire protection ("PFP") measures installed at the time of construction. This has led to significant deductions being levied for alleged breach of the relevant safety condition. In addition to the potential deductions and payment mechanism remedies, it is worth noting that any defect amounting to a breach of the The Regulatory Reform (Fire Safety) Order 2005 (the “Order”) is capable of founding prosecution, even absent a fire. As such, everyone in building construction, management, maintenance and operation needs to be clear as to their responsibilities to also avoid potential corporate and individual criminal liability arising.
Fire safety law
The Regulatory Reform (Fire Safety) Order 2005 (the “Order”) was a consolidating piece of legislation that introduced a risk based approach to fire safety. Derived from health and safety law the Order brought to fire safety the familiar concept of risk assessment, informing the steps needed thereafter to achieve a certain safe state of affairs. Enforced by fire service, the Order creates criminal offences for non-compliance and equips the regulator with a significant enforcement armoury.
Who holds the duties?
The obligations of compliance belong to the Responsible Person, of which there can be more than one. In a workplace, the Responsible Person will always be the employer and not an individual designated for the purpose. There is frequently more than one Responsible Person and indeed this is likely always to be so in a building constructed under a PFI umbrella.
The duties of the Responsible Person are also imposed upon anyone else who has, to any extent, control of those premises so far as the requirements relate to matters within their control.
What must be done?
The fundamental duty is to take general fire precautions to ensure, so far as is reasonably practicable, the safety of any of employees; and in relation to relevant persons who are not employees (e.g. hospital patients, school pupils), to take such general fire precautions as may reasonably be required in the circumstances of the case to ensure that the premises are safe.
“General fire precautions” encompasses the measures needed to:-
reduce the risk of fire and fire spread on the premises;
secure the means of escape which are to be capable of being safely and effectively used;
detect fires and give warnings; and
identify and implement actions to be taken in the event of fire, including the instruction and training of employees and the measures needed to mitigate the effects of a fire.
In practice, this means appointing a competent fire risk assessor to carry out a suitable and sufficient assessment of the premises, following which the significant findings must be recorded and acted upon. Taking this risk based approach should ensure that the appropriate and property specific general fire precautions are identified.
What constitutes a breach?
An actionable criminal breach arises where there has been a breach of the Order and that breach places one or more relevant persons at the risk of death or serious personal injury in the event of a fire.
Fire safety in PFI projects
Much has been made of alleged shortcomings in a variety of PFI buildings around the country, which are said to be falling foul of the Order particularly in relation to the PFP measures installed (or not) at the time of construction.
PFP measures are one component part of achieving structural fire protection in a building. The aim of PFP measures is to minimise and slow the spread of fire throughout a building, utilising compartmentalisation and specific fire resisting materials to contain the fire within its location of origin so far as possible. This may allow the building to operate a “stay put” policy in the event of a fire, minimising evacuation requirements. In other cases, the use of PFP may allow sufficient time for all building occupants to leave safely.
Inherent in the character of PFP measures however is their hidden nature. Often located within ceiling voids or concealed by the surrounding construction, an audit of such measures and their continued efficacy is not always advisable, possible or even considered. Indeed it is often the case that a fire will expose shortcomings in construction that are not evident (or indeed often appropriately part of) a fire risk assessment. However, substandard passive protection measures can amount to a breach of the Order but importantly only where the problems identified would place building occupants at risk of death or serious personal injury in the event of a fire.
What action can you take?
Identify your role in the building; are you a Responsible Person or are your duties more limited?
Either way, ensure there is a co-ordinated approach by all stakeholders to meet the overall aim of achieving fire safety within the property.
Review your fire risk assessment; is it suitable and sufficient?Is it due for review?
Ensure that all fire risk assessments are completed by true fire safety professionals; not by health and safety consultants branching out or by contractors who have a vested interest in finding problems and selling you solutions.Consider those on the National Accredited Fire Risk Assessors Register.
Consider what you understand the PFP measures within the building to be.Review the as built drawings and provide as much information as possible to your risk assessor before their review commences.
Identify the type of fire risk assessment you require and provide clear instructions.Do you need a destructive survey of your entire building or will a visual inspection suffice?
Where shortcomings are identified, agree who will rectify and how this will be done.A deficiency does not always equate to a criminal breach nor does your building (or any part of it) automatically become “unavailable”.There may be management actions that can be taken to reduce the risk to a tolerable level, e.g. increased fire warden patrols, an amended evacuation plan etc.
Do not ignore or treat lightly any correspondence or Notices from the fire service.They may be capable of appeal and there may be sound legal and commercial reasons to do so.
Even if there is no breach of the Safety Condition in PFI Projects where there are apparent defects in the passive fire protection measures, everyone in construction, management, maintenance and operation needs to be clear as to their responsibilities in fire safety law, as outlined above, to also avoid potential corporate and individual criminal liability arising.