Purported breaches of the Regulatory Reform (Fire Safety) Order 2005 (the “Order”) are a current issue in operational PFI projects. Apparent defects in the passive fire protection (“PFP”) measures installed at the time of construction have led to significant deductions being levied for alleged breach of the relevant safety condition. Any breach of the Order may be prosecuted, even absent a fire, and therefore everyone in building construction, management, maintenance and operations need to understand their responsibilities under the Order.
The Order uses a risk-based approach to fire safety with risk assessments informing the steps needed to achieve a safe state of affairs. Enforced by the 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 (the “RP”). The RP will always be the employer and not an individual designated for the purpose. There is frequently more than one RP (especially in an operational PFI building).
The duties of the RP are also imposed upon anyone else who has, to any extent, control of the premises so far as the requirements relate to matters within their control.
What must be done?
General fire precautions must be taken to ensure, so far as is reasonably practicable, the safety of employees; and in relation those who are not employees (e.g. hospital patients, school pupils), and 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;
- fight fires;
- detect fires and give warnings;
- 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.
This means appointing a competent fire risk assessor to carry out a suitable and sufficient assessment and record the significant findings which must be acted upon. This should ensure the appropriate precautions are identified.
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.
Some PFI buildings are said to be falling foul of the Order, particularly in relation to the PFP measures installed (or not) at the time of construction.
The aim of PFP is to minimise and slow the spread of fire, utilising compartmentalisation and fire resisting materials to contain the fire within its location of origin. However, these are often hidden, located within ceiling voids or concealed by surrounding construction so an audit is not always easy.
Substandard PFP measures can amount to a breach of the relevant Safety Condition in the payment mechanism where there has also been a breach the Order. As such, everyone involved in a building needs to be clear as to their responsibilities to avoid potential contractual and criminal liability.