Fire Safety in Flats, Houses in Multiple Occupation & High-Rise Residential Buildings
INTRODUCTION
The legislative provisions in respect of fire safety in flats and houses in multiple occupation can be complex.
In England and Wales, fire safety in certain types of residential accommodation falls under the Housing Act 2004 (this Act extends beyond fire safety) and the Regulatory Reform (Fire Safety) Order 2005 (FSO). The arrangements appertaining to Scotland and Northern Ireland are detailed separately.
FLATS
In respect of domestic premises in England and Wales, the FSO applies to all common areas within flats, maisonettes, houses in multiple occupation (HMO) and sheltered accommodation in which personal care is not provided. This has been interpreted as applying to all parts of the premises other than within individual flats, and is intended to include compartmentation surrounding flats including the entrance/fire doors.
The FSO places a duty on the ‘responsible person’ to take such general fire precautions that will ensure, as far as reasonably practicable, the safety of all relevant persons. In the case of residential premises this will usually be the landlord, but in the case of absentee landlords where the ‘carrying on of the business’ is undertaken by a managing agent, it may be the managing agent.
General fire precautions include, where necessary:
measures to reduce the risk of fire occurring;
measures to reduce the spread of any fire through the premises;
measures in relation to the means of escape;
measures to ensure the means of escape can be safely used at all times;
firefighting measures;
means of fire detection and warning;
action to be taken in the event of fire;
mitigating the effects of fire.
In order to comply with the duties imposed by the FSO, the responsible person must carry out a fire risk assessment to identify what fire hazards exist at the premises and what measures have been taken (or will be taken) to minimise the risk.
If the organisation employs five or more people as a whole (not necessarily at the premises being assessed), the premises are a licensed HMO, or an alterations notice requiring the responsible person to do so is in force, the significant findings of the fire risk assessment and the actions taken must be recorded. Even when legally not required to do so, the recording of the significant findings is recommended ‘best practice’ as evidence that it has been carried out and to demonstrate what steps have been taken to manage fire safety.
The FSO is enforced by the local fire and rescue authority, but it is required to consult with the local housing authority (LHA) before taking enforcement action. In respect of HMOs, the local housing authority will normally take the lead enforcing role.
HOUSES IN MULTIPLE OCCUPATION
Under the Housing Act 2004 (applicable to England and Wales) and associated legislation, a building in the private rented sector is deemed to be an HMO if it:
is occupied by more than one household and where more than one household shares (or lacks) an amenity such as a bathroom, toilet or cooking facilities;
is occupied by more than one household and is a converted building, but not entirely self-contained flats (whether or not some amenities are shared or lacking);
is converted self-contained flats but does not meet as a minimum standard the requirements of the1991 Building Regulations, and more than one third of the flats are privately rented;
an HMO declaration has been made by the LHA under Section 255 of the Housing Act 2004.
The term ‘household’ means either a single person or members of the same family who are living together. This includes people who are married or living together as married (including those in same sex relationships). ‘Family’ means specific relatives: parents, grandparents, children and step-children, grandchildren, brothers, sisters, uncles, aunts, nephews, nieces or cousins. Foster children are also treated as part of their foster parents’ household.
The term ‘occupied’ includes occupation by asylum seekers and migrant and seasonal workers, as a refuge by persons escaping domestic violence, or by students in higher or further education.
Houses where rooms are let out separately as bedsits are the most common form of HMO.
Other than applying to common areas under the FSO, there is no explicit legal duty on landlords to undertake a risk assessment except in circumstances where persons are employed.
Owing to the higher risk presented by larger HMOs, such as bedsits and shared houses, a system of mandatory licensing applies in respect of HMOs comprising three storeys or more and occupied by five or more persons living in two or more separate households. When calculating the number of storeys, residential basements, mezzanine floors and loft conversions are included. As well as mandatory licensing, the LHA may also operate additional or selective licensing schemes, for example, in deprived areas or where there is a large student population. In most cases licensing will involve an inspection by the LHA in which the premises will be assessed and conditions of the licence formulated. Licences will generally operate for a period of 5 years, after which a renewal application and further inspection will take place.
Suitability for licensing in respect of fire safety is covered under the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations where it is stated that ‘appropriate fire precaution facilities and equipment must be provided of such type, number and location as is considered necessary’. Prior to the granting of a license the LHA needs to be satisfied that appropriate fire precaution facilities and equipment are provided and the HMO is reasonably suitable for occupation in terms of fire safety, and that there is no impediment to granting the licence in fire safety terms. Similar regulations apply to Wales.
When granting a licence, the LHA must attach the following mandatory conditions relating to fire safety, requiring the license holder:
to ensure that smoke alarms are installed in the house and to keep them in proper working order;
to supply the authority on demand, with a declaration by him as to the condition and positioning of such alarms.
As well as these mandatory conditions, the LHA has the power to attach any discretionary conditions they deem appropriate which may include additional fire safety provisions.
MANAGEMENT OF HMOs
The management of HMOs is covered under the Management of Houses in Multiple Occupation (England) Regulations and other associated legislation. These regulations place requirements on the managers of all HMOs (whether licensable or not) in respect of fire safety and other key management duties. Similar regulations apply in Wales. The purpose of these regulations is not to require additional fire safety precautions, but to ensure that existing precautions are properly maintained, together with dealing with gas and electrical safety.
Under these regulations, the manager must ensure that:
all means of escape from fire in the HMO are kept free from obstruction and maintained in good order and repair;
any firefighting equipment and fire alarms are maintained in good working order;
all notices indicating the location of means of escape from fire are displayed in positions within the HMO that enable them to be clearly visible to the occupiers (unless the HMO has four or less occupants);
supply to the LHA, within seven days of receiving a request in writing from them, the latest gas appliance test certificate in relation to the testing of any gas appliances in the HMO by a recognised engineer;
ensure that every fixed electrical installation is inspected and tested at intervals not exceeding five years by a person qualified to undertake such inspection and testing (with effect from 1 July 2020, this is a requirement under the Electrical Safety Standards in the Private Rental Sector (England) Regulations.)
In dealing with gas safety, Consultants should refer to HSE Publication INDG285 – A guide to landlords’ duties: Gas Safety (Installation and Use) Regulations 1998 as amended Approved Code of Practice and guidance. These regulations cover the safe installation, maintenance and use of gas systems, including gas fittings, appliances and flues, mainly in domestic and commercial premises.
Amongst other provisions, the regulations appertaining to landlords require that:
all gas fittings and flues are maintained in a safe condition;
an annual safety check is carried out on each gas appliance/flue;
all installation, maintenance and safety checks are carried out by a Gas Safe registered engineer;
a record of each safety check is kept for at least two years;
a copy of the latest safety check record to be issued to existing tenants within 28 days of the inspection being completed, and to new tenants prior to taking occupation.
Gas appliances should be serviced in accordance with the manufacturer’s instructions. If these are not available, servicing should be carried out annually unless advised otherwise by a Gas Safe registered engineer.
SCOTLAND AND NORTHERN IRELAND
Whilst the overall fire safety objectives in Scotland and Northern Ireland mirror those in England and Wales, some differences in their application exist.
In Scotland, fire safety legislation falls under the Fire (Scotland) Act 2005 and the Fire Safety (Scotland) Regulations 2006. Unlike comparable legislation in England and Wales, there is no requirement for a risk assessment to be carried out of common areas of private dwellings/blocks of flats unless persons are employed, when the premises become classified as a workplace. The only fire safety provision prevailing over common areas of dwellings relates to the maintenance of measures for fire-fighters, such as dry or wet risers.
Concerning HMOs, a licence is required for the operation of living accommodation as an HMO. Under the Housing (Scotland) Act 2006 a house falls within the definition of an HMO if it is:
occupied by three or more persons from three or more families; and
occupied by them as their only or main residence or in some other manner specified by the Scottish Ministers by order; and
either a house, premises or a group of premises owned by the same person with shared basic amenities, or some other type of accommodation specified by the Scottish Ministers by order.
Further key differences in Scotland include:
a requirement for landlords of HMOs to carry out a risk assessment of the entire premises which will be reviewed by officers of the licensing or fire authority when inspecting the property;
licences will generally operate for a period of three years;
specific prohibition on the use of LPG heaters (within published guidance)
In Northern Ireland fire safety legislation comes under Part 3 of the Fire and Rescue Services (Northern Ireland) Order 2006 and the Fire Safety Regulations (Northern Ireland) 2010 which explicitly includes shared areas of properties common to several households such as blocks of flats and all areas of HMOs; in both circumstances risk assessments are required to be carried out.
Northern Ireland defines an HMO in the same terms as Scotland. Consultants should be aware of the Statutory Registration Scheme for HMOs in Northern Ireland (Amended 2012) under which HMOs in specified areas (‘action areas’) are required to be registered, in addition to all HMOs with more than ten occupants. Scheme provisions include the submission of a Gas Safe certificate annually and an electrical installation condition report every 5 years; also, the Housing Executive shall carry out inspections each year on a sample of up 10% of registered HMOs.
SELECTIVE LICENSING OF PRIVATE LANDLORDS (ENGLAND & WALES)
In addition to the mandatory licensing of HMOs, the Housing Act 2004 introduced a scheme of selective licensing of private landlords in a local housing authority’s area. Selective licensing is intended to address the impact of poor quality private landlords and anti-social tenants. It has primarily been developed with the need to tackle problems in areas of low housing demand in mind – although the Act also allows for selective licensing in some other circumstances. Many of the provisions relating to selective licensing are similar to those relating to the mandatory and discretionary licensing of HMOs.
Each local authority will have its own set of conditions, which the landlord must meet in order for a selective license to be granted. There are also certain mandatory generic safety conditions in respect of the Housing Act and other Regulations, which need to be addressed, which in practice are typically translated by local authorities into the following:
The provision of a valid gas safety certificate;
Periodic inspection and testing of the electrical installation by a competent person, in accordance with BS7671, at intervals of no more than 5 years, or more frequently where as recommended by the contractor;
Formal annual PAT testing of all portable electrical appliances supplied by the landlord;
The provision and maintenance of smoke alarms on each storey of the house and carbon monoxide alarms in any room of the house containing a solid fuel burning combustion appliance;
All soft furnishings supplied by the landlord to comply with the Furniture and Furnishings (Fire) Regulations.
THE ELECTRICAL STANDARDS IN THE PRIVATE RENTED SECTOR (ENGLAND) REGULATIONS 2020
These Regulations which came into force on 1 June 2020 require landlords to have the electrical installations in their properties inspected and tested by a person who is qualified and competent, at least every five years. They must also provide a copy of the Electrical Safety Condition Report (EICR) to tenants, and to the local authority if requested. Should the EICR require investigative or remedial works, landlords will have to carry this out.
Landlords of privately rented accommodation, including houses in multiple occupation, must:
Ensure national electrical safety standards set out in the IET “Wiring Regulations” (BS 7671) are met.
Ensure the electrical installations in their rented properties are inspected and tested by a qualified and competent person at least every 5 years.
Obtain a report from the person conducting the inspection and test which gives the results and sets a date for the next inspection and test.
Supply a copy of this report to the existing tenant within 28 days of the inspection and test.
Supply a copy of this report to a new tenant before they occupy the premises.
Supply a copy of this report to any prospective tenant within 28 days of receiving a request for the report.
Supply the local authority with a copy of this report within 7 days of receiving a request for a copy.
Retain a copy of the report to give to the inspector and tester who will undertake the next inspection and test.
Where the report shows that remedial or further investigative work is necessary, complete this work within 28 days or any shorter period if specified as necessary in the report.
Supply written confirmation of the completion of the remedial works from the electrician to the tenant and the local authority within 28 days of completion of the works.
For the avoidance of doubt, the Private Rented Sector (PRS) is a classification of housing in the UK. The basic Private Rented Sector definition is: property owned by a landlord and leased to a tenant. The landlord, in this case, could be an individual, a property company or an institutional investor. The tenants would either deal directly with an individual landlord, or alternatively with a management company or estate agency caring for the property on behalf of the landlord.
The Regulations apply to all new tenancies from 1 July 2020 and existing tenancies from 1 April 2021. If a private tenant has a right to occupy a property as their only or main residence and pays rent, then the Regulations apply.
Exceptions are set out in Schedule 1 of the Regulations and include social housing, lodgers, those on a long lease of 7 years or more, student halls of residence, hostels and refuges, care homes, hospitals and hospices, and other accommodation relating to healthcare provisions.
The Management of Houses in Multiple Occupation (England) Regulations 2006 previously put specific duties on landlords around electrical safety. This requirement has now been repealed, and HMOs are now covered by the new Electrical Safety Regulations.
HMOs with 5 or more tenants are licensable. The Housing Act 2004 has been amended by these Regulations to require a new mandatory condition in HMO licences ensuring that every electrical installation in the HMO is in proper working order and safe for continued use.
For further information concerning the new Regulations, reference should be made to an article in “Wiring Matters” on the IET website.
Standard risk improvement wordings have been amended to reflect these Regulations.
Similar legal requirements came into effect in Scotland in 2015 under the Housing (Scotland) Act 2006, for which guidance for landlords has been published, and in Wales. Similar regulations are being introduced in Northern Ireland.
SURVEY EXPECTATIONS
It is recognised that access when carrying out surveys of blocks of flats and HMOs can often be very limited. It is therefore important when making arrangements for such surveys that the survey contact, in many cases the managing agent, is fully aware of the extent of the survey which should include, where possible, internal access to sample accommodation. Only by gaining such access will details of construction and other key features be obtained and an overall impression of the risk gained. In circumstances where this is not possible, it is important that the report is qualified accordingly.
Except in Scotland, surveys of blocks of flats should include enquiry as regards the status of a fire risk assessment in common areas and where this is not in evidence a risk improvement should be raised.
Particular vigilance should be taken when conducting surveys of HMOs. In circumstances where it is established at the time of making the survey appointment that the premises comprise of a licensed HMO, Consultants should request that a copy of the licence is made available in order that compliance of the mandatory and discretionary conditions can be reviewed. Where a licence is unavailable, this should be drawn to the attention of Underwriters in the report. A similar approach should be adopted in respect of selective licensing.
ADDITIONAL INFORMATION
Further information can be found in the following documents;
HM Government – Fire Safety Risk Assessment – Sleeping Accommodation;
LACORS (Local Authorities Coordinators of Regulatory Services) – Housing – Fire Safety (now under the auspices of Local Government Regulation);
Local Government Group – Fire Safety in Purpose-built Blocks of Flats;
Scottish Government – Practical Fire Safety Guidance for Small Premises Providing Sleeping Accommodation;
Scottish Government – Practical Fire Safety Guidance for Medium and Large Premises Providing Sleeping Accommodation;
Scottish Government – Licensing of Houses in Multiple Occupation: Statutory Guidance for Scottish Local Authorities;
Northern Ireland Housing Executive - Statutory Regulation Scheme for Houses in Multiple Occupation.
HIGH-RISE RESIDENTIAL BUILDINGS
Arising from the Grenfell Tower tragedy has been a major increase in the profile of fire safety in high-rise residential buildings (18m or more above ground), with a particular emphasis on combustible cladding/rainscreen systems, particularly those incorporating Aluminium Composite Material (ACM).
Key fire safety measures in high-rise residential buildings (for consideration by Consultants) should include, but are not limited to, ensuring that:
A robust fire risk assessment is carried out and formally documented by a third party certificated or registered fire risk assessor, conducted in accordance with PAS 79 (Publicly Available Specification) published by BSI. Improvements in fire safety identified by the risk assessment should be implemented and the risk assessment periodically reviewed.
Careful consideration is given to the likelihood of deliberate fire raising at the time of the risk assessment and the proportionate protection measures implemented.
Fire doors are periodically inspected and maintained in accordance with BS 8214 (inspection intervals should be determined by a risk assessment). It is strongly recommended that a Fire Door Inspection Scheme Certified Inspector is appointed for this purpose, details of which can be found at https://fdis.co.uk/. Front doors to flats must not be altered without permission of the property owner or managing agent.
The presence and integrity of cavity barriers such as those in ceiling voids and between external rainscreen/cladding systems and floor slabs are inspected at appropriate intervals. Similarly, fire stopping around water pipes, electrical cables and other services where penetrating compartment walls and floors is examined routinely.
Fire dampers, where provided in communal ductwork or refuse chutes are subject to periodic inspection and test to ensure correct operation. Further guidance on the testing of fire dampers can be found in BS 9999.
Dry and wet risers are routinely inspected and maintained in accordance with BS 9990
Emergency lighting and signage is correctly in place and maintained.
Sprinklers (and other fire extinguishing and suppression systems), where installed, are routinely tested and maintained in accordance with the relevant codes and standards.
Fire detection and alarm system, where installed, is tested and serviced in accordance with BS 5839.
Appropriate fire emergency plans and procedures are in place, including liaison with the fire and rescue services as required.
Rubbish and combustible material is correctly stored and removed from site. Doors to refuse chutes and chute rooms are to be kept closed, the external storage of waste materials within 10 metres of the premises, including unwanted furniture and recycling containers, minimised and arrangements in place preventing wheelie bins and the like being placed near building claddings.
Escape routes and common areas are kept free from obstructions and combustible materials.
Electrical installation designed, installed and periodically inspected and tested in accordance with BS 7671. Where deemed appropriate, thermographic testing should also be undertaken.
Gas heating systems are serviced by a Gas Safe registered engineer in accordance with the manufacturer’s instructions and, in the case of oil fired equipment, by an OFTEC (Oil Firing Technical Association) registered technician.
The use of paraffin and bottled gas heaters and cooking equipment by tenants and barbeques on balconies are prohibited.
Plant rooms and service ducts are maintained clear of storage and kept locked secure.
All contractor’s operations are effectively controlled. Hot Work should be eliminated wherever possible; where unavoidable, a hot work permit system should be employed. Also, it is essential to ensure that fire compartmentation is not compromised by contractor’s work.
It is important to emphasise that all fire safety inspection, testing and maintenance procedures should be formally recorded. Such records enable a responsible person to demonstrate due diligence in the event that fire safety is found wanting, either as a result of routine audit or following scrutiny after a fire.
There is an obligation under the Fire Safety Order to maintain records of the fire safety arrangements in a building. This is particularly important ensuring that those tasked with managing fire safety are aware of the fire safety features incorporated within the design of the building, and that fire safety measures can be suitably maintained on an ongoing basis. Various methods can be used to keep records, from the commonly-used log book to electronic devices and systems.
COMBUSTIBLE CLADDING /RAINSCREEN SYSTEMS – SURVEY EXPECTATIONS
Dealing specifically with combustible cladding/rainscreen systems and the developments that have taken place since Grenfell, it is vitally important that details are obtained as to the nature/type of cladding and insulation materials employed (with the immense publicity that has been given to this matter, it is anticipated that this information will be readily available from building owners/managing agents). In circumstances where combustible cladding is present, the following information must be ascertained and detailed in the report:
Evidence that sample materials have been submitted to the BRE for fire testing/screening and of the results obtained.
In the event that test results are unfavorable, what remedial measures are being undertaken or proposed.
The extent of consultation with the local fire and rescue service and status of full compliance with interim mitigation measures pending cladding remediation.
Status of evacuation strategy and liaison with Fire and Recure Service.
Presence of an evacuation alert system, installed in accordance with BS 8629. Where no such system exists, an appropriate risk improvement should be raised employing the standard RiskSTOP wording.
Whist this is specifically focused on high-rise residential buildings, much of this guidance should also apply to other high-rise buildings, typically office blocks and hotels.
As instructed elsewhere, for high-rise buildings where the cladding/rainscreen system (including the backing insulation) is confirmed or assumed to be in non-compliance with Building Regulations, a 100% EML must apply.
THE FIRE SAFETY (ENGLAND) REGULATIONS
The Fire Safety (England) Regulations 2022 introduce new duties for building owners and managers under the Regulatory Reform (Fire Safety) Order 2005. They implement the majority of the recommendations of the Phase 1 report of the Grenfell Tower inquiry came into force on 23 January 2023.
Under the regulations, for high rise residential buildings (at least 18 metres or seven storeys high), responsible persons must:
External Wall Systems: share electronically with their local fire and rescue service information about the design and materials of a building’s external wall system, and inform the fire and rescue service of any material changes to these walls.
Building Plans: provide their local fire and rescue service with up-to-date electronic building floor plans, and keep hard copies of the building’s floor plans – and a single page building plan which identifies key firefighting equipment – in a secure information box accessible by firefighters.
Wayfinding signage: install wayfinding signage which is visible in low light or smoky conditions that identifies flat and floor numbers in the stairwells of relevant buildings.
Lifts and other Key Fire-Fighting Equipment: establish a minimum of monthly checks on the operation of firefighting lifts and evacuation lifts, and check the functionality of essential pieces of firefighting equipment. Responsible persons will also be required to report any defective lifts or equipment to their local fire and rescue service as soon as possible after detection if the fault cannot be fixed within 24 hours, and to record the outcome of checks and make them available to residents.
Information Boxes: install and maintain a secure information box in their building. This box must contain the name and contact details of the responsible person and hard copies of the building floor plans.
For multi-occupied residential buildings over 11 metres high, responsible persons must undertake quarterly checks on all communal fire doors and annual checks on flat entrance doors.
In all multi-occupied residential buildings, responsible persons must provide residents with relevant fire safety instructions, which are to include instructions on how to report a fire and any other instruction which sets out what a resident must do once a fire has occurred, based on the evacuation strategy for the building, and information relating to the importance of fire doors in fire safety.
The Regulations sit alongside the Building Safety Act amendments to the Fire Safety Order, and the government’s overhaul of supporting guidance under article 50 of the Fire Safety Order.
In response to these regulations, IFSEC Global has published an excellent awareness guide as to what fire safety professionals (and, for that matter, responsible persons) need to be aware of and the challenges they face. Also, FR Consultants has produced an excellent campaign video which can be viewed here , plus a Regulatory Compliance Factsheet applicable to England and Wales to which Consultants may wish to refer.
In addition, the HSE has recently published: Building information - Information you must supply for high-rise residential buildings, to align with the new Regulations (and the Building Safety Act.)
Ensuring compliance with these Regulations is of paramount importance and a suitable risk improvement wording has been added to the wordings data base.
FURTHER REFERENCE
The FIA publication: Guidance on the issue of cladding and external wall construction in fire risk assessments for multi-occupied residential premises is an essential source of reference.
NFCC Simultaneous Evacuation Guidance: Technical guidance to support a temporary change to a simultaneous evacuation strategy in purpose-built blocks of flats.
As far as it relates to cladding and rainscreen systems, this Technical Bulletin (TB) should be cross-referenced with TB 12: Composite Panels & Exterior Cladding Systems.