Charles Arrand considers the Regulatory Reform (Fire Safety) Order 2005, with a focus on both the potential business and human costs of failing to discharge obligations under the Order.

Fire safety is regulated by the Regulatory Reform (Fire Safety) Order 2005 (the Order), which applies to almost all buildings, places and structures other than individual private homes.

Fire safety cases carry a significantly elevated level of risk due to the number of people potentially affected by an adverse event, particularly in establishments containing vulnerable people.

General obligations

Fire safety is regulated by the Order, which requires any person who has some level of control in a premises to take reasonable steps to reduce the risk from fire and make sure people can safely escape if there is a fire.

Under the Order, anyone who has control of a premises or anyone who has a degree of control over certain areas or systems may be a ‘responsible person’ and must complete the following:

• carry out a fire-risk assessment identifying any possible dangers and risks;
• consider who may be especially at risk;
• eliminate or reduce the risk from fire as far as is reasonably possible and provide general fire precautions to deal with any possible residual risk;
• take other measures to make sure there is protection if flammable or explosive materials are used or stored;
• create a plan to deal with any emergency and, in most cases, keep a record of findings; and review findings when necessary.

Local Fire Services enforce the Order, carrying out inspections after a fire or as part of routine checks.

Liability

The consequences of getting fire safety wrong are potentially catastrophic; both in terms of the human cost to individuals, and impact on businesses. The financial costs associated with a breach of regulations can also have a major impact on an organisation.

Though fire safety cases were specifically excluded from the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Regulations Definitive Guideline (“the Guideline”) when it was introduced in 2016, the Court of Appeal has determined that the Guideline provides a useful analogy, and reference is often made to it in fire safety cases.[1]

Of particular note is the requirement within the Guideline for the court to consider “whether the offence exposed a number…members of the public to the risk of harm. The greater the number of people, the greater the risk of harm,” and to consider adjusting the fine significantly upwards if so.

A relevant consideration is that the potential impact of risk on vulnerable groupings is viewed as a serious aggravating feature of any offending. Fires in settings where accommodation is provided for significant numbers of people always create the risk of multiple injuries and fatalities. In certain such settings, such as care homes, the population at large may fall into the vulnerable classification.

In March 2021, following the Fire Safety Consultation, the government announced proposed amendments to the Order that would see the introduction of unlimited fines for breaches of it. The impact of this in the context of fire safety enforcement could be as significant as the introduction of the Guideline, which has seen an unequivocal increase in fines for Health and Safety cases.

Bupa case

Private healthcare provider Bupa has recently been ordered to pay a purported record £1.04m penalty (fine and costs combined) after admitting fire safety failings. London Fire Brigade, prosecuting, said it was the “highest ever fine for fire safety breaches in the UK, highlighting the seriousness of Bupa’s failure to protect a vulnerable resident in its care”.

In March 2016, 69-year-old wheelchair-bound Cedric Skyers sadly died when his cigarette set his clothes on fire in a garden shelter at Bupa Manley Court, Brockley.  Mr Skyers was unsupervised when a care assistant saw the fire from a first-floor window and called 999. Staff attempted to put the fire out, but sadly Mr Skyers died from his injuries. It was subsequently discovered that Mr Skyers’ clothes had become flammable as a result of the emollient creams used to treat him.

In this case, investigators found that, while a smoking risk assessment had been carried out for Mr Skyers, Bupa had not assessed his use of emollient creams in that context.

Apparent burn marks indicative of previous incidents were found on Mr Skyers’ clothing after his death. Care home staff stated they had been unaware of this and, had they been so aware, would have completed more regular checks.

Bupa pleaded guilty and is reported to have accepted that it had failed to: ensure staff understood the risks from the use of emollient creams; warn residents using paraffin-based products not to smoke, or, require precautions to be taken; instruct staff not to leave a resident using paraffin-based products smoking unsupervised; and carry out a suitable and sufficient individual smoking risk assessment.

Care providers should ensure that they assess the ability of residents to smoke safely, checking clothes for burn marks if necessary. Consideration should also be given to fire retardant clothing, smoking aprons and personal alarms.

Bupa said it had introduced Comprehensive Risk Assessments for residents that smoke, as well as staff training on paraffin based emollient creams and smoking aprons and supervision as a result.

At first glance, and without background understanding, this tragic accident may look like an unlikely ‘freak’ incident; but that is far from the case. While residents wishing to smoke present a number of challenges for care providers generally, Fire Services, the Care Quality Commission (CQC) and others have issued guidance addressing the use of paraffin-based emollients for smoking residents.

Under the microscope

The tragic fire at Grenfell Tower in 2017, and the Public Inquiry into it, has put fire safety at the forefront of discussion, including for those responsible for implementing and enforcing legislation.

The size of the fine in the Bupa case sets no legal precedent, but is an important reminder of the consequences of failing to discharge duties, as the prosecuting fire service was keen to emphasise; ‘If there can be anything constructive to come from this, we hope that it will be that anyone who has a legal responsibility for fire safety in a building – whether as a landlord, property manager, care home provider or any other setting – takes note and makes sure they are complying with the law.’

It is clear that all businesses need to ensure fire safety is appropriately prioritised. Failing to do so could mean significant financial penalties being imposed on those caught by the Order, but most importantly put people at risk of injury or even death.

For those operating in the living sector, the consequences of getting it wrong have never been greater.

This article features in Shoosmiths’ new report: Operating in living

[1] R v Sandhu [2017] EWCA Crim 908

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