Fire safety duties of social landlords

28/11/2009 by David Slade.

In the light of this summer’s tragedy at Lakanal House in London, the fire safety duties of social housing landlords have come under the spotlight. Susan Horridge and Gary Ekpenyoung examine the main legal requirements.

Since the tragic events on the 3 July 2009, in which six people died in a fire at Lakanal House, a block of flats in London, there has been increased focus on social landlords’ duties regarding fire safety.

It is thought that the fire was caused by a faulty television, believed to be at least ten years old, which had been left plugged in on the 9th floor. The fire subsequently spread to the 11th floor, killing three adults and three children. Questions were raised and investigations are ongoing as to how the fire was able to spread so quickly.

Following the fire, the head of housing delivery and homelessness at Communities and Local Government, Terrie Alafat, wrote to all local authorities warning them of the safety issues which would create a hazard in similar blocks. She noted that the hazard at Lakanal House related to the positioning of a timber staircase inside each two-level flat, which cut across the top of a communal corridor and as a result, created a potential breach of the fire resisting construction of the ceiling. This type of hazard could allow a fire in one flat to burn through the timber stair and spread into the ceiling void of the corridor. However, such a hazard may not be readily apparent from visual inspections. She also added that the need to take action was a “matter for [the Local Authority’s] judgment”. The Tenant Services Authority has sent a similar letter to all registered social landlords in England.

The main duties upon social landlords in relation to fire safety are covered by the Housing Act 2004 and the Regulatory Reform (Fire Safety) Order 2005. In addition, where a social landlord provides electrical equipment or fixtures and furnishings to its tenants, they should also consider the Gas Safety (Installation and Use) Regulations 1998, the Electrical Equipment (Safety) Regulations 1994 and the Furniture and Furnishings (Fire) (Safety) Regulations 1998.

Housing Act 2004
The Housing Act 2004 brought in the Housing Health and Safety Rating System (HHSRS) which considers 29 categories of potential hazards, one of which is fire. Under the HHSRS, any residential premises should provide a safe and healthy environment for any potential occupier or visitor. A dwelling should therefore be designed, constructed and maintained with non-hazardous materials and should be free from unnecessary and avoidable hazards.

The HHSRS provides a means of assessing dwellings which reflects the risk from any hazard and allows a decision to be made, in those particular circumstances, as to whether that risk is acceptable. For the purposes of the HHSRS, the assessment is solely about the risks to health and safety. Any issues regarding feasibility, cost or the extent of any remedial action are irrelevant to this assessment.

The HHSRS Operating Guidance sets out how to make an assessment of the fire hazard presented by a particular dwelling and covers potential for harm from fire, causes, preventative measures and relevant matters affecting the likelihood and harm outcome.

Hazard bands have been devised which group ranges of scores, ranging from bands A to J, with band A being the most dangerous and J the safest. The band into which a dwelling falls in respect of the fire hazard can then be used by a landlord to decide whether action should be taken to reduce the hazard, and also to prioritise actions across a landlord’s property portfolio. The enforcing authority also considers this when making a decision as to whether any enforcement action should be taken in respect of the property.

Fire Safety Order 2005
The Regulatory Reform (Fire Safety) Order 2005 introduced duties in relation to fire safety in the common areas of houses in multiple occupation, flats, maisonettes and sheltered accommodation, in which personal care is not provided. The duty is placed on the ‘responsible person’, i.e. the landlord or in certain cases, the managing agent, who is required to carry out a fire risk assessment and take specific action to minimise the risk of fire in the common parts. The responsible person should take general fire precautions to ensure, as far as is reasonably practicable, the safety of the people on the premises and in the immediate vicinity. Once the general fire precautions that are necessary have been identified and implemented, the responsible person must put in place a suitable system of maintenance and ensure that any procedures that have been adopted are implemented by competent persons.

Whilst the Order does not apply to individual flats, in practice the responsible person may need to take into account the entire premises, including to some extent, the individual units of accommodation themselves.

General fire precautions include: measures to reduce the risk of fire occurring; measures to reduce the spread of any fire through the premises; means of escape and their safe use at all times; firefighting; means of fire detection and warning; action to be taken in the event of fire; and mitigating the effects of fire.

Enforcement action which may be taken includes the service of either an alterations notice, enforcement notice or a prohibition notice. Failure to comply with any duty imposed by the Order, or the requirements of any enforcement action, is a criminal offence and carries a fine and possible imprisonment on conviction.

Under the Gas Safety (Installation and Use) Regulations 1998, landlords must ensure that the gas fittings and flues are maintained in a safe condition. Gas appliances should be serviced in accordance with the manufacturer’s instructions. If the instructions are not available, it is recommended that these are serviced annually. Landlords must also ensure that a gas safety check is carried out annually on each appliance/flue.

The Electrical Equipment (Safety) Regulations 1994 require that all electrical equipment supplied by a landlord is safe. There is no mandatory requirement for the equipment to undergo any safety testing, but the regulations require that any equipment supplied after 9 January 1995 shall be marked with the appropriate CE symbol. Suitable information or instruction booklets should also be provided.

If the landlord supplies furniture and furnishings in a property, they must meet the levels of fire resistance set out within the Furniture and Furnishings (Fire) (Safety) Regulations 1998. It is worth noting, however, that these regulations do not apply to carpets, curtains or duvets.

Conclusion
Social landlords are responsible for communal areas and as such, have to ensure that inspections and risk assessments comply with the HHSRS and Regulatory Reform (Fire Safety) Order 2005, in addition to considering each of the regulations laid out in this article.

Whilst the duty only applies to the common parts, the entire premises, including the individual units, should also be considered. The risk assessments must be kept up to date and works carried out accordingly. In light of the fire at Lakanal House, social landlords may also need to look more closely at the construction of their properties, particularly in older dwellings, and consider any potential fire risks that may need to be addressed.

It is too early to say whether the local authority responsible for Lakanal House had complied with their duties. No doubt a thorough investigation will be undertaken and if they have breached their duties, liability and potential claims may follow.

Posted in Regulatory Reform (Fire Safety) Order 2005, Gas Safety (Installation and Use) Regulations 1998, Electrical Equipment (Safety) Regulations 1994, Fire Safety Order 2005, Furniture and Furnishings (Fire) (Safety) Regulations, Housing Health and Safety Rating System (HHSRS), Housing Act 2004, Electrical Equipment (Safety) Regulations, Fire safety | 1 Comment »