Comment by: Gavin Rendall
Focus area: Fire safety regulation
Regulator concerned: Fire safety (Fire Authority)
1 Background to this response
1.1 Established in 1963, [Deleted Text] is dedicated to providing choice and independence for older people and is one of the largest specialist providers of retirement housing and related support services for older people throughout England. [Deleted Text] manages nearly 19,000 retirement and Extra Care properties, which are available for rent or purchase on more than 650 estates in over 175 local authority areas.
1.2 [Deleted Text] is the innovator of Extra Care retirement housing with additional on-site support and facilities, with developments in 60 locations. We employ a dedicated workforce of nearly 1,000 individuals who provide our residents with a highly professional and personalised service.
1.3 The corporate headquarters is in [ Deleted Text] board is chaired by [Deleted Text] and [Deleted Text] is the chief executive.
1.4 Although we are not a small or medium-sized business, our geographic spread means that we are affected by the implementation of the RRFSO as though we were a series of small businesses. The inconsistency of application of the RRFSO we experience as a result of work with large numbers of Fire and Rescue Authorities, will be discussed in more detail in our feedback.
1.5 This response was produced by [Deleted Text] Health and Safety Manager, [Deleted Text] BSc DipNEBOSH GradIOSH MIIRSM, GIFireE, MIFPO, supported by our Health and Safety Consultant, [Deleted Text], an OSHCR Registered Consultant.
2 How and where you access information about fire safety issues, your
legal obligations, and how to comply with the law?
2.1 [Deleted Text] has in-house expertise in fire safety, and also accesses support from Fire Safety Consultants, where appropriate. We are happy to continue to access advice in this way. This allows us to tailor our solutions to the needs of our residents, as well as achieving legal compliance.
2.3 [Deleted Text] has significantly invested in improving fire safety at its estates over the last 18months. This includes investing in staff training to support the roll out of a new Fire Risk Assessment (FRA) approach and rolling out a new Fire Safety Strategy and associated Guidance. We have also invested heavily in consultant’s time, to assist us to implement the new FRA process. We are now in the process of implementing the recommendations from the new FRA reports.
2.4 When we have looked externally for assistance in interpreting the RRFSO, it is usual to be directed to the local Fire and Rescue Authority for advice. However, as we work with so many Authorities, this is not a viable solution. This is because we have identified significant inconsistency in the way they apply the RRFSO. In some cases this inconsistency is so significant that Authorities in different areas give contradictory instructions. This inconsistency is likely to produce challenges to any business working in two or more Authority areas.
3 What information you need, and how you would prefer to access
advice and guidance on fire safety matters.
3.1 We are aware of the various guidance documents currently available. Although these can be helpful, they pose a challenge for us where they contradict each other or our FRAs which have been completed by competent assessors. The guidance is also problematic because their legal status is unclear.
3.2 There is a particularly challenge when Fire Enforcement Officers selectively quote from guidance documents in their correspondence to us, as though they were regulations. For example, we have received a Notice of Deficiency that required us to install equipment based on an excerpt from the DCLG ‘Sleeping Accommodation’ Guidance. The excerpt was incomplete, as it excluded the sentence which made this recommendation inappropriate in the building being discussed.
3.3 We are therefore of the opinion that the current guidance is not the optimal solution. We would prefer the regulatory system for fire safety to mirror that for health and safety. This would mean having a single, unified, enforcing authority, who produced Approved Codes of Practise and Guidance, where the legal status of these documents was clear.
4 Activity undertaken by fire and rescue authorities to support you with
4.1 We have a very mixed experience of working with Fire Enforcement Officers, with significant variation in perception of risk and methods of working with us.
4.2 Some Fire Enforcement Officers listen when we explain that [Deleted Text] is making a step-change in fire safety and are willing to take a ‘light touch’ approach, offering advice and support while allowing us the time to implement our improvement programme. However, in most cases, Fire Enforcement Officers have stopped providing informal advice, as they focus on enforcement and associated targets. Therefore we have experienced a significant increase in Notices of Deficiency, even where Fire Enforcement Officers acknowledged that we already have a plan to improve fire safety and were implementing it.
4.3 In a significant number of cases, Fire Enforcement Officers do not appear to understand when we explain the nature of our buildings and the service we provide, and produce inappropriate recommendations as a result. For example, they confuse our retirement housing estates with care homes, and apply the DCLG Residential Care guidance in error. Where third party contractors are based at our buildings, the Fire Enforcement Officers frequently misunderstand our responsibilities and serve a Notice of Deficiency on us, for a failure by the third party (for example to provide training to their staff) which should have led to a Notice served on the third party. A specific example is where care teams are based on our site but are contracted by the Local Authority and have no contractual relationship with us.
4.4 At the other extreme we have had several incidents of Fire Enforcement Officers intimidating our front-line staff (Estate Managers), in some cases to the point of leaving our staff in tears. In most cases this appears to be because the Fire Enforcement Officer has failed to understand Article 48 of the RRFSO, which allows a ‘Body Corporate’ to be the ‘Responsible Person’ for a building. Fire Enforcement Officers have told Estate Managers or their line managers (Housing Managers) that they (the member of staff) are the ‘Responsible Person’ and they will be at risk of going to prison if they do not do what the Fire Enforcement Officer says.
4.5 In general, we find working with Fire Enforcement Officers to be a hindrance to our business. We have found some failures in understanding and significant inconsistency in application of the RRFSO. This results in lost time for staff while we respond to Fire Enforcement Officers. In 2011, for example, we successfully worked with Fire Enforcement Officers so they rescinded three Fire Enforcement Notices. We also prevented a threatened prosecution over the location of a single fire extinguisher by sustained effort from our Health and Safety Manager, a solicitor, QC and a fire safety expert witness (incurring significant expense in the process).
5 The interaction your business has with fire and rescue authorities on
the business premises.
5.1 As outlined above, there is significant variation in the way that Fire Enforcement Officers behave while they are on our estates.
5.2 In some cases, Fire Enforcement Officers are very personable and helpful to the local staff. However, as noted before, they have significantly reduced the amount of informal advice they provide. Therefore they frequently return to the office and (often using template letters) write what sometimes appear to be aggressive Notices of Deficiency to our Housing Managers. Rarely do they serve letters correctly on our Company Secretary.
5.3 In other cases they are officious, aggressive or rude to our front-line staff. As a result, we now advise our Estate Managers to ensure they are accompanied for Fire Enforcement Officers by at least one manager, to assist in managing any unreasonable behaviour.
5.4 In many cases, Fire Enforcement Officers who are unhappy with the conclusions in our FRAs serve a Notice of Deficiency saying we have failed to complete a suitable and sufficient risk assessment. We believe that coming to a different conclusion to that preferred by that particular Fire Enforcement Officer, or even a particular Fire and Rescue Authority, is not the same as having failed to complete a suitable and sufficient FRA. We feel, and our QC agrees with us, that this may mean Fire Enforcement Officers are acting outside their powers. We have attempted to work with a particular Fire and Rescue Authority to take this to the Secretary of State for a decision, but unfortunately without success.
5.5 It appears to us that some Fire and Rescue Authorities have set their own centralised standards which they believe should be met, rather than assessing fire safety on a case by case basis in line with the risk assessment approach in the RRFSO. When they find something that is outside their centralised standards, they work hard to force us to change the recommendation in our FRA. Again, we believe this may mean Fire Enforcement Officers are acting outside their powers.
5.6 Less well-supported organisations – particularly those who only work with one Fire and Rescue Authority – are likely to simply do as they are told by the Fire Enforcement Officer. However, we believe this is not in line with the expectations set out in the RRFSO. If Fire Enforcement Officers are unable to consider any solutions other than those in their Authorities’ centralised standards, we believe this has the unintended consequence of reinstating the old Fire Certificate regime with Fire Officers dictating what businesses should do, irrespective of how appropriate these solutions are for the business.
6 Any ‘knock-on effects’ arising from compliance with fire safety
legislation – for example, where action to meet fire safety regulations
leads to additional requirements to meet other sets of regulations.
6.1 There are two key challenges relating to fire safety at retirement housing
a) Interaction with the requirements to consult residents under the Landlord and Tenant Act 1985 and the Commonhold and Leasehold Reform Act 2002.
b) Interaction with the requirements of the Equality Act 2010, relating to disabled people.
a) Interaction with requirements to consult residents
6.2 Where our FRA identifies action points which will lead to us spending resident’s money (for example, over £250 per dwelling per year for leasehold properties) we are required to carry out formal resident consultation.
6.3 The legislation which creates the requirement to consult residents sets out a very detailed process which must be completed in full. Errors in completing consultation can lead to us having to carry out the consultation again or fund the work without recovering costs from residents. Leasehold residents also have the right to challenge the decisions we make at a Leasehold Valuation Tribunal. The minimum time we can complete this type of consultation is three months, and it frequently takes significantly longer.
6.4 Fire Enforcement Officers often are unaware of or do not appear to understand the implications of the legal duty to consult. Once we have explained these requirements, they frequently appear to feel that the RRFSO should supersede our legal duty to consult. We therefore expend a significant amount of energy challenging unreasonable timescales in Notices of Deficiency, which has the potential to distract us from focussing our energies on implementing the findings of our FRAs.
b) Interaction with requirements for our disabled residents
6.5 We attempt to house people appropriately for their needs including needs related to fire safety, such as ability to evacuate if necessary. However, our residents’ needs can change during the course of their tenancy, which may be many years. We are unable to force people to leave their property on the basis of a change in their health as this is not legal grounds for eviction. We encourage resident’s to consider moving to more appropriate accommodation when we become aware this would be appropriate, but in the current financial climate a move is often simply not possible.
6.6 We attempt to work with Fire Enforcement Officers to help them to understand that our buildings are classed as independent living, and we cannot force residents to behave in particular ways. We also explain that, unlike care homes, residents can refuse our staff access to their homes under their tenancy agreement or lease. However several Fire Enforcement Officers have set unachievable requirements in Notices of Deficiencies.
6.7 We cannot introduce any arrangements that would breach their tenancy / lease, for example we cannot institute any evacuation strategy where our staff would be expected to enter resident’s homes and provide physical assistance to evacuate (as is common in care homes). The guidance ‘Fire Safety in Purpose Built Blocks of Flats’ says that a delayed progressive evacuation strategy, also known as a ‘Stay Safe’ approach or ‘Stay Put’ policy, is a legitimate evacuation strategy. However more than one Fire and Rescue Authority believe the ‘Stay Safe’ approach is never appropriate, and we have been told some consider them to be an attempt by ‘Responsible Persons’ to devolve responsibility for evacuation to the Fire Fighters.
6.8 We also face significant challenges with storing mobility scooters in our buildings. In one notable case, a Fire Enforcement Officer advised our staff that no scooters should be stored in any part of a building, including in residents’ homes. Mobility scooters are allowed on airplanes, but are treated as a high-risk hazard by the majority of Fire Enforcement Officers. We believe that, given the ageing population and the reduction in care home places, the challenges of storing mobility scooters in a way which is acceptable to Fire Enforcement Officers will only get worse.