Rosalind Benjamin and David Hills at Ark Workplace Risk have been demystifying regulatory requirements for property owners and managers for almost 30 years.
Over the past 30 years Ark, the leading property risk, compliance and safety specialist has been advising property managers, agents, owners, and tenants in developing building safety solutions. We have seen a slow change in how the those responsible for managing residential property are now reconsidering their fire risk management and assessment arrangements from one which saw fire risk assessments, for some, a nuisance or a “tick-box exercise” to one now, that is central to the safety arrangements and systems within such buildings.
We have seen the industry move from one where assessments were hardly read, to now, especially in the last 6 months, a situation where property managers/agents, owners, and in some instances, tenants are scrutinising and questioning the assessments and their contents.
Whilst residential buildings were covered under the Fire Safety Order, Grenfell clearly has changed things. The introduction of the Building Safety Act 2022 (BSA), Fire Safety Act 2021 (FSA), and Fire Safety (England) Regulations 2022 has pointed the figure at the accountable persons, owners and managers of such property. New behaviours towards risk management, collaboration and understanding are becoming the focus and soon, will be the norm.
In May 2022, the FSA was implemented in England (implemented in Wales in October 2021) and effectively changed the requirements for fire risk assessments, with assessments now requiring full and proper consideration of the external wall, as well as the risks associated with tenants doors, traditionally excluded from such assessments.
In in April 2022, the BSA received Royal Assent and places greater emphasis on accountability and management of building safety and latterly the introduction of Fire Safety (England) Regulations (implementation in January 2023), have both changed yet further the field in respect of fire safety management/assessment.
These landmark changes in the building safety regime, present property agents, property owners (known as Accountable Persons under the BSA) and other key stakeholders with a number of dilemmas. Not only are they now responsible for ensuring that all parts of their buildings are fully assessed, but greater scrutiny is placed upon considering who undertakes a fire risk assessment, how they are undertaken and their coverage. How much of the building that is not under their direct control should be considered and included in the fire risk assessment process for example?
Recent statistics, suggest that approximately 28 fires occur within residential apartments in England and Wales every day, yet to date, because of how the Fire Safety Order works, most of the fire risk assessments undertaken have only considered the common areas in residential buildings.
Now, under the changes made, responsible persons are now required to not only undertake the assessments with greater coverage, but also undertake more checks on and consider fire doors, including those under the control of tenants as well as more regular/formal checks on essential fire safety equipment including lifts.
This now means that managers and agents have to extend the coverage of their assessments into the tenants demised areas, the external wall systems and implement new, more stringent fire safety management controls and practices.
The obvious access issues surrounding this issue together with the current building insurance and professional indemnity landscape present a number of limitations to agents and their clients as well as their professional advisors and wider supply chain.
The new Fire Risk Assessments will need to cover, what boils down to now a more ‘whole building’ approach. The number of fires that start in the communal areas of residential blocks is exceedingly small in comparison to those starting within the flats themselves yet for years agents, owners and assessors ignored the tenant’s demised areas where the fire risks are greater. Managing agents and owners have understandably been looking to limit the scope of fire risk assessments in areas only under their direct control, sometimes due to a lack of understanding or inadequate advice received from ill-informed assessors and sometimes, let us be frank, because tenants themselves fail to cooperate and allow such access.
Even those who have taken a more whole building approach, often fail to consider appropriate sample levels and sufficient representation of the various archetype of residential apartments. Assessors have often relied upon too small/restricted sample, meaning that very often essential understanding about equipment and layout get missed or excluded from the assessment itself.
New technologies such as new alarm/suppression systems are being introduced which are often miss-understood or even excluded by some assessors, which again reduces the suitability and sufficiency of the fire risk assessments undertaken, putting owners, managers and of course residents at risk
We have seen too many instances where risk assessment companies who are covered through a national quality scheme for fire risk assessments, actually suggest that as they are only considering the common areas of large block of apartments, that there is no sleeping risk associated with the building and/or omitted the provision of sprinklers or fire alarm equipment within the tenants’ demised areas.
What about the external wall?
External walls have received significant amounts of coverage since Grenfell and the advice and guidance offered by the Government and others, has been confusing and often contradictory. The introduction and use of the EWS1 scheme for example has presented a number of concerns for all those involved.
Consideration of the external walls can be complex and difficult to understand without expert knowledge and in-depth consideration of the wall’s composition. Understanding the configuration and the wider fire strategy adopted within the building are often missed with assessors relying upon simply reviewing an EWS1 form. The risks associated with the external wall including any attachments now should, following the publication of the British Standard’s new PAS9980, be considered through a Fire Risk Appraisal and Assessment of the External Wall (FRAEW), and as the PAS suggests, it is recognised that the development of an FRAEW is not necessarily within the competence of the typical fire risk assessor who carries out a typical FRA for a block of flats or apartments.
All too often, due to misunderstanding or ignorance, assessors rely upon EWS1 forms when considering the risks associated with the walls, even though the EWS1 scheme does not provide the consideration of risk necessary under the new legislation but focus on the financial/valuation based risks only.
One of the other major problems is that many fire risk assessors are not adequately insured to cover the full commentary/advice relating to these areas and exclude them. This together with the lack of competencies and insufficient testing of competence for residential fire risk assessors means that for managers/owners, deciding who undertakes the fire risk assessment now, must come with a greater degree of competency checking and analysis before selection and instruction. Failure to undertake such checks could be extremely costly in the long run.
In the recent consultation offered by the Government on the Building Safety Act, the Government suggested that:
“Ongoing effective arrangements for managing building safety risks should NOT be reliant on previously used, short-term, interim measures such as the use of a waking watch. There is no independently evaluated evidence on the efficacy of waking watch, and it has been misused to the financial disadvantage of leaseholders.”
The provision of ill-informed or inappropriate ‘interim measures’ within assessments can be extremely costly, especially where the assessor has failed to take sufficient cognisance of the collective effect of the fire safety measures holistically, as opposed to each measure in isolation.
The future…
Going forward, fire risk assessments must, not only cover the common areas, but for a true picture of the fire risks associated with the whole building, cover a reasonable sample of the tenants’ demised areas, consider the external walls and the risks posed by them as well as consider the protection and preventative measures separating the tenant’s demised areas and the common areas. Assessments must also consider proportionate risk controls rather than short term interim measures where possible.
These changes, including over 35 new activities and requirements which we have identified, means that owners, managers and agents have to reconsider their fire risk assessment and management systems, scopes, and approaches urgently if they are going to protect themselves from unnecessary legal action, costs and loss of reputation.
The Act also has introduced some interesting elements when it comes to how senior management teams could be held to account for their actions/omissions especially in respect of the new offences of consent, connivence and neglect.
Fire risk assessments must have a greater interplay with the management systems and arrangements deployed for building safety as a whole, and the steps emanating from them have to be managed promptly through effective, scalable and configurable technology.
Today, in our experience, many property managers have some technology which support them in managing building safety. This may include everything from spreadsheets to specific software systems (or a mixture of both). However, these will have to be scaled up and out (or replaced) to accommodate the new requirements and regime if already hard pressed, time poor managers are able to keep up with the requirements and leverage technology to simplify and ease the administrative burden the new regime presents.