Mike Fox, founder and MD of MAF Associates, looks back on what he argues was a frustratingly uneventful year for the fire industry, as we anticipate the enforcement of the Fire Safety Act 2021, the official unveiling of PAS9980, and the passage of the Building Safety Bill. But, are we ready for 2022?
Mike Fox, founder and MD of MAF Associates
The recent outcry over the sponsorship deal between Kingspan and the Mercedes F1 team shows us that memories of Grenfell remain raw in the public psyche, and with so much still to be resolved, that’s hardly a surprise. As we enter 2022, the crisis caused by the Grenfell fire is far from over and, while the imposition of the Fire Safety Act 2021 (FSA) and Building Safety Bill (BSB) will provide some much-needed clarity on what is required, the challenge now is how we fulfil those obligations.
Let me be very clear, right from the outset, that I support both the FSA and BSB. What is less welcome is actions such as that taken by the Welsh government on October 1st, when they announced that they would start to enforce the FSA, when in reality they had nothing to enforce. If you will permit me a seasonal analogy, the FSA is a Christmas tree awaiting its decorations. PAS is the ornaments that will go on the tree. One without the other is not only ineffectual, but ultimately pointless.
Back in April, everyone breathed a sigh of relief when the FSA was finally signed into law, but with delays to PAS, 2021 has been a largely wasted year for a fire industry craving a sense of direction from HM Government. Even once we do have this clarification, we will need to know what the Government plans to do in terms of enforcement, especially as it’s going to take several years to make every building compliant, given the number of sites involved and the worrying lack of qualified external Fire Risk Assessors (FRAs). It’s not all doom and gloom, but it is challenging, which is why I will use this article to explain why we need pragmatism over intransigence, and why nothing is black and white.
To summarise, the FSA provides clarity on the duty of the Responsible Person (RP) to ensure a compliant fire risk assessment of their building is undertaken. Previously, there was some doubt over the requirement to include the external walls of the building in even the basic Type 1 fire risk assessment and, in the majority of cases, this was not included. The FSA provides clarity that the external wall assessment does need to be undertaken, along with a standard methodology as to how it should be assessed.
PAS9980 outlines how the fire risk appraisal of external wall construction should be conducted and how the cladding of existing blocks of flats should be appraised. The expectation is that the FSA and PAS9980 will be with us in January 2022 and, once PAS9980 is published, the RP will be required to update their fire risk assessment accordingly, although a precise date for enforcement to begin has yet to be confirmed.
With so much uncertainty and lack of direction over the FSA and PAS – and let’s not even mention EWS1 forms – 2021 has been a year of prevarication for many RPs, who feel they need to wait until everything is published before engaging new-style fire risk assessments and façade surveys. I take no pleasure in telling you that this is a mistake. One thing that we do know for definite is that the changes made to the Fire Safety Order 2005 (FSO) by the FSA are both clear and far-reaching.
Clause 1(b), which inserts a new paragraph (1A) into Article 6, makes clear that the Fire Safety Order applies in any building containing two or more sets of domestic premises, to:
The Order requires the RP to undertake or engage (and regularly review) a fire risk assessment and, as a result, to put in place measures to remove, or reduce, so far as is reasonable, risk from fire or the spread of fire. In this way, anyone lawfully on the premises who could be affected by fire (relevant persons) should be protected from that risk.
The upshot is that, while much of the specific guidance remains to be finalised, we know that all residential blocks of two or more units will require an external fire risk assessment. We also know that there is a national shortage of External FRAs, which means that, once the FSA is in force and PAS is published, it’s going to take months or even years to get your buildings inspected. This is not only an inconvenience as, depending on how strict the enforcement of the FSA turns out to be, it could have criminal consequences for the RP.
Credit: ConstantinStanciu/AlamyStock
While threats of criminal sanction are very real, they are not likely to happen any time soon, and certainly not to anyone who has made a genuine effort to get their building inspected, provided that they can prove that all reasonable efforts have been made. The true challenge here is the need to make the Government realise the scale of the challenge we now face – namely that the new regulations are unachievable in the medium term – and for everyone to work together towards an eventual resolution. This will require not only a prioritisation of available resources to the most urgent buildings, but also a level of pragmatism and flexibility from those charged with enforcing the FSA, who must surely develop an appreciation of the problems we face.
After a year in which the fire industry seemed to stand still, with no final guidance on PAS, plentiful revelations (but no further recommendations) from the Grenfell Inquiry and no perceivable interest in government on how the challenges facing the industry can be solved, it is largely down to FRAs and other industry professionals to chart a path out of this crisis.
As if all of this wasn’t enough to contend with, we can look forward to the introduction of the Building Safety Bill (BSB) sometime in mid-2022. For the sake of focus, we will only discuss elements relating to fire safety and inspection in this article, although any RPs reading this will probably want to study the whole thing and do their own research.
Put simply, the fire safety clause in the BSB amends the FSO to strengthen fire safety requirements for non-domestic premises over 18 metres. which will include the common parts of high-rise residential buildings. The new regime places duties on an Accountable Person (AP) responsible for ensuring building safety, in addition to the RP, although the RP is the person required to register with the new Building Safety Regulator. The AP could be an individual, partnership or company in ownership of, with a lease over, or a relevant repairing obligation to, the property in question.
The RP will be required to cooperate with the AP to support a whole-system approach to the management of fire safety in the building by coordinating their regulated activities, while simultaneously meeting their respective obligations, which according to HM Government include:
The BSB is highly relevant because it applies to high-rise residential buildings, which are the buildings most directly affected by all of the key events post-Grenfell, and are also likely to remain the focus for external assessment and redemption in 2022. Like all safety enhancements, it is to be welcomed, but it does present another layer of bureaucracy, and potential uncertainty, for those charged with implementing it on the ground.
There are some chinks of positivity to take into the new year. PAS9980 is a long document that will at least give us a clear methodology for a more risk-based approach to fire safety, providing a benchmark for internal and external FRAs moving forward. It’s just a shame that only now are we finally getting this, almost five years after Grenfell, a period in which the industry has been largely rudderless, moving from one kneejerk government announcement to the next. This really is no way to regulate a sector on which so many lives, quite literally, depend.
As an industry, we don’t need to compete on this. There is more than enough work to go round. The challenge will be to meet demand, particularly for external FRAs, which is why we need to combine our short-term efforts to ensure compliance with a long-term commitment to training and professional development, starting with apprenticeships and going right up to certification and accreditation at the most senior levels.
My personal hope is that we can finally move forward in 2022, identify the most urgent cases, arrange inspections and move as many buildings as possible to full compliance. To do this, we need RPs to realise the seriousness of their responsibilities under the new regime, and we need them to start engaging with fire professionals to establish a moving pipeline of inspections, certifications and, where necessary, rectifications. If this does not happen, both government inspectors and the Fire & Rescue Service will start to come down hard, and it will be those who have made the least effort to comply that they come for first.
Along with many colleagues in the fire industry, I am working with groups such as BAFE, ARMA and the FIA Fire Risk Assessors’ Board, of which I am a member, to ensure we are doing everything possible to educate and engage on the FSA, BSB and FSO.
In that spirit of cooperation, let’s all make education and engagement a priority for 2022. We’re all working towards the same goal after all, which is to finally bring an end to the post-Grenfell nightmare. It won’t happen overnight, but together we can accelerate the process.
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