The fragmented nature of fire safety enforcement and a lack of centralised guidance are two of the factors that muddy the waters of the new regime, according to a panel discussion at the Fire Conference in October.
Assistant Commissioner (Fire Safety) of the London Fire Brigade, Charlie Pugsley, said that one of the problems was the diversity of building stock across the country, contrasting the built environment covered by county fire services with urban ones such as London.
He said there’s a different understanding of risk and risk appetite, and often interpretation is quite different among fire safety professionals.
“You must have enforcement because while we want compliance by working with people and avoiding enforcement, if…there’s never any penalty for the people who have the most significant breaches, why would people voluntarily comply, when there are so many other pressures they might see as more important?”
Nick Coombe, Head of the Protection Policy Reform Unit at the National Fire Chiefs Council, said there is a significant variation in the levels of fines fire services achieve across the country, and between the level of investment put into fire service protection departments.
The fire and rescue service has had to get used to the concepts of the responsible person and competency that came out of the new legislation [such as the Regulatory Reform (Fire Safety) Order 2005].
“One of the main issues is about appetite of risk,” said Coombe. “We moved into this new legislation in 2006, it was all meant to be on the responsible person, we were meant to be a lighter touch regulatory body, then post-Grenfell we’ve been told we’ve got to change by being harder and looking more.
“There’s a lot of work to do to upskill, because we’ve [previously] based it on the presumption that buildings were built correctly and that we just managed the building afterwards. We now know that this is not the case.”
Jonny Murphy, Head of Enforcement Strategy at the Department of Levelling Up, Housing and Communities, outlined there is a very long tail of un-remediated buildings over 18m which haven’t been fixed quickly enough.
While DLUHC agrees that consistency of enforcement is important, it wouldn’t want to see that seize up the regulatory sector for people not to take action. Regulatory partners need to work in a coherent way between themselves to delineate responsibilities, he explained.
“It’s about working together at a local level to work out which regulator is going to take the lead on a particular building – we don’t want to see multiple enforcement approaches being tried on the same building.”
Rhian Graves, a Partner at law firm DAC Beachcroft, said its clients have experienced wild variations across the country in terms of the approach of different fire services, the appetite for enforcement action, and the type of legal advice the fire service is getting.
“What our clients find challenging is that if they have a national footprint, they don’t always know what to expect when they have that regulatory interaction. This is coupled with the crossover of various regimes so that in the case of a care home, for example, it may be regulated by the CQC and the fire service may also be interested in it, and there might be an overlap between what they each want to regulate.
“Having certainty around that is really important to get dutyholders to buy in to that compliance effort.”
The Health and Safety Executive’s Francine Cheney said the Building Safety Regulator is working with fire and rescue services and other regulators to develop protocols and procedures, to enable greater efficiency and consistency when working together.
The HSE is very aware of the geographical differences and difficulties in prioritisation, but as a national regulator it can bring that consistency to the piece.
Graves said the Building Safety Act and all the legislation that flows from it could be seen as overwhelming. She advised organisations to start now by breaking down the legislation into small manageable chunks.
The legislation has many roots in the CDM [Construction Design and Management] regime and the Regulatory Reform Order in terms of the responsible person role, so there’s a lot there that people should already understand.
In response to an audience question about the lead authority for high rise buildings, Cheney said the Building Safety Act doesn’t remove responsibility for regulation from any other regulator, so the Fire Safety Order still applies, the Housing Act still applies, and all the other legislation that already existed still applies.
Who takes the lead will depend on who is best placed to address the issue at hand on a case-by-case basis.
“If we build on the communication and cooperation that has existed over the last few years putting the legislation in place, then I think we can work together and make sure people understand who is doing what.”
Coombe made the point that while Dame Judith Hackitt was very clear in her report that there should be a single regulator for high rise buildings, that hasn’t happened.
“I’m not saying it’s not going to work, but when you look at the legislation around occupation and mixed use, you’ve got bits that fall to us, bits that fall to Housing, bits that the regulator does – how is an accountable person going to map through that?…We need a culture change and people need to know where they stand, and I think we missed a bit of an opportunity there.”
Andrew Rich of the HSE said it’s still early days and it needs a whole culture change which will not happen overnight. Secondary legislation has only just come out, so it’s as new to the HSE as to everybody else.
There is already guidance out there – it’s about where to look –but nobody said it’s going to be easy.
Murphy said there needs to be a greater sense of accountability from people who are responsible for buildings, and those who advise them.
“It is a challenge to implement this new and quite complicated regime, but that’s not a good enough reason for not getting on with the job of making these buildings safer.
“There also needs to be a greater sense of accountability and urgency – for too long we’ve seen building owners sitting quite happy to allow their buildings to languish with unsafe cladding stuck on it.”
In response to a question based on Michael Gove’s reported comments that there were fewer rights for buying homes than buying washing machines, Jonny Murphy answered that houses are more complicated than washing machines, so there is a valid historical reason for that.
Through the Building Safety Act, very significant reforms which are quite challenging to implement have been brought forward, which will give better assurance as to how buildings are constructed. The government was trying to deal with the historical issues by putting up billions of pounds, that will eventually be recouped from the industry to remediate those unsafe buildings through the cladding funds, and is spending a huge amount of time and money on how to force building owners refusing to comply to fix those buildings.
It has also drawn up a contract with 50 major developers which means they’re going to go back and fix those buildings.
“Government is doing quite a lot to try and correct those historical wrongs, but we can’t go back and automatically undo them,” said Murphy.
“The wide-ranging reforms that the Building Safety Act has brought forward and the work that we are doing now [means] building safety is front and centre of the agenda – it’s something politicians really care about. There’s a very large number of people across government working on this, but it’s not as simple as just enacting consumer protection.”
