Record-breaking fire safety fine on Bupa Care Services explained

The start of the new year saw the highest ever fine imposed for fire safety breaches under the Regulatory Reform (Fire Safety) Order 2005. Hannah Eales, Partner, and Alfie Cranmer, Associate, from Kingsley Napley LLP, examine the record-breaking aspects of the case.

In a stark signal of how seriously breaches of the Fire Safety Order are taken, particularly with regard to protecting vulnerable service users, Bupa Care Services (ANS) Limited were ordered to pay a fine of £937,500 and prosecution costs of £104,000, totalling a liability of over £1.04m.

Like so many fire safety breaches, the incident leading to the prosecution of Bupa was tragic. In March 2016, 69-year-old Cedric Skyers, who was wheelchair-bound, died when his cigarette set his clothes on fire in a garden shelter at Bupa Manley Court, Brockley. Mr Skyers had been prescribed paraffin-based emollient cream, although it was unclear how often it was used.  These creams can soak into clothes making them flammable.

Bupa policy required emollient cream users to have further precautions for smoking, such as a smoking apron or supervision, but this was not done in Mr Skyers case.

The prosecution of Bupa Care Services

The London Fire Brigade (LFB) commenced an investigation immediately following the incident. The prosecution began in December 2019.

The original charges were that the following breaches of the Fire Safety Order occurred:

• Article 9 (requirement to have a suitable and sufficient risk assessment)
• Article 11 (appropriate arrangements for the effective planning, organisation, control, monitoring and review of preventive and protective measures)
• Article 21 (adequate safety training to employees)

Bupa brought an initial challenge in relation to the alleged breaches of Articles 9 and 11, arguing that they could not require individual smoking risk assessments for residents who smoked, as such assessments were not capable of being a “general fire precaution”. Following legal argument, the judge ruled that the prosecution could continue on the basis that Article 11 certainly did require something to be carried out in relation to a smoking risk assessment at the premises, even if a risk assessment for each smoking individual was itself beyond what the Fire Safety Order requires.

Bupa then asserted that:

• The limited breach of Article 11 that they accepted and that related only to certain aspects of management of paraffin-based emollient creams was not a contributing cause of Mr Skyers’ death, as it could not be proved he had used the creams shortly before the fire
• In the context of a residential care home, the Fire Safety Order could not oblige the responsible person to make fire safety arrangements where the resident did not consent. Bupa made reference to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which requires personal care to be delivered with respect for the individual’s consent, and precautions such as supervision of an individual’s smoking were personal care within those regulations.

The judge rejected both of Bupa’s arguments. He considered the precautions identified in BUPA policy that should have been in place to ensure smokers were safe from fire were matters of general application for residents, and not matters of clinical judgement in an individual’s care plan. He therefore considered the Article 11 offence was more extensive and, on the facts, contributed to the fatality. Further, he considered that keeping a watch on a smoking resident could not be considered “care” or “treatment” within the care regulations.

Bupa then entered a guilty plea to the Article 11 offence on the broader basis that it had failed to:

• ensure staff understood the risks from the use of emollient creams
• warn residents using paraffin-based products not to smoke, or require precautions to be taken such as the use of a smock or apron
• instruct staff not to leave a resident using paraffin-based products smoking unsupervised
• carry out an individual smoking risk assessment of the resident as normal with the control measures in place
• fully implement recommendations and consequential remedial actions identified in the premises fire risk assessment concerning paraffin-based skin medication (i.e. to have processes for managing individual smoking risk assessments)
• ensure that the premises’ Home Manager participated in and completed Bupa’s mandatory fire safety training

The extent of the fine

The judge used the Sentencing Council’s Health & Safety guidelines to calculate the fine imposed. Those familiar with these guidelines will know that courts determine the offence category with reference to (1) the offender’s level of culpability, (2) the risk of harm created by the offence (with consideration of both the seriousness of the harm risked and the likelihood of that harm arising) and (3) the size of the organisation, based on annual turnover.

In relation to culpability, the judge considered this to be ‘high’, noting that the risks of emollient cream by smokers was well known by 2016 and Bupa had been specifically warned of the risk by the LFB and their own fire risk assessor. In relation to the risk of harm created, the judge determined that the seriousness of harm risked was ‘level A’ but the likelihood of harm was ‘medium’, which meant that Bupa fell within ‘harm category 2’. As Bupa fell within the ‘large organisation’ category (i.e. turnover exceeding £50m), the starting point according to the guidelines was £1.1m, but in reflecting that the breaches had actually caused a fatality the judge set the starting point for his calculation at a slightly higher figure within the range at £1.5m.

The judge discounted £250,000 in recognition of the current pressures on the care sector, partly due to the pandemic. He then gave a further 25% discount as credit for Bupa’s guilty plea, thus resulting in a final figure of £937,500.

Article 11 of the Fire Safety Order

Article 11 of the Fire Safety Order states:

‘The responsible person must make and give effect to such arrangements as are appropriate, having regard to the size of his undertaking and the nature of its activities, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.’

This incorporates into fire safety law the wording from the duty in Regulation 5 of the Management of Health and Safety at Work Regulations 1999. It is a broad duty to manage the general fire precautions at the premises. What this requires in practice will depend on the complexity and extent of the general fire precautions. A more complex premises might typically require an extensive suite of fire safety policies and management activity to ensure those policies are being implemented. Article 11 is often used by enforcing authorities in cases where the fire risk assessment has identified necessary actions, but the responsible person has failed to act on them without any reasonable justification. It is something of a ‘catch all’ duty as a wide range of fire safety deficiencies – from untrained staff to poor maintenance – might properly be considered evidence that management arrangements must have failed. The use of Article 11, as in this case, perhaps demonstrates that the fire risks in a residential care home require particularly extensive fire safety arrangements and very assiduous management.

The consequences of the prosecution

Following the case, the LFB’s Assistant Commissioner for Fire Safety, Paul Jennings, said:

“If there can be anything constructive to come from this, we hope that it will be that anyone who has a legal responsibility for fire safety in a building – whether as a landlord, property manager, care home provider or any other setting –  takes note and makes sure they are complying with the law.”

It is clear that the extent of personal and serious financial consequences when fire safety responsibilities are not upheld can be significant. Large organisations such as Bupa would be wise to review their existing risk assessments and fire safety policies carefully. The Bupa case raises an interesting point as to the scope of the Fire Safety Order in respect of individual risk assessments for smokers – the Order has always been wide ranging in its effect, but Bupa argued that such an interpretation was outside its far-reaching scope. Given article 11 requires the responsible person to have ‘regard to the size of his undertaking and the nature of its activities’, care homes and indeed all organisations should consider their processes around individual risk assessments, and how these are dealt with in the context of the particular environment of the premises in question. Further to the Bupa prosecution, it will be interesting to see how the courts interpret the scope of article 11.

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