I recently had the pleasure of being a panellist on a webinar which considered the impact of fire and building safety reforms, ‘Post-Hackitt: Building a Safer Future’. In this webinar, we discussed the HHSRS regulatory regime, in the context of multi-occupied residential buildings and how the system interacts with Fire Safety Order regulatory regimes and the impact of proposed reforms to building safety regulation.
Since the introduction of the Housing Health and Safety Rating System (HHSRS) in 2006, questions have remained around its interaction with the Regulatory Reform (Fire Safety) Order 2005 (the FSO) in the common areas of multi-occupied residential buildings. There are obviously existing requirements for local housing authorities (LHAs) to consult with the Fire and Rescue Service (FRS) when enforcing fire-related hazards in multi-occupied buildings. Current guidance relies on LHAs and the FRS forming local protocols on the delivery of fire safety enforcement in applicable common areas of residential multi-occupied buildings but this results in inconsistencies in enforcement across LA boundaries. The government is now pressing ahead with reforms to both sets of enforcement measures alongside the overhaul of the building safety regime, which itself is spearheaded by the Health and Safety Executive (HSE).
The government is imminently proposing to undertake a review of the HHSRS. The main aims of the review are to bring the HHSRS up to date, improve engagement and accessibility to different stakeholders and improve the system as a tool for LHAs. Fire safety in high rise multi-occupied buildings is likely to form a critical aspect of the review of the HHSRS and will impact on each of the proposed areas of review highlighted previously. The government has already stated that it intends to take this opportunity to ensure the HHSRS aligns with and works effectively alongside FSO and building safety reforms.
The Fire Safety Bill (FSB) seeks to clarify that the FSO applies to external walls (including cladding, balconies and windows) and individual flat entrance doors in multi-occupied residential buildings. The FSO will continue to complement the existing LHAs powers in relation to the HHSRS and housing conditions enforcement. The FSB, under Clause 1, amends article 6 of the FSO by inserting a new paragraph (1A) that makes it clear that the FSO applies when the premises contains two or more sets of domestic premises, to:
- The building’s structure, external walls and any common parts; this includes doors or windows in those walls and anything attached to the exterior of those walls, which includes cladding, insulation, fixings and balconies.
- Doors between domestic premises and common parts; this includes flat entrance doors and other doors adjacent to common parts, that provide an escape route.
It is safe to say that there is still disagreement within the fire industry sector as to the applicability of the building’s structure and external walls to FSO requirements. An example of this is guidance issued by the Fire Industry Association on the issue of cladding and external wall construction in FRAs for multi-occupied residential premises. The guidance expresses the opinion that the FSO was never ‘intended to, or interpreted such as to, include the external walls of a residential block’. Also stating that whilst fire risk assessors might make general comments in relation to, for instance, cladding, it is the FIAs opinion, that this is outside the scope of the fire risk assessment. It is acknowledged by both professional bodies and the government that advice on external wall construction and cladding should be given only by a chartered fire engineer who has specific experience in external wall construction. The guidance further recognises that a visual inspection of cladding will not enable identification of the cladding product or its constituent materials, which can only be achieved through suitable sampling methods. There are some similarities here to the challenges faced by LHA enforcing authorities in assessing risk using the HHSRS in relation to fire safety and the use of ‘preliminary assessment’ protocols in relation to HHSRS assessments in certain circumstances. There is however an acceptance that flat entrance doors always fell within the scope of the Fire Safety Order and, hence, fire risk assessments.
The government currently has an open consultation on the detailed reforms of the fire safety order. The ‘Home Office – Fire Safety Government Consultation’ is open until 12 October 2020. The proposals require ‘responsible persons’ to provide local FRSs with information about the design of the building’s external walls and details of the materials they are constructed from and any further material changes made. In relation to fire doors, there are proposals for mandatory checks of the self-closing devices in multi-occupied residential buildings including all fire doors in the non-domestic parts (the common parts) and all flat entrance fire doors. The frequency of checks depends on the height of the building and fire door location between three- and twelve-month intervals. Other requirements include providing the FRS with up-to-date fire safety and evacuation plans; the inclusion of premises information boxes containing key fire safety information; reporting requirements for malfunctioning lifts; the provision of fire safety information requirements to residents and way signage proposals.
Arguably the most radical changes that affect the building safety and regulation as presented by the draft Building Safety Bill (BSB). The BSB is part of a suite of measures and reforms the government has introduced following the recommendations of the ‘Independent Review of Building Regulations and Fire Safety Review’, published in May 2018, Dame Judith Hackitt’s (the Hackitt Review). The review found that the regulatory system of building regulations and fire safety is not fit for purpose for HRRBs. It highlighted that regulations and guidance are often misunderstood or misinterpreted, the culture to do things as quickly and cheaply as possible means that concerns are often ignored and some of those undertaking building work fail to prioritise safety. The review also found that there is ambiguity as to where responsibilities lie and inadequate regulatory oversight and enforcement.
An integral element of the review recommendations is the establishment of a new Joint Competent Authority consisting of LA building control, the FRS and HSE personnel. The proposed JCA will be called the Building Safety Regulator (BSR), overseen by the HSE. It is proposed that the BSR will have oversight and implementation of the new building safety regime and administer and promote competence among the built environment industry and regulators. The BSR role will also include handling unresolved resident complaints and safety concerns; the establishment of a national register of buildings in scope; and, a research and advisory role in relation to regulatory and building safety requirements based on emerging and identified building safety risks.
The new regulatory framework will supplement the existing requirements that are already in place in multi-occupied residential buildings under the FSO and work alongside the enforcement powers LHAs have under the Housing Act 2004. The government has already highlighted that both existing regimes (HHSRS and FSO requirements) will continue to play a role in managing the overall safety in multi-occupied residential buildings and responding to resident complaints.
Initially, the BSB will apply to all multi-occupied residential buildings of 18 metres or more in height, or more than six storeys, whichever is reached first, this will be kept under review, however, and under the design construction ‘gateway’ process, there are three gateway points that will apply. These are the ‘planning’, ‘construction’ and ‘before occupation’ gateways which incorporate a system of evidencing competency in design, construction and management and the retention of a golden thread of key datasets on building and fire safety at each stage. The ‘golden thread’ of information is a requirement on those responsible to keep and maintain information during the design and construction of a building. Over the lifetime of a building, the key dataset is updated and transferred to those accountable for building and fire safety at each gateway stage.
All buildings within the scope of the new more stringent regulatory regime will be required to register the building with the BSR within a prescribed time. The accountable person must also apply to the BSR for a ‘Building Assurance Certificate’ for occupied buildings which should be made available to residents. As part of the building assurance certificate requirements, the accountable person must submit:
- A ‘resident engagement strategy’ which outlines how the accountable person, and building safety manager, will engage residents, handle resident complaints and provide residents with key information on building and fire safety and evacuation plans.
- A building ‘safety case report’ which explains how fire and structural risks in a building are being managed.
There will be an ongoing duty on those accountable to assess the building safety risks relating to their building and take reasonable and practicable steps to prevent ‘catastrophic’ accidents and/or fires arising from those risks. There are clearly concerns around how the new regime would fit alongside the existing regimes and concerns that local authorities could potentially be notified of building and fire safety issues through several regulatory regimes. There is clearly an opportunity to ensure that the links between the HHSRS, fire and building safety regulation are strengthened, improving buildings safety and better engage residents and addressing their concerns. The reforms are going to impact all sectors involved in building safety and management including fire safety, building control, environmental health, planning, housing suppliers, the construction industry and building managers and each should ensure their voice is heard in relation to its development.
If you haven’t already viewed it, you may be interested in the RHE e-Learning course ‘HHSRS Assessment of High-rise Residential with Cladding: Fire Addendum’. The course outlines the key principles for the assessment of high-rise residential buildings (HHRBs) with cladding, using the HHSRS. The course will familiarise assessors with this addendum, together with matters that should be considered when undertaking assessments of HRRBs and can be found here.