Guidance

Fire Safety Order interaction with the new regime for higher-risk buildings: factsheet

Updated 5 April 2022

This guidance was withdrawn on 25 July 2022

This guidance is withdrawn as it is no longer current. Please see the latest guidance on the Building Safety Act.

Ensuring the Fire Safety Order and Building Safety regime work effectively together

What are we going to do?

We are ensuring that the Regulatory Reform (Fire Safety) Order 2005 (the FSO) and the new, more stringent regulatory regime for higher-risk buildings provided in the Building Safety Bill work effectively together. The new regime places duties on an Accountable Person (AP) responsible for ensuring building safety.

The Fire Safety clause in the Building Safety Bill amends the FSO to strengthen fire safety requirements for non-domestic premises which include the common parts of high-rise residential buildings subject to the new regime. The FSO places fire safety duties on the Responsible Person (RP) who has control of these premises.

For lower-rise residential buildings (residential buildings less than 18 metres in height or fewer than 7 storeys) which are outside of the scope of the Building Safety Bill provisions for higher-risk buildings, the strengthened FSO and the Housing Act 2004 will continue to regulate how standards are enforced to manage the overall safety of residents.

Details of the Fire Safety clause in the Building Safety Bill can be found in the ‘Amendments to the Regulatory Reform (Fire Safety) Order 2005: factsheet’.

How are we going to do it?

Cross-government work will ensure that the FSO proportionately aligns with the new building safety regime to protect residents’ safety in high-rise residential buildings.

When operating in a higher-risk building:

• If the RP is also the AP, they will be required to register with the new Building Safety Regulator, and should be able to combine some of their regulated activities to comply with both regimes.
• If the RP is not the AP, they are solely subject to the requirements of the FSO. They will still be required to cooperate with the AP(s) to support a whole-system approach to the management of fire safety in the building by coordinating their regulated activities while meeting their respective obligations. To support this, the RP will be required to take reasonable steps to ascertain who is an Accountable Person (AP) for their premises and record this information (and share it with a new RP if one is taking over their duties), as they must do where there are other RP for the same premises.

We will publish guidance to support the RP to comply with FSO duties including in respect of the AP.

The new Building Safety Regulator and Fire and Rescue Authorities will also be required to cooperate in relation to the exercise of their functions, and may disclose information in connection with these functions to each other and to local authorities. Similar collaboration arrangements will apply between the new Regulator and Crown Premises Fire Safety Inspectors where appropriate.

Background

The FSO regulates fire safety in non-domestic premises in England and Wales, including workplaces and the common parts of residential buildings which contain two or more domestic premises. The FSO requires a Responsible Person (generally, the owner, occupier/employer or managing agent) to assess risks of fire to relevant persons and to put in place safety measures to remove or mitigate them and enable the safe occupation and use of their premises.

The Housing Act applies to all residential buildings and the Fire Safety Act 2021 clarifies that the common parts to which the FSO applies include the structure, external walls (including cladding), balconies and flat entrance doors of buildings containing two or more sets of domestic premises whatever their height.

The Building Safety Bill will introduce a new, more stringent regulatory regime covering the entirety of higher-risk buildings in England, focusing on building safety and standards. This is intended to complement the FSO and Housing Act. New design and construction requirements will apply to high-rise residential buildings, as well as care homes and hospitals which are at least 18 metres in height or at least seven storeys. New requirements specific to the occupation of high-rise residential buildings will also apply which will be centred on the role of the Accountable Person as the owner of under an obligation to maintain common parts.

How does the FSO interact with the new, more stringent building safety regime for higher-risk buildings?

The common parts and any other non-residential part of high-rise residential buildings will remain subject to the FSO and the local Fire and Rescue Authority’s fire safety inspection regime.

There will be a regulatory ‘overlap’ in these parts because the whole building will be subject to the new regime and enforcement by the new Building Safety Regulator.

How will the FSO align with the new, more stringent building safety regime for high-rise residential and other in scope buildings where both regimes apply?

In addition to the RP and the AP being required to cooperate:

• All RPs must record their fire risk assessment and fire safety arrangements. The recorded fire risk assessment (and potentially any of the relevant fire safety information the RP will be required to provide to an incoming RP) can contribute evidence on fire risks and mitigation measures supporting the AP’s safety case report, to the extent required to comply with the FSO for the relevant premises.

• The RP must provide residents with specific and comprehensible information about relevant fire safety matters. These relevant fire safety matters are listed in new FSO article 22A introduced in the Bill’s Fire Safety clause, and the communication of this information can be taken into consideration to support or complement AP duties to provide information to residents.

• The outgoing RP must keep and share with their successor(s) records of relevant fire safety information on their premises. This will include building fire safety information relating to planning and construction, and the fire risk assessment. The preservation of this information between successive RPs can support or complement the approach to the ‘golden thread’ approach to building safety information under the new regime. It will also ensure sufficient building fire safety information is recorded and maintained in cases where the building is subject to both regimes or in cases where a building moves outside the scope of the new regulatory regime.

• Existing requirements to consult the relevant enforcing authority under the FSO on building plans or alterations will remain in place. The FSO requires local (building control) authorities to consult an FSO enforcing authority on plans to erect a building, make any extension of, structural alteration to, or change the use of a building before passing the plans. The new Building Safety Regulator will become the building control body at all stages of a building’s lifecycle and, in particular under the gateway 2 and 3 regime, and be able to request assistance from the relevant FSO enforcing authority.

• The RP for non-residential higher-risk buildings can be the recipient and keeper of building safety information under the new regime. Different dutyholders at the design and construction stages of the building will be responsible for keeping and maintaining the golden thread of information. On completion of construction, the information will be handed over to the AP for a high-rise residential building, but to the RP for high-rise hospitals and care homes.

How will you support RPs who are APs or share responsibilities with APs to comply with the FSO and support AP compliance?

We are overhauling existing FSO guidance to reflect the legislative changes arising from the Fire Safety Act, secondary regulations to implement Grenfell Tower Inquiry Phase 1 recommendations and amendments to the FSO in the Building Safety Bill.

The guidance will support RPs for all regulated premises and cover requirements specific to premises and buildings subject to both the FSO and the new, more stringent regulatory regime.

Does the RP need to carry out their duties under the FSO for premises which are contained within a building in scope of the new building safety regime?

Yes. Regardless of whether the RP is operating in a higher-risk building, the RP must carry out regulated activities to comply with the FSO. For example, the RP must still carry out, review and record the fire risk assessment in relation to the common parts of a high-rise residential building.

Does the RP need to carry out their duties under the FSO if they are also the AP and already comply with the requirements of the new regime?

Yes. The RP who is an AP must still comply with the FSO in a higher-risk building and will remain subject to enforcement action by the local Fire and Rescue Authority.

Compliance with the new, more stringent regulatory regime will not automatically guarantee compliance with FSO requirements. Although the alignment of the FSO with the new, more stringent building safety regime means that some FSO requirements can be subsumed into AP duties, the RP who is an AP must ensure they comply with both regimes.

Are there additional duties the RP needs to carry out if operating in a higher-risk building?

If the RP has responsibilities in relation to a high-rise residential building, they must:

• register as an AP, if appropriate, and take reasonable steps to ascertain whether they share duties with any AP in relation to their premises, and
• comply with AP duties, if appropriate, and cooperate with any other AP(s) to enable them to meet their respective obligations under either regime

Will the RP be subject to both the Building Safety Bill and FSO enforcement in a higher-risk building?

Only the RP who is an AP may be subject to enforcement action under either regime; the Building Safety Regulator and the local Fire and Rescue Authority providing assistance to it will need to agree which regime to apply in such cases.

The RP will continue to be subject to FSO enforcement action during a fire safety inspection or audit of the premises.

When a fire inspector visits a higher-risk building as an ‘authorised person’ on behalf of the new Building Safety Regulator (either on their own or as part of a multi-disciplinary team), they will be providing fire safety expertise to the Regulator in enforcing the new building safety regime.

Will the Building Safety Manager be subject to the FSO?

The Building Safety Manager will not be a dutyholder under the new, more stringent regime of the Building Safety Bill. While the Building Safety Manager will be appointed by contract by the Principal Accountable Person to undertake certain tasks, and provide expertise and assistance, accountability for meeting the duties for occupied high-rise residential buildings set out by the Building Safety Bill will sit with Accountable Persons.

However, the Building Safety Manager may be subject to FSO requirements – and enforcement – to the extent of their control of the common parts in high-rise residential buildings when undertaking fire safety activities on behalf of the Responsible Person (being the same person as the Accountable Person), or as the Responsible Person for these premises.

How will the RP be able to demonstrate their compliance with cooperation and coordination duties in respect of other RPs or APs where there is a compliance issue?

The RP may wish to keep a record of their activities to engage and cooperate with other RPs or APs to use as evidence in case of enforcement action being taken due to non-compliance with duties between them. This would demonstrate compliance with their duties to the extent permitted in these circumstances.

Key facts

What is a Responsible Person (RP)?

The RP is a person responsible for ensuring their own safety and the safety of others from fire risks in FSO-regulated premises. This is normally a building owner, an employer, or any other person in control of the premises. If you are unsure whether you are a RP or about your FSO duties, see available guidance.

In a higher-risk building the RP may also be an AP, as defined in the Bill.

What is an Accountable Person (AP)?

For occupied higher-risk buildings, the AP will have a legal estate in possession of the property – in most cases, the freeholder(s) – or will be under a relevant repairing obligation for any of the common parts – as lessees of the property. They could be an individual, a partnership or a corporate body.

An AP for a higher-risk building may also be a RP, as defined in the FSO.

What is the new, more stringent regulatory regime for higher-risk buildings outlined by the Building Safety Bill?

The Building Safety Bill and subordinate legislation will strengthen the regulatory oversight of higher-risk buildings throughout their lifecycle, by implementing a new building control process during design and construction, and a safety case regime specifically designed for high-rise residential buildings.

What is a higher-risk building?

The new regulatory regime will apply to buildings in England that are at least 18 metres in height or have at least 7 storeys and have at least two residential units. These are high-rise residential and other in scope buildings.

It is intended that the scope of the new regime will be expanded to include care homes and hospitals meeting the same height threshold, specifically in relation to their design and construction, through secondary legislation.