Soon after I began prosecuting fire safety cases over 12 years ago I was told by a senior fire safety officer that one day, there would be a flat fire which would make everybody sit up and take notice of the lack of fire safety provision in flats, houses of multiple occupancy, and shared accommodation.
I have had conduct of over 170 cases under the Fire Safety Order (FSO), prosecuting and defending, and dealing with appeals against enforcement and prohibition notices. Approximately one third of those cases have been prosecutions involving living accommodation. This percentage is reflected in the national statistics which show that approximately 500 prosecutions have taken place since the Fire Safety Order came into force in October 2006.
Despite agreements held between fire services and local Borough Councils in respect of joint investigations, inspections and cooperation, predominantly, it has been the Fire Safety Order and not The Housing Act that has been used to bring ‘rogue landlords’ to justice.
This unforeseen additional workload has to be considered against the background of consistent cuts to fire safety departments over the past 10 years. The same austerity cuts that have been applied to police services over recent years, have applied equally to fire authorities. Understandably, and quite rightly, those cuts have not necessarily hit the number of firefighters on the frontline, but fire appliances have been reduced, fire stations have been closed and staff numbers in community fire safety departments have been slashed.
This means that there has been a significant reduction in fire safety officers. These officers are often highly qualified, experienced fire fighters with a high level of technical understanding in how fires occur, how they progress and how people react in the event of fire. Part of their role is to educate and liaise with employers, owners and occupiers of premises, inspect and audit a wide range of buildings, and, where necessary, carry out enforcement powers in the event of non-compliance.
Until recently, the government would have defended those cuts by stating that the statistics show that the number of domestic fires have significantly decreased. In fact, this has been the advice the government has consistently received. Take, for example the now highly topical guidance put forward in the Fire safety in Purpose-Built Blocks of Flats (paras 19.6 and 19.7) which states:
Some enforcing authorities and fire risk assessors have been adopting a precautionary approach whereby, unless it can be proven that the standard of construction is adequate for ‘stay put’, the assumption should be that it is not.
This is considered unduly pessimistic. Indeed, such an approach is not justified by experience or statistical evidence from fires in blocks of flats… proposals of fire risk assessors, and requirements of enforcing authorities, based on a precautionary approach (eg abandonment of a ‘stay put’ policy simply because of difficulties in verifying compartmentation), should be questioned.
The guidance acknowledges the concerns of the enforcing authorities, who are informed by their well-trained, properly qualified, and significantly, experienced in firefighting, fire safety officers whose job is to prevent tragedies, such as that which has unfolded in the last week, taking place. But the guidance uses statistics to undermine the views of the professionals, and instead of providing them with the support needed to deal with frequent non-compliance, with more personnel and increased powers, an ‘us and them’ stand-off between those responsible for maintaining premises and the fire authorities has been encouraged.
I have been involved in numerous cases where the legitimate concerns of fire safety officers have been described as ‘overzealous’ and ‘unjustified’ by opposing lawyers and their experts.
That view has not been echoed by the courts. Judges have frequently expressed their concerns about the scale of non-compliance with the regulations and about their limited sentencing powers.
But the financial cuts have also prevented a number of fire service from taking prosecutions and or enforcement measures due to the fear of potential cost consequences of legal proceedings. There really is a ‘post code lottery’ in this regard. Some fire services simply don’t have the resources to take enforcement proceedings.
And the Fire Safety Order is not as easy to enforce as was initially anticipated. Fire safety officers have to enforce legislation which is unclear, and in some aspects, unhelpful. Neither the legislation nor the guidance documents which accompany it have been reviewed in the 10 years since its inception.
Identifying those responsible for premises or “responsible persons” is still a difficult process. Particularly where premises are owned and managed to run by corporate entities. Large organisations can divide responsibilities between a number of companies, and hiding behind the corporate veil is commonplace. As soon as enforcement action is considered or taken by the fire service, companies are placed into liquidation, making it almost impossible for fire safety officers to engage in any meaningful dialogue about the safety of premises or to enforce against non-compliance.
Government backed PFI schemes are a prime example of this scenario, where schools or hospitals have been built by large corporate entities with the management of those premises being hived off to subsidiary companies, and then leased to premises users or employers who are ultimately responsible for the safety of relevant persons. This leads to a three-way division of responsibility where each party asserts that the other holds the relevant liability to ensure compliance. The humble fire safety officer is then handed a lease which is hundreds of pages long and told by city lawyers how to interpret it.
The Fire Safety Order does not apply to domestic premises. But it does apply to the common parts of shared accommodation, so there is a constant battle for the fire safety officer to referee, when deciding who should take responsibility for the all-important flat door which is part of the domestic premises but which leads onto the means of escape. This causes unnecessary confusion, both in terms of acceptance of culpability and for enforcement, where non-compliance is an issue. Clarification has been needed since the outset.
Sentencing powers are insufficient when prosecutions are taken. Prosecutions involving allegations of gross negligence or manslaughter are rare in fire cases. I have been involved with a number of fatality cases under the FSO, and grieving families have been stunned when I have had to explain that the maximum sentence under this legislation is 2 years imprisonment (with one third off for a guilty plea). A sentence of imprisonment is not available in the Magistrates Court, or where a fire safety officer has been deliberately misled, obstructed or has not been provided with the necessarily requested fire safety documentation.
It is hoped that following the Grenfell tragedy, fire safety officers involved with making premises safe and preventing the tragic consequences of fire will now be taken seriously and provided with the appropriate personnel and enforceable legislation that they deserve. Fires do happen, with catastrophic consequences. Statistics may show that the number of domestic fires are in decline, but this is not an area for complacency.
This year’s fire fatality statistics will tell a different story.
