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17 July 2019
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MORE FM PROVIDERS COULD BE PROSECUTED FOR FIRE BREACHES POST-GRENFELL

Facilities management providers could be more liable to prosecution for fire safety breaches as a result of the Grenfell Tower fire, a health and safety solicitor told delegates at last month’s Facilities Show.
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© Getty

01 July 2019 Herpreet Kaur Grewal


Facilities management providers could be more liable to prosecution for fire safety breaches as a result of the Grenfell Tower fire, a health and safety solicitor told delegates at last month’s Facilities Show.

Kizzy Augustin, a partner at law firm Russell Cooke, was talking at a session at the Firex section of the show about ‘Fire Safety and Duty Holders – What Do Those with ‘Individual Responsibility’ Need to Know?’

She said in light of the tragic fire that claimed 72 lives and the consequential Hackitt inquiry and the most recent public consultation on building safety, authorities would “cast the net wide of who will be deemed a duty holder”.

She said: “We’ve always known that duty holders tend to be the responsible person, the owner of building, occupiers of building or employers who work within the building – that’s very easy to understand.

“What is not as easy to understand are those I call ‘alternative responsible persons’ because there is an obligation for anyone who has by way of a contract or tenancy – some have responsibility for safety, some for maintenance. They are also responsible people but they are only responsible to the extent to which they have control over the building. So FM providers are very, very key to that because they do have an obligation for maintenance and they will normally have some sort of contractual arrangement that will assess what that responsibility is. If they are failing to do that … they could potentially be in breach of the Regulatory Reform Order.”

Augustin added that this was “a duty FM providers in particular are unaware of, or they are unaware of the extent to which that liability could reach”. 

Augustin said there is “case law on it” and “there is case law on FM providers, property managers … who have been investigated” because of this. 

She told Facilitate that “there are two folds here – the organisation which is outsourcing cannot divest the responsibility to the FM provider but they are essentially asking the FM provider to assist them in their overarching responsibilities to be compliant”. 

Augustin said that “by having a contract in place, the FM provider becomes a duty holder of some sort. Perhaps to a lesser degree but they have duties with which they have to comply, they have to be competent, they have to make sure they are meeting those safety requirements or maintenance needs. That they are doing the right things to assess risk and maintain … there is an avoidance of risk by way of the management of the buildings, so there are a lot of things that go on when it comes to these relationships … it is very fluid but it needs to be defined ... that’s why FM providers are ripe for more prosecutions”.


Government consultation on building safety

Augustin was making the comments after the government published a consultation for “a fundamental reform of building safety requirements” with proposals that build on recommendations from Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety.

 The document published in June spans five broad areas:

  • The scope of the new regime.
  • The concept of duty holders who have clear responsibilities throughout a building’s design, construction and occupation.
  • Giving residents a stronger voice in the system and ensuring that their concerns are never ignored. 
  • Plans for a new building safety regulator to provide oversight of the new building safety regulatory regime. 
  • Strengthened enforcement and sanctions to deter non-compliance with the new regime.

 

The Home Office, alongside the consultation document, has issued a call for evidence on the Regulatory Reform (Fire Safety Order) 2005 (the ‘Fire Safety Order’). This seeks views from the fire safety sector, those it regulates and enforcing authorities on the current effectiveness and application of the Fire Safety Order to provide a regulatory framework for the continuing management of fire safety in non-domestic premises and the common parts of residential buildings in multiple occupation.


Lord Porter, chairman of the Local Government Association (LGA), said: “Since the Grenfell Tower tragedy, the LGA has made the case for fundamental reform of our broken building regulations system. This cannot come soon enough, so the LGA is pleased to see the consultation published.

“We are pleased that the government has listened to councils and fire authorities and agreed to extend the new regulatory framework to residential buildings over 18 metres in height, but it is vital that a risk-based approach to regulation is introduced. There are many buildings out of the reform’s current scope, such as hospitals, care homes and residential schools, which should also be protected in the same way.

 “It is also vital that there is a consistent approach to buildings across the proposals.”

 He added: “Designers, developers, product manufacturers and building owners need to be given clear duties in relation to building safety and clear guidance on those duties. Rather than the current fragmented system, there should be one fire safety regime that applies to all buildings where people live or sleep. It is important that regulators are given effective powers, including meaningful sanctions. The new system needs to be properly funded and residents must be able to raise concerns and know they will be listened to.”

 This consultation closes on 31 July.

A new building safety regulator
 

In the 192-page document, the government proposes a new building safety regulator.

Building a Safer Future: Proposals for Reform of the Building Safety Regulatory System states that such a body would carry out “inspection and enforcement activity itself, and/or through working with existing local regulators, will address this in part”.

In addition, it states that the responsibilities of duty holders/accountable persons in the design, construction and occupation phases “will be underpinned by criminal offences, as will the broader regime envisaged for construction products”.

In her independent review, Dame Judith called for increased regulatory oversight and for the sanctions and enforcement regime to be reinforced so that penalties are an effective deterrent against non-compliance.

Rebecca Rees, a partner at Trowers & Hamlins LLP, said the consultation “should result in a fundamental legislative reform of building safety requirements”, adding that “it is essential that all involved in the design, construction, operation and occupation of high-risk residential buildings take the opportunity to respond to government proposals”.

But housing charity Shelter said it feared this “will not go far enough to ensure that the health, safety and well-being of all tenants is protected”. It wants the government to introduce “a tough, new consumer regulator that protects tenants and proactively inspects social landlords”.

Figures released by Shelter show that 56 per cent of social renters in England – five million people – have experienced a problem with their home in the past three years, including electrical hazards, gas leaks and faulty lifts. Among those who had a problem, one in 10 had to report it more than 10 times, suggesting that tenants are still being failed by poor regulation.


The ‘golden thread’

James Connolly, head of partnerships at EviFile, told Facilitate that the proposed “golden thread” suggested in the consultation document would only happen if the sectors involved could improve transparency through technology.

The government puts forward new duties of care that apply during the entire life cycle (called a golden thread) of a building from design to construction, management and occupation including evidence gained through regular inspection, reviews and maintenance. The document refers to “the golden thread of information and key dataset that will enable building safety information to be available to the right people at the right time during design, construction and occupation; a new mandatory occurrence reporting regime; and competence of key roles in the new regime”.

Connolly said: “The reality is that one day the golden thread of information will need to apply to all significant commercial, residential and leisure buildings.” 

He said the insurance industry was beginning to drive this. “Many questions are asked of FMs and asset owners when a property is being bought or sold, such as location, local environment, condition, energy efficiency and running costs. However, over the last 12 months insurers have begun asking more detailed questions about a building’s fixtures and fittings.”

He argued that more “high-quality digital information” that is available to FMs will enable them to better manage building safety. “It is vitally important that the lessons of Grenfell are never forgotten and new ways of working become embedded across the supply chain to make our buildings safer.”


Attitudes to health and safety 

Lesley McLeod, CEO of the Association for Project Safety, said attitudes must change. 

“Risk management is not a comedy club joke or trivialised to the level of an optional extra such as carpets or kitchen splash-backs. It is a vital part of reducing the threat of accident, ill health or even death saving money and avoiding costly retrofitting,” said McLeod.

“Sometimes it seems the country can have a debate over priorities, between looks and liabilities. But safety is of a higher order – like the medical profession, construction should always aim to do no harm first. Projects should only ever be eye candy second. New properties – and those being modernised – must be built with safety front and centre and we need to keep putting the case forcibly that, when everything is squeezed to secure maximum value, safety must never be comprised by cost-cutting.”  



Emma Potter