Why the Difference

[PhilB]

Following on from Ricardos post regarding guest houses I have found a difference between the law north and south of the border and would welcome views as to why there is such a difference.

The Fire Scotland Act definition of domestic premises differs fundamentally from the definition used south of the border….The FSO defines domestic premises as…..

“premises occupied as a private dwelling (including any garden, yard, garage, outhouse, or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling);

the important words are...."WHICH IS NOT USED IN COMMON"
 
……..the stairs in a block of flats and the common parts of shared houses clearly do not fall within that definition and are therefore subject to the Order.

The Scottish Act is different....

" a private dwelling (including a stair, passage, garden, yard, garage, outhouse or other appurtenance of such premises which is used in common by the occupants of more than one such dwelling); but does not include premises such as are mentioned in subsection (5).

The important words are...."WHICH IS USED IN COMMON".

The Scottish Act includes the stair and passage etc. as part of the domestic premises. Can anyone explain why?

I wonder if they have c***d up…and if they have …do they realise the fact and/or did they intend such a difference to exist.

[jokar]

Phil, I think it is an error but on which side of the fence will be difficult to find out.  The Scotland Act eliminates any premises subject to that definition and therfore the local auhtority has total remit over HMO's and the like.  In England and Wales the differences end up with 2 enforcing authorities with the RR(FS)O enforcer and the local authority.  That makes it a little messy and to my mind that is where the error occurred.

[PhilB]

Good point Jokar..the Scots may have deliberately done away with dual legislation in domestic premises whereas England & Wales now have a bit of a mess...particularly with HMOs.

[Ken Taylor]

Hopefully the use of the word 'such' will ensure that where stairs, appurtenances and the like are common with non domestic dwellings, the Scottish Act duties will apply?

[kurnal]

These recent threads have given some brilliant insights into the new legislation and thanks to all.
Have done a little superficial reading and found the following link of interest and informative- see especially part 4 chapter 24 in respect of firefighter safety and private dwellings:

http://www.opsi.gov.uk/legislation/scotland/ssi2006/ssi_20060456_en.pdf


Just to expand on Phils original posting, I thought it may be useful to cut and paste the full definition of domestic premises in Scotland- because paragraph 5 is very relevant in bringing licenced HMOs back under control of the Fire Scotland Act.- and perhaps not as Jokar was suggesting?

78 Meaning of “relevant premises” (1) In this Part, “relevant premises” means any premises other than those mentioned in subsection (2).
(2) Those premises are—
(a) domestic premises; ................................
(3) For the purposes of subsection (1), “premises” includes in particular—
(a) any place;................................

(4) In paragraph (a) of subsection (2), “domestic premises” means premises occupied as a private dwelling (including a stair, passage, garden, yard, garage, outhouse or other appurtenance of such premises which is used in common by the occupants of more than one such dwelling); but does not include premises such as are mentioned in subsection (5).
(5) Those premises are—
(a) a house as respects which the giving of permission to occupy it is an activity for which a licence under the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000 (S.S.I. 2000/177) is required;
(b) premises used for the provision of a care home service (as defined in subsection (3) of section 2 of the Regulation of Care (Scotland) Act 2001 (asp );
(c) premises used for the provision of a school care accommodation service (as defined in subsection (4) of that section);
(d) premises used for the provision of an independent health care service (as defined in subsection (5) of that section);
(e) premises used for the provision of a secure accommodation service (as defined in subsection (9) of that section);
(f) premises which would fall within paragraph (a) but for there being in force in respect of them a control order under section 178 of the Housing (Scotland) Act 1987 (c. 26); and
(g) premises which would fall within paragraph (a) but for there being in force in respect of them a management control order granted by virtue of section 74 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp .

[Mr. P]

So, although a stair may be termed as 'common', under the Scot  sect 5, it will still need addressing if premises are used under licence? But, still so much cross referencing is required.

[wee brian]

I understood that the reason for the FSO covering common parts was to deal with them being workplaces (ish). Wasnt there some case law that decided that they were workplaces under the FP(WP)Regs?

If they are workplaces then the scots are(maybe) in breach of the EU Directive.

[Ricardo]

So, although a stair may be termed as 'common', under the Scot  sect 5, it will still need addressing if premises are used under licence? But, still so much cross referencing is required.

Yes thats exactly right as far as we are concerned and my poiter to PhilB was, if the owner/occupier of a guest house shares a "common escape route with those termed as "relevant persons" then 1 would assume that the common part/s must have adequate fire precuations for the safety of those "relevant persons" located in the "relevant premises" well thats how I see it for Bonnie Scotland.
As everything we now audit including HMO's come under the Fire(Scotland)Act 2005 as amended, and suitable guidance is provide in the sleeping accommodation guide for small premises.
yes, the licences for HMO's are issued by the LA, but the fire duties that the duty holder(landlord) needs to address  are  in terms of the F(S)A 2005(chapter 1 duties)

[lambie]

Curious,---- when I asked the question about North or South of the border I hardly realised that such technicalities could be hidden within the two pieces of legislation. Sufficient to say it is extremely interesting to see the discussion raised by guest houses North and South of the border!

[PhilB]

See....I've told you all before fire safety legislation is not boring....let's all don our anoraks and read some more.

Seriously though I think this thread clearly demonstrates that although the new fire law has rationalised many things, there are still areas that are very confusing.

If we so called fire safety professionals have trouble understanding it how on earth is poor Mrs Prendergast expected to cope!!

[saddlers]

I understood that the reason for the FSO covering common parts was to deal with them being workplaces (ish). Wasnt there some case law that decided that they were workplaces under the FP(WP)Regs?

If they are workplaces then the scots are(maybe) in breach of the EU Directive.

I understood this was the case, and looking at it from a liability point of view it would be true. If you consider a caretaker/cleaner on the top floor in a common area of a block of flats, they would look for immediate escape if they became aware of a fire on a lower floor, where as in "principle the occupants of the flats would stay put, or more importantly would have the option of staying within their FR box if smoke was in the common areas, whereas the employee would not"

Additionally..

If I decide to block my escape routes up in my private dwelling, or not maintain my detection, it is my fault and therefore I pay the consequences. If I provide obstructions in the common areas and a cleaner/caretaker is put at danger in an escape scenario because of my obstructions, their employer and/or the landlord would be liable because it is a workplace. I have no doubt I would get my legs slapped, but it is the employer and/or landlord who would potentially be facing the corporate manslaughter charges.

I may be way off target, but that was my own understanding/interpretation

[Ken Taylor]

There is also the point that, where the common parts were in the ownership or control of an employer, various bits of health and safety at work legislation would apply and so fire law would be in line with this

[afterburner]

Saddlers comment about the owner / landlord / employer facing potential charges under the Corporate Homicide Act (Scottish title) would depend on a proven gross breach of a duty of care. Just because somebody dies does not mean the Corporate Homicide Act applies.

Within domestic property with common parts that do come under the Fire (Scotland) Act and the Fire Safety (Scotland) Regulations, the gross breach aspect may be difficult to uphold. It is likely the common parts of the premises have been affected by the residents who do not relate their activities to detrating from fire safety. Some of this activity will indeed fall into illegal activities such as vandalism and theft. the owner / landlord / employer may not even know the bulding has been subjected to such events.

There has been recent discussion about the levels of maintenance / costs deriving from vandalsim of fire safety provisions in domestic flats and high rise blocks to such an extent that owners / landlords are expressing doubts about sustaining rectification works.

Despite the Scottish titles I would reckon this is a consideration in the rest of the UK