B & B's in Uproar over new fire legislation

[Izan FSO]

5. I think one important point hasn't been raised yet - why are FRA's seemingly targetting B&B's?

We are not! as a small shire brigade we have 18000+ non-domestic premises which must be given a risk rating. of those, 5-6000 have been inspected annually or three yearly for the past 30 years (FP Act) the file history is enormous and a risk rating can be placed on those easily.

however the rest have not seen a fire officer for decades and somtimes never (ie small B&Bs small shops on the high street) so with a limited amount of resources what woud you do? keep going back to the same premises year after year? or try to gather information on the risks in the other ones?

[kurnal]

It would be interesting to know of any case law that gave an interpretation of whether letting a bedroom in your own home on a casual basis takes your home outside the definition of domestic premises occupied by persons forming a single household.
I think that it does- but that is only based on my recollection of an opinion expressed by Dr Rosemary Everton.

Hi Kurnal
I recall reading an article by Professor Everton entitled:-
Rosemarie Everton ponders the legal issues involved in the hiring of holiday cottages and the impact of the Regulatory Reform (Fire Safety) Order, is it this you refer to or another article? as it would be most interesting to read her opinion on this if it is from some other article.

Thiis was from her presentation delivered to the local IFE branch entitled "Shifting Sands" she gave out some lecture notes at the time, I will have to dig them out - but I expect it was a summary of the article you mention.

[Eggcustard]

You will find that Mid and West Wales just succesfully defended an appeal against an enforcement notice issued in respect of a large house being let out to parties. The appellant will probably appeal to crown court and hopefully the first precedent will be set regarding what constitutes a private dwelling.

[kurnal]

Thanks Eggcustard- If you hear any more please let us know.

[FSO]

Here is the text from the FINDS message.

MID AND WEST WALES FIRE AND RESCUE AUTHORITY

APPEAL AGAINST ENFORCEMENT NOTICE SERVED UNDER

THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 (“The Order”)

Mid and West Wales Fire and Rescue Authority have been successful in an appeal that was lodged against an Enforcement Notice served on a property that operated as self-catering holiday accommodation.

The premises in question is a large detached house, operating for part of the year (up to a maximum period of 20 weeks) as self-catering holiday accommodation and accommodating up to 14 people. For the remainder of the year it is occupied by the owners as their private residence.

An Enforcement Notice (EN) was served on the premises following an audit under the Regulatory Reform (Fire Safety) Order 2005, and subsequent extensive exchange of correspondence between The Authority and the owners. The owners however adopted the stance that their premises did not fall under the requirements of The Order as they contended it was their “private dwelling” for the majority of the year and an appeal was subsequently lodged against the EN.

The central legal issue raised was that The Order did not apply to the premises as it was “a private dwelling “.
The District Judge presiding over the case heard arguments from Counsel for the appellant and from David Stotesbury, Counsel for the Fire and Rescue Service, following which he ruled that the premises in question did fall within the requirements of the Order.

This ruling is regarded as a landmark legal judgement. However, it should not be regarded as laying down a rule that all holiday lets will necessarily fall within the Order as proportionality will be the key to determining whether the circumstances surrounding individual holiday lets result in their coming with the scope of the Order. Although the case does not lay down a binding precedent, it can be considered by other similar Courts when dealing with comparable matters.

The appeal also contested that the requirements of the EN were disproportionate and that insufficient time had been allowed for their completion. The District Judge adjourned the hearing of these technical fire safety matters until there is a joint inspection of the premises, after which the matter will return to the court ; or, if the parties so wish it, and the judge agrees, the technical issues could be referred to the Welsh Assembly for a determination under Article 36 of the Order.

[kurnal]

The central legal issue raised was that The Order did not apply to the premises as it was “a private dwelling “. ........................................


This ruling is regarded as a landmark legal judgement. However, it should not be regarded as laying down a rule that all holiday lets will necessarily fall within the Order as proportionality will be the key to determining whether the circumstances surrounding individual holiday lets result in their coming with the scope of the Order. Although the case does not lay down a binding precedent, it can be considered by other similar Courts when dealing with comparable matters.

Very interesting indeed.

Presumably some poetic licence has been applied in the report - as of course the question should have been whether they are "Domestic Premises" in terms of the Order

I wonder if the fact that "Proportionality is the key" may also apply to the small B&B that are mainly domestic premises occupied as a private dwliing offering a room or two to guests? I wonder if B&B Association would consider taking a test case on a similar basis?

I wonder  how the proportionality test would be applied in practice- what about time shares, house sitting etc???

[jokar]

With Domestic Premises specifically excluded from the Order, this Judgement brings into question the validity of the legislation.  With large numbers of holiday lets out there, this judgement could bring the industry to its knees.  Many people holiday in large groups holiday together and whilst from an earlier post I have assumed that this was party time, many families are extended and take holidays together and therefore meet the definition of the Order.

This now brings into question foreign students living in peoples homes that are not part of the family.

[Alan Keith]

It is now apparent that this new fire law is actually eroding the rights and freedoms of the ordinary person.  What was previously judged to be "Incidental commercial use" within a person's home, such a running  a small B&B, taking in a temporary lodger, having some friends to stay and receiving some money from them to defray expenses, or even perhaps employing a baby-sitter, is now to be classed as commercial use, with all the attendant "elf-n-safety" & workplace bureaucracy.  Does anyone know whose idea this was, or is it just part of the tide of worthless legislation emanating from Brussels?

[val]

The central legal issue raised was that The Order did not apply to the premises as it was “a private dwelling “.
The District Judge presiding over the case heard arguments from Counsel for the appellant and from David Stotesbury, Counsel for the Fire and Rescue Service, following which he ruled that the premises in question did fall within the requirements of the Order.

I wonder if Mr Stotesbury has now reviewed his opinion that the Order did not apply to premises being used for childminding (a commercial process)?

[nearlythere]

The central legal issue raised was that The Order did not apply to the premises as it was “a private dwelling “.
The District Judge presiding over the case heard arguments from Counsel for the appellant and from David Stotesbury, Counsel for the Fire and Rescue Service, following which he ruled that the premises in question did fall within the requirements of the Order.

I wonder if Mr Stotesbury has now reviewed his opinion that the Order did not apply to premises being used for childminding (a commercial process)?

I,m sure the issue is that the premises, at times, are not used as a  private dwelling and that it is during these time, when because it is used for commercial purposes, the RRO applies. The arrangement applied to university halls of residence when, during the summer months, by letting the rooms out to visiting groups they effectively became a hotel and were certifiable during these periods.

The matter of the visiting student which Jokar has mentioned does not change that fact that the student has come to live with the family in a residential domestic environment. The home does not operate as a B&B for the purposes of letting the student stay there. To say otherwise would mean that when you take your children to visit granny her house becomes a place of public assembly.

[David Weston]

The matter of the visiting student which Jokar has mentioned does not change that fact that the student has come to live with the family in a residential domestic environment. The home does not operate as a B&B for the purposes of letting the student stay there. To say otherwise would mean that when you take your children to visit granny her house becomes a place of public assembly.

No, from all I have read and from the comments, discussions and Government legal opinion given to the B&B Association over the last few months, I am sure Jokar is right: the Government's (DCLG's) view - reinforced now by the appeal case in Wales - is that the RRFSO applies to ALL cases when people stay in premises for a consideration (payment or exchange), for even one night, unless those premises are their permanent private dwelling.  

The Government's insistence that domestic premises are NOT excluded from the RRFSO (despite the fact that the RRFSO says domestic premises are excluded) has led them inevitably to this position.  

So ALL house swaps, accommodation of foreign students, "homestay" accommodation of people visiting a local sporting event or festival, etc etc etc, is covered by the RRFSO and the property owner must do a fire risk assessment and put in place appropriate fire precautions.   DCLG have explicitly stated this to us, and indeed have asked for suggestions as to how they can contact such "opportunistic" (their word) accommodation providers.

When the general public become aware of the full implications of this there will indeed be "uproar" - on a much bigger scale than from B&Bs, who are responsible and who are happy to put in place appropriate and proportional fire precautions.

[CivvyFSO]

It is now apparent that this new fire law is actually eroding the rights and freedoms of the ordinary person.  What was previously judged to be "Incidental commercial use" within a person's home, such a running  a small B&B, taking in a temporary lodger, having some friends to stay and receiving some money from them to defray expenses, or even perhaps employing a baby-sitter, is now to be classed as commercial use, with all the attendant "elf-n-safety" & workplace bureaucracy.  Does anyone know whose idea this was, or is it just part of the tide of worthless legislation emanating from Brussels?

If H&S applies due to somewhere being a workplace then it applied before the RRO came out. The only example you gave above that would constitute the RRO applying is the B&B.

[Chris Houston]

It is now apparent that this new fire law is actually eroding the rights and freedoms of the ordinary person.  What was previously judged to be "Incidental commercial use" within a person's home, such a running  a small B&B, taking in a temporary lodger, having some friends to stay and receiving some money from them to defray expenses, or even perhaps employing a baby-sitter, is now to be classed as commercial use, with all the attendant "elf-n-safety" & workplace bureaucracy.  Does anyone know whose idea this was, or is it just part of the tide of worthless legislation emanating from Brussels?

What is it about the law (which is British, not EU) that you don't like? Does your B&B comply with it? Do you think it shouldn't have to?

[nearlythere]

The matter of the visiting student which Jokar has mentioned does not change that fact that the student has come to live with the family in a residential domestic environment. The home does not operate as a B&B for the purposes of letting the student stay there. To say otherwise would mean that when you take your children to visit granny her house becomes a place of public assembly.

No, from all I have read and from the comments, discussions and Government legal opinion given to the B&B Association over the last few months, I am sure Jokar is right: the Government's (DCLG's) view - reinforced now by the appeal case in Wales - is that the RRFSO applies to ALL cases when people stay in premises for a consideration (payment or exchange), for even one night, unless those premises are their permanent private dwelling.  

The Government's insistence that domestic premises are NOT excluded from the RRFSO (despite the fact that the RRFSO says domestic premises are excluded) has led them inevitably to this position.  

So ALL house swaps, accommodation of foreign students, "homestay" accommodation of people visiting a local sporting event or festival, etc etc etc, is covered by the RRFSO and the property owner must do a fire risk assessment and put in place appropriate fire precautions.   DCLG have explicitly stated this to us, and indeed have asked for suggestions as to how they can contact such "opportunistic" (their word) accommodation providers.

When the general public become aware of the full implications of this there will indeed be "uproar" - on a much bigger scale than from B&Bs, who are responsible and who are happy to put in place appropriate and proportional fire precautions.

What you are implying then is when your children have a sleep over you must carry out a FRA.
Don't think so somehow. I can draw a distinction between when residential premises are being used as a home and for something other than a place where a single household lives. I can also draw a distinct between a residence being used as a business opportunity and being used for living purposes including inviting persons to stay as part of the family for a time.
If a postman deliver a letter to your home does it become his workplace for that few seconds and require a FRA? No, it is still a family home.

[David Weston]

What you are implying then is when your children have a sleep over you must carry out a FRA.
Don't think so somehow. I can draw a distinction between when residential premises are being used as a home and for something other than a place where a single household lives. I can also draw a distinct between a residence being used as a business opportunity and being used for living purposes including inviting persons to stay as part of the family for a time.
If a postman deliver a letter to your home does it become his workplace for that few seconds and require a FRA? No, it is still a family home.

Nearlythere, senior officials at DCLG have clearly stated to us that the RRFSO applies in ALL cases where somebody PAYS to stay in premises not their own home - even for one night.    That is their very clear position. The Department have even asked for help on "any routes which we should explore to ensure that the final booklet [for accommodation providers, explaining the RRFSO] is accessible to any 'opportunist' providers of accommodation who operate on a very infrequent basis".

That is the Government's position.  No, your children's sleepovers are not covered (unless they pay!), and no of course your doorstep does not become a postman's workplace.

Payment is not mentioned, let alone defined, in the RRFSO so common law applies - and 'payment' of course includes any 'consideration', so house swaps, providing accommodation for a nanny or carer in return for their work, etc, would all count as payment as far as the law is concerned.