Application of RRO to private accommodation

[William 29]

Here is an interesting one to get your teeth into!

I am currently advising several large housing associations on their FRA process and conducting FRAs on their behalf.  The issue of sheltered housing schemes, residential flats and student accommodation has recently come up in regard to when the client owns the land the building sits on but each occupier owns their the private dwelling and I would argue as such the RRO does not apply.

In the process of my investigation to provide best advice I am aware of some high level discussions between social housing landlords, housing associations and “leading” Fire Authorities”.  The point has been raised and suggested by some Fire Authorities in light of recent events that an FRA can not be regarded as suitable and sufficient without assessing the WHOLE of the building i.e. private accommodation and any FRA submitted as stating that ONLY the common parts were assessed would be rejected.

Even IF the RRO did apply and an assessor was to gain access to all flats etc how could any recommendations be enforced anyway i.e. lack of internal doors, unacceptable travel distances etc??

[nearlythere]

Here is an interesting one to get your teeth into!

I am currently advising several large housing associations on their FRA process and conducting FRAs on their behalf.  The issue of sheltered housing schemes, residential flats and student accommodation has recently come up in regard to when the client owns the land the building sits on but each occupier owns their the private dwelling and I would argue as such the RRO does not apply.

In the process of my investigation to provide best advice I am aware of some high level discussions between social housing landlords, housing associations and “leading” Fire Authorities”.  The point has been raised and suggested by some Fire Authorities in light of recent events that an FRA can not be regarded as suitable and sufficient without assessing the WHOLE of the building i.e. private accommodation and any FRA submitted as stating that ONLY the common parts were assessed would be rejected.

Even IF the RRO did apply and an assessor was to gain access to all flats etc how could any recommendations be enforced anyway i.e. lack of internal doors, unacceptable travel distances etc??

Can't see how a FA can insist on FRA of whole building when the only relevant part is common area. Not unless the whole building is described in the assessment with the significent findings not extending to dwellings because there is no power of entry. Has it actually been raised by a FA or by someone in a FS Dept at a loose one day?
With regards to enforcement, if dwellings were relevant, which they won't be, it would probably be done the same way as enforcement of Building Regs. After completion the occupier can do what they want as nobody is going to check.

[Northern Uproar]

While the FSO can't control the activities of the occupier, nor could it control travel distances/alarms within the flats, but if there is a stay put policy, then the suitability of the structure and compartmentation would surely be a consideration, and would not be limited to just the walls separating the common means of escape but to the whole building?

[Midland Retty]

Hi William

It would very much depend on individual circumstances. Hypothetically under article 32(10) of the RR(FS)O an owner occupier could be prosecuted if it could be proven that their actions put relevant persons at significant risk of injury or death.

Extensive surveys and assessments are an absolute must to establish that the existing fire precautions, and levels of fire protection etc are still suitable and sufficient and adequately maintained to support the fire safety strategy for the premises.

When they do not the RP has a duty to do something about it.

Take an owner/occupier who has replaced their fire resisting front door for a non fire resisting door.

The owner occupier owns the flat, but the housing association still owns the freehold and communal areas of the block. The owner / occupier is reponsible in this case and should be asked to reinstate the fire resisting door by the housing association - If they refuse to do so it could be enforced under the RRO if necessary.

In real life it wouldn't necessarily be that clear cut, leaseholder agreements would need to be to inspected to ascertain the nitty gritty of who was responsible for what.

Also there may also be expectations about what the Housing Association (as the RP for the overall building) could have done to circum-navigate the actions of an owner occupier who refused to rectify any failings they themselves created.

If the owner occupier claims he didnt realise he caused a failing but cant afford to re-instate the door the courts may feel it would have been practicable for the Housing Association to pay for the door to be replaced, and then recoup the costs somehow from the owner over a set time.  

Another example might be where an owner / occupier somehow undermined the integrity of a party wall, floor or ceiling of another flat, but not the communal areas. It might be argued that the party wall is a communal component of the building because it is shared by more that one person - thats just a guess - something like that would need to be be tested in court.

But any action that directly negatively impacts or impinges the communal areas / means of escape could be viewed as a failing or offence under the RR(FS)O in my opinion.

[Jools]

The issue whether the RRO extends beyond the front private entrance door of a dwelling is covered in the judgement from Judge Shamim Qureshi. He said it doesn't in Victoria Hall v West Midlands Fire & Rescue Authority - see http://www.tpsconsult.co.uk/tps/news/2009/07_css.asp

[Midland Retty]

Be aware that the ruling above only applies to that particular case / premises.

[nearlythere]

The issue whether the RRO extends beyond the front private entrance door of a dwelling is covered in the judgement from Judge Shamim Qureshi. He said it doesn't in Victoria Hall v West Midlands Fire & Rescue Authority - see http://www.tpsconsult.co.uk/tps/news/2009/07_css.asp

Agreed and this matter was well flogged in the past here.
I would have thought that a front door was an intergral part of a dwelling.
I for one don't for a minute think that legislation scribes are beyond making errors or overlooking the obvious, just like we all can We have all seen the stupidity of some legislation at times.

[footieboy]

The point is the FRA must take into account relevant persons and they are in the domestic dwelling. therefore any FRA that does not take these into acount cannot be suitable and sufficient.

[William 29]

Thanks everyone for your contributions so far.  I would like to focus the debate around if a Fire Authority can potentially dismiss an FRA as not being suitable and sufficient if only the common areas are accessed.

Just picking up on a comment from Mildland Fire "The owner occupier owns the flat, but the housing association still owns the freehold and communal areas of the block. The owner / occupier is responsible in this case and should be asked to reinstate the fire resisting door by the housing association - If they refuse to do so it could be enforced under the RRO if necessary."I think what has not been determined or tested in court is what are the common areas? If the fabric/passive protection of the building beyond the front door has the potential to effect the means of escape for other relevant persons then where do the common areas stop?

My point of concern is IF it is determined that in order to produce a suitable and sufficient FRA then the private accommodation MUST be assessed then how in practice would this work??  Occupiers would quite be within their rights to refuse entry and I can’t see any enforcement notice being served on a housing association that relates to deficiencies in a dwelling being lawful.  To my knowledge what has not been tested but MAY be lawful is an enforcement notice served on an individual i.e. to replace a front door to the accommodation on to the common parts.

What may change is that on new builds tenancy agreements in such properties may have to included an agreement for the housing associations/owners to have the right to make invasive investigations on matters relating to fire safety that could affect other relevant persons and permission would be required from the housing association before internal alterations could be made and then approved.

[kurnal]

I  agree William it is a very difficult area and as you suggest the only way we will get answers is through Case Law. I fear that until that happens we can only speculate.

My interpretation remains that everything inside the front door is domestic. The front door directly protects the common areas and therefore is part of the protective measures for the common areas. I agree that the tenants of the domestic properties are relevant persons so they should be identified  as persons potentially at risk from fire in the assessment but unless article 31 applies -  dangerous conditions- what goes on in the flat falls outside the scope of the Fire Safety Order.

Even if they breach the Building Act and knock down all the walls in the flat without approval. If they knock holes through the floor then this may create dangerous conditions and controls may be necessary using Article 31 or the Building Act (if it is caught in time).

Once again the Order and the Guidance dont really help us as they refer to responsible person throughout but always in lower case  type so we cannot tell whether this is used as the legal definiton (RP)  or just a form of words meaning a person having control.

Then I guess   if a notice was issued under Article 31 other householders may take action in the civil courts against the rogue householder?  

[Tom Sutton]

I think what has not been determined or tested in court is what are the common areas?

It may have not been determined in court but it is in the order "Interpretations" (including any garden, yard, garage, outhouse, or
other appurtenance of such premises.)

[FSO]

If the FSO does not apply to a particular area such as domestic premises within a sheltered accomodation block, where applicable, the FRA can and should extend to beyond the front door. Where there is any facilities, equipment and devices provided to safegaurd relevant persons, these must be subject to a suitable system of maintenance. This could include a routine inspection of fire stopping, smoke detectors and the like.

Article 17 (3) makes it very clear that this does extend to areas where the FSO does not apply, if the facilities are provided for the protection of relevant persons.

Therefore where relevant, the FRA should include any significant findings from areas of the domestic areas.

I understand that this is not always practical, however bare in mind the only defence under Article 33.

[Midland Retty]

Even if they breach the Building Act and knock down all the walls in the flat without approval. If they knock holes through the floor then this may create dangerous conditions and controls may be necessary using Article 31 or the Building Act (if it is caught in time).

How would you know that they have knocked down walls or put holes in ceilings without carrying out some kind of inspection or assessment ?

This is absolutely why it is necessary that assessors and housing association look at all areas of the blocks.

If you are a housing provider and you are going to have a stay put policy in your block of flats you need to know that the existing fire precautions will support that policy.

You say yourself Kurnal if someone plonks a hole in a floor of their flat compromising the FR you may need to carry out measures under article 31

Yes it is a ball ache, yes it can get political, but tenants and owner occs need to be given an ultimatum, and you have to be honest with them and explain that in order to guarantee their safety you assess all of the block including their flat to do an assessment.

If you have problems with individuals then get the fire authority involved, and if an owner is completely obstinate you might just have to note you couldnt gain access stating the reasons why, and if and why you were unable to take any legal action against them (highly unlikely).

Remember that there are often service shafts in a block of flats located seperately from the traditional communal area - it might be that the only way to reach that shaft is via an access panel in someone's flat. Because it would be a common shaft, it would be a communal area, and fire has the potential to spread throught the block via teh shaft so you need to check it isn't compromised.

I doubt very much that the owner occupiers can prevent entry - yes they might refuse - but the freeholder has a right to inspect any components that makes up the freehold of the building at a reasonable time. You may have to issue letters, threaten with court etc or may not be able to get in straight away, but I dont believe any freeholder can be refused entry.

[nearlythere]

But with all of these possibilities and scenarios we still must not forget that a dwelling is not a relevant premises. Yes there could be holes drilled in walls or floors between occupancies but so long as the protection of a common area is not compromised is there a right to extend the assessment into a non relevant part of the premises.
Holes between occupiers is a matter for themselves to sort out.
As I have said we cannot always deem legislation to be correct and workable.

[Northern Uproar]

The enforcers guide makes reference to 'common parts' applying, but I wouldn't have said that this is limited to 'comunal areas' as a wall between two individual domestic premises in a a block of flats is a 'common part' to those two flats, and would be a fire precaution relating to relevant persons if the means of escape is based upon a fire remaining in the flat/compartment of fire origin. Therefore, I don't think a full assessment can be done just by walking the corridors, which (giving the authorities quoted the benefit of the doubt) is what is  maybe meant by the 'whole building' in this case.