Laura White explains why risk assessments and responses must be relevant and tailored

7 August 2019

A duty is placed by the Regulatory Reform (Fire Safety) Order 2005 [FSO] upon the responsible person and also on others with control over premises in certain circumstances to take steps to reduce the risk from fire.

In addition to specific obligations, there is a general duty imposed by the order to take ‘such general fire precautions as will ensure, so far as is reasonably practicable, the safety of… employees’, and in relation to others lawfully on premises or in their vicinity, as ‘may reasonably be required in the circumstances of the case to ensure that the premises are safe’. 

One of the obligations which are imposed on the responsible person is the fact that fire risk assessments must be carried out and measures put in place, among other things, in order to reduce the risk of fire and its spread, and to ensure safe escape in the event of a fire. 

Two recent cases that came before the courts highlight that, as is the case with health and safety obligations, there can be no ‘one size fits all’ when it is a question of the steps that are required to meet these obligations. The steps that are taken must meet the particular circumstances of the case, which means that the fire risk assessment carried out must also consider those particular circumstances.

Two elderly residents died in a fire at the Newgrange Care Home in Cheshunt, Hertfordshire, in April 2007. The fire was caused by an electrical fault which spread to the roof. A further 33 residents had to be rescued from the collapsing building. It was found that Newgrange of Cheshunt Ltd, which runs the home, failed to comply with fire safety legislation – including the requirement to have in place adequate escape procedures. In particular, the company did not have a sufficient number of competent and properly trained staff on duty to carry out ‘long-established and recognised guidance on evacuations in a care home’. 

Evacuation of a care home is ‘a difficult task and needs to be properly considered and practised so that everyone can escape unharmed’. Newgrange of Cheshunt Limited was fined £175,000.

Following a separate incident, in which an elderly resident died in a fire at the Wood Side Care Home, investigations revealed fire safety breaches including an outdated risk assessment, which did not consider the individual patients’ needs. The care home owner, Gold Care Consultancy Limited, was fined £100,000.

While such fines are without doubt substantial, they remain considerably less than those imposed under the sentencing guidelines for health and safety etc offences (the ‘sentencing guidelines’), where fines running in the hundreds of thousands and indeed millions of pounds are becoming commonplace. We have written before of the exclusion of fire safety offences from the sentencing guidelines and of the anomalies which can result. Fines for fire safety failings look set to increase, however. 

The Sentencing Council is at present considering a new general sentencing guideline, which could come into force this summer and which specifies that, where there are no directly applicable sentencing guidelines, analogous guidelines should be applied. 

The effect of this will be that the sentencing guidelines will be indirectly applicable to fire safety cases. In advance of this, there also appears to be judicial will to move fines more in line with those for health and safety failings under the sentencing guidelines, as recent remarks in the Court of Appeal on the correct approach to be adopted on sentencing in fire safety cases confirmed:

although outwith the sentencing guidelines, its structure in ‘identifying the steps involved in determining the seriousness of the offending might usefully be followed to cases of this sort’

the sentencing guidelines require an assessment of culpability and harm – in prosecutions under the FSO, the harm risked will be at the highest level in the sentencing guidelines, because of the risk of death or serious injury; and the level of culpability will vary depending upon the circumstances, as the likelihood of harm occurring depends on the chances of fire breaking out

evidence of enhanced risk of fire would be a seriously aggravating factor; so too the incidence of risk to many and actual harm

These incidents highlight the need for all business owners to ensure that they fully comply with fire safety legislation. Effective training must be given to all workers, and compliance and observation encouraged from the top down.

Simply having written policies is not enough if the reality is that they are not observed, or if, as these cases show, they are not relevant to the particular circumstances at hand. If anything, the prosecution may try to persuade a sentencing court that this scenario may be an aggravating factor, demonstrating a poor health and safety record, leading to a higher fine. 

Risk assessments should look at the individual needs of the people involved, otherwise increasingly hefty fines – not to mention the adverse publicity which results – should be expected. 

Laura White is an associate in the health and safety team at Pinsent Masons.

 
Laura White explains why risk assessments and responses must be relevant and tailored