Fire safety - existing premises with sleeping accommodation: practical guidance

Chapter 1: Preface

Introduction

1. In 2006, the Fire (Scotland) Act 2005 ('the 2005 Act') introduced changes to fire safety law in Scotland and repealed previous fire safety legislation. This guide has been produced to assist those who have responsibility under this Act for ensuring fire safety in certain premises with sleeping accommodation in Scotland. In addition, this guide provides statutory guidance for the Scottish Fire and Rescue Service ('SFRS'), as an enforcing authority.

2. This Scottish Government guidance provides practical fire safety advice for certain existing premises with sleeping accommodation. It supersedes the previous June 2018 version.

Scope

3. The guidance in this document is applicable to general fire safety in existing residential premises in which there is sleeping accommodation and to which Part 3 of the 2005 Act applies (known generally as 'relevant premises'). This includes:

• Hotels and tourism hostels.
• Holiday lets.
• Holiday complexes, camping, glamping and caravan sites (other than privately used individual units).
• Church halls and similar premises used regularly or occasionally for sleeping.
• Bunkhouses and bunk barns.
• Certain types of sleeping accommodation for pupils or employees.
• All types of houses in multiple occupation (HMO).
• Boarding houses, guest houses and bed and breakfast accommodation.

4. Fire safety law applies to these types of premises regardless of how they are marketed, so will include relevant premises marketed through 'peer to peer' online platforms.

5. HMOs, holiday lets and bed and breakfast type accommodation do not fall within the definition of a private dwelling for the purposes of Part 3 of the 2005 Act. In general, an HMO may be any house, flat or building which is the only or principal residence of three or more people, who belong to three or more families and share a toilet, bathroom or cooking facilities. HMOs require to be licensed under the Housing (Scotland) Act 2006

6. This guide does not apply to care homes for which there is separate guidance: Practical Fire Safety Guidance for existing Care Homes (see paragraph 11 for small care homes originally constructed as domestic dwellings and which accommodate only a few residents).

7. This guide does not apply to premises where persons are detained in lawful custody, such as prisons.

8. This guide does not apply to hospitals for which there is separate guidance: NHS Scotland Firecode, issued by Health Facilities Scotland.

9. This guide does not apply to private dwellings and their common areas, which fall within the definition of "domestic premises". "Domestic premises" are generally not 'relevant premises', whether social rented, owner occupied or private rented sector (although there are some exceptions). Practical fire safety - existing high rise domestic buildings is available on the Scottish Government website.

10. Dwellings used for childminding are 'relevant premises' for the time that they are put to that purpose. This guide does not apply to such premises for which there is separate guidance: Guidance for childminders on fire precautions in domestic childminding premises.

11. This guide does not apply to sheltered housing for which there is separate guidance. Sheltered housing comprises private dwellings so they are generally not relevant premises (see Annex 1). Practical Fire Safety Guidance for existing specialised housing and similar premises applies to sheltered, extra care and supported housing, and to small care homes which have been constructed as domestic dwellings and accommodate only a few residents. It covers both person-centred and premises-based fire safety risk assessment. The person-centred content will also be relevant to any premises covered by this guidance where there is an element of care or support e.g. licensed HMOs with care/support provision.

12. Annex 1 contains a guidance note issued in 2013 by the Scottish Government on the application of fire safety law. Among other categories, it contains guidance on the application to sheltered housing, school care accommodation, adult placement, and domestic premises used for care (support service).

13. Annex 2 to this guide contains stand-alone simple guidance for well-managed small bed and breakfast and self-catering premises. Compared to other 'sleeping risk' premises, the risk from fire to persons in this type of property is likely to be relatively low. Annex 2 applies where:

• Premises are used for self-catering holidays if occupied by not more than 10 persons.
• Bed and breakfast premises in the home of a resident operator (for not more than 8 guests.

and which in either case, have a means of escape from bedrooms via a traditional 'hall' with at least one exit directly to the outside; do not have letting or guest accommodation below a ground floor or above a first floor; do not act as the principal residence for paying guests; and do not have any storey area over 200 m2 internal floor space.

14. Annex 3 contains benchmarks applicable for holiday camping and caravan sites.

15. Much of the guidance in this document relates to buildings. However, the requirements of fire safety law also apply to other structures, external areas and open air sites.

16. This guide applies to existing premises and is not a design guide for new build. All new residential buildings must be designed to the mandatory standards under the Building (Scotland) Regulations 2004. Similarly, buildings which undergo extension, structural alteration or conversion (as defined in building regulations) should also meet the standards (and be subject to building warrant approval, where required). Design guidance in respect of building regulations is contained in the Scottish Building Standards Technical Handbooks.

Fire Safety Law

17. Part 3 of the 2005 Act, along with the Fire Safety (Scotland) Regulations 2006, sets out the fire safety duties in respect of the majority of non-domestic premises in Scotland.

18. The legislation requires the provision of fire safety measures; including risk reduction measures, means of fire warning, fire-fighting, escape, staff training and instruction, as well as emergency procedures. It sets out fire safety responsibilities and seeks to ensure the safety of persons from harm caused by fire.

19. The list below is a summary of the general requirements and is not intended to be comprehensive. The remaining chapters provide guidance on how to comply but anyone in doubt about their legal obligations may wish to seek further advice.

• Assessing the risk from fire.
• Identifying the fire safety measures necessary as a result of the assessment of risk.
• Implementing these fire safety measures, using risk reduction principles.
• Putting in place fire safety arrangements for the ongoing control and review of the fire safety measures.
• Complying additionally with the specific requirements of the fire safety regulations.
• Keeping the fire safety risk assessment and outcome under review.
• Record keeping.

20. The general fire safety provisions in Part 3 of the 2005 Act take precedence over the terms and conditions imposed in relation to licences issued under other legislation. Section 71 of the 2005 Act states that terms, conditions or restrictions in such licences – including statutory certification or registration schemes – have no effect if they relate to fire safety requirements or prohibitions which are, or could be, imposed under Part 3.

Who Must Comply with these Duties?

21. Employers and/or other persons who operate or have control of the premises to any extent are responsible for complying with the fire safety duties. This might include managers, landlords, owners and staff – and in some cases, residents. Contractors and volunteers working on site may also have some responsibilities through their degree of control or responsibility for fire safety. In this guide, persons with fire safety responsibilities are referred to generally as 'dutyholders'.

22. In the case of unstaffed HMOs and other premises with no management or proprietor presence, some fire safety responsibility may sit with residents and this should be considered as part of the tenancy or letting arrangement.

23. Under fire safety law, dutyholders are required to take all reasonable measures regarding the safety of persons. Employers additionally have a specific obligation to ensure the safety of employees in the event of fire, so far as is reasonably practicable. This means that fire safety measures need to be taken to address risk, but not to the extent that cost, effort and other disadvantages associated with the provision of fire safety measures would be disproportionate to the risk to life. In this respect a judgement is made about the cost of measures being proportionate to the resulting risk reduction, not the capacity of a dutyholder to pay.

24. Where premises or responsibilities are shared, each employer, owner or other person who has control over any part of the premises must co-operate and co- ordinate to inform each other of risks and comply with fire safety law.

25. Failure to comply with fire safety law may constitute a criminal offence with a penalty of a fine or imprisonment.

Obtaining Advice on Fire Safety

26. The responsibility for undertaking and reviewing fire safety risk assessments, and taking fire safety measures, rests with dutyholders.

27. Whilst dutyholders are usually best placed to know their premises, they will need to decide whether they, or their employees where applicable, have the capability to assess fire risk. They should also consider factors such as the size and use of premises and the number and type of persons involved. If dutyholders do not have sufficient resources and skills, knowledge or experience to undertake a fire safety risk assessment themselves, they can arrange for a suitably qualified person or company to carry out an assessment on their behalf.

28. When looking to contract a fire risk assessor, it can be difficult to judge the competence of companies and persons who advertise their services. The fact that a person or company is operating in the fire sector or that someone has previous fire service experience, does not mean that they are a competent risk assessor.

29. Using registered or third-party certificated persons or companies to carry out fire safety risk assessments is one way to establish competence. The Scottish Government and SFRS recommend selecting an assessor or company that is third party certificated by a United Kingdom Accreditation Service (UKAS) accredited Certification Body or an assessor registered with a Professional Registration Scheme. SFRS maintains a list of recommended schemes on its website. SFRS has not assessed and does not endorse any individuals or companies participating in these schemes. Assessor participation in these schemes can offer a degree of assurance that the assessor (individual or company) has met the professional requirements. In selecting a fire risk assessor, their competence in assessing the building type in question should also be checked.

Who Enforces Fire Safety Law?

30. While responsibility for compliance with the legislation sits with dutyholders, there is provision in the legislation for an enforcing authority with enforcement powers.

31. The SFRS enforces Part 3 of the 2005 Act and relevant regulations for most residential non-domestic premises.

32. The SFRS policy towards enforcement is proactive and it adopts an enabling approach to assist dutyholders in complying with their obligations.

33. Enforcement officers' powers are listed in section 62 of the 2005 Act: they may do anything necessary to allow them to enforce the provisions of the legislation. This includes entering relevant premises, inspecting, requesting information, records or assistance, copying or removing documents; carrying out measurements or tests; taking samples, dismantling articles, and taking possession of an article for examination or evidence.

34. If the SFRS is not satisfied with the outcome of a dutyholder's assessment of fire risk, or the action taken by a dutyholder, or the fire safety measures in place, it may issue a letter which requests or specifies that certain action or measures be taken and may request that a dutyholder draws up an action plan for implementation of the measures.

35. Where an enforcement officer considers that additional fire safety measures are necessary in relevant premises, this decision should be based on the factors described in paragraph 23. It will assist the awareness of dutyholders if enforcement officers explain why the existing fire safety measures are not acceptable, and how additional fire safety measures will deliver improvement.

36. The SFRS has the power to take formal action in certain situations. This could involve:

• Issuing an 'Enforcement Notice' that requires specified action to be taken.
• Issuing a 'Prohibition Notice' in cases of serious risk so that the use of all or part of the premises is prohibited or restricted until specified matters are remedied.
• Reporting the matter for prosecution.

37. Additionally, the SFRS has power to issue an 'Alterations Notice' that requires the recipient to inform the enforcing authority before making specified changes to the relevant premises.

38. Failure to comply with a notice issued by the enforcing authority or placing persons at risk of death or serious injury by failing to carry out any duty imposed by fire safety law is an offence.

39. Where there is disagreement between a dutyholder and the SFRS on compliance issues, the dispute may be suitable for referral for a determination. Dispute determination is a third-party independent resolution arrangement. Further information is available on the Fire Service Inspectorate website: HM Fire Service Inspectorate: Dispute Determination.

40. There is also a right of appeal to the court against a Prohibition Notice, Enforcement Notice or Alterations Notice, within 21 days from the date the notice is issued.

41. While the general fire safety measures required by the 2005 Act are enforced by the SFRS, there are some matters that are enforced by the Health and Safety Executive or the local authority, under various pieces of health and safety legislation. Some examples are precautions relating to:

• Storage of flammable liquids.
• Ventilation systems to dilute or remove flammable gas or vapour.
• Selecting equipment that will not be a source of ignition.
• Maintenance of electrical equipment.

How to Use this Guide

42. The remaining chapters in this guide provide information on the assessment of fire risk, the reduction of risk and identification and implementation of fire safety measures. It is not necessary to follow the risk assessment method in this guide or the fire safety measures; other suitable methods and measures may be appropriate.

43. The fire safety measures described in this guide are principally benchmarks. When deciding what fire safety measures are appropriate for premises, the benchmarks can be used as a comparison against what exists in the premises. The benchmarks should not be applied prescriptively to premises, they are not minimum standards nor are they provisions that are deemed to satisfy the legislation. In each case, the measures adopted should be risk appropriate for the particular circumstances in which they are applied. A standard lower than the benchmark may be adequate, in other cases a standard above the benchmark may be necessary. The assessment of risk needs to be specific to the individual premises.

44. If persons feel unable to interpret this guidance, they should seek assistance from someone with technical knowledge. The SFRS as an enforcer of the legislation, cannot undertake a dutyholder's risk assessment obligation. However, it has a statutory requirement to provide general advice on request about issues relating to fire safety and should be able to provide information and advice which will assist dutyholders to understand their obligations under the law.

45. While the principal purpose of this guide is to assist dutyholders comply with their legal obligations, its contents constitute guidance given by Scottish Ministers to the SFRS in terms of section 61(2) of the 2005 Act. The SFRS is therefore required to take it into account in determining whether enforcement action may be necessary. The SFRS is also required to have regard to the Scottish Regulators' Strategic Code of Practice.

46. Nothing in this guide should be interpreted as permitting a reduction in the standard of fire safety measures where the measures have been incorporated to comply with Building Regulations. It is possible for a fire safety risk assessment to require a standard higher than that required by Building Regulations.

47. From October 2013, a Fire Safety Design Summary is recorded as part of the building regulation process. This may be a useful source of information to assist dutyholders with the safe operation of the premises and to inform the assessment of fire risk.