Fire safety - existing premises with sleeping accommodation: practical guidance

Annex 1: Guidance on the Application of Fire Safety Law in Scotland (Version 1. January 2013)

Background

1. Fire safety obligations are imposed on dutyholders by Part 3 of the Fire (Scotland) Act 2005 ("the 2005 Act"). Whether these fire safety duties apply in respect of premises, or part of premises, depends on whether the premises, or part of the premises, are 'relevant premises' as defined in section 78 of the 2005 Act. In most cases this will be a straightforward consideration, but in some cases the application may not be straightforward and may require interpretation and judgement.

2. In response to a public consultation by the Scottish Government on the definition of relevant premises, a number of respondents identified premises types for which there was a desire for clarity to aid consistent interpretation.

3. To assist dutyholders and enforcing authorities with consistent interpretation, the Scottish Government has therefore developed this non-statutory guidance on how it considers fire safety law may apply in respect of particular types of premises. While section 61(2) of the 2005 Act requires enforcing authorities to have regard to any guidance given by Scottish Ministers when enforcing the fire safety duties, this guidance is not definitive and it therefore remains for each dutyholder and enforcing authority to reach their own conclusions in the individual circumstances of each case.

4. The fire and rescue service use some system tools that contain generic premises categories. Because the generic categories do not always align with the definitions in fire safety legislation in Scotland, the fire and rescue service needs to be mindful that the generic categories should not be used in determining whether premises are relevant premises.

5. Premises are excluded from being relevant premises when they are 'domestic premises', as defined. However some premises, such as houses which fall within the scope of House in Multiple Occupation (HMO) licensing in the Housing (Scotland) Act 2006, which may normally be considered domestic in nature, are excluded from the definition of domestic premises in section 78.

Scope

6. The premises and categories covered in this note are:

• Sheltered Housing for Older People
• School Care Accomodation
• Provision of Support Service
• Care Homes
• Adult Placement Service
• Sites For Caravans, Mobile Homes or Park Lodges
• Common Areas of Private Dwellings

Sheltered Housing for Older People

7. Housing for older people falls into the following broad categories:

• Amenity or medium dependency housing. This is housing generally considered suitable for older people due to the physical characteristics of the house, but does not necessarily include any services.
• Sheltered housing. This is a generic term to describe housing with a warden service which combines older people's accommodation requirements and support needs into a single package. Usually built in a block or comprises a cluster of bungalows and often includes communal facilities, such as a lounge. Scheme residents can call upon a warden for support and the warden may also organise activities. Wardens tend to live off-site. Sheltered wheelchair housing is housing adapted to wheelchair standards for elderly people who use wheelchairs.
• Very sheltered housing (sometimes known as 'care housing' or 'extra care housing'). This is accommodation generally suitable for frailer people who might otherwise be in a care home. These schemes may have additional facilities such as special bathroom facilities, a greater level of care and support through extra wardens, full-time carers, domiciliary assistance, or the provision of meals. However there is no single model for this type and provision can vary.

8. There are three main categories of provider of sheltered housing for older people.

• Local Authority Providers

Most Scottish local authorities provide sheltered housing and several also provide very sheltered housing. Some have transferred their stock to housing associations.

• Housing Association Providers

A number of housing associations provide sheltered and/or very sheltered housing. These range from 'national' organisations such as Bield and Hanover (Scotland) who manage large numbers, to small organisations responsible for one or two schemes. Some of these organisations have a small proportion of shared ownership or shared equity accommodation.

• Private Sector Providers

There is private sector provided sheltered housing where the dwellings within the schemes are privately owned and buildings are managed by a private company. Dwellings can subsequently be sold on. Some private sector schemes include very sheltered housing. Almost all the schemes provided by the private sector comprise freehold properties.

9. In general, sheltered housing comprises private dwellings. These dwellings, and the common areas serving the dwellings such as the corridors, entrance lobby, stairs, common room/lounge etc., are therefore not relevant premises.

10. However some specific parts of some sheltered housing complexes may be relevant premises, examples are:

• Offices used by persons other than the residents, such as a non-resident warden.
• Guest overnight rooms, outwith individual dwellings, which are kept available for the exclusive use of visitors.
• Rooms or facilities within a building which are regularly used for the day care of non-residents.

11. Where, within a building, there are areas that are relevant premises, such as an office used by a warden, this does not mean that the common areas of the building such as corridors or a common room then become relevant premises simply because they may be accessed by employees. See paragraph 47 for an explanation of the treatment of common areas connected to private dwellings.

12. In some very sheltered housing complexes, shared facilities are provided to the extent that this brings the premises within the scope of HMO licensing. Where HMO licensing applies to sheltered housing, the premises will then be relevant premises.

13. Where only part of a building is relevant premises, such as will be the case in many sheltered housing complexes, persons in other parts of the building may fall within the description of 'relevant persons' in section 79 of the 2005 Act, with the effect that dutyholders responsible for fire safety in the parts that are relevant premises, must take into account the safety of the other persons in the building from a fire starting in the relevant premises.

School Care Accomodation

14. School care accommodation is residential accommodation provided for school pupils in connection with their school attendance. This may be provided by the school or arranged by the school in other premises. Some pupils will be at boarding school through choice, some pupils will stay in accommodation because there are no schools within travelling distance of their home and some pupils will be at residential schools which meet their particular care and education needs.

School care accommodation provided by a school

15. Any school care accommodation provided by a school will be relevant premises because this category is specifically excluded from being considered domestic premises by section 78(5)(c) of the 2005 Act.

School care accommodation not provided by a school

16. School care accommodation not provided by a school but provided by arrangement with another person is specifically not excluded from the definition of domestic premises in the 2005 Act. This means that a decision on whether such accommodation is relevant premises or not depends on an assessment of the premises and whether they are occupied as a private dwelling.

17. Where by arrangement a pupil resides with a person or family in what is otherwise a private dwelling, the existence of a contract for the provision of school care accommodation should not alter the standing of the premises as a private dwelling, and the premises should therefore not be relevant premises. But where a pupil resides in accommodation not provided by the school but which is not in a private dwelling, such as a hostel, then the premises will be relevant premises.

Provision of Support Service

18. Support services are services designed to help a wide range of people, from those who need support with very complicated needs, to people who need time- limited support at different points in their lives.

19. The Public Services Reform (Scotland) Act 2010 ("the 2010 Act") includes a care registration category of 'support service' and a separate category of ''housing support service'. The 'support service' category can be subdivided into 'care at home' and 'day care'.

20. Registration of these services under the 2010 Act applies to the service provider rather than to the premises where support is delivered. There are no references to these services in the 2005 Act.

Care at home

21. 'Care at home' (also known as 'home care' or 'home support') is care and support provided in a person's own home to enable that person to function as independently as possible and/or continue to live in their own home.

22. Home care services may be provided to older people, children and young people and their families and carers; adults with learning disability or mental health problems; people with physical disabilities; people with alcohol and drug problems, and other vulnerable groups. The time, length and areas covered will be different for different individuals. Care at home can include:

• Routine household tasks within or outside the home (basic housework, shopping, laundry, paying bills).
• Personal care¹.
• Respite care in support of the person's regular carer(s).
• Overnight, live-in and 24 hour services.

23. Care at home may be provided by local authorities or private or voluntary sector agencies. Primary healthcare teams may also be involved in intensive home care schemes.

24. There are a significant number of dwellings where treatment and care is provided by NHS Scotland bodies for patients in their own homes.

25. Since care at home is delivered in a person's own home it follows that these will generally be private dwellings and will therefore not be relevant premises. Where a person living in their own private dwelling receives care or support to allow that person to continue to occupy their home, their home is deemed to be domestic premises; a change in mobility and dependency of the person, or the provision of a carer, will not alter this.

26. Private dwellings, within the meaning of section 78 of the 2005 Act, are not relevant premises. Obligations in respect of the fire safety of employees involved in domiciliary care may sit within the scope of the Health and Safety at Work Etc. Act 1974. Guidance is available on the HSE website at www.hse.gov.uk/healthservices/domiciliary-care.htm

Daycare²

27. Day care aims to provide care to meet a person's individual needs, teach skills to promote independence, a meal, the opportunity to meet and mix with other people and the choice of taking part in varied activities.

28. Day care support is usually provided in a day care centre. Specially trained staff there can help with learning or re-learning skills as part of a rehabilitation programme or help a person learn to cope with a new disability. Some day care centres are specially designed for people with dementia or with visual or hearing impairment.

29. Day care is generally provided in premises that are not private dwellings, and when this is the case such premises will therefore be relevant premises.

Housing support service

30. Housing support covers a range of activities that allow people to maintain their accommodation, meet their duties and responsibilities as a tenant and to live independently in the community. Housing support services can range from around one hour a week to 24-hour residential support.

31. A wide range of people with particular needs can receive housing support services - the largest group is older people living in sheltered housing. Other groups include homeless people, refugees, women escaping domestic violence, people with a chronic illness, people with a physical impairment or learning disability, ex-offenders and people with drug and alcohol related problems. They may use these services when their accommodation is temporary (for example, in a crisis) or when they are being re-housed.

32. Housing support services may be provided or commissioned by a landlord as part of a tenancy agreement where the provision of accommodation is part of the support.

33. Housing support may be provided in all types of accommodation and tenure such as to people living in ordinary houses, sheltered housing, hostels for the homeless, accommodation for the learning disabled, women's refuges and group homes where people share accommodation supported by residential or visiting housing support workers.

34. Premises where persons are in receipt of housing support may or may not be relevant premises. The existence of housing support in itself is not an indication that premises are relevant premises, there needs to be an individual consideration of each premises.

35. The tenure of the premises - whether the residents are tenants or occupiers - is a strong indication as to whether they are private dwellings or not.

36. A tenancy agreement is an indication that the person rents the house or flat exclusively (or with another person), and that the premises are a private dwelling and not then relevant premises.

37. An occupancy agreement is an indication that the person rents a room in a group home where some rooms are shared with other people, or the main purpose of the stay is to receive support, for example in a rehabilitation centre or a hostel. These premises are likely to be relevant premises. Any premises with shared facilities to the extent that this brings the premises within the scope of HMO licensing, will of course be relevant premises.

2 Not to be confused with 'day care of children' service which is a separate registration category that takes place in 'relevant premises'

Care Homes

38. The term care home is sometimes used generically to describe a wide range of premises where care is provided. For the purposes of fire safety legislation, care homes are only relevant premises where there is the provision of a care home service as defined in paragraph 2 of schedule 12 to the 2010 Act.

39. Section 78(5)(b) of the 2005 Act specifies that such premises are not to be regarded as domestic premises. This means that a care home, which matches the description, is always relevant premises. Wider definitions of care home must not be used in the interpretation of the legislation.

Adult Placement Service

40. Adult placement is a registered care service which is defined in schedule 12 to the 2010 Act.

41. An adult placement service arranges the provision of accommodation and support for vulnerable adults by placing them in the homes of families or individuals where they will be part of the household, and where there is support and care. Generally, premises used for adult placement are private dwellings and are, therefore, not relevant premises.

42. However, there is no exclusion for adult placement premises from HMO licensing, so in those cases where the number of persons living in the premises exceeds the HMO licensing threshold, the premises may be a licensable HMO and then would be relevant premises.

Sites for Caravans, Mobile Homes or Park Lodges

General

43. Two different determinations need to be made on these sites in respect of the application of fire safety law. These are (a) whether the site is considered to be relevant premises, and (b) whether individual units within the site are relevant premises.

Individual units

45. A caravan, mobile home or park lodge which is used by someone as their residence, whether as owner or tenant, will be domestic premises and not relevant premises. Where a unit is let as holiday accommodation or used for a non-domestic purpose (such as office, retail or information booth) then it will be relevant premises.

Sites

46. While individual units may or may not be relevant premises:

a. A site itself will be relevant premises where some or all of the units are let as holiday accommodation.

b. A residential site itself will be relevant premises where it contains units, and the units or pitches are rented on a commercial basis, regardless of whether the occupiers of the individual units are owners or tenants.

Common Areas of Private Dwellings

47. The common areas of private dwellings, such as stairs and corridors, are specifically excluded from being relevant premises by section 78(4) of the 2005 Act.

48. For the purpose of the 2005 Act, premises can only be considered as a workplace where they already meet the description of relevant premises in section 78. This means that the definition of workplace does not extend to the common areas of private dwellings since these parts are expressly not relevant premises by virtue of section 78. For example an office for a concierge in a block of flats may be relevant premises, but the common parts of the building are not relevant premises even though the concierge may, as part of his or her employment, use or carry out work in the common parts.

49. However the maintenance provisions in regulation 23 of the Fire Safety (Scotland) Regulations 2006 do apply to the common areas of private dwellings by regulation 24, even though these areas are not relevant premises. These provisions apply to the maintenance of premises and facilities, equipment and devices provided for the use by or protection of fire-fighters.

50. Some provisions of the Civic Government (Scotland) Act 1982 will also apply in respect of common areas. Section 93 imposes an obligation on occupiers to keep the common property free from combustible substances and obstructions. Fire and rescue service employees have enforcement powers under section 93 (to the extent that such powers have been delegated to them).