Fire safety - existing specialised housing and similar premises: practical guidance

Part 4 The Law and Fire Safety

Chapter 7: The Law and Fire Safety

Key Points

• Compliance with Building Regulations provides a base-line standard of fire safety for new buildings and extensions, alterations and conversions of existing buildings. Building Regulation guidance cannot be applied retrospectively to existing buildings.
• Housing legislation makes requirements in respect of smoke and heat detection and the Scottish Social Housing Charter requires social landlords to deliver services that meet the needs of residents.
• The Civic Government (Scotland) Act 1982 requires occupiers to keep common property free of dangerously combustible items and obstructions.
• Part 3 of the Fire (Scotland) Act does not generally apply to domestic premises but it does apply to any premises which provide a “care home service” or which requires a licence to operate as a House in Multiple Occupation. It also applies to some forms of supported housing, for example in group homes with occupancy agreements, where the main purpose is to provide care.

Introduction

475. This Chapter gives an overview of relevant legal requirements governing fire safety. This includes Building Regulations, Housing Acts, the Civic Government (Scotland) Act 1982 and the Fire (Scotland) Act 2005. It includes a consideration of the application of Part 3 of the Fire (Scotland) Act to premises which provide care services, as defined in The Public Services Reform (Scotland) Act 2010.

Building Regulations

476. Building Regulations apply to new building work, buildings being converted from one use to another, and alterations or extensions to existing buildings. They contain requirements in respect of various fire safety measures. Contravention of Building Regulations is an offence.

477. Any proposal to carry out alterations should be submitted to Building Standards Verifiers to determine if approval is necessary (and, if so, to obtain approval of the proposals) under the Building Regulations.

478. Unapproved minor alterations and building works can result in a contravention of the Building Regulations. The replacement of a self-closing, fire-resisting flat entrance door by a non-fire-resisting door or by a door that is not self-closing is a common contravention. This may place other residents at risk if a fire occurs in the flat in question.

479. There is no requirement under the Building Regulations to upgrade existing fire safety measures to current standards. However, existing non-compliance with current Building Regulations must not be made worse in the course of alterations or building works.

480. Powers exist under the Building (Scotland) Act 2003 to require unauthorised alterations to be rectified if the work breaches the Building Regulations.

481. Anyone in doubt about the application of Building Regulations should contact their local authority Building Standards department.

Housing Acts

482. The Housing (Scotland) Act 2006 requires that private rented housing has satisfactory provision for detecting fires and for giving warning in the event of fire or suspected fire. The Act also requires inspection and testing of electrical installations in private rented housing.

483. The Housing (Scotland) Act 2010 makes provision for a Scottish Social Housing Charter which sets out standards and outcomes that social landlords should aim to achieve when performing housing activities. The Charter includes a duty to ensure compliance with the Scottish Housing Quality Standard. The Standard includes requirements for electrical safety testing, fire detection and the provision of thumbturn locks to allow escape in event of fire. The Charter also requires social landlords to communicate effectively with tenants and to deliver services that recognise and meet individual needs. This should be achieved regardless of age, disability or other protected characteristic, in line with Equalities legislation. The Scottish Housing Regulator sets out its role, requirements and powers in its Regulatory Framework and associated guidance.

484. From 1 February 2022, an amendment to the statutory tolerable standard comes into force under section 86 of the Housing (Scotland) Act 1987, which requires that all dwellings, regardless of tenure, must have satisfactory provision for detecting fires and for giving warning in the event of fire or suspected fire. The standard requires:

• One smoke alarm installed in the room most frequently used for general daytime living purposes.
• One smoke alarm in every circulation space on each storey, such as hallways and landings.
• One heat alarm installed in every kitchen.

485. All alarms should be ceiling mounted and interlinked. They can be either mains-wired or have tamper proof long-life lithium batteries. There is also a requirement for carbon monoxide detectors to be fitted where there is a carbon-fuelled appliance (such as boilers, fires (including open fires), heaters and stoves) or a flue.

486. The benchmarks for fire detection and warning in Chapter 5 recommend a higher standard than that required in either building regulation or housing legislation guidance, reflecting the increased risk associated with those living in premises covered by this Guidance.

The Civic Government (Scotland) Act 1982

487. Section 93 of this Act requires occupiers to keep common property free of combustible substances and anything which might obstruct egress from and access to the property in the event of fire.

488. SFRS has power to enter the common property to determine if the duty is being complied with, and if it is not and there is an immediate risk of fire likely to endanger life, to do anything necessary to remove that risk including seizing and retention of items. SFRS can recover from occupiers the expense of removing items or substances from common property. SFRS can issue Notices requiring occupiers to remove or render safe items or substances in common property. Any person who fails to comply with a Notice from SFRS is guilty of an offence.

Fire (Scotland) Act 2005 and Regulations

489. Fire safety duties are imposed on dutyholders by Part 3 (Fire Safety) of the Fire (Scotland) Act 2005 (“the 2005 Act”) and the Fire Safety (Scotland) Regulations 2006 (the Regulations).

490. Duties include undertaking a fire safety risk assessment and taking measures to ensure the safety of persons from fire on, or in the immediate vicinity of, the premises. A “competent person” must be appointed to assist in undertaking the necessary measures. Risk assessments must be reviewed regularly. Records must be kept of the significant findings of the risk assessment; the fire safety management arrangements (for the effective planning, organisation, control, monitoring and review of fire safety measures); and information regarding any relevant persons identified by the assessment as being especially at risk from fire, where:

• A dutyholder employs 5 or more employees;
• A licence/registration under an enactment is required; or
• If required by an Alterations Notice issued by SFRS

491. Additional duties include:

• Nominating a sufficient number of competent persons to implement fire procedures in so far as they relate to the evacuation of relevant persons from relevant premises.
• Where necessary, nominating competent persons to implement measures for fighting fire.

492. The 2005 Act and Regulations applies to ‘relevant premises’ as defined in section 78 of the 2005 Act. These are mainly non-domestic premises; “domestic premises” as defined, are not “relevant premises”. The legislation in Scotland does not generally apply to individual dwellings, or to the common areas of blocks of flats.

493. However, one provision of the Regulations does apply to the common areas of domestic premises. This is the requirement to ensure that the common areas and any facilities, equipment and devices provided for the use by, or protection of, firefighters, are maintained in an efficient state. This provision is imposed on the persons who have control of the common areas. SFRS may inspect premises to audit compliance with the specific provision. If SFRS identifies a breach, it may notify the dutyholder(s) of steps to be taken to remedy the breach. If not resolved it may issue an enforcement notice. Any person who fails to comply with an enforcement notice from SFRS is guilty of an offence. A person on whom an enforcement notice is served has the right of appeal to the Court for 21 days after service of the notice. Alternatively, if the dutyholder and SFRS cannot agree on the measures necessary, either party may refer the matter for a determination by the Chief Inspector of the Fire Service Inspectorate.

494. The Act may, of course, apply to some parts of sheltered or extra care complexes which are not considered to be “domestic premises”, such as offices, day care facilities for non-residents, commercial premises and dedicated guest overnight accommodation outwith individual dwellings.

495. 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 and are therefore deemed to be “relevant premises”. Likewise, any premises in which a “care home service” is provided, will always be “relevant premises”, regardless of whether it is purpose-built or is small and domestic in nature.

496. In most cases, application of the 2005 Act and Regulations will be a straightforward consideration, but in some cases the application may not be straightforward and may require interpretation and judgement. The remainder of the guidance in this Chapter is offered to provide clarity although it should be noted that it is not definitive and it therefore remains for each dutyholder and SFRS to reach their own conclusions in the individual circumstances of each case.

Common Areas Of Private Dwellings

497. 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.

498. 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.

Sheltered Housing For Older People

499. 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.

500. 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.

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.

501. 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, are therefore not relevant premises.

502. 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.

503. 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.

504. 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.

505. 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.

Provision Of A Support Service

506. 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.

507. 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‘. A “care at home” service, delivered in a person’s own home, is an example of a “support service.” Sheltered Housing is an example of a “housing support service”.

508. 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

509. ‘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.

510. Care at home 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 care as defined in schedule 1 of the Community Care and Health (Scotland) Act 2002
• respite care in support of the person’s regular carer(s)
• overnight, live-in and 24 hour services

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

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

513. 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.

514. 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.

Housing support service

515. 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.

516. 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.

517. 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.

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

519. 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.

520. 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.

521. 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.

522. 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.

Care Homes

523. 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.

524. 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 a relevant premises. Wider definitions of care home must not be used in the interpretation of the legislation.

Adult Placement Service

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

526. However, there is no exclusion 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.

527. A summary of the application of fire safety law is given in Figure 16 below:

Type of Premises	Fire Safety Law applies?
General needs premises (including those with a “care at home” service)	x
Sheltered Housing	x
Extra Care Housing (very sheltered housing)	x (unless HMO licence required)
Supported Housing	Applies to some e.g. group homes with housing support services which offer occupancy agreements and whose main purpose is to provide care
Licensed HMOs in which care / support is provided	√
Small Care Homes	√

NB fire safety law may apply to limited parts of premises e.g. an office, separate guest overnight accommodation, and rooms which provide care for non-residents in sheltered housing complexes. In all premises, it is a legal requirement to maintain any facilities provided for firefighter use/safety in common areas in good repair and efficient working order.