External wall systems in existing multi-storey residential buildings - fire risk: advice note

Annex 2: Fire Safety in Scotland

Whereas building regulations apply to new building work, separate fire safety legislation applies to existing buildings. Part 3 of the Fire (Scotland) Act 2005 ("the 2005 Act") and the Fire Safety (Scotland) Regulations 2006 ("the 2006 Regulations") provide the legislative framework for fire safety in Scotland. The legislation consolidates and rationalises previous fire safety legislation for workplaces and incorporates a number of EU Directives. As such, it applies mainly to non-domestic premises.

Responsibility for compliance rests with employers and others with control of the premises (known as dutyholders). Dutyholders must undertake and regularly review a fire safety risk assessment of the premises and take measures to ensure people are safe from fire. They must nominate "competent persons" to provide assistance, implement fire evacuation procedures and, where necessary, firefighting measures. The 2005 Act specifies enforcing authorities and sets out their duties and powers, as well as detailing offences, statutory notices, appeals and dispute determination procedures.

Throughout the UK, most private dwellings are excluded from fire safety legislation. People are encouraged to be responsible for fire safety in their own home. Properties which require a licence to operate as a "House in Multiple Occupation" are excluded from the definition of "domestic premises" and so are "relevant premises" under the 2005 Act.

In Scotland, blocks of flats may be owned by a local authority, a housing association, or be in wholly private ownership with flats owned individually. They may also be mixed tenure and involve a combination of these.

Where there is no single building owner, the owners of the individual flats are normally jointly responsible for the maintenance of the building as a whole and its common parts. The title deeds of each flat will usually determine what the flat owner is responsible for by the rules and conditions set out in the deeds. As title deeds are drawn up for each individual property there can be variances.

In Scotland, the 2005 Act and the 2006 Regulations apply to "relevant premises", which is a defined term in the 2005 Act. "Domestic premises" (which means premises occupied as a private dwelling along with their common parts, such as halls, stairways and landings used in common) are not "relevant premises" for the purposes of the Act or the Regulations. Therefore, in general, private dwellings are exempt from the requirements of Scottish fire legislation, meaning that occupiers of flats do not have statutory obligations under fire legislation to ensure fire safety in flats or blocks of flats. That said, the 2006 Regulations require that any measures already provided in the common areas of private dwellings under Building Regulations for the safety or use of firefighters are maintained in efficient working order by those having control or ownership of the common areas. Occupiers must also ensure compliance with Building Regulations where modifications to the building's fabric are made.

All occupiers, whether owners, tenants or residents, have further duties to keep common areas free of combustible substances and anything which might obstruct egress from and access to the property in the event of fire under the Civic Government (Scotland) Act 1982.

Although legal duties under the 2005 Act and 2006 Regulations are limited in respect of domestic buildings, Scottish fire safety guidance encourages building owners, or individual flat owners where no single building owner exists, to take on a wider responsibility for their building's fire safety. This is often reflected in practice and some individual flat owners may use the services of others to act on their behalf, such as building managers, property factors and managing agents.

The Review of the Fire Safety Regime acknowledged that buildings with multiple owners and the issue of fire safety enforcement in high rise domestic buildings should be further considered over the longer-term, including potential changes to housing and fire safety law. The Scottish Government has made a commitment to take forward recommendations from a Parliamentary Working Group on Tenement Maintenance and, within this, fire safety could be an element. This includes a recommendation for a mandatory owners' association constituted as a legal entity for all blocks of flats. A realistic, achievable timescale for any new legislation is currently considered to be more than 5 years.