Who is affected? - summary:|
The following are, according to the Government's interpretation, covered by the regulations:
Homes offering a bedroom (or more) on a B&B basis
Homes accommodating students
Families offering a room or "granny-flat" in their home on a self-catering basis
as well as, of course:
All public buildings
All hotels, guest houses etc.
The common areas of blocks of flats
See the B&B case studies submitted to the B&B Association for examples of how the RRFSO is actually being enforced on premises not covered by the pre-2006 legislation. Read the comments made so far to us.
For Scotland, click here.
Who is affected? - in more detail:
The Regulations (RRFSO) cover almost every building other than private homes: including all workplaces, and all premises visited by the public - especially where the public sleeps overnight.
The previous legislation (the Fire Precautions Act 1971) had a clear minimal size of accommodation below which a Fire Certificate (now abolished) was required: smaller premises, eg homes offering up to three B&B rooms in a standard house, did not require a Fire Certificate.
The RRFSO does NOT have this minimum cut-off (what lawyers call a "de minimus" principle) so, for example, ALL sleeping accommodation is now covered even if only one room is let to the public for only one night a year.
The balancing principle is supposed to be that very small or only occasionally-used premises, or those used by very small numbers of people, should only require a correspondingly low level of fire precautions to comply. (This does not seem to be being honoured in practice - hence the Fire Safety SENSE Campaign.)
Parliament's intention for the size of premises needing significant fire precautions may be indicated by the only "de minimus" clause in the RRFSO, which is that if a business has fewer than five employees, the regulations do not require it to write down ("record") its Fire Risk Assessment.
This means that, for instance, virtually all B&Bs and many small hotels are not required by the regulations to have a written Fire Risk Assessment - though they are required to have carried out a Fire Risk Assessment.
Domestic Premises Exclusion
The regulations specifically do NOT apply to "domestic premises" - as the following extracts from the RRFSO make clear:
Part 1; General; (2) Interpretations [p4]:
"In this Order..."domestic premises" means premises occupied as a private dwelling".
Article 6 (1) [p8]:
"This Order does not apply in relation to (a) domestic premises, except to the extent mentioned in article 31 (10)"
Article 31 (10) [p22] (this article concerns Prohibition Notices): "In this article, "premises" includes domestic premises other than premises consisting of or comprised in a house which is occupied as a single private dwelling and article 27 (powers of inspectors) shall be construed accordingly"
One of the biggest categories of premises brought into the regulations for the first time under the RRFSO are those offering sleeping accommodation that did not have to have a Fire Certificate under the previous (1971) Act - ie those with three guest rooms or fewer, and none over the first floor or below the ground floor. There are many thousands of such family B&Bs in the UK. Almost all of these are domestic premises - they are family homes with one, two or three guest rooms let on an occasional basis to paying B&B guests. They are typically recognised by local authorities as primarily family homes for planning and/or taxation purposes. These are single households, accepting guests on an occasional and selective basis, but whose primary use is as a private family home.
Fire departments are routinely ignoring the domestic premises exclusion and applying the Order to domestic family premises such as cottages or farmhouses letting perhaps a couple of guest rooms, even occasionally.
The letter the Bed & Breakfast Association received from the Government (DCLG) when the Association put the above to them said:
"In accordance with normal Government practice, it is not our policy to release copies of Departmental legal advice. However, we have discussed your letter with our legal advisers, who comment that a room which is let on a "bed and breakfast" basis is itself premises for the purposes of the Order, since "premises" is defined, in Article 2 of the Order, to include any place, and a room is clearly a place. A room let on a "bed and breakfast" basis, except where the paying guest lives there on a permanent basis, cannot be described as premises occupied as a private dwelling, and so the room is within the scope of the Order, by virtue of Article 6(2). The argument that a house as a whole consitutes the premises, and that since all of the house other than the "bed and breakfast" room is occupied as a private dwelling, the whole building must be occupied as a private dwelling, is similar to the argument rejected by the Court of Appeal in Westminster City Council V Select Managements Ltd.  1 All ER 897, 899. I hope this clarifies the position that the Government believes the Fire Safety Order does apply to bed and breakfast accommodation."
The Government's legal argument above seems to imply that every room in everyone's home that they are not actually permanently sleeping in could be defined as "premises" under the order. It also assumes that there is a clear distinction between a letting bedroom and a family bedroom: these are HOMES, and often family members will stay in rooms which at other times are let to the public.
Apart from anything else, the Government's interpretation casts the net enormously wide, bringing vast numbers (tens or perhaps hundreds of thousands) of premises within the scope of the order: for instance, if parents accommodate their children's schoolmates overnight before a school trip and are reimbursed their costs, they would come within the scope of the Order and have to do a Fire Risk assessment etc. That is just one example - the Government's legal argument above seems to imply that whenever ANYONE stays ANYWHERE which is not their permanent home, those premises are covered by the Order.
The Campaign finds it difficult to believe that this was intended by Parliament, and we believe that by expressly stating that "This Order does not apply in relation to...domestic premises", Parliament intended to exclude family homes - even if one or two rooms may be let within them occasionally on a bed and breakfast basis.
(Planning law and local taxation law recognises such small family B&Bs as private dwellings.)
A recent case seems to have helped the Government's interpretation that domestic premises are covered by the RRFSO:
MID AND WEST WALES FIRE AND RESCUE AUTHORITY
APPEAL AGAINST ENFORCEMENT NOTICE SERVED UNDER
THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 (“The Order”)
Mid and West Wales Fire and Rescue Authority have been successful in an appeal that was lodged against an Enforcement Notice served on a property that operated as self-catering holiday accommodation.
The premises in question is a large detached house, operating for part of the year (up to a maximum period of 20 weeks) as self-catering holiday accommodation and accommodating up to 14 people. For the remainder of the year it is occupied by the owners as their private residence.
An Enforcement Notice (EN) was served on the premises following an audit under the Regulatory Reform (Fire Safety) Order 2005, and subsequent extensive exchange of correspondence between The Authority and the owners. The owners however adopted the stance that their premises did not fall under the requirements of The Order as they contended it was their “private dwelling” for the majority of the year and an appeal was subsequently lodged against the EN.
The central legal issue raised was that The Order did not apply to the premises as it was “a private dwelling “.
The District Judge presiding over the case heard arguments from Counsel for the appellant and from David Stotesbury, Counsel for the Fire and Rescue Service, following which he ruled that the premises in question did fall within the requirements of the Order.
This ruling is regarded as a landmark legal judgement. However, it should not be regarded as laying down a rule that all holiday lets will necessarily fall within the Order as proportionality will be the key to determining whether the circumstances surrounding individual holiday lets result in their coming with the scope of the Order. Although the case does not lay down a binding precedent, it can be considered by other similar Courts when dealing with comparable matters.
The appeal also contested that the requirements of the Enforcement Notice were disproportionate and that insufficient time had been allowed for their completion. The District Judge adjourned the hearing of these technical fire safety matters until there is a joint inspection of the premises, after which the matter will return to the court ; or, if the parties so wish it, and the judge agrees, the technical issues could be referred to the Welsh Assembly for a determination under Article 36 of the Order.