Association of Residential Managing Agents

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We are grateful to Watson Wild & Baker Limited for providing this article, which is their own view. Watson Wild & Baker is an independent consultancy offering Health & Safety and Fire Risk Assessments, Occupational Hygiene and Workplace Safety Services.

Confusion abounds regarding the duties of managing agents under the Fire Safety Order, “the order”. This confusion causes serious problems, especially if you get it wrong. If you get it wrong, you are vulnerable to prosecution, civil damages or the inability to recover costs for works carried out on your client’s behalf. Managing agents have duties under the order, as they have contractual obligations in respect to the safety of employees and other relevant persons affected by a fire. Managing agents also have a duty to ensure the safety of any premises that they manage in the event of a fire. At present, many managing agents carry out works, regardless of whether they are required, as consultants follow faulty guidance as though it was the law, and not on the basis of whether there is a danger from fire on the premises.

The starting point of the order is that the employer of any persons employed on the premises, or the person in control of the premises where no employees are present, must make an assessment of the risks to the safety of all persons who may be affected by a fire on the parts of the premises under their control, to determine what measures they must take to comply with their legal duties under the order. This process requires that the managing agent determines whether a fire at the premises (whether inside a flat or not) could affect persons in the areas under their control. It does not matter how likely a fire is to occur; only if a fire could occur.

For example, in the operating guidance to the Housing Health and Safety Rating Scheme, it states that 1 in 2,157 flats built after 1979 will experience a fire each year. However, we do not know which of these 2,157 flats will experience the fire, so we must assume that each of those flats has the same likelihood of experiencing a fire unless there is evidence, such as poor construction or maintenance, which suggests that a fire is more likely in a particular flat. After determining that a fire may occur, the assessor must look at the features (such as the location, design, construction, protective measures and maintenance) of the property, the use of the premises, the sources of danger (heat, smoke, toxic gases and structural failure) and the persons at danger in the premises, to determine the likelihood of an injury occurring. The assessor must also consider your contractual obligations to the client and any other matters that a reasonable person should take into account in the circumstances. 

In most cases, a fire is more likely to occur inside a domestic flat than outside the flat. A fire should not occur outside the flats if electrical services are properly contained and maintained, contractors are properly managed and there is adequate housekeeping. In these circumstances, providing the flats are separated from the areas under your control by adequate compartmentation (fire doors, transoms, windows etc.) that is in good condition, then your duty is to ensure that the parts of the premises under your control are safe. 

Consequently, if you are responsible for maintaining a dwelling door etc., you have a duty to keep that door in good repair so that it effectively protects the safety of persons who are escaping from the premises. However, when you are not responsible for these items, you are obliged to take such steps as are considered by the courts to be reasonable in the circumstances. This may cause difficulties if there is no contractual obligation between you and the leaseholder. In these circumstances, the reasonable steps could be as simple as informing the leaseholder that their door etc., appears to be defective and that they should check whether it needs repair or replacement. However, if there is a potential risk of injury or a possibility of danger you may need to request, through a magistrate or the parish council, that the local authority inspect the premises and then take any necessary steps to enforce the Housing Act directly against the leaseholder.  

If, however, the front door is not to current standards but is otherwise in good repair, then the fun and games really start, especially if you have an enforcement officer or an advisor who uses the guidance as a rulebook. When this happens, you must ask that person to explain “why they believe that there is a danger from fire?” which relates to the item in question, as the courts have decided that if there is no relevant danger, then you do not have to do anything further to comply with the law. 

Where measures concerning entrance doors to dwellings have been taken to protect persons from fire, then they must be properly maintained in accordance with a suitable regime. Where the measures are necessary and there is a serious risk to life, then the Fire Brigade may inspect any part of the premises, including a flat, and if appropriate serve a prohibition notice. If they do not serve a prohibition notice, then the Fire Brigade is not the enforcing authority for the domestic premises and any action in respect of those premises is unlawful. Where the Fire Brigade serves an enforcement notice on you, as a managing agent, that relates to parts of the domestic premises or to matters outside of your control, you must appeal against the notice. If you fail to appeal within 21 days, the Court presumes that you have accepted that the notice is valid. In such cases, the Courts may convict for failing to comply with the notice, even if you cannot comply as it may relate to matters outside of your control. If you cannot prove that you took all reasonable steps to avoid the offence, the company may be given substantial fines, whilst individuals may, upon conviction, be imprisoned.    

Whilst the simple response to all this complexity is to take all measures that could possibly be taken, this causes its own problems. One local authority forced leaseholders to replace the entrance door to their flat as they did not comply with current standards. When they attempted to recover the cost, the leaseholders appealed to the Upper-tier Tribunal. The Upper-tier Tribunal refused to allow the local authority to recover costs, unless it showed that the specific flat entrance door was in disrepair, as measured against its original standard, and that it caused a danger of injury to persons outside the flat in the event of fire. Where these conditions could be met, the court allowed the local authority to claim costs for improving the doors to meet current standards. In this particular case it did not allow full replacement costs to meet the new standards. The Tribunal also criticised the surveyor, who had not considered the dangers from fire and had only considered whether the door had met its original standard; he considered that any alteration to the door made it defective – this approach was rejected by the tribunal, and this case showed that failure to consider the dangers from fire may be an expensive mistake.  

Whilst you must consider risk – i.e. the danger of injury from fire, and not merely whether the current standards are met, this must be determined on the specific facts, which can only be found by an inspection of the premises. In some instances you may own the flats, in such instances you may wish to inspect the inside of the flats. In most cases, you will not own the flats, albeit there may be a right to access the inside of flats having given the appropriate notice. Although you may be able to enter the flat to inspect the entrance door, as it affects the communal means of escape, you will then be required to check the internal compartmentalisation (internal doors, ceilings, floors and walls), as this affects the entrance door to the flat and the adjacent dwellings; otherwise you may be considered negligent, as you have accepted a duty and you have failed to carry it out properly! Furthermore, if you inspect one or even a sample of flat entrance doors, and later it was found that a different defective flat entrance door in the building caused a danger, the issue may be “why did you not inspect that door?”.

We argue that you, as managing agents, should take appropriate steps to assess the dangers from fire to persons outside the domestic premises. Whilst only a Court can determine what steps were reasonable in the specific circumstances, our experience from inspecting thousands of premises over 10 years, is that it is always reasonable to carry out a visual inspection of the dwelling entrance doors. Normally, the inspection is limited to a visual inspection of the external surface whilst the door is in a ‘closed’ position. Whilst we would never attempt to gain unsolicited entry into domestic premises to inspect the entrance door, occasionally, the entrance door to a flat may be open, which could provide useful information about that door only. 

When the inspection determines that a dwelling entrance door is the original door (albeit inappropriate to meet current standards), but otherwise it is in good repair, then no action may be necessary to upgrade the door. However, even in such circumstances, there may be a danger from fire to persons outside the flat. If this is the case, then there should be appropriate fire detection and warning systems outside the flat, to give earlier warning in the event of fire. In such cases, it may be appropriate for the Housing Authority to be requested to inspect each flat, as they can insist that action be taken to improve fire safety under the Housing Act, even when the Fire Brigade cannot take action under the order. 

Written by Adrian K Watson BSc (Hons), LLM, MSc, Dip Env Hlth, Dip Occ Hyg, CFPA(EU)Dip, CFFOH, CFIOSH, MCIEH CenvH, MRSB.

If you require any further information pertaining this article, please contact Steve Letch at Watson Wild and Baker Ltd, on 0779 1112487 or