Fire safety in care homes: how do I protect my business and how do I challenge the fire service?

Last week, two directors of a care home in Essex were fined after pleading guilty to twelve fire safety offences.

Fire safety prosecutions have the potential to attract heavy fines and significant reputational damage for care homes. This could further affect the service’s CQC rating and potentially even its eligibility for contracts. Individual directors and managers can also face up to two years’ imprisonment for their involvement in any fire safety breaches.

Weightmans’ Regulatory Team, James Muller and Natalie Puce, explain how care home bosses can protect their business from prosecution, and how to challenge Fire and Rescue Services (FRS).

How do I protect my business?

Care home providers are required to undertake a fire risk assessment at their premises and must take such general fire precautions as will ensure, so far as is reasonably practicable, the safety of any of employees, service users and other persons on the premises (visitors, contractors etc). General fire precautions include both physical and organisational measures to reduce the risk of fire, reduce the spread of fire and to allow effective means of escape in the event of fire.

Some of our top tips for how care homes can work towards ensuring compliance with these duties are:

1. Ensure there is a comprehensive fire safety policy which includes both operational measures to control risks and specifies the delineation of responsibilities.
2. Install and maintain appropriate fire detection and suppression systems.
3. Appoint a suitable “Competent Person” within the business, or from a suitably experienced and qualified specialist fire safety consultant, to lead on fire safety matters. However, you should not consider that in doing so you have fulfilled your responsibilities. You must provide that individual with appropriate authority, resources, and information to undertake that role, and must have appropriate oversight of their actions, performance and ongoing competence to undertake that role.
4. Be aware of the common fire risks in care homes which include smoking, electrical equipment, and the spread of fire due to doors being wedged open. Ensure that suitable and sufficient fire safety risk assessments are prepared, regularly reviewed, and that remedial actions have been undertaken and the work documented. One of the easiest breaches for a Fire Safety Officer to spot is an out-of-date risk assessment or a list of overdue tasks at the back of a fire risk assessment.
5. Ensure that your fire risk assessment and evacuation strategy consider the particular requirements of the residents at the specific care home and are not generic. They should also consider the cumulative effect of the building’s fire safety measures. For example, progressive horizontal evacuation will have specific requirements in terms of compartmentation standards and staffing.
6. Ensure that staff are appropriately trained in fire safety and fire drills are carried out regularly. This can present its own challenges in care homes, but is essential to ensure that staff are prepared in the event of an emergency.
7. Ensure that you understand the potential fire safety implications of any construction works on the premises, no matter how small, and that those carrying out the works understand the need to restore appropriate fire safety protections following the works. It is not uncommon for contractors to breach compartmentation when undertaking their works and not reseal those compartments – potentially undermining the fire safety of the whole building.
8. In relation to older buildings, consider undertaking more detailed surveys of physical fire safety measures, including compartmentation and fire doors, so that you can understand the current position, which may have changed significantly over the years.
9. In relation to recently built or adapted buildings, understand that fire safety requirements run alongside, but are distinct from, the Building Regulations regime. Certificates of compliance are issued in relation to Building Regulations at the time of construction, but do not necessarily offer any assurance of the fire safety of the premises going forward. Building Regulations may also not give appropriate consideration to the particular risks presented by residents in a care home, and from the specific means of evacuation that might be undertaken in such premises.
10. If you operate care homes across a number of different fire service areas, consider forming a Primary Authority relationship with your preferred FRS. These relationships attract a fee, but enable you to seek “assured advice” from your Primary Fire Authority regarding fire safety issues. This allows a more collaborative approach to fire safety, and gives a greater measure of assurance regarding fire safety within your business. Importantly, this also enables your Primary Fire Authority to block any enforcement action from any other FRS that is inconsistent with advice it has given. In a recent case in which we represented a care home provider, their Primary Fire Authority blocked fire safety enforcement notices in relation to compartmentation standards that another FRS sought to impose.
11. Although there is no specific NFCC guidance for care homes, do consider the following guidance:
    1. Government’s risk assessment guidance for care homes
    2. Guidance from individual fire services on fire safety in care homes
    3. NFCC Guidance on “Fire Safety in Specialised Housing”

How do I challenge the fire service?

There may come a time when fire safety officers seek to impose fire safety requirements on your business with which you disagree. Weightmans’ specialist fire safety team recently represented a care home group and an extra care provider in relation to fire safety enforcement notices issued by a FRS – both instances resulted in the FRS withdrawing the enforcement notices.

In such situations, we recommend considering the following:

1. Not every disagreement needs to become a dispute. Much can be achieved through constructive dialogue with the FRS, asking them to explain why they say certain measures are required, and explaining your point of view.
2. If you have a Primary Fire Authority, speak with them and invite the enforcing FRS to do so as well. The Primary Fire Authority can often help mediate between the two positions.
3. Know that you can appeal any formal enforcement notice, but that this must be done within 21 days - this is a strict statutory time limit. Appeals are heard before the Magistrates Court. If the enforcement notice is not appealed within 21 days, then the business will have to ensure that it complies with the notice within the specified timeframe. If the business is subsequently prosecuted for breaching the enforcement notice it will be very difficult for it to argue at that stage that the notice should not have been issued, or that the FRS made an error.
4. Seek legal advice from specialist fire safety solicitors as early as possible, so that you can be advised on the options and have time to consider that advice. If you are considering appealing an enforcement notice, it is imperative that the correct advice is sought as a matter of urgency so that any appeal can be launched within the strict 21 day time limit.
5. Better still, before any such situation arises, form a relationship with trusted fire safety solicitors who know and understand your business, from whom you can seek advice at short notice as and when such issues arise.

Further information

You might also find Weightmans’ fire safety team’s previous article to be of assistance - “Is the Responsible Person an actual person?” And 5 more important fire safety questions answered - Is the Responsible Person an actual person? | Weightmans