Fire Risk Assessment required for empty building?

[Guest WR66]

Hi, 

Please can someone clarify if an empty commercial unit (small ground floor unit with residential accom above) requires a Fire Risk Assessment? I have received some conflicting advice- A local Fire Risk Assessor said it is required regardless of occupation (and quoted handsomely for the pleasure), as is a working and tested fire alarm(?!?) and that it says so in the legislation.  I decided to speak to a friend of mine, who happens to be a retired fire officer, who said that it was a ridiculous suggestion and that a written FRA on an empty building isn't required under the Regulatory Reform Order. I have googled and tried to read through the RRO itself but it isnt particularly clear to me. Section 9 does refer to 'relevant persons' - but who are the relevant persons if there is nobody in situ?

The unit is currently pending new tenancy and i tell all tenants that they need to undertake their own fire risk assessment. While empty, it is of course kept locked shut and secured so i am unsure who is actually considered to be 'at risk' given there is no access for members of the public and no employees? Is it potential trespassers?

 

Any guidance would be much appreciated.

[Mike North]

Yes a FRA is still required as there is a higher risk of arson etc. 

 

You still have a duty of care to trespassers

Fire Safety For Empty Buildings - Dorset Fire Protection

[Lyledunn]

But the retired fire officer had a uniform with shiny buckles, surely that trumps all statutory obligations and industry standard guidance!

[Hayfever]

On 05/02/2024 at 13:18, Mike North said:

Yes a FRA is still required as there is a higher risk of arson etc. 

 

You still have a duty of care to trespassers

 

Really???

Article 2 of the FSO provides the following definition in relation to one of the two groups of relevant persons :

“relevant persons” means—

any person (including the responsible person) who is or may be lawfully on the premises; 

 

A trespasser or intruder therefore is not a relevant person so does not need to be considered during any FRA that may be required by the FSO. This is why you can bar and chain final exits when a business has closed

[Guest WR66]

Well herein lies my issue: I would be more inclined to believe the ex fire officer with the shiny buckles who enforced said statutory obligations than someone with a vested interest and potentially just looking to make a quick buck. However, it is the clear contradiction between the two opinions i am trying to get to the bottom of as it will apply to a number of my buildings. 

I cannot find said industry standard guidance and based on the statutory guidance i have read (the RRO) and tried to decipher, i cannot see where i would need to have an FRA completed, let alone by a professional.

Section 9 says that the FRA must be recorded in 3 relevant conditions: 5 or more employees, enforcement notice or a license is in force. None of which apply to this building. 

By what i have read, the 'FRA' may be limited to me confirming (if asked) that i have indeed thought about the fire risks and in order to protect the building and trespassers, i have locked the building as a control measure.

Please do point me in the direction of the industry standard guidance itself (ideally not from a company website who sells FRAs or fire safety products) or the statutory legislation that clarifies documented FRAs are required on empty buildings. 

[Mike North]

December 2008

DUTY TO VISITORS AND TRESPASSERS

8.100 Occupiers’ liability duty to visitors and trespassers

A duty of care is owed between an occupier of premises and his/her lawful visitors [note 1], and an occupier also owes a limited duty of care to trespassers [note 2]. The question of who is an occupier depends upon the particular facts of each case but generally it would be the person who is in actual occupation for the time being, or who has possession or physical control of the premises. Accordingly, unless and until an insolvency practitioner is appointed, the official receiver is likely to be the occupier of the premises of the insolvent, if they have been vacated by the insolvent.

 

8.101 Meaning of ‘duty of care’

An occupier owes the ‘common duty of care’ to all his/her visitors. This is a duty to take such care (as is reasonable in the circumstances of the case), to see that the visitor will be reasonably safe in using the premises for the purposes for which he/she is invited or permitted by the occupier to be there [note 3].

The duty of care to trespassers arises only when the occupier is aware of a danger or has reasonable grounds to believe that it exists, knows or has reasonable grounds to believe that a trespasser may be, or come into the vicinity of danger and, in all the circumstances of the case, the risk of a trespasser coming into the vicinity of the danger is one against which the occupier may reasonably be expected to offer some protection [note 4].

The occupier’s duty also extends to anyone who suffers injury as a result of any danger arising due to the state of the premises or things done or omitted to be done on the premises, even if the person suffers injury on an adjoining highway, private road or premises. There is further imposed a liability for damage to property brought onto the premises by a visitor, whether or not the property belongs to the visitor [note 5], but this liability is not imposed in relation to trespassers [note 6]. Therefore, a trespasser or other uninvited entrant cannot make a claim for damage to property.

 

8.102 Duty to visitors and trespassers where property leased/rented by insolvent

In addition to the above duties of care and any other duty of care, there is a liability for defective premises, which could be relevant if the insolvent was a landlord in respect of any premises [note 7]. This provides that a duty of care is owed by a landlord to visitors, and possibly trespassers, where the premises are let under a tenancy which places the landlord under an obligation to the tenant for the maintenance or repair of the premises or where the landlord has the right to enter the premises and carry out such repairs. The duty arises when there has been a breach of that obligation to repair (or failure to exercise the right of repair) which has led to the defect in the premises which caused an injury to, or damage to the property of, the tenant or visitor or any other person who might reasonably be expected to be affected by defects in the premises. This duty only applies if the landlord knew or ought in the circumstances to have known of the relevant defects. The duty cannot be excluded and the official receiver as liquidator, receiver and manager or trustee may become subject to it.

On 13/02/2024 at 07:47, Hayfever said:

Really???

Article 2 of the FSO provides the following definition in relation to one of the two groups of relevant persons :

“relevant persons” means—

any person (including the responsible person) who is or may be lawfully on the premises; 

 

A trespasser or intruder therefore is not a relevant person so does not need to be considered during any FRA that may be required by the FSO. This is why you can bar and chain final exits when a business has closed

 

[AnthonyB]

On 16/02/2024 at 16:13, Guest WR66 said:

Well herein lies my issue: I would be more inclined to believe the ex fire officer with the shiny buckles who enforced said statutory obligations than someone with a vested interest and potentially just looking to make a quick buck. However, it is the clear contradiction between the two opinions i am trying to get to the bottom of as it will apply to a number of my buildings. 

I cannot find said industry standard guidance and based on the statutory guidance i have read (the RRO) and tried to decipher, i cannot see where i would need to have an FRA completed, let alone by a professional.

Section 9 says that the FRA must be recorded in 3 relevant conditions: 5 or more employees, enforcement notice or a license is in force. None of which apply to this building. 

By what i have read, the 'FRA' may be limited to me confirming (if asked) that i have indeed thought about the fire risks and in order to protect the building and trespassers, i have locked the building as a control measure.

Please do point me in the direction of the industry standard guidance itself (ideally not from a company website who sells FRAs or fire safety products) or the statutory legislation that clarifies documented FRAs are required on empty buildings. 

You are out of date - Section 9 was amended in October 2023 by s156 of the Building Safety Act requiring all findings of the FRA (no longer just the significant ones) to be recorded in all cases - the old 5 + employees, alterations notice or license requirements have gone. (Non commercial reference https://www.london-fire.gov.uk/safety/property-management/changes-to-fire-safety-law-how-it-affects-you/)

The law clearly states all non domestic premises require a fire risk assessment and the text of the Order makes no exclusion for vacant premises because of the duty to protect persons in the vicinity of a premises and not just lawfully on the premises. During COVID-19 there was a vast increase in empty buildings and the Government & Fire Services were quick to point out that risk assessments needed updating & relevant precautions.

No one says you have to pay for FRAs or use external providers - you can do these yourself for simple premises, which could include empty buildings, and insurers give useful guides (https://www.nfumutual.co.uk/globalassets/business/rms/2021-update/unoccupied-buildings-fire-safety-guide.pdf)  

I've asked a Fire & Rescue Service for a written opinion - once I receive a reply I will post here.

Those risk assessors who have been prosecuted have included fire service personnel, current or ex - no one is infallible!

[Guest WR66]

That's excellent - thank you AnthonyB. 

 

They don't seem to have updated the reform order itself on the gov website yet and it also explains the advice from the ex FO also being out of date (he did retire 10 years ago so probably isn't keep an eye on updated guidance). I'll let him know. 

 

And sorry if this is a silly question but can I clarify that means *all* fire risk assessments now have to be in written form? And can you advise what the difference is between significant findings and non significant? That's thrown me a little bit as I do have a template from my old fire risk assessor that I can use alongside the NFU guidance you've provided but im not sure of the difference between what is considered significant or not. 

 

Thanks again 

[AnthonyB]

They removed the reference to 'significant' findings (no doubt due to the confusion) and so all findings must be recorded - which in practice means the whole assessment.

Yes, if you are required to do a fire risk assessment under the FSO it must be written. It no longer matters if you don't have any employees, a license or whatever. This change is in part because many Responsible Persons treated the under 5 persons as meaning they didn't have to do anything at all as oppose simply not record the FRA and this included a lot of flats as well as non domestic premises.

Fill in the template in full as applicable, including any action plan and you have recorded your findings for the purpose of the FSO. Simpler in a way rather than trying to decide what you needed to record and what you didn't.