Chapter 13: The Fire Safety Order

Chapter 13: The Fire Safety Order

¶13.1 At the time of the Grenfell Tower fire, the scope of the Fire Safety Order was in some respects not clearly understood. Article 6(1) excluded from its scope "domestic premises", defined as "a private dwelling (including any garden, yard, garage, outhouse, or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling)."^19371937 The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/6-7} Article 6(1)(a); The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/3-4} Article 2. The implication was that parts that were "used in common" were within the scope of the Fire Safety Order but the meaning of that expression was not defined. Discussion of the problem was not assisted by the preference of those involved to use related expressions, such as "common parts" or "common areas", instead of the statutory language.

¶13.2 On 11 December 2012, Ron Dobson, then the London Fire Commissioner, wrote to Sir Brandon Lewis, then Fire Minister, to make a number of recommendations about matters that had arisen in the course of the LFB's investigation into the fire at Lakanal House on 3 July 2009.^19381938 {CLG00000274}. The first two recommendations sought guidance on the meaning of the expression "used in common" in the Fire Safety Order.^19391939 {CLG00000274/1}.

¶13.3 On 6 February 2013, Louise Upton responded to Mr Dobson on behalf of the minister.^19401940 {LFB00032153}; Louise Upton {HOM00046040/14-15} pages 14-15, paragraphs 49 – 51. The thrust of the response was that the department did not think that the Fire Safety Order applied to the structure (i.e. the walls and roof) of a block of flats, but that guidance had been developed to help responsible persons to ensure the safety of tenants. Guidance had also been produced on risk assessment and the management of safety of residents in purpose-built blocks of flats. However, she did not suggest that the department would review or amend the existing guidance.^19411941 Lewis {Day257/40:3-23}; {LFB00032153}. On any view, there was at that time no clear consensus within the department about the meaning of the expression "used in common".^19421942 Louise Upton {Day247/131:9-22}.

¶13.4 The same uncertainty emerged in the context of the Lakanal House inquests. In her letter to the Secretary of State the coroner said that there was uncertainty about the scope of inspection for fire risk assessment purposes that should be undertaken in relation to high-rise residential buildings and in particular whether it was necessary to inspect the interior of flats to enable the fire risk assessor to identify potential breaches of compartmentation.^19431943 {HOM00045865/2}. She therefore recommended that the government provide clear guidance on the definition of "common parts" of buildings containing multiple domestic premises, the need for inspection of flats that had been modified internally to determine whether compartmentation had been breached and the need for inspection of a sample of flats to identify possible breaches of compartmentation. It was plain, therefore, that the coroner thought that there was uncertainty surrounding the interpretation of the Fire Safety Order, despite the existence of the guidance.^19441944 Louise Upton {Day247/136:1-8}; Lewis {Day257/51:24}-{Day257/52:10}.

¶13.5 In her submission to the Secretary of State, Ms Upton said that the LGA planned to undertake a quick review with the housing sector to ensure that the existing guidance adequately addressed the matters the coroner had raised.^19451945 {HOM00004403/2}. She appears to have thought that the review would consider whether the phrase "used in common" needed definition.^19461946 Louise Upton {Day247/147:3-19}.

¶13.6 Ms Upton accepted that the department should have done more to advise ministers that the definition needed to be clarified and that by not taking the opportunity presented by the coroner the government had buried its head in the sand.^19471947 Louise Upton {Day247/143:3-20}. She thought that the only way to resolve the problem was by amending the legislation, but that was not practicable because of the deregulatory agenda.^19481948 Louise Upton {Day247/143:3-20}. She explained that informal internal discussions had made it clear that at that particular time amending the Fire Safety Order was a task that was too difficult to take on.^19491949 Louise Upton {Day247/154:2-6}. However, ministers were never asked whether a review of the legislation could be undertaken and none of them explicitly refused to consider a review of the Fire Safety Order.^19501950 Louise Upton {Day247/152:5}-{Day247/154:10}; {HOM00046067}; {HOM00004403}.

¶13.7 On 20 May 2013, the Secretary of State responded to the coroner's letter in the terms proposed in the draft enclosed with Ms Upton's submission.^19511951 {HOM00046077/1-2}. He said that he considered that the LGA Guide was appropriate to assist responsible persons in discharging their duties under the Fire Safety Order.^19521952 {HOM00046077/1-2}. He also mentioned the forthcoming review by the LGA and told the coroner that it would consider whether the matters she had raised held any implications for the guidance that might need to be included in a revised version.^19531953 {HOM00046077/1-2}.

¶13.8 The review conducted by the LGA did not expressly consider whether guidance on the meaning of the expression "used in common" was needed.^19541954 {CST00005484}. The Secretary of State's letter to the coroner had said that the department considered that the Guide provided sound advice and the Association asked consultees only whether they were satisfied that the matters raised by the coroner in her Rule 43 letters were adequately addressed by the existing guidance.^19551955 {CST00005484}. On any view, the terms of the consultation did not encourage a full and frank expression of views by consultees and tended to suggest that the department had already made up its mind. Consultees were given 13 days to respond.^19561956 {CST00005484}. In June 2013, Louise Upton was told by Eamon Lally of the LGA that the review had elicited little response from consultees but that the guidance had received very robust endorsement from its authors.^19571957 {HOM00046074/3-4}; Louise Upton {HOM00046040/11} page 11, paragraph 39. Ms Upton should have treated that self-serving endorsement with scepticism and should have scrutinised the review. She did not do so and was unconcerned by the absence of any significant response from the consultees.^19581958 Upton {Day247/157:3-16}. She assumed that, given the generally vocal nature of the sector, silence indicated satisfaction.^19591959 Upton {Day247/159:9-14}; Louise Upton {HOM00046040/11} page 11, paragraph 39.

¶13.9 Given the terms of the letter and the short duration of the review, the absence of any significant response is unsurprising. On any view, it was inappropriate for Louise Upton to rely solely on the endorsement of the Guide's authors, who could not have provided the degree of independent scrutiny required to respond adequately to the coroner's concerns. The LGA review also received scant attention from ministers. Although Lord Pickles expected the matter to return to the minister responsible for fire safety,^19601960 Pickles {Day261/125:6-9}. Sir Brandon Lewis could not recall having been made aware of the outcome of the review.^19611961 Lewis {Day257/59:7-11}.

¶13.10 The members of the LFB's Lakanal House Working Group were dissatisfied with the department's response to the Commissioner's letter, which they thought had not answered his questions.^19621962 Dexter {Day179/145:5-11}; Dobson {Day211/17:9-25}. Rita Dexter thought that the Lakanal House inquest and the coroner's rule 43 recommendations had provided both the impetus and the opportunity to write again to the department to repeat what the LFB had discovered in its investigation of the Lakanal House fire and its concerns.^19631963 Dexter {Day179/149:3-13}. Accordingly, on 26 September 2013, Ron Dobson wrote again to Sir Brandon Lewis to take up the response that the department had provided in its letter of 6 February 2013.^19641964 {LFB00032149}.

¶13.11 In his letter the Commissioner said that the meaning of the Fire Safety Order required further attention on the part of the department.^19651965 {LFB00032149/2}. He told us that the LFB had encountered difficulties in bringing prosecutions where it considered the Fire Safety Order was not being complied with because of the confusion about what parts of a building were and were not within its scope.^19661966 Dobson {Day211/20:23}–{Day211/21:9}.

¶13.12 The department's response, sent by Sir Brandon Lewis on or around 16 October 2013, did not expressly refer to the request for guidance,^19671967 {LFB00058999}. but it alluded to it, saying that officials were looking again at whether the department might be able to provide greater clarity in relation to residential buildings in multiple occupation to which both the Fire Safety Order and the Housing Act 2004 applied.^19681968 {LFB00058999/1}. The obvious conclusion to draw from that letter was that the department had decided to shelve the matter.^19691969 Also see Dexter {Day179/157:21}-{Day179/158:1}. No further action was taken by government until the enactment of the Fire Safety Act 2021.