Chapter 35: The Fire Safety Order

Introduction

¶35.1 Part of our terms of reference is to investigate the fire prevention and fire safety measures in place at Grenfell Tower on 14 June 2017.³⁰⁹³⁰⁹ Terms of reference, paragraph (i)(f). The starting point for any investigation of that kind is to understand the obligations of those who were in law responsible for fire safety. Article 8 of the Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order) imposes on "the responsible person" an obligation to take such general fire precautions as will ensure, so far as is reasonably practicable, that the premises are safe.³¹⁰³¹⁰ The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/8} Article 8(1). The first question we consider, therefore, is who was, for the purposes of article 8 of the Fire Safety Order, the responsible person in relation to Grenfell Tower.

The responsible person

¶35.2 Under article 3 of the Fire Safety Order, the responsible person in relation to premises that are not a workplace is the person who has control of the premises in connection with the carrying on of an undertaking of some kind or, where the person in control of the premises does not have control in connection with the carrying on of an undertaking of some kind, the owner of the premises. By article 5(2) the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises, so far as the requirements relate to matters within his control. Article 5(3) imposes on anyone other than the responsible person who has control of the premises the same duties as those imposed on the responsible person, so far as they relate to matters within his control.

¶35.3 In addition to the duty under article 8 to take general fire precautions, the responsible person and anyone to whom article 5(3) applies are subject to certain specific duties. The most relevant are: a. to carry out a suitable and sufficient risk assessment for the purpose of identifying what general fire precautions are necessary;³¹¹³¹¹ The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/8} Article 9(1).

¶b. to make and give effect to appropriate arrangements for the effective planning, organisation, control, monitoring and review of preventive and protective measures;³¹²³¹² The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/9} Article 11(1).

¶c. to ensure, where necessary to safeguard the safety of relevant persons, that the premises are appropriately equipped with fire-fighting equipment and fire detectors and alarms and that any non-automatic fire-fighting equipment is easily accessible, simple to use and indicated by signs;³¹³³¹³ The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/9} Article 13(1).

¶d. to take measures for fire-fighting, nominate competent persons to implement them and ensure that their training and the equipment available to them are adequate;³¹⁴³¹⁴ The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/10} Article 13(3).

¶e. to ensure that routes to emergency exits from premises and the exits themselves are kept clear at all times;³¹⁵³¹⁵ The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/10} Article 14(1).

¶f. to establish and, where necessary, give effect to appropriate procedures, including fire safety drills, to be followed in the event of serious and imminent danger;³¹⁶³¹⁶ The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/10} Article 15(a).

¶g. to ensure that the premises are subject to a suitable system of maintenance and are maintained in an efficient state, in efficient working order and in good repair;³¹⁷³¹⁷ The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/12} Article 17(1).

¶h. to appoint one or more competent persons to assist him in undertaking the necessary preventive and protective measures;³¹⁸³¹⁸ The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/12} Article 18(1). i. to ensure that his employees are provided with adequate safety training.³¹⁹³¹⁹ The Regulatory Reform (Fire Safety) Order 2005 {INQ00011327/14} Article 21(1).

RBKC as the responsible person

¶35.4 RBKC contended that, between 1 April 2005 (when the Fire Safety Order came into force) and June 2017, the responsible person in relation to Grenfell Tower (outside the period of the refurbishment and excluding the non-residential units) had been the TMO, although it accepted that it had itself fallen within the scope of article 5(3) during that period.³²⁰³²⁰ RBKC Module 1 Opening Statement {RBK00055479/8} paragraph 33. This submission is maintained in RBKC Module 3 Opening Statement {RBK00063631/9} paragraph 31. It argued that under the Modular Management Agreement (the Agreement) it had delegated to the TMO the vast majority of its housing management functions and that the TMO had been responsible for health and safety arrangements (including arrangements relating to fire safety) for the housing stock which it managed on behalf of the council. RBKC's position was based on the proposition that, as a matter of law, the Fire Safety Order seeks to identify a single responsible person for each premises.³²¹³²¹ RBKC Module 3 Opening Statement {RBK00063631/10} paragraph 34. We do not need to resolve that question, however, because RBKC was either the responsible person in relation to Grenfell Tower or was a person to whom article 5(3) applied, as it recognised in its opening statement, and was therefore subject to the same duties.

¶35.5 Before the fire, the identity of the responsible person appeared to be uncontroversial. For example, officers of the TMO thought that both bodies were responsible persons³²²³²² Black {Day149/37:22}-{Day149/38:1}; Wray {TMO00000890/37} page 37, paragraph 166; TMO Fire Safety Strategy November 2013 {TMO00830598/1}. in relation to Grenfell Tower. Moreover, on 20 February 2012, a joint protocol was agreed between LFEPA and RBKC³²³³²³ {LFB00032248}. under which RBKC undertook to discharge certain duties under the Fire Safety Order. The correspondence about the joint protocol between Kevin Thompson, Laura Johnson and Janice Wray demonstrates that there was a mutual understanding between the TMO and RBKC that they both had responsibilities under the Fire Safety Order.³²⁴³²⁴ {RBK00001176}.

¶35.6 That understanding was reflected in the TMO's Fire Safety Strategy of November 2013, which expressly stated that both RBKC and the TMO were to be considered responsible persons for the purposes of the Fire Safety Order.³²⁵³²⁵ {TMO00830598/1}. There is no evidence that that statement was challenged by anyone.

¶35.7 On the other hand, Laura Johnson thought that the TMO was the only responsible person in relation to RBKC's housing stock but she could not explain why and speculated (incorrectly) that the TMO's responsibility had been set out in the Agreement. She said that, because RBKC took the view that it was not the responsible person, it had not put in place any arrangements to discharge any of the duties of the responsible person under the Fire Safety Order.³²⁶³²⁶ Johnson {Day129/57:21-25}. As far as she knew, nobody in RBKC oversaw the TMO's performance on health and safety matters beyond receiving an annual health and safety report.³²⁷³²⁷ Johnson {Day129/64:16-20}.

¶35.8 We found Laura Johnson's evidence on this point unconvincing. The evidence shows that while she was RBKC's Director of Housing she took an active interest in matters relating to fire safety. At no time did she say that RBKC was not the responsible person in relation to the housing managed by the TMO. We conclude that, before the fire, Laura Johnson understood that RBKC, together with the TMO, was the responsible person for the premises managed by the TMO.

The TMO as the responsible person

¶35.9 The TMO set out its understanding of the division of responsibilities under the Fire Safety Order in its annual health and safety reports to the TMO Board and to RBKC. As set out in the Annual Health and Safety Report for the year 2009-2010³²⁸³²⁸ {TMO00879745/1}. it was: a. that operational compliance with the Fire Safety Order had been delegated to the TMO;

¶b. that RBKC was liable for any breach of the Fire Safety Order and subject to enforcement notices or prosecution or both;

¶c. that RBKC would monitor the TMO's actions on health and safety matters to ensure compliance with relevant statutory responsibilities and adherence to best practice;

¶d. that RBKC's corporate health and safety adviser and the health and safety adviser for housing, health and adult social care would receive minutes of the meetings of the TMO's health and safety committee and copies of the TMO's annual report on health and safety;

¶e. that the TMO's health and safety adviser would attend RBKC's six-weekly meetings of its Main Co-ordinating Committee dealing with health and safety matters; and

¶f. that it would notify RBKC of major incidents, accidents, significant near-misses and any current investigations.

¶35.10 Robert Black understood that RBKC shared the TMO's understanding of their respective responsibilities.³²⁹³²⁹ Black {Day149/37:22}-{Day149/38:1}. He understood that, as a responsible person under the Fire Safety Order, the TMO was responsible for appointing competent people to ensure safety. He understood the distinction, which we explain below, between the responsible person and the competent person under the Fire Safety Order.³³⁰³³⁰ Black {Day149/38:23-25}.

¶35.11 In mid-2015, Barbara Matthews succeeded Anthony Parkes as the TMO's Director of Financial Services and ICT. Although she was unaware of the duties imposed on the responsible person,³³¹³³¹ Matthews {Day147/108:23}-{Day147/109:1}. she believed that RBKC and the TMO were both responsible persons for the premises owned by RBKC but managed by the TMO.³³²³³² Matthews {Day147/109:2-9}. She relied on the fact that fire risk assessments and internal audits were carried out to satisfy herself that the TMO was discharging its obligations under the Fire Safety Order.³³³³³³ Matthews {Day147/110:24}-{Day147/111:2}. She was unaware of RBKC's arrangements for discharging its own duties as a responsible person under the Fire Safety Order.³³⁴³³⁴ Matthews {Day147/112:14-17}.

The competent person

¶35.12 Article 18(1) of the Fire Safety Order requires the responsible person to appoint one or more competent persons to assist him in undertaking the preventive and protective measures. In particular, article 18(3) obliges the responsible person to ensure that the number of competent persons appointed, the time available for them to fulfil their functions and the means at their disposal are adequate having regard to the size of the premises, the risks to which relevant persons are exposed and the distribution of those risks throughout the premises.

¶35.13 Article 18(5) provides that a person is to be regarded as competent if he has sufficient training and experience or knowledge and other qualities to enable him properly to assist in undertaking the preventive and protective measures. Janice Wray, the TMO's health and safety manager, was familiar with the concept of the competent person and undertook that role for the TMO.³³⁵³³⁵ Wray {Day140/43:10-13}.

Janice Wray's responsibilities

¶35.14 Although Ms Wray saw her role as essentially advisory,³³⁶³³⁶ Wray {Day140/7:22-25}. it is plain from the various versions of the TMO's health and safety policy that it was broader, more substantive and included the following:³³⁷³³⁷ TMO Health and Safety Policy 2012 {TMO10031076/3}. This list was reproduced in the 2016 version of the policy {TMO10024402/3}. The 2010 version of the policy {TMO10031078/3} does not include the references at i and j to the Fire Safety Order. a. providing competent advice on health and safety matters as required by the

¶Management of Health & Safety at Work Regulations; b. formulating health & safety policy and strategy;

¶c. producing health & safety policy, procedures and guidelines and ensuring that they were regularly reviewed and kept up to date; d. providing managers and employees with specialist health and safety advice;

¶e. organising and administering the health & safety committee and communicating with and consulting safety representatives through it; f. identifying the need for health and safety training; g. monitoring, reviewing and auditing compliance with the policy;

¶h. producing an annual Health & Safety Report for presentation to the TMO board and RBKC; i. advising on compliance with the Fire Safety Order; and

¶j. attending meetings and committees as necessary to provide information on the TMO's performance in relation to specific areas of health & safety, including compliance with the Fire Safety Order.

¶35.15 Janice Wray accepted that that was an accurate description of her responsibilities.³³⁸³³⁸ Wray {Day140/39:18-22}. When asked whether she had primary operational responsibility for the TMO's compliance with the Fire Safety Order, she denied having overall responsibility for it but accepted that she was responsible for overseeing and monitoring the performance by the TMO of its fire safety obligations.³³⁹³³⁹ Wray {Day140/42:11-25}.

¶35.16 Although Janice Wray may have had responsibility for monitoring the performance by the TMO of its obligations in relation to fire safety, from mid-2015 primary operational responsibility lay with Barbara Matthews. An important part of her responsibilities was to monitor the TMO's health and safety performance at a strategic level,³⁴⁰³⁴⁰ Matthews {TMO10049987/2} page 2, paragraph 7. which encompassed ensuring the health and safety of all the TMO's residents, employees and contractors.³⁴¹³⁴¹ Matthews {Day147/103:21-25}.

¶35.17 In his safety management review produced in September 2013 Matt Hodgson³⁴²³⁴² An independent consultant who was instructed by the TMO to prepare a safety management review in 2013 {RBK00055531}. identified Janice Wray as the competent person at the TMO³⁴³³⁴³ {RBK00055531/23}. and considered that her qualifications were more than adequate for that role.³⁴⁴³⁴⁴ {RBK00055531/23}. He noted that the TMO Health and Safety Policy named Adrian Bowman, Janice Wray's assistant, as the competent person and recommended that it be amended to name her.³⁴⁵³⁴⁵ {RBK00055531/23-24}.

¶35.18 In undertaking the responsibilities of a competent person Janice Wray considered that she had access to a fire safety specialist and, if she needed further advice, was able to ask for it.³⁴⁶³⁴⁶ Wray {Day140/44:5-10}. She had regular meetings with the LFB and access to various people to whom she could go for advice.³⁴⁷³⁴⁷ Wray {Day140/44:15-18}. She felt that she had had sufficient training, experience and knowledge to carry out the role of competent person for the TMO.³⁴⁸³⁴⁸ Wray {Day140/45:9-12}.

¶35.19 Janice Wray did not think that a shortage of funds or other resources had hindered her ability to discharge her responsibilities as the competent person.³⁴⁹³⁴⁹ Wray {Day140/47:16-25}. Although she felt that she was often spread very thinly,³⁵⁰³⁵⁰ Wray {Day140/48:10-20}. she felt able to discharge her fire safety responsibilities satisfactorily.³⁵¹³⁵¹ Wray {Day140/49:23}-{Day140/50:13}.