What are the existing legal liabilities responsible persons and fire safety professionals must consider?
There are approximately 14.6 million disabled people in the UK. This means that one in five of the UK population are disabled, with a higher percentage living in social needs accommodation.
Non-disabled people would not accept living in a building from which there was no escape and, where this is the case, swift enforcement action would undoubtedly follow. However, disabled people unable to evacuate the building without the use of a fire-protected lift, are forced to accept this situation. They have no option but to remain in immediate danger until Fire and Rescue Services (FRS) are able to intervene.
Fire Safety professionals are specialists in their own discipline particularly with regards to the Regulatory Reform (Fire Safety) Order 2005 (FSO). However, when providing advice or recommendations to clients, many professionals fail to consider the legal requirements of the Equality Act 2010, Public Sector Equality Duty (PSED) and The Health Safety at Work Act 1974.
Implementation of the requirements of Building Regulations Part M can also help to mitigate the disadvantage to disabled people in an evacuation.
The Equality Act 2010 (EA) defines disabled people as a ‘protected characteristic’. The EA prohibits discrimination in relation to something arising from a person’s disability and creates a duty to make reasonable adjustments for disabled people. In relation to services and public functions, the duty to make reasonable adjustments is owed to disabled people generally and is anticipatory.
While it could be deemed unreasonable to install a fire-protected lift or second stairwell, it is likely to be seen as reasonable to ensure escape routes comply with Building Regulations Part M requirements and to provide a disabled person with an assisted escape device.
It is worth noting that the Equality and Human Rights Commission (EHRC) have advised disabled people that assisted escape devices may be viewed as a reasonable adjustment in a compensation claim.
The duty to make reasonable adjustments is anticipatory in the sense that it requires consideration of, and action in relation to, barriers that impede disabled people prior to an individual disabled person seeking to use the service:
Schedule 2: services and public functions
“As the duty is owed to disabled persons generally, it is an anticipatory duty which means service providers and people exercising public functions must anticipate the needs of disabled people and make appropriate reasonable adjustments.”
This is a duty to disabled people at large, which applies regardless of whether the service provider knows that a particular person is disabled or whether the building currently has disabled people.
Service providers cannot wait until a disabled person wants to use a service that they provide before they consider their duty to make reasonable adjustments. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them. When a disabled person requests a service, the service provider must already have taken all reasonable steps to ensure that they can be served. Waiting for a disabled person to self-identify prior to putting in place a Personal Emergency Evacuation Plan (PEEP) risks legal action under the EA for discrimination and a breach of the anticipatory duty.
All those involved in fire safety need to be aware that successful compensation claims for breaches of the EA are based on the Vento Scale, with the higher band being between £29,600 – £49,300 (this was increased in April 2022) where there is continued discrimination causing stress.
Public Sector Authorities have an additional duty called the Public Sector Equality Duty (PSED) under the EA. The PSED means that when public authorities carry out their functions, they must think about the need to eliminate unlawful discrimination and advance equality of opportunity between people who share a protected characteristic and those who do not.
A person with a protected characteristic can take legal action for discrimination against a public authority, including the FRS. A successful legal action will result in a mandatory or prohibiting order and/or financial compensation.
The Health & Safety at Work Act (HSAWA) states that employers must protect the ‘health, safety and welfare’ at work of all their employees including temps, casual workers and self-employed workers:
Article 3: General duties of employers and self-employed to persons other than their employees
It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
It is a criminal offence to fail to comply with the general duties imposed by the HSAWA. A person may be held liable under the HSAWA if an individual has been exposed to risk even if there has not been an actual injury or ill health as a result.
Fire strategies in high-risk buildings with simultaneous evacuation plans frequently involve Waking Watches. The risk to the employer under the HSAWA using these strategies is high.
To be compliant with the HSAWA, the employer must undertake a risk assessment to identify potential risks (such an inhalation of toxic gases), putting in appropriate preventative actions for each risk identified to ensure that their employees are not exposed to risks to their health or safety.
Directors and senior managers of the employing company may be personally prosecuted if it is found that an offense under the HSAWA has been committed with their knowledge. Directors and senior managers cannot avoid a charge of neglect by arranging their organisation’s business to leave them ignorant of circumstances, which would trigger their obligation to address health and safety breaches.
Penalties include fines and imprisonment. Individual directors are also potentially liable for other related offences, such as the common law offence of gross negligence manslaughter.
Part M sets minimum standards for access and use of buildings by all building users, including disabled people.
It is recognised that there is no legal requirement to bring means of escape routes to Part M standards unless there is a material change. However, making small improvements to the stairwell can help organisations to mitigate the disadvantages that disabled people experience during an evacuation.
Improvement to the means of escape include implementing:
stairs with clearly contrasting nosings, wall and handrails on both sides of the stairwell continuing round landings
surfaces with a Light Reflectance Value (LRV) of at least 30pts
escape signage having clear print and utilising colour to assist those with learning difficulties, dementia, dyslexia, autism or mental health problems
fire alarms with visual beacons to assist those with hearing impairment with reduced volume levels in stairwells.
It must be remembered that the FSO is clear that there is a legal requirement to be able to move away from immediate danger and evacuate the building. This applies to all relevant people and there are no caveats, excluding either disabled people or general needs buildings from this requirement.
The reasonability test is likely to apply to the vast majority of disabled people who would be able to evacuate if provided with a plan and an assisted escape device. There is also no published guidance that professionals can rely on that supports an approach that exempts disabled people from evacuation planning.
The wider legislative issues cannot be ignored as failure to act risks legal action for all concerned in the event of compensation claims, injuries or deaths.
It is, therefore, essential that all fire professionals understand the requirement of the wider legislative requirements when making recommendations and advising their clients. The intense questioning of participants during the Grenfell Tower Inquiry highlights the importance of being able to provide evidence of due diligence where it relates to evacuation planning for disabled people.
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Just a few months after the Government decided to omit the requirement for PEEPs in higher risk residential buildings (May 2022), Michael Gove, Secretary of State for DLUHC, suggested that it would “look again” at the issue.
In a Commons debate on the Social Housing Bill in November, he said that his department would “look closely” at tenants’ concerns about PEEPs, following backlash to the announcement in May. Activists called for disabled-led organisations and allies to organise an urgent campaign of opposition to the government’s decision, which hit its crowdfunding target in October.
Gove commented: “We do need to look again at the position… I have to say that the previous position was taken in good faith, but we need to pay attention to the concerns expressed.”
