The definition of house in multiple occupation (HMO) is contained in section 254 of the Housing Act 2004. The definition is complex and for detailed understanding then the Act itself should be studied. For general purposes the definition can be summarised as follows.
A building is an HMO if it:
- Is occupied by more than one household and where more than one household shares (or lacks) an amenity such as a bathroom, toilet or cooking facilities
- Is occupied by more than one household and is a converted building, but not entirely self-contained flats (whether or not some amenities are shared or lacking)
- Is converted self-contained flats but does not meet as a minimum standard the requirements of the 1991 Building Regulations, and more than one third of the flats are privately rented; or
- An HMO declaration has been made by the Local Housing Authority (LHA) under section 255 of the Housing Act 2004.
For the purposes of the Housing Act 2004, a building, or part of a building, is not an HMO where the person managing or having control of it is a:
- local housing authority
- body which is registered as a social landlord under Part 1 of the Housing Act 1996
- police authority established under Section 3 of the Police Act 1996
- the Metropolitan Police Authority established under Section 5B of the Police Act 1996
- Fire and Rescue Authority (FRA)
- health service body within the meaning of Section 9 of the National Health Service Act 2006.
Enforcement
The repeal of the Fire Precautions Act 1971 and the Housing Act 1985 dramatically altered the way that fire safety in existing residential accommodation is regulated. These old acts have been replaced by new legislation which, for the purposes of this guidance, is the Housing Act 2004 and the Regulatory Reform (Fire Safety) Order 2005 (FSO).
The Housing Act 2004 introduced the housing health and safety rating system (HHSRS), along with licensing provisions for certain larger HMOs and management regulations for all HMOs. The HHSRS is the principal tool for assessing fire safety risk and regulating standards in all types and tenures of residential accommodation. HMO licensing conditions provide specific regulation of fire safety standards for HMOs in the private rented sector. Guidance under this legislation for housing providers and LHA’s is contained in both the Housing Health and Safety Rating System Operating Guidance and in secondary legislation.
The Regulatory Reform (Fire Safety) Order 2005 places duties on housing providers to risk-assess fire safety in their properties, to take adequate precautions to reduce that risk and to manage that risk which remains. The duties apply throughout a range of property types, but in HMOs, flats and maisonettes and sheltered accommodation in which personal care is not provided, they apply only within the common areas (although housing providers need to consider the risk created within the private areas too); these duties are enforced by FRA’s. Guidance for housing providers and FRA’s is contained in the HM Government Fire Safety Risk Assessment Sleeping Accommodation Guide, although the recommendations contained in Lacors – guidance on fire safety provisions for certain types of existing housing (PDF, 1.5MB), should produce an equivalent level of safety.
So, in respect of houses in multiple occupation and in maisonettes and sheltered accommodation, the new regulatory framework provides for dual enforcement between LHA’s under the Housing Act 2004 and FRA’s under the Regulatory Reform (Fire Safety) Order 2005.
In view of the dual enforcement regime, there is a clear need for consistent and coherent joint working arrangements between LHA’s and FRA’s when applying the two sets of legislation. Uncoordinated regulation places a burden on housing providers and leads to confusion, duplication and unnecessary expense.
With this in mind, in May 2007 the fire safety housing working group published a Protocol between LHA’s and FRA’s to improve fire safety. The protocol is being adopted by authorities around the country and has improved working arrangements and brought about a more coordinated approach.
The Regulatory Reform (Fire Safety) Order 2005
Article 6 of the FSO specifically states that it does not apply to domestic premises except where the sharing of living accommodation e.g. a kitchen, means that the residential unit cannot properly be described as a dwelling. The exception is the prohibition order power, which is available for domestic premises except for those occupied as a single private dwelling. Domestic premises are defined in the order as premises occupied as a private dwelling.
So the FSO does apply to the:
- common parts of HMOs (but not shared houses)
- common parts of buildings containing flats and maisonettes
- common parts of sheltered accommodation.
However, it does not apply to the individual flats, maisonettes, bedsits or residential units themselves. The FSO is enforced by the local FRA, but it must consult the LHA before taking enforcement action.
The FSO places a duty on the responsible person to take such general fire precautions as will ensure, as far as is reasonably practicable, the safety of all relevant persons. Relevant persons’ includes anyone lawfully on the premises and those in the vicinity of the premises who may be affected by any fire at the premises. All persons within an HMO are likely to be considered relevant persons.
The responsible person is the person having control of the premises, so will usually be the landlord or manager of the premises. Any other person who has a degree of control over the premises will share the responsible person’s duties to the extent of that control. This includes a contractor maintaining or repairing the premises, in relation to the works he or she is obliged to carry out.
General fire precautions include, where necessary:
- measures to reduce the risk of fire occurring
- measures to reduce the spread of any fire through the premises
- measures in relation to the means of escape
- measures to ensure the means of escape can be safely used at all times
- firefighting measures
- means of fire detection and warning
- action to be taken in the event of a fire
- mitigating the effects of fire
In order to comply with the duties imposed by the FSO, the responsible person must carry out a fire risk assessment to identify what fire hazards exist at the premises and what measures have been taken (or will be taken) to minimise the risk.
The risk assessment must pay particular attention to those at special risk, such as disabled persons, elderly persons, children, or those with special needs. Any other specific risks should be noted, for example, the presence of dangerous substances at the premises. These details should be recorded and are known as ‘significant findings’. They must be recorded if the premises are a licensed HMO or if there are five or more people employed by the business as a whole (not necessarily at the premises being assessed). A fire risk assessment must be carried out irrespective of the requirement to record the significant findings.
The responsible person must ensure that a competent person(s) carries out any necessary fire prevention or protection works identified by the risk assessment (someone with enough training and experience, knowledge and other qualities to be able to implement the measures properly). This could, in many cases, be the responsible person themselves. The responsible person must also give all tenants and other relevant persons information on risks identified in the risk assessment and information on fire safety measures and procedures for the premises. All fire safety measures at the premises must then be subject to a proper system of maintenance by a competent person so as to be kept in efficient working order and in good repair. The risk assessment must be regularly reviewed to ensure that it is kept up to date.
Guidance for Fire and Rescue Authorities under the Regulatory Reform (Fire Safety) Order 2005, has been issued in the HM Government Fire Safety Risk Assessment Sleeping Accommodation Guide, published by Communities and Local Government (CLG).
The Lacors Fire Safety Guide is intended for buildings which have been constructed or adapted for use as domestic dwellings and covers a range of existing residential premises including:
- single household properties
- shared houses
- bedsit HMO’s
- purpose-built flats and buildings converted into self-contained flats not to a standard in compliance with the Building Regulations 1991
- sheltered accommodation for which personal care is not provided; and
- small hostels to which the HM Government Sleeping Accommodation Guide is inappropriate.
The Local Government Guide to Fire Safety in Purpose-built Blocks of Flats applies to existing blocks only; fire safety design in new blocks of flats is governed by the Building Regulations 2010, but, once the block is occupied the guide is applicable. The scope of the guide excludes buildings converted into blocks of flats; however, the guidance will be largely applicable to such buildings provided that, at the time of conversion, the work was carried out in accordance with the current Building Regulations at that time.
Licensing
Initially, the Housing Act 2004, which is enforced by the Local Housing Authority, was intended to apply to larger, higher risk HMO’s of 3 or more storeys, occupied by 5 or more people. The power to extend licensing to other categories of HMO is subject to carrying out consultation with and the approval of, the appropriate National Authority.
Consultation with Fire and Rescue Authorities in certain cases
The LHA is required to consult the local FRA before taking Enforcement Action in respect of a prescribed fire hazard in an HMO or in the common parts of a building containing flats.
In the case of action under ‘emergency measures’, as in the taking of emergency remedial action or to make an emergency Prohibition Order, the LHA must consult the local FRA only so far as is practicable.