Im looking for some advice regarding responsibility for completing fire risk assessment, with reference to the Fire Scotland Act.

Under Part 3, Chapter 1 - Section 54: Duties in relation to relevant premises,

This section deals with responsibility for fire risk assessment and reads as follows:-

Duties in relation to relevant premises
(1) Where a person has control to any extent of relevant premises the person shall, to that extent, comply with subsection (2).

(2) The person shall—
(a) carry out an assessment of the relevant premises for the purpose of identifying any risks to the safety of relevant persons in respect of harm caused by fire in the relevant premises; and
(b) take in relation to the relevant premises such of the fire safety measures as in all the circumstances it is reasonable for a person in his position to take to ensure the safety of relevant persons in respect of harm caused by fire in the relevant premises.

(3) If a person falls within subsection (1) other than by virtue of—
(a) having control to any extent of relevant premises in connection with the carrying on by the person (whether for profit or not) of an undertaking; or
(b) owning relevant premises,
the person who owns the relevant premises shall also comply with subsection (2).


I am trying to establish whether our organisation, as Landlord for several leased buildings, has a duty to complete fire risk assessments on buildings where the tenant has a full-service lease i.e. has entire responsibility for the maintenance and repair of said building.

The buildings in question do not share any common areas with ourselves or any other tenant - I fully understand our responsibility in respect of this scenario. However, those for which we do not have control is less clear.

We would not have control in anyway over the majority of these buildings, yet this Subsection 3 seems to indicate that we may still have responsibility for fire risk assessment.

I am confused. Its not a huge issue, just trying to clarify responsible and maybe save me some valuable time.

Anyone able to shed some light?

Thanks

I assume these are business tenants. The wording is certainly very confusing, but as far as I can see section 3 isn't saying that the owner always has to do the FRA, but that in situations where the person in control isn't using the premises for an undertaking, then it falls to the owner to do the FRA. (I'm baffled as to what else the person in control would be doing with the premises, but presumably the legislators had something in mind.) If there are business tenants then the FRA is for them to do.

In a similar situation in England, I wrote to the business tenants to inform them of their responsibility and considered that more than enough.

Hi Kate,

Yes, I was baffled too...........glad im not the only one.

It does make more sense for a business tenant who rents a building under a full service lease agreement to be responsible for completing the fire risk assessment.

Hi,

Right, my head hurts now, I knew I shouldn't attempt to decipher legal speak after lunch!

However, as I understand it, this section is there to capture anyone who has any degree of control over the premises. Here is the explanatory note from the OPSI website:

"Section 54 provides that a person who has control of premises must carry out a risk assessment to identify fire safety risks to relevant persons in respect of harm caused by fire on the relevant premises. There is a definition of “relevant premises” in section 78. The person in control of the relevant premises would include the employer (where there is one), a person in control of the premises in connection with the carrying on of a trade, business or other undertaking, and the owner. For example, a shopkeeper who is a sole trader with no employees carrying out a business in leased premises would have duties under section 54 on the basis that the shopkeeper has control of the premises to an extent. In this example, the owner of the premises may also have section 54 duties. Other people, such as landlords or contractors who take responsibility for installation and maintenance of fire precautions or fire safety measures may be in a position to exercise varying degrees of control over premises and they may bear a relevant degree of responsibility under section 54."

As I understand it, the responsibility for FRAs will revert back to the owner, as the person ultimately in control, if control is shared between different parties (tenants, occupiers, contractors, etc.). Also, as these people all have an input into fire safety management, this should be captured in the FRA for the property.

If (and that's a big if) you can demonstrate that under the terms of the FRI lease that the Landlord does not retain any control, then you would not need to carry out RAs. However, you may want to remind your occupiers that they are in breach of their lease if they do not have a suitable and sufficient FRA.

Happy to be corrected on any of the above, as I'm more familiar with the Fire Safety Order than I am the Fire Safety Act.

Also, probably one for your friendly, neighbourhood Fire Officer to untangle!

On a similar note - does this also apply to Control of Asbestos requirements to carry out a Management Survey of these premises?

The Control of Asbestos Regulations 2012 is written in a similar fashion to the Fire (Scotland) Act - using the word/term, person in 'control' of the premises.

Should we be providing them with a new up-to-date survey?

We do have Type 2 Surveys for some of these buildings when we occupied them however, these are now going to be rented out under similar full service and repair leases. The CAR seems to suggest the tenant has responsible for this - which I find strange given we know there is asbestos in the building.