Latest regulatory updates

The Home Office has published new guidance – A guide to making your small paying-guest-accommodation safe from fire – for small accommodation businesses (defined as those that accommodate 10 or fewer guests and where the accommodation is located no higher than the first floor of the building).

The guide, which fully replaces the previous Do you have paying guests? publication, looks at what these businesses need to do to fulfil their legal obligations under the Fire Safety Order 2005, including detailed information on how to undertake a Fire Safety Risk Assessment and what mitigation measures are appropriate in different accommodation types.

The new guidance comes into force on 1 October 2023.

One of the useful additions in the new guide is a series of schematics related to different accommodation types and layouts, which show you where you should be placing fire monitors and alarms.

In reading the new guidance, the most important thing to remember is that the underlying legislation – the Fire Safety Order 2005 – has not fundamentally changed. Therefore, you still need to go through the same process to fulfil your legal responsibilities:

1. Undertake a Fire Safety Risk Assessment that identifies fire hazards and people at risk.
2. Install equipment and develop systems for mitigating identified risks.
3. Provide instructions and appropriate training for staff.
4. Keep your fire risk assessment under review.

If you have a good understanding of your current responsibilities and this process for fulfilling them, the new guidance simply builds on this. For the most part, the guidance does not say that you MUST undertake certain actions or install specific equipment to ensure that you are complying with the legislation. Rather, like the previous guidance, it makes recommendations, but still leaves the final decision to the operator.

However, because this new guidance is much more detailed, is very important to note that if you decide not to implement any of the recommendations, you must have a very good reason for not doing so, as Article 50 of the Fire Safety Order 2005 contains a legal imperative for you to follow the guidance:

‘(1A) Where in any proceedings it is alleged that a person has contravened a provision of articles 8 to 22 or of regulations made under article 24 in relation to a relevant building (or part of the building):

(a) Proof of a failure to comply with any applicable risk based guidance may be relied on as tending to establish that there was such a contravention, and

(b) Proof of compliance with any applicable risk based guidance may be relied on as tending to establish that there was no such contravention.’

In short, if you end up in court and are shown not to have complied with the guidance, if you do not have a very strong justification for this non-compliance (cost is not a valid reason), the presumption could be that you have broken the law.

The main changes in the new guidance

With that in mind, these are the main changes in the new guidance that you need to be aware of and incorporate into your fire safety management practices from 1 October 2023:

1. Recording Fire Risk Assessments

The most important change in the new guidance is that you MUST record your Fire Risk Assessment. Previously you only had to record the assessment if you had five or more staff. VisitEngland has always recommended that you record your Fire Risk Assessment in order to prove that you have fulfilled your legal responsibilities, but doing this is now mandatory.

2. Undertaking electrical inspections

Previous guidance recommended checking electrical equipment but did not mention the electrical system in your premises. The new guidance states that your electrical system (that is, the distribution board and wiring of the property) should be subject to inspection and tested at least once every five years. In addition, for self-catering properties, all appliances should be visually checked between lettings and in bed and breakfasts, there should be periodic in-house service and testing in accordance with the IET Code of Practice for In-Service Inspection and Testing of Electrical Equipment.

3. Heating system inspections

The new guidance states that heating and hot water systems should be inspected annually by a qualified contractor to ensure they are maintained in good condition. Previously, this requirement applied to just gas systems (your annual Gas Safe inspection), but it is now extended to all heating and hot water systems.

4. Carbon Monoxide detectors

Any property with a gas appliance, fire or wood burner should have a carbon monoxide detector installed. This requirement was missing from the previous guidance.

5. Sweeping chimneys and flues

Any property with a chimney or flue needs to have it swept at least annually. Again, this was missing from the previous guidance.

6. Candles

The new guidance states that operators should not provide candles, tea lights or ethanol burners for use by guests, and there should be a policy in place prohibiting their use. This is important as many operators use candles as decorative features or supply tealights or tealight holders.

7. Inner rooms

Inner rooms (which are rooms where the only escape route is through another room) should not be used for sleeping accommodation unless the rooms are on the ground floor and the rooms have direct access to a door or ‘escape window’ that can be used by the occupants to reach a place of safety clear of the accommodation. Escape windows for rooms on the first floor are not considered a safe means of escape for paying guests.

This will impact many older buildings and cottages where an upstairs bedroom is accessed via another bedroom, and operators are advised to contact a fire safety expert to determine what should be done to ensure the safety of people using an inner room.

8. Emergency escape lighting

While the need to provide emergency escape lighting was included in the previous guidance, the new guidance provides much more detail on what is considered to be appropriate for different-sized premises.

9. Fire detectors and alarms

The new guidance takes into account the revised grading system for fire detection and alarm systems that was introduced in 2021. The guidance recommends the installation of a D1 system which consists of one or more mains-powered detectors, each with a tamper‑proof standby supply consisting of a battery or batteries. Section 7 of the guidance provides information on the number, type and placement of detectors and alarms for such a system in a variety of accommodation types.

10. Regular checks

The new guidance provides a list of how often various fire prevention and detection measures should be checked. This includes daily checks that escape routes are clear (for staffed premises), weekly tests of detection and alarm systems, six monthly services of detection and alarm systems by a competent person, and annual checks on emergency lighting systems. It is important to note that all checks and testing should be recorded.

11. Examples of recommended fire protection measures in different layouts

One of the most helpful changes in the new guidance is ‘Section 7 – examples of common layouts and recommendations on fire protection measures’. This section provides four different accommodation types – from a small studio flat through to a two storey house – and discusses which fire prevention and detection systems are appropriate in each situation.

If you base your fire approach to fire safety on the example that is most similar to your property, then it is likely that you are complying with your responsibilities under the Fire Safety Order.

12. Revised Fire Risk Assessments template

The guidance provides you with a revised and updated Fire Risk Assessment template for you to use, which can also be downloaded from the Business Advice Hub.

Fire safety guidance for larger properties

If you have a property that accommodates more than 10 people, or your premises has sleeping accommodation above the first floor, then this guidance does not apply. Instead, the relevant guidance is Fire Safety Risk Assessment: Sleeping Accommodation.

This guidance has essentially the same format as other fire safety guidance in that it provides information on how to undertake a fire safety assessment for your premises and mitigate risks.

However, as you would expect, this guidance is more complex, as it covers larger building types and takes account of employees and large numbers of guests being on the premises at the same time. As such, it requires the appointment of a ‘responsible person’ for fire safety who has specific fire safety training, as well as the communication of fire safety requirements to other staff.

While you are still able to nominate yourself as a responsible person and undertake the Fire Risk Assessment, the larger and more complex your accommodation becomes, the more you may wish to consider employing someone to undertake a professional fire safety assessment.

If you decide to employ someone to undertake your fire safety assessment, there are two principal methods by which people can demonstrate their competence:

1. Professional Body Registration Schemes;
2. Certification by a Certification Body that is UKAS-accredited for the activity.

The National Fire Chiefs Council provides guidance on how to choose a competent Fire Risk Assessor, which includes links to different professional associations.

If you employ a Fire Risk Assessor it is important to remember that you still have legal responsibility for your Fire Risk Assessment and its implementation. As such, you need to be able to demonstrate that you took reasonable steps to ensure the person you employed was competent and that you implemented the assessment properly.

Martyn’s Law is the nickname given to new legislation that the Government is developing to better protect people gathering at attractions or venues from terrorist attacks. The legislation is named after Martyn Hett, one of the victims of the 2017 Manchester Arena bombing. It is being developed in response to the inquiry into the Manchester Arena bombing, which found that venues need to do more to protect people from the threat of terrorist attacks.

The proposed legislation will require ‘eligible locations’ where ‘qualifying activities’ take place to draw up preventive action plans against terror attacks.

In the context of this legislation, ‘eligible locations’ will mean:

• A building (including collections of buildings used for the same purposes) or location or event (including a temporary event) that has a defined boundary.
• The capacity of the building(s) or location or event is greater than 100 people.

The ‘qualifying activities’ being undertaken at these locations will include:

• Entertainment and leisure activities;
• Retail;
• Food and drink;
• Museums and galleries;
• Visitor attractions;
• Sports events;
• Temporary events.

If you are undertaking a qualifying activity at an eligible location, you will be required to take actions to mitigate the risk of a terrorist attack. What you will be required to do will depend on the capacity of your premises or location.

Standard Tier: premises or locations with a capacity of 100 to 800 people

If you operate premises or hold an event with a capacity between 100 and 800 people, you will be required to undertake a range of relatively simple measures to improve your security and preparedness in the event of a terrorist attack. This will include developing and implementing a preparedness plan, awareness raising and the provision of training and information to staff on what to do to reduce risks and in the event of an attack.

The aim is to ensure that staff are better prepared to respond quickly to evolving situations, aware of what processes they should follow, able to make rapid decisions and carry out actions that will save lives. This could be as simple as locking doors to delay an attacker’s progress whilst guiding staff and customers to alternative exits. It could also enable lifesaving treatment to be administered by staff while awaiting the arrival of emergency services.  

Enhanced Tier: premises or locations with a capacity of over 800 people

If you operate premises or hold an event with a capacity of over 800 people, you will be required to undertake additional actions to help ensure the safety of customers in recognition of the potential catastrophic consequences of an attack. These actions include undertaking a risk assessment and security plan, considered to a ‘reasonably practicable’ standard. This will allow operators to assess the balance of risk reduction against the time, money and effort required to achieve a successful level of security preparedness – a recognised standard in other regulatory regimes (including fire and health and safety).  

The Government is still undertaking consultation with industry bodies on some of the specifics of the proposed legislation, and no date has been set for its implementation. A support site for businesses has been established, which provides further information on Martyn’s Law and guidance for businesses on how they can improve their security and help prevent terrorist attacks.

As a result of ongoing examples of bad practice by some employers regarding the distribution of tips received by staff, the Government is supporting the development of legislation that will replace the current voluntary Code of Practice on tipping. The new Employment (Allocation of Tips) Bill is currently going through Parliament, and this will amend the Employment Rights Act 1996 to insert new legal obligations on employers to ensure that all tips and gratuities are passed to employees and that there is a transparent and fair process for their distribution

While the exact requirements of the new legislation are still under debate in Parliament, it is expected that the key requirements will be as follows:

• All tips must be distributed to employees (and any agency workers) in a fair and transparent manner.
• All tips must be distributed to employees by the end of the month following the month they were collected.
• Businesses will not be allowed to retain any part of the tips collected to pay for costs associated with the collection or distribution of tips. For example, if a tip is paid by credit card, the credit card payment costs cannot be deducted.
• The distribution process and individual employee allocations must be recorded, made available to employees and retained for three years.

The Bill will also enable the Secretary of State to introduce a new code of practice about the fair and transparent distribution of qualifying tips, gratuities and service charges detailing what would count as a fair distribution for the purposes of the new legal obligations.

It is expected that the legislation will be enacted in 2023 and come into effect in 2024. However, businesses should look to introducing a tips distribution system that complies with these requirements as soon as possible.

New legislation on single-use plastics

You will recall that in 2020 the Government banned single-use plastic straws, stirrers and cotton buds in England in a step to reduce the amount of plastic waste being produced.

To take forward this initiative, the Government has announced that it is expanding the ban on single-use plastics to include single-use plastic plates and cutlery as well as polystyrene trays. The exact details of the items to be banned is yet to be determined, but the initial understanding is that this will cover items that are provided where customers eat and drink on the premises but will not cover items that are provided for takeaway by food shops and supermarkets.

The ban is just for England but follows similar moves to ban these items in Scotland and Wales. No date has been set for the ban coming into effect, but it will probably be early 2024. The ban demonstrates the increasing emphasis that the public are putting on businesses acting in an environmentally ethical way, so I would advise operators to look at changing their use of these items to more sustainable alternatives now rather than waiting for the ban to come into effect.