• The absence of available trained staff to operate the extinguishers; and
• the problems associated with vandalism, theft and misuse.

The Current Legal Position

Current fire-safety Legislation requires that the responsible person must ensure that:

• the relevant premises are “equipped with appropriate means for fighting fire”¹ [Article 13 of Part 2, paragraph (1)(a)]; and
• any such equipment is “subject to a suitable system of maintenance and are maintained in an efficient state, in efficient working order and in good repair”².

The fire-safety Legislation in England, Wales, and Scotland places statutory responsibilities³ upon the enforcing authorities to enforce the legislation⁴ whilst having regard to such Governmental Guidance as the Secretary of State (for England & Wales)⁵, or the Scottish Ministers may give”⁶.

The Governmental Guidance therein is pretty clear across the guides broadly repeating many of the key points of BS 5306-8, e.g. levels of class A cover (broadly one 13A extinguisher per 200m², minimum of two per floor, etc.). Additionally, it brings the British Standard BS 5306-8 into play in saying “Fire protection products and related services should be…properly installed and maintained in accordance with the…relevant standard”. BS 5306-8 refers.

BS 5306-8 itself is unequivocal on the subject: the minimum levels are exactly that - minimum. Risk assessment can increase the levels of cover above those minimum levels, but cannot reduce it. Footnotes in the article on BS 5306-8 refer.

Controversial Trains of Thought

We are aware that there are some trains of thought (including most notably some LGA guidance⁷) suggesting that extinguishers are not necessarily required within common parts. Such a view is controversial in the extreme, and there are several points worthy of mention:

• The LGA Guidance⁷ applies only to those properties falling within its scope, mainly “buildings which have been constructed as purpose-built blocks of flats”. The following are not included in the scope of the document:
  • Buildings converted into blocks of flats;
  • ancillary or communal facilities in a sheltered housing scheme;
  • residential care properties;
  • dwelling houses and bungalows;
  • shared houses;
  • HMOs;
  • hostels;
  • flats used as holiday lets;
  • flats within sheltered housing schemes and blocks containing flats intended for multiple occupation in which, in the event of a fire in a flat, the entire building is evacuated simultaneously.
• In any event, the LGA guidance⁷ makes clear that even in the narrow section of buildings for which it does purport to apply, extinguishers are still required in:
  • “places where people are employed to work and so forth” (it is noted that in many situations “places where people are employed to work” will be a very broad category potentially including all common areas);
  • plant rooms and similar ancillary accommodation;
  • common community facilities;
  • any staff rooms; and
  • all common facilities in sheltered housing⁸.
• The evidential basis for such controversial guidance has been questioned⁹;
• The LGA guidance⁷ makes reference to a consultation process, but:
  • it is noted that the document is drafted by a private company;
  • there seems a lack of transparency as to the conduct of the consultation;
  • the extent of consultation is questionable: the document does not detail the parties consulted. In particular, the document makes no reference to the following bodies: BSI, FIA, IFEDA, or BFC. These are obvious stakeholders whose input should have been sought;
  • the text makes no reference to being “official” or being endorsed by ministers
  • the text makes no reference to being endorsed by bodies such as the Chief Fire Officers’ Association (“CFOA”), CLG, FIA, HSE, Scottish Government, etc.;
• The LGA guidance⁷ may not give full and due consideration to the other measures that can be taken to mitigate the risks leading to consideration of extinguisher removal. For example, theft, misuse and vandalism concerns can usually be mitigated through the implementation of one or more measures such as extinguisher alarms, extinguisher cabinets and other security measures such as CCTV, patrols, etc. of course, there are the usual statutory obligations concerning a proper consideration of such measures before any decision to remove extinguishers is taken.
• This controversial LGA guidance⁷ seemingly conflicts with more formally recognised guidance, not least:
  1. the CLG guidance contained in their series on fire risk assessments;
  2. the Scottish Government’s guidance;
  3. BS 5306-8;
  4. LACoRS guidance¹⁰; and
  5. BSI document PAS 79 “Fire risk assessment – Guidance and a recommended methodology” (which broadly supports the provision of extinguishers other than in “very unusual” circumstances (common areas hardly being “very unusual”));
• As previously mentioned, the aforementioned CLG guidance and Scottish Government’s guidance has statutory significance^{5, 6}: enforcing authorities have a statutory duty to have regard for this guidance. The controversial guidance does not have this status.

Of concern to many parts of the fire-safety professions are that such controversial guidance is being ill-advisedly applied by risk assessment practitioners that have less than the appropriate levels of competence for this very serious and very technical area. The reader is referred to the document “Competency Criteria for Fire Risk Assessors” produced by the cross-industry Fire Risk Assessment Competency Council.

We are aware that these points have been discussed at the highest level with CFOA on several occasions. The Chair of CFOA’s National Fire Safety Committee (Chief Fire Officer lain Cox) said “From time to time providers of sheltered and multi occupancy housing have, via their risk assessment process, indicated that provision of fire fighting equipment such as portable fire extinguishers is incompatible with the potential non-availability of staff to use them. I believe this approach is basically flawed and that in nearly all cases, where there are common use areas, fire fighting equipment should be provided and maintained”¹¹. Requests have been made by CFOA’s representatives to provide details to CFOA where we become aware of any fire officer who recommends or endorses such a position.

It is perhaps also of note that an HSE panel concluded on the subject of fire extinguishers that “it is hard to understand how anyone could sensibly use “health and safety” as a reason to remove fire extinguishers”.

In Summary

Ultimately, the Court may well be the final arbiter in the event of a prosecution (or civil claim).

However, the legal framework broadly supports the provision of extinguishers, and in all but perhaps truly unusual circumstances, it seems very hard to balance the purported justification for removing properly installed, positioned and signed extinguishers with the clear and obvious associated fire-safety risk-to-life downsides.

In short, their seems little to encourage a move away from the official and more formal guidance available such as the CLG guidance, Scottish Government’s guidance and BS 5306-8 and with the penalties extending to unlimited fines and imprisonment, it is certainly not a move we would normally advise.

1. Article 13 of Part 2, paragraph (1)(a) of the Fire Safety Order, and Part 3, section 12, paragraph (1)(a) of the Fire Safety (Scotland) Reg’s;
2. Article 17 of Part 2, paragraph (1) of the Fire Safety Order, and Part 3, section 16, paragraph (1)  of the Fire Safety (Scotland) Reg’s;
3. Article 26 of Part 3 of the Fire Safety Order; and Section 61 of the Fire (Scotland) Act 2005.
4. Article 26 of Part 3, paragraph (1) of the Fire Safety Order; and Section 61, paragraph (1) of the Fire (Scotland) Act 2005.
5. Article 26 of Part 3, paragraph (2) of the Fire Safety Order.
6. Section 61, paragraph (2) of the Fire (Scotland) Act 2005.
7. The LGA’s publication “Fire safety in purpose-built blocks of flats”, available here.
8. Paragraph 67.4, publication at footnote 7, above.
9. For example, by IFEDA as set out here.
10. LACoRS “HOUSING – FIRE SAFETY Guidance on fire safety provisions for certain types of existing housing”.
11. As quoted in the FIA article “Fire Industry Speaks out Against Extinguisher Decision”.