London Fire Commissioner v Bupa Care Homes (ANS) Ltd.

Measures protecting a defined class of care-home residents from smoking-related fire risk can constitute general fire precautions under the Regulatory Reform (Fire Safety) Order 2005. A suitable and sufficient fire-risk assessment may identify hazards and precautions by reference to the premises and the characteristics of relevant persons. It need not involve an individual clinical assessment of every resident.

Supervision required to ensure that residents smoke safely is a safety-management measure. It is not, in that context, care or treatment requiring consent under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Liability under the Order turns on exposure to risk of death or serious injury in a fire; actual injury is unnecessary.

London Fire Commissioner v Bupa Care Homes (ANS) Ltd concerned a care home resident who died after catching fire while smoking in an outdoor sheltered area. The appellant care-home operator pleaded guilty to failing to make and give effect to appropriate arrangements for preventive and protective measures, contrary to article 11 of the Regulatory Reform (Fire Safety) Order 2005.

Following a Newton hearing, the Crown Court found that failures to implement fire-safety measures, including supervision of relevant smokers, were causally linked to the death. It imposed a fine of £937,500. The operator renewed its application for leave to appeal sentence, challenging the characterisation of the measures as general fire precautions, the absence of any need for residents’ consent, and the finding of high culpability.

1. The renewed application for leave to appeal sentence was refused. The fine of £937,500 was not arguably manifestly excessive.

2. Article 11 required the operator to make and give effect to appropriate arrangements for the planning, organisation, control, monitoring and review of preventive and protective measures. Read with articles 2, 4 and 9 of the Regulatory Reform (Fire Safety) Order 2005, those measures could include precautions for a defined class of resident smokers who had been prescribed paraffin-based products. The sentencing judge had not treated an individual smoking assessment as a general fire precaution. He had found that the relevant precautions were general measures applicable to a class of residents.

3. A suitable and sufficient fire-risk assessment could identify that class-based risk and the need for precautions, including supervision. The task was to identify hazards, risks and necessary precautions by reference to the premises and relevant persons. It did not require a fire-risk assessor to exercise clinical expertise or examine each resident’s detailed medical history. An individual smoking risk assessment was an additional safeguard, not a substitute for the general measures identified in the 2015 documents.

4. The judge was entitled to find that the absence of supervision was causally linked to the death. The offence under article 32(1)(a) was established by exposure to a risk of death or serious injury in a fire. Actual death was not a necessary element, although it could demonstrate the unmanaged risk and its consequences.

5. Supervision of resident smokers was not care or treatment within regulation 11(1) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The language and structure of regulations 2, 11 and 12 associated care and treatment with direct physical or medical intervention. Supervision was instead a safety measure governing how the home was run. A resident could not insist on smoking unsafely; where safe smoking required supervision, the operator had to provide it or take other appropriate steps.

6. The judge had properly assessed culpability as high. He was entitled to take account of the corporate failures to understand the risks from paraffin-based emollients and to consider the fire risk of smoking outside the building. The use of the Sentencing Council’s three-step structure was appropriate even though the guideline did not directly apply: see R v Butt [2018] EWCA Crim 1617 and R v Sandhu [2017] EWCA Crim 1908.

• Court of Appeal (Criminal Division): the court refused the renewed application for leave to appeal against sentence: [2022] EWCA Crim 1508.
• Crown Court at Southwark: following a guilty plea to an article 11 fire-safety offence and a Newton hearing, HHJ Tomlinson imposed a fine of £937,500 on 5 January 2022.