Care Home Sentencing a Salutary Reminder of the Importance of Fire Safety Responsibilities

By Hannah Eales, partner at law firm Kingsley Napley LLP (www.kingsleynapley.co.uk) specialising in fire and safety law

On 5 January 2022, Bupa pleaded guilty at Southwark Crown Court to breaches of the Regulatory Reform (Fire Safety) Order 2005. Bupa were ordered to pay a fine of £937,500 and prosecution costs of £104,000. This is the highest ever fine imposed for fire safety breaches under the Fire Safety Order in the UK.

London Fire Brigade brought the prosecution following the fire in March 2016 at a residential Care Home in South East London in which a 69 year old man in a wheelchair sadly died in a fire whilst smoking unsupervised in a shelter in the garden of the Home. The victim had been prescribed a paraffin based emollient cream. BUPA policy required emollient cream users to have further precautions for smoking such as a smoking apron or to be supervised, neither of which were done.

Bupa pleaded guilty to a breach of Article 11 of the Fire Safety Order which states ‘ The responsible person must make and give effect to such arrangements as are appropriate, having regard to the size of his undertaking and the nature of its activities, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.’

In particular, Bupa accepted that it had failed to: ensure staff understood the risks from the use of emollient creams; warn residents using paraffin-based products not to smoke, or, require precautions to be taken such as the use of a smock or apron; instruct staff not to leave a resident using paraffin-based products smoking unsupervised; and carry out an individual smoking risk assessment of the resident as normal with the control measures in place.

The Judge approached the sentencing exercise using the Sentencing Council’s Health & Safety guidelines. The Judge considered the culpability of Bupa to be ‘High’ reflecting the fact that the risks of emollient cream by smokers was well known by 2016 and Bupa had been specifically warned of the risk. In terms of seriousness of harm risked, he considered this to be ‘Level A’, but determined the likelihood of harm to be ‘Medium’. As Bupa falls within the category of a ‘large’ organisation and reflecting the fact that the breaches had actually caused a fatality, the Judge set a starting point of a fine of £1.5 million. He discounted 25% on account of Bupa’s guilty plea and discounted a further £250,000 to reflect the current pressures on the care sector, partly due to the pandemic.

This case serves as a valuable reminder to all care home managers and owners of the importance of complying with fire safety responsibilities and both the tragic personal and serious financial consequences when those responsibilities are not met.