Legislation, Regulation and Guidance, is it a legal requirement?

Is It A Legal Requirement?

Without a shadow of a doubt, the most commonly asked question to any regulator when they’re giving advice is “is it a legal requirement?”, often with the expectation from the requestor of a simple yes/no answer.  If only the world of risk assessments was that easy… 

So, I’ll try and explain…

The key to answering this question is understanding the differences between legislation (an “Act”), regulation and guidance.

Legislation

A Bill for a new law is proposed.  The House of Commons and the House of Lords approve the Bill, making it an Act, before the Monarch grants it his Royal Assent.  An example of an Act can be The Housing Act 2004 which brought in a new, risk based approach for inspecting dwellings.

Regulation

Regulations typically add to an Act, they are associated with existing actions and help someone apply an Act’s concept.  An example of a Regulation can be The Housing Health and Safety Rating System (England) Regulations 2005, which builds upon the risk based approach by identifying 29 hazard types to consider and be required to be assessed, or The Smoke and Carbon Monoxide Alarm (England ) Regulations 2015, which stated a requirement for a smoke detector to be located on each floor but failed to specify what standard, location or consider other risks such as means of escape or compartmentalisation. 

Guidance

Guidance aids in the identification of options and the reduction of choices, however, it’s not compulsory and you are free to take other action.  However, generally, if you do follow the guidance, you will normally be doing enough to comply with the law (see Legislation / Regulation).

Guidance takes many forms, here are a few which may be relevant to FHL’s.

There are many, and more, and they are updated all the time to reflect either further learning and understanding, industry changes or to reflect advancement in technology. 

Failure to undertake a suitable and sufficient risk assessment, taking into account the relevant guidance, you potentially leave yourself open to being in breach of legislation as well as allow the injured party to seek damages through negligence. 

So, in answer to the question, sometimes it is a legal requirement, sometimes it isn’t and is just guidance BUT it is strongly advisable to either follow guidance or propose an alternative solution rather than believe that it’s optional.

Safe Stays advise clients on the distinction AND propose a number of alternative solutions which may be suitable.  In addition, we know that health and safety management is an ongoing process, not a one-off, tick box exercise.  It is not enough to just control the risks in your property, you must make sure that they stay controlled.  This means keeping abreast of legislative and guidance changes as well as be kept aware of other incidences which may be applicable to you for you to consider. 

With membership, we risk assess your property.  Not only that, we will keep you updated with any guidance changes and make ourselves available to discuss with you if you feel they may apply so that you comply with the legislation, the regulations and guidance.