London Fire Commissioner v Bupa Care Homes (ANS) Ltd

Factual and Procedural Background

This case concerns a renewed application by Company A for leave to appeal against a sentence imposed on 5 January 2022 by Judge Tomlinson in the Crown Court at The City. Company A was prosecuted by The Fire Commissioner for breaches of the Regulatory Reform (Fire Safety) Order 2005 following the death of a resident, referred to as the Resident, on 13 March 2016 at one of Company A's care homes. Company A pleaded guilty after an unsuccessful application to dismiss. The judge held a Newton hearing and imposed a fine of £937,500 alongside prosecution costs of £104,425.42.

The Resident was a vulnerable, non-ambulant smoker living at the Home, requiring 24-hour assistance. On the day of the incident, the Resident was left unsupervised while smoking in an outdoor sheltered area and caught fire, resulting in death. The Resident had been prescribed paraffin-based emollient cream, which increases flammability, though evidence suggested it had not been applied immediately prior to the incident.

Prior to the incident, Company A had issued a national fire safety policy (2013) which did not reference paraffin-based cream risks. In April 2015, a briefing note highlighted the risks associated with paraffin-based products and recommended precautions including supervision of smokers and use of protective clothing. The London Fire Brigade also wrote to Company A in September 2015 emphasizing fire risks related to smokers with limited mobility or cognitive ability. A fire risk assessment in October 2015 identified the risks and recommended further measures.

The Fire Commissioner brought three charges against Company A relating to failure to conduct suitable risk assessments, failure to implement appropriate arrangements for fire safety, and failure to provide adequate safety training, covering the period from December 2006 to March 2016. Company A applied to dismiss two counts, arguing that individual smoking risk assessments did not constitute general fire precautions under the Order, but the judge rejected this.

Company A pleaded guilty to one count related to failure to implement arrangements effectively, accepting breaches including failure to implement the 2015 briefing note, failure to carry out individual smoking risk assessments, and failure to ensure fire safety training. The Fire Commissioner contended that these breaches caused the Resident’s death, while Company A argued the failings contributed minimally, necessitating a Newton hearing.

Following the Newton hearing, the judge found that supervision was a key preventive measure and that failure to supervise the Resident while smoking was causally linked to the death. The judge rejected Company A’s argument that supervision was a clinical matter requiring consent and held that the fire safety measures were general precautions applicable to a class of residents. The judge assessed harm as medium and culpability as high, resulting in the imposed fine.

Legal Issues Presented

1. Whether the safety precautions for smoker residents, including one-to-one supervision, amounted to "general fire precautions" within the meaning of the Regulatory Reform (Fire Safety) Order 2005.
2. Whether the measures imposed on residents to reduce fire risk constituted aspects of their care and treatment under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, such that residents’ consent was required.
3. Whether the judge erred in assessing Company A’s culpability as high rather than medium.

Arguments of the Parties

Appellant's Arguments

• The judge erred in finding that safety precautions for smoker residents were general fire precautions, arguing that supervision requirements could only arise from a suitable and sufficient risk assessment and that clinical judgment was necessary to assess individual residents’ needs, thus such measures fell outside the scope of the Fire Safety Order.
• The judge wrongly found that measures to reduce smoking risks did not require residents’ consent, contending that such measures were part of care and treatment under the 2014 Regulations and thus legally required consent.
• The judge erred in finding high culpability, emphasizing that Company A as a corporate entity had sound fire safety policies generally, that warnings relied upon were not all directed to Company A, and that failings were isolated to a single location and local implementation issues.

Respondent's Arguments

• Company A impermissibly sought to challenge its guilty plea which accepted the implementation of the 2015 briefing note as preventive and protective measures under the Fire Safety Order.
• The judge correctly found that the safety measures applied generally to a group of residents sharing characteristics, not to individuals, and the question of whether they were general fire precautions was a factual matter for the judge.
• The judge was correct to find that supervision while smoking did not constitute care and treatment requiring consent, and the issue of consent did not affect the outcome as there was no evidence the Resident refused compliance.
• The judge properly considered Company A as a corporate entity and took into account all relevant warnings and failings in assessing culpability.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework under the Regulatory Reform (Fire Safety) Order 2005 and the 2014 Regulations. It confirmed that Company A, as employer and responsible person, had a duty to make and give effect to arrangements for effective fire safety planning and control. The court clarified that "general fire precautions" are measures identified through a suitable and sufficient fire risk assessment aimed at reducing fire risk on the premises.

The court rejected the appellant’s contention that supervision of smoker residents was a clinical matter requiring individual assessment and consent. Instead, it held that the precautions at issue were general measures applicable to a class of residents sharing characteristics, and that risk assessors need not possess clinical expertise to identify such precautions.

The court found that the failure to supervise the Resident while smoking was causally linked to his death and that the omission fell squarely within the causation of the accident. It noted that the appellant had accepted breaches relating to failure to implement the 2015 briefing note and fire risk assessment recommendations.

Regarding consent, the court reasoned that the statutory provisions on care and treatment involved direct physical intervention, whereas supervision was a passive safety measure not requiring consent. The absence of any requirement for consent in the 2015 briefing note and related documents supported this interpretation. The court further observed that the Resident had not been asked for consent nor refused supervision.

On culpability, the court accepted the judge’s detailed assessment that Company A’s failings were significant, involving a lack of understanding of fire risks from paraffin-based creams and failure to consider smoking risks outside the main building. The court found no error in the judge’s classification of culpability as high, noting the multiple warnings issued in 2015 and the failure to implement necessary measures across the care home estate.

Holding and Implications

The court REFUSED the renewed application for leave to appeal against sentence.

The direct effect is that the sentence imposed on Company A, including the fine of £937,500 and prosecution costs, stands. The court’s decision affirms the applicability of the Fire Safety Order to general fire precautions relating to classes of vulnerable residents and clarifies the limited scope of care and treatment requiring consent under the 2014 Regulations in the context of fire safety supervision. No new precedent beyond the application of existing principles was established.