London Fire Commissioner v Bupa Care Homes (ANS) Ltd

[2022] EWCA Crim 1508 | [2022] 11 WLUK 217

Court of Appeal (Criminal Division) before Lady Justice Carr, Mrs Justice May and His Honour Judge Edmunds KC.

17 November 2022

Richard appeared for the applicant, who applied for leave to appeal sentence. The case involved a resident of a care home who was a wheelchair user, who frequently chose to smoke in the garden of the care home. On the 13 March 2006, he dropped a cigarette down the side of his wheelchair which set his clothing alight and he died in the ensuing fire. The court held that general fire precautions as required by the Regulatory Reform (Fire Safety) Order 2005 (Fire Safety Order 2005) did extend to smoking precautions required for all residents having a prescription for paraffin creams, Ground (1a); the act of supervision of a smoker did not amount to an aspect of their care and treatment under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (Health and Social Care Act Regulations 2014) and thus did not require consent, Ground (1b); the finding of high culpability was justified by the sentencing judge’s findings, Ground (2). The judgment sheds light on the complexities in interpreting the Fire Safety Order 2005 in the context of the heavily regulated sphere of social care, considering the extent to which clinical assessments may or may not feature in the framing of general fire precautions, and the difficulty of balancing care providers’ compliance with the Regulations and the consequent need for consent, with the requirements of the Order.