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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: slubberdegullion on November 28, 2007, 07:26:55 PM
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On 8th November a Bill went before Parliament that has the greatest of good intentions behind it. Please look at:
http://bre.berr.gov.uk/regulation/enforcement_sanctions_bill/
I haven't read it in detail yet but what I have read has really got me thinking.
We're going into territory we haven't been in before.....
Stu
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So an on the spot fine is issued but is the premises safer than it was before! An enforcing officer has recently stated that he will not accept a fire door set as it has no certification. There is nothing wrong with the door set but the school concerned has no paper trail for the doors which met a standard of years ago. Is this an on the spot fine, or a Stop Notice. I agree with Stu that black and white issues are seemingly easy, but although there is a Fire Consulatncy called Black and White Fire safety, in my years I have never come across a black and white solution, therefore surely there can be no on the spot fines levied unless that failure is no Fire Risk Assessment which is the legal requirement. However, as noticed many times before on this forum, it is not only the question of an FRA but the quality of it as well.
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Thanks for your comments jokar. This matter could be as big as the FSO in its implications for enforcing officers and others....
It is worth noting that some reasons behind the bill are:
the desire for a light touch
rationalisation of enforcement
raising compliance
removing cumbersome enforcement regimes
They say better regulation will come about if enforcers are
proportionate
accountable
consistent
transparent
targeted (who could disagree!)
I would urge you to look at the guide to the bill - it probably gets most interesting at page 28 onwards.
In view of the inconsistencies discussed elsewhere, paragraph 54 on page 41 is interesting:
"54. What if a regulator wrongly imposes a stop notice? Will a business be entitled to compensation if it suffers a loss in such circumstances?"
It is at an advanced stage in Parliament and I think it warrants discussion at our (practioner's - whether you're an enforcer or subject to enforcement) level as soon as possible.
Stu
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The bill went for its second reading in the Lords today.
FRS are only being snared initially by part 1 of the bill which makes 'primary authorities' mandatory.
Part 2 which extends sanctioning powers across a range of events is not applicable to FRS yet.
Part 1 is bad enough...written by big business to avoid any inspection activity.
Formal consultation has long finished.
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The issue of fixed penalty notices (FPNs) was considered at the outset when the RR(FS)O 2005 was being drafted. However, following consultations with stakeholders the idea was rejected.
You would imagine that stakeholders who may be affected by FPNs - such as the CBI and large businesses etc - would be opposed, however the main opponants of the FPN proposal were... CFOA and FBU - ie the gamekeepers themselves!
So I would be interested to see how this situation develops and in particular, what CFOA and FBU's position is now, a year after the 'new' regs have been running. In particular, if those two groups have changed their minds.
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How could you issue FPN's in relation to any legislation that is based on risk assessment?
If you are exceeding the speed limit even by 1 MPH you are committing an offence it is no use saying it was 2 o'clock in the morning and it was safe to so. As this forum clearly shows there is a large diversity of opinion and in most cases nobody is wrong.
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FPNS may apply to
No fire risk assessment
Locked exits
Blocked exits
Lack of signs
inadequate or un maintained fire extinguishers
defective fire alarm
defective escape lighting
wedged fire doors
lack of signage
etc, etc- some issues are black and white even in fire safety.
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allowing inspecting officers the ability to issue these FPN will be an absoloute nightmare, will we have a certian number we have to issue per month? If your a few short will they be issued for totally trivial breaches? so much for the concordat.
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Traffic wardens of the fire world. Woo hoo.
If we look at it sensibly, it should only be used for the blatantly dangerous contraventions. i.e. Blocked exits, lack of a means of giving warning where one is required. i.e. The sort of thing that would incur at LEAST an enforcement notice.
I think that sometimes we are too nice. (No, really! :)) Blocked exits found on inspection are often dealt with by telling the person to unblock it immediately, whereas if a fire had occurred in that same premises and we had found blocked exits in a fire damaged building we would be much more likely to prosecute.
Also, I think the Concordat is about to be replaced with some other code of conduct.
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The problem is that the amount of work required in collecting statements, photos and writing it all up and then getting the brigade to consider a prosecution is immense. Then you have to ensure compliance with PACE - not a bad thing in itself, but it means that any 't' not crossed or 'i' not adequately dotted may result in the case being thrown out and costs incurred on a cash strapped authority.
Add to that the sometimes horrendous task of identifying the Responsible Person and the whole exercise is one that many IOs avoid and many RPs manipulate.
The introduction of FPNs should be for minor/first offences. With a 28 day appeal mechanism to allow for over zealous IOs (if there are any!), the punter should be well protected. The process of preparing a full hearing/prosecution should be retained and reserved for more serious offenders.
Let's be honest, most businesses only really respond to the threat of financial penalties as reminding them of their responsibilities by 'educating and informing' or sending a 'Notice of deficiencies' is seen by many as a soft option. A "we've got away with it" mentality.
In my area, there are FPNs for parking, litter, fare evasion and even not having a licence for an 'A' board advertisement outside your shop!!!!. But if you have a potentially serious FS issue, you get a lovely (free) enforcement notice with details how to comply, 28 days to appeal and an (often infinately) extendable time limit
As CivvyFSO said, maybe we are being too nice!
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Does anyone know if there is an indication of what the level of fines imposed may be? Just thinking if it's say £10.00 per fire door wedged open it would not have that much of an impact. I would assume there would be some form of sliding scale based on the risk level to relevant persons?
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Kurnal I still cannot fully accept your augment and I do not think it is as clear cut as you suggest.
For a FPN to be issued, an offence would have been committed. If you go back to a previous thread “Breach or Offence” they used the wedged fire door as an example. One conclusion was no offence had been committed unless it was putting one or more Relevant Persons at risk of death or serious injury in case of fire. The only way to establish this would be to apply a risk assessment to the situation which then would make it no longer a black or white issue. This could apply to some if not all of the items you highlighted.
I would suggest that this would make the FPN more easily open to appeal and my understanding of FPN’s are they should not be easily open to appeal or it defeats their purpose. Also if it was ever applied to the RR(FS)O I believe it would be a minefield for Enforcement Officers.
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FPNS may apply to
No fire risk assessment
Locked exits
Blocked exits
Lack of signs
inadequate or un maintained fire extinguishers
defective fire alarm
defective escape lighting
wedged fire doors
lack of signage
etc, etc- some issues are black and white even in fire safety.
How does one establish that there is a lack of signs? Unless there is a code with specifically says that signs must be here, there and yonder then you are only acting on a hunch.
Additionally, one would have to show that a defective safety light would have a detrimental effect on the means of escape. What if there was borrowed light in the vicinity of a defective safety light? The provision of a safety light in a particular area does not neccessarily mean that it is there as a requirement to satisfy a code. Maybe the owner has a thing about safety lights.
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Well you can only have one bite at the cherry and issue one penalty ticket at a time, but if there is no risk assessment thats the first and obvious point at the top of the hierarchy of issuing FPNs.
If there is one even if its crap the RP has a risk assessment so we will go down the hierarchy. FPNs are not the tool to question the adequacy of the risk assessment for the reasons you point out.
Eventually you will come to lack of signs. If you find a wedged fire door without an S1 or a fire exit door say with a PB it is not in common use so the need for a sign is balck and white.
The risk assessment will record the arrangements for escape lighting. So if its mentioned in the risk assessment and it doesnt work its a clear breach of article 17. Isnt it?
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Bear in mind how most fixed penalties work:
You have been caught, here are your options:
a) Pay £x
b) See you in court for a prosecution.
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Its horses for courses.
If everything is in order, the procedures and paperwork are all there. But on the day you visit some bright spark has blocked an exit with a delivery, then hit him with a FPN.
If you find that the whole place is in a right old 2&8 then something more abrasive may be appropriate.
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Well you can only have one bite at the cherry and issue one penalty ticket at a time, but if there is no risk assessment thats the first and obvious point at the top of the hierarchy of issuing FPNs.
If there is one even if its crap the RP has a risk assessment so we will go down the hierarchy. FPNs are not the tool to question the adequacy of the risk assessment for the reasons you point out.
Eventually you will come to lack of signs. If you find a wedged fire door without an S1 or a fire exit door say with a PB it is not in common use so the need for a sign is balck and white.
The risk assessment will record the arrangements for escape lighting. So if its mentioned in the risk assessment and it doesnt work its a clear breach of article 17. Isnt it?
How would it be mentioned in a risk assessment? By each and every unit? Where it is? Why it is there? Does it have to be there? Is it there as a safety light, an emergency escape light or a security light?
Or would it be adequate for the RA to state that an emergency lighting system to BS5266 Pt1 2005 is installed?.
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It would have to be escape lighting for a FPN I reckon.
I would have thought the minimum description of a system in any competent risk assessment is a statement to decribe the system ie BS5266 part 1 2004, maintained or non maintained, self contained, invertor or central battery system, the duration of the system, any significant variations, the areas covered if part of the building, whether it is correctly wired to work on sub circuit failure, the system for maintenance and testing,and the date of the last inspection and test.
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It would have to be escape lighting for a FPN I reckon.
I would have thought the minimum description of a system in any competent risk assessment is a statement to decribe the system ie BS5266 part 1 2004, maintained or non maintained, self contained, invertor or central battery system, the duration of the system, any significant variations, the areas covered if part of the building, whether it is correctly wired to work on sub circuit failure, the system for maintenance and testing,and the date of the last inspection and test.
The BS gives cognisance to the borrowed light principle and as such if a light in a particular area is defective, but borrowed light is present, it does not mean that the system fails to meet the code.
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Bear in mind how most fixed penalties work:
You have been caught, here are your options:
a) Pay £x
b) See you in court for a prosecution.
If you have to see them in court then the FPN has not worked. My understanding of a FPN is they are very difficult to appeal against which reduces the courts time. If they are easily appealled then they are of no use.
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Bear in mind how most fixed penalties work:
You have been caught, here are your options:
a) Pay £x
b) See you in court for a prosecution.
If you have to see them in court then the FPN has not worked. My understanding of a FPN is they are very difficult to appeal against which reduces the courts time. If they are easily appealled then they are of no use.
Don't agree with your view on this one at all TW. What with the level of competancy of some IOs it would be tantamount to a breach of a person's human rights to be placed in such a position. To make a system difficult to appeal just to reduce court's time is itself criminal. I certainly believe that an appeal system must be available but through a body that would known what it is talking about.
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The BS gives cognisance to the borrowed light principle and as such if a light in a particular area is defective, but borrowed light is present, it does not mean that the system fails to meet the code.
There will always be situations where there is doubt as to whether an offence has been committed or not and these are the ones where the FPN would not be suitable. But should we dismiss the idea just because in some cases it could be inappropriate? I do think there are many situations in which it would be an invaluable tool which would quickly spread the message and drive down risk. Take christmas shop inspections for example- weve all seen it so many times - blocked exits, stock in staircases. Issue an FPN, watch them make it safe and come back tomorrow to see if the lessons been learned.
Theres lots of similar FPNs in use- litter dropping, dog fouling, riding a bike on a footpath, drinking in the street, speeding, parking - all have some grey areas and where there is doubt they let the court decide. Its all about the application of common sense by the enforcer.
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nearlythere I am not for a moment suggesting that appeals should be made more difficult were FPN are concerned they are extremely easy to appeal, you simple do not pay and fight your case in the courts. What I am trying to say is if you are going to use FPN's the offence has to be clear cut if there is reasonable doubt you should not use them.
Kurnal's last paragraph on submission 22 all the offences he mentioned are in my opinion clear cut, you are committing an offence or not, the only defence you have is on technical grounds or the lack of evidence.
Mind you I believe this discussion is only an academic exercise, if you read the GUIDE TO THE REGULATORY ENFORCEMENT AND SANCTIONS BILL at http://bre.berr.gov.uk/regulation/documents/enforce_sanct/res_bill_guide_3.5_071122.pdf there is no way the LBRO will sanction the RBS the facility to issue FPN's.
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FPNs are fine but I heard a tale from Glasgow where the traffic wardens were putting parking notices on a car that was parked on double yellows every day. At the end of each month the fines were paid. It wasn't until thi had been going on for several months that the wardens realised that the fines were less than the cost of parking all day in the local car parks!
The FPN idea is OK but the costs must be relative.
As an aside all people on this topic are getting hot under the collar about the FPNs. Have a good look at part 1 of this bill it is a bomb.