FireNet Community
THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 => Q & A => Topic started by: A J on August 20, 2008, 01:18:39 PM
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Hi All,
I am asking your advice on the best means of raising the alarm in an office based in the ground floor wing of a historic house.
The house itself does not have any fire alarm system and the layout of the office is rooms off a corridor including a server room.There are doors which seperate the wing from the rest of the house which are locked.The travel distance to the exit door is fine as are the fire doors on route, my concern is that as the house is unprotected should the offices have an early warning of fire as it is sandwiched between the basement and the floor above? There are 10 employees who come and go and two office staff who are there 9-5.
I feel there is a need for a simple alarm system to protect the server room and any person (lone worker) who maybe in their office with the door shut.
There is only the front door to exit from and fire extinguishers are correct and maintained.
Am I being over cautious?
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I don't think you are being over cautious.
Since it sounds like you are in a dead end then you should possibly look at having detection in every room off your corridor or fire doors with self closers on. The problem with the second option is that eventually a 30 minute fire door will fail, and if someone is sat behind another door then they may be unaware of the impending problem, so detection is the sensible option. A BS5839 part 1 with L3 standard coverage would suffice. A part 6 system may do the job depending on the size of the premises involved. Also if the corridor is particularly short, with limited fire loading in the rooms, then a risk assessment may show that detection just in the corridor may suffice.
Assuming that you are the only commercial enterprise in the building: If this is in the UK then we can't really insist on detection in the rest of the house as it is domestic, but you should possibly have detection covering your escape route as this is a part of the premises you have access to so the legislation covers that. The funny thing is that you should also be thinking about protecting the people in the domestic premises from a fire in your part of the building.
If the basement and first floor are also commercial and they can affect your escape route (Unlikely with the first floor, but possible with the basement) then the occupiers there should ensure that you are kept safe from a fire in their premises.
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The house could have an alarm to BS 5839 part 6, perhaps a PD1 system which could then be extended to cover the offices. Alternatively, a full commercial system so as to protect all the relevany persons. You have not mentioned whether visitors come to the house but as these will be relevant a full part 1 system may be a recommendation.
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Thanks civvyfso & Jokar,
The house is still a private residence owned by an eccentric millionaire who is reclusive in nature and rattles around the main house so not many visitors! however, he is starting to rent certain areas out to business, this wing is the first, and I feel its better to have sufficient fire cover so at least people have a chance.
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Hi , from your comments it would appear that the property owner is in the process of developing the propery for commercial letting aspects and as such, would not the implications of the RRO now apply as a commercial landlord via change of usage etc.
It may be that if such an assessment were completed, then the risk assessment may highlight the need for full detection to be installed in the property throughout which would certainly aid your cause.
Just a thought though, regards.
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Theres a lot of peripheral considerations and we must assume that planning, and change of use, business rates, OSRA considerations have been dealt with. This does sound like a change of use in respect of Building Regulations and this would dictate the fire separation between purpose groups and consequential means of escape and alarm considerations.
The owner living above the office is a relevant person under the RR(FS)O 2005 and so could be affected by a fire in the office. Therefore unless offices are separated by one hour compartment walls and floors from the residential areas, and means of escape are independent of each other, the minimum fire alarm system would have detection in the office with sounders in the residential part in addition to other considerations.
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Have come across another variation on the Relevant Person / Responsible person theme. Similar to this case.
A private school, running since 1880 occupies the lower 2 floors and basement of a 3 storey listed building measuring 60 x 18m. The whole of the top floor is a private flat, occupied by a very elderly man who used to own the school. He still owns the building and is responsible for its maintenance but sold the school business many years ago. There is no fire separation whatsoever but means of escape are not too bad because there are three seperate staircases - all unprotected but separated from each other. All stairs serve the top floor flat.There is just an old 240volt manual alarm.
There is concern for the safety of the owner in his flat, in the event of a fire in the school. He is a relevant person. But he is responsible for maintenance and steadfastly refuses to invest in a new alarm or fire separation. The liklihood is that a notice will be served on the school to upgrade the systems which the owner of the building will refuse to carry out. The school cannot afford it as it is running on a shoestring but fills a very important role in the local community. The outcome is likely to be closure of the school after 130 years.
In this case should we allow the relevant person to continue to place himself at risk?
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Prof
anything in the school to be concerned about likely to cause or spread a fire?
davo
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Yes theres bits and pieces but most can be dealt with fairly easily. For the school I have suggested a range of options like testing the fire alarm daily as there is no back up power supply, changing some of the heating, fitting some self closers and fire seals to a few key doors. The quote for new fire alarm would put them straight out of business. They only have 30 pupils and cater for kids who have problems in attending the bigger mainstream schools. Going into the school is like turning the clock back 50 years. Thats when it was last decorated I reckon.
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Oh Dear, Kurnal, so its ok to breach legislation if you test things more often. Thats handy to know. It may stand me in good stead as a police car seemed to take an undue interest in me tonight when I was doing 100mph on the M3. If I hear anything from them, I will tell them I do advanced driving tests regularly. I am sure the magistrates will accept this as readily as the contravention that the single power supply constitutes.
Interesting idea that ALARP needs to take into account the string of people's shoes. Never heard that one, but I love it. On the way home tonight the car seemed to wander a bit on the A287 (true). I was going to check the tyre tread tomorrow, but it may simply have been the road surface which is full of repairs that do tend to make larger wheels wander. But now I know if you are on a shoestring different standards apply, I wont bother as I have my tax bill to pay at the end of the week and it seems inordinately large in relation to my meagre circumstances.
Many thanks for these changes to the law. It was much quicker than the normal Parliamentary process.
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Thank you Colin. You really should slow down a little, the Rolls is so uneconomic at these speeds and we dont want you detained at her Majesty's pleasure and your shoestrings confiscated. As One gets older I am told that Ones reactions decline, so by now you may be reaching the 5mph and red flag threshold. Do be careful.
Davo did ask a very relevant question and I gave a too brief response. I am setting out immediate, short, medium and long term action plans showing what needs to be done to achieve compliance, and the plans take account both legal requirements, National Guidance, heritage issues, societal issues and shoestrings. Now having set out what needs to be done, When and By Whom become the key factors.
Hence the original question relevant to the Fire Safety Order. The greatest costs and obstacles to progress in this case arise soley from the need to protect a relevant person who also happens to be a Responsible Person who owns the building.This person has responsiility under the lease agreement to pay for the work, much of which is needed to protect only himself. He does not want to make any changes at all. If it were a tenanted flat it would be so simple.
If driving at high speeds and with bald tyres only put the driver at risk and nobody else, would the Police enforce the Law as vigorously as they do now (Outside Surrey).
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Thanks civvyfso & Jokar,
The house is still a private residence owned by an eccentric millionaire who is reclusive in nature and rattles around the main house so not many visitors! however, he is starting to rent certain areas out to business, this wing is the first, and I feel its better to have sufficient fire cover so at least people have a chance.
Sounds like you need a wireless fire alarm system............. :)
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Prof
No chance of a grant?
Sorry to be cynical but there may be a new owner in the 'long term' as you put it
Perhaps the FRS would accept a time planned improvements list if they saw action was already in hand for more urgent stuff- surely reducing the risk is more important than batteries????
If money is tight then I am glad they chose you as your rates are so reasonable ::)
davo
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Kurnal, Wrong again, its a BMW. And the old geezer is probably not an RP from what you say. he is an entirely different animal, namely another person having control of the premises. Very different from an RP.
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Hi Prof
I see exactly what you are saying. Should a notice be issued against a person (i.e; the elderly gent you mentioned) for essentially putting himself at risk. Its seems a total no brainer.
There is a lot at stake, both financially and in terms of potential loss to the community by making these uprgades and / or taking the action against the stubborn gent. And for what benefit? Is it really in the public interest to take action against the fellow?
if the old fellow chooses to put himself at risk, then I feel he should be left to his own devices. By all means recommend any upgrades required for teh safety of relevant persons using the school, but I feel the old gent must take the consequences of putting himself at risk.
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Colin
I refer to articles 3(a) and 3(b)(i). And for the avoidance of doubt I also refer to the Guidance Note No 1.
As I interpret paragraphs 35, 36, 37 and 38 of thr RR(FS)O 2005- guidance note No 1 the old chap is a responsible person. And so is the head teacher who in this case is the employer.
In accordance with paragraph 36, the premises are a workplace but are not under the employers control. As the old chap rents part of the building to the school but retains responsibility for maintenance he retains control and is therefore a responsible person.
Or have I missed something?
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Yes you have. It is to any extent under their control. The employer clearly has control to some extent and therefore as it is a workplace they are the RP. The old geezer is not the RP but another person having control of the premises.
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The critical words in 3(a) being "to any extent". (though these are not repeated in the guidance)
So for example if an employer has the teeniest element of control by leasing this tiny room in this rambling stately home he is the responsible person but the person who rents him the room and who keeps possession of the rest of the building and the common areas and toilet which the employer and his staff will use- he is not a responsible person but just a person who has control?
This appears to disagree with para 35 and 36 in the guidance note No 1 - 36 says that if the premises (aah!!) are not a workplace, or are a workplace but not under the employers control the rp is detrmined by whether the person who has control over the premises does so in connection with the carrying on of a trade, business or undertaking(whether or not for profit). If so article 3 (b) (i) provides that the person with control is the responsible person.
Well Colin it appears to me that the old geezer has control of the majority of the building and the common areas and isnt renting out rooms for the sake of his health- any agreement to rent must surely be a business undertaking???
Is the Law an ass? Or is it me? Or maybe both. Wheres Phil B when I need him???
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Surely the school is a workplace.
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Colin check posting #15 Kurnal has already said that.
My understanding is, an Employer; a Person who has control, or the Owner any one could be the RP or all three it all depends on who has control. In this case the old geezer as you put it, is the owner and appears to have control, the employers (board of Governors if there is one) do not have any control and the Head Teacher doesn’t have control so shirley the old geezer is the RP.
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This is a common misunderstanding. Its a pyramid. Once you find a level you dont need to go further down. Persons other than the employer only come into the frame as the RP if the premises are not a workplace. They may however come into the frame as the PHC.
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This is a common misunderstanding. Its a pyramid. Once you find a level you dont need to go further down. Persons other than the employer only come into the frame as the RP if the premises are not a workplace. They may however come into the frame as the PHC.
When you say workplace employer do you also include a manager? And if so, in addition to or instead of the actual employer?
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Well this is a good example of how clear the FSO and all the guides are when the top people in the land can't even agree who's responsible for what....
No wonder the Barristers laugh their wigs off all the way to their off shore accounts.......
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Colin
I still have a problem with this concept - I cannot see why you are reluctant to recognise persons other than employers as responsible persons.
Please go back to the situation described in the first post in this thread- the recluse who lets out an office in his stately home to help make ends meet. He agrees that the tenant may use common areas to access the office and kitchen and toliet facilities but the tenant rents only the office. The tenant is an employer and so without any doubt a responsible person under the FSO.
If I read you correctly you are saying that the recluse is not a responsible person under the Fire Safety Order. He is simply a Person Having Control (PHC). You are reading Article 3 (a) - "to any extent under his control" literally as meaning because the employer has responsibility for a little part of the premises he is THE responsible person for the whole shooting match whilst other persons may have some control. But para 36 of guidance note no 1 reads differently. It provides for the employer not having control over all parts of the workplace and where this is the case, paragraphs 37 and 38 go on to explain that other people, for example agents or owners are the responsible person.
If we follow your line, I think it leads to difficulties in respect of Article 29.
Lets now assume that times get harder and our recluse lets out more rooms in the stately home to other employers. We now have many employers and all will be Responsible Persons. But if you are right our recluse, who retains control over lettings, new lettings and common areas is still only a PHC.
The Fire Authority start to get a little concerned that the business use is growing like topsy and look to their options for control. They decide to issue an Alterations Notice in accordance with Article 29. But an alterations notice can ONLY be served on the responsible person (article 29(1) makes no mention of PHC even though this seems to be contradicted by para 130 of guidance note No 1) If the Recluse is only a PHC they cannot serve an alterations notice upon him, and can only instead serve it on one or all of the responsible persons- but the responsible persons who are employers cannot control how many rooms are let or the purpose for which they are let.
I agree that employers are ALWAYS responsible persons. But I still feel that other persons having control can also be responsible persons and that having identified an employer in the building we do not have to stop there.
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His flat is a private dwelling. When he leaves it, as I understand your description, he is entering a workplace.
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Yes, and the only person who has control over these parts of the workplace is the owner. My only point is that the owner is the responsible person of the common areas and it is appropriate to use the term responsible person rather than PHC. I disagree that we should stop at the employer - unless that employer has control over the entire workplace.
In Multi occs a pyramid is appropriate. Any thoughts on article 29?
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The domestic flat for the landlord is confusing the issue it seems.
The old geezer, being the landlord and in control of the fire alarm system, has a responsibility and could be given a notice for failure to co-operate and coordinate fire safety matters in the premises as well as the inadequate fire warning system. In theory the school could also be issued a notice for the fire warning being inadequate, but they do not have control as the landlord must presumably sanction/license works even if the school wanted to put a new system in off it's own back.
Notices have been served on landlords as 'persons with control' despite not employing anyone on the premises for fire alarm, cop & coord and MoE issues in multiple tenancy & single tenancy sites we've been brought into help with. The fact it may not be economically viable to comply and no cheaper alternative solutions can be used doesn't matter the enforcing body - they are only bothered about suitable minimum provisions. When running a business or investing in property you sometimes win some, you sometimes loose some, that's life.
What about a simple conventional twin wire? Or would even the costs of that be too much?
I could utter the blasphemy of a Part 6 system incorporating control point and manual break glasses as well as smoke alarms - at least then you get the back up power & AFD where required and even though the cable might not be FP it would be equal to the existing which may not be FR anyway if it's any old enough system - an affordable risk based solution?
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This is a common misunderstanding. Its a pyramid. Once you find a level you dont need to go further down. Persons other than the employer only come into the frame as the RP if the premises are not a workplace. They may however come into the frame as the PHC.
Thanks, I now have a better understanding having looked at article 3 more closely and it is reasonably clear, 3(a) in my opinion, in a workplace the employer will always be the RP because the employer will always, to some extent have control. 3 (b) If it is not a workplace then a PHC or the owner is the RP.
Then I look at Guidance Note No 1 and I am back to square one. Take paragraph 36 states “a workplace but not under the employer’s control” but the order say’s “if the workplace is to any extent under his control” and as an employer will always have managerial control for instance, has the power to conduct a FRA or a fire Drill then has some control. Also any other persons having control can be culpable and have duties imposed upon them by virtue of Article 5 but they are not RP’s, maybe duty holder would be a better definition.
Is there any chance of getting a place at the home for the extremely bewildered?
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You will find that the Order and guidance tries to cater for situations that in practice are likely to exist but needed loopholes closed just in case they ever did. A classic example is the owner as RP. The ODPM more or less admitted that they could not ever envisage a real situation in which the premises were not a workplace AND no one had control so that under the Order the RP would then be the owner. But the lawyers felt it was needed as a just in case. Now people write tosh about how the owner is RP because they do not read the Article correctly.
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Colin
Please help me to understand the mystery of the RP.
I have always tried to understand my subject and "Because I say so" or "Because the ODPM more or less admitted " does not help me to understand the underlying logic. And I know I am not alone and that many of those who try to look wise and all knowing but stay silent dont understand either. I believe there is huge benefit in ensuring that people know the reason for a rule rather than seeking blind obedience with it.
Are paragraphs 36,37,and 38 in Guidance Note No 1 wrong? They appear to clarify article 3 but as they use different language they change the literal meaning significantly. If the Guidance note is wrong in this is it also wrong where it "clarifies" article 29?
The only possible explanation that I can see would be that the term Responsible Person has been coined in an attempt to draw a demarcation between National and European influences to the fire Safety Order. If the term Responsible Person is only to be used in those elemnts of the Order intended to implement the European Workplace Directive - ie applying only to Employers- why cant they say so? It still leaves the issue over aticle 29 though.
This situation must arise in many multi occupied premises - for example parts of privately owned stately homes open to the Public, former Mills subdivided into business units owned by a private landlord, places like antiques centres where the owner of the building sells space to tenants. I cannot see what is wrong- or any disadvantage- with the concept of the owner being a "responsible person" rather than a "person having control".
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Colin
Please help me to understand the mystery of the RP.
I have always tried to understand my subject and "Because I say so" or "Because the ODPM more or less admitted " does not help me to understand the underlying logic. And I know I am not alone and that many of those who try to look wise and all knowing but stay silent dont understand either. I believe there is huge benefit in ensuring that people know the reason for a rule rather than seeking blind obedience with it.
Are paragraphs 36,37,and 38 in Guidance Note No 1 wrong? They appear to clarify article 3 but as they use different language they change the literal meaning significantly. If the Guidance note is wrong in this is it also wrong where it "clarifies" article 29?
The only possible explanation that I can see would be that the term Responsible Person has been coined in an attempt to draw a demarcation between National and European influences to the fire Safety Order. If the term Responsible Person is only to be used in those elemnts of the Order intended to implement the European Workplace Directive - ie applying only to Employers- why cant they say so? It still leaves the issue over aticle 29 though.
This situation must arise in many multi occupied premises - for example parts of privately owned stately homes open to the Public, former Mills subdivided into business units owned by a private landlord, places like antiques centres where the owner of the building sells space to tenants. I cannot see what is wrong- or any disadvantage- with the concept of the owner being a "responsible person" rather than a "person having control".
Kurnal
Why the big issue with the RP? Does it really matter to the Risk Assessor who it is? If a RP needs identifing by the F&R Service it will only be to smack, serve notice on or prosecute. It, the F&RS, will determine itself who it believes needs whacked regardless of who the Assessor thinks it is.
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Hi Nearlythere
I just want to get it right. And if it matters I want to understand why it matters.
In my risk assessment I identify the RP and Persons having Control, temporary responsible persons etc. Any proposed action plan I present to the client allocates tasks to individuals depending on their role. If I get it wrong I may allocate responsibility to the wrong person. You are right- if it comes to taking enforcement action its the fire authority's problem. I know they find it very difficult and confusing too. If they get it wrong it could be expensive if costs are awarded on appeal. From my gamekeeper turned poacher point of view I could help advise them over the validity of a notice !!! :)
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Prof
As I see it Colin is right. As ludicrous as the situation maybe the RP is infact the employer (school) by virtue of Article 3(1)
The landlord is a PHC by virtue of article 5(4) in terms of maintenance / repairs etc
If you follow the letter of the the law exactly you would indeed serve any notices on the employer (school).
If, then, the notice is not complied with (because of the stubborn landlord not forking out cash to address failings) and it all goes to court, the whole thing would turn into a massive mitigation / litigation excercise.
The school would need to prove that it was powerless to comply with the notice because of the landlord's stubborness. This is when attention would be turned to the landlord and the level of control he excercised.
But to complicate matters further the landlords flat is a private dwelling, and not subject to the RR(FS)O. The landlord is however a relevant person and therefore the RP has a duty to protect him.
However as we know the landlord is the PHC and will not spend money merely to just protect himself!
It's catch 22 ! I think a test case would be needed to determine how the courts would view it given the way the order is written.
I'd like to think that common sense would prevail and that the courts would view the landlord as the true RP. However the way the order is currently the Landlord is not the RP, and the law is an ass!
My opinion is that because of these complexities the fire authority wouldn't issue any notices. Afteral if the landlord wants to put himself at risk then thats his look out ! Is it really in the public interest to take it further?
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Prof
As I see it Colin is right. As ludicrous as the situation maybe the RP is infact the employer (school) by virtue of Article 3(1) ...................................
............................... I'd like to think that common sense would prevail and that the courts would view the landlord as the true RP. However the way the order is currently the Landlord is not the RP, and the law is an ass!
My opinion is that because of these complexities the fire authority wouldn't issue any notices. Afteral if the landlord wants to put himself at risk then thats his look out ! Is it really in the public interest to take it further?
You hit he nail on the head MR but how easily this confusion could have bee avoided if the legislators had not tried to use titles and stuck to Person Having Control to any extent like the Scots Fire (Scotland) Act 2005. I argued sometime ago about the term Responsible Person as opposed to Duty Holder and could not appreciate the difference but I certainly do now.
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Quite agree Tom -The order is a mess in this respect and causes needless confusion!
Reading through the order again I have changed my mind slightly as to what action the enforcing authority might take in this situation.
Whilst I still believe the landlord is better left alone to effectively "put himself at risk" the following action could be taken in an attempt to resolve the issue:-
Firstly (in so far as the order is written) the RP is definately the employer (school) however, you could in theory serve an enforcement notice on the landlord as a PHC by virtue of article 30(1).
Article 30(1) relates to the serving of enforcement notices on "persons" referred to in article 5(3) ( the "persons" being our elderly landlord in this example).
If the PHC fails to comply with an enforcement notice he then faces prosecution. Im not totally sure however if such action would also, by default, rope the poor RP (school) into hot water too!
This scenario is quite a teaser, but it's good to debate and quite important if we are to understand the complexities someties associated with identifying the RP, and any subsequent action that has to be taken.
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Do you reckon an alterations notice could be served on a landlord of a multi occupied business innovation centre, ie the landlord is the owner of the building but is not an employer?
In respect of the responsible person I have read and re-read articles 3,5, 29 and guidance note number 1 and am now absolutely convinced that the moon is made of blue cheese.
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Do you reckon an alterations notice could be served on a landlord of a multi occupied business innovation centre, ie the landlord is the owner of the building but is not an employer?
In respect of the responsible person I have read and re-read articles 3,5, 29 and guidance note number 1 and am now absolutely convinced that the moon is made of blue cheese.
I would think the landlord could be a PHC (Article 5(3)) it would depend on how much control he exercises and in what areas, it would most probably depend on the tenancy agreement. If he is a PHC then an alteration notice could be served as MR suggested.
I certainly do not trust the guidance note number 1 anymore but I do believe the moon is made of Edam not blue cheese. ???
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Do you reckon an alterations notice could be served on a landlord of a multi occupied business innovation centre, ie the landlord is the owner of the building but is not an employer?
In respect of the responsible person I have read and re-read articles 3,5, 29 and guidance note number 1 and am now absolutely convinced that the moon is made of blue cheese.
Actually chaps the moon is made of cheddar (Benz told me so)
In respect of issuing an alterations notice - that's a toughie!
Article 29 infers that alterations notices can only be served on the RP and not the array of people mentioned in article 5(3) as you can with an enforcement notice
This may lead to problems in a multi occupied building - particularly where certain measures need to be enforced upon the landlord. Thats said I think this scenario would rarely occur for several reasons, but I guess it could happen in some circumstances.
So it depends in what context you feel an alterations notice might be required Prof.
In my opinion the Fire Authority may use means other than an alterations notice to achieve the desired result and thus avoid the complexities associated with your scenario.
If the enforcing authority thought that a change in the use of the building for instance would put people at risk, it could I suppose issue a prohibition / restriction notice.
Just like an enforcement notice, the prohibition / restriction notice can be served on the array of people specified in article 5(3) (which of course includes our friendly landlord).
The notice could list what the building can or can not be used for.
For example the notice might read:
"The first floor may not be used for the following activities / purposes:-
a) sleeping accommodation
b) public enterainment
c) storage for flammable liquids
d) for industrial use including manufacture or repair of products
Or perhaps more simply the notice may just read
"The first floor may only be used for storage, and not for any other purpose or activity"
Its not ideal, but is perhaps the best option to deal with that scenario. After a Prohibition notice has been issued a steps notice has to be forwarded to the landlord or RP detailing what they need to do in order to lift the restriction or prohibition.
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As much as it hurts to do so I must agree with old Toddddy on this debate. If there is an employer he must be the responsible person for his workplace. Furthermore as an employer he has an absolute duty to ensure that the Order is complied with unlike other RPs who are not employers.
That is why Nearly there, it is important to establish who the RP person is as the duty imposed on them varies depending on whether they are or are not employers.
As far as an alterations notice goes it could only be served on the RP.
Now if the RP does everything reasonably practicable to comply with the alterations notice but is prevented from doing so due to the act or default of another person he would have a defence of due diligence and one would hope that an enforcing authority would identify that fact and proceed against the owner using article 32(10).
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As much as it hurts to do so I must agree with old Toddddy on this debate. If there is an employer he must be the responsible person for his workplace. Furthermore as an employer he has an absolute duty to ensure that the Order is complied with unlike other RPs who are not employers.
That is why Nearly there, it is important to establish who the RP person is as the duty imposed on them varies depending on whether they are or are not employers.
As far as an alterations notice goes it could only be served on the RP.
Now if the RP does everything reasonably practicable to comply with the alterations notice but is prevented from doing so due to the act or default of another person he would have a defence of due diligence and one would hope that an enforcing authority would identify that fact and proceed against the owner using article 32(10).
Why try to interpret the legislation? If you feel that you need to advise a client as to who is responsible then they should be referred to the appropriate legislation and if they find that difficult to understand also, they can take advice from a lawyer. It is nice to have answers to everything but incorrect legal advice is worse than non.
Maybe the English legislation is too vague on the mattter. The N.Irish seem to have made it clearer.
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Where is the incorrect legal advice that you refer to???
As fire safety professionals it is surely our job to interpret the legislation.
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As much as it hurts to do so I must agree with old Toddddy on this debate. If there is an employer he must be the responsible person for his workplace. Furthermore as an employer he has an absolute duty to ensure that the Order is complied with unlike other RPs who are not employers.
I too agree with Mr Todd and he used the term “Persons Having Control” (PHC) and not “other RP`s who are not employers”. As I see it there can only be one RP in a workplace as determined by Article 3(a) and article 30, 31, 32 refer to the others as “any other person mentioned in article 5(3)”. I am not trying to nit pick but I think it is important to make this point clear as I believe this is where a lot of the confusion lies.
Why does an employer have an absolute duty to ensure that the Order is complied as they are all subject to article 30, 31, 32 or is this to do with H&S?
Although I cannot envisage it, what would happen if the workplace is not to any extent under the control of the employer?
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Phil Welcome back old chap. I have seen you dozing in the corner a few times since last October and nearly tripped over you a few times on my way to the bar.
Is it not also the duty of HM Govt to produce guidance that is correct and fit for purpose- ie it guides rather than misinforms?
What do you think of the explanations of articles 3, 5 and 29 as presented in Guidance Note No 1?
To my eyes the "guidance" appears to contradict the articles?
I was relying on the Guidance interpretation until Mr Todd felt my collar. And now we have you and he agreeing with each other. Whatever next? At this rate I might understand one of Benz's postings, or maybe that would be a step too far.
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TW there can be many RPs who are employers in a workplace.
Take an old mill and subdivide it into business units, with common access and toilets etc.
Definition of a workplace includes access and egress routes therefore the common areas are parts of each individual employers' workplace.
Clearly more than one RP. But the Old Geezer who now owns the old mill and lets out the units (Private landlord not an employer) is only a "person having control". So the fire authority cannot serve an alterations notice on him to ensure he consults before leasing a unit to a fireworks manufacturer. And none of the RPs can control who he leases to.
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Why does an employer have an absolute duty to ensure that the Order is complied as they are all subject to article 30, 31, 32 or is this to do with H&S?
Although I cannot envisage it, what would happen if the workplace is not to any extent under the control of the employer?
The wording of article 5 makes the duty to comply absolute if the RP is an employer.
"5. —(1) Where the premises are a workplace, the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises.
(2) Where the premises are not a workplace, the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises, so far as the requirements relate to matters within his control."
This is so that we continue to comply with the European framework directive. Do you remember that the FP(Workplace) Regs 97 had to be amended in 99 because the 97 regs failed to place the absolute duty on the employer?
If the workplace is not to any extent under the control of the employer, then the employer is not the RP, but as you point out that situation is unlikely to arise.
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Is it not also the duty of HM Govt to produce guidance that is correct and fit for purpose- ie it guides rather than misinforms?
What do you think of the explanations of articles 3, 5 and 29 as presented in Guidance Note No 1?
To my eyes the "guidance" appears to contradict the articles?
Hi Kurnal
Yes I have been away from the forum for a while....busy beavering away in my own little world and then I bought a new computer and managed to lose my firenet password! It's an age thing, I trust Toddddy has been keeping everyone amused.
I agree it's not the best guidance but it does corrcetly explain those articles in my opinion. It just does so in a very long winded fashion. Where do you think it contradicts the Order?
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TW there can be many RPs who are employers in a workplace.
Take an old mill and subdivide it into business units, with common access and toilets etc.
Definition of a workplace includes access and egress routes therefore the common areas are parts of each individual employers' workplace.
Prof I can see what you are saying because of the common areas the whole premises is one workplace but the way I interpreted it was the workplace which each employer has control of is a separate workplace. I can see by your interpretation each employer (RP) is responsible for the area of the workplace he/she has control of and maybe this is why article 3 is worded as it is.
The wording of article 5 makes the duty to comply absolute if the RP is an employer.
Phil I now understand the RP does have absolute duty to comply as you has explained. As well as the RP the PHC only has to comply if he/she has some control of the premises and with matters that is within their control.
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But the Old Geezer who now owns the old mill and lets out the units (Private landlord not an employer) is only a "person having control". So the fire authority cannot serve an alterations notice on him to ensure he consults before leasing a unit to a fireworks manufacturer. And none of the RP`s can control who he leases to.
But why is the "person having control" not subject to article 29 like article 30, 31, 32. Looking at your example it would make sense if the PHC was. The nearest to solving that problem would be article 22(2) but as no RP has overall responsibility I reckon that’s a none starter as well.
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TW I am in the dark as much as you on this.
I thought I had a reasonable understanding of the situation but I started to doubt this having read Colins postings 13, 16 and 20 in this thread.
Colin appears to take the firm view that in the scenarios quoted the Owner is NOT an RP. He is just a person having control. I would very much like to understand the issues behind this.
Till then I thought that in this scenario all employers and the owner were classed as Responsible Persons. A view reinforced by my reading and re-reading of the Guidance Note No 1.
Now if we take Colins position to be correct in the scenario quoted, as the building contains a workplace and we have an employer in the building, nobody else but the employer will be a responsible person. The owner of the building will be a person having control.
But even allowing for the broadest description of a workplace as set out in the European directive, it seems to me that some parts of the building are not a workplace and that some parts of the common areas will be outside the control of some of the employers. Article 3 says:
Meaning of "responsible person"
3. In this Order "responsible person" means—
(a) in relation to a workplace, the employer, if the workplace is to any extent under his control;
(b) in relation to any premises not falling within paragraph (a)—
(i) the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business or other undertaking (for profit or not); or
(ii) the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking.
This is then clarified in the guidance note as follows:
35. Article 3(a) provides that in a workplace the employer is the responsible person if
the workplace is under the employer’s control. This reflects the Framework Directive
(89/391/EEC), which imposes unconditional obligations on employers by having the
ultimate responsibility for the safety of their employees in case of fire, even where
others have obligations in respect of the premises.
36. If the premises are not a workplace, or are a workplace but are not under the
employer’s control, the responsible person is determined by whether the person who
has control over the premises does so in connection with the carrying on of a trade,
business or undertaking (whether or not for profit ).
37. If so, article 3(b)(i) provides that the person with control is the responsible person.
That is my understanding. I think that the guidance note is correct and the owner is a responsible person.
Article 29 says:
29. —(1) The enforcing authority may serve on the responsible person a notice (in this Order referred to as "an alterations notice") if the authority is of the opinion that the premises—
(a) constitute a serious risk to relevant persons (whether due to the features of the premises, their use, any hazard present, or any other circumstances); or
(b) may constitute such a risk if a change is made to them or the use to which they are put.
Guidance note No 1 says:
Article 29 – Alterations notices
130. The purpose of an alterations notice is twofold. First, it is intended to assist enforcing
authorities in maintaining a risk-based inspection programme by highlighting potentially
high life-risk premises where risk levels may change and affect the outcomes of the fire
risk assessment. Secondly, it notifies the responsible person (and other persons who
have duties in respect of premises) that the enforcing authority considers the premises
to be of high or potentially high risk. This will affect those persons’ consideration of risk
in the premises.
Reading article 29 at its face value- the alterations notice is served on the responsible person. This seems to imply it cannot be served on a person having control, though the guidance note 1 para 130 seems to blur this a little by referring to other persons who have duties in respect of premises.
Sorry for banging on about this - I just want to understand it.
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Kurnal, Probably best not to worry your pretty head about it. The people responsible for the legislation in England never really understood what they were doing so why should you? Either live with the confusion or emigrate to Scotland, where the Scottish Govenrment had the benefit of a Scottish education and some wise individuals, even though one of them was not great at commas.
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Yes I must admit I was swotting up a bit on the Scottish Law in preparation for a job in Glasgow and was struck by how they can express so much so simply and yet so thoroughly.
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I agree that is a tad confusing but it would only cause a problem with the alterations notice scenario.
In the examples given in this debate you could prosecute or serve enforcement notices on the owner as a person who has to some extent control but you could not serve an alterations notice on him. Was this a mistake in the Order?? Should the enforcing authority be able to serve an alterations notice on any person who has to some extent control?? Possibly but is rarely likely to cause a problem.
Think of a shopping mall, in that situation there would be numerous workplaces and some of the workplaces will share certain routes and rely on certain preventive and protective measures along those routes.
Now the maintenance of the common parts will probabaly be the responsibility of the owner of the building and he would be the responsible person for the common parts, furthermore the owner would probabaly not be an individual but a body corporate so the body corporate would be the responsible person for the common parts.
But eventhough there is a RP responsible for the common parts, the RP for each individual shop is also the RP for the common parts that his employees use for access ane egress and has an absolute duty to comply with the Order even though other persons exercise a greater degree of control over those areas.
In that situation the guidance note correctly points out that the enforcing authority would need to consider who is the most appropriate person to take enforcement action against.
I was involved in serving an alterations notice in this situation and it was served on the management company.
And yes those chaps on the other side of the wall do usually write better legislation but that's because they often let us take the plunge first and then tidy it up a bit....but they do have some rather strange eating habits, think that swedes are turnips and have a dubious dress sense.
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Now the maintenance of the common parts will probably be the responsibility of the owner of the building and he would be the responsible person for the common parts, furthermore the owner would probably not be an individual but a body corporate so the body corporate would be the responsible person for the common parts.
Phil I believe you should use the definition “Responsible Person” in precise terms. In a workplace the Responsible Person is a designated position and it can only be the employer. The owner can be a person having control or you could call him a person responsible but not a Responsible Person. This is not nit picking because I believe this is where much of the confusion lies.
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TW do you not think that guidance note no 1 para 35,36,37 actually identifies the owner as a responsible person?
Para 35 says the employer is the responsible person if the workplace is under the employer’s control. In our old mill some parts of the building are not under the employers control. They are only under the landlords control. This may include business units not yet let to clients. The landlord does not employ anyone- he owns and manages it himself.
Para 36 and 37 say where the employer does not have control the responsible person will be determined by the person who has control. If the person who has control does so by way of trade or business (For profit or not) then tha tperson is the responsible person.
So my owner is a responsible person. (I certainly hope I am right- I have written and sold two policy and management documents to owners of historic mills constructed around that premise)
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Now the maintenance of the common parts will probably be the responsibility of the owner of the building and he would be the responsible person for the common parts, furthermore the owner would probably not be an individual but a body corporate so the body corporate would be the responsible person for the common parts.
Phil I believe you should use the definition “Responsible Person” in precise terms. In a workplace the Responsible Person is a designated position and it can only be the employer. The owner can be a person having control or you could call him a person responsible but not a Responsible Person. This is not nit picking because I believe this is where much of the confusion lies.
I am using the definition responsible person in precise terms TW. You are correct that in a workplace the employer will the responsible person. However in a multi-occupied building containing many different workplaces there may be many employers and many responsible persons.
There may also be a an owner who is responsible for the common parts and he will often be a responsible person in his own right rather than merely a person who has to some extent control. If the managing agent is an employer he will definately be a responsible person. So you see in a multi-occupied building there may be many responsible persons, however for each workplace there will be just one.
In the case of the office based in a house or a school with a person who has some control the situation is different because these are domestic premises and the order does not apply to dometic premises. Furthermore the occupier of the domestic premises is not an employer.
So you see that an owner can be a responsible person as is the case in Kurnals mill.
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There may be a an owner who is responsible for the common parts and he will often be a responsible person in his own right rather than merely a person who has to some extent control.
So you see that an owner can be a responsible person as is the case in Kurnal’s mill.
Phil I agree fully with all you said with some reservations regarding the above paragraphs. Assuming we are talking about a workplace then Art 3(a) applies and if you can make case that the owner is also an employer or if he employs a managing agent, then this makes him an employer then I would agree, if you cannot then he cannot be a RP. If you can make a case the common areas are not a workplace the Art 3(b) applies and the owner can be the responsible person in his own right.
In the case of Kurnal’s mill the commons areas are a workplace but you may be able to argue the owner runs the mill as a business undertaking and doesn’t employ anybody. Then he is self employed and employs himself, art 3(a) applies, nail him maybe?
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But as Kurnal points out an owner can be a responsible person without being an employer.
The difference is that a RP who is an employer has an absolute duty whereas an RP who is not does not have an absolute duty.
Now to be an employer there must be a contract of employment. A self-employed person could not be classed as an employer simply because he employs himself.
However a self-employed person may own and manage the common parts in a multi-occ building containing many workplaces. In that case he as the owner could be a responsible person but would not have an absolute duty imposed on him.
The common parts are also parts of all the other workplaces and the RPs of those workplaces (employers) have an absolute duty to ensure that all is ok in the common parts eventhough they may not have full control of those parts.
So in that case the enforcing authority will need to decide who to target their enforcement action to.
I don't see how you could ever make a case for the common areas not being workplaces.......they are a workplace if they form the access or egress routes to any other workplace.
Having said all of the above, a far more likely scenario would be that the common parts are also a workplace in their own right and there will be a need for the RP of the common parts to co-operate and co-ordinate with all the other RPs...like in a shopping mall for example.
I need to lie down now. ::)
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Happy New Year Phil!
You could argue that maintenance has to be carried out in the common areas. i.e. light bulbs have to be changed, redecoration, etc and thus if the landlord employed contractors to say change lightbulbs, do repairs, sevice the communal fire alarm / emergency lighting he infact becomes 'defacto' an employer and therefore an RP in his own right.
The RP for the common areas may or may not be the landlord (depending on the circumstances) I can sort of go with PHilB's argument about the communal areas being an extention of the workplace too/
The fact is that apart form an alterations notice all other notices can be served on a PHC let alone a RP which largely makes this argument academic.
Throw into the mix the provisions of article 32(2)(10) (The commisioning of an offence is done by a third party - which could be a PHC) I don't see that an RP who is an employer being hammered in the courts for the shortfalls of a Landlord who is a RP but doesn't employ anyone OR is simply a PHC
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But as Kurnal points out an owner can be a responsible person without being an employer.
The difference is that a RP who is an employer has an absolute duty whereas an RP who is not does not have an absolute duty.
I don't see how you could ever make a case for the common areas not being workplaces.......they are a workplace if they form the access or egress routes to any other workplace.
Sorry Phil I still do not agree with above first two paragraphs, if the premises is a workplace Art 3(a) applies and the person designated the “Responsibly Person” is the employer no other person is named. I also reiterate the “Responsible Person” is a designated person and not a description of a person.
If the premises is a non domestic premises and not a workplace then Art 3(b) applies. In this situation the owner could be designate the “Responsible Person” but I cannot think of a premises that would fit into this category.
The part of the second paragraph, indicated in bold, you are describing a person having control (PHC) but not a RP.
In the third paragraph I have never made that case and it is quite clear from the definition of a workplace that the common areas are part of the workplace, if employees have access.
I agree with most of what MR said and this argument may be academic but I consider it important because the person who is designated RP has an absolute duty to comply with articles 8 to 22 or by regulations made under article 24. A person having control (PHC) has only a duty to comply with the articles that he has control of.
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Sorry Phil I still do not agree with above first two paragraphs, if the premises is a workplace Art 3(a) applies and the person designated the “Responsibly Person” is the employer no other person is named. I also reiterate the “Responsible Person” is a designated person and not a description of a person.
If the premises is a non domestic premises and not a workplace then Art 3(b) applies. In this situation the owner could be designate the “Responsible Person” but I cannot think of a premises that would fit into this category.
The part of the second paragraph, indicated in bold, you are describing a person having control (PHC) but not a RP.
In the third paragraph I have never made that case and it is quite clear from the definition of a workplace that the common areas are part of the workplace, if employees have access.
TW yes if the premises is a workplace there will be a responsible person for that premises and he must be the employer. However in multi-occ buildings premises and workplaces overlap and there may be several RPs for the common parts and one of them could be the owner.
You appear to be are saying that there can only ever be one RP for one workplace. Because definition of workplace includes the routes to and from it...there will often be places where workplaces overlap and so do responsibilities, the best example I can think of is a shopping mall.
The part of the second paragraph, indicated in bold, I am describing a RP, not a PHC. As you correctly point out It is only RPs who are employers that have an absolute duty RPs who are not employers only have to comply so far as the requirements relate to matters within his control. Article 5 is quite clear on this.
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Sorry Phil I still do not agree with above first two paragraphs, if the premises is a workplace Art 3(a) applies and the person designated the “Responsibly Person” is the employer no other person is named. I also reiterate the “Responsible Person” is a designated person and not a description of a person.
If the premises is a non domestic premises and not a workplace then Art 3(b) applies. In this situation the owner could be designate the “Responsible Person” but I cannot think of a premises that would fit into this category.
The part of the second paragraph, indicated in bold, you are describing a person having control (PHC) but not a RP.
In the third paragraph I have never made that case and it is quite clear from the definition of a workplace that the common areas are part of the workplace, if employees have access.
TW yes if the premises is a workplace there will be a responsible person for that premises and he must be the employer. However in multi-occ buildings premises and workplaces overlap and there may be several RPs for the common parts and one of them could be the owner.
You appear to be are saying that there can only ever be one RP for one workplace. Because definition of workplace includes the routes to and from it...there will often be places where workplaces overlap and so do responsibilities, the best example I can think of is a shopping mall.
The part of the second paragraph, indicated in bold, I am describing a RP, not a PHC. As you correctly point out It is only RPs who are employers that have an absolute duty RPs who are not employers only have to comply so far as the requirements relate to matters within his control. Article 5 is quite clear on this.
Following this discussion the issue of RPs of common areas is not clear. To what level of responsibility is an employer using a common escape route responsible? He can't be responsible for its protection other than from his premises. He can't be responsible for the safety lighting, fire alarm points or FFFE therein because it is not his. Surely, his only reasonable responsibility is to ensure that nothing he does adversly affects the fire safety of persons in his and other occupancies?
He is responsible for the safety of his employees from fire and if someone else is compromising that he has a responsibility to report the matter to the F&R Service.
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I disagree Nearlythere, he has an absolute duty to ensure the common parts are in compliance eventhough he may not exercise much control over them. The situation was exactly the same with the WP Regs and FPA circular 28 explained it quite well.
It pointed out that it may seem a bit harsh making the employer responsible for matters over which he had little control. It went onto explain that if the employer does everthing in his power to make sure that it is ok he would have e defence of due diligence and enforcing authorities would be expected to direct their enforcement efforts towards another person.
It's worth a read as it would clear up most of the points in this debate. It is unfortunate that Guidance Note No.1 does not explain it so well.
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To put this into some kind of context:
An old factory building has been modernised internally and carved up into little units which are rented to several businesses. Means of escape from each unit is via a communal route and numerous final exit doors.
Each unit is occupied by "an employer" for the sake of the argument, and they are therefore RPs.
The landlord locks the final exit doors for security reasons. None of the RPs has access to the key, and the landlord refuses to unlock them. What do the RPs do next?
Some would argue there is nothing they can do because the landlords actions are out of their control. But in the eyes of the law its not that simple.
There are other things the RP's could do (or atleast try).
Should the RPs go round and see the landlord straight away demanding he re-opens the exits?, do the RPs write to the landlord asking him not to lock the exits? do the RPs withold their rent until the situation is resolved, shuld they call in a fire inspector?, do they decide the means of escape is compromised to such an extent that they need to send their workforce home? Do they instigate watching briefs as atemporary measure? I don't know!
What I'm trying to point out is that the RP has to do everything reasonably practicable to resolve the situation. Them simply shrugging and saying " it's out of our hands" isn't enough there are still things that can be done to try and mitigate the problem.
I once again point out that a "PHC" can be issued with notices (apart from Alteration Notice) and remember article 32(2)(10)
Because of this it is unlikely that "innocent" RPs(as in our scenario above) would get action taken against them because of the actions of others such as the naughty landlord locking fire exits.
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To put this into some kind of context:
An old factory building has been modernised internally and carved up into little units which are rented to several businesses. Means of escape from each unit is via a communal route and numerous final exit doors.
Each unit is occupied by "an employer" for the sake of the argument, and they are therefore RPs.
The landlord locks the final exit doors for security reasons. None of the RPs has access to the key, and the landlord refuses to unlock them. What do the RPs do next?
Some would argue there is nothing they can do because the landlords actions are out of their control. But in the eyes of the law its not that simple.
There are other things the RP's could do (or atleast try).
Should the RPs go round and see the landlord straight away demanding he re-opens the exits?, do the RPs write to the landlord asking him not to lock the exits? do the RPs withold their rent until the situation is resolved, shuld they call in a fire inspector?, do they decide the means of escape is compromised to such an extent that they need to send their workforce home? Do they instigate watching briefs as atemporary measure? I don't know!
What I'm trying to point out is that the RP has to do everything reasonably practicable to resolve the situation. Them simply shrugging and saying " it's out of our hands" isn't enough there are still things that can be done to try and mitigate the problem.
I once again point out that a "PHC" can be issued with notices (apart from Alteration Notice) and remember article 32(2)(10)
Because of this it is unlikely that "innocent" RPs(as in our scenario above) would get action taken against them because of the actions of others such as the naughty landlord locking fire exits.
The only course of action which will probably definitely protect his workforce is to send them home. He can report it to the EA but he has no control over what it will do and when. Speaking or writing to the landlord does not necesarily get the doors open. Breaking the door open would be a criminal offence.
Is it reasonable to expect him to send the workforce home? No, but he is responsible for their safety and at the end of the day, probably would have no option.
Realistically though he will report the matter to the EA and carry on working regardless.
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TW yes if the premises is a workplace there will be a responsible person for that premises and he must be the employer. However in multi-occ buildings premises and workplaces overlap and there may be several RP`s for the common parts and one of them could be the owner.
You appear to be are saying that there can only ever be one RP for one workplace. Because definition of workplace includes the routes to and from it...there will often be places where workplaces overlap and so do responsibilities, the best example I can think of is a shopping mall.
The part of the second paragraph, indicated in bold, I am describing a RP, not a PHC. As you correctly point out It is only RP`s who are employers that have an absolute duty RP`s who are not employers only have to comply so far as the requirements relate to matters within his control. Article 5 is quite clear on this.
Phil I will deal with each paragraph in turn.
Para one. I agree with all of it except the last statement, what article defines the owner as a RP assuming he is not an employer as well?
Para two. I am not saying that there can only ever be one RP for one workplace I agree with you there can be many RP`s in a multi-Occupied premises. Art 3(a) the employer is the RP if he has to some extent control and as he is able to comply with most of the relevant articles (8 – 22 & regulations under 24) then he has control and is therefore the RP for his occupancy. However he has no control of other occupancies so he cannot be the RP and the employer of the each occupancy is the RP of that occupancy.
Para three. I disagree, art 5(3) places a duty on every person, other than the responsible person to comply with all articles as far as the requirements relate to matters within their control and in my opinion the owner is one of those other persons which I abbreviate to PHC.
Phil I don’t think we will ever agree on this sticking point “in a workplace can an owner be a responsible person” because I believe you see the term “responsible person” as a descriptive term I see it as a definitive term so can we agree to disagree.
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HI TW, I will also deal with each paragraph in turn
Para one.
I can see where you’re coming from and I agree but the situation is never in reality going to occur.
The owner of a multi-occ building will be in control in connection with the carrying on of a business and as such he is covered by article 3(b)(i). So therefore he is the owner and the occupier. He also most likely to employ people and so is also an employer.
So as I stated earlier in multi-occ buildings premises and workplaces overlap and there may be several RP`s for the common parts and one of them could be the owner……...who is also the occupier….and probably an employer as well.
Para two.
I agree that in a multi-occupied building the RP of one workplace will probably have little or no control of the other occupancies. However if all the occupancies use the common parts for access or egress those common parts become part of each RPs workplace and RPs who are employers must ensure that the common areas comply even though they do not exercise full control. They are of course exercising some control by using them as a workplace.
Para three.
Yes 5(3) places a duty on every person other than the RP but only so far as the requirements relate to matters within their control.
However 5(1) places a far greater duty on RPs who are employers. They have an absolute duty to ensure compliance if the workplace is to any extent under their control……..even if some other gadgy….(be they the owner/occupier/ or other RP) has more control.
TW I see the term “Responsible person” as a legal term defined by article 3.
In theory in a multi-occupied workplace if an owner did not occupy the building……and was not carrying on a trade, business or other undertaking…….he could be considered to the RP. However in the real world he is likely to be owner, occupier and carrying on a business and so it doesn’t really matter.
What does matter is whether or not he is an employer as well because if he is, he has an absolute duty to comply.
Where the term 'owner' is more likely to be of use is in empty or derelict buildings. Previously no enforcement action could be taken as previous fire safety law dealt with the use of premises or the safety of employees. Now thankfully it deals with the safety of relevant persons so owners of empty buildings must consider the safety of persons in the vicinity.
Right shall we discuss the term ‘vicinity’ now??? ::)
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Right shall we discuss the term ‘vicinity’ now??? ::)
No thank you Phil, I promise you I am lying prostrate on the floor hitting the floor with the palms of my hands and screaming Uncle! And me brain hurts to. ???
One last fling, when I reading the above posting and you mentioned art 3(b) which to my understanding only applies if the premises is not a workplace and if that is the case what are these premises. I have considered this before and could not think which category of premises would apply until you mentioned empty (unoccupied) or derelict buildings. They are not domestic premises so the order applies; they are not a workplace so art 3(b) applies, which means the Person Having Control or the Owner is the Responsible Person.
In the case of Kurnal’s Mill the old geezer is the only person who has control of the unoccupied units and as the owner, carrying out a trade or business is he not the Responsible Person according to art 3(b)(ii).
Does this stack up?
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It does TW you have got it in one! ;)
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TW I disagree.
The empty units are unoccupied workplaces. There is no employer there. The only person with control is the old geezer who owns the place.
Guidance Note 1 para 36
"If the premises are not a workplace, or are a workplace but are not under the
employer’s control, the responsible person is determined by whether the person who
has control over the premises does so in connection with the carrying on of a trade,
business or undertaking (whether or not for profit )."
The old geezer has control over the premises, he is not an employer but operates it as a business.
"37. If so, article 3(b)(i) provides that the person with control is the responsible person."
The old geezer has control and is therefore the responsible person for the unoccupied units.
Ive not had so much fun in a long time. ;D
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Yes I must agree with Kurnal. ;)
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The old geezer has control and is therefore the responsible person for the unoccupied units.
Prof I agree fully with your conclusion although we may have arrived at by different routes and please let’s agree to disagree on the routes.
Clearly more than one RP. But the Old Geezer who now owns the old mill and lets out the units (Private landlord not an employer) is only a "person having control". So the fire authority cannot serve an alterations notice on him to ensure he consults before leasing a unit to a fireworks manufacturer. And none of the RP`s can control who he leases to.
Now you agree the old geezer is the RP therefore he is subject to art 29, 30, 31, 32 and you can serve an alteration notice to prevent that nasty fireworks manufacturer taking residence? This has worried me from the beginning.
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Blast I misread your earlier post TW and endorsed it by mistake (well thats my excuse anyway!!)
In the scenario you give you are correct in saying that the owner is the RP and in that particular instance would be subject to articles 29 to 31
He would be subject to article 32 anyway, even if he was just a PHC.
In Kurnals scenario however the RP was not the old chap who owned the school and we wouldnt have been able to subject him to Art 29. That is when I suggested that there would be 'ways around' this by use of a prohibition / restriction notice.
The wording in 3(b)(i)and (ii) can be interpreted that the "carrying on of a trade, busines or other undertaking " needs to apply before an owner or PHC will be identified as an RP.
Just what does that actually mean?
Is an unoccupied premises an "Undertaking" necessarily? If it's empty is anyone at risk?...
Im off to lay in a darkened room.
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The wording in 3(b)(i)and (ii) can be interpreted that the "carrying on of a trade, business or other undertaking " needs to apply before an owner or PHC will be identified as an RP.
Just what does that actually mean?
Are unoccupied premises an "Undertaking" necessarily? If it's empty is anyone at risk?
I would suggest if an owner or PHC has an unoccupied premises the purpose would be to rent or sell it, would that not be a business or undertaking?
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I dont think the RRO applies to an empty building where no one is employed or no undertaking takes place Retty
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I dont think the RRO applies to an empty building where no one is employed or no undertaking takes place Retty
Yes it does Cleveland, where does it say that the Order does not apply?? Unless the building is on a desert island there are likely to relevant persons in the vicinity and the RP must ensure that the Order is complied with.
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I disagree. Wording of the order states "Undertaking". Define an undertaking sonny Jim. If it isnt an undertaking the RRO cant apply. Besides the building might be in the middle of nowhere within a secured compound and therefore wouldnt affect any nearby relevant persons.
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We've done empty premises FRAs before - although not tenanted the agent has staff do regular internal inspections (relevant persons) and they are often located where they could have an effect on adjacent premises.
Cheap & quick to do they focus a lot on security & arson and associated aspects
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I disagree. Wording of the order states "Undertaking". Define an undertaking sonny Jim. If it isnt an undertaking the RRO cant apply. Besides the building might be in the middle of nowhere within a secured compound and therefore wouldnt affect any nearby relevant persons.
Once again you're confused Cleaveland...never mind..you really should attend a decent training course. Don't let that Toddddy blokey try to sell you one.... Let me try to help you.
Undertaking is mentioned in article 3 when defining who the responsible person is in various types of premises.
....."Meaning of “responsible person”
3. In this Order “responsible person” means—
(a) in relation to a workplace, the employer, if the workplace is to any extent under his
control;
(b) in relation to any premises not falling within paragraph (a)—
(i) the person who has control of the premises (as occupier or otherwise) in connection
with the carrying on by him of a trade, business or other undertaking (for profit or
not); or
(ii) the owner, where the person in control of the premises does not have control in
connection with the carrying on by that person of a trade, business or other
undertaking.
Please read 3(b)(ii) carefully, it cleary contradicts what you are saying....if there is no trade or business or other undertaking the owner is the RP....and the order does apply.
Now to find out which premises the order applies to you need to read article 6 (are you staying awake Cleveland???)
Article 6 lists the premises that the Order does not apply to. You will note that it does not mention empty premises in that list. Now read very carefully the last sentence in article 6
"(2) Subject to the preceding paragraph of this article, this Order applies in relation to any premises."
Note the words "any premises" Cleveland...that includes empty premises.
...and if you look at the definition of 'premises' you will see that it includes any place and makes no mention of undertakings.
Do we understand now Sunny Jim?
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I've surveys lots of empty buildings where there was no risk assessment. Often the bloke showing me around has advised no one works here. Their argument falls apart when they realise that both him and I are working there as he tells me this.
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Nah diagree. A clever barrister would soon argue that a guy showing you areound an empty building doesn't constiute a permanent workplace and as such doesn't warrant any precautions.
Phillllllll an eloquent argument well put, but I dont think that would stand up in a court of law personally. Its all down to interpretation. And by your argument even an empty building on a desert island would be subject to the RRO
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Nah diagree. A clever barrister would soon argue that a guy showing you areound an empty building doesn't constiute a permanent workplace and as such doesn't warrant any precautions.
Phillllllll an eloquent argument well put, but I dont think that would stand up in a court of law personally. Its all down to interpretation. And by your argument even an empty building on a desert island would be subject to the RRO
Well Cleveland I'm afraid we must agree to differ. But it is not as you say "down to interpretation" it is a matter of fact where the order does and does not apply to. The statute is quite clear and sets this out in article 6. Please explain to me where it states that the order does not apply to empty buildings.
Have you attended a training course on the order or are you self taught by any chance?
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Cleveland
The RRO only applies to England and Wales. If you can show me a desert island in E&W then I will show my posterior in Tescos.
The order does apply to an empty building (subject to article 6) in a remote setting in England and Wales but of course as there are no relevant persons at risk of fire the "prescribed information" would not need to be recorded and the General Fire Precautions would be very modest indeed as these are only provided to safeguard relevant persons.
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Clevelandfire
I think you have misunderstood my original statement (or perhaps I didn't explain myself very well). I wasnt stating that the RRO didn't apply to empty buildings, I merely asked what an "undertaking" was. I know what an undertaking is, but in legal terms what does it mean. Whats the 'official' definition of an "undertaking".
Prof K
I hear you expose your posterior regularly in Tescos, especially whilst bending down to pick up a tin of baked beans from the bottom shelf
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Dunno Retty. Undertakings are done by undertakers surely?