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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: Mushy on September 10, 2008, 09:39:21 AM
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have I got this right?
When you carry out your FRA, you are then representing the responsible person...as if the responsible person has done the FRA themselves?
and when the Fire Authority check the findings it is the responsible person that is accountable?
What happens then if you do a FRA and the responsible person does not agree with aspects within it....ok I understand that you would discuss it with them and try and sort it out but what if in the final analysis, the RP still doesn't agree with the findings?
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Good question Mushy,
In my opinion the name of RP should be recorded in any FRA either as a named individual or a corporate body (see Article 32 (8) and (9) of the RSFSO though)
Yes the FRA is done on behalf of the RP but they will always remain responsible for the outcomes/findings.
We have on many occasions arrived at findings that the RP does not agree with usually when there are cost implications such as training, fire alarm and emergency lighting systems requirements etc. However the FRA can not pull any punches by watering down guidance and accepted practices to suit the client’s needs. Without going in to all the detail we have done 2 FRA’s for a client in what is termed as “assisted living” where the FRA’s ultimate conclusions were to reinstate 24 hour wardens or install a residential sprinkler system (the later costing 10k in each property) as a result both “homes” had to close.
If you conduct your FRA’s based on the risks presented and use your professional judgment and current guidance to arrive at the findings, when they are presented to the client they should not be changed just because they don’t like it. Having said that the FRA should provide the client with a range of cost effective solutions to address any deficiencies with appropriate time scales for completion.
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In my opinion the name of RP should be recorded in any FRA either as a named individual or a corporate body (see Article 32 (8) and (9) of the RSFSO though)
If you conduct your FRA’s based on the risks presented and use your professional judgment and current guidance to arrive at the findings, when they are presented to the client they should not be changed just because they don’t like it. Having said that the FRA should provide the client with a range of cost effective solutions to address any deficiencies with appropriate time scales for completion.
Totally agree with you William about the RP being recorded.
I had a client sometime ago who argued against two of our recommendations. One was to upgrade very old doors to flats with fire doors and the other was to install an alarm system in the common areas (because of the area and physical evidence of a previous arson attempt by kids!!) He didnt want it in the assessment, we tried to reason with him and finally succeded. One week later after we had finalised things there was a fire in the common area!
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Yes I agree the RP should be recorded. If you are carrying out a risk assessment as a competent person then you should put everything in. It is up to the RP to make the decisions on wht will or will not be done and up to the RP to justify those decisions. If you leave something out because of pressure from the RP, the brown smelly stuff will land on you if it goes wrong.
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The RP has accountability responsibilty and the money. The risk assessor as a competent person does not. Write the FRA with the outcomes you decide and let the RP make decisions to the wya they want to go.
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If the RP does not act on your significant findings in the FRA or show that they are doing all that is that is reasonably practical then any enforcement that is required will be served on them and not you.
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It just seems a bit strange that a notice could be served on a RP because they are not acting on something that is in their own FRA!
I would like to see them explain that away in court
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Article 34 states that the RP has the onus of responsibilty to ALARP. They have the choice once a series of outcomes have been explained to them in an FRA to do or not to do. Time trouble inconvienience versus cost.
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Article 34 states that the RP has the onus of responsibilty to ALARP. They have the choice once a series of outcomes have been explained to them in an FRA to do or not to do. Time trouble inconvienience versus cost.
Just another angle on the subject as I am coming across this more often. RP gets the FRA done and then gets audited by the local fire safety officer who tells the RP that certain aspects of the FRA are over the top and a lesser standard will do.
I'll give you a specific example to explain. FRA done in a shop/warehouse open to the public with an enclosed mezzanine floor above with limited vision in to the warehouse below which is used as offices (single direction of escape in to the warehouse then 2 directions of travel, neither within 3m of the foot of the stair) The mezz floor never went through buildings regs and the current occupier inherited this current situation.
Basically (amongst other items) the FRA recommends a BS 5839 Part 1 L5(M) fire alarm system to compensate and also emergency lighting to cover the escape routes in the warehouse.
FSO reads the FRA and says to the client that gongs will be ok as a fire alarm and torches for emergency lighting.
In a fire situation where someone got injured or worse, where would the responsibilities lie?
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Article 34 states that the RP has the onus of responsibilty to ALARP. They have the choice once a series of outcomes have been explained to them in an FRA to do or not to do. Time trouble inconvienience versus cost.
Just another angle on the subject as I am coming across this more often. RP gets the FRA done and then gets audited by the local fire safety officer who tells the RP that certain aspects of the FRA are over the top and a lesser standard will do.
I'll give you a specific example to explain. FRA done in a shop/warehouse open to the public with an enclosed mezzanine floor above with limited vision in to the warehouse below which is used as offices (single direction of escape in to the warehouse then 2 directions of travel, neither within 3m of the foot of the stair) The mezz floor never went through buildings regs and the current occupier inherited this current situation.
Basically (amongst other items) the FRA recommends a BS 5839 Part 1 L5(M) fire alarm system to compensate and also emergency lighting to cover the escape routes in the warehouse.
FSO reads the FRA and says to the client that gongs will be ok as a fire alarm and torches for emergency lighting.
In a fire situation where someone got injured or worse, where would the responsibilities lie?
The FSO is not there to make recommendations. He is there to ascertain if the FRA is suitable and sufficient. As long as he can take from the Risk Assessor that a minimum standard has been or will be achieved then he should make no comment.
To do so could be seen as potentially a conflict of interest. Why?
RAr carries out a FRA and advises that a certain level of detection is required.
FSO (who is retiring in 6 months) audits the FRA and advises the RP that a lesser and thus cheaper level would be adequate.
RP likes FSO as he has saved him money and advises his business friends not to use RAr as he over the top but to use FSO (in 6 months time) cos he will save you lots of money.
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I agree with you nearlythere but FSO’s do and are making recommendations when auditing FRA’s either below or above what the FRA states and in a lot of cases they are enforcing it as well.
Some notices are quite clever in the wording in that it does not state that the FRA is not suitable and sufficient under article 9 but will state phrase like “fire detection system is inadequate” and refer to Article 13(1)(a) & 13(2)
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I agree with you nearlythere but FSO’s do and are making recommendations when auditing FRA’s either below or above what the FRA states and in a lot of cases they are enforcing it as well.
Some notices are quite clever in the wording in that it does not state that the FRA is not suitable and sufficient under article 9 but will state phrase like “fire detection system is inadequate” and refer to Article 13(1)(a) & 13(2)
I don't think that there as a big an issue with a FSO making recommendations if higher standards than that assessed by the RP is needed. After all he is auditing the measures. Sometimes a tactful advisory approach to cut out the formalities where a certain minimum standard is required can work much best but only where there is no FRA nor safety measures already in place. But to try and discredit the RAr by suggesting that a lesser standard would do or have done is not very professional.
Surely William a lesser degree of an existing measure is not enforced or have I picked you up wrong?
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I agree with you nearlythere but FSO’s do and are making recommendations when auditing FRA’s either below or above what the FRA states and in a lot of cases they are enforcing it as well.
Some notices are quite clever in the wording in that it does not state that the FRA is not suitable and sufficient under article 9 but will state phrase like “fire detection system is inadequate” and refer to Article 13(1)(a) & 13(2)
I don't think that there as a big an issue with a FSO making recommendations if higher standards than that assessed by the RP is needed. After all he is auditing the measures. Sometimes a tactful advisory approach to cut out the formalities where a certain minimum standard is required can work much best but only where there is no FRA nor safety measures already in place. But to try and discredit the RAr by suggesting that a lesser standard would do or have done is not very professional.
Surely William a lesser degree of an existing measure is not enforced or have I picked you up wrong?
Yes you are right I have never seen a lesser standard enforced I just advise the RP in those cases to get the recommendations from the FSO in writting.
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have I got this right?
When you carry out your FRA, you are then representing the responsible person...as if the responsible person has done the FRA themselves?
and when the Fire Authority check the findings it is the responsible person that is accountable?
What happens then if you do a FRA and the responsible person does not agree with aspects within it....ok I understand that you would discuss it with them and try and sort it out but what if in the final analysis, the RP still doesn't agree with the findings?
Not strictly correct, they are both still accountable.
Let's say for example a company employs a RAr to carry out their FRA, the RAr does a bad job and there is subsequently a fire in the premises.
And, lets say the FRS carry out an after fire inspection and find that the FRA was wholley inadequate and was directly related to the cause and development of the fire. If the RP could show due dilligence in the fact that they had implemented the recommendations of the FRA. but had no knowledge it was inadequate. Then the RAr could find himself in court. as he could be considered the RP to the extent that he had control over the premise.
The RP is defined as;
Article 5
(3) Any duty imposed by articles 8 to 22 or by regulations made under article 24 on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person referred to in paragraphs (1) and (2), who has, to any extent, control of those premises so far as the requirements relate to matters within his control.
it also clarifies this in the enforcers guide in paragraph 38.
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Also bear in mind that the RP has to employ a competent person to assist him. So the RP would have to show that he taken reasonable steps to ensure that the RAr is competent.
If the RAr has done a bad job and is an outside contractor then the RP would have a case for suing for negilence.
I see (3) as covering the circumstances where there is a firm which has a number of premises. The MD (CEO whatever) is the RP and is responsible however the general manager of a site can also be held responsible for the site he has control of. So for example the fire exits in a shop which is part of a chain are obstructed, the MD of the chain is responsible as he is the RP for the chain, however the general manager of the particular shop is also responsible as he has control over that store.
Take it further a FRA is carried out on the store which recommends that a new fire alarm system is installed. If the general manager applies for funding to install the system and the MD of the chain refuses it then it falls on the MD. If the general manager decides not to install a new system then he will be held responsible, but there will still be some fallout on the MD.
One of the other threads in this forum was going on about the increase in prosecutions under the RRO over the FPA and an article quoted in the thread had the comment that one of the reasons why there were more prosecutions was that the person who was responsible was now clearly identifiable which was not the case under the FPA.
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The person nominated to assist only needs to assist with the preventative and protective measures. Surely you cannot know what these are until the risk assessment has been done, therefore the appointment of a competent person could potentially come after the risk assessment.
There seems to be a swing towards always having the CEO/MD/Topdog as the name on the enforcement notice, with a copy going to the local manager. They (CEO/MD) have the utmost responsiblity, and in some respects the manager can just be classed as the person nominated to assist in undertaking the measures. Any person can be prosecuted for a failure, but to take someone to court as the RP, (The offences would have to be decided before the court case and would generally be under 32(1) for the RP or 32(10) for anyone else) if the defence can prove that the manager you have hauled in, claiming an offence under article 32(1), is not the RP then your case has fallen at the first hurdle.
(11) Nothing in this Order operates so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of—
(a) an employee of his; or
(b) a person nominated under articles 13(3)(b) or 15(1)(b) or appointed under 18(1).
This says to me that they (The employer) cannot pass the blame and get out of it.
(You can't sit at the very top of a company saying you have no control over your workplaces.)
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This says to me that they (The employer) cannot pass the blame and get out of it.
(You can't sit at the very top of a company saying you have no control over your workplaces.)
Totally agree. having been in the Health and Safety Industry for 10 yrs for a major international manufacturing company (could tell you but i'd have to shoot you?) and now moved into the fire industry my view is that any employee is prosectable however I always name the CEO / MD and the store / branch manager on FRA's. They are both equally culpable in law as far as i am concerned. It would be up to the branch manager to prove that he had requested funds etc to carry out improvements to systems, training etc. Obviously where exits where obstructed etc that that would be down to the branch manager? I used to encourage all managers to keep all emails, delivery reports etc - as I used to!!!!!
Thats my view on returning from the pub!!!!
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This says to me that they (The employer) cannot pass the blame and get out of it.
(You can't sit at the very top of a company saying you have no control over your workplaces.)
Totally agree. having been in the Health and Safety Industry for 10 yrs for a major international manufacturing company (could tell you but i'd have to shoot you?) and now moved into the fire industry my view is that any employee is prosectable however I always name the CEO / MD and the store / branch manager on FRA's. They are both equally culpable in law as far as i am concerned. It would be up to the branch manager to prove that he had requested funds etc to carry out improvements to systems, training etc. Obviously where exits where obstructed etc that that would be down to the branch manager? I used to encourage all managers to keep all emails, delivery reports etc - as I used to!!!!!
Thats my view on returning from the pub!!!!
It doesn't really matter who the Risk Assessor sees as the RP be he the MD/CEO/Manager/Supervisor etc. If there is someone to prosecute the F&R Service will examine the role and responsibility of each and decide who the RP is, was or should have been. It is then up to the court to agree or otherwise.
You cannot expect the CEO or the MD to be responsible for the wedging open of a fire door as they are not responsible for the day to day running of a premises or branch of the organisation. The store manager/supervisor is.
However if it can be shown, e.g. that the CEO or MD knew that fire doors were being wedged open throughout all the branches and did nothing about it he then shares responsibility.
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You cannot expect the CEO or the MD to be responsible for the wedging open of a fire door as they are not responsible for the day to day running of a premises or branch of the organisation. The store manager/supervisor is.
The person responsible for the wedging of the door is really the person who put the wedge in. But that can be blamed on training, for which you would look at the manager... Then you might want to consider the managers competence, which would mean the CEO/MD hasn't appointed a competent person to assist him/her. The blame can still land firmly at their feet.
Look at it from the courts perspective. We are prosecuting under article 32 saying the RP has failed in his duties. The RP is clearly stated primarily as the employer. First question to the defendant... "Are you the employer?"... Manager: "No." "So you are not the RP, can we go home now?"
(Although, for what its worth, a barrister pointed out that if the manager has the power to hire and fire then he does actually employ people, and could be construed as the RP. Regardless of this, the general consensus seems to be that we should be naming the top person each time.)
Lets be reasonable though, a wedged fire door is never going to lead to a prosecution. It will either be kicked out, thrown away, and advice given. Or if the inspector is keen enough the training given to staff will be questioned thoroughly. A prosecution is going be due to a catalogue of failures or a non complaince with an enforcement notice. And if I issue an enforcement notice it is going in the name of the CEO/MD with a copy going to the local manager.
Another opinion of the barrister here was that if we send an enforcement notice in the name of Joe Bloggs, if he is not the RP he should appeal the notice, as by not appealing the notice he is accepting the contents of the notice which firmly name him as the RP. (Barristers opinion, not mine, but I wouldn't want to stand in a courtroom arguing any point at all with him.)
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The FSO is not there to make recommendations. He is there to ascertain if the FRA is suitable and sufficient. As long as he can take from the Risk Assessor that a minimum standard has been or will be achieved then he should make no comment.
To do so could be seen as potentially a conflict of interest. Why?
RAr carries out a FRA and advises that a certain level of detection is required.
FSO (who is retiring in 6 months) audits the FRA and advises the RP that a lesser and thus cheaper level would be adequate.
RP likes FSO as he has saved him money and advises his business friends not to use RAr as he over the top but to use FSO (in 6 months time) cos he will save you lots of money.
Sorry nearly there you’re mistaken. We are required under the fire services act to offer guidance and advice when and if requested, so we can make recommendations or offer alternative solutions in relation to any recommendations made within the FRA or even an enforcement notice. What we cannot do is specify a particular solution. They can then choose to take our advice or recommendations, or choose to take on another equally suitable option.
I have come across a number of FRA's that have made recommendations for fire alarms and other equipment way over what would be required, when I ask who is installing the equipment? Surprise! Surprise! It’s the company who carried out the FRA. This, in my opinion, is clearly a money making initiative.
Now I’m not saying all you Risk Assessors out there are unscrupulous, but there are some, and, there are some who just ask for bells and whistles to protect themselves from any comeback, regardless of the financial cost to the RP.
If I see a FRA and it’s recommendations are over the top or too onerous financially on a company then I feel I have a duty to offer them my professional opinion and advise them of any alternative solutions available to them.
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Well put Terry
Recently much debate took place wthin our brigade about how we approach audits / inspections.
One proposal was that we would issue inspection reports informing the RP of which articles they had failed under as normal.
For example:
"Article 13 - Failure to ensure that the premises are to the extent that is appropriate equipped with a suitable fire warning and detection system"
Then we debated whether or not we should offer advice or a best practice solutions in our reports - particularly as some people felt that the fire authority should simply audit the FRA and GFPs and not offer such guidance or prefered solutions.
Therefore it was proposed we would only state something like:
Solution: Fit a suitable fire warning and detection system.
We all rejected this citing it as being extremely unhelpful and not in the spirit of the fire authority's remit to give advice as and when required.
Yet some people have suggested that we shouldn't even give best practice solutions such as :-
Best Practice solution: The premises should be equipped to a fire alarm and detectuion system to BS 5839 Part 1 L2 standard
Why shouldn't the fire authority offer a best practice solution? so long as it also points out that the RP is free to choose an alternative solution to achieve the same standard is there really a problem? Is the fire authority being prescriptive?
As Terry states we are duty bound to give advice where appropriate, and we shouldn't be afraid of doing so.
It could be argued that if the RP has over subscribed the precautions required then fire inspectors shouldn't make comment simply about the fire precautions being over and above the minimum standard required. But exactly for the reasons Terry suggests I think we should if and when appropriate.
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Steady on MR, you'll get kicked out of the retirement home if you start showing sense!
Other I/Os please note!
davo
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MR, that's very similar to the way the HSE (Offshore Division) operated, in my experience anyways.
They would identify the particular breach, then give objectives to be met, guidance to be considered in order to achieve the objectives etc etc, in order to comply. Worked well in most cases.
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The FSO is not there to make recommendations. He is there to ascertain if the FRA is suitable and sufficient. As long as he can take from the Risk Assessor that a minimum standard has been or will be achieved then he should make no comment.
To do so could be seen as potentially a conflict of interest. Why?
RAr carries out a FRA and advises that a certain level of detection is required.
FSO (who is retiring in 6 months) audits the FRA and advises the RP that a lesser and thus cheaper level would be adequate.
RP likes FSO as he has saved him money and advises his business friends not to use RAr as he over the top but to use FSO (in 6 months time) cos he will save you lots of money.
Sorry nearly there you’re mistaken. We are required under the fire services act to offer guidance and advice when and if requested, so we can make recommendations or offer alternative solutions in relation to any recommendations made within the FRA or even an enforcement notice. What we cannot do is specify a particular solution. They can then choose to take our advice or recommendations, or choose to take on another equally suitable option.
I have come across a number of FRA's that have made recommendations for fire alarms and other equipment way over what would be required, when I ask who is installing the equipment? Surprise! Surprise! It’s the company who carried out the FRA. This, in my opinion, is clearly a money making initiative.
Now I’m not saying all you Risk Assessors out there are unscrupulous, but there are some, and, there are some who just ask for bells and whistles to protect themselves from any comeback, regardless of the financial cost to the RP.
If I see a FRA and it’s recommendations are over the top or too onerous financially on a company then I feel I have a duty to offer them my professional opinion and advise them of any alternative solutions available to them.
Then surely if you offer guidance and advice when and if requested and so make recommendations or offer alternative solutions in relation to any particular recommendations made within the FRA or even an enforcement notice then you are specifying a particular solution are you not?
If the RP took and implimented your good advice, which he would justifiably assume to be a means of resolving an issue, you would hardly return in a few months and find it inadequate.
I have to disagree with your comment about your duty to a company if you think that the recommendations in a FRA are too onerous. It is not up to the enforcement authority to decide if measures are over onerous or not. It is up to the enforcement authority to audit the FRA to ascertain if it is suitable and sufficient. If you are asked for an opinion then you may offer it but not until then I would suggest.
I agree that there are RArs out there who, without a working Fire Safety reference, can be over the top and for many reasons. This can be because of a lack of or indeed an over abundance, of knowledge. But I always maintain that generally there is no better RAr than a gamekeeper turned poacher who knows what the F&R Service are looking for to ensure compliance with the minimum requirements of the Order. But remember that FRAs can also be carried out because the company wants to ensure a very high standard of protection above and beyond the minimum required to comply with the Order.
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"Best Practice solution: The premises should be equipped to a fire alarm and detectuion system to BS 5839 Part 1 L2 standard"
MR
would you expect a fire risk assessor to put that in his/her FRA?
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Then surely if you offer guidance and advice when and if requested and so make recommendations or offer alternative solutions in relation to any particular recommendations made within the FRA or even an enforcement notice then you are specifying a particular solution are you not?
If the RP took and implimented your good advice, which he would justifiably assume to be a means of resolving an issue, you would hardly return in a few months and find it inadequate.
I have to disagree with your comment about your duty to a company if you think that the recommendations in a FRA are too onerous. It is not up to the enforcement authority to decide if measures are over onerous or not. It is up to the enforcement authority to audit the FRA to ascertain if it is suitable and sufficient. If you are asked for an opinion then you may offer it but not until then I would suggest.
I agree that there are RArs out there who, without a working Fire Safety reference, can be over the top and for many reasons. This can be because of a lack of or indeed an over abundance, of knowledge. But I always maintain that generally there is no better RAr than a gamekeeper turned poacher who knows what the F&R Service are looking for to ensure compliance with the minimum requirements of the Order. But remember that FRAs can also be carried out because the company wants to ensure a very high standard of protection above and beyond the minimum required to comply with the Order.
There’s a lot in you response so I’ll try to answer it in turn.
1. Yes. By offering advice we are specifying a solution and there is nothing wrong with this, as I said before they don't have to take our suggestions on board. What we are not allowed to, and what we are not doing is being prescriptive, i.e. you will do what we tell you.
2. That’s kind of the point, if they take on our best practice advice, and when we return to re-inspect they have taken our advice, then of course they would of complied.
3. In relation to our duties exclusively under the RRO you would be correct, however, not if you look at our duties under all the legislation we are bound by, in particular the Fire Services Act. So we audit in relation to the RRO, our advice and guidance is given under the FSA.
4. i do not believe it's appropriate to just wait to be asked. That is not in the spirit of the legislation or the FSA.
If for example a RP installed bells and whistles because his RA'r recommended it, and, we had audited it before the installation but said nothing. Then, the RP finds out he's just spent £££sands unnecessarily, I would not blame him if he wanted to know WHY we didn't say anything to him
5. As I said previously our advice is just that, advice. They do not have to listen to our recommendations, if they want a higher standard we are not going to object.
I would like to add there is also the point of insurance companies wanting more and I advise the RP’s of this. I point out to them, that they may be satisfying the requirements with minimum standards but it may affect their insurance premiums. And I always advise them to see if adopting a higher standard would reduce their premiums. They may find that the initial higher expenditure will save them money in the long run, and that they may also find it difficult to get insured without meeting certain criteria.
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Then surely if you offer guidance and advice when and if requested and so make recommendations or offer alternative solutions in relation to any particular recommendations made within the FRA or even an enforcement notice then you are specifying a particular solution are you not?
If the RP took and implimented your good advice, which he would justifiably assume to be a means of resolving an issue, you would hardly return in a few months and find it inadequate.
Don't call me Shirely NT
I was going to formulate a response but Terry has beaten me to it, as ever totally agree Terry.
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Then surely if you offer guidance and advice when and if requested and so make recommendations or offer alternative solutions in relation to any particular recommendations made within the FRA or even an enforcement notice then you are specifying a particular solution are you not?
If the RP took and implimented your good advice, which he would justifiably assume to be a means of resolving an issue, you would hardly return in a few months and find it inadequate.
Don't call me Shirely NT
I was going to formulate a response but Terry has beaten me to it, as ever totally agree Terry.
Surely Shirley from the shire.
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That constitutes general banter NT
So away with you to the banter society bar this instant !!
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The RP has accountability responsibilty and the money. The risk assessor as a competent person does not. Write the FRA with the outcomes you decide and let the RP make decisions to the wya they want to go.
Not quite that simple, I think... don't forget Article 5:
"(4) Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to—
(a) the maintenance or repair of any premises, including anything in or on premises; or
(b) the safety of any premises,
that person is to be treated, for the purposes of paragraph (3), as being a person who has control of the premises to the extent that his obligation so extends."
So... the risk assessor has a contract; it places safety-related obligations on him; if he fails to meet those obligations then he's treated the same as the RP, in the eyes of the Law ("to the extent that his obligation so extends").
Sooo... if the balloon went up and it were determined that the Assessor hadn't fulfilled his contracted safety-related duties, my interpretation is that he could be prosecuted directly under the Order. RP would, of course, have to demonstrate 'due diligence' in his choice of a competent Assessor and review of their findings. They'd probably both be in the dock, I guess, and the Court would decide on how much blame to apportion to each.
...of course, this is only my interpretation and could only be tested in court!
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Absolutely Fishy
It would be in court where the issue of whom had what level of responsibility would be thrashed out
Clearly if the risk assessor has done a good job, but the RP chose to ignore the findings of his assessment, it would be totally unreasonable to blame the assessor for any offences that occured as a result.
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But that's rub MR.
The usual, anticpated outcome is that the RP may not like what a competent risk assessor comes up with, but nonetheless does what is required. In this example the RP clearly does not share the opinion that the risk assessor has done a good job, hence the disagreement and rejection of findings. When and if the RP rejects or ignores the outcomes and findings, the risk assessor cannot be held responsible for those decisions. Further thought, if the RP ignores the findings can the FRA be considered as a valid document regarding the fire safety within the premise?
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Bear in mind that if a RP doesn't like what the FRA says he can always do another one himself with the expensive bits left out or at least altered to a much cheaper, even if it is unsuitable, option. He is perfectly within his rights to prefer an alternative FRA which, from his point of view, is suitable and sufficient.
FRAs don't have to be registered when completed.
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But that's rub MR.
rub?? did you mean rubbish Mr Burner?? :o
Your last post threw me a little because I think we're basically saying the same thing.
Theres a few things to bear in mind here.
Why has the RP employed a risk assessor to undertake an assessment? Is it a case that the RP is too busy to do one themselves? Is it because the RP recognises he or she isn't competent to undertake one?
If the RP thinks that the fire risk assessment is not suitable and sufficient then they should do something about it. It might entail taking the issue up with the assessor and seeking a resolution for example.
It might entail the RP not paying the risk assesor, and instead employing a new assesor to do a fresh FRA.
It might entail as Nearlythere states the RP doing a Risk Assessment themselves.
Or it could just be the fact that the RP isn't competent to judge what is a suitable and sufficient risk assessment and what is not
But the issue of who would be responsible for any offences committed will be battled out in court (if it got to that stage).
The point Im making is that if it's proven the assessor had completed a suitable and sufficient FRA and the RP did not go along with the findings for whatever reason (lets say they incorrectly thought the assessment was poor, or didn't like the findings because it might cost them too much money) it will not be the risk assessor who is held responsible for any offences committed as a consequence.
If the assessor has made a total hash of things and the RP went along with it unwittingly or otherwise , and offences occurred as a result then yes it maybe a case that the assessor also shoulders some of the responsibility.
If the RP doesn't like an asessors findings that is their perogative, but the they cannot leave things up in the air - they need to make a decision on where to go from there.
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But that's rub MR.
rub?? did you mean rubbish Mr Burner??
I think he meant that he wanted to rub you all over with something. Baby oil or axle grease, whatever your preference is. Or have I picked him up wrong?
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BANTER!!! Take it outside gents. :)
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Please take you banter back to the bar....
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No I didn't mean rubbish, I fact MR I think your comments are absolutely correct.
I missed one word and meant to say 'That's the rub', meaning that the situation where a competent asssessor has carried out an assessment, which is subsequently rejected by the RP (lack of resolution of the significant findings), the inference is that the RP does not believe the assessor has done a good job.
What happens next? As said above "If the RP doesn't like an asessors findings that is their perogative, but they cannot leave things up in the air - they need to make a decision on where to go from there".
Do they ask the original assessor to revise, review or rethink the original assessment?
Do they carry out a new (replacement) assessment themselves? (and if they are going to do this at this juncture why didn't they do it themselves to begin with?)
Do they go and obtain the services of another assessor and hope they like this version better?
While all this is going on a demand is made for the Fire Risk Assessment to be produced (either by an Enforcement Officer or by the Courts), what does the RP produce?
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Do they carry out a new (replacement) assessment themselves? (and if they are going to do this at this juncture why didn't they do it themselves to begin with?)
Because they probably didnt have a clue what a fire risk assessment was, how it was formulated and what it contained.
It is very easy to copy an assessment and leave out or rehash the expensive bits.
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I would disagree with fishy over Article 5. I would read this as meaning that a person must have control i.e. they must be able to do something. If I do a FRA and pass it to the RP I have no control. If I do a FRA and the RP says to me "here is £10,000, sort it out" then I do have control and would fall under article 5.
My reading is that the RP must have the power to take action without hinderance. So back to the multi site business; if the manager of a site has a budget for fire precautions then he can be the responsible person for the site. However if the FRA recommends an installation which cannot be covered by the budget, then there are 2 courses of action.
1. the manager approaches parent and asks for the resources to do it, and the parent says no then the parent is the RP.
2. the manager manages the budget so the installation can be covered but it will take time or other recommendations have to be held up and argues "reasonably practicable", in which case he is still the RP.
In the case where the RP disagrees with the FRA on the content of the FRA then it is up to the RP to sort it out with the assessor i.e. the case where the assessor recommends a all singing , all dancing fire alarm system and the RP thinks this is over the top. How the RP does this is up to him, i.e. call in another assessor or have a chat with his local friendly FSO.
In all cases the RP must be able to justify his decisions.
However the only people who will really clarify this are the guys in funny wigs, but at the end of the day I suspect most of the prosecutions will be against people who won't do anything and not against people who are trying to fulfil their role.
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I would disagree with fishy over Article 5. I would read this as meaning that a person must have control i.e. they must be able to do something. If I do a FRA and pass it to the RP I have no control. If I do a FRA and the RP says to me "here is £10,000, sort it out" then I do have control and would fall under article 5.
My reading is that the RP must have the power to take action without hinderance. So back to the multi site business; if the manager of a site has a budget for fire precautions then he can be the responsible person for the site. However if the FRA recommends an installation which cannot be covered by the budget, then there are 2 courses of action.
1. the manager approaches parent and asks for the resources to do it, and the parent says no then the parent is the RP.
2. the manager manages the budget so the installation can be covered but it will take time or other recommendations have to be held up and argues "reasonably practicable", in which case he is still the RP.
In the case where the RP disagrees with the FRA on the content of the FRA then it is up to the RP to sort it out with the assessor i.e. the case where the assessor recommends a all singing , all dancing fire alarm system and the RP thinks this is over the top. How the RP does this is up to him, i.e. call in another assessor or have a chat with his local friendly FSO.
In all cases the RP must be able to justify his decisions.
However the only people who will really clarify this are the guys in funny wigs, but at the end of the day I suspect most of the prosecutions will be against people who won't do anything and not against people who are trying to fulfil their role.
i can kind of see where you're coming from, but you would be accountable for anything within your control.
If you carried out a FRA badly (not saying you would) and the RP adopted your findings in good faith. Then you would of, at some point, had control of, and influence over the premise. Therefore your control over the premise would of impacted on the measures of fire safety within the premise.
The key phrase is;
(3) Any duty imposed by articles 8 to 22 or by regulations made under article 24 on the responsible person in respect of premises SHALL ALSO BE IMPOSED ON EVERY PERSON, other than the responsible person referred to in paragraphs (1) and (2), who has, TO ANY EXTENT, control of those premises so far as the requirements relate to matters WITHIN HIS control.
i am currently involved in a case (no specifics gents i'm sure you understand) that has required the clarification of this.
Anyone under contract would be deemed to have had, to some extent, control. The issue would be, Did the extent of the their control have a direct impact on the offences comitted? if so, they would neeed to demenstrate due dilligence in their defence.
i know we keep coming back to this analogy but it is the key example.
If the contractor did a bad job, intentionaly or not, and the RP, had appointed that 'proffessional' under contract and in good faith. Then that 'proffessional' person must be accountable for their involvement.
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It looks as if it may hang on what the courts decide is "control". If a contractor is doing something ie fitting a fire alarm, he has control over the way the job is done, his employees etc. However if the contractor is giving advice, which is basically what a fire risk assessment is, the contractor has no control over what happens and the RP should be responsible.
Think about this as an example, I am walking along outside a building and I see that the guttering is almost falling off. If I go to the owner of the building and tell him his guttering is dangerous, am I then responsible if the owner does nothing and it falls off and injures somebody? Or if I don't tell him am I still responsible because I did not tell him?
Then expand it, I am a surveyor and I am called in to survey the place and I see the guttering is unsafe, yes I should tell the owner that the guttering is unsafe but do I now have to take steps to make the gutter safe?
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In response to Terry's point about control I would think the RP's "assistant", has no control over the FRA as he is only helping the RP to carry it out. As he is only giving the RP assistance the assistant's FRA ultimately belongs to the RP who has ultimate responsibility for ensuring it is suitable and sufficient.
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Developing this concept of 'Control' and subsequent duties, I will paraphrase the Scottish legislation (and presume the RR(FSO) has a similar content), and make the second presumption, that the Fire Risk Assessor is working under contract to the RP: -
Section 54 (4) A person who has, by virtue of a contract ,.... an obligation of any extent in relation to—
(a) ........................
((b) safety in respect of harm caused by fire in relevant premises, (contract - fire risk assessment)
shall also comply, to the extent of the obligation, with subsection (2)....... which says
(2) The person shall—
(a) carry out an assessment of the relevant premises for the purpose of identifying any risks to the safety of relevant persons in respect of harm caused by fire in the relevant premises; and
(b) take in relation to the relevant premises such of the fire safety measures as in all the circumstances it is reasonable for a person in his position to take to ensure the safety of relevant persons in respect of harm caused by fire in the relevant premises. ................ but subsection 5 goes on to say ........
(5) Where under subsection (2)(a) a person carries out an assessment, the person shall—
(a) ................
(b) take in relation to the relevant premises such of the fire safety measures as in all the circumstances it is reasonable for a person in his position to take to ensure the safety of relevant persons in respect of harm caused by fire in the relevant premises.
If the RP who set up the contract to have the FRA carried out rejects some or all of the findings what would be the 'reasonable' measures the Assessor should or could take? I think this is where MR's previous take has it spot on
"If the assessor has made a total hash of things and the RP went along with it unwittingly or otherwise , and offences occurred as a result then yes it maybe a case that the assessor also shoulders some of the responsibility.
If the RP doesn't like an asessors findings that is their perogative, but the they cannot leave things up in the air - they need to make a decision on where to go from there."
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Then expand it, I am a surveyor and I am called in to survey the place and I see the guttering is unsafe, yes I should tell the owner that the guttering is unsafe but do I now have to take steps to make the gutter safe?
No, but if he appoints you to tell him whether the gutter is safe or not, and you tell him that it's safe. subsequently the gutter falls of and kills someone. then you are accountable for that
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there are 2 clearly different points both being discussed here
1. the RA's does a good job and is ignored or disagreed with. the accountability is with the RP.
I think i'm right in saying we all agree on this one?
2. the RA's does a bad job and is listened to, and it all goes pear shaped. they are both accountable.
NT.
in response to your point, yes i agree with you completely that the 'Assistant' (i am assuming you mean an appointed RA'r) has no control over implementing the Significant findings. and therefore cannot be held accountable in respect of this.
but he would have control over what significant findings had been established, having done this as a proffessional on behalf of the RP. If they are wholey inadequate and lead to a dangerous situation then he must be held accountable within a court for this (only if it got that far, i'm not saying anyone who does a bad RA should be strung up in court. Although! Hmmm :) ).
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Hi Terry
Yes agree totally with your interpretation. Be intresting to see a test case on this.
One thing that does bother me however is this:
If I, as an RP, employ a fire alarm engineer to install a brand new fire alarm system, and I go to painstaking lengths / do everything possible to check that the engineer is competent, suitably qualified, trustworthy etc etc and yet that engineeer still makes a mistake, it seems harsh I would also be deemed responsible for any failings / offences committed as a result.
The order clearly states in article 32(11) That "Nothing in this order operates so as to afford an employer a defence in any criminal proceeedings...etc etc".
Taking that a step further is it not a similar scenario to me going to get my car's breaks replaced at a local garage and lets imaginge the mechanic fails to fit them properly and subsequently I drive out the garage and half a mile down the road kill somone because my breaks fail... who is liable / repsonsible?
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MR. is see where your going. but i think the interpretation of that is,
There is nothing within the RRO which would afford an employer any defence against proceedings. meaning there is no article or para. that he could automaticaly use as a defence. i.e. well, i employed him/ told him to do it in accordance with x article. or, under article x it says that his job.
going on to article 33. His only defence is demonstrating he showed due dilligence in appointing, reviewing, monitoring, and any other ...ing that may fall within the realms of that person being employed/contracted.
just to add a bit more;
if an offence was committed that was so sever it warranted prosecution, the RP would find himself in court. it is there he would have to demonstrate DD.
The person who to the extent had control would also be there trying to prove his DD.
In an investigation by a Fire Authority, it is not up to them to decide who is guilty and who is not. their job is to establish what offences have been committed, and WHO, to their extent, had control of those matters. they are then required to gather the most comprehensive case possible, regardless if that evidence demonstrates guilt or not. It is then upto the barrister to decide who if anyone has a case to answer. And subsequently the courts to decide who, if anyone, is guilty.
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Terry
both yourself and Retty (and other contributors) have really developed this thread and show great understanding of who does what. I find myself nodding along in agreement with what you say.
It appears we agree about the comptent fire risk assessor, and as for the incompetent, charlatan type assessors, well maybe this thread isn't the place to discuss their fate.
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MR. is see where your going. but i think the interpretation of that is,
There is nothing within the RRO which would afford an employer any defence against proceedings. meaning there is no article or para. that he could automaticaly use as a defence. i.e. well, i employed him/ told him to do it in accordance with x article. or, under article x it says that his job.
going on to article 33. His only defence is demonstrating he showed due dilligence in appointing, reviewing, monitoring, and any other ...ing that may fall within the realms of that person being employed/contracted.
Thanks Terry . I'd forgotten about article 33 (its hidden at the bottom of the page on my copy of the RRO) and I see where you are coming from in terms of Article 32(11)
All is clear!
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Then expand it, I am a surveyor and I am called in to survey the place and I see the guttering is unsafe, yes I should tell the owner that the guttering is unsafe but do I now have to take steps to make the gutter safe?
No, but if he appoints you to tell him whether the gutter is safe or not, and you tell him that it's safe. subsequently the gutter falls of and kills someone. then you are accountable for that
On the other hand if I own a property which has a defective gutter, which the surveyor failed to identify, and it fell on someone who was walking down the street, who would the victim sue?
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if an offence was committed that was so sever it warranted prosecution, the RP would find himself in court. it is there he would have to demonstrate DD.
The person who to the extent had control would also be there trying to prove his DD.
In an investigation by a Fire Authority, it is not up to them to decide who is guilty and who is not. their job is to establish what offences have been committed, and WHO, to their extent, had control of those matters. they are then required to gather the most comprehensive case possible, regardless if that evidence demonstrates guilt or not. It is then upto the barrister to decide who if anyone has a case to answer. And subsequently the courts to decide who, if anyone, is guilty.
I disagree Terry, it is for the FA to investigate and decide who in their opinion has committed the offence. Once that is decided I would expect them to take it to their barrister. They may ask for the odd opinion here and there but they are the ones carrying out the investigation and gathering the evidence.
The barrister would be very busy, and very expensive if he had to trawl through all the IOs material in every case.
If the RP can show due dilligence it should be established in the investigation and the FA should not waste time and money taking him to Court in the first place.
If the offence is so serious and a prosecution is considered appropriate, it would not necessarily be the RP who finds himself in court.
Lets say the RP appoints who he thought was a competent risk assessor and showed due dilligence in checking his credentials, and the assessor turns out to be a numpty.
The Numpty assessor may be the one who is prosecuted by virtue of article 32(10). He does not need to have any control.
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if an offence was committed that was so sever it warranted prosecution, the RP would find himself in court. it is there he would have to demonstrate DD.
The person who to the extent had control would also be there trying to prove his DD.
In an investigation by a Fire Authority, it is not up to them to decide who is guilty and who is not. their job is to establish what offences have been committed, and WHO, to their extent, had control of those matters. they are then required to gather the most comprehensive case possible, regardless if that evidence demonstrates guilt or not. It is then upto the barrister to decide who if anyone has a case to answer. And subsequently the courts to decide who, if anyone, is guilty.
I disagree Terry, it is for the FA to investigate and decide who in their opinion has committed the offence. Once that is decided I would expect them to take it to their barrister. They may ask for the odd opinion here and there but they are the ones carrying out the investigation and gathering the evidence.
The barrister would be very busy, and very expensive if he had to trawl through all the IOs material in every case.
If the RP can show due dilligence it should be established in the investigation and the FA should not waste time and money taking him to Court in the first place.
If the offence is so serious and a prosecution is considered appropriate, it would not necessarily be the RP who finds himself in court.
Lets say the RP appoints who he thought was a competent risk assessor and showed due dilligence in checking his credentials, and the assessor turns out to be a numpty.
The Numpty assessor may be the one who is prosecuted by virtue of article 32(10). He does not need to have any control.
Where you say it is up to the FA to decide 'who they believed committed an offence' that’s kind of the same as, what are the offences, and who, to their extent, had control over those matters. They are the people we would have believed to of committed an offence, and the people we would gather evidence on. so in a way i think we both agree there.
With regards to your other point, the process of whether the case goes to court (within our FA) involves 2 means tests.
1. Public interest, does the brigade believe it would be in the public interest for the case to brought to court. Or would it be more reasonable to be dealt with by means of enforcement. Generally enforcement is the most appropriate course of action. If the investigation was 'post fire' then it would generally pass this test and then would go on to the second means test.
(At this point we would gather all available evidence, whether that be for or against all persons we believed may have possibly committed an offence.)
2. Sufficient evidence. After the investigation we present the case to our legal team who ensure all legalities have been met within the evidence. It is then passed on to the barrister. it is then their decision which, if any, person has a case to answer.
it is a legal point, we are in a way like police (within this example only!!) when they arrest someone they do so believing that person has committed an offence. Not on the basis that they know they are guilty.
They then collect ALL available evidence. Not just the evidence that proves that persons guilt. After collecting all available evidence, it may become apparent that the person is completely innocent and the investigation has raised new suspects. Only once they have collected enough evidence against the person they believe to of committed the offence, does that person get charged with the offence.
But the police do not bring the case to court, they provide the evidence to the barristers within the CPS, it is they who decide if there is a sufficient enough case to answer, that it warrants being heard in a court.
One final point. Not every case will be seen by the barrister. On many occasions it will never get that far. The FA in there investigation and within means test 1. Can decide the offence does not warrant prosecution. It is only in sever cases will it ever get that far
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Can I ask a stupid question.
Does the law require the RP to employ an FRA.
If not, and in view of the comments above, is the RP not better to do it alone in association with his local FB
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But the police do not bring the case to court, they provide the evidence to the barristers within the CPS, it is they who decide if there is a sufficient enough case to answer, that it warrants being heard in a court.
One final point. Not every case will be seen by the barrister. On many occasions it will never get that far. The FA in there investigation and within means test 1. Can decide the offence does not warrant prosecution. It is only in sever cases will it ever get that far
But as you know Terry the FSO is mainly enforced by the FA, there is no equivaent to the CPS so it is the FA who must decide.
But the nmain point I was trying to make was that any person, regardless of whether or not they have any control, can be prosecuted under 32(10) including the risk assessor, alarm engineer, employee etc.
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But the police do not bring the case to court, they provide the evidence to the barristers within the CPS, it is they who decide if there is a sufficient enough case to answer, that it warrants being heard in a court.
One final point. Not every case will be seen by the barrister. On many occasions it will never get that far. The FA in there investigation and within means test 1. Can decide the offence does not warrant prosecution. It is only in sever cases will it ever get that far
But as you know Terry the FSO is mainly enforced by the FA, there is no equivaent to the CPS so it is the FA who must decide.
But the nmain point I was trying to make was that any person, regardless of whether or not they have any control, can be prosecuted under 32(10) including the risk assessor, alarm engineer, employee etc.
absolutely. we decide if we ant to prosecute. the barrister decides if we have enough evidence to take it to court.
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Can I ask a stupid question.
Does the law require the RP to employ an FRA.
If not, and in view of the comments above, is the RP not better to do it alone in association with his local FB
No David but the law requires the risk assessment to be suitable and sufficient, therfore it must be carried out by someone who is competent. If the RP is not competent he needs some training or he needs to take professional advice.
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Can I ask a stupid question.
Does the law require the RP to employ an FRA.
If not, and in view of the comments above, is the RP not better to do it alone in association with his local FB
No. the law (RRO) requires the RP to undertake a risk assessment. but if he is not competent, he can, if he wants appoint someone.
THe FA will not assist him in carrying out a RA but will offer guidance on where to get info i.e. point them in the direction of the Responsible persons guides.
please don't confuse earlier comments in this thread about the FA offering advice and guidance in respect of achieving compliance. with them being there to hold someones hand through the whole process.