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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Community Fire Safety => Topic started by: natdan on May 12, 2009, 12:01:43 AM
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Hi all,
I have today been working with a housing association in London who asked me to carry out a few FRA for them. They have had some carried out previously by a "consultant" and the work is nothing short of pathetic.
The brigade have said to them they need to upgrade these assessments as it is unsuitable and insufficient. I am now working through these but still want the question answering on how they can class something insufficent when there is no set procedure.
I carried some out in Bristol and was told the FRA I had contained to much information and ythey only want a 4 or 5 page report and were not interested in signs and doors. It seems that every brigade has different opinions and until there are set standards or the risk assessors are regulated are we going to keep having this problem?
I am worried that even though I am accepted by the IFE as competent the brigade will knock my work. What is it the fire brigade actually want as they are reluctant to tell me anything.
Are there any Safety officers out there who can help me get the balance right of my risk assessments.
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There is a national standard Natdan.
For fire risk assessments there are five steps that you need to take:
Step 1 Identify potential fire hazards in the workplace.
Step 2 Decide who (eg employees, visitors) might be in danger, in the event of a fire, in the workplace or while trying to escape from it, and note their location.
Step 3 Evaluate the risks arising from the hazards and decide whether your existing fire precautions are adequate or whether more should be done to get rid of the hazard or to control the risks (eg by improving the fire precautions).
Step 4 Record your findings and details of the action you took as a result. Tell your employees about your findings.
Step 5 Keep the assessment under review and revise it when necessary.
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The problem of getting the balance right is a common one and brigades do vary widely in their views. All risk assessments need to be 'suitable and sufficient' therefore the detail in simple premises will not be the same as on those which are more complex. The problem is made more difficult (or clearer according to your view) by the Department for the Communities and Local Government which as you probably know publish guidelines in respect of many different descriptions of property and describle the process of risk assessment. Whilst this is very useful I still find that FRSs still place different interpretations on fire safety requirements.
There is also a publication by the BSI called PAS 79 which I have never seen but which also gives definitive advice on this subject. Finally as if matters are not complicated enough the local authorities and Cheif Fire Officers have published the LACORS guide for private rented accommodation which again adds its own interpretation. Finally I think you can only set a standard that seems to you appropriate for the building and be prepared to negotiate with the local FRS until they all agree on a common standard.
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As you can see I'm from one of the areas mentioned in Natdans original thread.
Without knowing who said what or where or in what context I can't comment on what an I/O in my area may have said on doors and signage.
However I feel Nearlythere's post sums up what we are looking for.
To comment on R/A length is misleading, each premises is individual, therefore the R/A will reflect that premises, some will be a page or two some will run to many pages.
As to what we want? A FRA that accuarately reflects the premises.
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You have to remember that on the odd occasion you could be dealing with someone with a limited concentration span and any reading requiring a period in excess of 2-3 minutes should be avoided. ;D
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If someone cannot be bothered reading the Fire Risk Assessmnt because they have a limited concentration level should they be reading the FRA in the first instance?
Also how can a building have it's fire risk fully assessed in 2 or 3 pages when you are dealing with sleeping accomodation? Some fire risk assessments are criminal and the more this gets regulated the better. I also believe the worst culprits are ex fire fighters (not fire safety officers) trying to cash in quick on legistlation.
The thread was basically raised to question the safety officers. Would you believe the safety officers who are regulating the FRA and auditing the buildings would look to approve a FRA because it was done by an ex fire fighter rather than a fire engineer?
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If an FRS inspector told me an FRA contained too much info I'd tell them where to go (politely)- it's none of their business as long as it's sufficient and doesn't miss anything significant. I find it hard to believe they aren't interested in signs and doors - a bit hypocritical seeing as the certificates they were drawing and inspecting against had lots of signs and doors detailed on them and many notices I've seen focused on those very issues.
Enforcement in some areas seems to be a joke and there is no consistency - you get both extremes of IO just as you do fire consultant - some who would pass the Triangle Shirt waist factory as OK and others wanting the proverbial moon on a stick.
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If someone cannot be bothered reading the Fire Risk Assessmnt because they have a limited concentration level should they be reading the FRA in the first instance?
Also how can a building have it's fire risk fully assessed in 2 or 3 pages when you are dealing with sleeping accomodation? Some fire risk assessments are criminal and the more this gets regulated the better. I also believe the worst culprits are ex fire fighters (not fire safety officers) trying to cash in quick on legistlation.
The thread was basically raised to question the safety officers. Would you believe the safety officers who are regulating the FRA and auditing the buildings would look to approve a FRA because it was done by an ex fire fighter rather than a fire engineer?
Point 1-no of course not however a cheap shot remark like that isnt really worth spending anymore time on.
Point 2-I refer you to my previous post, each premises is individual, a sleeping risk should of course be a lot more detailed than a local corner shop.
Point 3-you may be right on ex-firefighters cashing in but we have seen poor FRA presented by all sorts of people including people with fire engineering degrees.
Point 4-again another cheap shot that in our service area is simply not the case.
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Not a cheap shot I am just getting confused over what I/O are wanting and the impression I get is "jobs for the boys" and I am a little angry with this.
Regarding FRA being done poor I have seen in London the standard compared to other areas and these were carried out by consultants claiming to be GIFireE standard.
Sorry if I have offended but I have been in conversation with some consultants and they feel they are being pushed out by I/O looking to prefer ex serving fire fighters.
There is a massive difference in a safety officer to a fire fighter as you no far more than me and I just feel as a fire engineer I am not getting the respect I deserve as these retired ex fire fighters are cashing in on the RRO.
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I can't speak for anyone else, but I just look at the quality of the work in front of me. There are a lot of underqualified people from many walks of the fire & related industries who think moving into FRA's is an easy little sideline, its the clients choice which tender they take.
I'm not offended by the way, just saddened that you really think that we would ok a poor FRA just because an ex FF did it.
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I can understand why people might be concerned about the existence of an "old boys club" where Fire Inspectors give special treatment to, or are more leniant with, ex-firefighters working as risk assessors.
To be completely honest I tend to switch off when risk assessors purposely tell me " Im an ex firefighter you know" or "I was in the job 30 years Sonny" as if to suggest that might get them special treatment from me. There is a difference between general reminiscing about time spent in the brigade, and purposely directed comments designed to garner favourable treatment.
Fortunately I don't come across many ex firefighters or fire safety officers who are like that. And they wouldnt be given any additional or special treatment either.
Back to the main point, as Nearythere and Stevo point out, a fire inspector is looking for a FRA that accurately reflects the building.
Im always conscious of not taking up too much of an RP's time during an inspection - Im always wary they have a business to run and maybe extremely busy. A well indexed FRA helps me quickly get to the bits of information I want to see.
Ive seen a lot of assessments which are hundreds of pages thick, but actually contain very little relevant meaningful content - one I looked at for a care home had a section that described the Regulatory Reform Order for the client in great detail, and another slarge section largely cut and pasted from other documents about fire safety signage. The actual risk assessment however was only four pages long!
It just seemed as though the assessor thought to himself " If the fire officer sees a big document he will assume we have done a thorough job - he wont want tro trawl through all of that"
So there are good and bad inspectors, assessors and consultants, some who flannel, some after a quick buck, and equally those who do a good and thorough job. It is Im afraid quite a minefiled.
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Monsignor Retty, Are you trying to say that our special entente cordial is born out of anything other than the days we spent on nights at Solihull, when I did the double declutching and you put the pennies in the phone box to send back the stop message.
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Ahhh Cardinal Todd what memories!... Of course back in those days Solihull was a very old fashioned inner city station. I recall how you once attempted to double declutch the horse who used to pull our pump ...twas most unfortunate that the RSPCA had to get involved... luckily the Inspector eventually saw the funny side of it.
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Newbie here and sorry to butt in,
I have been frequently asked to review and revise FRA's that were cobbled together by others. My biggest gripe is that many of these individuals do not have a clue of first principles, basic fire dynamics, building construction etc. I have seen FRA failing to consider the effects of a 1 mm gap in cold brush type smoke seals or failing to consider the absence of insulative properties of old georgian wired glass doors. Many Fire Risk Assessors fail to recognise that they dont know what the dont know.
It is interteresting to note the consideration by authorities on the application of articles 5 and 32 of the RR(FS)O and it is only a matter of time until a rogue/cowboy FRA finds themselves in a spot of bother.
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Newbie here and sorry to butt in,
Bleve you are very welcome and we are very interested to hear your opinions. The forum has been getting a bit stale of late and new members bring a breath of fresh air.
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Cheer K
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Bleve do you not think your exacting standards are OTT and I believe you will rarely achieve the standard you seek, also you will, have to go some, to convince RP,s these standard are required. I do understand the standards of certain RA,s are below par and this needs to be addressed and a much higher level of theoretical knowledge is required these days. But an old maxim stating, Fire Safety is all about 20% knowledge and 80% common-sense still holds water today, play about with the percentages if you choose. I fully accept theory and calculations are very much needed in engineering solutions but much less in the day to day risk assessment.
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Tom,
I don't consider my standards are OTT. The examples of a 1 mm gap at smoke seal and lack of insulative properties of the GWG systems were in a sleeping risk and remain in place strategy building.
I am not looking for perfection but would be merely pleased if some risk assessors had a grasp of the basics ps I don't believe fra is 80 % common sense.
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It is interteresting to note the consideration by authorities on the application of articles 5 and 32 of the RR(FS)O and it is only a matter of time until a rogue/cowboy FRA finds themselves in a spot of bother.
Could you expand on what you mean by this Bleve?
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Meerkat
at some point in time a less competant/diligent fire risk assessor may find themselves subject to legal proceedings for failing to discharge their duties as an RP under the articles referred to in my previous post
the rr fs o allows for more than 1 RP and in certain circumstance a FRA and the likes of fire alarm or suppression system engineers/technicians may be classed as RP
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Hi Bleve
I see what you are driving at.
Just as a point of order, and not trying to be pedantic, be aware that a fire supression engineer / or assesssor would not be classed as an RP
They would be classed a competent person, or a person having control and you can not have more than one RP, there is ultimately always only one RP, there could be several Person Having Control however.
Where the commission by any person of an offence is due to the act or default of some other person that other person may be guilty of the offence [Article 32 (10)]
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ps I don't believe fra is 80 % common sense.
Fair enough but I did give the option to amend the percentages never the less I believe common sense and flexibility is a big part of a FRA to make it work sensibly.
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Meerkat
at some point in time a less competant/diligent fire risk assessor may find themselves subject to legal proceedings for failing to discharge their duties as an RP under the articles referred to in my previous post
the rr fs o allows for more than 1 RP and in certain circumstance a FRA and the likes of fire alarm or suppression system engineers/technicians may be classed as RP
Sorry Bleve I didn't make myself clear. I'm aware of what the RRFO says and the risk that a FRA could be prosecuted (though I agree with Midland on the strict legal interpretation of Article 5 in distinguishing Persons Having Control from RPs). I meant this bit "It is interesting to note the consideration by authorities on the application of articles 5 and 32". What consideration did you mean and by what authorities?
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Midland,
Duties under this Order
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.
(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.
(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.
From the Communities & Local Government (RR(FSO) Guidance Note No. 1 “Enforcement”
Article 3 – Meaning of “responsible person”
33. Article 3 defines who is the responsible person for the premises. In order to meet the obligations under EC Directives, wherever there is an employer they will continue to be responsible for the safety of their employees. In order to achieve the necessary broader coverage of the legislation beyond workplaces, the definition has been extended.
Therefore, where there is no employer in any premises, the occupier or owner of the premises is the responsible person.
34. The responsible person will be responsible not only for the safety of employees, but for that of any person (a “relevant person”, as defined in article 2) lawfully on the premises, or in the immediate vicinity of the premises and at risk from a fire on the premises.
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.
38. If not, article 3(b)(ii) provides that the owner is the responsible person.
Article 5(3) extends the responsible person’s duties to include any other person to the extent that they have control of the premises.
Under Article 5(4) any person who by virtue of any contract or tenancy has obligations of any extent in respect of maintenance of
the premises (and anything in them) or the safety of the premises is to be treated to that extent as a person who has control for the purposes of Article 5(3).
Enforcing authorities should note that due to the reference to the term “any contract” is not intended to be limited to those in respect of the occupation of property, eg a lease or licence to occupy, but would include, for example, a contract for the installation and/or maintenance of a fire alarm system or a fire sprinkler system.
39. In many cases there will be more than one person subject to the obligations of a responsible person for premises.
The guidance seems to say that there can be more than one RP?
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No it doesn't. It says the RP's duties may be extended to cover Persons Having Control.
"In many cases there will be more than one person subject to the obligations of a responsible person for premises."
It doesn't say more than one RP.
Edit:
And I was making the same assumption as Midland that we were talking about a single occupancy premises. Clearly if you have two employers in one premises then each is an RP. His further explanation regarding RP and PHC is better than mine would be so I'll say no more!
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Hi Bleve
Apologies, you are quite correct there can be more than one RP in the case of a multi occupied premises. I assumed you were talking about a single occupancy scenario.
The point I was making is that a person having control is not the same as an responsible person, although as you correctly stated PHC have duties to comply with the same articles of the fire safety order.
So for example lets take Joe Bloggs Limited which operates 100s of toy shops across the country.
The RP is Joe Bloggs Ltd, but each store manager are arguably "Persons Having Control" because they have local responsibility for running their particular store. Thus if Joe Blogg's formally instructs its staff to ensure fire exits are kept clear at all times but despite that a store manager blocks a fire exit, the store manager can be held responsible rather than Joe Bloggs plc.
Next let's assume I employ you as a fire alarm engineer. I do all reasonable checks on your background and competency, and once happy with you sign a maintenance contract for you to service and repair my alarms for the next twelve months.
You do so, make a total hash of it, dont pick up on some faulty smoke detectors and as a result someone gets injured (or worse)!
You, as the fire alarm engineer, could be considered to be someone who has to any extent control over my premises by virtue of Article 5(4)(a), and clearly because Im not competent to service the alarm myself I had appointed you as a competent person under article 18. Therefore you as the fire alarm engineer could be held liable as a PHC
Hope that clears it up.
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BLEVE
In real life a fire door with only 1mm gap will probably not shut properly!
I think Tom is right, too many books/BS/Guides etc tell different stories that the (respectfully) old timers here tend to apply a good dose of common.
By all means engineer away but after a few days someone or something will have screwed up. We want is to get the basics right first and adding 10% here and 10% there because 9999 says we can (at my humble level) doesn't sit right with me
davo
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The RP is Joe Bloggs Ltd, but each store manager are arguably "Persons Having Control" because they have local responsibility for running their particular store. Thus if Joe Blogg's formally instructs its staff to ensure fire exits are kept clear at all times but despite that a store manager blocks a fire exit, the store manager can be held responsible rather than Joe Bloggs plc.
MR Can I be pedantic now in my opinion Joe cannot negate his responsibility because the manager his employee but he could use it as a defence of due diligence (art 33) in the case of a PHC. Whether the FRS would prosecute is another matter.
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Well I have a lot of sympathy for anyne confused by this. Over the last couple of years I have been browbeaten into accepting the interpretation of article 3 as explained by MR. I do this for a quiet life as some people get very heated up over this topic. I cannot for the life of me see why when setting out the definitions in the Order everything had to be in lower case rather than with intial capital letters which would have made it much easier for us to understand.
I think they even got confused themselves over this. Consider a multi occ industrial building with a landlord who may not be an employer and article 22. 2. Not so clear now is it?
"Co-operation and co-ordination
22. —(1) Where two or more responsible persons share, or have duties in respect of, premises (whether on a temporary or a permanent basis) each such person must—
(a) co-operate with the other responsible person concerned so far as is necessary to enable them to comply with the requirements and prohibitions imposed on them by or under this Order;
(b) (taking into account the nature of his activities) take all reasonable steps to co-ordinate the measures he takes to comply with the requirements and prohibitions imposed on him by or under this Order with the measures the other responsible persons are taking to comply with the requirements and prohibitions imposed on them by or under this Order; and
(c) take all reasonable steps to inform the other responsible persons concerned of the risks to relevant persons arising out of or in connection with the conduct by him of his undertaking.
(2) Where two or more responsible persons share premises (whether on a temporary or a permanent basis) where an explosive atmosphere may occur, the responsible person who has overall responsibility for the premises must co-ordinate the implementation of all the measures required by this Part to be taken to protect relevant persons from any risk from the explosive atmosphere."
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Kurnal Im a little confused as to why you are browbeaten over this
Take your multi occ. Assume three occupiers all of whom are employers , and a landlord who if you follow the pecking order correctly may actually only be responsible for the communal areas.
So the three occupiers are RPs of their respective workplaces and the landlord is the for the communal areas. Simples.
Occupier one manufactures fireworks. Occupier two has a an oxygen cyclinder distribution company , occupier three makes cigarette lighters. A great scenario for a nice big fire to occur.
Article 22 is designed to get all four RPs talking to one another about their respective risks, what control measures are in place to minimise risk, what they can do collectively for the benefit of each other to reduce or remove risk, and what restrictions may have been placed on each other.
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Bleve Im impressed by your technical knowledge. I genuinely wish I was as well versed in technical matters as you are. But the kind of stuff you have talked about lke the battery charging areas and 1 mm gaops and fire doors is all well and good but in some cases totally unecessary. You will accept that there are verying levels of technical expertise required for risk assessment. Competence and technical know how to undertake risk assessment in an oil refinery is totally different to whats required to assess a corner shop. And you are right there are a lot of cowboys out there and even qualfied assessors who dont get the principles of fire safety. You are also right that being competent is about recognising your limitations. But its also important not to be too anal about things or disapply common sense. We cant make all buildings fit current guidance even if we apply the adaption of technical progress. For me life safety always is paramount, building protection and business continuity a close second. You strike the balance wherever you can. I dont dispute what your saying is correct you are obviously passionate and learned about your subject matter. Risk assessment can provide several solutions, all of which may be right.
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Good to see decent debate is alive and kicking. IMO the RR(FS)O is not very well written and until such time as "good" case law is established it is open to interpretation. It can only be a matter of time until proceedings are issued againsed a person in control i.e engineer/risk assessor "for the public good".
WRT door closure with a gap of 1mm being present between the door and cold smoke seal, this would not hinder the correct operation of the door. The 1mm gap, however, would result in a leakage rate of greater than 3m3 /hour/metre.
By the way I am not advocating engineering assessment for simple premises and in the case of the smoke seal and GWG may I remind you that I made reference to sleeping risk and remain in place in other words progressive horizontal evacuation of 100 plus non ambulant personnel. Dont see that as being anal myself.
In addition, after 23 years in this field I would also consider myself an "Old Hand" because I use a quantatitave approach to my work does not automatically mean some one is fresh out of University.
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Cleveland in the case suggested who is "the responsible person who has overall responsibility for the premises " - I think its the landlord- and inthis case the landlord is a person having control rather than the responsible person.
I think they switch context all the time in the Order and the use of Capitals to denote the "Responsible Person" as a noun would have been helpful.
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Cleveland in the case suggested who is "the responsible person who has overall responsibility for the premises " - I think its the landlord- and in this case the landlord is a person having control rather than the responsible person.
I would disagree Kurnal IMO the RP of each premises is the Responsible Person for the common areas his employees have access to. (Definition of workplace)
Consequently the landlord is not designated a Responsible Person for any part of the building but if he has total control of the the fire alarm for instance he would be classed as a Person Having Control and subject to the RR(FS)O.
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Hi Tom
I never said that it would exonerate the landlord and agree that the landlord could to plead due dilligence.
Also Cleveland is correct in saying the landlord would only be the RP for the communal areas. The landlord would be a PHC in the areas that his tenants control.
Conversely The tenants would be the RPs for their individual work areas, but are PHCs when it comes to the communal areas. They are PHCs because they can influence what happens in the communal areas (they may start storing things there for example).
Take this a step further now... Imagine a multi occ with three three tenanted occupiers as per Cleveland's example. All three tenants employ people so are without any argument Responsible Persons.
Each RP identifies that their individual offices need additional fire exits. Can the tenants simply employ a builder to knock a hole in the wall and construct a new final exit?
I would suggest not, as the physical bricks and mortar of the building belong to the landlord and s/he would need to authorise the works. So is the landlord also an RP of the individual tenancies too?
The answer is no, even though the landlord has final say he still not the RP, he remains a PHC for the individual occupancies, if the landlord refuses to form new exits the onus is then back on the individual occupiers as RPs to come up with alternative measures for the safety of their employees and relevant persons.
Some tenancy agreements will allow individual occupiers verying levels of authorisation and freedoms. But you can see how it gets very very messy at times, hence why Article 22 tries to ringfence the RPs together and get them co-operating and co-ordinating.
Kurnal, I think I must be missing your point about the use of capital letters in the fire safety order, as I feel it is generally makes it clear how to identify the RP.
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MR
In your example, one of the employers uses flammables.
Under article 22-
2) Where two or more responsible persons share premises (whether on a temporary or a permanent basis) where an explosive atmosphere may occur, [font=Verdana]the responsible person who has overall responsibility for the premises [/font] must co-ordinate the implementation of all the measures required by this Part to be taken to protect relevant persons from any risk from the explosive atmosphere."
In your example under article 22-2 who is the responsible person who has overall responsibility for the premises?
The landlord is a person having control rather than the "Responsible Person" as per article 3. This is one example of where I get confused. In article 22-2 I think they are using the term "responsible person"" simply as a description and not as a definition.
I hope this makes sense but somehow I doubt it will.
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MR I agree it is messy but I disagree with your statement saying the landlord is the RP of the common areas. An employer’s workplace extends outside the building therefore includes the common area. (See definition below.)
Art 3(a) defines the employer as the RP of this area but only where the RP has control. The RP doesn’t have control of the workplaces on the other floors or for instance the fabric of the building. I agree the landlord has total control over the fabric of the building therefore is a PHC and subject the art 5(3). Consequently if a RP needs an exit to comply with art 14 and the landlord refuses, both may be guilty of an offence depending on circumstances. Providing the RP has done everything in his power to convince the landlord, the RP would use art 33 as a defence not so the landlord. This would apply to any of the articles, or part of, the landlord has control over, fire alarm, or sprinklers take your pick.
Art 2 Definitions
“workplace" means any premises or parts of premises, not being domestic premises, used for the purposes of an employer's undertaking and which are made available to an employee of the employer as a place of work and includes –
(a) Any place within the premises to which such employee has access while at work; and
(b) Any room, lobby, corridor, staircase, road, or other place
(i) Used as a means of access to or egress from that place of work; or
(ii) Where facilities are provided for use in connection with that place of work, other than a public road
Sorry to butt in Kurnal a terrible trait of mine but I do think the word premises refers to the individual workplace, what we called an occupancy under the FPA, and not the building. In this case the RP of the workplace (premises) who is creating the explosive atmosphere must co-ordinate the implementation of all the measures required by this Part to be taken to protect relevant persons from any risk from the explosive atmosphere.
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Thomas there are no private discussions going on here anyone is welcome to make a contribution at any time and your comments are always welcome.
I agree that your interpretation would make a great deal of sense. He who creates the risk is best placed to control that risk.
However I am not convinced that is what article 22.2 acually says, again IMO its down to poor use of language and use of the words "premises" "responsible" "responsibility" repeatedly in succession without defining the context.
I would guess that in a multi occupied premises only the landlord would have the authority to co-ordinate the activities of all tenants. An individual tenant is unlikely to be able to do this.
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I checked out guidance note number 1 but this simply repeats the same words. http://www.communities.gov.uk/documents/fire/pdf/guidance1enforcement2005.pdf
"103. In premises where an explosive atmosphere may occur the responsible person who has
overall responsibility for the premises must co-ordinate the implementation of all the
measures to protect the relevant persons.
104. The intention of this article is to require the responsible persons and others with
analogous duties to take all reasonable steps to co-ordinate the measures they take to
comply with the requirements under the Order.
105. If there is a failure to co-operate or co-ordinate between responsible persons (or those
with analogous duties) the enforcing authority may need to consider enforcement
action to resolve any difficulties."
Who is the "responsible person who has overall responsibility for the premises"?
Does "premises" in this case mean the whole building or only the demise using the hazardous materials? I think it means the whole premises in a multi occupied building and so only the owner would have this degree of control. The guidance note no 1 appears to support this view.
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 profi t).
37. If so, article 3(b)(i) provides that the person with control is the responsible person.
Here we go again. The official guidance note says that in a workplace that is not under the employers control the person with control IS the responsible person. And then apears to elaborate on the meaning of the term employer. People wonder why there is such confusion over this?
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Prof
103 IMHO assumes that all persons have co-operated as is required and therefore it must be the owner, as he is the person most likely to see the big picture, Surely as you say 36/7 supports thsi ???
Hope this didn't give you a restless night judging by the earliness of your post ;D
davo
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Kurnal sorry about the pathetic attempt of humour I meant nothing by it, you can see why I stay well clear of the banter thread.
As MR said its messy and BLEVE commented its up to the courts which I agree with fully.
I also agree the main problem is the poor use of language and the order is badly drafted also the numbers of persons who have duties under the order. The RP's have a duty under art 22 and the landlord/owner, as a PHC, also has a duty under art 22 but I wouldn't class him as an RP despite how art 22 is drafted. However I do agree on reflection of what you have said it is up to the landlord/owner, as a PHC, who must co-ordinate the implementation of all the measures to protect the relevant persons.
As for "premises" there is a definition in art 2 but even that is not clear.
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The Order is as clear as mud but hardly surprising. By way of comment, I would take this opportunity to say that I appreciate the wealth of experience and knowledge you guys have, hats off to you all.
Bleve
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MR
In your example, one of the employers uses flammables.
Under article 22-
2) Where two or more responsible persons share premises (whether on a temporary or a permanent basis) where an explosive atmosphere may occur, [font=Verdana]the responsible person who has overall responsibility for the premises [/font] must co-ordinate the implementation of all the measures required by this Part to be taken to protect relevant persons from any risk from the explosive atmosphere."
In your example under article 22-2 who is the responsible person who has overall responsibility for the premises?
The landlord is a person having control rather than the "Responsible Person" as per article 3. This is one example of where I get confused. In article 22-2 I think they are using the term "responsible person"" simply as a description and not as a definition.
I hope this makes sense but somehow I doubt it will.
Hi Prof
It does make sense and I now see where you are coming from. I must admit that I had forgotten about the explosives atmospheres scenario. As you quite rightly highlighted, there is an anomoly when it comes to defining the RP(s) in multi-occ ,ex-at situations . The way Article 22 is written in relation to that could be interpreted in several different ways. However I am of the opinion that there is still enough clout in article 22 to get RPs to talk to one another and decide on the best possible solutions in terms of fire safety, and should hopefully achieve the same result.
Hi TW
In my experience the RP for the communal areas is normally the landlord because the "tenant RPs" do not have full control over those areas within their tenancy agreements. They are PHCs in that they could affect the communal areas but responsibility for maintenance of those areas normally falls to the Landlord. Because the landlord will employ someone to look after those areas they are an employer and thus an RP by definition.
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The thing is, does it matter whether they are RP or PHC? It is an offence for either not to comply with matters within their control. Even if you can prove to me 100% that you are not the RP, if the suitability of the fire alarm is within your control as the installing contractor, and your poor installation means that the RP is not complying with article 13 and is putting relevant persons at risk, you have caused the offence, and as someone mentioned in 5(3) can be held fully responsible without going anywhere near 32(10). (32(10) seems to be intended
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Yes quite right Civvy it doesn't really make any odds
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To me it matters a great deal. You guys in the enforcement side of the job have sufficient tools in your armoury to hit me where it hurts irrespective of how badly you may prepare your case in court against me. The legislation is sloppy and its enforcement is scattergun. You fire a series of broadsides and if I am to defend my corner Ihave to face up to articles 33 and 34 and try and prove I am innocent - ie what I did was reasonable and appropriate.
This means I have to employ a legal expert to answer each charge, endure the worry and expense of mounting a defence against some of your ill considered charges, some of which can never legally stick because clearly not even the Secretary of State's Department understand what they mean.
Are we not all signed up to the Enforcement Management Model? Should not our enforcement be fair, reasonable and accurately targetted? Or does the fact that you can get me by a number of routes mean you can get away with being sloppy?
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I'm sorry Kurnal. I find your posting slightly dramatic and rather sceptical. I fully agree with Civvyand Midland that both the PHC and RP have almost dual responsibilities whichever way you look at it. There is a very good reason behind that and i think you need to rethink your outlook if you cannot see why that is the case.Yes article 22 is confusing in terms of explosive atmospheres, but otherwise it is very clear who is responsible.
I cannot see where you have an issue with the enforcing authority as it is not their fault that the secretary of state doesn't know what is going on. The Sos responsible was lets not forget a labour SoS. You were an inspecting officer once and perhaps getting confused about the conduct of your own brigades approach to enforcement. People just dont end up in court . IOs dont dicate what goes to court it is solicitors and legal experts that do. Accussing all IOs of being sloppy is unhelpful , untrue and frankly somewhat bitter. Im in the same position as you . I was once an IO and now out in the big bad world. I know inspectors are a hell of a lot more professional than I and my colleagues were in my day. You normally take issue when risk assessors are bad mouthed, as do I, so lets try and be sensible and not emotive about the situation. Yes there are crap inspectors, there are also crap assessors. So come on, be a bit more constructive, how many times have you been in court taken by the fire authority?
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C3 its all for the sake of argument no hard feelings or anger anywhere just trying to explore the RRO by provoking some discussion. They used to call it devils advocate in our day. Sorry if its over dramatic. I have never claimed to be a thespian.
And I know for example the targets of this- MR and Civvy - are the most diligent and caring people with the same values as me. Thats why we spend so much of out lives in this place.
But back to the argument my point is that from the last few postings it appears there is a view that the Responsible Person or others can be held to account using all of several potential different charges and so the Fire Authority does not need to exercise extreme diligence in researching and formulating charges against me as an RP - they are confident that they can get me one way or another. To me that feels like double jeopardy and from my point of view defending any charge is far more stressful, expensive and difficult than issuing one.
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Hi Prof
I personally don't see it as double jeopardy at all. My rationale is that in the absence of definitive guidance from the powers that be, in terms of the article 22 explosive atmosphere situation, there are atleast some known factors which should guide us on how we broach the problem.
And this is where we get back to my original point. In most circumstances I think Article 22 is generally easy to follow. We know that RPs have a duty to co-operate and co-ordinate with one another, that in some cases those RPs will also be PHCs, and there is,as C3 states, 'duality' between the responsibility of a PHC and RP, for very good reason.
That tells us that all RPs (who will also be PHC by virtue of the example we gave) should be talking to one another. No big news there then. The rub comes when you look at who is overall in control. This could only be, in my opinion, the landlord. But even if you disagree with that, you will accept that the landlord is an RP and should be co-operating and co-ordinating anyway.
Just in the situation of a PHC blocking a fire exit in the communal areas where people are trapped in a fire, the landlord as the RP of those areas could claim that it was the PHC that caused him to commit an offence.
So I dont see much difference. This "person having overall control" business is not exactly a red herring, but neither does it alter one RP being able to claim that another person caused him to commit an offence - article 32(10) . This allows the enforcing authority to pursue other person (ie someone other than the RP). It could well be of course that the RP does share some of the blame depending on the circumstance so he may also be prosecuted. But it depends on the circumstances and is no different to any other possible prosecution in that sense.
If everyone is talking together as they should under article 22 , you should in a situation where a problem occurs (theoretically).
In the real world of course that doesn't follow, but as an assessor if you have told your client that as an RP they must co-operate and co-ordinate with the other RPs, that if Ex atmospheres exist the landlord is overall responsible (in my opinion) but that indivduals RPs also have their responsibilities too. Is there really any difference to this and any other article 22 situation?
Onto your David and Goliath story, and just to clear up the reality of court cases and legal action for anyone who may be reading this thread and unfamiliar with the legal process.
Firstly I totally accept that you as a self employed assessor would have to foot hefty bills for legal costs if you ever went to court, and that the process seems weighted in favour of the enforcing authority.
But let me please assure you that cases aren't brought willy nilly, and that a lot of stages need to be succesfully completed when building a case before any of us see the inside of the courtroom. There are more and more solicitors and barristers out there who are getting to grips with the Fire Safety Order, and challenging the authorities. That is a good thing on several fronts. It prevents sloppyness from inspectors, and overburdensome enforcement , it ensures enforcers bring forward water tight and genuine cases.
Not all Fire Authoritess are the same, but as C3 said Inspectors are alot more professional, or atleast better informed, about legal processes, propotionality, openess and fairness. And as always Prof is you can up with a reasonable argument for certain situations or decisions made I would sincereley hope an inspector would listen and enter healthy debate with you for the ultimate benefit of the RP. Afterall arent we all concerned with protecting people from fire?
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That tells us that all RPs (who will also be PHC by virtue of the example we gave) should be talking to one another. No big news there then. The rub comes when you look at who is overall in control. This could only be, in my opinion, the landlord. But even if you disagree with that, you will accept that the landlord is an RP and should be co-operating and co-ordinating anyway.
I understand the concerns of Kurnal, I agree with C3 and most of your submission but you keep on saying that the landlord is the RP of the common areas and IMO you are wrong. Art 3 (a) states if it it’s a workplace the employer is RP and the definition of a workplace includes all common areas therefore in a multi occ individual RP’s are responsible for the commons areas, their employee have access to. But if they don’t have control they have defence under art 33. The landlord has a duty under any article or clause that he has control of, art 5(3) and claiming it’s the landlord’s workplace because occasionally a one of his employees will be grafting in the common area is grasping at straws.
As for art 22(2) I believe it’s been drafted incorrectly however I would accept the landlord does have overall responsibility and is subject to this clause, what the lawyers would make of it is another matter, I think they call them loop holes.
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That tells us that all RPs (who will also be PHC by virtue of the example we gave) should be talking to one another. No big news there then. The rub comes when you look at who is overall in control. This could only be, in my opinion, the landlord. But even if you disagree with that, you will accept that the landlord is an RP and should be co-operating and co-ordinating anyway.
I think they call them loop holes.
No, they call them big houses.
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Tom
Common Areas will inevitably be access/egress unless genuinely shared say a kitchen area.
In those areas the landlord will be responsible for decor unless the lease says diferent. I don't see individual RPs as having control here unless one of them introduces something into that area that creates a hazard then the others should raise this initially with the offender if known, then the landlord.
So in practice I agree with C3 on this point :o
davo
ps The common areas will be RA'd by every RP
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Thanks to all for your explantions and especially to MR for his detailed response.
As always we come back to the unfortunate wording of the of the Order. I accept that all RPs and PHCs are dutyholders so their particular role makes little practical difference.
But I have been witness to some very heated discussions over this in high places by people who are adamant that there are very fundamental differences between the two and that where there is an employer who occupies any part of a multi occ building they and they alone will be the RP and PHCs are never anything other than than a PHC.
Calling a PHC an RP causes offence in in these same circles. But there it is in article 22 .
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The relationship between an RP and PHC is confusing, but I can understand why it has been structured in the way it has.
It's designed to stop an RP from being shafted by the actions of a PHC (such as a fire alarm engineer for example). The enforcing authority could pursue a dodgy fire alarm engineer if the act of that engineer caused the RP to commit an offence. Infact it may be that the enforcing authority drops any action against the RP and just pursues the PHC.
This shouldn't be confused with the point Tom made about their being no defence for an RP under article 32(2) (11) as this refers to direct employees of the RP rather than third parties.
Tom just to pick up on your point, about the RP of communal areas. Davo makes the argument that to some extent the terms of a lease agreement may actually define whom is responsible for the communal areas. And I think he is quite correct. However it would be rare for a tenant RP to be given responsibility for communal areas for several reasons. There could be conflicts arising from such a scenario, and one occupier wouldnt want to foot the bill for the upkeep of equipment that other occupiers are using and causing wear and tear to.
And dont forget if the landlord employs someone to maintain fire safety equipment in the communal areas he then becomes by definiton an RP, as detailed by article 3.
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Tom
ps The common areas will be RA'd by every RP
I wish!
Most tenants, if they have FRA'd at all, stick to their demise as if it is floating in the ether and not part of a larger building. Our clients rarely receive cooperation/coordination communications from tenants, it's all one way
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davo I have never said the landlord was not responsible he is a dutyholder under art 5(3), as a PHC, most probably for many articles or clauses of the order but he is not a RP. The only way you could make him an RP would be if you classed the common areas was his workplace which I agree you can make a case, for but it is very tenuous. The RP is also a dutyholder art 5(1) but if he has no control then he has a defence under art 33.
A further point I would like make is an RP is a dutyholder 5(1) for all articles 8 to 23/24 with a defence if he does not have control. A PHC is a dutyholder art5 (3) for individual articles those that are within his control.
MR I am not suggesting the RP foots the bill if he does not have control it would be the landlord as a PHC.
Kurnal I fully agree with you but as I have said art 22(2) is bad drafting and not in the spirit of the order “He who creates the risk, is best placed to control that risk.”
AB I am not arguing the practical side just what the order states.
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Thanks Tom that is a useful and clear summary.
Doesnt use of the term dutyholder make it so much easier!
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No Tom you are missing the point completely. Read again what MR has said to you in numerous posts. The landlord if employing someone to maintain the communal areas must be an employer and therefore without any argument is a responsible person. Why do you fail to see that? If you dont believe us read article 3. MR has pointed this out time and time again. Where did MR suggest the RP foots the bill? I dont think you read what was posted properly.
Where on earth do we get the term "duty holder" from and on what basis is that lawful according to the fire safety order?
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No Tom you are missing the point completely. Read again what MR has said to you in numerous posts. The landlord if employing someone to maintain the communal areas must be an employer and therefore without any argument is a responsible person. Why do you fail to see that?
There are occasional situations in which the landlord of a building is not an employer albeit this is quite unusual. And it is these unusual situations that I keep banging on about.
One converted cotton mill owned by an old gentleman and let to multiple small businesses. He used to run the mill then in the seventies when the business failed let various parts of it to other local businesses. He retains control and collects the rent etc. Under the terms of the individual leases the owner is responsible for maintaining the common areas. This work is carried out by contractors not employees. Under articles 5.3 and 5.4 the owner is therefore a person having control not a responsible person.
The building is used as a workplace by the tenants and by the cleaning contractors. The employers are responsible persons under article 3 - ie the tenants and the cleaning contractors.
Where on earth do we get the term "duty holder" from and on what basis is that lawful according to the fire safety order?
I started using the term dutyholder in this context - but actually its stolen from the Scottish legislation so you are right C3- has no legal relevance in England and Wales. I find it useful though because I think the Order uses responsible person in two seperate contexts. Usually where the term responsble person appears in the Order I believe they mean Responsible Person as defined in Article 3.
But sometimes when they use the term responsible person they simply mean the person having responsibility for something. We see this in several areas but in particular in article 22.
I find for my own interpretation it all makes a lot more sense to me if I substitute dutyholder for this latter context. I also wonder if this is why so many people find the Order so confusing.
But I am probably talking hogwash again.
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C3 I am not missing the point and I realise MR has make same point more than once, but saying because a maintenance man works in the common areas, makes it a workplace and therefore the landlord can be classed as a RP, this is a very tenuous argument, any decent lawyer would make the proverbial of it with out much effort.
From MR's submission.
Tom just to pick up on your point, about the RP of communal areas. Davo makes the argument that to some extent the terms of a lease agreement may actually define who is responsible for the communal areas. And I think he is quite correct. However it would be rare for a tenant RP to be given responsibility for communal areas for several reasons. There could be conflicts arising from such a scenario, and one occupier wouldn’t want to foot the bill for the upkeep of equipment that other occupiers are using and causing wear and tear to.
I was saying I do not see any conflict, the person who has control whether it is the RP or the PHC would be responsible in accordance with the order, and I assume he would foot the bill, if a tenancy agreement changes the rules that is another matter. (I read occupier as RP.)
Th term "duty holder" was a used as a description of any person subject to “art 5 Duties under this order” although it is a definitive term in Scottish legislation.
Kurnal do you remember us arguing with CT about Responsible Person as opposed to Duty Holder its hard to admit but may be he was right. :)
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Yes Tom I wont say so here but if we meet somewhere out of earshot I might agree with you that he was right.
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Tom
I own this place above.
All my lessees share the entrances and stairs, also the toilets.
So I employ a cleaner
QED
davo
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Tom
I own this place above.
All my lessees share the entrances and stairs, also the toilets.
So I employ a cleaner
QED
davo
You are an employer then Davo. But I have a place next door just like yours.
I am a doddery old codger and very obstinate. I am determined not to employ anybdy. So I use a contractor to clean it for me. Quid.
(Thanks for the sponsorship by the way safely received.)
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Davo I have never said you cannot make a case for considering the common areas a a workplace but it is a very tenuous argument and more important it is not necessary as the landlord/owner is a PHC and responsible for any of the articles or clauses he has control over. If it went to court you would spend the first couple of days arguing if the commons areas could be classed as the landlord/owner workplace also many of the articles 8 t0 23/24 he would not have control of therefore irrelevant to him he would simple apply art 33.
Kurnal's old codger would most likely be a PHC and you would have him by the proverbial.
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Hi Tom
Stay with me on this if you will...
As Davo stated, if I directly employ a cleaner to service the common areas of my property, I become an employer. The cleaner's workplace is the communal area, and I would thus be classed as an RP without any argument. That is very much black and white when it comes to the order in that respect and certainly not tenuous.
If i didnt employ anyone as per Kurnal's scenario then Article 3(b)(i) or 3(b)(ii) would need to be applied . These are the parts of the order which effectively deals with level of responsibility.
Take Art 3(b)(i) for instance, you could argue that the landlord is running a business trade or undertaking from the premises, because he is renting out parts of those premises and getting money in return for it. OK i admit that is a bit tenuous, but...
Eitherway you would need to establish what the tenant/ occupier is or isn't responsible for. If the lease says the tenant is responsible for maintaining the communal areas then fair enough, I would accept that tennant was the RP for the communal areas.
In reality however you are more than likely to be looking at Article 3(b)(ii) which says the owner (landlord) is responsible.
It mentioned it would be rare for a tenant to be made RP for communal areas. Here's why:-
I am a landlord of multi occ with ten occupiers.
You are one of those occupiers. Im a little cute and try to get you to sign up to a lease which makes you responsible for the communal areas.
The terms would make you responsible for everything - from redecorating to renewing carpets, the electrics, making any necessary repairs, servicing and maintaining the fire precautions. It makes you responsible for any damage or wear and tear caused by other occupiers.
Why should you foot the bill for the damage or wear and tear caused by other tenants? - I think you would more than likely tell me to shove my tenancy agreement.
In most multi occs I come across the tenants are responsible for the areas they lease, but the communal areas are looked after by the landlord. I suspect those situations exist because having a tenant responsible for the communal areas would be frought with complications and hassle.
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It's funny that you use the example you did - there is a type of office building design used on at least two estates I've visited that are:
Ground floor office with whole buildings electrical distribution meters & fuse-boards in a cupboard
First floor office
Common stair with ground floor kitchenette & toilets off
The leases have been cunningly drawn up to give the ground floor tenant a superior lease making them liable for the common areas (& thus fire alarm and e/l) with an easement to allow the first floor access & use of the shared facilities.
So when asked to FRA these sites we were only to do those with vacant areas and only to highlight fire alarm issues (e.g. no maintenance) where the ground floor was vacant.
The reason this was done was because the LL realised that the service charge for these areas would be tiny, yet the maintenance charges disproportionately high, so the leases were designed to avoid this.
So in the fully let buildings the Landlord was not employing, nor (they could argue) did they have control.
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One converted cotton mill owned by an old gentleman and let to multiple small businesses. He used to run the mill then in the seventies when the business failed let various parts of it to other local businesses. He retains control and collects the rent etc. Under the terms of the individual leases the owner is responsible for maintaining the common areas. This work is carried out by contractors not employees. Under articles 5.3 and 5.4 the owner is therefore a person having control not a responsible person.
The building is used as a workplace by the tenants and by the cleaning contractors. The employers are responsible persons under article 3 - ie the tenants and the cleaning contractors.
This seems quite simple to me:
Old gentleman is RP of common areas by virtue of article 3(b)(i)or(ii)
Tenants are RP of their own areas by virtue of article 3(a)
Contractors and employees of other companies are covered by article 20. i.e. The owner is responsible for their safety while in the common areas, and should send details of the risks etc to the employers involved. (Granted, this NEVER happens)
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MR I have only considered the RR(FS)O my interpretation is based on the order alone which I accept is not well drafted.
We agree the employers (occupants) are RP’s and a case can be made that the owner/representative can as well (art 3). We won’t argue about the strength of the case.
Where we seem to disagree is
1. The extent of the employers’ workplace and
2. Is it best to treat the owner/representative as a RP or a PHC?
My response to 1.
If you checkout the definition of a workplace it includes the landing, the stairs, and across the yard to the main gate. Therefore a workplace extends further than an employers’ workshop/office and includes any area his employees have access to i.e. the common areas.
This IMO means each tenant (RP) is subject to articles 8 to 23/24 in the common areas as well as its own workshop/office but if they do not have control they can use art 33 as a defence.
My response to 2
Art 5.1 states a RP must ensure the duties imposed by articles 8 to 23/24 are complied with therefore an owner/representative would have to conduct a FRA, also review it. This also applies to the employers and who is best suited, a person who is occasionally there or an employer who is there everyday, this will also apply to other articles.
If the owner/representative is an RP he would also be subject to articles 8 to 23/24 in the common areas and in a multi occ how many owners/representatives conduct a FRA in the common areas?
However if you consider the owner/representative as a PHC and make him responsible for the articles he has control over like fire alarm, extinguishers and means of escape in the common areas. The employer can use art 33 as a get out of jail card, if required.
I also accept the tenancy agreement is important because it could define who has control of what and where but as I have said I have only considered the RR(FS)O.
It looks like we are never going to agree on this and also repeating ourselves therefore for the benefit of others let agree to disagree.
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It looks like we are never going to agree on this and also repeating ourselves therefore for the benefit of others let agree to disagree.
That's fair enough Tom, but hey dont forget that it's good to debate, and whilst we may be repeating ourselves slightly, others may benefit from those discussions. As BT once said, "Its good to talk".
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MR I totally agree with you but I also know legislation is not the most scintillating of topics and I would not want to bore the proverbial off anybody. However I have learned a lot which has changed my opinion, on certainly one item and reinforced others.
I may be a boring old fart but I don’t wish to reinforce it. :D
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Tom
Repetition is good cos the penny doesn't always drop first time ??? (speak for youself Davo) (I am)
Also, a slight change of words or emphasis second time around works wonders, so don't stop, eh :'(
davo
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I may be a boring old fart but I don’t wish to reinforce it. :D
Id never accuse you of being a boring old f*rt, quite the opposite Tom!
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Whats the opposite of f*rt then Retty? ;D
Sorry must post 1000 times "I must stop being a smartass"
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Whats the opposite of f*rt then Retty? ;D
Sorry must post 1000 times "I must stop being a smartass"
Havent you got any bike rides you could be going on, matey ?
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Thanks guys for your comments but why change a habit of a lifetime. As for for being an old f**t I am afraid its a fact of life and there isn't anything one can do about it. ;)