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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: ando on August 11, 2010, 12:07:27 AM
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I am hoping to gain the opinions of other enforcement officers over what i feel is a fundamental aspect of fire safety work..
Having carried out an audit of a premises where the fire safety measures are below what is reasonable for the risk I obviously have to provide a written communication to the Duty Holder to indicate the areas where improvement is required for them to comply.
This might be a notice of unsatisfactory measures or if more serious then an enforcement notice.
Previously I have indicated in the notice the minimum risk/cost/inconvenience based recommendations which I would accept as being compliant with legislation, and the notice would be a fair reflection of what had been discussed during the audit.
My new line manager in a bid to ensure a more consistent approach across the team is insisting that any recommendations made in notices are taken from the guidance, even if this not risk/cost/inconvenience based..
I am very uncomfortable with this as i feel this goes against the spirit of the law and the good enforcement concordat..
I should point out that all our letters make clear that the recommendations made are only one solution to the problem and other methods may well be suitable.
Which method if any do people feel is being prescriptive?
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Ando, I am of the opinion that it is not the job of the enforcement officer to offer prescriptive solutions or recommendations to dutyholders (resposible persons in Engerland) but simply to highlight where deficiencies lie. The dutyholder/responsible person would then be expected through their fire safety risk assessment to address these shortfalls.
That said, the direction we are given in the compilation of enforcement notices contradicts this somewhat as they tend to be quite prescriptive.
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Part of our duties is however to inform, advise and educate and when giving advice be aware of the cost to Duty holders and to assist them to keep the cost of compliance to a minimum...I do not tell them what to do, but where advice is given it should recognise the risk/cost/effort involved...
To that end would you say it is appropriate to give risk/cost/effort based advice based on circumstances or just quote guidance because its easy,consistent and not our problem.
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Ando
Does your line manager have any fire safety experience?
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If you are taking your guidance from 'the guidance' then your line manager should notice that 'the guidance' itself explains the following;
"This guide applies to England and Wales only. It does not set prescriptive
standards, but provides recommendations and guidance for use when assessing
the adequacy of fire precautions"
I can appreciate the need for consistency, but is applying one set of rules regardless of the risk really being consistent?
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Hi Ando
Guidance is just guidance, and it is important that inspectors keep an open mind when it comes to proposed solutions offered by the RP or assessor, and not be blinkered or constrained by current guidance.
I can to some degree follow your manager's comments - you have to be careful when accepting solutions which stray from benchmark standards, and guidance. It could also be argued that by sticking to the guidance you establish some form of consistency.
But then again the inspector should be competent enough to recognise when a proposed solution, which doesn't follow current guidance, will be suitable or not.
To me the key thing is to always make it clear to the RP that they can choose alternatives that achieve the same level of protection.
To pick up on Mr Angry's point about specifying the failings found during an audit, but not offering any proposed soultions to deal with them, to me that is totally unhelpful. There is absolutely no reason why enforcing authorities shouldn't offer a proposed solutions, to assist the RP, so long as it is made clear that the RP is free to choose alternatives.
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Well, we have to provide recommendations when highlighting failures. This was proved in the case law of BT Fleet vs Mckenna.
I know that from the legal opinion, any recommendations issued should be in line with the guides issued under article 50. In fact a well known barrister has made it clear that if it is not in the guide, it does not exist.
I am of the opinion that an enforcing authority should be issuing advice in line with the standards prescribed by the secretary of state. It is for the responsible person to offer alternatives in the fire risk assessment. Nobody is saying that a lesser standard is not acceptable, but there should always be a starting point. The starting point has to be the CLG guides.
Fire away ;)
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Hi FSO
The guides are a starting point, and yes it is for the RP to come up with counter solutions if they do not agree with those suggested by the enforcing authority.
But there is also no reason why a fire inspector couldn't suggest solutions which don't feature in the guides either, so long as that alternative achieves the same thing.
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Hi Retty
I understand your angle, but I then see that the fire authority becomes responsible for the provision of the fire safety measures not the responsible person.
There is little defence in law if there is a departure from the benchmark standards without very good justification. Now please do not think that I am a codehugger because I am very far from it.
I am just uncomfortable with the principle of the fire authority accepting the liability for any departure from agreed national standards. That is what a fire risk assessor should do.
Who gets prosecuted if the departure didnt quite actually do the job?
I fully support the motion of providing advice and would give advice to what standards are reasonable, but I would be very clear in stating that any departure from the guides should be justified in the FRA.
Thoughts?
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Ando
Does your line manager have any fire safety experience?
Whatever makes you ask that?
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Guidance Note No 1 states:
"141. An enforcement notice should set out why the responsible person has not complied
with the Order and set out the provisions which have not been complied with. The
notice may be framed to give the responsible person a choice between different ways of
remedying the contravention – but in some cases, there may only be one solution which
would adequately remedy the contravention and it would be counterproductive, timeconsuming
and costly to suggest there is a valid alternative."
As I see it this is not to suggest that the Authority should specify detailed specific technical solutions, more that they should, for example, require that the means of escape should be improved in order to provide a protected route, but to point out that other solutions may be possible which may include the provision of alarm and detection systems or sprinkler systems.
I think broad guidance is the intention.
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I think there is a need to distinguish between the giving of advice to dutyholders of which enforcement authorities are obliged and the carrying out of a fire risk assessment for them. I think in reality a common sense approach is often taken dependant on circumstances and risk.
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As I see it this is not to suggest that the Authority should specify detailed specific technical solutions, more that they should, for example, require that the means of escape should be improved in order to provide a protected route, but to point out that other solutions may be possible which may include the provision of alarm and detection systems or sprinkler systems.
I cant agree with that. Its not for the fire authority to give several solutions. I conceed that they should give A preferred solution, but not several. You cant have your cake and eat it. The responsibility is on the punter not the fire service. Either you want self assessment or prescription. An enforcement notice is normally to call time on non compliance and enforce a solution to remedy certain failings immediately.
The fire authority give their preferred solution. If the punter doesnt like it then it is up to them to come up with an alternative. Isnt that why we are in a job kurnal?
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Ando
Does your line manager have any fire safety experience?
Whatever makes you ask that?
Because you have said he/she is "New" and "any recommendations made in notices are taken from the guidance, even if this not risk/cost/inconvenience based."
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I think Nearlythere's point is valid.
A characteristic of inexperienced assessors or enforcers is a tendancy to hug the codes due to a lack of awareness and understanding of the underpinning fundamentals behind them.
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FSO is talking about the legal aspect which in my opinion never includes common sense. Any recommendations you provide needs to be fully justified, preferably in writing (guidance or standards or other official documents) and as Kurnal says broad guidance is the intention indicated by Guidance Note No 1. It has been said many times its the RP responsibility to provide the solution not the FRS and if you you go too deep remember you may have to climb out the hole later.
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If an Enforcement Notice is broad instead of detailed, could a RP use it as a defence in court if an Authority prosecuted for non compliance- stating that they thought that they had complied with the Notice, the fact that the Notice was not explicit enough meant that they misunderstood what the Authority wanted?
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Hi Ando
Guidance is just guidance, and it is important that inspectors keep an open mind when it comes to proposed solutions offered by the RP or assessor, and not be blinkered or constrained by current guidance.
To pick up on Mr Angry's point about specifying the failings found during an audit, but not offering any proposed soultions to deal with them, to me that is totally unhelpful. There is absolutely no reason why enforcing authorities shouldn't offer a proposed solutions, to assist the RP, so long as it is made clear that the RP is free to choose alternatives.
My personal approach is to use the guidance where it is appropriate, but like to be open minded both with my own and the DH's solutions..Under Scottish law the duty holder has to provide "reasonable measures", Its my job to ensure they have reasonable measures and to advise where necessary on what reasonable measures are; given the circumstances. Not sure how similar it is in england and wales.
I base what is reasonable as being the minimum standard that i will accept at the end of the process.
The DH therefore has a clear view of where they stand. That has got to be easier for them rather than trying to work out if they can get away with less. They are made aware that other solutions exist (I indicate these verbally during the audit, but will only mention one solution in any written report.
I do not see it as my job to try and push guidance like some double glazing salesman (oops person) and see what i can get out of the DH...I see myself as there to help the DH and the relevant persons equally.
There are of course DHs who really are not the least bit interested, but i do find that being reasonable, helpful, putting them at ease and fully explaining the logical reasoning behind each requirement makes the job a whole lot easier.
My methodology ensures that i very rarely need to go to enforcement or prohibition, though don't think for one minute i am a soft touch. The safety of relevant persons is my first priority! The question i ask myself is "Would i let a family member stay there?"
In my experience of assessors work it seems they follow the guides so rigidly its almost a cut and paste job. I do feel rather sorry for DHs who are getting such poor service and value for money.
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In my experience of assessors work it seems they follow the guides so rigidly its almost a cut and paste job. I do feel rather sorry for DHs who are getting such poor service and value for money.
Interesting comment ando. I would be interested to hear a couple of examples, because on the face of it it would appear difficult to criticise a consultant for making recommendations that are in accordance with National Guidance- unless the premises already had satisfactory alternative arrangements in place?
I wonder how widespread this view is amongst enforcers?
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"In my experience of assessors work it seems they follow the guides so rigidly its almost a cut and paste job. I do feel rather sorry for DHs who are getting such poor service and value for money."
And new line managers?
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I wonder how widespread this view is amongst enforcers?
Perhaps a bit of a sweeping statement.
I guess some assessors may take the "easy option" and just copy and paste from the guidance to earn a quick and easy buck, or because they just dont understand fire safety enough to offer suitable alternative solutions, but in my experience they are few and far between.
It all comes down to how competent and good the assessor is - if the assessor recognises, and can justify, that the standards are overburdensome in a given situation, and can thus save his or her client money and disruption with alternative solutions which achieve the same thing, then morally I'd expect them to do so.
Most of the decent assessors Ive dealt with do so.
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If an Enforcement Notice is broad instead of detailed, could a RP use it as a defence in court if an Authority prosecuted for non compliance- stating that they thought that they had complied with the Notice, the fact that the Notice was not explicit enough meant that they misunderstood what the Authority wanted?
This depends on how detailed you mean, IMO if you are referring to individual items then that's too detailed if its more on the lines of "the travel distance from the offices on the third floor to the main staircase is excessive and the control measures in place are not considered adequate" would be as detailed as you would need to go. In addition, on the enforcement notice the old hackneyed phrase "Do not hesitate to contact me if you need any clarification on this notice" should be included. Also included on the notice statements explaining, the notice used national guidance as a benchmark and RP’s right to provide an alternative solution, plus the RP rights under the legislation.
I believe a more detailed report, ALARP and alternative solutions is more appropriate at the audit stage, not at the enforcement notice stage other than to dispute the FRS opinion.
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I totally agree Retty
After all, thats how a good risk assessor can justify paying their mortgage off with their fee! ;)
Thats also where the good enforcing officer should be able to balance the argument against the legal requirement.
I know too many code huggers and it annoys me alot, but we must have the consistent approach as an enforcing authority.
FSO is talking about the legal aspect which in my opinion never includes common sense. Any recommendations you provide needs to be fully justified, preferably in writing (guidance or standards or other official documents) and as Kurnal says broad guidance is the intention indicated by Guidance Note No 1. It has been said many times its the RP responsibility to provide the solution not the FRS and if you you go too deep remember you may have to climb out the hole later.
You are right Tom, I am looking from the legal aspect which I do agree does not always apply common sense. However the enforcing authorities should be absolutely watertight and therefore should apply princlples advised by their legal council.
Legilslation and guidance notes are one thing, but case law is just as important when applying legislation. Sometimes this is not always as obvious.
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For the sake of consistency a fire authority can state that it champions / advocates use of the official guides as best practice, and will always use the contents of those guides when giving advice / taking informal action / issuing enforcement notices.
But it must also make clear that the RP is free to choose alternative solutions which achieve the same level of protection.
And when such alternatives are proposed, they should be properly scrutinised, not rejected at the drop of a hat by the enforcing authority simply because the proposals dont conform to what is in the guides.
That said we do live in a blame culture (sometimes a blameless one), complex litigation and mitigation means that anything which strays away from known benchmarks and standards is often treated cautiously,for good reason.
For certain failings there can be multiple tried and tested solutions on how to remedy those failings.
For others there may only be one known tried and tested solution .
Often there are non tried and tested solutions put forward, but how would we know if those solutions are appropriate, without some form of evidence to demonstrate they work ?
Plus it is often too prohibitive, in terms of time and money, for an RP or assessor / consultant to prove that certain theoretical solutions would work!
With risk assessment you will never have complete consistency.
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Spot on Retty ;)
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I don’t think the enforcers should list acceptable alternatives, but once a deficiency has been highlighted they need to be in communication with the RP/DH to give the nod to any proposed works before they begin. Ultimately they need to sign something off so why not discuss the alternatives with the RP/DH? A bit like the planning officers are supposed to do with planning applications that get knocked back at the first stage. They are supposed to say what will get through planning and what won’t get through; that principal should apply to the enforcers too.
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MR
Agree with what you say, pray you get a reasonable I/O who can see past his Guidance ;D
davo
ps Bobbins don't get me started on planning officers, grrrrrrrrrrrrrrr :'(
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ps Bobbins don't get me started on planning officers, grrrrrrrrrrrrrrr :'(
Maybe so but bobbins has a good point.
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Surely the solution here is for the enforcer to communicate with the DH.
I`m sure i am going to get slaughtered by fellow enforcers but most punters just want to be told what they need to do to comply. Any notice I send will give one possible solution to the problem, but I always make it clear that it is only one solution there may be others - but talk to me before you choose a different one to see whether it is acceptable.
There is no point knowing the answer to a problem and not sharing the info and just hoping they guess the right one.
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Surely the solution here is for the enforcer to communicate with the DH.
I`m sure i am going to get slaughtered by fellow enforcers but most punters just want to be told what they need to do to comply. Any notice I send will give one possible solution to the problem, but I always make it clear that it is only one solution there may be others - but talk to me before you choose a different one to see whether it is acceptable.
There is no point knowing the answer to a problem and not sharing the info and just hoping they guess the right one.
Hi DD
I think you are spot on
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Surely the solution here is for the enforcer to communicate with the DH.
I`m sure i am going to get slaughtered by fellow enforcers but most punters just want to be told what they need to do to comply. Any notice I send will give one possible solution to the problem, but I always make it clear that it is only one solution there may be others - but talk to me before you choose a different one to see whether it is acceptable.
There is no point knowing the answer to a problem and not sharing the info and just hoping they guess the right one.
Hi DD
I think you are spot on
Gents i pretty much agree with you, my offered solution will most likely be the minimum the DH has to do to comply. Therefore by my thinking if they choose to better this in any way they cannot go far wrong...
My boss seems to think that we should just tell them what the guide says or tell them "a suitable...AFD system" for instance, and leave the poor DH to guess what they need! By my reckoning that's not the least bit helpful.
It is ultimately the DH responsibility/ choice what they do to comply, but 95% of those i deal with have not the foggiest idea what they need to do (I am not being rude when i say this, its a fact) and for them to take their first steps on the road to self regulation and with 5 year gaps between audits I feel it is most important to take this opportunity to advise them as best as i can so they gain the confidence they need to move forward.
Call me old fashioned but i joined the fire service to help folk. DD please come and be my boss
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DD and Retty have it about right.
We really must provide direction in an enforcement notice although article 30 says we dont have to. There is case law that sets the standard. If you don't provide direction, be prepared to have the notice quashed by the courts and foot a hefty costs bill.
Of course communication is the key, I accept that. Just be VERY sure if you are going to step outside of the guidance.
There are some hungry barristers about ;)
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My boss seems to think that we should just tell them what the guide says or tell them "a suitable...AFD system" for instance, and leave the poor DH to guess what they need! By my reckoning that's not the least bit helpful.
Hi Ando
As you correctly point out for a fire authority to say in a report something along the lines of:-
"Failing: inadequate fire warning and detection system
solution: install an adequate fire warning and detection system..."
... without giving the RP guidance on what type and category of alarm system to install, and what standard is required etc, is wholly unacceptable and totally unhelpful.
I would hazard a guess and say that if a Fire Authority were to do that, and the thing went to court because the RP failed to comply with say an E/Notice written that way, then it would be kicked out of court. I seriously doubt the Magistrate / Judge would be very impressed either.They take a very dim view of anyone wasting courts time.
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Ando
your original concern was your new boss and the direction they gave. If you have a weekly/fortnightly/monthly departmental meeting then I would discuss your concerns with your peers and agenda it as a discussion point. Perhaps the new boss also needs a wee bit of guidance. If you dont have a planned meeting, then as a new boss it might be "suggested" that he starts them!!!
Hope you get the matter resolved.
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As you correctly point out for a fire authority to say in a report something along the lines of:-
"Failing: inadequate fire warning and detection system
solution: install an adequate fire warning and detection system..."
... without giving the RP guidance on what type and category of alarm system to install, and what standard is required etc, is wholly unacceptable and totally unhelpful.
MR if "in accordance with BS 5839-1:2002+A2:2008 and/or the DCLG guidance" was added to your proposed statement how do you think the courts would view it.
If the RP doesn't understand that, should the RP be doing the risk assessment without the aid of a competent person. I do agree the FRS should be giving advice but not on the enforcement notice
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As you correctly point out for a fire authority to say in a report something along the lines of:-
"Failing: inadequate fire warning and detection system
solution: install an adequate fire warning and detection system..."
... without giving the RP guidance on what type and category of alarm system to install, and what standard is required etc, is wholly unacceptable and totally unhelpful.
MR if "in accordance with BS 5839-1:2002+A2:2008 and/or the DCLG guidance" was added to your proposed statement how do you think the courts would view it.
If the RP doesn't understand that, should the RP be doing the risk assessment without the aid of a competent person. I do agree the FRS should be giving advice but not on the enforcement notice
That would be a start. But it still doesn't go far enough in my opinion. Not sure in that case how the courts would view it either.
There are many reasons why the majority of RPs are unaware of their responsibilities or can't afford to employ the services of a competent person to help them comply with legislation.
That is where the fire authority, in my opinion, has a duty to 'bridge the gap' and assist the RP wherever possible.
To me the basis of enforcement is to educate, and in my experience if you sit someone down, explain what they need to do, and why they need to do it, they are generally open and reasonable to any requirements placed on them. So educate and inform.
I also think most RPs want to comply, but they just don't know how to.
Enforcers can't hold the RP's hands for them, but they can point people in the right direction.
Pointing out failures and leaving the RP to try work out how to address them is absolutely disgraceful.
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Very commendable MR but does the FRS have the resources, after all you are enforcers not fire consultants. However I fully agree with your penultimate statement " Enforcers can't hold the RP's hands for them, but they can point people in the right direction" and I believe that is about as far as you should go.
I also believe this advice should be delivered at the initial stages not the enforcement notice stage.
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Hi Tom
I take your point that education should be delivered at the initial stages of contact because that should be part and parcel of avoiding formal enforcement further down the line.
Sometimes however enforcers do come across scenarios where immediate enforcement is required, perhaps in the form of an enforcement notice or prohibition notice for example. Even at that stage the enforcing authority should put forward preferred solutions to address any failings, otherwise the RP could be placed in a situation of perpetual non compliance, not knowing how to comply.
The FRS generally have got the resources to give help and guidance. I think most enforcers would agree that giving advice and discussing proposed solutions with the RP forms the largest part of an inspector's role.
The reason being is that most RPs need guidance and advice because they simply dont have a clue about their responsibilities under the legislation and dont know, or can't afford, to employ a competent person to assist them.
So it isn't until the inspectors pays a visit that the RP is informed of their duties.
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If the situation has gotten to an enforcement notice, then how much help should the fire service have to give?
Minor faults yes by all means recommend ways of rectifying them as I'd expect all good inspectors to do, but if the situation is serious enough to justify enforcement then surely there is so much wrong that prosecution may even be an option.
Be aware too that the clg guides are what the courts will look at as the standard to reach therefore how can they be deviated far away from? Please no talk about code hugging here either thats a different subject.
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I'm not going to argue either way on this one - if Stevo (or to be extreme, Ando's boss) issue the notice then the RP has little choice but to use a consultant (such as me) to get advice - therefore I have a job. If the fire service give detailed instructions then I'm out of a job but I get the day off to go cycling.
This discussion has been nicely rounded and illustrated the arguments on both sides leading a lot of people, I would imagine, to the common fire safety conclusion that each case must be judged on its individual merits.
I would just add this; that under older legislation I, as a typical fire safety officer, would not only tell them exactly what they had to do, I might even mark up plans for them!! We used to do that.
Of course, we're a million miles away from that situation now and resources don't allow this any more but I just want to make the point that, if you're confident in your fire safety knowledge, you need have no fear of taking responsibility for the precise nature of the fire safety measures that are installed.
1) It's good practice for when you retire and move into the private sector and get paid for doing this, and
2) it will encourage you to be damn good at fire safety rather than damn good at administering it.
I don't know what official notices are like now but the old prohibition notices we used to issue had to specify the nature of the problem and then give solutions to address those problems. The important thing for me was specifying the problem so that the person on the receiving end understood what the problem was. Without understanding the precise nature of the problem how can the solution accurately address it?
Mind you, no one used to read the old notices, probably any more than they read the notices they receive nowadays. The real answer always was and still is to talk to people.
If necessary, under caution!
Stu