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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: William 29 on January 07, 2011, 11:25:17 PM
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Tricky one this and I am hoping that someone out there has had experience of it and I don’t get a load of prescriptive answers!!
We have completed and FRA on a bungalow for 6 service users that have learning difficulties. 24/7 staffing is provided and numbers vary during the day or night, at least one supported living "carer" is provided at night that maintains a WAKING watch (no sleeping provision for staff is provided).
A BS 5839 PART 1 detection system is installed including call points and AFD to all rooms including bedrooms.
The windows from the bedrooms would be acceptable under ADB as escape windows.
All white goods supplied by the landlord (our client) are PAT tested.
The doors on to the bedrooms are domestic type doors and are of nominal fire resistance and of solid construction (not the egg box type).
The local fire officer is insisting (likely to serve an enforcement notice) on FD30s doors to every door on to the "protected corridor" including self-closing devices.
Given the provisions and staffing levels above we feel this is an over provision and onerous for the client. We agree the RRO applies given it is a work place. However there is no single guidance document that could be applied to this case in my view, it is not a care home, the premises and service users have been assessed for suitability for assisted/supported living.
My point is that the risk is no greater (and could even be argued less than) that of a COMPARIBLE domestic bungalow. I am at a loss as to why the fire authority are even inspecting and making such an issue over such premises??
Any sensible views please??
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Is HTM88 relevant?
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Hi William, a couple of other questions. Are the 'nominal FR' doors all self closing, is there a shared kitchen and lounge facility and what is the protection for these? You mention a 'protected corridor' - do all habitable rooms lead off this room and are the bedrooms nearer the exit than any kitchen? Lastly when was the premises built and was it a single family dwelling before you took it over. I am assuming all tenants have the nous to escape on their own and don't need assistance, smoking is not permitted and they have no other issues such as drink/drugs problems?
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Hi Kurnal, yes I would think so as I think the original use would have been by the NHS hence the over provision of an L2 detection system to 5839 part 1. It is now occupied by a private care provider and service users with my client being the Landlord.
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Hi William, a couple of other questions. Are the 'nominal FR' doors all self closing, is there a shared kitchen and lounge facility and what is the protection for these? You mention a 'protected corridor' - do all habitable rooms lead off this room and are the bedrooms nearer the exit than any kitchen? Lastly when was the premises built and was it a single family dwelling before you took it over. I am assuming all tenants have the nous to escape on their own and don't need assistance, smoking is not permitted and they have no other issues such as drink/drugs problems?
The doors are not self closing and don’t need to be in my view (you would just trap the service users in their own home) the care provider has a door closing procedure at night similar that that in a domestic house at night time!
The layout is of a normal domestic type bungalow with a kitchen and lounge (shared) and bedrooms off the one corridor. There are 3 ways to exit the premises, via the front door, lounge patio doors or bedroom windows.
No smoking by staff or service users. All cooking is supervised by the carers. FSO states that the service users require assistance to evacuate (I question this) and the FD30s doors are required to give the carer more time. We see no additional benefit to providing the FD30s doors over the current ones?? Early warning is provided by comprehensive AFD coverage/type over and above any guidance document e.g. LACoRS etc.
Staement from the FRA below:
The care that takes place in these private homes often referred to as Care in the Community or ‘Community Care’ came about following the introduction of a government policy of deinstitutionalization. This led to the introduction of treatment and caring for physically and mentally disabled people in their homes rather than in an institution.
The provisions for care within the community needs to provide accommodation for carers within a domestic dwelling environment without implementing measures which would in effect institutionalise an individual’s home but still maintain a safe working environment. It is for this reason that there is no specific guidance for this type of property. It is therefore reasonable to adopt a risk assessment approach incorporating measures which would normally be expected to be found within a single private dwelling if it were built to today’s standards whilst having regard for the mobility of those people who may be subject to the requirements of the Regulatory Reform (Fire) Safety Order.
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From what you say the building may have originally been designed in accordance with HTM88, a bit quirky in some ways but still a relevant document specifically written for this type of occupancy. If it was originally to this standard the bedroom doors are likely to be half hour doors - if I recall rising butts were permitted. So you may have half hour doors.
I think you are on a sticky wicket arguing making the comparison with domestic premises. I would compare what you have with benchmark guidance specific to the scenario- HTM88 is most relevant, followed by the CLG guidance and ADB. These set out generic standards but do not necessarily require the level of staffing or alarm that you have. Put together a SWOT analysis.
I dont think you can blame the FSO for simply trying to apply the CLG guidance, you have to demonstrate that taken holisitcally your package of risk control measures provides an equal or better standard of protection to the relevant persons compared to the one size fits all benchmark. It will be necessary to produce a written emergency plan to back this up. Set out your solution and plan clearly in writing and ask for a second opinion.
If you are confident that have such a solution discuss the options with your client. If the client has the appetite, call the fire officer's bluff. The Fire Authority will either accept your solution or will then have to issue an enforcement notice.
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Kurnal, I understand what you are saying with HTM 88 and that is probably the right bench mark if it were an NHS premises as we both know that is where this guidance would have been used but has never had any legal force. The current provisions in terms of fire alarm would exceed HTM 88 but the guide does state that risk rooms should be protected by 30 min doors which include bedrooms.
I was thinking of going the determination route but both sides need to agree on the issues and essentially we don’t as the FA will state under article 14 that the premises in their current state can not be safety and effectively evacuated as quickly as possible. As a compromise I was thinking of suggesting fitting smoke seals to the existing doors but I have a feeling the FSO will not accept anything less than FD30s doors.
I know cost should never be an overriding factor but in this case the care provider has stated if the FA get their way they want the same standard doors in another 10 properties meaning a substantial outlay for the client.
I just can’t see what additional benefit the FD30s doors would provide over over the existing ones in this case? It’s not that long ago since I was an FSO and fire safety manager and I just wouldn’t have even thought about enforcing this?
Many thanks for your input.
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and here lies the basic problem with the risk assesed approach to fire safety. Many FSO's will not acept risk assessment and insist on a prescriptive approach. If it is written down then you must have it, common sense and dogma do not go well together. Surely most people could see that in a single storey building the risk is minimal for escape purposes, probaby in this instance much lower than an ordinary domestic premises.
It seems that fire authorities are trying to get prescription into the law by another means and not allowing risk assessment to take place. For instance it seems that much more enforcement is undertaken for premises that have had an assessment done than those that have not bothered and have left it to the FRS to come and assit them.
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William, What is the travel distance from the furthest bed to the front door? You could try and argue that ,if is is not too far , the AFD covers the outer rooms and as there is an awake menmber of staff to assist then you have safe premises that way. Perhaps an offer of S/C on all bedroom doors would help so even if someone fled in panic leaving their door open it would self close ?
Also , even if the FRS issue an EN you can always appeal through the courts.
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There is a guide " Fire Safety In Adult Placements" issued by the Office of the Deputy Prime Minister which is aimed at this type of care.
A quick look at the guide shows that FR doors would not be required in a bungalow and only a part 6 fire alarm.
If you have any trouble finding a copy send me your email address.
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Let me attempt to help clarify the issue of the FD30S door recommendations in HTM 88, since I lead the team at DoH that produced the HTM. It was considered appropriate at the time for premises providing supported living since the it was felt that the care organisation (the NHS or Local Authority Social Services) owed a duty of care to the "clients" living in such premises. Many of the "clients" that were being provided with supported living at that time had been diagnosed with learning difficulties and/or mental illness and their understanding of the potential fire risks that their activities may give rise to was generally considered to be limited. As a result the potential scenarios that were considered were of a "client" inadvertently or deliberately setting fire in their room (which was considered to be their own private space, so little staff supervision) and without protection to the corridor could prevent escape of other occupants.
When the guidance was written it was not common for supported living accommodation to be provided in single storey premises. The majority of premises considered at the time the guidance was compiled were typical housing stock over two or three floors, the majority of which would be provided with a single staircase. In my opinion there may be sufficient grounds to argue that FD30s to bedrooms are not required where suitable alternative means of escape exists.
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Thanks for the last few comments guys. Jokar, I'm of the same opinion in that many FSOs (not all) are essentially trying to enforce guidance and are very prescriptive in their approaches.
I am aware of the contents of fire safety in adult placements guide but since this pre dates the RRO and the guides is probably not appropriate to use.
The HTM 88 info is useful thanks. Also if you look at ADB Vol 1 which in my view is the most relevant in this case and the most recent only requires FD20 doors in a domestic setting and we have an L2 part AFD system to compensate. Travel distances are in accordance with ADB for a domestic bungalow which is good enough for me. I understand what Kurnal means about comparing it to a domestic dwelling, but as we are assessing the risk as we should I still really can’t see what the fuss is about here??!!! How does this fit with the FA's integrated risk management plan and a risk based inspection regime? Jokar makes a good point about FA's seem to focus on RP's that have done an FRA rather than those that have not?
Self closers of any type in my view are not the way to go, I think this would seriously affect the way the service users move around their home. I am aware of course that we can appeal any notice served but I can’t see a magistrate not agreeing with the FA. What I do get a little upset about is that FSO's think that now I am a fire safety consultant and not in uniform I am somehow trying to make premises a death trap by producing an FRA that goes against what they are trying to enforce. We are doing what we are paid to do by assessing RISK or else we may as well just reproduce what the guides say in to the FRA and not deviate from it. In this case there is no definitive guide so you have to assess it on what there is and use experience AND common sense.
If you are interested further have a look at the ADB clauses below. Sad but I think the final outcome will be that the client will have to install 6 FD30s doors on this premises and numerous other similar premises, which in my view is very wrong.
ADB Vol 1 Dwellings para 0.22 states that these sort of properties with up to 6 persons can be considered as an ordinary dwelling house. Para two of 0.22 states a property of one or two storeys for up to 6 residents (excludes support staff) it should be regarded as PG 1(c) if the means of escape are in accordance with HTM 88.
ADB Vol 1 Para 2.1 and Para 2.2 in relation to providing an over provision of fire protection measures, in this case FD30s doors as suggested by the Fire Authority.
ADB Vol 1 Para 2.3 – These premises comply with points a) and b) of this clause. ADB Vol 1 Diagram 1a quotes para 2.3
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Have you explored any other compensatory measures? If you are looking at 6 doors and closers plus time cost for removing and fitting, you will be looking at a £1000 minimum I would have thought, possibly more depending on the spec.
What about a domestic sprinkler system in the common parts? I don't like partial systems but it may be acceptable to the FRS and could be a cheaper and quicker option, particularly if you are not worried about aesthetics.
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Have you explored any other compensatory measures? If you are looking at 6 doors and closers plus time cost for removing and fitting, you will be looking at a £1000 minimum I would have thought, possibly more depending on the spec.
What about a domestic sprinkler system in the common parts? I don't like partial systems but it may be acceptable to the FRS and could be a cheaper and quicker option, particularly if you are not worried about aesthetics.
The FA did suggest a fire supression system to compensate for FD30s doors. Again not needed in my view and way over the top.
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I am aware of course that we can appeal any notice served but I can’t see a magistrate not agreeing with the FA.
Not wanting to comment on premises i have never been in but if you are sure of your ground here then appeal.
Why are you so sure that a magistrate will decide in favour of the enforcing authority?
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Hi William
Based on what you have described,and bare in mind i haven't seen the building, I do tend to agree with you.
Actually I would argue that this type of supported living is safer than a domestic dwelling scenario for many reasons.
As someone suggested earlier do look at the Adult Placement guide for an additional angle on your scenario.
And please do challenge the fire inspector involved. Why not speak to the officer's station commander , to see if he or she agrees with their officers approach.
If all else fails then hey why not call their bluff, nothing to loose in going for a determination. It costs nothing although I realise time is money. But you take my point.
With regards to your hapless fire officer, they do default to benchmark standards and publications when it comes to enforcement, its up to the RP to suggest alternatives, not the fire officer and it is easy to become sceptical and infer all inspectors are code hugging prescription junkies, as Jokar suggested.
If alternatives are put forward the officer needs to be satisfied they will work, thats not always easy, but I suggest in this scenario common sense will hopefully prevail.
Are you satisfied the service users will evacuate without causing too much of a challenge for staff?
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MR. I'm a little confused by your response to William.
"Actually I would argue that this type of supported is safer than a domestic dwelling scenario for many reasons."
"Are you satisfied the service users will evacuate without causing too much of a challenge for staff?"
Does your second statement not challenge your first?
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No... well yes, no, possibly,errrrr maybe, shut it.
It was an afterthough, an aside.
I was just making sure that the service users won't present any major challenging behaviour issues at this particular property, because that can change the risk.
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No... well yes, no, possibly,errrrr maybe, shut it.
It was an afterthough, an aside.
I was just making sure that the service users won't present any major challenging behaviour issues at this particular property, because that can change the risk.
Are you declaring a U turn? :-\
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Nope I stand by all Ive said, with the caveat that challenging behaviour issues need to be considered.
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Hi William
And please do challenge the fire inspector involved. Why not speak to the officer's station commander , to see if he or she agrees with their officers approach.
If all else fails then hey why not call their bluff, nothing to loose in going for a determination. It costs nothing although I realise time is money. But you take my point.
It's gone to the FSO's line manager and group manager and they both agree with the FSO. I have formlulated 2 letters on behalf of the client setting out our position. As we don't agree with the issue of providing FD30s doors I can't see the determination route as an option?? The decision to appeal any Notice if served is the clients but if it goes to Court there are risks of cost and then still having to provide the doors. From experience very few clients will take this all the way. If they did I think a positive outcome is achievable.
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As I said, very little thought with regard to risk and lots of prescription. When you think that in court you have to prove that death or seriou injury will have to or has occurred it seems a little ridiculous to suggest that people will die or suffer injury in a ground floor premises with an L2 fire Alarm system and solid doors.
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Hi William
And please do challenge the fire inspector involved. Why not speak to the officer's station commander , to see if he or she agrees with their officers approach.
If all else fails then hey why not call their bluff, nothing to loose in going for a determination. It costs nothing although I realise time is money. But you take my point.
As far as Im aware this is exactly the type of situation a determination could be used for, you would need to obviously inform the fire authority of your intention to pursue this option.
The dteermination process is to be used where a fire authority nor ROP cannot agree on remedying a perceived failing
It's gone to the FSO's line manager and group manager and they both agree with the FSO. I have formlulated 2 letters on behalf of the client setting out our position. As we don't agree with the issue of providing FD30s doors I can't see the determination route as an option?? The decision to appeal any Notice if served is the clients but if it goes to Court there are risks of cost and then still having to provide the doors. From experience very few clients will take this all the way. If they did I think a positive outcome is achievable.
Are you getting confused between appealing a notice, and seeking a determination from the SoS?
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Are you getting confused between appealing a notice, and seeking a determination from the SoS?
Enforcement Notice has just been served. As far as I am aware once this has happend you can't go to a determination? We only have right of appeal.
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Apologies William I didn't realise the notice had actually been served.
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Where the responsible person has failed to comply with the Order and cannot agree with the enforcing authority the measures which are necessary to remedy the failure, the Secretary of State may be approached to make a a determination of the dispute.
Both parties must make the approach.
This approach can be made when a notice has been served by the enforcing authority on the responsible person.
If a determiniation is made the the enforcing authority may not take enforcement action that would be in conflict with the determination. RRO Guidance Note No 2 provides more detail.
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Trouble is it seems that the RP appears to hold the view that he has done sufficient to comply with the order. So the determination process does not appear to be the best way to deal with this case.
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Im not sure why you think that. It is the ideal process to be used, the role of the SoS is to judge on which side is right, especially when both think they are right, or both cannot agree.
Unfortunately in this situation it would be reliant on the Fire Authority to also agree to go for the determination.
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Surely the responsible person has to agree that there is a need for improvements to be made, but simply disagrees with the technical solution to be used before it can go to determination?
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Thats the issue Mr Angry. The determination process is only to be used where the Responsible Person agrees with the fire authority that he has failed to comply with the Order.
In this case he doesn't agree so the only way he can challenge the requirements of the Fire Authority's enforcement notice is to use the appeal process.
The reason the determination process is limited in this way is to differentiate between legal compliance which is a matter for the courts and the procedure for the resolution of of disputes relating to technical matters.
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William
ADB Vol 1 only refers to 'unsupervised' groups in 0.22, as does ADB Vol 2.
Don't forget that if you are going to appeal you only have 21 days from the issue of the notice.
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so the only way he can challenge the requirements of the Fire Authority's enforcement notice is to use the appeal process.
Check out article 36(5) the EA cannot issue a EN after a determination, in this case the EA has been issued a EN therefore could not comply with art 36(5) consequently could not go to determination, Kurnal is spot on, an appeal is the only way.
Not relevant in this case but may be of interest. http://www.communities.gov.uk/documents/fire/pdf/1497577.pdf
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I appreciate the differences between an appeal and determination
In my opinion this is a disagreement over a "technical" aspect of the fire precautions required. Therefore it is surely more appropriately dealt with by process of determination, otherwise it is left to a layperson (ie a Magistrate) to do decide who is right.
Secondly Im perhaps being somewhat hopeful,but I believe the more the determination process is used the more lines in the sand we get.
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I would suggest when an EA issues an enforcement notice they must consider art 36 check art 30(3) because if they have agreed to go to a determination then they cannot issue an EN. In this case an EN is in force therefore they would have to withdraw to go to determination art 36(5) or the RP could appeal. As far as I can see nobody disagrees that discrimination isn't the best option but the legislation inhibits the process.
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Any Notice itself when issued gives 2 rights of appeal on the notes at the end of the Notice.
1. To a magistrates court, within 21 days.
2. Determination by the Secretary of State, the EA must be notified within 14 days from the date the Notice was issued.
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William
ADB Vol 1 only refers to 'unsupervised' groups in 0.22, as does ADB Vol 2.
Don't forget that if you are going to appeal you only have 21 days from the issue of the notice.
I'm not sure of your point here? the group is supervised by 24/7 waking staff so therefore the risk is less and exceeds the recommendations of ADB???
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My point being that you are making references to paragraphs that clearly do not apply to the situation you describe. It doesn't exceed the recommendations of ADB as ADB does not make reference to a supervised group. This need for supervision is because, I would imagine, the occupants are deemed to be at risk without it. It is not in excess of the recommendations, the supervision is there to cater for a specific risk.
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There seems to be so much confusion here that we can`t decide which guidance document is the most relevant to use. if ever there was a situation for determination this is it.
Has the fire service told you which document they have used? Have you told them which one you think is relevant? although I have to say it all sound to late now. The fire service appaer very confident if they have issued an Enforcement Notice.
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Is this action as a result of an audit? - We don`t issue an Enforcement Notice without carrying out a full audit, apparently it helps if it gets ugly later.
Using the audit scoring system does this really come out EN?
Is there any other items on the EN?
Has the EN got a long completion date? If they give a long completion date it allows for its withdrawal if appealed.
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I agree Midland Fire / Dinnertime Dave. A determination would seem the only sensible option.
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Determination of disputes by Secretary of State
36.—(1) This article applies where—
(a)a responsible person or any other person mentioned in article 5(3) has failed to comply with any provision of this Order or of any regulations made under it; and
You cannot use a determination for this. Unless William came up with some other answer, i.e. If he suggested that fitting self closers alone would give a suitable level of protection. What William is saying is that the premises complies as it is, so I believe that the only option is to appeal the notice.
I believe the determination regarding HD in hotel bedrooms had a little addition to it stating that it shouldn't have come through the determination process.
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Could it not be interpreted that the EA are saying he has failed to comply with "General Fire Precautions" art 4(a) or art4(b) and that is why an EN was issued?
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Update:- Determination requested - EA took 6 days to respond and rejected request for determination. Request to go to appeal went the next day EA stated that time for appeal has run out.
I would assume that the request to go to detremination has the effect of suspending the Notice as does the request for appeal?? So there are 6 days to play with. I also think the EA are working on 21 days where by my understanding we have 28 days right of appeal under one of the Articles but I can locate which one as yet?
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1. I would assume that the request to go to determination has the effect of suspending the Notice as does the request for appeal?
2. I also think the EA are working on 21 days
3. My understanding we have 28 days right of appeal under one of the Articles but I can locate which one as yet?
1. The only thing I can find is, if a determination is being considered the FA cannot issue an EN. Art 30(1) nothing about suspending the EN
2. It looks like the FA is using, 35(1)
3. The only reference to 28 days I can find is in 30(2)(c)
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1. I would assume that the request to go to determination has the effect of suspending the Notice as does the request for appeal?
2. I also think the EA are working on 21 days
3. My understanding we have 28 days right of appeal under one of the Articles but I can locate which one as yet?
1. The only thing I can find is, if a determination is being considered the FA cannot issue an EN. Art 30(1) nothing about suspending the EN
2. It looks like the FA is using, 35(1)
3. The only reference to 28 days I can find is in 30(2)(c)
As far I can find the 21 days to appeal a notice is correct. I can't find any reference to a determination suspending a notice.
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As far I can find the 21 days to appeal a notice is correct. I can't find any reference to a determination suspending a notice.
Neither can I however if the correct sequence is followed then there should be no need. In the initial stages when you are discussing the findings of the FRA with the IO and you cannot agree with the FA that's is time when you should ask for a determination before an EN has been issued. The FA has to wait until after the determination findings are complete before an EN can be issued and must take in to account that determination when issuing the EN. (Art 30 (1) "subject to article 36")
This does not help you in your situation and maybe its time for solicitors advice.
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This topic has been very educational.I am sorry I cannot offer anything specific which hasn't been already said.
Just a hypothetical situation. What if onbe of the service users mobility impaired and there is not support staff 24/7? I cannot find anything specific in HTM88 regarding this.
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It would depend on the level of mobility but it would be unusual not to have any care staff provided.
To complete this topic the outcome was the client (landlord) decided after the determination was rejected by the EA to fit the FD30s doors to the bedrooms in two bungalows, 12 doors in total.
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Wow, another result for prescription. I assume that the client thought it best to acquiesce to the greater knowledge. I just wish that the Government had written CBA into the legislation.
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What's worse is the client has similar properties in the same area 5 or 6 I think. The EA have already stated they intend to inspect those with the same sort of view on the doors.
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What's worse is the client has similar properties in the same area 5 or 6 I think. The EA have already stated they intend to inspect those with the same sort of view on the doors.
Assuming the landlord is willing and has the stomach for it, this would be a chance if you cannot agree with the FA go for a determination immediately, if the FA refuses and serves an EO then appeal within the 21 days. The big question, would the landlord be willing to go out on a limb.
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They may do exactly that? Problem is that they have already fitted the doors in a similar property so that may be an issue?
In my view the EA are not using their enforcing powers in proportion to the risk and would even go as far as to say that they are not operating in accordance with the fire safety concordat. What is very frustrating for us and the client is they have almost identical premises in other EA areas with less fire safety provisions (i.e. not an L2 part 1 AFD system) and the FRA and the premises has been accepted? Now work that one out?
???
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Umm Enforcement concordat signed by all FRS, proportionality and consistency are the keys words that they sign up to. Write to the fire minister and explain the difficulties and ask for an explanation about how differing FRS approaches are procing a burden to business. Get the client to keep records of the costs and use that as part of an evidence trail.