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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Community Fire Safety => Topic started by: davincey on January 27, 2011, 10:24:02 AM
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I would be grateful for any opinions on the following senario:
Company A constructs a residential home which they subsequently lease to Company B for a period of 21 years. Company B then engage Company C to provide the on site care.
Question: Who is the RP for the Fire MAnagement Plan/Strategy?
As I see it, Company A has no responsibilities as they have no control or input for the next 21 years.(under the Housing Act, 21 years is generally considered to be the cusp of owner occupier) This makes Company B the landlord and as Company C have management responsibilities, they should cooperate on the Strategy.
Any views appreciated
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I would be grateful for any opinions on the following senario:
Company A constructs a residential home which they subsequently lease to Company B for a period of 21 years. Company B then engage Company C to provide the on site care.
Question: Who is the RP for the Fire MAnagement Plan/Strategy?
As I see it, Company A has no responsibilities as they have no control or input for the next 21 years.(under the Housing Act, 21 years is generally considered to be the cusp of owner occupier) This makes Company B the landlord and as Company C have management responsibilities, they should cooperate on the Strategy.
Any views appreciated
Does Company C have the building maintenance responsibilities?
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No.... Company B is responsible for building maintenance.... Company C are solely the care providers and have a 24 hour presence in the building Company B are on site 9-5
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Sorry, slight correction.... Company A as the freeholders are responsible for structural maintenance; roof, walls etc but not general maintenance.
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The employer is responsible. As they are both employers each is responsible for that which they control. They must co-operate wiith each other and one must co-ordinate. I guess that since B can sack C and appoint D instead they have a duty to co-ordinate the strategy and production of the plan. So its down to B and C.
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I would suggest all three could be the RP, A under 3(b)(ii) because A has control regarding compartmentation. B under 3(b)(i) because B has control of the remainder of the maintenance of the building and C under 3(a) because C is the employer responsible for the relevant persons.
Maybe C is the RP as defined by 3(a) with duties under 5(1) and A&B with duties as persons having control under 5(3) or 5(4) this might be a better solution. It would all depend on exactly what each company has control of and could that affect the safety of relevant persons.
I do accept these are tenuous interpretations.
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Hmmm.. Interesting points all. I think the key thing here, certainly from A's point of view is the exact wording of the lease agreement and the areas of responsibility for maintenance; i.e., does the structural maintenance include stairs, lifts, doors etc.. If it does then a 3 way (ooer vicar!) arrangement would seem to be in order.
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I know where you are coming from but employers B and C have absolute responsibility for the safety of their employees and others who may be affected.
So what I am saying is that it as far as A is concerned it makes little difference. Even if A is responsible under the lease agreement, B and C are responsible under the fire safety order. If it isnt done correctly by A, employers B and C have failed in their duty to provide adequate general fire precautions and so will be ultimately responsible and held accountable.
It might be that A could also be held to account as a responsible person to the extent that they have control but irresepective of that B and C certainly would have their collars felt.
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If you consider A & B as Person Having Control (PHC) under 5(3) or 5(4) and C as the RP he/she would be responsible for all articles 8 to 23, then if any article outside C's control he/she could use 33 as a defence (due diligence). I have washed my mouth out with carbolic soap immediately after finishing the last bit.
For example if the PHC of the staircase is A then s/he is responsible, if the the PHC of the extinguishers is B then s/he is responsible, if fire drills are not being carried out C is responsible as the RP.
As has been previously been said it would depend on the exact wording of the lease agreement.
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Thomas I believe you will need to use the carbolic again with a caustic soda gargle.
C could not use the defence of due diligence if the persons at risk were employees. I learned that from Toddy last week so feel smug and empowered to administer your oral hygiene. Open wide!
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C could not use the defence of due diligence if the persons at risk were employees.
C is using art 33 against company B (PHC) not their employees.
My dilemma is that a case can b made for B to be a RP therefore there would be two RP's two FRA'S I can envisage two risk assessors and pistols at dawn, on should it be a part 1 or part 6 fire alarm system.
I would prefer one being the RP and the other a PHC but who. I think it would depends on,
1. Who the employees have a contract of employment with?
2. Who has the day to day running of the care home?
3. Who has the management of the care home?
4. Does C only provide labour like a nursing agency and the employees have a temporary contract with B or run the whole enterprise?
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Hmmmm.... Gotta love those shades of grey!
Your points Tome:
1. B has their own employees on site on a 9-5 basis; C has their own employees 24 hrs in 2 shfits (days and nights)
2. Depends on perspective.... C provide the care to the residents so will manage all things relating to the residents and have the expertise required for dealing with issues such as evacuation; B provide facilities management but are not involved directly in the day to day activities of the building.
3. Not sure how to answer this one differently from above!
4. C is an independant company with its own staff, not agency or supplying staff to B.
I have advised B to develop the outlines of the management strategy from the facilities perspective and get C to provide specifics such as evac plans, peeps etc. I think it must be that both B and C are RPs and pointed them at section 22.
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Thomas I believe you will need to use the carbolic again with a caustic soda gargle.
C could not use the defence of due diligence if the persons at risk were employees. I learned that from Toddy last week so feel smug and empowered to administer your oral hygiene. Open wide!
I don't believe that is true, it can be used 'in' your defence and it has to be taken in consideration by the court however it is correct that even if you are diligent beyond all reasonable doubt the ultimate responsibility still stops with the employer. If you take New Look for example if they had taken due diligence in their fire safety do you think they would have been fined £400K+ for the fire or even taken to court? The case against New Look revolved heavily around their lack of diligence and hence as a profitable company who sacrificed fire safety at the expense of profit, they were fined heavily. If the prosecution use lack of diligence as a reason for prosecution then it stands to reason that the defence has to use due diligence to counteract if they can; that includes were employees are put at risk.
C has the main responsibility and B had an initial responsibility assuming they passed on sufficient info and have a tight contract with C they may have clearly given away the responsibility for fire safety to the operator. However it could be that the ‘Group’ retains charge of different aspects of day to day operation which could include fire safety. Very often contracts between such companies are not clear and thus problems do occur. C says B is responsible and B says C is responsible.
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Yes I agree Speyside it will work in this way and a Court will always consider the circumstances of the case when sentencing. I dont think they have regard to article 33 in doing this, its part of the due process of Law.
I was referring specifically to the defence of Due Diligence as set out in Article 33. I think the intent of this is not to mitigate the punishment but to dismiss the charge against the RP. I think if you successfully use article 33 as a defence against a charge under the Fire Safety Order the only outcome could be case dismissed or not guilty.
And because of the over arching EU directives on H&S at work, its a defence that can never be used by an employer if he puts his employees at risk, for example by employing a dodgy contractor even if done in good faith.
Whereas an RP who is not an employer is not subject to the H&S directives and so could use it as a defence.
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I have advised B to develop the outlines of the management strategy from the facilities perspective and get C to provide specifics such as evac plans, peeps etc. I think it must be that both B and C are RPs and pointed them at section 22.
I would agree with you and I don't think there would ever be a text book answer, shades of grey as you said, but you seem to have come up with a reasonable solution.
And because of the over arching EU directives on H&S at work, its a defence that can never be used by an employer if he puts his employees at risk, for example by employing a dodgy contractor even if done in good faith.
Whereas an RP who is not an employer is not subject to the H&S directives and so could use it as a defence.
The way I read it, is that an employer can use art 33 and blame any other person having control, except his employees.
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No Tom with respect you are reading the Directive the wrong way round. An Employer is always responsible for the Health safety and welfare of his employees and cannot delegate that responsibility to anyone else or hide behind anyone else. If an employee is at risk in connection with their employment the Employer is responsible. Others may be too but the Employer will always be.
If he employs a fire risk assessor who he judges to be competent and the risk assessor fouls up both will be in the dock. The risk assessor for not giving competent advice, and the employer for not ensuring the safety of his employees.
Vicarious liability. Theres lots of case law on it.
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I fully agree with you Kurnal but in my opinion that's where Art 33 comes in. The RP says to the man in a funny wig "I have done everything in my power to prevent the commissioning of an offence and this guy next to me is the one to blame not me". But he cannot say it was that stupid fire marshal I appointed or any of his/her other employees.
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Tom may I refer to paragraph 153 on page 31 of the guidance note number 1: enforcement published by the DCLG.
In respect of article 33-defence, paragraph 153 reads as follows:
"the defence of due diligence does not, however, apply where the responsible person is alleged to have failed to have taken such general fire precautions as will ensure the safety of his employees, or to have failed to eliminate or reduce the risk from a dangerous substance present on the premises. Nor does the defence applied to an employer where failure to comply with the provisions of the order is due to enact or default of his employees or appointed competent persons."
So if his employees were placed at risk he cannot say "the guy next to me is the one to blame, not me".
I agree with your second point with regard to the stupid fire Marshall he appointed.
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Tom may I refer to paragraph 153 on page 31 of the guidance note number 1: enforcement published by the DCLG.
I fully agree with paragraph 153 and have no arguments with it. My point is, if the guy standing next to the RP in the dock is a person having control as detailed in 5(3) or 5(4) (PHC) then the RP can say "the guy next to me is the one to blame, not me". S/he is not the RP's employee or appointed competent person and providing Articles 8(1)(a) or 12 were not involved I would consider them the person responsible.
It might be that A could also be held to account as a responsible person to the extent that they have control but irrespective of that B and C certainly would have their collars felt.
I fully agree with the above statement but add B & C would have the benefit of art 33 because A is not their employee or competent person and providing Articles 8(1)(a) or 12 were not involved s/he is responsible.
As the most likely article would be 17 then that shouldn’t be a problem and my only concern would be what’s in the lease.
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I fully agree with the above statement but add B & C would have the benefit of art 33 because A is not their employee or competent person and providing Articles 8(1)(a) or 12 were not involved s/he is responsible.
Meaning of “responsible person”
3. In this Order “responsible person” means—
(a)in relation to a workplace, the employer, if the workplace is to any extent under his control;.
(b)in relation to any premises not falling within paragraph (a)—.
(i)the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business or other undertaking (for profit or not); or.
(ii)the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking..
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.
Tom sorry to labour this point but it would be good to know which of us is right. Note the subtle difference in the wording of article 3(a) "If the workplace is to any extent under his control" and article 5.4(b) "a person who has control of the premises to the extent that his obligation so extends."
The effect of this is that if as a result of some act or omission by A, if any of B or Cs employees are placed at risk, then the employers B and C are primarily liable as they are Responsible Persons as well as A, who is a person having control.
In such a case, if charged with an offence, B and C cannot take advantage of the defence in article 33 because their employees have been placed at risk as a result of their employment. They have a duty to provide a safe workplace and if their employees are placed at risk by the acts or omissions of a third party the employer will have failed in their duty to provide a safe workplace.
The bottom line though, as pointed out by Colin last time we discussed this, is that having carried out an investigation into an alleged breach, the Fire Authority may decide not to bring charges against B or C but may feel that A should be charged.
As pointed out by Speyside, if B or C are charged and found guilty, the judiciary will have regard to their culpability in awarding a punishment.
That is my understanding of the situation, we need either to agree to differ or perhaps take further opinions on this. But thanks for putting up with me so far.
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That is my understanding of the situation, we need either to agree to differ or perhaps take further opinions on this. But thanks for putting up with me so far.
Agreed kurnal I shall return to my cloud number 9, but before I go, what happen to natural justice. For instance A has failed to maintain an external staircase, B & C have done everything in their power to get him to repair it, however all three are charged, because B & C do not have the defence of due diligence, and all found guilty. Therefore B&C now have a criminal record for something outside their control that's not fair to me and many others I would think.
What Speyside said is mitigating circumstances, and is considered after they have been found guilty however they would still have a criminal record, I also accept a lot rests on the tenancy agreement.
I heard nothing about the RP being prosecuted in the fire alarm engineer case in Manchester.
Am I imitating the knight (John Cleese) in the "Monty Python and the Holy Grail"?
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No Tom. Dont forget the Fire Authority will make a judgement on who they will prosecute for a particular offence. Example. I committed a speeding offence along with 5 other people last week. We all went through a speed trap in excess of 30mph. 2 were prosecuted and will face court, two were given fixed penalties and one was cautioned. I was not even stopped because i was only doing 31. But I broke the Law.
Similarly if B and C can show they have tried to comply then they probably will not be charged or given a caution.
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Similarly if B and C can show they have tried to comply then they probably will not be charged or given a caution.
So the FA was of the opinion that they have tried to comply in other words shown due diligence and decided not to prosecute. If they hadn't what then.
Back to cloud number 9.