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THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 => Q & A => Topic started by: steve walker on July 08, 2005, 07:00:04 PM
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I was looking through the RRO today and noticed the following:
“Interpretation 2.
In this Order—"relevant persons" means—
(a) any person (including the responsible person) who is or may be lawfully on the premises; and
(b) any person in the immediate vicinity of the premises who is at risk from a fire on the premises,
but does not include a fire-fighter who is carrying out his duties in relation to a function of a fire and rescue authority …”
And
“Maintenance of measures provided for protection of fire-fighters
38. —(1) Where necessary in order to safeguard the safety of fire-fighters in the event of a fire, the responsible person must ensure that the premises and any facilities, equipment and devices provided in respect of the premises for the use by or protection of fire-fighters under this Order or under any other enactment, including any enactment repealed or revoked by this Order, are subject to a suitable system of maintenance and are maintained in an efficient state, in efficient working order and in good repair.”
And
“Offences
32. —(1) It is an offence for any responsible person or any other person mentioned in article 5(3) to—
fail to comply with any requirement or prohibition imposed by articles 8 to 22 and 38 (fire safety duties) where that failure places one or more relevant persons at risk of death or serious injury in case of fire;”
I do not understand how the fire authority can prosecute someone for placing a relevant person at risk under article 38 when firefighters are excluded from being a “relevant person.”
Can anyone explain?
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Steven, Thats a cracker,but I think that there is a possible answer, which I offer for bricks to be thrown at it. I think that there are 2 points. Firstly, its a bit like the GMC arguement about electronic locks, which went to Court. You may recall that one arguement was that GMC, by ensuring that the public could escape were only doing so in order that, by their failure to escape the public did not put staff at risk; so the requirement under the Workplace Regs to protect employees was legitamately being enforced. It is also a bit like B5 of the Building Regs, which requires measures to assist firefighters, but primarily so that they could effect rescue, thereby enforcing the requirement to secure the H&S of those in and around buildings. If, say, a firefighting lift and rising main required under the Building regs were not maintained, this would be to the detriment of the safety of firefighters. Thus a breach of Article 38. Now, if the firefighters are at risk, and so are unable to effect rescues of relevant persons, the latter could, arguably, be exposed to risk of death or serious injury in the event of fire. In practice, as workplaces generally stand alone with no need for rescue by the fire brigade, it would be very difficult if not impossible to go straight to prosecution for this breach. Nervertheless consider a block of flats. If the firefighters cannot use the lifts and rising mains, people could be put at risk. None of this means that there is no teeth to enforce Article 38 of course, since a failure to maintain could result in an enforceement notice.
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Colin has got it about right...the appeal in the electronic locks case was badly handled. They should have won but hey...justice was done!
By the way you are looking at an old definition of relevant persons. It has been changed to relate only to firefighters engaged in fire fighting, rescue or any of those other things they are not paid for in the Fire and Rescue Act
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I think he merely gave an abbreviated version PD.
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I think you have a good point Steve. Colin, what if no relevant persons are in the premises or in the vicinity?..there would be no offence if only FFs tackling a fire were placed at risk by failure of article 38.
That said, I cannot think of many situations where this would cause problems.
I think the answer would be if someone was found to be in breach of article 38 to serve an enforcement notice or the FA may even serve an alterations notice before the breach occurs.
Failure to comply with a notice is an offence regardless of the persons placed at risk by that failure.
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Thanks for your responses.
pd: I think that I have the current version; Colin was right, it was my editing that may have confused you.
Colin and Phil: I can see what you mean about using an enforcement notice, but there seems to be a clear contradiction that the lawyers can argue over.
How about a situation where a firefighter is killed because of the lack of maintenance of firefighting facilities? We can serve an enforcement notice on the responsible person. Is this an adequate response? Is this a case of poor draftsmanship, an oversight or what they intended?
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Yes...I think they have made a mistake here, probably because at one time it was thought that firefighters would be included as relevant persons. Its not perfect but at least there is now a requirement to maintain facilities.....that's a step in the right direction.
If a responsible person has allowed a fire to start and develop to such an extent that FFs are at risk it is hard to imagine such a situation where relevant persons have not also have been placed at risk so there would of course be an offence.
But a good point well spotted.
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Phillip, the answer is that if no relevant persons in the vicinity there is no offence. The maintenance of facilities to assit firefighters has (rightly or wrongly) not been given the same status as other provisions that do put relevant persons at risk, simply because it would be difficult to prove they are at risk from lack of DRM maintenance in most circs.
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yes I know...but I think they have made an error in the RRO, it is a requirement to maintain under article 38 but there may be no offence for failure to comply!
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there are many things that can be breaches but it is not an offence to fail to comply. Same is true under the workplace regs
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of course..but I feel failure to comply with article 38 should be an offence regardless of whether relevant persons have been placed at serious risk. As Steve correctly points out if FFs are killed by a persons failure to maintain facilities it will not be an offence under the order unless relevant persons have also been placed at serious risk.
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I did say rightly or wrongly Phillip, but I do not think it is an error, merely a difference of opinion between ODPM and you (not for the first time).
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Well the ODPM must be right...after all they consulted widely...just as they did when they produced that draft guide that nobody's seen.
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They are not interested in your opinion and mine Phillip, we are not the great and the good, merely those who have to pick up the pieces.
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For once we agree old boy!
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Then you must be wrong .
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I'd appreciate some thoughts on another anomaly with the RRO i.e. the definition of "premises". The entombment of the FPA next April will also take with it the FPA definition of premises - "building or part of a building". I guess the FPA Circular guidance and defintion on "buildings" i.e. "vertical imperforate separation" will also be buried.
The RRO definition of "premises" is a "place" or a "workplace" etc etc. I've got this sinking feeling that occupiers of a multi-occ building could argue that they each occupy a "premises"
If the occupiers of an existing multi-occ building (especially one with no common areas) undertake their risk assessments and take it upon themselves to deal with fire safety measures (in their own occupancy) in isolation from the other occupants of the building, then the building could finish up with several un-linked fire alarm systems.
Am I missing something - or is Article (pig in the sky) 22 Co-operation and Co-ordination the supposed solution?
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You are right abot the FP Act definition going out and you are also right about the potential for building owners to leave it to the occupiers, (esp. if they are employers).
However, each employer will have to ensure that their 'relevant persons' can not only escape safely from their particular unit but to a place of ultimate safety. Therefore an employer on the 5th floor must ensure that once out of the his/her unit the relevant people are safe all the way down to the ground.
In practical terms this may appear to be overly onerous but the definition of responsible person also includes 'any person who has control of the premises' and finally, 'the owner, where the person in control does not have control...'
It would be a very hard case for an owner/managing agent to argue in Court that they had no responsibility for common areas. or in the example you mention, common systems if those areas or systems impact on safety of others.
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This is not specially different from the situation under the WFPL.
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Our main clientbase is owners agents and FRAs are carried out on areas under the landlord's control (common areas and plant) regardless of whether they have caretaker/building manager on site. We also look at systems across the building if a landlord's master. We also visit the tenants for "cooperation & coordination" which in reality is a pile of advice notes and "persuasion" to get their act together as theyare the source of most risks & contraventions.
We do all this based on our interpretation of the Workplace regs & anticipate this continuing under the RRO unless it drops the coordination & person in control bits