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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: AnthonyB on July 11, 2016, 11:13:57 PM
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Anyone ever come across this before:
- As part of the measures around an Enforcement Notice an enforcing officer is wanting the landlord (via their agent) of a multi occupancy to actively inspect tenant's demises and issue details of interim measures for any deficiencies found.
- They also will only take EN action against the landlord/agent, despite the fact that in most of the building they are neither employers or persons having control as part of an undertaking.
It seems to me that this is going well beyond Article 22 and in fact doing what in the FSO is the fire authorities responsibility (audit and enforcement)
Whilst it may be handy for a landlord to inspect a tenancy under the terms of the commercial lease for the purposes of compliance (& asset protection) it's hardly required under the FSO? Sharing significant findings of FRAs, coordinating evacuation plans, etc yes, but not quasi enforcement.
Would this stand up in court or if the landlord got a decent lawyer it be a case of withdrawn notice/dropped charges/no evidence offered?
There are more traditional issues in the EN, but these are reasonable action points, it's the above that's odd. I've seen it threatened before but never got as far as formal action (it's usually forgotten once traditional s22 actions have been evidenced).
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Definition of a "workplace" means any premises or parts of premises, not being domestic premises, used for the purposes of an employer's undertaking and which are made available to an employee of the employer as a place of work and includes,
(a) Any place within the premises to which such employee has access while at work; and
(b) Any room, lobby, corridor, staircase, road, or other place,
(i) Used as a means of access to or egress from that place of work; or
(ii) Where facilities are provided for use in connection with that place of work,
Other than a public road;
Therefore the employers are the RP's of their own workplaces and the common areas up to the public thoroughfare, assuming the owner/agent do not have a workplace or empty units in the building what are they the RP of; I do accept they could be a person having control, art5 (3). Why are the FRS dealing with the owners/agents?
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Well here's a devils advocate view.
I agree that the employer will always be the RP and the Landlord can only be a person having control, this will apply as Anthony says to co-ordination of an emergency plans, sharing of findings of the fire risk assessments, and probably testing and maintenance of the fire alarm and sprinkler systems.
I guess there is an element of the bluff and persuasion act here in the EN, borne of frustration. It should not have got through the QMS.
How many of us have experienced the frustration of surveying a building in the company of the landlord or their agent where conditions are dire and the agent shows no recognition or cognisance of the problems or fire safety legislation? The very person who has relationships with the tenant is not in the least bit interested in helping to improve standards? Fire doors hanging off? Combustibles in the single staircase? Nowt to do with me mate I only take the rent- by the way have you seen my new Mercedes? It's happened to me more often than I could recount.
In such circumstances even in my risk assessments I used to include actions under the heading due diligence.
If I was still an inspecting officer I for one would very likely to wind up the pressure and persuasion to the point at which the agent recognised the problem but would stop short of an EN for rear of undermining those issues that are clearly enforceable. The legalities are one thing but the right standards of fire safety are quite another. As you say Anthony usually the unenforceable elements are dropped once the lesson has been learned.
Perhaps the role of the Landlord as a PHC is more important than ever as most fire services implement cuts to enforcement and audit regimes?
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They missed an opportunity by framing the legislation so as not to give an overriding responsibility to the owner in multi-occupancies - it existed under Fire Certification.
I see your point having come across many examples of the scenario you mention, but as the law is written the way it is then the obligation isn't there
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I guess there is an element of the bluff and persuasion act here in the EN, borne of frustration. It should not have got through the QMS.
I don't know about merely an element??!! The whole concept seems to be covered by the B&P Act - and a surely dangerous game to play on an EN
If the landlord doesn't comply with the EN - then what? The only option available is a prosecution, which if thrown out (and there does appear to be grounds to suggest that the rational for using Art 22 is weak at best) this may cost the Enforcement Authority a tidy sum in cash and reputation.
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They missed an opportunity by framing the legislation so as not to give an overriding responsibility to the owner in multi-occupancies - it existed under Fire Certification.
Absolutely Anthony it's common sense and must be a nightmare for enforcing officers it was much easier under the FPA.
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If the landlord doesn't comply with the EN - then what? The only option available is a prosecution, which if thrown out (and there does appear to be grounds to suggest that the rational for using Art 22 is weak at best) this may cost the Enforcement Authority a tidy sum in cash and reputation.
The offence would be failing to comply with an Enforcement Notice, does it matter what is on it?
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I think one would need to know a lot more about the relationships in the building before opining. Anyway, Big Al, you dont have a Mercedes you have a BMW, and you were right I do like the automatic gearbox in the new 4 series.
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Usual set up - tenants have full physical control over their floors, including electrical supply, landlord only maintains common plant, stairs and fire alarm through service charge with tenants having obvious rights of access to common circulation areas.
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The offence would be failing to comply with an Enforcement Notice, does it matter what is on it?
Quite right Dave, but this is based on the assumption that the EN itself is lawful and that it has been correctly served.
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They missed an opportunity by framing the legislation so as not to give an overriding responsibility to the owner in multi-occupancies - it existed under Fire Certification.
Absolutely Anthony it's common sense and must be a nightmare for enforcing officers it was much easier under the FPA.
Gents, with respect it's not quite how I remember the FPA'71.
I remember a piece of legislation that only covered certain "designated premises", which honoured outdated certificates issued under the Factories Act/OSRA, and when mistakes were made on Fire Certificates these could not be amended.
I am ashamed that I had to issue verbal Section 10's under the Bluff & Persuasion Act because I was unable to get the support of senior officers, who only really started waking up to their responsibilities following the Popplewell Inquiry.
I embraced the Workplace Regs and Fire Safety Order, they're not perfect and they are commonly abused but they are better than what they replaced; other opinions are available. ;)
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They missed an opportunity by framing the legislation so as not to give an overriding responsibility to the owner in multi-occupancies - it existed under Fire Certification.
Absolutely Anthony it's common sense and must be a nightmare for enforcing officers it was much easier under the FPA.
Gents, with respect it's not quite how I remember the FPA'71.
I remember a piece of legislation that only covered certain "designated premises", which honoured outdated certificates issued under the Factories Act/OSRA, and when mistakes were made on Fire Certificates these could not be amended; not to mention the statute bar.
I am ashamed that I had to issue verbal Section 10's under the Bluff & Persuasion Act because I was unable to get the support of senior officers, who only really started waking up to their responsibilities following the Popplewell Inquiry.
I embraced the Workplace Regs and Fire Safety Order, they're not perfect and they are commonly abused but they are better than what they replaced; other opinions are available. ;)
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I was applauding Anthony's statement about giving overriding responsibility to the owner in multi-occupancies which would be better for enforcing officers dealing with one person, not many RP's.
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The employer being responsible for the safety of their employees is a fundamental principle of the workplace directive.
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Usual set up - tenants have full physical control over their floors, including electrical supply, landlord only maintains common plant, stairs and fire alarm through service charge with tenants having obvious rights of access to common circulation areas.
So assuming a single staircase, the staircase is used as a dumping ground for a load of combustible junk and none of the employers will admit to being responsible. After much failed persuasion and in the face of an ongoing hazard the fire service decides formal enforcement action is appropriate. On whom should the enforcement notice (s) be served? Each employer ? The landlord? All of these? None of them?
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If the landlord has responsibility for the staircase as indicated in a previous posting then the EN would be served on the landlord, it's all about span of control.
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The EN was for housekeeping and I wouldn't think the landlord/owner would have control over that I would think the RP,s responsible or all of them if it can not be established who is responsible.
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As previously stated, judging from what AnthonyB posted the landlord appears to be the RP with regards the staircase, an Article 27 enquiry should this determine beyond any doubt. If the EN is served on the landlord relating to the house keeping of the staircase and it is not complied with then the FA would need to determine whether or not it appropriate to go after the landlord, as the legal people tend to say "it will all turn on the facts of the case".
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After considering the definition of a workplace it includes the common areas, including the stairs which is the responsibility of the RP,s. The landlord is not a RP but a PHC of the maintenance of the staircase and fire alarm but not the housekeeping of the common areas.
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Tom based on my question and scenario would you consider that article 5(4) would apply and the notice should be served on the landlord?
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Kurnal I think I would favour 5(3) because the owner/landlord would not have a contract or tenancy with themselves I think this is more for outside contractors. I do not see how housekeeping would be under the owner/landlord control, as they are unlikely to reside in the building, could they be accused of causing the bad housekeeping and how would they monitor it, the RP's most likely cause the problem therefore should resolve it. The owner/landlord as PHC are only responsible for certain articles whereas the RP,s have a duty to implement article 8 to 22 unless they invoke article 33.
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Usual set up - tenants have full physical control over their floors, including electrical supply, landlord only maintains common plant, stairs and fire alarm through service charge with tenants having obvious rights of access to common circulation areas.
Tom did you see this posting from Anthony that the landlord maintain the the stairs and tenants have rights of access to the common circulation areas- that smacks to me of a 5.4 tenancy agreement or contract, the Order does not define either party to a contract so I assume both landlord and tenant would be bound by its implications?
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So assuming a single staircase, the staircase is used as a dumping ground for a load of combustible junk and none of the employers will admit to being responsible. After much failed persuasion and in the face of an ongoing hazard the fire service decides formal enforcement action is appropriate. On whom should the enforcement notice (s) be served? Each employer ? The landlord? All of these? None of them?
With the greatest respect Kurnal, I think we run the risk of over complicating this issue and in doing so we are missing the point of how the RR(FS)O 2005 is structured.
It is not for the enforcing authority to investigate who is responsible for dumping the combustible junk in the single stair, and then ask them to remove it.
The enforcing authority's role in all this is not to act as judge and/or mediator, theirs is to identify the "responsible person" (as defined by Article 3 and/or persons who might have control to "any extent" under Articles 4(3) & (4)) and, if they are not willing to accept their responsibilities, force them to do so.
In your specific scenario there are several responsible persons, ALL of whom have a duty to comply with Articles 8-22 [Article 5]; this duty is explicit on ALL of the responsible persons, whether or not they are prepared to accept any responsibility for leaving the combustible junk within the single stairway.
Let's say, for the sake of example, the fire authority believes the combustible junk on this single stair constitutes an offence under the Order, then ALL the responsible persons have failed to comply with their duties under Article 14(2)(b).
"It is an offence for a responsible person or any other person mentioned in article 5(3) to fail to comply with any requirement or prohibitions imposed by articles 8 to 22. Where that failure places one or more relevant persons at risk of death or serious injury in the case of fire". [Article 32 (1) (a)]
The ONLY defence under the Order is for a responsible person to PROVE that they have taken all reasonable measures and exercised ALL due diligence; which, I have to say, is a particularly high burden of proof.
"In any proceedings for an offence under this Order, it is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence." [Article 33]
I personally believe that if it was within the power of a responsible person to have the combustible junk removed and they didn't, their defence of due diligence would not hold; there is no defence in that other persons might be more responsible.
"Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of an offence, and the person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person." [Article 32 (2) (10)]
Back in the day, given Article 32(2)(10), I am fairly certain I could have secured successful prosecutions on ALL the responsible persons in such circumstances, if this had been necessary.
Notwithstanding, when as an "enforcing authority" under Article 25, in situations like this I would use a degree of discretion and, after explaining the above and the principles of co-operation and co-ordination (Article 22) to all the "responsible persons"; if still necessary I would serve an Enforcement Notice on the "responsible person" I believed to be most responsible. I would however leave all "responsible persons" in no doubt that, in the event of a reoccurrence, I would seek to prosecute all of them and let the Courts sort it out.
As always, other opinions might be available.
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Thanks idlefire for taking the time to produce such a comprehensive analysis. I think you have it spot on.
Apologies if I was being a little pedantic (most unusual I know ;) ) and probably mis interpreted some earlier postings in respect of the overriding duties of the Employer over the potential for others to still be responsible to the extent of their control in a workplace in some circumstances.