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THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 => Q & A => Topic started by: johndoe on October 06, 2005, 09:40:21 PM
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If my untrained understading of the RRO is correct the RRO will take presednce over any fire precations legislation imposed by the new licensing of HMO`s (Articles 42 & 43) is this correct and can anyone see any problems?
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Neither takes precedence over the other but both enforcing authorities could ask for different things. Lets hope some common sense is applied.
I hope/pray that FRSs leave housing authorities to deal with HMOs unless they ask for help.
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why is best for a local authority housing inspector best to deal with fire safety in a hmo than FRS. we in scotland have a great deal to do with our mandatory licencing scheme and it works out well.
we will provide a schedule to the authority on all fire safety matters which the owner will get a copy once completed and FRS satisfied,licence issued.
seems that housing up here require our services and it works well, why not down in england?
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My very trained reading of the RRO suggests that this is absolutely true in respect of licensed or registered premises, (pubs, nightclubs, care homes, nurseries, etc) but that dual enforcement is the name of the game within HMO's.
Interesting concept and yes, we are trying to work out how to apply this in practise, with Housing Authorities.
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Party/Val, Many years ago, there were joint inspections, and it worked really well. Then it was decided that as it was not fire service legislation, this would not happen. At the same time, the then Home Office dropped taking on the writing of guidance, which is why 12/92 replaced then old dark blue guide from the home office on HMOs. A few years ago, Prof Anne Everton organized a seminar on the problems of HMO fire safety and enforcement. Delegates came from all over England and from Northern Ireland. She asked me why none came from Scotland and I told her the title was wrong for them-they dont have a big problem. Ability on HMO fire safety enforcement varies across housing authorities Brian. Reading are very good as they have lots of HMOs. In a rather posh area of England one HA is not nearly as good-a s352 notice (using standard wording) called up a standard for fire doors with which I was not familiar. It turned out to be a standard for hi-fi's . (seriously).
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In my experience the competence of housing officers in determining reasonable standards of safety varies widely across England & Wales. Some are very good some are not. Scotland have sorted the problem in HMOs.
The future for England & Wales is worrying in that they will using the Housing Health and Safety Rating system to determine if remedial works are necessary
This involves a housing officer using a palm held computer to enter figures based on benchmark standards. For fire safety standards the benchmark is ADB which is of course not appropriate for existing older buildings. The inspector assessess for example a staircase and scores it against ADB.
I asked ODPM if any new guidance was planned and they don't think so....perhaps the new guidance for hotels could be used.... was what I was told.
Dual legislation in these places is going to cause many problems.
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Hi i own a shop and have recently aqquired a Wormold Fire alarm system some detectors and sounders from Ebay i am looking to install the system myself i have layed out the system on the floor and connected the equipment up and all appears to be working fine no lights indicating any faults now the thing i am wondering is what type of cable i would have to use and also would the fire authorities have any issues with this there is no requirements at the moment stating that i have to have an alarm i just thought it may be a good idea
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I have seen lots of fire alarms on E-bay some of which belong in the skip.
You have bought a system with no history. i.e were the detectors in a unclean enviroment,are they over 10 years old etc.
If the system is addressable and has had it's site data cleared,it will sit happy with no faults.You would then need to auto learn the loops.
Not trying to sound like a git but the fact that you do not know what cable to use suggests to me you do not have the first idea on how install a fire alarm and i would advise to get someone who does.
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I certainly agree, get a proper electrician or alarm company to put it in.
Otherwise it's a waste of cash - & false security.
several systems on eBay belong in a bin because thats exactly where they came from - somewhere has a new system & the old one, instead of being scrapped as in the old days is sold on.
It's a gamble with such components on eBay as said, esp with the more complex items.
i've taken the plunge before for EL fittings & smoke heads for own use to save equipment costs, but always used a competent contractor to install and accepted a percentage failure rate in pre-installation testing.
remember - caveat emptor!
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Is it me or has this discussion veered off the original topic?
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No, Philip, This time it is not you. And is the tangent that has arisen really serious, or is it a wind up?
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Phil,
We agree this time, dual enforcement will cause a dog's dinner with some Housing Authorities taking the lead and the HHSRS throwing up cat 2 problems which they may or may not take action over. Other areas will have much more enthusiastic FRS trying to address problems in HMO's. Indeed, as FRS are meant to consider the IRMP Note 4, which shows HMO's very near the top of the risk tree, one could argue that FRS are obliged to inspect all higher risk HMO's
As for guidance, the guide which deals with sleeeping risk, (not just hotels), is meant to cover HMO's. Unfortunately the CFOA site has a draft document referencing 12/92 which, in my opinion, will never satisfy a risk based assessment of conditions within many HMO's.
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Hi i own a shop and have recently aqquired a Wormold Fire alarm system some detectors and sounders from Ebay i am looking to install the system myself i have layed out the system on the floor and connected the equipment up and all appears to be working fine no lights indicating any faults now the thing i am wondering is what type of cable i would have to use and also would the fire authorities have any issues with this there is no requirements at the moment stating that i have to have an alarm i just thought it may be a good idea
Stephen,
I strongly recommend that you use the services of a competant contractor to install such a system.
If you have any employees in your shop, there are indeed requirements that you have a system to warn them of a fire (such as the Fire Precautions (Workplace) Regulations).
To give you the straight answer, the cable would be as per the recommendations of British Standard 5839 Part 1 2002. Ask yourself, "Am I familiar with this document?", if the answer is "no" then please take my advice about using someone who is.
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Keeping things to the original question.
One view point is that the HHSRS rating system deals with all sorts of hazards and not just fire. When it comes to fire has the rating system / Housing Act adequate power or teeth to properly deal with the fire issues and fire risk?
Effectively to prohibit / restrict the use (serious and immenent danger etc) of a HMO (old Section 10) or RRO article 31, consultation must be made to the Fire Authority, to be effective as there is nothing in the Housing Act 2004 that can deal with this? As everything still has a 21 day appeal period?
Therefore, working down from different levels of fire risk (and besides the RRO will be the primary fire safety legislation), it would be reasonable for the fire service and EHO's to work together to reduce the overall risk.
I think that the key to this "area of duplication" is to work out and agree a comprehensive protocol so as to rationalise resources so not to have duplication of work, and making sure that any high risk premises are considered, and risk control measures enforced by either enforcer, as necessary. If dialogue is happening between enforcers and if necessary by way of consultaion under Section 10(2) Housing Act or RRO Article 43 / 43 then progress will be made.
Customer practice in some areas of the UK works fine, and this will be relatively easy to resolve. It is in those areas where indifferenc is present and moves made to tackle this problem. Any guidance from ODPM or NAW should be aimed in this area to help control the risk as found. The sort of thing in mind is Procedural guidance for building Regs (Green book) would be something that would possible assist.
Just alternative points of view. Any thoughts?
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I totally agree Ivor. Don't forget however that Housing Act 2004 does give EHOs immediate powers to close HMOs similar to Sec.10 & Article 31.
The answer has got to be good partnership working but I still believe HMOs should be controlled by one authority using one effective piece of legislation.
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So why can't we have a new 'Guide to Fire Safety in HMOs'? They seem to be quick enough at working on other RRO-related guides.
I remember the days when EHOs (or were they PHIs then?) went round telling owners to screw asbestos-containing sheets to doors - shortly before they went round telling them to remove them.
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North West Region has just published their own...way ahead of the ODPM. You can get one through Trafford Council, which leads the local group, if you want. It follows 12/92 mostly but with nod towards FRA.
If you still think single s/c, upward escape across roofs and six storey HMO's are OK in 2005 then stick to this one.
I'll be using the RRO to try and bring these up to scratch and not just doing the usual hand wringing and saying they are existing, what can we do? We don't want to put anyone out of business.
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Excellent lets all have our own guides. Pehaps rather than just regional guides we could all have our own personal guides.
That should clear up any confusion.....
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What is situation in Wales;I believe [like Scotland] they act nationally in this area??
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Thanks Wee B.
As there was no national guidance the NW has, fairly successfully, been using their own locally agreed guide for ten years. The new guide is an updated version.
We could, of course, caried on waiting for London to produce one...that would put us naughty northeners in our place! As I'm sure Colin would agree, there is both life and grey matter outside of the South East.
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Don't confuse "London" with the South East. London is a place full of people from all over the place (lots of Scots for some reason?). It's not an excuse just a fact. I agree that the powers that Be have been sitting on their hands for far too long on some of these issues.
Do you think adopting a policy of putting people out of business is a good idea in the NW?
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No, but I believe bad landlords shouldn't undercut good ones by running unsafe HMO's. Gaining financial avantage by failing to comply with the law has always been a factor that needs to be considered in any enforcement action.
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I think anyone with a knowledge of 12/92 will agree it is a poor guide. It is basically a cut and paste of the Hotel guide together with special scary single stair rules.
As a result of lack of new guidance despite many promises many brigades have produced their own guidance e.g GMC, Kent, Wales to name but a few.
This can only lead to inconsistency of enforcement and one would have hoped for new guidance for these premises particulary with the impending problem of dual legislation.
One guide covering all sleeping risks will I believe be inadequate.
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Here at the hub we have been looking at HHSRS scores and come to the conclusion that a serious fire hazard would not attract a high enough score to warrant mandatory action by the Housing Authority due to the extremely low likelihood rating.
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How does the panel feel about the interraction between Articles 42 and 43 of RRO (licensed premises) and Part II of the Housing Act 2004 (Licensing of HMOs)?
Would there be any point making a representation if the council can't refuse a licence as Parts 1 (HHRSR) and 2 of the Housing Act are 'decoupled' ?
Does Article 43 really mean that no licensing authority can impose FS conditions on a licence? We think it does but some councils claim they have had 'informal advice' from ODPM that it doesn't mean that. If so, what does it mean?
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here at what hub?
dave bev
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I don't think they intended article 42 to apply to HMOs but clearly it does. The wording 'to make representations' comes from new Licensing Act.
If the FRS make representations and the housing authority still choose to issue a license regardles they will be on dodgy ground if something goes wrong. I would recommend FRS keep a copy on file of all their representations that are ignored!
As for article 43, the order does not apply to domestic premises but common parts of HMOs are covered. RRO would take precedence over housing act in these areas I believe. Nothing will prevent licensing authority from imposing FS conditions in HMOs.
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Indeed, the bit about making representation is a relatively new addition and ,presumably, the intention is to create a parallel with the new Licensing Act. How we are to do that is not stated and, as there is no mention of consultation (for licensing purposes) in the Housing Act, LHAs are equally unsure.
It has come as a surprise to some of our councils that there is a need to consult although many have been routinely for several years as part of their registration schemes. Those that have registration schemes are not particularly worried about the new requirements (although they are still awaiting their regulations) but those who don't are mildly panicked (if that's not a paradox) by the prospect of receiving thousands of applications from 'unknown' premises.
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Yes and the potential workloads for FRS is frightening, especially when some brigades are drastically reducing the number of inspectors and the training provided.
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Yes and the potential workloads for FRS is frightening, especially when some brigades are drastically reducing the number of inspectors and the training provided.
I think the extra workload will depend on how pro-active we want to be. Certainly, if FRSs are planning to inspect every HMO in their area, regardless of whether or not the LHA has recently inspected, it will be.
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Big A, the RRO requires the Housing Authority to give the enforcing authority an opportunity to make representation before issuing license(Art.42).
Does that mean you send plans of each HMO to FRS for approval before issuing license??
It will be for each FRS and Housing Authority to establish procedures but it could have serious implications for FRS workload, as could the new Licensing Act.
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Although sending licence applications for consultation is required, a quicker way may be to return to weekly/fortnightly/monthly meetings where a pile of applications can be discussed and approved (as Mr Todd described earlier in the thread). After all it doesn't take long to check the FS measures in a three-storey house. This was our experience with the Licensing Act - there were significant numbers of jobs but a great many were relatively small and involved premises where we had previously had involvement.
More on the subject of staffing implications - I don't think this is being seriously considered but there are some who think that we may be heading down the HSE road and will primarily enforce reactively (i.e prosecute after the event) with a small number of inspectors.
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I have a property which is an HMO (with 3 occupants so does not need to be licensed) but required a visit from the Local Authority in respect of the Housing Health & Safety Rating System. The Housing Officer was not sure what recommendations to advise to conform with the HHSRS but gave an indication of requirements which fortunately would be affordable. However, she called in the senior Fire Officer from the region for further advice. He told me that the house comes under the Regulatory Reform (Fire Safety Order) 2005 because it had 2 or more unrelated occupants and thus would not be classed as a single private dwelling. He based this on the wording in the Order which states it includes domestic premises 'other than premises consisting of or comprised in a house which is occupied as a single private dwelling and article 27 (powers of inspectors) shall be construed accordingly'. In fact, he was working from a new handbook for the area which had been issued to all fire officers after the effective date of the order (October 2006) and said this was their sole reference point for all future fire safety issues. He recommended a minimum of 5 fire doors for the property, a 12.5mm plasterboard staircase with special fire bars fitted, an immediate Risk Assessment to be done, etc, etc. This will be very expensive to do and I have been told that I have currently broken the law by not having a current Risk Assessment on the property. I have looked at the wording of the Order and there is no definition of 'single private dwelling'. In the Housing Act 2004 there is a clear definition of 'single household' in order to implement HMO legislation and during a chat with the Fire Officer he said that various authorities were defining 'single private dwelling' in various ways but his handbook states it applied if the property was not occupied by a family unit. If this is so, I will not put unrelated occupants in any of my properties! I would imagine othere landlords would do the same and there will be a flood of Section 21 Notices being issued and lots of Tenants not being able to find a property to rent. Has anyone else encountered this interpretation of the Order or can offer any advice?
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The terminology "A single private dwelling" has been borrowed from other legislation and is that which currently applies as people living in their own home. Under the RR(FS)O the common parts or shared accommodation has to be Fire Risk Assessed by the Responsible Person, an employer, a person in control or the owner. This assessment has to be risk specific to fire, reduce risk, prevent fire occurring and initiate preventative and protective measures where necessary. The fire authority enforce the legislation for the common parts and can issue notices for you to have work completed to their satisfaction. However, your Fire Risk Assessment may differ from their prescriptive requirements and therefore you have the right to only undertake the works that your fire risk assessment dictates are necessary and you can appeal against any notice the fire authority issue, to a Magistrates Court and the judiciary will decide who is right. Their are guidnace documents issued by the government to assist you and if you visit www.communities.gov.uk and go to fire and resilience and then fire law you are able to download the information specific to your case, in this case Guidance note 3 sleeping risks.
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Thanks for your comments but this just seems to show how convoluted the situation is. The Housing Officer was assessing areas common to the 3 people sharing the house, ie mainly the Kitchen, as a potential source of fire in context of the house being an HMO. This meant the task of complying would not be so onerous. However, the Fire Officer was assessing the sleeping areas and a safe means of escape, hence his requirement for all the fire doors and protecting the staircase. As an alternative, he said that a fire sprinkler system could be installed or the occupants could sleep downstairs to avoid the need to protect the staircase! Obviously, this is conflicting advice and both are being ruled by different pieces of legislation, namely the Housing Act 2005 in terms of the Housing Officer and The RR(FSO) 2005 for the Fire Officer. In the meantime, I am at a loss at to which advice I should conform to. Also, I have no desire to go to Court to pursue the matter!
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It is a difficult one to comment on without seeing the circumstances of the case. Is it a two or 3 storey building?
I would comment that if you do not need a licence under the Housing Act then according to the Fire Safety Order there is no need to record the significant findings of your risk assessment. You carry one out- but dont have to write it down unless a licence is in force ( again very loosely defined) or you employ 5 or more people in your business, wherever they may work.
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Thanks for your comments but this just seems to show how convoluted the situation is. The Housing Officer was assessing areas common to the 3 people sharing the house, ie mainly the Kitchen, as a potential source of fire in context of the house being an HMO. This meant the task of complying would not be so onerous. However, the Fire Officer was assessing the sleeping areas and a safe means of escape, hence his requirement for all the fire doors and protecting the staircase. As an alternative, he said that a fire sprinkler system could be installed or the occupants could sleep downstairs to avoid the need to protect the staircase! Obviously, this is conflicting advice and both are being ruled by different pieces of legislation, namely the Housing Act 2005 in terms of the Housing Officer and The RR(FSO) 2005 for the Fire Officer. In the meantime, I am at a loss at to which advice I should conform to. Also, I have no desire to go to Court to pursue the matter!
Sounds to me like the Housing Officer was in the process of getting it wrong. The common areas consist of the entire kitchen, hall, landing area. (Possibly living room if there is one) So on the first floor, as soon as you are out of one of the bedrooms/flats, that is a shared area and as such needs to be protected from a fire in any of the other rooms. Circular 12/92 sets some standards Housing Officers sometimes use, and protecting the staircase on 2 storeys and above is always the case. I would expect to see fire doors even in a single storey building if there was one shared hallway to escape.
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It is a difficult one to comment on without seeing the circumstances of the case. Is it a two or 3 storey building?
I would comment that if you do not need a licence under the Housing Act then according to the Fire Safety Order there is no need to record the significant findings of your risk assessment. You carry one out- but dont have to write it down unless a licence is in force ( again very loosely defined) or you employ 5 or more people in your business, wherever they may work.
If I saw a 2 storey HMO building, sleeping risk, no fire doors, I would soon be questioning the validity of any risk assessment, recorded or not.
Not having to record the risk assessment is often used as an excuse for not doing one. It is sometimes quite easy to see through. :)
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Thanks for all the comments. This house is a 2 storey building and although the Housing Officer was dealing MAINLY with the kitchen she was taking into account the other areas as well. The senior Fire Officer said he would not class it as a high risk property & would not normally have visited such a property - he only visited at the request of the Housing Officer. She was encountering difficulty of giving advice under the HHSRS legislation for HMOs due to the fact that the property it quite individual in its internal layout.
As an additional complication, although there were 3 people sharing the house on the first visit by the Housing Officer, one has subsequently left and so there are now only 2 occupants. The second visit which happened several months later was at the stage of there being 2 occupants. Based on this, the Housing Officer said her recommendations would only be applicable if a third person lived at the property. However now the Fire Officer has been, his recommendations would apply to 2 or more people living at the property - whose advice do I follow? Also, I do not employ anyone.
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Look at schedule 14 of housing act. "Buildings which are not HMO's for the purpose of this act:" - "Buildings occupied by 2 persons who form 2 households."
It seems that with just 2 people living in the property it is simply classed as a rented house, good old 'single private dwelling' now applies. As an FSO the only excuse I could have for entering that house is to see if the Fire Safety Order applies and at the moment I would say it doesn't. Local Authority still enforce certain standards but not as strict as HMO.
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Thanks for the update. I realise the property would not be currently classed as an HMO with 2 occupants - hence the comments from the Housing Officer saying that her recommendations would only apply if there were 3 occupants.
The problem is that the Fire Officer does not class 2 occupants as a 'single private dwelling' based on the information contained in a handbook issued to him by the Local Authority. Their interpretation is that if the occupants are not a family unit, it is not classed as a single private dwelling. I have since found out that the interpretation of what is classed a 'single private dwelling' various from Authority to Authority. Until it is challenged in Court, it looks like these variations in interpretation will continue.
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The handbook has maybe not taken schedule 14 into account. In the earlier part of the act, Section 254, there's "meaning of 'house in multiple occupation'" and this says a building meets the test (i.e. IS a HMO) if: the living accommodation is occupied by persons who do not form a single household. There is a definition of household which is as you would expect really. i.e. A normal family home, someone living with a partner, family with adopted kids etc etc etc. That is probably what the FSO's information is reference to, ask him to check schedule 14 and then get back to you regarding your new circumstances.
I would say you are in the clear, but look carefully in the housing act, as that is the true definition. ("A bloke on firenet says so" is not a good defense.! :)) The problem is, (IMO of course) despite technically 'getting away with it' that house you are talking about IS a house that is in multiple occupation, at your own admission really. I think the whole '2 households' thing was put in to stop people getting away with having HMO's and getting out of having to make the building up to a standard by using single rent books and 'clubs' and other tricks.
I would expect that if someone rented a house with a friend that is ok, but if you look at it from a common sense view, (i.e. Ignore the legislations definitions etc) what is happening in yours is basically a HMO that is not fully occupied, so check carefully.
Doing my part as an FSO I would rather be telling you to put those fire doors on to make the premises safer. (And get AFD, sprinklers, plasterboard everything, risk assessments etc etc etc)
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I sometimes wonder if my family home with teenage kids constitutes a single household? It often doesn't feel like it. More like an HMO but the landlord pays the rent.
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and dont forget all the others who stay on'sleepovers', not to mention the landlord is often not made welcome in his own home!Single family unit-humbug!!!!!!!!!
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Nice to see little humour being expressed - thank you for the light relief!
I think as far as the Fire Officer is concerned, whether or not the property is an HMO is irrelevant. He is purely going by his handbook's interpretation of what premises the the RRO applies to, namely as per the wording of the Statutory Instruments relating to the Order where I found the following details:-
'6. —(1) This Order does not apply in relation to —
(a) domestic premises, except to the extent mentioned in article 31(10);
Under article 31(10) it states
(10) In this article, "premises" includes domestic premises other than premises consisting of or comprised in a house which is occupied as a single private dwelling and article 27 (powers of inspectors) shall be construed accordingly.
At the moment, the house is being occupied by 2 friends who work together - the third friend also work with them but found a property for herself and left. There will not be a replacement third person going into the property.
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Nellie
I dont know if you are familiar with the Building Regulations Approved documents but if not I recommend that you down load a copy of Approved Document B1 volume 1 from the www.communities.gov.uk website- follow the building regulations links.
This document can be used as a basis for the design of dwelling houses including HMOs for up to 6 persons.
First read the guidance relating to HMOs at the top of page 5 and note that the local authority may impose additional conditions at their discretion.
Then read the guidance for houses with no floor more than 4.5m above ground level page 17 para 2.4 et al. You will note that window exits can be permissible in lieu of a protected staircase. Now this is for a private dwelling for a single household. We know from fire statistics that persons are much more likely to be killed or injured in a fire if they live in a HMO and do not constitute a single household. Statistics also indicate that young men late teens to late 20s are at greatest risk (cant remember the actual ages but the main problem is alcohol, substance abuse, unemployment, deprivation )
Now if I were you I would consider the whole picture and my risk assessment would probably include management controls to ensure that I carefully selected the persons who live in the HMO to disallow those at high risk, maintained a no smoking policy, and either banned deep fat or provided proper thermostatically controlled deep fat fryers, safe heating systems, and a few other common sense measures. I would then present my risk assessment to the enforcement agencies.
I bet my shirt ( Aint got any money) that it will be accepted for a two storey building if you meet the Approved document standard.
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6. —(1) This Order does not apply in relation to —
(a) domestic premises, except to the extent mentioned in article 31(10);
Under article 31(10) it states
(10) In this article, "premises" includes domestic premises other than premises consisting of or comprised in a house which is occupied as a single private dwelling and article 27 (powers of inspectors) shall be construed accordingly.
What 31(10) is saying that just with reference to article 31 we have full powers as inspectors, i.e. We can enter domestic premises (as long as it is not a single private dwelling) at any reasonable time, take samples, ask for records etc, and we can prohibit the use. It doesn't necessarily mean the rest of the articles apply.
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Statistics also indicate that young men late teens to late 20s are at greatest risk (cant remember the actual ages but the main problem is alcohol, substance abuse, unemployment, deprivation )
You could have cut a lot of that sentence away by simply saying "Students."
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My first thought was, why is a fire officer getting involved at all? Does that FRS not have any higher risk premises where the level of risk can be reduced?
The I thought, isn't it contrary to the guidance from govt for two different enforcing authorities to be inspecting and issuing (different) requirements. If our opinion on the fire safety in a building differs from that of the Local Housing Authority, we should be consulting with each other.
Notwithstanding the various sections and schedules it seems that this bi-lateral approach is contrary to the spirit of the law. Does that count for anything? (I'm not sure)
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for Information there is Consultation Document available for download at this link
http://www.cieh.org/library/Knowledge/Housing/Draft_protocol_for_consultation.pdf
The dociment is in DRAFT format and issued by the Institute of Environmental Health Officers
as a proposed "Protocol between Local Housing Authorities and Fire
and Rescue Authorities" it does explain the types of housing and who would be the enforcing authority.
Any one not able to download email me and I will send a copy.
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Jayjay
The protocol has been developed by a working group set up with representation from the CIEH, CFOA, LACORS, DCLG (CLG), HMO Network and Landlords representatives.
It represents a pragmatic attempt at plotting a reasonable and legally defensible path through conflicting legislation.
Feel free to comment
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This is a good one isn't it?!!
I sight here the age old argument about who is responsible for what areas of a HMO - FRA the common areas and Housing Authority the private areas?
The answer is now that the FRA can enforce on any part of the building!
Yes I did say ANY part! God how contreversial I am... I think not!
So long as its not a single domestic dwelling a FRA (in my honest interpretation) could gain access to even the private areas of any residential premises and insist on standards because certain precautions may be needed to protect the common means of escape!
A fire officer somewhere in England (cant give any further details as its an on going case) has issued notices against a resident of a flat for storing his motor bike in the flat - it isn't even a HMO - its a private block flats and the resident is the owner not a tennant. Is it a single domestic dwelling? His flat might be but alas it is part of a much larger building with other single domestic dwellings within it!
This will be a test case and if the FRA win its going to cause a big snowball effect.
Another resident has been issued with a notice for keeping his motorbike in the common areas - again this is a test case for the brigade concerned.
So now lets apply that to the orginal topic of whom should enforce and inspect what? In our local authorty the Housing Team leave fire safety standards to the FRA and any deficiencies found are passed onto the council for information but it's the FRA who take action
It works well...
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Ahh,
I thought a Englishmans home was his castle but obviously not any more, Eric Blair got in right in his novel about Big Brother. next thing will be gatsco cameras recording movements in our HOMES, thats right our HOMES. Born free and taxed to death, we can now add to that born free and legislated to death.
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This question of powers of entry really isn't that complicated but there appears to be a misundertanding among many on here.
Can a FRS enter a single private dwelling?......... yes but only for prohibition/restriction purposes.
Can a FRS enter a premises consisting of or comprised in a house which is occupied as a single private dwelling...no.
In plain engish they cannot enter your house, unless your house is a house in multiple occupation, and then only if they believe that the risk is so serious that the premises should be prohibited or restricted.
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This question of powers of entry really isn't that complicated but there appears to be a misundertanding among many on here.
Can a FRS enter a single private dwelling?......... yes but only for prohibition/restriction purposes.
Can a FRS enter a can a frs enter a premises consisting of or comprised in a house which is occupied as a single private dwelling...no.
In plain engish they cannot enter your house, unless your house is a house in multiple occupation, and then only if they believe that the risk is so serious that the premises should be prohibited or restricted.
just to qualify that, a Fire Safety inspecter may possibly enter at other times, but not under the FSO, but via the Landlord/RP rights:re legal advice recieved:
''a while coming but I will keep the advice given brief:
1)As we all noted, with the exception of prohibition notices-no power of entry under FSO.
2)access may be possible with managing Agent/landlord/RP under their right of entry under lease, tenancy or other agreement.The scrutiny committee considered the courts would be likely to find a RP had statutory rights of access for the purpose of articles 17 (maintenance) and 38 (maintenance of measures to protect firefighters)
3)The owner/occupier, if they do not co operate,could be prosecuted under Article 32(10)
so the 'right' of entry, is now thru other means i.e. the landlord/managing agent/housing officer.Any detector in a non shared area that is part of a larger system has to be maintained.A lot of landlords/housing Assoc/councils now looking at 'front doors' to see if they are suitable.Apparently a case to go before high court to determine who pays for upgrading, or replacement of such doors-tennent/landlord or RP etc.''
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My first thought was, why is a fire officer getting involved at all? Does that FRS not have any higher risk premises where the level of risk can be reduced?
I don't think he has a choice as he was formally requested by another agency, so now has to see it through - unde rother circumstances he may never have visited the place (or known it existed!)
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You are quite right, Anthony B, this fire officer would not normally have visited the property. Also, as it is now no longer classed as an HMO because there are only 2 people living at it (previously there were 3), the Housing Officer is no longer particularly interested in it.
BUT - and this is a big BUT - now that the fire officer has seen it, he is basing his opinion on his handbook and the interpretation of what is classed as 'a single private dwelling'. His interpretation is that the RRO applies to 2 or more unrelated sharers. However, he has since stated that his local authority is currently 'expecting guidance ...... with regard to the standards that we should be applying, but, as yet, they have not been published'.
IF the applicable number of occupants is 2 rather than 3 (as with HMOs), this really complicates matters. He further states that 'there are 2 pieces of legislation that apply to this type of property, the Housing Act 2004 and the Regulatory Reform (Fire Safety) Order 2005, RRO. Both acts impinge on each other with the Housing Act taking primacy'. The Housing Act I can deal with - the RRO is much too complicated for the likes of me!
Hopefully, the number will be agreed as 3 and then I will know where I stand!
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nelliedean
Please can you direct me to where the 'housing act takes primacy' is described.
Practically this may be the case but I would like to see the legal argument.
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..... he is basing his opinion on his handbook and the interpretation of what is classed as 'a single private dwelling'. His interpretation is that the RRO applies to 2 or more unrelated sharers. However, he has since stated that his local authority is currently 'expecting guidance ...... with regard to the standards that we should be applying, but, as yet, they have not been published'.
Please someone tell me why this confusion still exists!!! ......................Single private dwelling......forget that term...not really very relevant........The Fire Safety Order is not applicable to DOMESTIC premises.
However it may be used to prohibit or restrict the use of domestic premises ....but only if those DOMESTIC premises do not consist of, or are not comprised in a HOUSE which is occupied as a SINGLE PRIVATE DWELLING.
Therefore.......an HMO....or an Hostel....or .......a private flat in a block of flats......or even an hotel room......may all be single private dwellings........the Fire Safety Order does not apply to any of these...however....... it could be used in relation to all of them....but....only in the scariest of situations..... to prohibit or restict their use.
Val you must be aware that the Housing Act is the most appropriate legislation for dwellings.....but also be aware of and read Articles 43, 44 & 47 of the FSO....they disapply certain provisions if the problem can be sorted with the FSO....but nothing in the Order disapplies the Housing Act.
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Jayjay
The protocol has been developed by a working group set up with representation from the CIEH, CFOA, LACORS, DCLG (CLG), HMO Network and Landlords representatives.
It represents a pragmatic attempt at plotting a reasonable and legally defensible path through conflicting legislation.
Feel free to comment
Why does the document not cover the duty imposed on Housing Authorities by Article 42? This could create an unecessary burden on both enforcing authorities if not adequately managed and in my opinion should be included in the protocol.
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Phil
I cant understand how a hotel room, even if occupied on a long term basis can be classed as domestic premises for the purposes of fire safety enforcement.
The old FP Act was a little ambiguous over the definition of a hotel or boarding house but the RRO is even worse in not clearly defining domestic premises. Taking dictionary definitions - " pertaining to the home or home and family life" does not help at all.
So my starting point is that carrying on the trade or busness of a hotel or boarding house keeper involves the provision of rooms, the offer of rooms to persons, and subsequent letting of rooms to guests in order to carry out that business and is regulated by a number of clearly defined other laws and regulations.
The rooms are therefore hotel rooms and not domestic premises as I see it.
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Yes fair point Kurnal...highly unlikely but if the room was on a very long let and no-one else shared it...it could come into the definition of domestic premises used in the Order. But agree that the Order would most probably apply.
The same problem can exist in HMOs and Hostels.,..some parts may be for the exclussive use of individual residents e.g. their bedrooms while others shared parts such as kitchen and lounges are subject to the Order.
The inspector, as you know could always enter single private dwellings (except houses) under the 71 Act but needed to give 24 hours written notice. There now is no such power except fro prohibition or restriction.
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nelliedean
Please can you direct me to where the 'housing act takes primacy' is described.
Practically this may be the case but I would like to see the legal argument.
This seems to be what some of our local councils believe. A lawyer friend of mine told me that 'an Act' would take primacy over 'an Order' if there was a conflict in court. Only hearsay evidence but it sounds reasonable to me.
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nelliedean
Please can you direct me to where the 'housing act takes primacy' is described.
Practically this may be the case but I would like to see the legal argument.
This is a direct quote from the reply from the fire officer who visited the property so he obviously has been instructed by his local authority that 'an Act' would take primacy over 'an Order' if there was a conflict in court (as suggested by Big A).
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No 'Act' takes primacy over 'the Order'. They are both the same in law. There was some discusssion about whether the FSO could over-rule any legislatation that had come into force in the two years previous to the Oct 2006 enactment date, but I think even this does not hold water.
I was specifically told by ODPM that the FSO has the same basis in law as any other Act or Order.
Indeed, in this situation you could argue that the FSO disapplies under Article 42 and 43 the registration aspects of the Housing Act, (in common areas of HMO's). Now that does wind up the Housing Authorities. I don't see any exemption for Housing.
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Law is either in force or it isnt - there are no peking order rules.
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Indeed, in this situation you could argue that the FSO disapplies under Article 42 and 43 the registration aspects of the Housing Act, (in common areas of HMO's). Now that does wind up the Housing Authorities. I don't see any exemption for Housing.
It has indeed ruffled a few feathers. Some of our LHAs have accepted our version but others are still applying prescriptive standards as conditions of the licence (wrong on two counts) and will continue to do so until they are challenged at a tribunal.
It is also causing some discomfort in the (liquor) licensing departments.
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Sorry to liven up an old thread again but its very relavent to what im going through now. I started it on another thread but i just pick up some points here. Im currently challanging that the building converted into 5 self contained flats on 3 stories completed just 12 months ago may actually need common escape AFD on the basis that something of an AFD system is currently in place. It contradicts the App Doc B thats states its not needed IF the building meets those standards. So the FSO visits first at my request. Not being technically minded he cant really see the problem and is permitted entry to the flats by the landlord serving permission notice to the tenants even though this is an RRO enquiry i feel its essential one can see the big picture. ie check the flats. Next the FRS attends on the same remit. They are given entry to the flats by landlord invitation for building evalution 24hs notice required. There is no need for enforcement access you just knock on the door and ask:)
However only BCO has the technical knowledge in this situation becuase they have access to construction certificates and are now stearing this under the Housing Health and Safety Rating System. This triggers a building audit because they have total building powers not just common parts. However, the LA and the FRS work in tandem on this otherwise potentially someone could be actually be prosecuted twice for the same defects which of course is not the object if they were not singing from the same hynm sheet. The BCO should be able to provide evidence that the building is compliant to App doc B ie 60 min rated. If he can not be certain beyond all reasonable doubt that the survey and certificates are lacking integrity then the building may be down graded to 30 min rated. Once that happens AFD common areas is then ESSENTIAL and worst still it becomes a licensable HMO! There is a lot more clarity now as from 6th of April 2007 should follow the guidance contained in the new Approved Document B (Volumes 1 and 2). The distiniction is much cleaner as either its a DwellingHouse vol 1 or its not Vol 2. Blocks of Flats or flats conversions are not DwellingHouses becuase they are multiple dwellings contained inside a common areas wrapper. So they are in Vol 2.
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I think you have it right Bolt but I dont pretend to be well up in the licensing side of HMOs under the housing Act- whether the LA have any discretion as to the way they licence premises and the ability to set local criteria or licencing conditions. Any EHOs on the forum?
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My understanding is as follows:
If the premises is two storeys, it is registered as a HMO whereas if it is three storeys, it is licensable.
A shared house, such as a terraced property being shared by students who live as one unit, is not classed as a HMO and is not licensed as such although it should be registered.
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Who decides whether the students live as one unit? My Daughter shares a student house with 5 others sharing all bills. But there are three subgroups within the six- a group of 3 who share their cooking and shopping, a group of two and a single independent minded individual. I dont think they would be classed as a single household- they just sleep under the same roof and share the basic facilities in a 3 storey terrace house.
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Correct me if I am wrong, however I believe the criteria is a 'single FAMILY unit',
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Shared housing doesnt come under the RRFSO in any case. According to the draft enforcers guide.
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Ae not the Enforcing Authorities responsible for the shared/common areas of housing under the RR(FS)O?
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Only if rackrent is payed, i.e rent not less than two - thirds of the rent at which the property might reasonably be expected to be let from year to year, free from all usual tenants rates and taxes, and deducting from it the repairs, insurance and other expenses (if any) necessary to maintain the property in a state to command such rent,
as far as i can see, therefore most student/shared houses dont come under the order.
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Rackrent is not relevant, if they are not domestic premises as defined in the order the Order applies to the common parts.