The “responsible person” and legal responsibility

[Gary Howe]

Meaning of “responsible person” (taken from the ODPM site)

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) above

(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.


Examples I have created:

1) Multi-tenanted building occupied by various trades, who lease space within the building.

Each tenant nominates a ‘responsible person’, and carry out their own individual risk assessments;

Assumption: legal responsibility lies entirely with the individual tenant.

2) Public house (owned by a brewery) with a tenanted landlord.

The brewery nominates a ‘responsible person’, to carry out the risk assessment;

Assumption: legal responsibility lies entirely with the brewery.

Question, what level of responsibility lies with the landlord?

3) Residential flats owned by a property company on 99-year leases.

The property owner nominates a ‘responsible person’, to carry out a risk assessment of the common areas only.

Assumption: legal responsibility lies entirely with the property owner.

Does anyone agree/disagree on my assumptions, all feedback welcome, good, bad or indifferent!

[Mr. P]

1) - where by actions /processes etc may affect the neighbouring 'space' they will need to liaise and inform that occupier, and, take measures to safegard them.  Building owner, although leased out, may still hold some (at least) responsibility.
2) - the tenant landlord will hold at least some responsibilty as they will be the main personon site, unless brewery accept totallly or appoint fully someone else.
3) - Your observation looks correct to me.

[Reg]

1)Owner has a responibility for the common areas and the common services that individual tenants would not control over.  They would also have a co-ordinating role to ensure that the actions taken to address a tenant's FRS did not impinge on any other.

2)  Alot would depend on the tenancy agreement.

Is the brewery leaseing the building alone - the tenant owns the business and is the employer of the staff working there - tenant solely responsible.  It is the owner of the business not tthat is important he owner of the building

If the brewery leases the building and takes a percentage of the profit - has a vested interest in the business then they would also have a degree of accountability.  this is a grey area until tested in court.  Who is the employer of the staff?

The only time when the brewery would be the responsible person is where they are the employer

3) Totally agree

The definitions are in a rank order starting with the employer.  The owner of a building is only the responsible person as a "last resort" IMHO

[Nearlybaldandgrey]

1) The owner has responsibility for the common areas, however, they also have responsibility that the requirements of the order are complied with by tennants.

2) The tennant/landlord as they are the person that has control of the workplace

3) Agreed

[Reg]

Baldyman

1) I agree in so far as the fabric and perhaps the fixed facilities of the building but what about training and procedures etc etc and all the soft items.  The owner of the building cannot be responsible for those issuesas he has no control.  

2) It is not as simple as that - It depends on who takes the profit and who employs the staff.  In addition the tenant may not control of the fabric of the building depending on the lease contract.  I've come across all sorts of arrangements.  At the end of the day it is only a court that can decide definitively

[wee brian]

For any one building there may be lots of people who could be regarded as the "responsible person".

One may be responsible for the buidling, the other responsible for training. If one fails to meet the requirements applicable to his responsibility then he is the one who gets nicked.

When trying to establish who is "responsible" ask first who has control.

[Reg]

Spot on WB - totally agree

[neil yates]

Interesting thoughts on responsible person.

What about a multi-occupancy building where the Managing Agent (owner by interpretation) only collects the rent but has no common areas, no common systems and no direct communication with the building?

Where in the RRO does it make the owner a responsible person? It is not in article 3 and I find it hard to pull out of article 5.

Your opinions would be appreciated as I know two such buildings where the fire authority and the fire and rescue authority consider the owner to be a responsible person. Their opinion is that the owner has control over the building (yes they technically own it), and they should be involved to ensure the fire alarm systems in the different occupiers premises (4) are correctly linked and maintained, and the Managing Agent must set up and control procedures -Fire Emergency Plan and Fire Safety Arrangements (Article 11).

A lot of this apparently falls under article 22 but surely major companies who are tenants in the building can cooperate and coordinate without the owner being dragged into the melee? How is the owner made responsible if the owner is a syndicate operating from South Africa and only their solicitors who issue the leases are based in the UK

Taking this a step further can the owner of a single ocupancy building be considered a responsible person?

[Nearlybaldandgrey]

Try looking in the definitions .... article 2

Where a managing agent collects the rent, they are by definition, the owner. It appears not to matter that they are remote, unless someone can correct me.

[neil yates]

Thanks Baldyman

Article 2 Interpretation says same as was in the FPA re owner and rack rent except I believe the interpretation is slightly changed from the definition in the FPA. That is not the question.

Being owner does not make the owner a responsible person. The meaning of "responsible person" in article 3 does not cover the owner of a multi-occupancy building where all premises are workplaces, and the owner has no common areas or systems in the building. 3(a) defines the Employer as responsible person.

3(b) is not applicable

The only article that may bring the owner into the fire duty scenario of such a building (no common areas and no common syatems with the owner just collecting the rent) as a responsible person appears to be article 5/3 and the wording: "who has, to any extent, control of those premises so far as the requirements relate to matters within his control"

Does a lease stand up as such control and if so to what extent should the owner be involved?

[Nearlybaldandgrey]

I would suggest that informatin would have to be obtained by asking occupiers who tests the fire alarm etc to ascertain who has responsibility for maintenance of the material structure and the fire precautions.

It could be a matter of examining the lease or tenancy agreements to verify what arrangements or conditions are in place as some may charge a service fee or have a full repair clause in the agreement.

Multi-occ buildings are difficult as no-one seems to take responsibility or will admit to it!

[AnthonyB]

At least with fire certificates the owner clearly had overall responsibility for the whole place with occupiers having the day to day responsibility for their demise.

[Nearlybaldandgrey]

Yes, agreed, but alas they are no more.

We have to go for the employer, although I would argue that the owners of the building do still have some responsibility ....

[Tom Sutton]

As WB has said it could be a number of persons if they have control of the premises.

[neil yates]

Thanks all for your comments. For all Consultants this is pretty important as the majority of Property Managers/owners do not consider that they have responsibility for a multi-occupancy building where the units are let individually on a full repair and insurance lease, each unit has its own fire alarm system and escape routes. The owner only collects the rent and service charge.

The owner in the lease requires the occupier of each unit in the building to comply with statutory requirements, which will include the RRO.

The owner is of the opinion he has no further responsibility and that there is nothing of meaty content in the RRO to make him a responsible person.

This is not a metter that we could consider a determination as it must come out of case law and who wants to be prosecuted and defend to get case law?

Any legal brains out their that could give a legally based opinion?