Tenants fire risk assessments

[Rocha]

What are the legal connotations for tenants not undertaking fire risk assessments of their demise, for example in a shopping centre and how far can the local fire authority go under the Fire Precautions Workplace Regs??

Can the local fire authority issue notices to ensure tenants comply or would they be reluctant to do this??

[jokar]

Under the Workplace Fire Precautions Legislation, every employer has to undertake a risk assessment.  If this is not completed the FRS can issue an enforcement notice to ensure that the employer complies with the legislation.  In your scenario, the tenant, if an employer, has to comply with the WFPL.  If not then they still have to comply with Section 9a of the FPA 1971.  Of course, the Centre may have a Fire Certificate which will be an addition to the WFPL as FPA Circular 28 states that the prime legislation in England and Wales is WFPL above FPA.

[kurnal]

Jokar
I agree that every employer has to carry out a risk assessment BUT they only have to record the findings if they employ 5 or more persons.
As we have seen before in an earlier thread it is unlikely that a fire authority would serve an enforcement notice or take any action against an employer simply for failing to carry out a risk assessment but rather to deal with the risk that has arisen as a result of that failure.  So if the authority cannot identify some specific hazard that the employer has failed to address, they are unlikely to do anything other than give verbal or written advice.

[AnthonyB]

We 'police' tenants on behalf of landlords in multi occupancies (offices, shops, light industrial) as over 90% of our fire based workload as a part of carrying out their risk assessment.
Most tenants only get inspected by us as the FRS are all tied up with domestic FS. We expect to see on inspection a risk assessment from all tenants with the magic 5 or over or it goes down as a deficiency.

Ignorance by tenants is rife & I must have issued hundreds of guidance leaflets during inspections to update people on FRAs and things like EL testing.

They are in breach of the law, yet often assume the FRA is done by the landlord & we put them straight. it's amazing how many tenants don't even know they have EL in their suite or that they have to do the testing.

Lack of an FRA alone isn't the worst thing - I am more worried if the actual premises is unsafe, e.g. locked exits, etc. Generally, a letter of responsibilities is issued, but thats about it - action for breach of lease (or warnings of the likelihood of such action) are normally only reserved for actual hazards

[Graeme]

it's amazing how many tenants don't even know they have EL in their suite or that they have to do the testing.

Anthony

I find this hard to believe. Every premises i have come across know exactly where they are and test every week.
They even test FD+A system and keep a log book.

cough cough....

[Chris Houston]

I would like to add that it is not only fire safety legislation that creates a duty for a risk assessment to be completed.  The Health and Safety At Work etc Act of 1974 also creates this duty.

[kurnal]

Sorry Chris But I cant resist the chance to show what a pedantic old f**t I am!
The requirement for employers to carry out risk assessments was not part of HASAWA but was introduced as a result of the European Directive through Regulation 3 of the Management of Health and Safety at Work Regulations 1992 ( updated in 99).
These regulations introduced for the first time the european concept that the employer, who creates the risk, is the best person  to manage the risk. It became mandatory to use assessment as a tool, and brought in a duty to deal with hazards through the principles of prevention, which focus on eliminating risk if possible in preference to using other methods to mitigate the effect. So hence, when the FP (WP) Regs came along in 97 the focus on  preventing a fire from starting rather than the old FP Act approach of ensuring that a building would offer the occupants a reasonable chance of safe escape.

[shaunmckeever]

...and if the tenants of the shopping centre did carry out a fire risk assessment who is to decide that the assessment is suitable and sufficient?

What would you be looking for in a fire risk assessment carried out by shop staff? I would imagine the centre manager would be looking to you to comment on the adequacy of the assessment and so you may offer an opinion which may be contested by the person who carried out the assessment.

[Reg]

It is only a court that can determine that a risk assessment is or is not suitable and sufficient.  However, it is the enforcing authority who will or will not contest it.  If the enforcing authority are of the opinion that the RA is not suitable and sufficient, the onus is on the Responsible person (assesssor) to demonstrate the reasonableness (Is that a word??) of it.  

"Article 34. In any proceedings for an offence under this Order consisting of a failure to comply with a duty or requirement so far as is reasonably practicable, it is for the accused to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty or requirement".  
(Providing, of course, that as a result they have put someones life at risk)

Also, It is still the duty of the Responsible person to ensure that the RA is completed (in most cases the employer).  However, are the shop staff competent to undertake a suitable and sufficient RA?  From the evidence I have seen, most RA don't even pass the first hurdles - Who are the persons especially at risk?  Without it - not suitable and sufficient.  The same goes for most generic head office produced lip service risk assessments

IMHO

[AnthonyB]

We don't go into the depth of how good the FRA is as otherwise we would take an inordinate amount of time with each occupier and also several would be considered inadequate - we do take issue to things shown us that are clearly not FRA in any shape or form (such as the fire procedure, fire certificate, H&S RA that has no defined fire section & even our own advice leaflet we gave them last year!).
If an FRA is present we simpy note any significant findings impacting on our clients areas or that may be within their control to resolve and inform the tenat that they may ask to see our client's FRA in return - all part of 'co-ordination & co-operation' in multiple occupancy workplaces.

The main reason we like to look around is physical conditions as even the best FRA is worthless if control measures are not maintained, exits blocked, new uncontrolled hazards introduced etc

[shaunmckeever]

Yes Reg you are right only a Court can decide if an FRA is suitable and sufficient but shopping centre managers who may have over 100 outlets ranging from very low risk premises to relatively high risk burger outlets (a major fire at Heathrow comes to mind here) will have the job of collating FRA's as part of the 'co-ordination & co-operation' process. The chances are they would look to a professional like Rocha for advice on what he would consider as suitable and sufficient. The only time the courts are likely to get involved is after an incident by which time it will be too late to address any glaring errors or omissions. I can recall looking at a FRA carried out by a tenant who thought all the smoke detectors were sprinklers! When I challenged her on it she laughed said 'I thougt they were sprinklers' and then said 'Oh I better write it again then'. I never saw the next one she wrote.

[Nearlybaldandgrey]

We 'police' tenants on behalf of landlords in multi occupancies (offices, shops, light industrial) as over 90% of our fire based workload as a part of carrying out their risk assessment.

So you are in a way enforcing the legislation?

Most tenants only get inspected by us as the FRS are all tied up with domestic FS. We expect to see on inspection a risk assessment from all tenants with the magic 5 or over or it goes down as a deficiency.

I beg to differ on that point.

FRS's are doing domestic, which is actually called community, fire safety and is carried out by operational crews. that leaves the Fire Prevention Officers to deal with commercial inspections..... which has a programme driven by risk to life.

offices and shops will get inspected..... just not at the moment.

[kurnal]

You make an interesting point baldyman.

Yes many people have a role in the enforcement of legislation - especially insurance companies, fire consultants, and news organisations . I do far more meaningful and effective enforcement and education work now as a consultant than I did as a fire safety officer for the brigade. I have much more time to give a full and in depth service, to find solutions to problems and offer choices of solutions. The only difference is that I dont have any sanctions I can apply if I dont like what I find, and I work where I am invited to, rather than working to a risk based program.

As far as your inspections of offices and shops are concerned, does your authority have a risk management plan based on the CFOA guidance on enforcement? I would be very surprised if, other than for known high risk premises, you ever get round to programmed inspections of this purpose group again. Even under the FP Act most brigades never got round to re-inspections. And the sort of client that Anthony is asked to work for is effectively  the blue chip end of the market and will never score as high risk prompting a programmed inspection program. So we will continue to be the only enforcement that most of these premises ever see.

[AnthonyB]

We 'police' tenants on behalf of landlords in multi occupancies (offices, shops, light industrial) as over 90% of our fire based workload as a part of carrying out their risk assessment.

So you are in a way enforcing the legislation?

Sort of, but with only minimal powers - we can enter premises only under the landlord access arrangements in leases, and thereafter have to use education & advice followed up by letters from the landlord. The only ultimate sanction available is for the client to take breach of lease action against the tenant, which obviously is not something taken lightly although clients have had on occasion (handful of times in all the years I've done this job) resorted to threatening forfiture proceedings in imminnt danger situations.

We've done this internal 'policing' before FRAs existed under the FPAct steming from the clients desire to show due diligence defences against notices jointly issued to them (certificate holder as owner) & tenants (copy holder as occupier) & seem to fill a gap left by FRS who can only concentrate on the highest risk areas

[Nearlybaldandgrey]

Yes many people have a role in the enforcement of legislation - especially insurance companies, fire consultants, and news organisations .

But the Fire Authority are the only ones with full powers of enforcement, so how do the others do this?

I do far more meaningful and effective enforcement and education work now as a consultant than I did as a fire safety officer for the brigade. I have much more time to give a full and in depth service, to find solutions to problems and offer choices of solutions.

So as an Inspecting Officer I don't do a meaningful or effective job of enforcing fire safety workplace legislation and educating employers in fire safety matters?

Your comment gives the impression that Fire Authority Inspecting officers are not doing a good job and leave people to sort out their own problems because we don't have time.......... Well that certainly isn't my approach to the matter and I would guess, far from the truth.  Your opinion is formed from your own experience as a fire safety officer.

I educate and advise.... the most effective method.  I assist employers to find solutions to problems and give options.

Yes my Fire Authority has a risk management plan. The inspection programme is not for discussion here for obvious reasons.

AnthonyB......  thankyou for clearing that up.