Fire Risk Assessment Audits

[Chris Houston]

I've not been part of a BSi comittee, so have not had the experience of this, but I'm not clear on what you are saying - are you implying that something underhand is going on - please be clearer....... :/

[jokar]

Nothing underhand at all, just people from different backgrounds having different perspectives, after all, BS are the consensus of those who are part of a committee.

[kurnal]

To fully understand the status of the BS and other guidance documents we need to be clear as to their status in Law. And personally I am a little confused on this.

The Fire Safety Order is clear- it requires fire precautions to be put in place where necessary and to the extent that is reasonable and practicable in the circumstances of the case.  

Next comes a bit of a problem as I see it. The secretary of state has published 11 guidance documents but it is not clear to me whether these guidance documents have any legal status. I think they do not.

Does the guidance have the status of an approved code of practice? Normally in other H&S areas these are published by the HSC and give more guidance on the the requirements and the level of compliance necassary to satisfy the regulations. Approved document B is another such example. A person is never prosecuted for contravening the approved document B but can be prosecuted for contravening the building regulations. If the court shows the person has not followed the guidance in the ACOP it can find them at fault unless the person can prove to the court they have satisfied the regulation in a different way.
I dont think the 11 guides have the status of an approved code of practice. At least they dont appear to say they do.

So are they best practice guidance rather than an approved code of practice? Or are they not even best practice guidance on a status of the HSG notes published by the HSE?

British standards are just advice on good practice. They bring together expertise from across industry, employees, enforcers and it is right that all the diverse interest groups have input into a process the outcome of which must be a recommended standard that is  safe and workable for the employer, employee and deliverable and sustainable for the industry.  

The risk of non compliance is more likely to be a civil claim for damages rather than any criminal procedings.

[PhilB]

I quite agree Kurnal it would be good to have some ACOPS. Dont forget that the ACOP to the management regs is still out there and clearly explains what significant findings are, and what constitutes a suitable and sufficient risk assessment.

Unfortunately the authors of the new guides apparently didn't read that decided to use an alternative definition of significant findings!!!!! It becomes increasingly obvious on this forum that confusion reigns for those of us who have some knowledge, what chance does the poor RP have with such poor guidance?

[fred]

Next comes a bit of a problem as I see it. The secretary of state has published 11 guidance documents but it is not clear to me whether these guidance documents have any legal status. I think they do not.

Interestingly at a recent hearing in a Magistrates Court where a hotel (but not in Devon) appealed against the requirements of an enforcement notice (requiring AFD in hotel bedrooms), a District Judge made a specific reference to page 55 of the Sleeping Accommodation Guide where it suggests an L2 system for a hotel.  He then rejected the appeal and gave them 6 months in which to comply.  

I'd rather not share the actual details until I'm sure it can be circulated - but it could be groundbreaking stuff.

[John Webb]

The Guides: It would seem to me that these can be compared with the 'Highway Code' - it's not a legal document but if you don't heed its recommendations that can be taken into account if you are before the courts. The Guides are like the 'Fire Safety - an employer's guide' and compliance with that, to quote page ii: "you will normally be doing enough to comply with the law".

Re BSI Committees: I sat on one for a few years in the 1990s. Very broad spectrum of representation - Government, manufacturers, testers and users. So while current best practice is a large part of the equation, many parties also have financial considerations. These affect the final Standard in many ways. Equipment cannot be too expensive or complicated to make; it needs to be reasonably easy to test for compliance; it should not be too expensive to buy or maintain. So a balance has to be struck between what is desirable and what is practicable. And in addition we have to take account of the European and other International standards. So BSs tend to be pragmatic in nature and may not always represent the limit of current 'Best Practice', particularly if several years old.

[jokar]

Fred,

my understanding of this case is the same as your own.  In which case the guides will become an ACOP and FRA can be thrown away.  The guides will became a 2007 version of a fire certification process and what is written in an enforcement notice will become all that more important.

[fred]

Yes - not a bad thing in many respects - and that's my understanding of how HASAW is enforced.  The inspector identifies the area of non-compliance - tells them why it doesn't comply, and the relevant section, and tells them to conform to the appropriate ACOP.  Bingo - job done.  I guess we'll eventually re-invent the same wheel.

[kurnal]

Steady on chaps!
An ACOP is only enforcible IF an improvement notice is issued that specifies compliance as one of the steps to be taken. And the existing guides are so woolly that in their current form they would not be fit for this purpose. You would need something much more specific like ADB or BS5588.
Since an improvement notice is only used in serious cases, and in the scheme of things are the exception rather than the rule, for most premises- and even for most improvement notices Risk Assessment is alive and well and going from strength to stength.

[Martin Burford]

To All

The Guides Do Not Have Any Legal Standing As They Did Not Under The Fire Precautions Act... They Are As It Is Said " Guides"...............of Course There Are Always Other Options Other Than The " Guides"........but Thats What Fire Engineering And Its Solutions Is All About.  However Deviating To Far From The " Guides" May Cause Problems If Other Solutions Cannot Be Substantiated Under Examination.
Conqueror.

[jokar]

Unless of course as written above a District Judge decides that something written in the guides now becomes case law.  Then FRS will serve enforcement notices stating that the RP will comply with statements made on Page whatever of a guidance document applicable to their particular premises type.  Some FRS are already pushing the boundaries of the RR(FS)O by inspecting all parts of HMO's including that part behind entrance door to an individuals private accommodation.  The judgement in the case specifies that the RP has to comply with Page 55 of Guide no 3 where an L2 system is in the words of the DJ "prescribed" by the guide.  He found that "as a matter of fact" that an L2 standard should be complied with and gave 6 months for the work to be done.

[val]

I do not know any more details of the 'Devon Case', (folklore already)! But if the RP did not put forward any reasonable argument as to why they shouldn't comply with the 'accepted' guidance, then the judge would have had no option to throw out the appeal. Remember, almost by sleight of hand, the legislation has shifted the burden of proof onto the RP.

[kurnal]

Val- I think you should refer to it as the "not in devon" case.

Although I am not aware of any of the details of the interesting case you refer to I would speculate that  it is most unlikely that an individual case in a magistrates court is likely to set a legal precedent.

As I understand it, usually the arguments in these enforcement cases will be considered on their individual merits and the role of the district judge will be to decide whether the RP has met the level of compliance- ie as far as is reasonably practicable-  and where the judge finds he has not,  to direct the remedy applicable in that particular case.  Or have I got this wrong?

[jokar]

But that is the point.  A fire certifucated premises, left alone under WFPL by the FRs and now bounced under RR(FS)O.  The owner can quite rightly state that he has complied with all the Brigade requirements but now has to upgrade because of a change in attitude from the FRS, who had the same powers under WFPL but did not bother to use them.

[kurnal]

Thanks Jokar. I see where you are coming from now (at last!)