"You vs Us"

[Midland Retty]

Remember, FRA FSO's now audit fire arrangements, not inspect. Therefore it is up to the Responsible persons and their consultants to make the case, why their premises are compliant with the Order.

Interesting times ahead for us all I would suggest

Don't get too hung up between the word "Inspect " and "Audit"

We still do what we always did.

Most Authortities will do a pre-inspection Audit whereby they sit down with the Resp. Persons and audit the paper work and procedures of the premises - and then inspect the premises to see if those procedures are working or are correct in relation to the physical structure or process undertaken.

The only major differences are:-

1) Ownership of Fire Safety is now on the RP not the Fire Authority

2) Fire Authorties aren't being descriptive or prescriptive in their reports (until you reach the enforcement stage)

One thing I know myself and many FSO do is try and bring the premises up to the required standard without imposing too many onerous or expensive requirements on the punter.

I do live firmly in the real world! But sometimes there isn't any other option but to insist on the highest standards!

[PhilB]

Civil courts provide a means for individuals to pursue others for money due to them, not for authorities to prosecute.

Quite so Chris, that was what Kurnal was referring to. Could a RP seek compensation from a fire authority if an enforcement notice did not offer the cheapest solution?

[Chris Houston]

The claimant would need to prove that there was a duty of care, that the duty of care was breached, that the breach caused and injury or loss.......I'm not expert in this, but it sounds impossibly difficult to do this.  I very much doubt it.

[PhilB]

You do not always have to prove negligence to win a civil claim Chris, and that is what you are referring to. But as I explained in my earlier post I don't think such a claim would succeed.

[fred]

It is within the remit of a Fire and Rescue Service when issuing an Enforcement Notice to just specify the area of non compliance; why they don't comply; identify the provisions not complied with; and then advise them to seek the opinion of a competent person for a solution - and give them a period of time to fix it.

The FRS is not obliged (under Art 30 of the RRO) to tell them how to fix it.  "An enforcement notice may include directions as to the measures which the enforcing authority consider are necessary to remedy the failure".  May doesn't mean must - and the words are carefully chosen in legislation aren't they?

(though I hasten to add these are not the views of my employer)

[PhilB]

I quite agree Fred, but if they do chose to specify how to put things in order, it then becomes part of the notice and must leave no doubt as to how to sort it. So the notice would then have to specify exactly what to do.

See Case law B.T Fleet Ltd  vs McKenna 2005 in earlier post.

Also if you take the approach you mention and issue a notice saying something like "provide a suitable means for giving warning," it becomes a nightmare to try and prove that the notice has not been complied with.

[fred]

Agreed

The terms 'rock' and 'hard place' spring to mind ....

If FRS's decide to specify what directions should be taken - legal advice suggests that alternative solution's (if there are any) should also be offered.  How many alternative solutions should be provided ? Taken to extremes I suppose FRS's could suggest the building be demolished.

Personally I think it would be easier not to specify directions to be taken - and leave the problem, and the solution to the problem, quite firmly in the RP's domain.

[PhilB]

And what if they then seek fire safety advice using the FRS Act??? Oh no I need to have a lie down!!!!!

[Nearlybaldandgrey]

I was going to add the part about Enforcement notices having a "suggested remedy", but that's been done.

Action plans are being issued as an alternative to the enforcement notice, but only after the application of the HSE's Enforcement Management Model, which takes into accounr inspection history, general conditions and the attitude of the Responsible person.

Just because an action plan has been issued doesn't mean an enforcement notice can't.

Also, audits should be carried out within the guidelines of the enforcement concordat, which has not been mentioned up until now.

[PhilB]

Also, audits should be carried out within the guidelines of the enforcement concordat, which has not been mentioned up until now.

Baldyman you missed my earlier post:
"
If FRS are enforcing in accordance with the Concordat there should, unless it is so risky, be full discussion and consultation to resolve the matter before an enforcement notice is served. The fact that the notice needs to be served would generally indicate that the discussion option has failed so now it is time to be specific."

You really must pay more attention.

P.S. How is Mr Wyss??

[Nearlybaldandgrey]

My apologies ..... I really must pay attention in class!!!

[fred]

And what if they then seek fire safety advice using the FRS Act??? Oh no I need to have a lie down!!!!!

No No Phil ...... keep awake ... there's more ....!

I take the view that the FRS can quite legitimately respond to such a request by saying it does not consider it "reasonable to do so" because the RRO legislation specifically states that it is up to the RP and his competent person to make the place safe.

QED

[PhilB]

Yes Indeed, quite right Fred, that is the beauty of this new law, the responsibility lies with the RP. When asked for advice the FRS could say buy a guide or appoint a competent person.........can I lie down now?

[Mike Buckley]

Or indeed they could give the advice themselves, which if it is not part of the enforcement notice, is not binding and therefore open to discussion.

As I see it if the enforcement notice states the measures that need to be carried out unequivically i.e. a staircase from point A down to point B then that is what must be done. If the FRS gets it wrong and let us say point B is 15 feet off the ground then the RP has still conformed with the enforcement notice if he builds it as told.

If the enforcement notice just states the MOE from the third floor is inadequate and an alternative needs to be provided. The RP is free to get advice from whoever they want, but if they approach the FRS then alternatives can be discussed and mutual agreement reached. If the RP goes elsewhere and the FRS disagrees then the appeals procedure is there to sort it out.

[messy]

All notices (informal or enforcement) that I write point out the perceived problem and use rather wooly advisory terminology when offering a solution to overcome the problem of being over prescriptive.

eg:
- All six alternative final exit doors on ground floor and basement level found welded shut

- Providing final exit doors which are easily openable in the event of fire would satisfy this Article. Other methods of providing a solution may be available......

So I point the RP in the general direction - quoting specific quality benchmarks such as BS if appropriate- and then leave them to find their own way.

It seems to work.