Plans with a risk assessment.

[jokar]

Kurnal,

I understand your dismay but it is not the enforcers job to tell the RP how to do what needs doing it is for the FRA to do that.  This is a straight follow on from notices that the HSE send out and they have been criticised in the courts twice over recent times.

1. Doing as above and directing the RP to do something that was explained.  The court said that was not enough.
2. Being prescriptive with what had to be done.  The court stated that wasn't the role of the HSE, their role was to identify ares in the legislation that had not been complied with and then the RP through the RA had to come up with answers to the Notice to the staisfaction of the HSE.

I have spoken to HSE inspectors about how they go about their Notices and the stance is to do what you have in front of you and then have a meeting to decide what to do between all parties.

[PhilB]

One of my clients has just been served an enforcement notice by a fire authority in the West Midlands. (No names no pack drill!!)
The notice is an absolute disgrace. And then some of you have the audacity to ask for plans to make the risk assessment clearer and easier to understand!

The notice is dated 5 November and the follow up inspection to check the work has been completed will be on or after the 20 November. Any problem with that do you think?

Heres the worst bit. Direct quote from the notice.

Action required

The Responsible Person must take such fire precaution measures in the premises, (as defined in Article 4, paragraph (1) (a) to (f) of the Order) as will ensure the safety of employees. With regard to the deficiencies identified in particular, take, From Article 4(1):-(a) measures to reduce the risk of fire on the premises and the risk of the spread  of fire on the premises (b) measures in relation to the means of escape from the premises (c) measures for securing that, at all material times, the means of escape can be safely and effectively used
(Part 2, of the relevant HM Government Fire Safety Risk Assessment Guidance Booklet refers)

So thats fine then isnt it. Clearly sets out what is to be done.

Kurnal, even though an enforcing authority do not have to include directions on how to put matters right……………see article 30(3)…


“(3) An enforcement notice MAY, subject to article 36, include directions as to the measures which the enforcing authority consider are necessary to remedy the failure referred to in paragraph (1) and any such measures may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention.”


case law under HASAW may make it desirable to give such directions because confusing notices  may be  considered invalid by the Courts……


BT Fleet Ltd v McKenna QBD (Admin) 17/3/2005
Improvement notices under s.21 of the Health and Safety at Work Act 1974 should state what was wrong and why it was wrong. The notice had to be clear and easy to understand. If the statutory option was exercised so as to proscribe how a recipient could comply with a notice, any directions given as to compliance formed part of the notice and, if confusing, could operate to make the notice invalid.

It MAY be worth pointing this out to WMFRS

[kurnal]

Thanks Phil and Jokar.

The first problem as I see it is that only 14 days have been allowed from issue to re-inspection. Whatever happened to the time for appeal?

I quoted just the action required from a three page notice of which only two lines gave any meaningful direction to the RP.  In fact the only two  requirements are to furnish certificates to prove that a timber lining to part of a ceiling has been treated with fire retardant varnish (it has been as a result of my risk assessment but certs are outstanding) and to fit a panic bar to an exit from a meeting room - the exit may be used by up to 100 people, has a lever handle  and is actually the main way into the meeting room from the car park).

Nowhere in the three pages is there any mention of right of appeal.

Also nowhere does it actually state that it is an enforcement notice.

The reference to employees is surprising as the premises are a hotel and bar so the relevant persons are actually in the main  customers and guests, rather than employees.

Finally how can the RP make an appeal based on such undefined actions required?
It would be tantamount to appealing for a relaxation of the duties imposed by the articles?
I will of course be discussing all of this with the fire authority tomorrow - there no need to appeal- the work has already been done.

[PhilB]

Kurnal

If I was a mischievious sort I'd avise your client to appeal the notice........if the notice gives less than 28 days it is clearly invalid and your client would win his appeal and costs.........if only I was mischievious!!!

The work may be done...you could still appeal just for the fun of it!!!

[kurnal]

You mischievous? Perish the thought.
After a good winge I usually take a pragmatic view. Lets just consider an appeal. An appeal would not help the RP or the relevant persons. If the work needs to be done it will still need to be done (or an equivalent standard of safety achieved in a different way)  after a successful appeal. Unlike the old FP Act- where if you saw the fire authority off in court they would go away and not re-visit the issues-  winning an appeal does not end the matter under the RRO - and does not absolve the RP from his duties!!

[William 29]

I note Phil’s comments re Article 30 (3) but the FRA should still be acting in line with then fire safety concordat surely?  
As a fire safety manager it was my policy that where possible notices were hand delivered and an explanation given as to what was required.  This also ensured that the work was more likely to get completed in the time scales within the notice.

Just before the RRFSO came in to force I was involved in some regional training for FSO's where it was stated at the time that up to 80% of notices that were issued by FRA's are issued illegally.  Which seems to have happened in your case Kurnal.

[Clive]

Just to get back to the plans issue;

Even if you do not 'have' to have plans, what a lot of people seem to forget is that carrying out a risk assessment and confirming/providing a satisfactory evacuation strategy etc. is not primarily done for auditing consultants or inspecting officers it is done for the 'responsible person'.  You are supposed to hand over the risk assessment to the responsible person to manage it, and take control of it ;

a.  You should state what measures you have taken, or are in place to reduce, prevent, control etc. etc. therefore text explaining and justifying your conclusions, and ;

b.  To support the responsible person ( who pays the bill), who we assume does not have a fire safety background, we should provide them with every means to assist them in maintaining those fire precautions, which also includes providing employees with information.  If 'we' by risk assessment provide the building with the correct features to confirm/provide a satisfactory evacuation strategy etc. Then by indicating how the building is laid out and 'used' (risk indication) with fire safety features indicated, a plan is a very 'helpful tool' for the client, to assist him in maintaining the fire precautions.  it is not prescriptive it is to assist, if they want to change anything from the details in the script or on the plan, they are aware that a review of the risk assesment is required it is fluid.  

You ask any employer/ owner they want the management of the fire precautions made as simple as possible, they have a lot of other things to do, and it is easier to inform employees of what is their for their safety by using a plan.

I am not in the debate of whether we must or must not, but an advocate ( no sticky yellow drink jokes ) of using what we can to provide and assist people in manageing their fire safety .

Having a 'Rant ' on here sets you up for the day !!

[Tom Sutton]

Just before the RRFSO came in to force I was involved in some regional training for FSO's where it was stated at the time that up to 80% of notices that were issued by FRA's are issued illegally.

What national training do IO's get these days?

[Clive]

At a time when, the fire safety IO's are being civilianised ( i.e. not a negative term, but just stating they are new and generally without any form of 'fire' background, so if you have someone new they needs training).  There appears to be a lack of national and sometimes local provision of satisfactory competence based training strategy.  Hence more inconsistency and lack of understanding.  Some have been trained in tick box auditing to populate databases, so I cannot say no training.


(personal views only)

[jokar]

There is very little National training it seems to be regional.  Larger Brigades have adeqaute training sites and staffing levels to ensure that staff from non and uniformed backgrounds receive induction and continuation training.  However, a problem arises in the management of teams by conflicting workloads and lack of experience of fire safety managers and in some incidents the old stager/code hugger/prescriptive person wins out and as they are with newbys their strength of character takes over and the training falls apart.

[Tom Sutton]

If the training is regional do they use a national syllabus or do what ever they fancy?

[val]

I know this is going further off-topic but training is a shambles.
There is no national syllabus, the Fire Service College is, for whatever reason, (and that is worthy of a thread on its own), not meeting the needs of a large part of its natural customer base. Pressure on costs, above all, mean that every six months the type, place, supplier and extent of delivery is re-evaluated meaning that any medium term planning is rendered pointless. There are competing agencies from FPA, arm's length trading companies, in-house training centres and the College. There are competing standards from Engineering Council, IFE Assessor/Auditor, various regional accredited training places (accredited to what?). I recently argued that after flirting with the other suppliers for several years, (all of which takes up a huge chunk of management resources) the College actually provided the most cost-effective solution but in the micky-mouse world of fire authority finances and overblown egos, that didn't go down too well. And don't even get me started on IPDS!!

[kurnal]

Theres nothing wrong with IPDS is there Val?

[PhilB]

I know this is going further off-topic but training is a shambles.
There is no national syllabus, the Fire Service College is, for whatever reason, (and that is worthy of a thread on its own), not meeting the needs of a large part of its natural customer base. Pressure on costs, above all, mean that every six months the type, place, supplier and extent of delivery is re-evaluated meaning that any medium term planning is rendered pointless. There are competing agencies from FPA, arm's length trading companies, in-house training centres and the College. There are competing standards from Engineering Council, IFE Assessor/Auditor, various regional accredited training places (accredited to what?). I recently argued that after flirting with the other suppliers for several years, (all of which takes up a huge chunk of management resources) the College actually provided the most cost-effective solution but in the micky-mouse world of fire authority finances and overblown egos, that didn't go down too well. And don't even get me started on IPDS!!

I'm afraid I have to agree with Val on this one, particularly the comments regarding the Fire Service College.

No Kurnal, nothing wrong with IPDS it's all going swimmingly!

[jokar]

Aren't the last 2 letters diddly squat?