Responsibility for Fire Risk Assessment

[johno67]

Many apologies if this has been a previous topic, but a search for 'Fire Risk Assessment' brings up nearly every thread.

Your thoughts on the following would be greatly appreciated:

Fire Safety Order, Article 32
(10) Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

FSO Guidance Note 1
Article 9 Risk Assessment, item 61
For the avoidance of doubt, it is accepted that other persons may record the prescribed information at the request of, and on behalf of, the responsible person. If a responsible person relies on a risk assessment carried out on their behalf by a person who is competent to carry out such a risk assessment, it may be a strong mitigating factor if the responsible person is prosecuted for an offence under article 32, although it will not relieve the reponsible person from criminal liability. For the avoidance of doubt, enforcement action is taken against the responsible person, not the contractor. A contractor may well be liable to the responsible person in contract or tort for a negligently carried out risk assessment, but that is outside of the scope of this guidance.


Does the guidance contradict the legislation? or
Would it be the case that the responsible person would not be prosecuted for the risk assessment not being suitable and sufficient but for the other breaches of Articles 8-22 (if serious enough)? or
Would the risk assessor be prosecuted under 32(10) but any associated enforcement action would be taken against the responsible person?

I'm not sure how to read this one, any ideas please?

[nearlythere]

Many apologies if this has been a previous topic, but a search for 'Fire Risk Assessment' brings up nearly every thread.

Your thoughts on the following would be greatly appreciated:

Fire Safety Order, Article 32
(10) Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

FSO Guidance Note 1
Article 9 Risk Assessment, item 61
For the avoidance of doubt, it is accepted that other persons may record the prescribed information at the request of, and on behalf of, the responsible person. If a responsible person relies on a risk assessment carried out on their behalf by a person who is competent to carry out such a risk assessment, it may be a strong mitigating factor if the responsible person is prosecuted for an offence under article 32, although it will not relieve the reponsible person from criminal liability. For the avoidance of doubt, enforcement action is taken against the responsible person, not the contractor. A contractor may well be liable to the responsible person in contract or tort for a negligently carried out risk assessment, but that is outside of the scope of this guidance.


Does the guidance contradict the legislation? or
Would it be the case that the responsible person would not be prosecuted for the risk assessment not being suitable and sufficient but for the other breaches of Articles 8-22 (if serious enough)? or
Would the risk assessor be prosecuted under 32(10) but any associated enforcement action would be taken against the responsible person?

I'm not sure how to read this one, any ideas please?

I think they are two different issues John067.

[johno67]

I think they are two different issues John067.

How so?

In practical terms:
If I employ somebody (after checking their credectials) to carry out my fire risk assessment on my behalf, they present me with the prescribed information saying everything is fine and I need do no more. The following day the premises burns down and someone is seriously injured as a result (taking into account that I have changed nothing in the interim period), who would the enforcing authority be looking to prosecute (assuming they considered it necessary) taking the information in my previous post into account?

[PhilB]

In practical terms:

If I employ somebody (after checking their credectials) to carry out my fire risk assessment on my behalf, they present me with the prescribed information saying everything is fine and I need do no more. The following day the premises burns down and someone is seriously injured as a result (taking into account that I have changed nothing in the interim period), who would the enforcing authority be looking to prosecute (assuming they considered it necessary) taking the information in my previous post into account?

You raise a good point John, however for you as a responsible person to have a defence you would have to demonstrate that you did everything reasonably practicable, and had exercised all due diligence to ensure that the person that you had appointed to carry out the assessment on your behalf was competent to do so.

In simple terms, appoint Joe Bloggs because he drinks in the local pub and is cheap may not be sufficient evidence of due diligence, but appoint a reputable consultant, with a recognised qualification who can prove that his work has been deemed to withstand scrutiny by an enforcing authority........ is another matter.

Personally I look forward to the day that an incompetent assessor is prosecuted using 32(10). There are far too many people who were maybe extinguisher salesmen, firefighters, or milkmen last week and now without any training or relevant knowlege think they are competent to assess premises for fire safety when clearly they are not.

[nearlythere]

I think they are two different issues John067.

How so?

In practical terms:
If I employ somebody (after checking their credectials) to carry out my fire risk assessment on my behalf, they present me with the prescribed information saying everything is fine and I need do no more. The following day the premises burns down and someone is seriously injured as a result (taking into account that I have changed nothing in the interim period), who would the enforcing authority be looking to prosecute (assuming they considered it necessary) taking the information in my previous post into account?

Because the RP is responsible for carrying out the the Risk Assessment. The person the RP employs to carry out the RA is not doing it on RPs behalf. He/she is assisting the RP.
The FRA belongs to the RP not the assistant.
I think the assistant would have no liability under the FSO. That may not preclude the RP from some form of civil action against the assistant but then the RP has to ensure that the FRA is suitable and sufficient.

[johno67]

Because the RP is responsible for carrying out the the Risk Assessment. The person the RP employs to carry out the RA is not doing it on RPs behalf. He/she is assisting the RP.

Guidance note 1 is very clear on this 'For the avoidance of doubt, it is accepted that other persons may record the prescribed information at the request of, and on behalf of, the responsible person.' They are doing it on behalf of the RP.

The FRA belongs to the RP not the assistant.

I agree and Guidance note 1 seems clear on this too 'If a responsible person relies on a risk assessment carried out on their behalf by a person who is competent to carry out such a risk assessment, it may be a strong mitigating factor if the responsible person is prosecuted for an offence under article 32, although it will not relieve the reponsible person from criminal liability.'

I think the assistant would have no liability under the FSO.

Article 32(10) seems to have this covered 'Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.' I take this to include a risk assessment that is not suitable and sufficient which is as relevant as a fire alarm engineer who does not maintain the fire alarm system to a suitable standard.

That may not preclude the RP from some form of civil action against the assistant but then the RP has to ensure that the FRA is suitable and sufficient.

And I agree with your interpretation here, however this is where I start to get a bit confused as Guidance note 1 seems to contradict itself and the FSO as it says 'For the avoidance of doubt, enforcement action is taken against the responsible person, not the contractor. A contractor may well be liable to the responsible person in contract or tort for a negligently carried out risk assessment, but that is outside of the scope of this guidance.'

How does the responsible person ensure that the risk assessment is suitable and sufficient. If I have hired a person who I consider to be competent, would I then be expected to get a third party in to make sure it is suitable and sufficient, or do I wait unitil the enforcing authority check it, which could be in many years time, if ever!

I may be looking at it wrongly or missing another part that is vital to how it reads, but it doesn't make much sense to me, help!!

[jokar]

The law, the RR(FS)O makes it quite clear in Article 9.  The RP MUST, undertake a suitable and sufficient assessement of the risks etc.  Therefore it is the RP responsibility as MUST is an absolute duty in H&S Safety terms.  The RP can use a competent person to assist as detailed in Article 18.

The Guidance is exactly that guidance and does not have to be followed whereas you have to follow the law.

Most if not all FRS will enforce against the RP as that is simple.  This allows the RP to bring in a 3rd person under due diligence which is what Article 33 states.  Last point, the onus of responsibility in Article 34 is on the RP and no one else.

[Steven N]

I'm afraid its a case of caveat emptor. If a RP buys a risk assessment then it is there responsibility to ensure the person carrying it out is competent. If they go for the cheapest or the company perhaps that services there extinguishers or emergency lighting or provide signage or an ex operational firefighter(with respect to the decent companies that do this) then they may not get the best risk assessment. You pays your money & takes your chance but in the final reckoning the RP is still responsible. All else will in my opionion, just be mitigation in court!

[johno67]

The law, the RR(FS)O makes it quite clear in Article 9.  The RP MUST, undertake a suitable and sufficient assessement of the risks etc.  Therefore it is the RP responsibility as MUST is an absolute duty in H&S Safety terms.  The RP can use a competent person to assist as detailed in Article 18.

The Guidance is exactly that guidance and does not have to be followed whereas you have to follow the law.

Most if not all FRS will enforce against the RP as that is simple.  This allows the RP to bring in a 3rd person under due diligence which is what Article 33 states.  Last point, the onus of responsibility in Article 34 is on the RP and no one else.

I accept that they must carry out an assessment.

However, the Guidance Note is issued by the Secretary of State on behalf of the Government to 'assist enforcing authorities in their enforcement resposiblities under the Regulatory Reform (Fire Safety) Order 2005.' It also goes on to say 'All enforcing authorities will wish to note article 26(2) of the Order, which requires enforcing authorities to have regard to guidance given by the Secretary of State about enforcement of the Order.'

Are you saying that you can choose to ignore it if you wish? The guidance is issued partly to 'help increase consistency'.

I think the reason that such detailed guidance on Article 9 - Risk Assessment has been issued is because it isn't clear. If you were to read it the way you seem to be, only the responsible person can carry out the assessment.

Article 18 Safety Assistance talks about 'undertaking the preventive and protective measures' which surely come about following the risk assessment?

I also agree that enforcing authorities will target the responsible person, but that doesn't mean it is correct.

If I get someone qualified in to service my gas boiler and I get overcome by carbon monoxide fumes on the same night, would it be my fault? Obviously not, so why should it be that if I get someone qualified in to carry out my risk assessment and something happens as a result of them not carrying it out properly why should it be me that's held to account? And yes, I know that Europe dicitates that it is always employer that is to be blamed, but surely the assessor must take the bulk of the responsibility? So I will be able to sue him for breach of contract but the enforcing authority won't be able to prosecute him for the fire deaths that have occurred? Surely not!!

[jokar]

It is the RP responsibility to undertake a suitable and sufficient risk assessment.  If that person considers that they do not have the skill base to deal with that they can appoint a competent person to assist them.  The RP retains the responsibilty and is accountable in law.  The risk assessment is just that, it is an assessment of risk.  The outcomes will be put into place or not by the RP not the competent person and therfore the competent person is undertaking work on behalf of someone excatly the same as any employee or contractor.  If the recommendations, comments or advice they give is not dealt with by the RP then it is not the competent person at fault.  However, if the competent p[erson does not do the job properly and many do not then the RP should deal with it subject to the terms of the contract between them.  Like it or not the Government have decided that the responsibility rests with the RP aqnd they are accountable for what goes on.

To take the discussion further, if an employee of a FRS service decides on the day that they audit a premises, that the FRA is suitable and sufficient and the next day a fire occurs then it is still the RP who has to account for the circumstances.

AS regards Article 18 the Preventive and protective measures are indeed the outcomes of an FRA but the RP does not have to undertake them as ALARP is the indicator of risk and it is down to the RP to make decisions on that principle.

[johno67]

Thanks for the replies Jokar,

I would ask you to comment on a couple on things though, in your words:

and therfore the competent person is undertaking work on behalf of someone excatly the same as any employee or contractor.

If this is the case, why would they not come under Article 32(10):
Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

I see it as the employer will be prosecuted because he can't get out of it, although he can show mitigating circumstances (I employed someone who had excellent credentials) but I also think that the assessor could/should be prosecuted under this.

Secondly, I have been to a lot of the FSO seminars and read most of the copy that has been printed regarding the FSO and the only real information on what the Government's intention was and is, appears to come from the 2 Guidance Notes that have been issued. Have I missed something?

And you are quite right in that the fire inspector will have no responsibility under the FSO as he is really there to audit the responsibles persons fire safety managment procedures. Although if something did happen, I'm sure the coroner would have something fairly scathing to say about the Fire & Rescue Authority, and I would guarentee that they would be hauled into the CFO's office at 0900 the following morning!

[johno67]

Kurnal,

please give me some of your calm considered guidance on this matter!

[CivvyFSO]

For another take on it:

If the Fire Authority can see that the due diligence defence is viable, (As it would quite clearly be in your case) AND we are not supposed to be taking the risk assessors to court, then there should not be any prosecution in the first place as it would quite clearly be a visible waste of time. The guidance note does seem to create a large hole whereby there can be an offence and nobody can be held accountable, when the risk assessor would quite clearly be to blame. (In my opinion)

[johno67]

For another take on it:

If the Fire Authority can see that the due diligence defence is viable, (As it would quite clearly be in your case) AND we are not supposed to be taking the risk assessors to court, then there should not be any prosecution in the first place as it would quite clearly be a visible waste of time. The guidance note does seem to create a large hole whereby there can be an offence and nobody can be held accountable, when the risk assessor would quite clearly be to blame. (In my opinion)

That's what I take it to be. Reading Guidance Note 1 I'm wondering if they are differentiating between Enforcement (i.e. Part 3 of the FSO - Enforcement/Prohibition/Alterations Notices), and Offences (Part 4). Could it be that the assessor can be prosecuted under 32(10) but the subsequent Enforcement Action will be taken against the responsible person? That would make more sense of the Note, possibly?

[kurnal]

Kurnal,

please give me some of your calm considered guidance on this matter!

Well thanks for the confidence Johno but I think there is no answer till we get some case Law.

I like many was  was surprised by the Guidance Note issued by the Secretary of State. I still think the interpretation given may not be the full picture.

I still  believe that I could be prosecuted If I am negligent or neglectful in giving advice to my customers and if I foul up expect to be standing alongside them in the dock of the criminal court. I liken article 32 to section 36 of the Health and Safety at Work act. The wording is  pretty well identical.

36. (1) Where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.

Take a look at the woodworking workshop example in the following link to the HSE woodnig news - near the bottom is a report of a case involving a consultant who was  prosecuted.

http://www.hse.gov.uk/woodworking/woodnig/woodn20.pdf


Personally I think this proves that the Sec of State's guidance is incomplete. No doubt that there may be a breach of contract law if I foul up but a criminal law always takes precedence  over Civil Law.