Agreed action plans - do they undermine the legislation?

[kurnal]

I am finding myself in a confusing situation as a result of the widespread use of "agreed action plans".

I recognise the guidance note number 1 paragraph 123 this reminds officers of the ethos of the enforcement concordat and states that "where the risk to relevant persons is not significant and the RP is willing to comply, agreed action plans may be preferable to formal enforcement notice procedures".

I had a nightmare the other night. It went like this.

As a consultant I produce fire risk assessments for my clients that I think are suitable and sufficent and above all proportionate, and will take into account character, nature, layout and management of the building and characteristics of the relevant persons, often arriving at what I think is appropriate even if at variance from the pictures in the guidance document.

The fire authority then vist to cary out an audit. During the audit the fire authority talks about the benchmark standard, shows the client the pictures in the book but makes no comment on the content or suitability of the risk assessment.

The authority then proceeds to agree additional measures with the client  and confirms this in writing to match the pictures in the book.  I ask the fire officer to comment on the suitability of the risk assessment and whether,  if the client is unwilling to agree to the action plan, an enforcement notice would be issued to which no committment is given either way. I wager they would not.

Client is left in a difficult position. He agrees to the action plan but has no intention of fulfilling it at this stage, and after the audit sacks me and refuses to pay my bill for not identifying the risks. I stand by my risk assessment but the client will not throw good money after bad and push it to enforcement as I have already let him down. From my point of view if an enforcement notice were issued we could appeal and at least have the arguments heard.

Could this happen in the real world? Can my nightmare come true?

When I woke up I decided that in future I should recommend to clients that they forget the risk assessment, look at the pictures in the book and make their building match the book.  And I should look for a job servicing extinguishers for £50k per year working alongside Nim.

[jokar]

I suppose what you are really saying is that the public look to the FRS to provide the prescriptive answer.  Unfortunately the FRS will not let go, have some FSO's who will not let go and neither believe in FRA's.  Only when someone from strong positin in a consultancy eg CS Todd challenges the FRS do FRA's work in this scenario.  Smaller businessess will never have this clout and no matter that PAS 79 is not a great FRA methodology CFOA believe in and have signed up to it so it must be right.  Those like yourself who understand and perform the function for an FRA showing and usinf proportionality may lose out to an inexperienced poorly trained FSO because he is part of a lerge orgnisation across the UK who are looked at as professional in all aspects of fire and fire safety.  Not always true of course but there you are.

[Ricardo]

I fully agree with you Kurnal, I remember we discussed this very topic recently under the thread "fire behaviour"

It has even been brought up in a Scottish Fire Services Circular no 17 as well, to clarify Scottish ministers policy in relation to the scope of enforcement issues.

"One of the issues regularly raised by dutyholders relates to the intended purpose of the benchmarks set out in each guide and interpretation by enforcing authorities" All personnel involved in the enforcement of Part 3 of the Fire(Scotland) Act 2005 and Regulations should be aware that the benchmarks in the sector specific guides are not designed to be used as prescriptive standards, this is also emphasised in the strategic enforcement guidance.

The benchmarks are provided to asisst with the assessment of the adequacy of existing fire safety measures, they will not be relevant in all cases and each risk assessment will be site specific with the dutyholder making decisons in respect of fire sfaety measures based on judgement of risk.

I continuously try and get this message across to my dear collegues, who seem to do exactly what you are saying in your post. From my own personal experience some of my own colleagues are using the benchmarks as prescription, I cant do much else apart from try and put them right, but they dont seem to listen,Their mindset is If its there as a benchmark you need to achieve that standard. I speak from personal experience only.

[kurnal]

Or maybe its the end of qualitative risk assesment techniques and the only way forward is to produce a probabalistic  risk assessment with lots of curves and squiggles for each little job?

[Davo]

Prof

In this case, I won't have what you're drinking thanks............


Seriously, the odds are its already happened but the FRA is too embarrassed to air it here

davo

[johno67]

A few points I would like to raise.

As I understand it action plans are there for use in cases where enforcement would otherwise be used, but both (or all 3 parties) can agree on what needs to done and the timeframe in which the work should be carried out.

If there is agreement then the action plan approach is acceptable. My problem with this approach is that the RP may not do the work and the enforcement action would need to be taken anyway, with the same appeal times etc.

If there is not agreement then the enforcing authority will take the action they believe to be appropriate and if the RP and/or Risk Assessor disagree then they have to stand up and object. Now I understand what kurnal is saying, that the RP may fold and sack the Risk Assessor as a result, and you have my sympathy with this but it is no different to a good Inspecting Officer having a weak boss who caves in everytime anyone with any clout objects to something the inspecting officer has requested. Believe me this happens more often than you may think.

With regard to IO's being rigid and insisting that the Guides are followed to the letter, I agree that there are some that are still reasonably rigid but I've not met one who doesn't have some flexibility. And if the RP or Risk Assessor does object then it will usually be passed onto the IO's line manager and possibly their line manager, so these things aren't usually looked at by only one person. If the IO is being pedantic or too inflexible it will usually be pointed out fairly quickly by someone in the office (the fire safety office can be a pretty merciless place if you are on the wrong end of a savaging by your colleagues).

With regard to the Guides being the benchmark, well yes they are. They set the standard at which the RP should be aiming. If he can reach a very similar standard by the use of another method then I think the majority if not all of IO's would be happy with that. We see it all the time, lack of fire resisting seperation being addressed by automatic smoke detection etc. The point is that they still need to reach that standard. Yes there are different levels of risk but this is normally taken into account with such things as travel distances etc.

Other than that it is down to what an individual is happy with. Now I could put 10 IO's and 10 Risk Assessors together and show them a premises that doesn't fall in line with the guides and I should imagine every one would have a slightly different opinion on the level of risk and what would be acceptable, because it is ultimately down to opinion.

The one thing I have come across that gives me cause for concern is the cherry picking approach. For example: for a care home we use a HTM so we can have longer travel distances, we will dispense with the large landings because we don't intend to carry out matress evacuations, we will use ADB so we can have 30 minutes FR instead of 60, we will use BS5839 Part 6 because it more or less gives the same standard as a Part 1 system etc. etc..

I think there are always 3 sides (at least) to the debate.

[Ricardo]

but it is no different to a good Inspecting Officer having a weak boss who caves in everytime anyone with any clout objects to something the inspecting officer has requested. Believe me this happens more often than you may think.

Hi Johnjo, as Meatloaf once said, you took the words right out of my mouth.

[lambie]

Kurnel
I share your dream and from the point of view as a risk assessor I get annoyed if the assessment is put to one side in favour of a book of drawings. Hope springs eternal when I read that others experience similar Audits. The most galling thing is when to reach a proper assessment the guidance is used by assessors to gauge a property's safety or otherwise. Then to have reasoned judgement discounted to rigidly follow " a book of rules "
is so frustrating. However there are IO's I have found who use common sense and a real knowledge to work with assessors to achieve reasoned outcomes that don't leave you feeling the Audit was for the benefit of the auditor. I would guess that some IO's have real frustrations too when they do not recieve appropriate support and then they feel they are making decisions in isolation. It does not take rocket science to work that one out.

[messy]

From personal experience only, there is a huge and deepening hole in the training of IOs - and in particular, ongoing training. This is bound to effect the efficiency of IOs out there on the ground and sometimes dealing with other professional safety folk

My Brigade have cancelled virtually all FS training. Why? I have no idea, but I have had all of my 7 requests in the last year turned down. (although I have been offered  another equal ops 4 day course!!!)

Out of the last two meetings of all Brigade IOs, one was cancelled, the other comprised of a collective monologue from 3 senior officers of: targets, changes to priorities, and other promises that I have heard before. (such as the promise of a IFE eng tech qualification for all). ie all pi55 and wind and no substance.

Along with discussions with frends & peers (who work in and out of the fire service)- this (and other) forums act as my main training aid, especially when it comes to giving a balanced, proportionate response and to not hold on too tightly to the guides. I have colleagues who are super keen and become as frustrated as me with the lack of FS courses. We search the internet, pick the brains of others and generally train ourselves.

In my team, nobody had heard of the new Lacors guide, or PAS 79 until I mentioned them (Info which I had learned from here). It's a disgrace.

The newer IOs spend more time filling in competence folders that they do reading FS reference material and don't even get me started on how long we've all wasted filling in CPD forms.

The guides are seen as benchmarks in a similar way as ADB . If you can't match them, or better them, you're probably in for a notice. Some see debate as a test of their authority and will not back down. I had enough. More pills Matron.............................

Signed

Disillusioned of London

[Nearlybaldandgrey]

I'll stick my head above the parapet on this one ........

An agreed action plan does not, in my opinion undermine the legislation at all, it is a recognised means of enforcement.

Here is my reasoning:-

I carry out an audit where there are a number of deficiencies.  I could serve a deficiency notice and possibly not even return to make sure that the requirements have been met as I trust the responsible person to take ownership and get the job done or I can go for an enforcement notice. As part of my judgement, I apply the responsible person factors / enforcement management model to determine my course of action.

Throughout my hyperthetical audit, the responsible person has been co-operative, asked for advice having admitted he/she isn't really sure of what is required, taken notes and is really willing to get this right BUT there is a bit of history on previous inspections and work has not been carried out.

Do I a) Serve an Enforcement Notice or b) go for an Action Plan?

Taking account of the responsible persons willingness to co-operate but mindful of the previous history, I would go with an action plan. I'm not just walking away and leaving them to meet requirements, but agreeing reasonable and achievable timescales knowing that the responsible person signs to agree that they will complete all requirements within those timescales and inspections are carried out at each agreed date to monitor progress.

I would of course explain that if the reasponsible person fails to meet one of the agreed deadlines, then an Enforcement Notice will be served.

Some officers will use an action plan rather than an enforcement notice because it's easier to produce, but as a tool to achieve the objectives, it's extremely useful.
If it undermines the legislation, then why is it recognised within the Enforcers Guidance No 1?

[Dinnertime Dave]

Along with discussions with frends & peers (who work in and out of the fire service)- this (and other) forums act as my main training aid, especially when it comes to giving a balanced, proportionate response and to not hold on too tightly to the guides. I have colleagues who are super keen and become as frustrated as me with the lack of FS courses. We search the internet, pick the brains of others and generally train ourselves.

Different brigade, same training programme

[kurnal]

Baldyman
You are not sticking your head abover the parapet- I cant pick holes in anything you have written. Thats how the system is supposed to work.

On the other hand I am finding that in some cases the Responsible Person (RP) employs a competent person to carry out the risk assessment on their behalf.
The risk assessment identifies variations from the benchmark standards and identifies additional alternative  risk control measures that in the opinion of the assessor provide an acceptable standard of fire safety.

The auditor reads the risk assessment very briefly and points out the variations from the benchmark standard. He does not comment on the alternative risk control measures in place. The RP does not have confidence to argue so accepts the fire officers opinion against the opinion of the risk assessor. The auditor shows the RP the pictures in the guidance book and writes out a list of the measures to be taken to make the premises comply with the pictures in the book. This becomes the agreed action plan. No mention of the risk assessment or the auditors view on whether it is adequate or not.
The RP feels let down by the consultant and takes the view that the auditor must know what he is talking about- he has the legal powers and the uniform-  and the consultant does not.  

The consultant hears of the problem when the RP refuses to pay for the risk assessment. The consultant points out that the agreed action plan makes no reference to the findings of the risk assessment and recommends the RP not to agree to it, to wait to see if an enforcement notice is issued and then to appeal. The RP now has a jaded view of the risk assessor and decides to go along with the auditor for a quiet life.

The consultant has nowhere to go. He feels that the  risk assessment is perfectly suitable and sufficient and that the auditor, instead of specifying the schedule of works to be undertaken, should have asked for a review of the risk assessment detailing the general areas of concern. If it worked like that I would not see a problem with the system. But having seen two agreed action plans from two different brigades, I believe they undermine the philosophy of the legislation.

[Steven N]

Kurnal all I can say as an I/O is that I believe the I/O in the case your talking about is very very wrong! To see a R/A with risk assessed deviations from the guidance would be a rare pleasure believe me!!

[johno67]

Could it be that part of the problem in this case is that the RP still has no ownership of the fire safety within his premises. The Risk Assessor may very well carry out an excellent FRA which does depart from the Guides but unless the RP has an understanding of what is required and why that particular approach was taken he will not be in a position to defend it.

I think this may ultimately come down to communication between the Risk Assessor and the RP at the Risk Assessment stage of the process. If the RP understands the ethos behind that particular assessment they should be able to argue the case for a particular solution more confidently and then present a united front with the Risk Assessor (i.e. be singing from the same hymn sheet). Then challenging the IO will be a much more productive experience.

e.g.

The problem in this particular area is getting relevant persons out of the building before the conditions become untenable due to fire;
The standard solution presented by the Guides is to have 30 mins FR construction;
We can't achieve that so as an alternative we are going to provide smoke detection to give relevant persons early warning of fire etc.

I think this approach would give the RP full ownership of the FRA, and not just putting it in the bottom drawer of his desk until the next Fire Safety Inspection.

[kurnal]

The problem in this particular area is getting relevant persons out of the building before the conditions become untenable due to fire;
The standard solution presented by the Guides is to have 30 mins FR construction;
We can't achieve that so as an alternative we are going to provide smoke detection to give relevant persons early warning of fire etc.

Yes but the guide already sets a benchmark of full detection in all rooms leading onto the exit route- for example although it states in the table that an LD3 system is appropriate for small 2 storey buildings, the footnote modifies the definition of LD3 as defined in BS5839 part 6 and adds the statement that this includes detection in all rooms leading onto escape routes- and this is the benchmark that is being enforced in addition to the 30minutes FR.