Office based in a wing of a historic house

[nearlythere]

Colin
Please help me to understand the mystery of the RP.
I have always tried to understand my subject and "Because I say so"  or "Because the ODPM more or less admitted " does not help me to understand the underlying logic. And I know I am not alone and that many of those who try to look wise and all knowing but stay silent dont understand either.  I believe there is huge benefit in ensuring that people know the reason for a rule rather than seeking blind obedience with it.
 
Are paragraphs 36,37,and 38 in Guidance Note No 1 wrong? They appear to clarify article 3 but as they use different language they change the literal meaning significantly. If the Guidance note is wrong in this is it also wrong where it "clarifies" article 29?

The only possible explanation that I can see would be that the term Responsible Person has been coined in an attempt to draw a demarcation between National and European influences to the fire Safety Order. If the term Responsible Person is only to be used in those elemnts of the Order intended to implement the European Workplace Directive - ie applying only to Employers- why cant they say so? It still leaves the issue over aticle 29 though. 


This situation must arise in many multi occupied premises - for example parts of privately owned stately homes open to the Public, former Mills subdivided into business units owned by a private landlord, places like antiques centres where the owner of the building sells space to tenants. I cannot see what is wrong- or any disadvantage-  with the concept of the owner being a "responsible person"  rather than a "person having control". 

Kurnal
Why the big issue with the RP? Does it really matter to the Risk Assessor who it is? If a RP needs identifing by the F&R Service it will only be to smack, serve notice on or prosecute. It, the F&RS, will determine itself who it believes needs whacked regardless of who the Assessor thinks it is.

[kurnal]

Hi Nearlythere
I just want to get it right. And if it matters I want to understand why it matters.
In my risk assessment I identify the RP  and Persons having Control, temporary responsible persons etc. Any  proposed action plan I present to the client allocates tasks to individuals depending on their role. If I get it wrong I may allocate responsibility to the wrong person. You are right- if it comes to taking enforcement action its the  fire authority's problem. I know they find it very difficult and confusing too. If they get it wrong it could be expensive if costs are awarded on appeal. From my gamekeeper turned poacher point of view I could help advise them over the validity of a notice !!!

[Midland Retty]

Prof

As I see it Colin is right. As ludicrous as the situation maybe the RP is infact the employer (school) by virtue of Article 3(1)

The landlord is a PHC by virtue of article 5(4)  in terms of maintenance / repairs etc

If you follow the letter of the the law exactly you would indeed serve any notices on the employer (school).

If, then, the notice is not complied with (because of the stubborn landlord not forking out cash to address failings) and it all goes to court, the whole thing would turn into a massive mitigation / litigation excercise.

The school would need to prove that it was powerless to comply with the notice because of the landlord's stubborness. This is when attention would be turned to the landlord and the level of control he excercised.

But to complicate matters further the landlords flat is a private dwelling, and not subject to the RR(FS)O. The landlord is however a relevant person and therefore the RP has a duty to protect him.

However as we know the landlord is the PHC and will not spend money merely to just protect himself!

It's catch 22 ! I think a test case would be needed to determine how the courts would view it given the way the order is written.

I'd like to think that common sense would prevail and that the courts would view the landlord as the true RP. However the way the order is currently the Landlord is not the RP, and the law is an ass!

My opinion is that because of these complexities the fire authority wouldn't issue any notices. Afteral if the landlord wants to put himself at risk then thats his look out ! Is it really in the public interest to take it further?

[Tom Sutton]

Prof

As I see it Colin is right. As ludicrous as the situation maybe the RP is infact the employer (school) by virtue of Article 3(1)  ...................................

   ...............................   I'd like to think that common sense would prevail and that the courts would view the landlord as the true RP. However the way the order is currently the Landlord is not the RP, and the law is an ass!

My opinion is that because of these complexities the fire authority wouldn't issue any notices. Afteral if the landlord wants to put himself at risk then thats his look out ! Is it really in the public interest to take it further?

You hit he nail on the head MR but how easily this confusion could have bee avoided if the legislators had not tried to use titles and stuck to Person Having Control to any extent like the Scots Fire (Scotland) Act 2005. I argued sometime ago about the term Responsible Person as opposed to Duty Holder and could not appreciate the difference but I certainly do now.

[Midland Retty]

Quite agree Tom -The order is a mess in this respect and causes needless confusion!

Reading through the order again I have changed my mind slightly as to what action the enforcing authority might take in this situation.

Whilst I still believe the landlord is better left alone to effectively "put himself at risk" the following action could be taken in an attempt to resolve the issue:-

Firstly  (in so far as the order is written) the RP is definately the employer (school) however, you could in theory serve an enforcement notice on the landlord as a PHC by virtue of article 30(1).

Article 30(1) relates to the serving of enforcement notices on "persons" referred to in article 5(3) ( the "persons" being our elderly landlord in this example).

If the PHC fails to comply with an enforcement notice he then faces prosecution. Im not totally sure however if such action would also, by default, rope the poor RP (school) into hot water too!

This scenario is quite a teaser, but it's good to debate and quite important if we are to understand the complexities someties associated with identifying the RP, and any subsequent action that has to be taken.

[kurnal]

Do you reckon an alterations notice could be served on a landlord of a multi occupied business innovation centre, ie the landlord is the owner of the building but is not an employer?

In respect of the responsible person I have read and re-read articles 3,5, 29 and guidance note number 1 and am now absolutely convinced that the moon is made of blue cheese.

[Tom Sutton]

Do you reckon an alterations notice could be served on a landlord of a multi occupied business innovation centre, ie the landlord is the owner of the building but is not an employer?

In respect of the responsible person I have read and re-read articles 3,5, 29 and guidance note number 1 and am now absolutely convinced that the moon is made of blue cheese.

I would think the landlord could be a PHC (Article 5(3)) it would depend on how much control he exercises and in what areas, it would most probably depend on the tenancy agreement. If he is a PHC then an alteration notice could be served as MR suggested.

I certainly do not trust the guidance note number 1 anymore but I do believe the moon is made of Edam not blue cheese.

[Midland Retty]

Do you reckon an alterations notice could be served on a landlord of a multi occupied business innovation centre, ie the landlord is the owner of the building but is not an employer?

In respect of the responsible person I have read and re-read articles 3,5, 29 and guidance note number 1 and am now absolutely convinced that the moon is made of blue cheese.

Actually chaps the moon is made of cheddar (Benz told me so)

In respect of issuing an alterations notice - that's a toughie!

Article 29 infers that alterations notices can only be served on the RP and not the array of people mentioned in article 5(3) as you can with an enforcement notice

This may lead to problems in a multi occupied building - particularly where certain measures need to be enforced upon the landlord. Thats said I think this scenario would rarely occur for several reasons, but I guess it could happen in some circumstances.

So it depends in what context you feel an alterations notice might be required Prof.
 
In my opinion the Fire Authority may use means other than an alterations notice to achieve the desired result and thus avoid the complexities associated with your scenario.

If the enforcing authority thought that a change in the use of the building  for instance would put people at risk, it could I suppose issue a prohibition / restriction notice.

Just like an enforcement notice, the prohibition / restriction notice can be served on the array of people specified in article 5(3) (which of course includes our friendly landlord).

The notice could list what the building can or can not be used for.

For example the notice might read:

"The first floor may not be used for the following activities / purposes:-

a) sleeping accommodation
b) public enterainment
c) storage for flammable liquids
d) for industrial use including manufacture or repair of products

Or perhaps more simply the notice may just read

"The first floor may only be used for storage, and not for any other purpose or activity"
 
Its not ideal, but is perhaps the best option to deal with that scenario. After a Prohibition notice has been issued a steps notice has to be forwarded to the landlord or RP detailing what they need to do in order to lift the restriction or prohibition. 

[PhilB]

As much as it hurts to do so I must agree with old Toddddy on this debate. If there is an employer he must be the responsible person for his workplace. Furthermore as an employer he has an absolute duty to ensure that the Order is complied with unlike other RPs who are not employers.

That is why Nearly there, it is important to establish who the RP person is as the duty imposed on them varies depending on whether they are or are not employers.

As far as an alterations notice goes it could only be served on the RP.

Now if the RP does everything reasonably practicable to comply with the alterations notice but is prevented from doing so due to the act or default of another person he would have a defence of due diligence and one would hope that an enforcing authority would identify that fact and proceed against the owner using article 32(10).

[nearlythere]

As much as it hurts to do so I must agree with old Toddddy on this debate. If there is an employer he must be the responsible person for his workplace. Furthermore as an employer he has an absolute duty to ensure that the Order is complied with unlike other RPs who are not employers.

That is why Nearly there, it is important to establish who the RP person is as the duty imposed on them varies depending on whether they are or are not employers.

As far as an alterations notice goes it could only be served on the RP.

Now if the RP does everything reasonably practicable to comply with the alterations notice but is prevented from doing so due to the act or default of another person he would have a defence of due diligence and one would hope that an enforcing authority would identify that fact and proceed against the owner using article 32(10).

Why try to interpret the legislation? If you feel that you need to advise a client as to who is responsible then they should be referred to the appropriate legislation and if they find that difficult to understand also, they can take advice from a lawyer. It is nice to have answers to everything but incorrect legal advice is worse than non.
Maybe the English legislation is too vague on the mattter. The N.Irish seem to have made it clearer.

[PhilB]

Where is the incorrect legal advice that you refer to???

As fire safety professionals it is surely our job to interpret the legislation.

[Tom Sutton]

As much as it hurts to do so I must agree with old Toddddy on this debate. If there is an employer he must be the responsible person for his workplace. Furthermore as an employer he has an absolute duty to ensure that the Order is complied with unlike other RPs who are not employers.

I too agree with Mr Todd and he used the term “Persons Having Control” (PHC) and not “other RP`s who are not employers”. As I see it there can only be one RP in a workplace as determined by Article 3(a) and article 30, 31, 32 refer to the others as “any other person mentioned in article 5(3)”. I am not trying to nit pick but I think it is important to make this point clear as I believe this is where a lot of the confusion lies.

Why does an employer have an absolute duty to ensure that the Order is complied as they are all subject to article 30, 31, 32 or is this to do with H&S?

Although I cannot envisage it, what would happen if the workplace is not to any extent under the control of the employer?

[kurnal]

Phil Welcome  back old chap. I have seen you dozing in the corner a few times since last October and nearly tripped over you a few times on my way to the bar.

Is it not also the duty of HM Govt to produce guidance that is correct and fit for purpose- ie it guides rather than misinforms?
What do you think of the explanations of articles 3, 5 and 29 as presented in Guidance Note No 1?

To my eyes the "guidance" appears to contradict the articles?

I was relying on the Guidance interpretation until Mr Todd felt my collar. And now we have you and he agreeing with each other. Whatever next? At this rate I might understand one of Benz's postings, or maybe that would be a step too far.

[kurnal]

TW there can be many RPs who are employers in a workplace.
Take an old mill and subdivide it into business units, with common access and toilets etc.
Definition of a workplace includes access and egress routes therefore the common areas are parts of each individual employers' workplace.

Clearly more than one RP. But the Old Geezer who now owns the old mill and lets out the units (Private landlord not an employer) is only a "person having control". So the fire authority cannot serve an alterations notice on him to ensure he consults before leasing a unit to a fireworks manufacturer.  And none of the RPs can control who he leases to. 

[PhilB]

Why does an employer have an absolute duty to ensure that the Order is complied as they are all subject to article 30, 31, 32 or is this to do with H&S?

Although I cannot envisage it, what would happen if the workplace is not to any extent under the control of the employer?

The wording of article 5 makes the duty to comply absolute if the RP is an employer.
 
"5. —(1) Where the premises are a workplace, the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises.

    (2) Where the premises are not a workplace, the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises, so far as the requirements relate to matters within his control."

This is so that we continue to comply with the European framework directive. Do you remember that the  FP(Workplace) Regs 97 had to be amended in 99 because the 97 regs failed to place the absolute duty on the employer?

If the workplace is not to any extent under the control of the employer, then the employer is not the RP, but as you point out that situation is unlikely to arise.