Prescription and enforcement

[CivvyFSO]

No, this is not about Wiz and Matron...... I thought another thread was off-topic a bit and warranted discussion on its own.

If a poor building regs application does not follow ADB do Building Control (Or the AI) sit and work out an engineered or risk assessed solution for the client? Or do they simply; refer the client/architect to the approved documents or expect the client to come up with the risk assessed solution and/or engineered solution? The floor sweeper could refer anyone to ADB while the shelf stacker looks at part L compliance. (Not that floor sweepers are less worthy than anybody else)

In an enforcement notice all we should be saying is that Articles x,y & z have not been complied with, and to comply with the enforcement notice you should comply with articles x,y & z. Any further details, i.e. a solution, should not form part of the notice and it should be stated that this is only advice. I do realise that some FRS's are not doing it this way, and they prescribe specific solutions as part of the notice which I do think is a bit wrong.

IMO, using the DCLG guidance as a benchmark to give the RP a suitable solution as advice is no more wrong than Building Control using ADB as a benchmark.

Opinions please.

[Midland Retty]

Civvy

The Enforcement Notices issued by my Brigade offer a "best practice solution" (in line with DCLG guidance) to achieve compliance.

The notice is pretty clear that the RP is still free at that stage to put forward alternative solutions if they so wish.

To take your point Civvy yes maybe you could issue an enforcement notice without any "solutions" on it, then follow it up with a seperate letter detailing ways the RP could comply with the notice. It just seems  a little unecessary and long winded however.

I dont think simply saying " Failed to comply with article 14(2)(b)"  Remedy: "Comply with article 14(2)(b)" does  anyone any favours - least of all the RP. There must be a best practice solution accompanying the notice in some way, shape or  form.

To be prescriptive however would be totally wrong.

Don't forget an E/N can be  used where agreement between the FRA and RP can't be reached on a preffered solution.

It gives the Fire Authority the facility to "call time" on any unresolved disagreements and move things forward.

If there wasn't that facility an RP could deliberately submit solution after solution just to delay the enforcement process. So at some point yes unfortunately a fire authority does have to call "time" on disagreements but even then the RP can call for a determination or appeal. So is that prescriptive?

The fact remains that businesses wanted less prescription, and I'm all for that. But RPs must manage their fire precautions now. Unfortunately I think a small minority want to have their cake and eat it when it comes to this.

The Fire Authority isn't there to do the risk assessment for RP's. The Fire Authority should offer a best practice solution for failings found but not multiple solutions for each failing. Conversley The RP is free to choose a multiple way to comply.

And because of that I dont see why quoting DCLG guidance would be wrong.

[nearlythere]

Civvy

The Enforcement Notices issued by my Brigade offer a "best practice solution" (in line with DCLG guidance) to achieve compliance.

The notice is pretty clear that the RP is still free at that stage to put forward alternative solutions if they so wish.

To take your point Civvy yes maybe you could issue an enforcement notice without any "solutions" on it, then follow it up with a seperate letter detailing ways the RP could comply with the notice. It just seems  a little unecessary and long winded however.

I dont think simply saying " Failed to comply with article 14(2)(b)"  Remedy: "Comply with article 14(2)(b)" does  anyone any favours - least of all the RP. There must be a best practice solution accompanying the notice in some way, shape or  form.

To be prescriptive however would be totally wrong.

Don't forget an E/N can be  used where agreement between the FRA and RP can't be reached on a preffered solution.

It gives the Fire Authority the facility to "call time" on any unresolved disagreements and move things forward.

If there wasn't that facility an RP could deliberately submit solution after solution just to delay the enforcement process. So at some point yes unfortunately a fire authority does have to call "time" on disagreements but even then the RP can call for a determination or appeal. So is that prescriptive?

The fact remains that businesses wanted less prescription, and I'm all for that. But RPs must manage their fire precautions now. Unfortunately I think a small minority want to have their cake and eat it when it comes to this.

The Fire Authority isn't there to do the risk assessment for RP's. The Fire Authority should offer a best practice solution for failings found but not multiple solutions for each failing. Conversley The RP is free to choose a multiple way to comply.

And because of that I dont see why quoting DCLG guidance would be wrong.

When you offer a Best Practice Solution how is it formatted? Is it what is contained in the guide?

[PhilB]

If enforcement notices give directions on how to comply...and remember that they do not have to, but may do.....the directions then become part of the notice.

Any directions given must be clear and not confuse the recipient. So notices stating provide adequate means of escape or comply with article x are most likely to be considered confusing and would probably make the notice invalid. There is case law on this BT Fleet v McKenna.

"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."

[Tom Sutton]

I was under the impression that most FRS have agreed to comply with the Enforcement Concordat which can be found for England and Wales at http://www.berr.gov.uk/files/file10150.pdf would this not affect how any enforcement notices are composed?

[jokar]

Possibly not, some Brigades have Model Text that they use which are not allowed to be altered by the IO's.  Mind you they do not fit each and every issue to be found which is a bit of a challenge to them.

[PhilB]

I was under the impression that most FRS have agreed to comply with the Enforcement Concordat which can be found for England and Wales at http://www.berr.gov.uk/files/file10150.pdf would this not affect how any enforcement notices are composed?

I don't think it would TW.

A quote from the concordat " By encouraging enforcers and business to work together, without undermining enforcers’ duty to take formal action where necessary, the concordat will create a level playing field for competition between law-abiding businesses, which will help to enhance the economic vitality of local communities."

In most cases enforcement notices will not be the first option, enforcers will work with businesses to come up with agreed solutions. However there are times when this system fails or is not appropriate and the enforcers then have a duty to enforce the Order. If they chose to do that using enforcement notices which give directions those directions must be clear and specific...not wooly and confusing.

If by some chance a wooly notice is not deemed invalid it will almost certainly be impossible to enforce. If you state for example, provide an adequate means of giving warning who determines what is adequate? It would become a battle of expert witnesses in Court. However if you say provide a fire warning system conforming to the recommendations of BS 5839: Part 1 2002 , Type L2 or equivalent standard....it is much easier to establish whether or not the notice has been complied with.

[nearlythere]

I was under the impression that most FRS have agreed to comply with the Enforcement Concordat which can be found for England and Wales at http://www.berr.gov.uk/files/file10150.pdf would this not affect how any enforcement notices are composed?

I don't think it would TW.

A quote from the concordat " By encouraging enforcers and business to work together, without undermining enforcers’ duty to take formal action where necessary, the concordat will create a level playing field for competition between law-abiding businesses, which will help to enhance the economic vitality of local communities."

In most cases enforcement notices will not be the first option, enforcers will work with businesses to come up with agreed solutions. However there are times when this system fails or is not appropriate and the enforcers then have a duty to enforce the Order. If they chose to do that using enforcement notices which give directions those directions must be clear and specific...not wooly and confusing.

Good reminder PhilB. I always maintain that enforcement is a sign of weakness.

[CivvyFSO]

I dont think simply saying " Failed to comply with article 14(2)(b)"  Remedy: "Comply with article 14(2)(b)" does  anyone any favours - least of all the RP. There must be a best practice solution accompanying the notice in some way, shape or  form.

I think something along the lines of, "Failed to comply with article 9" Remedy: "Complete a suitable and sufficient fire risk assessment. (Recorded where necessary)" Then, as an appendix to the notice, standard advice on how to do a risk assessment. The actual notice should be very basic, but stating the requirement in plain english. This allows the person the flexibility to choose their own solution and also gives them the benefit of advice, but it should be made clear that if they choose their own solution they should communicate this to the FRS to ensure that the FRS agrees that the solution will comply with the article mentioned. (To avoid reaching the time limit on the enforcement notice and then disagreeing on whether it has been complied with)

Also we are now "having regard to" the Regulators Compliance Code which is statutory, not the concordat.

[CivvyFSO]

I thought I had better check up on my last comment... I am mistaken...

From BERR...

However, when we consulted on whether the Compliance Code should supersede the Enforcement Concordat, the majority of the respondents strongly supported keeping the Concordat alongside the Compliance Code. This is partly because the Enforcement Concordat defines relationships between enforcers and businesses in individual cases, while the Compliance Code addresses regulators' general policies.

I stand/sit corrected. (By myself)

(So I win)

(Sort of)

[kurnal]

HMMM having conversations with yourself now Civvy? Time to visit Matron and that nice Dr Wiz.

Now just put your arms in this nice white jacket. Dr Wiz has something to make you feel better. Dont worry you will only feel a little prick.

[CivvyFSO]

HMMM having conversations with yourself now Civvy? Time to visit Matron and that nice Dr Wiz.

Now just put your arms in this nice white jacket. Dr Wiz has something to make you feel better. Dont worry you will only feel a little prick.

Still stings a bit.

[Tom Sutton]

I don't think it would TW.

A quote from the concordat " By encouraging enforcers and business to work together, without undermining enforcers’ duty to take formal action where necessary, the concordat will create a level playing field for competition between law-abiding businesses, which will help to enhance the economic vitality of local communities."

In most cases enforcement notices will not be the first option, enforcers will work with businesses to come up with agreed solutions. However there are times when this system fails or is not appropriate and the enforcers then have a duty to enforce the Order.

Phil I do not fully understand the point you are making. The way I read the quote it simple says the enforcing officer (EO) and the business should work together but if there is no agreement then the EO has the right to take formal action, which is what you appear to carry on to say. The part I have a problem understanding is the bit about having clear and specific directions, which I agree absolutely, but I do not see were the concordat disagrees with that.

[PhilB]

Sorry TW, I was trying to make the point that the enforcement concordat in no way prevents enforcing authorities from issuing prescriptive notices detailing quite specifically what needs to be done. As I have stated earlier any directions given must be specific to avoid confusion.

On some occassions, where the risk is so serious notices will be served without much consultation but those cases will be rare.

What should usually happen if enforcers follow the concordat, is that enforcement notices will usually be the last resort, there will on most occassions be plenty of discussion about what will or will not be a suitable solution to any deficiency that has been identified.

Once the point has been reached where an enforcement notice is necessary the enforcing authority must now set out exactly what must be done to comply with the notice.

[Tom Sutton]

Thanks Phil I fully concur.