Fire Risk Assessment

[kurnal]

To me it matters a great deal. You guys in the enforcement side of the job have sufficient tools in your armoury to hit me where it hurts irrespective of how badly you may prepare your case in court against me.  The legislation is sloppy and its enforcement is scattergun. You fire a series of broadsides  and if I am to defend my corner  Ihave to face up to articles 33 and 34 and try and prove I am innocent - ie what I did was reasonable and appropriate.

This means  I have to employ a legal expert to answer each charge, endure the worry and expense of mounting a defence against some of your ill considered charges, some of which can never  legally stick because clearly not even the Secretary of State's Department understand what they mean.

Are we not all signed up to the Enforcement Management Model? Should not our enforcement be fair, reasonable and accurately targetted? Or does the fact that you can get me by a number of routes mean you can get away with being sloppy?  

[Clevelandfire 3]

I'm sorry Kurnal. I find your posting slightly dramatic and rather sceptical. I fully agree with Civvyand Midland that both the PHC and RP have almost dual responsibilities whichever way you look at it. There is a very good reason behind that and i think you need to rethink your outlook if you cannot see why that is the case.Yes article 22 is confusing in terms of explosive atmospheres, but otherwise it is very clear who is responsible.

I cannot see where you have an issue with the enforcing authority as it is not their fault that the secretary of state doesn't know what is going on. The Sos responsible was lets not forget a labour SoS. You were an inspecting officer once and perhaps getting confused about the conduct of your own brigades approach to enforcement. People just dont end up in court . IOs dont dicate what goes to court it is solicitors and legal experts that do. Accussing all IOs of being sloppy is unhelpful , untrue and frankly somewhat bitter. Im in the same position as you . I was once an IO and now out in the big bad world. I know inspectors are a hell of a lot more professional than I and my colleagues were in my day. You normally take issue when risk assessors are bad mouthed, as do I, so lets try and be sensible and not emotive about the situation. Yes there are crap inspectors, there are also crap assessors. So come on, be a bit more constructive, how many times have you been in court taken by the fire authority?

[kurnal]

C3 its all for the sake of argument no hard feelings or anger anywhere just trying to explore the RRO by provoking some discussion. They used to call it devils advocate in our day. Sorry if its over dramatic. I have never claimed to be a thespian.   

And I know for example the targets of this- MR and Civvy - are the most diligent and caring people with the same values as me. Thats why we spend so much of out lives in this place.

But back to the argument my point is that from the last few  postings it appears there is a view  that the Responsible Person or others can be held to account using all of several potential different charges and so the Fire Authority does not need to exercise extreme diligence in researching and formulating charges against me as an RP - they are confident that they can get me one way or another. To me that feels like double jeopardy and from my point of view defending any charge is far more stressful, expensive and difficult than  issuing one.

[Midland Retty]

Hi Prof

I personally don't see it as double jeopardy at all. My rationale is that in the absence of definitive guidance from the powers that be, in terms of the article 22 explosive atmosphere situation, there are atleast some known factors which should guide us on how we broach the problem.

And this is where we get back to my original point. In most circumstances I think Article 22 is generally easy to follow. We know that RPs have a duty to co-operate and co-ordinate with one another, that in some cases those RPs will also be PHCs, and there is,as C3 states, 'duality' between the responsibility of  a PHC and RP, for very good reason.

That tells us that all RPs (who will also be PHC by virtue of the example we gave) should be talking to one another. No big news there then. The rub comes when you look at who is overall in control. This could only be, in my opinion, the landlord. But even if you disagree with that, you will accept that the landlord is an RP and should be co-operating and co-ordinating anyway.

Just in the situation of a PHC blocking a fire exit in the communal areas where people are trapped in a fire, the landlord as the RP of those areas could claim that it was the PHC that caused him to commit an offence.

So I dont see much difference. This "person having overall control" business is not exactly a red herring, but neither does it alter one RP being able to claim that another person caused him to commit an offence - article 32(10) . This allows the enforcing authority to pursue other person (ie someone other than the RP). It could well be of course that the RP does share some of the blame depending on the circumstance so he may also be prosecuted. But it depends on the circumstances and is no different to any other possible prosecution in that sense.

If everyone is talking together as they should under article 22 ,  you should in a situation where a problem occurs (theoretically).

In the real world of course that doesn't follow, but as an assessor if you have told your client that as an RP they must co-operate and co-ordinate with the other RPs, that if Ex atmospheres exist the landlord is overall responsible (in my opinion) but that indivduals RPs also have their responsibilities too. Is there really any difference to this and any other article 22 situation?

Onto your David and Goliath story, and just to clear up the reality of court cases and legal action for anyone who may be reading this thread and unfamiliar with the legal process.

Firstly I  totally accept that you as a self employed assessor would have to foot hefty bills for legal costs if you ever went to court, and that the process seems weighted in favour of the enforcing authority.

But let me please assure you that cases aren't brought willy nilly, and that a lot of stages need to be succesfully completed when building a case before any of us see the inside of the courtroom. There are more and more solicitors and barristers out there who are getting to grips with the Fire Safety Order, and challenging the authorities. That is a good thing on several fronts. It prevents sloppyness from inspectors, and overburdensome enforcement , it ensures enforcers bring forward water tight and genuine cases.

Not all Fire Authoritess are the same, but as C3 said Inspectors are alot more professional, or atleast better informed, about legal processes, propotionality, openess and fairness. And as always Prof is you can up with a reasonable argument for certain situations or decisions made I would sincereley hope an inspector would listen and enter healthy debate with you for the ultimate benefit of the RP. Afterall arent we all concerned with protecting people from fire?

[Tom Sutton]

That tells us that all RPs (who will also be PHC by virtue of the example we gave) should be talking to one another. No big news there then. The rub comes when you look at who is overall in control. This could only be, in my opinion, the landlord. But even if you disagree with that, you will accept that the landlord is an RP and should be co-operating and co-ordinating anyway.

I understand the concerns of Kurnal, I agree with C3 and most of your submission but you keep on saying that the landlord is the RP of the common areas and IMO you are wrong. Art 3 (a) states if it it’s a workplace the employer is RP and the definition of a workplace includes all common areas therefore in a multi occ individual RP’s are responsible for the commons areas, their employee have access to. But if they don’t have control they have defence under art 33. The landlord has a duty under any article or clause that he has control of, art 5(3) and claiming it’s the landlord’s workplace because occasionally a one of his employees will be grafting in the common area is grasping at straws.

As for art 22(2) I believe it’s been drafted incorrectly however I would accept the landlord does have overall responsibility and is subject to this clause, what the lawyers would make of it is another matter, I think they call them loop holes.

[nearlythere]

That tells us that all RPs (who will also be PHC by virtue of the example we gave) should be talking to one another. No big news there then. The rub comes when you look at who is overall in control. This could only be, in my opinion, the landlord. But even if you disagree with that, you will accept that the landlord is an RP and should be co-operating and co-ordinating anyway.

I think they call them loop holes.

No, they call them big houses.

[Davo]

Tom

Common Areas will inevitably be access/egress unless genuinely shared say a kitchen area.
In those areas the landlord will be responsible for decor unless the lease says diferent. I don't see individual RPs as having control here unless one of them introduces something into that area that creates a hazard then the others should raise this initially with the offender if known, then the landlord.

So in practice I agree with C3 on this point


davo


ps The common areas will be RA'd by every RP

[kurnal]

Thanks to all for your explantions and especially to MR for his detailed response.

As always we come back to the unfortunate wording  of the of the Order. I accept that all RPs and PHCs are dutyholders so their particular role makes little practical difference.

But I have been witness to some very heated discussions over this in high places by people  who are adamant that there are very fundamental differences between the two and that where there is an employer who occupies any part of a multi occ building they and they alone will be the RP and PHCs are never anything other than than a PHC.
Calling a PHC an RP causes offence in in these same circles. But there it is in article 22 .

[Midland Retty]

The relationship between an RP and PHC is confusing, but I can understand why it has been structured in the  way it has.

It's designed to stop an RP from being shafted by the actions of a PHC (such as a fire alarm engineer for example). The enforcing authority could pursue a dodgy fire alarm engineer if the act of that engineer caused the RP to commit an offence. Infact it may be that the enforcing authority drops any action against the RP and just pursues the PHC.

This shouldn't be confused with the point Tom made about their being no defence for an RP under article  32(2) (11) as this refers to direct employees of the RP rather than third parties.

Tom just to pick up on your point, about the RP of communal areas. Davo makes the argument that to some extent the terms of a lease agreement may actually define whom is responsible for the communal areas. And I think he is quite correct. However it would be rare for a tenant RP to be given responsibility for communal areas for several reasons. There could be conflicts arising from such a scenario, and one occupier wouldnt want to foot the bill for the upkeep of equipment that other occupiers are using and causing wear and tear to.

And dont forget if the landlord employs someone to maintain fire safety equipment in the communal areas he then becomes by definiton an RP, as detailed by article 3.

[AnthonyB]

Tom

ps The common areas will be RA'd by every RP

I wish!

Most tenants, if they have FRA'd at all, stick to their demise as if it is floating in the ether and not part of a larger building. Our clients rarely receive cooperation/coordination communications from tenants, it's all one way

[Tom Sutton]

davo I have never said the landlord was not responsible he is a dutyholder under art 5(3), as a PHC, most probably for many articles or clauses of the order but he is not a RP. The only way you could make him an RP would be if you classed the common areas was his workplace which I agree you can make a case, for but it is very tenuous. The RP is also a dutyholder art 5(1) but if he has no control then he has a defence under art 33.

A further point I would like make is an RP is a dutyholder 5(1) for all articles 8 to 23/24 with a defence if he does not have control. A PHC is a dutyholder art5 (3) for individual articles those that are within his control.

MR I am not suggesting the RP foots the bill if he does not have control it would be the landlord as a PHC.

Kurnal I fully agree with you but as I have said art 22(2) is bad drafting and not in the spirit of the order “He who creates the risk, is best placed to control that risk.”

AB I am not arguing the practical side just what the order states.

[kurnal]

Thanks Tom that is a useful and clear summary.

Doesnt use of the term dutyholder make it so much easier!

[Clevelandfire 3]

No Tom you are missing the point completely. Read again what MR has said to you in numerous posts. The landlord if employing someone to maintain the communal areas must be an employer and therefore without any argument is a responsible person. Why do you fail to see that? If you dont believe us read article 3. MR has pointed this out time and time again. Where did MR suggest the RP foots the bill? I dont think you read what was posted properly.

Where on earth do we get the term "duty holder" from and on what basis is that lawful according to the fire safety order?

[kurnal]

No Tom you are missing the point completely. Read again what MR has said to you in numerous posts. The landlord if employing someone to maintain the communal areas must be an employer and therefore without any argument is a responsible person. Why do you fail to see that?

There are occasional situations in which the landlord of a building is not an employer albeit this is quite unusual. And it is these unusual situations that I keep banging on about.

One converted cotton mill owned by an old gentleman and let to multiple small businesses. He used to run the mill then in the seventies when the business failed let various parts of it to other local businesses. He retains control and collects the rent etc.  Under the terms of the individual leases the owner is responsible for maintaining the common areas. This work is carried out by contractors not employees. Under articles 5.3 and 5.4 the owner is therefore  a person having control not a responsible person. 

The building is used as a workplace by the tenants and by the cleaning contractors. The  employers are responsible persons   under article 3 - ie the tenants and the cleaning contractors.

Where on earth do we get the term "duty holder" from and on what basis is that lawful according to the fire safety order?

I started using the term dutyholder in this context - but actually its stolen from the Scottish legislation so  you are right C3-  has no legal relevance in England and Wales. I find it useful though because I think the Order uses responsible person in two seperate contexts. Usually where the term responsble person appears in the Order I believe they mean Responsible Person as defined in Article 3.

But sometimes when they use the term responsible person they  simply mean the person having responsibility for something. We see this in several areas but in particular in article 22. 

I find for my own interpretation it all makes a lot more sense to me if I substitute dutyholder for this latter context. I also wonder if this is why so many people find the Order so confusing.

But I am probably talking hogwash again.

[Tom Sutton]

C3 I am not missing the point and I realise MR has make same point  more than once, but saying because a maintenance man works in the common areas, makes it a workplace and therefore the landlord can be classed  as a RP, this is a very tenuous argument, any decent lawyer would make the proverbial of it with out much effort.

From MR's submission.

Tom just to pick up on your point, about the RP of communal areas. Davo makes the argument that to some extent the terms of a lease agreement may actually define who is responsible for the communal areas. And I think he is quite correct. However it would be rare for a tenant RP to be given responsibility for communal areas for several reasons. There could be conflicts arising from such a scenario, and one occupier wouldn’t want to foot the bill for the upkeep of equipment that other occupiers are using and causing wear and tear to.

I was saying I do not see any conflict, the person who has control whether it is the RP or the PHC would be responsible in accordance with the order, and  I assume he would foot the bill, if a tenancy agreement changes the rules that is another matter. (I read occupier as RP.)

Th term "duty holder" was a used as a description of any person subject to “art 5 Duties under this order” although it is a definitive term in Scottish legislation.

Kurnal do you remember us arguing with CT  about Responsible Person as opposed to Duty Holder its hard to admit but may be he was right.