FRS to advise or not?

[Hightower]

I wondered if anyone could give me some clarity on my position for the following matter.

I have recently conducted a fire risk assessment on a 2 storey block of flats having been instructed by a property management company (PMC).  The PMC were reacting to a visit of the concerned property from an IO who had been tipped off by the local fire station regarding their concerns over the fire safety of the flats.

Having dutifully detailed my significant findings I submitted them to the PMC with 3 options for their consideration as corrective solutions to the deficiencies and advised consultation with the FRS to ensure that if any one of them was implemented that they would meet with the requirements of the RRO under the heading of ‘suitable and sufficient’.

All ok so far – having approached the FRS the PMC were then informed by them that they would not assist in providing solutions or necessarily agree to any put forward. 
I personally argued with the FRS saying that any one of the solutions put forward would require a high capital expenditure and therefore it was important that my client was reassured that if that expenditure was spent that it would indeed satisfy the authorities.

The only reply I got throughout the argument was that the building was non compliant and needed to be upgraded (we didn’t disagree on that point) and that the LGC guide for sleeping accommodation should be consulted as the FRS took this guide as the prescriptive document for all requirements.

Again I argued the case that the guide was surely just that and not prescriptive, but the only answer back was that was what HQ was telling the fire protection department to use and do.

At the end of it all I came away thinking – surely, if corrective measures are put in place the FRS would come along at some time to conduct an audit to determine if the building was up to the mark.  Why can they not then, using the information available view the building in its present state and assess the corrective solutions provided against it and give a definitive answer either way.

Is this a common problem out there – has anyone else encountered such barriers and unwillingness to co-operate?

More importantly, is there any way forward with the FRS such as legal obligation etc.

Appreciate your thoughts

Hightower

[Phoenix]

The FRS are the enforcing authority.  They are under no obligation to come out and visit premises and advise which is the most cost effective way of satisfying the RR(FS)O.  That is your job.  That is why you get paid for doing what you're doing. 

FRSs have certain pressures on them to satisfy their own audit programmes and do not have the resources to respond to every request for confirmation or advice that they receive.

Having said that, some are more willing than others to give advice.  Some recognise that if they spend a little time confirming that something is right before the work is carried out, it can save a lot of effort in the future trying to put things right.  Some would like to do this but don't have the resources.

Also, part of the whole point of the RR(FS)O was to stop buildings being designed by the prescriptive requirements of the fire service and to hand back to the building owners/developers the ability to design buildings how they saw fit (whilst still providing a satisfactory level of fire safety, of course).

If you really feel you need advice from the FRS then you could appeal to them stating that you are dealing with a life risk premises and you are simply aiming to achieve the best level of safety for the occupants.  They might respond favourably.  They might, though, think that you are the best one to make the decisions as you are the one who has inspected the building.

Under section 6 (2)(b) of the Fire and Rescue Service Act 2004, FRSs must give advice on fire safety, but don't go waving that at your FRS because they only have to do it to the "extent that it considers reasonable to do so."  They may very well reply that they consider it reasonable to leave it to you to make the decisions as you are the one who is being paid for your professional advice.

Stu

[Username]

I read this slightly differently, I got the impression that the management company simply wanted a nod that the planned improvements (and expense) would meet the FRS concerns.

The alternative could be for the company to stand back and force the FRS to take enforcement action, during which (presumably) they would have to stipulate their precise concerns.

Surley the informal approach is far more effective for both parties concerned.

[CivvyFSO]

Even during enforcement action we could quite easily simply point out that specific articles were not being complied with, and that in order to satisfy the notice the RP simply has to comply with the article or very simple advice. i.e. Failure: Failure to comply with article 13.... Solution: Provide a suitable means of giving warning.

The FRS might be unwilling to choose between three options but if you choose what you consider to be the most appropriate solution, and submit that one, explaining that it is the way you intend on remedying the issues, then they might be more responsive. At some point they are going to have to say whether it complies with the RRO or not, but them choosing their 'preferred' solution might just be shifting the ball into their court a little too much for some.

[AnthonyB]

I've not had any trouble before - a client has had a notice, I've devised a site specific solution (not contained within the guides) & presented it to them in a meeting.

However I've just asked for yes/no answers as to whether it satisfies them as it's my job to assess the detail,not them to do it for me. Where the client has wanted to consider various options to save cost I've filtered them down and again proposed them but for a simple yes/no

I would be rather annoyed of they wouldn't even give a yes/no however. I can understand them not giving detailed advice, but they need to say whether something will satisfy the FSO or not - otherwise it would end up in unnecessary court proceeding which would not go down well with the magistrate when their non cooperation is exposed.

[Phoenix]

Here's a thing.  When I first started working in a brigade fire safety office in 1989, architects used to send in blank plans and we would mark them up for them! For free!

This went on, in my brigade, into the latter half of the nineties.  Those were the days.

Stu

ps I don't complain about the change because it has given me a job in retirement.

[Hightower]

Phoenix, Username, CivvyFSO and AnthonyB

Thank you very much for the time you have taken to respond to my questions.  They have certainly clarified much for me.

Username, you are right in your interpretation of my comments, a nod from the FRS is all that is being requested by the management company before the planned improvements and expense are actioned. 
By delaying, the alternative does seem to be to force the FRS’s arm by gaining prescriptive advice upon receipt of an enforcement notice, however, I note the vagueness that they may respond with by your comments Civvy.

Thanks again
Hightower

[Steven N]

Its a fine line between giving a nudge in the percieved right direction to actually advising what to do. I would say though that most FSO's I know would at least try to help. 

[Hightower]

To elaborate further on my experience and to ensure that the FRS in my part of the world gets a fair hearing from me I add the following.

An FSO did on my request visit the said property with me to discuss my various findings and extremely helpful he was to.

During the course of the visit I explained what I would be advising the PMC to do as temporary measures until full solutions were agreed.  The FSO nodded, said he thought that these temporary measures were fair and good ideas and the conversation went onto something else.

When the PMC wrote to the FRS they informed them of the temporary measures being actioned and that these had been acknowledged and deemed reasonable by the FSO during his visit.  It was then that the FSO's line manager went off the rails saying it wasn't for the FRS to provide solutions etc. etc. etc. and closed shop.

Maybe its all down to individual personalities and / or the fear the manager had of excepting responsibility in any form?

[PhilB]

Even during enforcement action we could quite easily simply point out that specific articles were not being complied with, and that in order to satisfy the notice the RP simply has to comply with the article or very simple advice. i.e. Failure: Failure to comply with article 13.... Solution: Provide a suitable means of giving warning.

You're on dodgy ground there Civvy...have you read the case law BT Fleet v McKenna?

If the enforcing choose to give directions, those directions must explain clearly what action to take ......terms such as "provide a suitable means of giving warning" is not a good idea in my opinion for 2 reasons

1) A court may rule that the direction was unclear invalidating the notice.
2) Who determines what is suitable? It will potentially end up as a battle of expert witnesses in Court.

Notices must explain clearly what is required, I would recommend specifying exactly what measure you require e.g. by referring to a british standard but point out that an equivalent standard would also be acceptable.

[Wiz]

Here's a thing.  When I first started working in a brigade fire safety office in 1989, architects used to send in blank plans and we would mark them up for them! For free!

This went on, in my brigade, into the latter half of the nineties.  Those were the days.

Stu

ps I don't complain about the change because it has given me a job in retirement.

Stu, Back in the Eighties and Nineties I was commissioning fire alarm systems that had been 'designed' by the local Fire Service in the same manner as you discuss i.e Initially, architects had sent blank drawings to the Fire Service for them to mark up and in later years the architects would 'mark up' a design and the Fire Service would 'approve' the design.

Invariably the design did not comply in all respects with the BS.

I put this down to three reasons a) lack of appropriate training for the 'designers/approvers', b) not enough time to do a proper job  c) failure to visit site and working solely from plans.

If I flagged up the deviations (as they were then) on my paperwork, I was castigated by the architect or customer who wanted to 'hide behind' the Fire Service's design/approval. They didn't particularly want a BS compliant system, they just wanted to keep the Fire Officer happy and to use his design/approval as a shield against future questioning of the effectiveness of the system, even if the Fire Officer had dropped an almighty b*ll*ck.

Things had to change. It was a disaster waiting to happen.

[CivvyFSO]

You're on dodgy ground there Civvy...have you read the case law BT Fleet v McKenna?

If the enforcing choose to give directions, those directions must explain clearly what action to take ......terms such as "provide a suitable means of giving warning" is not a good idea in my opinion for 2 reasons

1) A court may rule that the direction was unclear invalidating the notice.
2) Who determines what is suitable? It will potentially end up as a battle of expert witnesses in Court.

Notices must explain clearly what is required, I would recommend specifying exactly what measure you require e.g. by referring to a british standard but point out that an equivalent standard would also be acceptable.

Thanks for that. The case was relative to an improvement notice issued under the HSAW Act, the RRFSO seems to offer something specific in the way of a way round this potential pitfall;

"(3) An enforcement notice may, subject to article 36, include directions as to the measures which the enforcing authority consider are necessary to remedy the failure referred to in paragraph"

This would suggest that we don't have to, but it is something that may take more case law to decide. I appreciate that it could be seen as already decided though, due to the case you mention.

The problem with actually requiring something specific is that much of what we ask for is subject to the fire risk assessment, so for us to include something as specific as 30 minutes fire resistance to a corridor with strips and seals on the doors, when it should be a risk assessment that determines whether this is necessary, surely we are leaving ourselves open to be lining the former Mrs Todd's pockets?

An example here would be if you own some dodgy 2 storey place, you have no risk assessment and I consider that the stair to the first floor needs protecting. If I enforce a risk assessment and passive protection to the stair, but Kurnal comes along and his risk assessment points out that with suitable measures in place the stair does not need protecting, then where do go from there? The notice could then be seen as unreasonable by virtue of including the measures required, whereas simply "Supply a suitable means of escape" is also corrected by Kurnal's method.

To be honest, at the FRS I work for we do give detailed info, and it is quite unlikely that any RP will challenge it while it is done in this way unless we are being blatantly unreasonable.

[Midland Retty]

Even during enforcement action we could quite easily simply point out that specific articles were not being complied with, and that in order to satisfy the notice the RP simply has to comply with the article or very simple advice. i.e. Failure: Failure to comply with article 13.... Solution: Provide a suitable means of giving warning.

You're on dodgy ground there Civvy...have you read the case law BT Fleet v McKenna?

If the enforcing choose to give directions, those directions must explain clearly what action to take ......terms such as "provide a suitable means of giving warning" is not a good idea in my opinion for 2 reasons

1) A court may rule that the direction was unclear invalidating the notice.
2) Who determines what is suitable? It will potentially end up as a battle of expert witnesses in Court.

Notices must explain clearly what is required, I would recommend specifying exactly what measure you require e.g. by referring to a british standard but point out that an equivalent standard would also be acceptable.

Totally agree.

A non commital from the FRS doesn't help anyone in the long run.

As you point out simply stating something like  " Failure: Did not comply with Art. 13 - Solution: Provide suitable means of giving warning" is ridiculous and totally unhelpful. Furthermore it is not in the spirit of what the UK Fire Service is working toward.

Im concerned that a non commital approach will, over time, put people off from engaging with Fire Authorities, and that could have very serious consequences.

Whilst an Enforcing Authority can't produce a fire risk assessment / manage fire precautions on behalf on the RP they should wherever possible be pointing them in the right direction, offering good will advice, helping the RP achieve compliance. Fire Safety Enforcement is, afterall, a two way street.

Imagine now if you started your own business, how many different pieces of legislation would you need to comply with? How much would you know about every seperate bit of legislation and how to comply?  we can't be experts in everything and anything, and thats why enforcing authorities should give advice and commit to certain acceptances and approvals.  

[Midland Retty]

An example here would be if you own some dodgy 2 storey place, you have no risk assessment and I consider that the stair to the first floor needs protecting. If I enforce a risk assessment and passive protection to the stair, but Kurnal comes along and his risk assessment points out that with suitable measures in place the stair does not need protecting, then where do go from there? The notice could then be seen as unreasonable by virtue of including the measures required, whereas simply "Supply a suitable means of escape" is also corrected by Kurnal's method.

But the fire authority isn't being specific Civvy and thats the whole point. When you issue a report / notice you will put forward best practice solutions to remedy the failings you have found during an audit .

I suspect your reports / notices will point out that the RP is within their rights to select an alternative solution which achieve the same standards

There are then mechanisms in place such as the determination processes or ultimately court where any compliance matters, the suitability of alternative solutions or other general disagreements can be challenged / thrashed out.

[CivvyFSO]

just to be argumentative... Look at it this way then:

We have 2 premises; Castle Retty on the left, Castle Civvy on the right.

On the left, Sir Retty paid PhilB £1000 to come and sort out his fire safety, get his procedures right etc. He runs a lovely safe premises.

I really can't be bothered to pay PhilB anything. I will wait for the FRS to arrive, say to them "Fair cop guv", gratefully accept my notice with all the advice on, do the work and save myself £1000 in the process.

I think I will spend that £1000 on extra advertising that Sir Retty can't afford.