Best practice when writing unsatisfactory notices and enforcement notices

[ando]

I am hoping to gain the opinions of other enforcement officers over what i feel is a fundamental aspect of fire safety work..

Having carried out an audit of a premises where the fire safety measures are below what is reasonable for the risk I obviously have to provide a written communication to the Duty Holder to indicate the areas where improvement is required for them to comply.

This might be a notice of unsatisfactory measures or if more serious then an enforcement notice.

Previously I have indicated in the notice the minimum risk/cost/inconvenience based recommendations which I would accept as being compliant with legislation, and the notice would be a fair reflection of what had been discussed during the audit.

My new line manager in a bid to ensure a more consistent approach across the team is insisting that any recommendations made in notices are taken from the guidance, even if this not risk/cost/inconvenience based..

I am very uncomfortable with this as i feel this goes against the spirit of the law and the good enforcement concordat..

I should point out that all our letters make clear that the recommendations made are only one solution to the problem and other methods may well be suitable.

Which method if any do people feel is being prescriptive?

[mr angry]

Ando, I am of the opinion that it is not the job of the enforcement officer to offer prescriptive solutions or recommendations to dutyholders (resposible persons in Engerland) but simply to highlight where deficiencies lie. The dutyholder/responsible person would then be expected through their fire safety risk assessment to address these shortfalls.

That said, the direction we are given in the compilation of enforcement notices contradicts this somewhat as they tend to be quite prescriptive.

[ando]

Part of our duties is however to inform, advise and educate and when giving advice be aware of the cost to Duty holders and to assist them to keep the cost of compliance to a minimum...I do not tell them what to do, but where advice is given it should recognise the risk/cost/effort involved...

To that end would you say it is appropriate to give risk/cost/effort based advice based on circumstances  or just quote guidance because its easy,consistent and not our problem.

[nearlythere]

Ando
Does your line manager have any fire safety experience?

[CivvyFSO]

If you are taking your guidance from 'the guidance' then your line manager should notice that 'the guidance' itself explains the following;

"This guide applies to England and Wales only. It does not set prescriptive
standards, but provides recommendations and guidance for use when assessing
the adequacy of fire precautions"

I can appreciate the need for consistency, but is applying one set of rules regardless of the risk really being consistent?

[Midland Retty]

Hi Ando

Guidance is just guidance, and it is important that inspectors keep an open mind when it comes to proposed solutions offered by the RP or assessor, and not be blinkered or constrained by current guidance.

I can to some degree follow your manager's comments - you have to be careful when accepting solutions which stray from benchmark standards, and guidance. It could also be argued that by sticking to the guidance you establish some form of consistency.

But then again the inspector should be competent enough to recognise when a proposed solution, which doesn't follow current guidance, will be suitable or not.

To me the key thing is to always make it clear to the RP that they can choose alternatives that achieve the same level of protection.

To pick up on Mr Angry's point  about specifying the failings found during an audit, but not offering any proposed soultions to deal with them, to me that is totally unhelpful. There is absolutely no reason why enforcing authorities shouldn't offer a proposed solutions, to assist the RP, so long as it is made clear that the RP is free to choose alternatives.

[FSO]

Well, we have to provide recommendations when highlighting failures. This was proved in the case law of BT Fleet vs Mckenna.

I know that from the legal opinion, any recommendations issued should be in line with the guides issued under article 50. In fact a well known barrister has made it clear that if it is not in the guide, it does not exist.

I am of the opinion that an enforcing authority should be issuing advice in line with the standards prescribed by the secretary of state. It is for the responsible person to offer alternatives in the fire risk assessment. Nobody is saying that a lesser standard is not acceptable, but there should always be a starting point. The starting point has to be the CLG guides.

Fire away 

[Midland Retty]

Hi FSO

The guides are a starting point, and yes it is for the RP to come up with counter solutions if they do not agree with those suggested by the enforcing authority.

But there is also no reason why a fire inspector couldn't suggest solutions which don't feature in the guides either, so long as that alternative achieves the same thing.

[FSO]

Hi Retty

I understand your angle, but I then see that the fire authority becomes responsible for the provision of the fire safety measures not the responsible person.

There is little defence in law if there is a departure from the benchmark standards without very good justification. Now please do not think that I am a codehugger because I am very far from it.

I am just uncomfortable with the principle of the fire authority accepting the liability for any departure from agreed national standards. That is what a fire risk assessor should do.

Who gets prosecuted if the departure didnt quite actually do the job?

I fully support the motion of providing advice and would give advice to what standards are reasonable, but I would be very clear in stating that any departure from the guides should be justified in the FRA.

Thoughts?

[ando]

Ando
Does your line manager have any fire safety experience?

Whatever makes you ask that?

[kurnal]

Guidance Note No 1 states:
"141. An enforcement notice should set out why the responsible person has not complied
with the Order and set out the provisions which have not been complied with. The
notice may be framed to give the responsible person a choice between different ways of
remedying the contravention – but in some cases, there may only be one solution which
would adequately remedy the contravention and it would be counterproductive, timeconsuming
and costly to suggest there is a valid alternative."

As I see it this is not to suggest that the Authority should specify detailed specific technical solutions, more that they should, for example, require that the means of escape should be improved in order to provide a protected route, but to point out that other solutions may be possible which may include  the provision of alarm and detection systems or sprinkler systems.

I think broad guidance is the intention.

[mr angry]

I think there is a need to distinguish between the giving of advice to dutyholders of which enforcement authorities are obliged and the carrying out of a fire risk assessment for them. I think in reality a common sense approach is often taken dependant on circumstances and risk.

[Clevelandfire 3]

As I see it this is not to suggest that the Authority should specify detailed specific technical solutions, more that they should, for example, require that the means of escape should be improved in order to provide a protected route, but to point out that other solutions may be possible which may include  the provision of alarm and detection systems or sprinkler systems.

I cant agree with that. Its not for the fire authority to give several solutions. I conceed that they should give A preferred solution, but not several. You cant have your cake and eat it. The responsibility is on the punter not the fire service. Either you want self assessment or prescription. An enforcement notice is normally to call time on non compliance and enforce a solution to remedy certain failings immediately.

The fire authority give their preferred solution. If the punter doesnt like it then it is up to them to come up with an alternative. Isnt that why we are in a job kurnal?

[nearlythere]

Ando
Does your line manager have any fire safety experience?

Whatever makes you ask that?

Because you have said he/she is "New" and "any recommendations made in notices are taken from the guidance, even if this not risk/cost/inconvenience based."

[kurnal]

I think Nearlythere's point is valid.

A characteristic of inexperienced assessors or enforcers is a tendancy to hug the codes due to a lack of awareness and understanding of the underpinning fundamentals behind them.