Best practice when writing unsatisfactory notices and enforcement notices

[Tom Sutton]

FSO is talking about the legal aspect which in my opinion never includes common sense. Any recommendations you provide needs to be fully justified, preferably in writing (guidance or standards or other official documents) and as Kurnal says broad guidance is the intention indicated by Guidance Note No 1. It has been said many times its the RP responsibility to provide the solution not the FRS and if you you go too deep remember you may have to climb out the hole later.

[Indiana]

If an Enforcement Notice is broad instead of detailed, could a RP use it as a defence in court if an Authority prosecuted for non compliance- stating that they thought that they had complied with the Notice, the fact that the Notice was not explicit enough meant that they misunderstood what the Authority wanted?

[ando]

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.

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.

My personal approach is to use the guidance where it is appropriate, but like to be open minded both with my own and the DH's solutions..Under Scottish law the duty holder has to provide "reasonable measures", Its my job to ensure they have reasonable measures and to advise where necessary on what reasonable measures are; given the circumstances. Not sure how similar it is in england and wales.

I base what is reasonable as being the minimum standard that i will accept at the end of the process.

The DH therefore has a clear view of where they stand. That has got to be easier for them rather than trying to work out if they can get away with less. They are made aware that other solutions exist (I indicate these verbally during the audit, but will only mention one solution in any written report.

I do not see it as my job to try and push guidance like some double glazing salesman (oops person) and see what i can get out of the DH...I see myself as there to help the DH and the relevant persons equally.

There are of course DHs who really are not the least bit interested, but i do find that being reasonable, helpful, putting them at ease  and fully explaining the logical reasoning behind each requirement makes the job a whole lot easier.

My methodology ensures that i very rarely need to go to enforcement or prohibition, though don't think for one minute i am a soft touch. The safety of relevant persons is my first priority!  The question i ask myself is  "Would i let a family member stay there?"

In my experience of assessors work it seems they follow the guides so rigidly its almost a cut and paste job.  I do feel rather sorry for DHs who are getting such poor service and value for money.

[kurnal]

In my experience of assessors work it seems they follow the guides so rigidly its almost a cut and paste job.  I do feel rather sorry for DHs who are getting such poor service and value for money.

Interesting comment ando. I would be interested to hear a couple of examples, because on the face of it it would appear difficult to criticise a consultant for making recommendations that are in accordance with National Guidance- unless the premises already had satisfactory alternative arrangements in place?

I wonder how widespread this view is amongst enforcers?

[nearlythere]

"In my experience of assessors work it seems they follow the guides so rigidly its almost a cut and paste job.  I do feel rather sorry for DHs who are getting such poor service and value for money."

And new line managers?

[Midland Retty]

I wonder how widespread this view is amongst enforcers?

Perhaps a bit of a sweeping statement.

I guess some assessors may take the "easy option" and just copy and paste from the guidance to earn a quick and easy buck, or because they just dont understand fire safety enough to offer suitable alternative solutions, but in my experience they are few and far between.

It all comes down to how competent and good the assessor is - if the assessor recognises, and can justify, that the standards are overburdensome in a given situation, and can thus save his or her client money and disruption with alternative solutions which achieve the same thing, then morally I'd expect them to do so.

Most of the decent assessors Ive dealt with do so.

[Tom Sutton]

If an Enforcement Notice is broad instead of detailed, could a RP use it as a defence in court if an Authority prosecuted for non compliance- stating that they thought that they had complied with the Notice, the fact that the Notice was not explicit enough meant that they misunderstood what the Authority wanted?

This depends on how detailed you mean, IMO if you are referring to individual items then that's too detailed if its more on the lines of "the travel distance from the offices on the third floor to the main staircase is excessive and the control measures in place are not considered adequate" would be as detailed as you would need to go. In addition, on the enforcement notice the old hackneyed phrase "Do not hesitate to contact me if you need any clarification on this notice" should be included. Also included on the notice statements explaining, the notice used national guidance as a benchmark and RP’s right to provide an alternative solution, plus the RP rights under the legislation.

I believe a more detailed report, ALARP and alternative solutions is more appropriate at the audit stage, not at the enforcement notice stage other than to dispute the FRS opinion.

[FSO]

I totally agree Retty

After all, thats how a good risk assessor can justify paying their mortgage off with their fee!

Thats also where the good enforcing officer should be able to balance the argument against the legal requirement.

I know too many code huggers and it annoys me alot, but we must have the consistent approach as an enforcing authority.

FSO is talking about the legal aspect which in my opinion never includes common sense. Any recommendations you provide needs to be fully justified, preferably in writing (guidance or standards or other official documents) and as Kurnal says broad guidance is the intention indicated by Guidance Note No 1. It has been said many times its the RP responsibility to provide the solution not the FRS and if you you go too deep remember you may have to climb out the hole later.

You are right Tom, I am looking from the legal aspect which I do agree does not always apply common sense. However the enforcing authorities should be absolutely watertight and therefore should apply princlples advised by their legal council.


Legilslation and guidance notes are one thing, but case law is just as important when applying legislation. Sometimes this is not always as obvious.

[Midland Retty]

For the sake of consistency a fire authority can state that it champions / advocates use of the official guides as best practice, and will always use the contents of those guides when giving advice / taking informal action / issuing enforcement notices.

But it must also make clear that the RP is free to choose alternative solutions which achieve the same level of protection.

And when such alternatives are proposed, they should be properly scrutinised, not rejected at the drop of a hat by the enforcing authority simply because the proposals dont conform to what is in the guides.

That said we do live in a blame culture (sometimes a blameless one), complex litigation and mitigation means that anything which strays away from known benchmarks and standards is often treated cautiously,for good reason.

For certain failings there can be multiple tried and tested solutions on how to remedy those failings.

For others there may only be one known tried and tested solution .

Often there are non tried and tested solutions put forward, but how would we know if those solutions are appropriate, without some form of evidence to demonstrate they work ?

Plus it is often too prohibitive, in terms of time and money, for an RP or assessor / consultant to prove that certain theoretical solutions would work!

With risk assessment you will never have complete consistency.

[FSO]

Spot on Retty

[Bobbins]

I don’t think the enforcers should list acceptable alternatives, but once a deficiency has been highlighted they need to be in communication with the RP/DH to give the nod to any proposed works before they begin. Ultimately they need to sign something off so why not discuss the alternatives with the RP/DH? A bit like the planning officers are supposed to do with planning applications that get knocked back at the first stage. They are supposed to say what will get through planning and what won’t get through; that principal should apply to the enforcers too.

[Davo]

MR

Agree with what you say, pray you get a reasonable I/O who can see past his Guidance


davo

ps Bobbins don't get me started on planning officers, grrrrrrrrrrrrrrr  

[Tom Sutton]

ps Bobbins don't get me started on planning officers, grrrrrrrrrrrrrrr  

Maybe so but bobbins has a good point.

[Dinnertime Dave]

Surely the solution here is for the enforcer to communicate with the DH.

I`m sure i am going to get slaughtered by fellow enforcers but most punters just want to be told what they need to do to comply. Any notice I send will give one possible solution to the problem, but I always make it clear that it is only one solution there may be others - but talk to me before you choose a different one to see whether it is acceptable.

There is no point knowing the answer to a problem and not sharing the info and just hoping they guess the right one.   

[Midland Retty]

Surely the solution here is for the enforcer to communicate with the DH.

I`m sure i am going to get slaughtered by fellow enforcers but most punters just want to be told what they need to do to comply. Any notice I send will give one possible solution to the problem, but I always make it clear that it is only one solution there may be others - but talk to me before you choose a different one to see whether it is acceptable.

There is no point knowing the answer to a problem and not sharing the info and just hoping they guess the right one.   

Hi DD

I think you are spot on