Responsibilities for Fire Management Plan/Strategy

[davincey]

I would be grateful for any opinions on the following senario:

Company A constructs a residential home which they subsequently lease to Company B for a period of 21 years. Company B then engage Company C to provide the on site care.
Question: Who is the RP for the Fire MAnagement Plan/Strategy?
As I see it, Company A has no responsibilities as they have no control or input for the next 21 years.(under the Housing Act, 21 years is generally considered to be the cusp of owner occupier) This makes Company B the landlord and as Company C have management responsibilities, they should cooperate on the Strategy.
Any views appreciated

[nearlythere]

I would be grateful for any opinions on the following senario:

Company A constructs a residential home which they subsequently lease to Company B for a period of 21 years. Company B then engage Company C to provide the on site care.
Question: Who is the RP for the Fire MAnagement Plan/Strategy?
As I see it, Company A has no responsibilities as they have no control or input for the next 21 years.(under the Housing Act, 21 years is generally considered to be the cusp of owner occupier) This makes Company B the landlord and as Company C have management responsibilities, they should cooperate on the Strategy.
Any views appreciated

Does Company C have the building maintenance responsibilities?

[davincey]

No.... Company B is responsible for building maintenance.... Company C are solely the care providers and have a 24 hour presence in the building Company B are on site 9-5

[davincey]

Sorry, slight correction.... Company A as the freeholders are responsible for structural maintenance; roof, walls etc but not general maintenance.

[kurnal]

The employer is responsible. As  they are both employers each is responsible for that which they control. They must co-operate wiith each other and one must co-ordinate. I guess that since B can sack C and appoint D instead they have a duty to co-ordinate the strategy and production of the plan. So its down to B and C.

[Tom Sutton]

I would suggest all three could be the RP, A under 3(b)(ii) because A has control regarding compartmentation. B under 3(b)(i) because B has control of the remainder of the maintenance of the building and C under 3(a) because C is the employer responsible for the relevant persons.

Maybe C is the RP as defined by 3(a) with duties under 5(1) and A&B with duties as persons having control under 5(3) or 5(4) this might be a better solution. It would all depend on exactly what each company has control of and could that affect the safety of relevant persons.

I do accept these are tenuous interpretations.

[davincey]

Hmmm.. Interesting points all. I think the key thing here, certainly from A's point of view is the exact wording of the lease agreement and the areas of responsibility for maintenance; i.e., does the structural maintenance include stairs, lifts, doors etc.. If it does then a 3 way (ooer vicar!) arrangement would seem to be in order.

[kurnal]

I know where you are coming from but employers B and C have absolute responsibility for the safety of their employees and others who may be affected.

So what I am saying is that  it  as far as A is concerned it makes little difference. Even if A is responsible under the lease agreement, B and C are responsible under the fire safety order.  If it isnt done correctly by A, employers B and C have failed in their duty to provide  adequate general fire precautions and so will be ultimately responsible and held accountable.

 It might be that A could also be held to account as  a responsible person to the extent that they have control but irresepective of that  B and C certainly would have their collars felt.

[Tom Sutton]

If you consider A & B as Person Having Control (PHC) under 5(3) or 5(4) and C as the RP he/she would be responsible for all articles 8 to 23, then if any article outside C's control he/she could use 33 as a defence (due diligence). I have washed my mouth out with carbolic soap immediately after finishing the last bit.

For example if the PHC of the staircase is A then s/he is responsible, if the the PHC of the extinguishers is B then s/he is responsible, if fire drills are not being carried out C is responsible as the RP.

As has been previously been said it would depend on the exact wording of the lease agreement.

[kurnal]

Thomas I believe you will need to use the carbolic again with a caustic soda gargle.
C could not use the defence of due diligence if the persons at risk were employees. I learned that from Toddy last week so feel smug and empowered to administer your oral hygiene. Open  wide!

[Tom Sutton]

C could not use the defence of due diligence if the persons at risk were employees.

C is using art 33 against company B (PHC) not their employees.

My dilemma is that a case can b made for B to be a RP therefore there would be two RP's two FRA'S I can envisage two risk assessors and  pistols at dawn, on should it be a part 1 or part 6 fire alarm system.

I would prefer one being the RP and the other a PHC but who. I think it would depends on,

1. Who the employees have a contract of employment with?
2. Who has the day to day running of the care home?
3. Who has the management of the care home?
4. Does C only provide labour like a nursing agency and the employees have a temporary contract with B or run the whole enterprise?

 

[davincey]

Hmmmm.... Gotta love those shades of grey!

Your points Tome:
1. B has their own employees on site on a 9-5 basis; C has their own employees 24 hrs in 2 shfits (days and nights)
2. Depends on perspective.... C provide the care to the residents so will manage all things relating to the residents and have the expertise required for dealing with issues such as evacuation; B provide facilities management but are not involved directly in the day to day activities of the building.
3. Not sure how to answer this one differently from above!
4. C is an independant company with its own staff, not agency or supplying staff to B.

I have advised B to develop the outlines of the management strategy from the facilities perspective and get C to provide specifics such as evac plans, peeps etc. I think it must be that both B and C are RPs and pointed them at section 22.

[Speyside]

Thomas I believe you will need to use the carbolic again with a caustic soda gargle.
C could not use the defence of due diligence if the persons at risk were employees. I learned that from Toddy last week so feel smug and empowered to administer your oral hygiene. Open  wide!

I don't believe that is true, it can be used 'in' your defence and it has to be taken in consideration by the court however it is correct that even if you are diligent beyond all reasonable doubt the ultimate responsibility still stops with the employer. If you take New Look for example if they had taken due diligence in their fire safety do you think they would have been fined £400K+ for the fire or even taken to court?  The case against New Look revolved heavily around their lack of diligence and hence as a profitable company who sacrificed fire safety at the expense of profit, they were fined heavily. If the prosecution use lack of diligence as a reason for prosecution then it stands to reason that the defence has to use due diligence to counteract if they can; that includes were employees are put at risk.

C has the main responsibility and B had an initial responsibility assuming they passed on sufficient info and have a tight contract with C they may have clearly given away the responsibility for fire safety to the operator. However it could be that the ‘Group’ retains charge of different aspects of day to day operation which could include fire safety. Very often contracts between such companies are not clear and thus problems do occur.  C says B is responsible and B says C is responsible.

[kurnal]

Yes I agree Speyside it will work in this way and a Court will always consider the circumstances of the case when sentencing. I dont think they have regard to article 33 in doing this, its part of the due process of Law.

I was referring specifically to the defence of Due Diligence as set out in Article 33. I think the intent of this is not to mitigate the punishment but to dismiss the charge against the RP. I think if you successfully use article 33 as a defence against a charge under the Fire Safety Order the only outcome could be case dismissed or not guilty.

And because of the over arching EU directives on H&S at work, its a defence that can never be used by an employer if he puts his employees at risk, for example by employing a dodgy contractor even if done in good faith.

Whereas an RP who is not an employer is not subject to the H&S directives and so could use it as a defence.

[Tom Sutton]

I have advised B to develop the outlines of the management strategy from the facilities perspective and get C to provide specifics such as evac plans, peeps etc. I think it must be that both B and C are RPs and pointed them at section 22.

I would agree with you and I don't think there would ever be a text book answer, shades of grey as you said, but you seem to have come up with a reasonable solution.

And because of the over arching EU directives on H&S at work, its a defence that can never be used by an employer if he puts his employees at risk, for example by employing a dodgy contractor even if done in good faith.

Whereas an RP who is not an employer is not subject to the H&S directives and so could use it as a defence.

The way I read it, is that an employer can use art 33 and blame any other person having control, except his employees.