Risk Assessment (Fire (Scotland) Act)

[Owain]

Scottish law applies.

T (tenant/occupier) has an office building, which has had change of use to office from former use and appropriate buildings works done. There is no Certificate of  Completion under the Building Standards issued, but the local authority has issued a Certificate of  Temporary Occupation and the building is occupied. T is a large  employer and has a senior manager with responsibility for Health & Safety.

T does not carry out a formal fire risk assessment as the building is "still in building works".

The Fire (Scotland) Act 2005 [2] states:

Duties in relation to relevant premises
 54 (1) Where a person has control to any extent of relevant premises
 the person shall, to that extent, comply with subsection (2).
 (2) The person shall-
 (a) carry out an assessment of the relevant premises for the purpose
 of identifying any risks to the safety of relevant persons in respect
 of harm caused by fire in the relevant premises; and
 (b) take in relation to the relevant premises such of the fire safety
 measures as in all the circumstances it is reasonable for a person in
 his position to take to ensure the safety of relevant persons in
 respect of harm caused by fire in the relevant premises.

Scottish Government guidance [1] states:

The duty to carry out a  risk assessment applies to employers and others who have control of  premises. There is no deferral of time specified in the legislation -  this means that the duty applies whenever you have control of the  premises.

T states that he is not in breach of the legislation because a certificate of temporary occupation has been issued and the building  would not have been granted such a  certificate if there had been any problems relating to assessment of  fire risk.

Is T in error and has T committed an offence under s. 54 and s. 71  [3] ?

Offences
 72 (1) If-
 (a) a person fails to carry out a duty to which the person is subject
 by virtue of-
   (i) section 53;
  (ii) section 54; or
 (iii) section 55; and
 (b) the failure to carry out the duty in question puts a relevant
 person at risk of death, or serious injury, in the event of fire,
 the person shall be guilty of an offence.

I am fairly sure this is the case but ideally I would like a definite pointer to something which shows that the Occupancy Certifcate under Building Standards is not the same as and does not meet the requirements
for a fire risk assessment.

Scottish Goverment guidance [4] states:

"108. Monthly: ... Carry out
 brief visual check of fire extinguishers and hose reels to ensure
 there are no obvious faults" and "116. Records of the maintenance and
 testing recommended in paragraphs 105 to 111 above, should be made and
 retained. ... Records .. should include:
 Fire alarm systems, including weekly alarm tests and periodic
 maintenance; ...
 Fire extinguishers, hose reels and fire blankets etc;"

T does not keep any written records of visual checks of fire  extinguishers. A fire extinguisher is reported missing and is still  missing 10 weeks later. T does not keep written records of the report  of the missing extinguisher. Despite a missing fire extinguisher being  reported, when T does subsequently carry out a risk assessment, the  missing extinguisher is not noticed or recorded on the risk  assessment. (Another wrongly positioned extinguisher is recorded - the assessor visually inspects other extinguishers.) T has a service contract where the extinguisher will be  next inspected and serviced in 2012.

Has T committed an offence in failing to keep records, and under what  section, or is the failure to keep records merely inability to  demonstrate compliance with other legislation? Is the designated H&S
 manager, or the employee who carried out the risk assessment, also  committed an offence?

[1] http://www.firelawscotland.org/v25e5e.html?pContentID=243

[2] http://www.legislation.gov.uk/asp/2005/5/section/54

[3] http://www.legislation.gov.uk/asp/2005/5/section/72

[4] http://www.firelawscotland.org/files/OSG-index.html

[nearlythere]

Regulations 8 & 9 for recording of measures?

[Tom W]

In the nicest possible way if this is actualy problem and not theory then you need a consultant and should pay for their services not try and get it for free off a forum with anonymous posters.

[Owain]

Regulations 8 & 9 for recording of measures?

Thanks; do you have a link to those Regulations?

[Owain]

In the nicest possible way if this is actualy problem and not theory then you need a consultant and should pay for their services not try and get it for free off a forum with anonymous posters.

This is a real problem which is being denied by "T" but I have no commercial relationship with "T". (They're not my tenant or anything like that.)

However that won't help me if the building "goes up" when I'm in it or any of their other buildings which is why I'm concerned about lack of competent safety management.

[nearlythere]

Regulations 8 & 9 for recording of measures?

Thanks; do you have a link to those Regulations?

http://www.legislation.gov.uk/ssi/2006/456/made

[Owain]

Regulations 8 & 9 for recording of measures?

Thanks; do you have a link to those Regulations?

http://www.legislation.gov.uk/ssi/2006/456/made

Thank you, there's some meat in there.  I think the belated Assessment covers Recording of Measures in 8 and 9, but 16 Maintenance "are maintained in an efficient state, in efficient working order and in good repair." would suggest the need for recording of ongoing visual inspections etc.

[nearlythere]

Regulations 8 & 9 for recording of measures?

Thanks; do you have a link to those Regulations?

http://www.legislation.gov.uk/ssi/2006/456/made

Thank you, there's some meat in there.  I think the belated Assessment covers Recording of Measures in 8 and 9, but 16 Maintenance "are maintained in an efficient state, in efficient working order and in good repair." would suggest the need for recording of ongoing visual inspections etc.

16 is Maintenance. Is 8 & 9 the recording of the measures which have been or will be taken ie. maintenance of measures ie. testing and servicing of fire safety measures e.g. extinguishers , fire warning system etc?

8.  As soon as practicable after an assessment has been carried out or reviewed, the person with duties under section 53 or 54 must record the information specified in regulation 9 where–
(a)he or she employs five or more employees; or.
(b)a licence or registration under an enactment is required in relation to the relevant premises; or.
(c)an alterations notice requiring this by virtue of section 65(6)(a) is in force in relation to the relevant premises..
Specified information

9.  The specified information is–
(a)the significant findings of the assessment, including the measures which have been or will be taken by the person having duties under section 53 or 54 pursuant to Part 3 of the 2005 Act and these Regulations; and.
(b)any relevant person or group of relevant persons identified by the assessment as being especially at risk from fire

Thank you, there's some meat in there.  I think the belated Assessment covers Recording of Measures in 8 and 9, but 16 Maintenance "are maintained in an efficient state, in efficient working order and in good repair." would suggest the need for recording of ongoing visual inspections etc.