Responsibility for risk assessing under the RRO

[Big T]

This question must have come up before.

In premises that we own, but don't manage, is it the landlord or the managing agent onsite responsible for the actual FRA?

1.It would be generally accepted that in commercial it is obvious. IE, i own a row of shops, Burger King, mcdonalds and ann summers rent the space. They do the FRA. I maintain the alarm and sprinklers and undertake works required of me within the managing agreement. (IT worries me that under pressure i chose those 3 shops for this example)

Question is.......In a premises that I own, that houses 3 people with learning difficulties, that MENCAP manage day to day surely they do the FRA and I maintain my obligations as above? and In a block of flats i own, that is managed by a managing agent, they do the FRA and and I maintain my obligations as above.

Is it as simple as that or not?

[nearlythere]

This question must have come up before.

In premises that we own, but don't manage, is it the landlord or the managing agent onsite responsible for the actual FRA?

1.It would be generally accepted that in commercial it is obvious. IE, i own a row of shops, Burger King, mcdonalds and ann summers rent the space. They do the FRA. I maintain the alarm and sprinklers and undertake works required of me within the managing agreement. (IT worries me that under pressure i chose those 3 shops for this example)

Question is.......In a premises that I own, that houses 3 people with learning difficulties, that MENCAP manage day to day surely they do the FRA and I maintain my obligations as above? and In a block of flats i own, that is managed by a managing agent, they do the FRA and and I maintain my obligations as above.

Is it as simple as that or not?

I would suggest the following.

The responsibility lies with the employer or person who to any extent has control. As you point out occupiers may not be employers but they would still have persons who to any extent have control.
I would suggest you do not have control of it's use. That is the occupier, Mencap, unless there were common issues outside of its control.
Do Mencap reckon you are responsible for it?

In your block of flats I would suggest you have responsibility for the FRA but you have employed someone to assist you with your duties - the landlord.

The landlord is your agent and is managing the building on your behalf.
IMHO of course.

[Tom Sutton]

Question is.......In premises that I own, that houses 3 people with learning difficulties, that MENCAP manage day to day surely they do the FRA and I maintain my obligations as above? and In a block of flats i own, that is managed by a managing agent, they do the FRA and and I maintain my obligations as above.

IMO most of these types of premises have carers employed; in this case MENCAP is the employer therefore it is a workplace and art 3 (a) applies, consequently MENCAP is the RP and their duties under art 5 (1) would be, they must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises.

If the owner has taken control of certain articles then he/she is subject to 5(3)

“5(3) Any duty imposed by articles 8 to 22 or by regulations made under article 24 on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person referred to in paragraphs (1) and (2), who has, to any extent, control of those premises so far as the requirements relate to matters within his control.”

When this is the situation the RP can use art 33 as a defence if prosecuted.

As for the common areas of flats the managing agents would be the RP by virtue of art 3(b) (1) and their duties as art 5(2). The owner’s duties would remain the same as above.

I think!

[Big T]

Thanks both.

It is pretty much as I thought and presumed and advice received elsewhere reflects those opinions.

for the record, MENCAP was merely the example as they are a well known and respected care provider. They are not involved.

Thanks again

[Mike Buckley]

Just to add abit of spice to the issue, remember that there can be more than one responsible person for a building and there is the duty for the responsible persons to co-ordinate and co-operate.

So in your example of the three shops, IMHO yes they need to do the FRA for the premise under their control, however you or your agent may to do an FRA for the comunal bits. ie if the shops were vertical neighbours you would be responsible for the common escape routes.

You already have some responsibility as there is a common alarm and sprinbkler system.

[Tom Sutton]

Mike, the workplace extends to the common areas so the FRA in the common areas is the responsibility of the RP's. Check out the definition of a workplace (art 2).

[AnthonyB]

Except most tenant FRAs stop at the entrance to their demise and ignore common areas......

Managing Agents have control of these areas and thus undertake FRAs of these areas and will coordinate fire safety throughout the premises, as well as providing and maintaining general fire precautions such as the communal fire alarm.

[Tom Sutton]

I agree Anthony and that makes a lot of sense but it is not what the definition of a workplace says in the RR(FS)O if your employees have access to the common areas they are part of your workplace.

[Midland Retty]

I agree Anthony and that makes a lot of sense but it is not what the definition of a workplace says in the RR(FS)O if your employees have access to the common areas they are part of your workplace.

You're right Tom, and their employer has a duty to ensure that the whole of that workplace (inc. common areas) are safe. However the employer may not have control over the communal areas, that may fall to the landlord or managing agent. That's where it can all get a bit messy. This is why Article 22 co-operation ad co-ordination was included in the order. But even then things can still be messey.

For example lets say our tenant employer notices that a final exit door in the communal area has been secured by chains and a padlock. He contacts the managing agent and about it. The managing agent  tells him the lock is there for security and that they will get a key to him within the next few days.

The managing agent is in the wrong by locking the exit. But that doesn't absolve the tenant employer of his responsibilities.

The tenant employer now has to assess if that locked exit puts his staff at risk. If it does then he must do something about it. He can't remove the padlock and chains, there are no other fire exits available, so he may have no other option but to send his workforce home until the matter is reolved. Ok a bit far fetched but it demonstrates the point.

[AnthonyB]

Tom, Midland, you are both right, I am just sadly reflecting that in real life when visiting tenants for Article 22 purposes many who have an FRA stop at their entrance, despite relying heavily on common escape and alarms (it's not uncommon for the alarm section to read 'landlord's responsibility' with no attempt at assessing if the common system is actually adequate for their specific needs)

[Midland Retty]

Tom, Midland, you are both right, I am just sadly reflecting that in real life when visiting tenants for Article 22 purposes many who have an FRA stop at their entrance, despite relying heavily on common escape and alarms (it's not uncommon for the alarm section to read 'landlord's responsibility' with no attempt at assessing if the common system is actually adequate for their specific needs)

Absolutely, very common problem, and some landlords / managing agents are no better - they can be poor at commincating deficiences or risks to their tenants.