Enforcement Notice

[leejr71]

Hi can anyone help
What is the maximum number of times or length of time a Fire Authority can extend an enforcement notice issued under the FSO if it appears progress is being made

Thanks

Lee

[Dinnertime Dave]

There isn't a maximum number of times Lee. Mostly I give 3 months to do the work but expect to extend it a couple of times if there is a lot or complex work to be done. It would be easier for me to give 6 months before going back but I had a few business who did nothing for five and a half months so they end up taking up to 12 months to get stuff done. Shorter periods give me more control.

[kurnal]

Enforcement notices are a very powerful tool especially post the appeal window. Whilst Dave is correct in that there is no limit to the number of extensions there are good reasons to get the timescales right first time as failure to comply is an offence, but repeated extensions may be seen as a mitigation of this if legal action has to be taken eventually. If you need to keep extending it then either the RP is not co-operating, the time scales were wrong ( too long can detract from the impact, too short means extensions are inevitable ) or maybe the EN was the wrong solution?  Perhaps informal enforcement would have been more appropriate if you are prepared to let the situation continue long term?

[Mike Buckley]

I disagree with you kurnal. Extending the time period is at the discression of the enforcing officer/authority it is not driven by the RP. In my view three months is about correct if the RP is not cooperating then the enforcers have a tool to take action to make the RP do the work. On the other hand if the work will take more than the period to carry out, then the RP has to touch base with the enforcers and explain why he wants an extension. In either case the enforcers still have a control.

If we take a major company for example and major work it will take time as the RP will have to get a number of quotes for the work, get approval and finacne from head office etc. all of which will take more than the average three months. It is quite right that the RP will have to apply for an extension and state the reasons. It also gives the RP a tool to push his superiors.

I would hope that an estension is not a given, apply for it and you will get it, no questions asked. A request for an extension should result in a telephone call at least if not a visit.

[K Lard]

If there any old gits out there like me you may remember the Steps Notice under The Fire Precautions Act 1971. There was a Fire Service Circular which gave suggested timescales for work to be carried out - I think it was something like 6 months to a year for structural alterations and 3 months for fire alarms. Unfortunately there is little guidance now to ensure consistency across the enforcing authorities.

[Dinnertime Dave]

If there any old gits out there like me you may remember the Steps Notice under The Fire Precautions Act 1971. There was a Fire Service Circular which gave suggested timescales for work to be carried out - I think it was something like 6 months to a year for structural alterations and 3 months for fire alarms. Unfortunately there is little guidance now to ensure consistency across the enforcing authorities.

Whilst I remember the FP Act never did a steps notice, but I'm younger than I look. What you describe is similar to an agreed action plan. Used where both sides agree a time scale for works to be done. Will have different times for items issued in lieu of an Enforcement Notice.

[AnthonyB]

Extensions came under scrutiny in the FP Act days after Woolworth's were given a total of 2 and a quarter years extension over 5 extension notices for their initial fire certificate and during that last 90 days the infamous fire occurred.

It was concluded that F&RS should bring more pressure to bear on companies to complete works needed for certification or enforcement notices rather than just extend & extend.

Sensible extensions, based on suitable evidence, are of course reasonable, we have helped our clients ask for these in the past and provided a suitable rationale and evidence that progression is under way as oppose to trying to get an extension due to simply 'treading water' with respect to the task.

[kurnal]

In response to Mike (with whom i generally find myself in full agreement) I stand by my posting. As in Anthonys post above I have seen a court case in which the fire authority, having issued a steps notice under the former legislation, gave the uncooperative RP (who in the event  probably had no intention of compliance from the outset) the benefit of the doubt and too many repeated extensions. When patience finally expired the case was taken to court and the beak found in favour of the RP, saying that the risk cannot have been so serious if the fire service were prepared to let it go on so long before bring it to court..     

[Dinnertime Dave]

When patience finally expired the case was taken to court and the beak found in favour of the RP, saying that the risk cannot have been so serious if the fire service were prepared to let it go on so long before bring it to court..     

It may work the other way now, offence would be failure to comply with an Enforcement Notice - relatively easy to prove.

"Your honour, clearly we have given the RP every opportunity to comply with the Notice and as a last resort we find ourselves before the court today"

[kurnal]

I agree that the failure to comply should make it an open and shut case.

On the other hand ......

The Beak could point out that if the risk to relevant persons was indeed so high as to warrant enforcement and subsequently a court case, what other powers did the fire service have to reduce the level of risk and why were these powers not used? Why did the fire service allow persons to be placed at risk and continue to prolong this by repeatedly  extending the time allowed? The fire service has tolerated the level of risk for a long time. Does this not indicate that perhaps the risk was not so high as to justify the use of the enforcement notice in the first place? Case dismissed.

[Mike Buckley]

It would seem to me that there are two scenarios here, one is based on AntonyB's comment where progress is being made and the F&RS should have evidence that this is occuring, the other is kurnal's uncooperative RP who has no intention of carrying out the work.

In the first case the answer to the Court is 'we have been in contact with the Responsible Person and we are satisifed that he is taking steps on a reasonable basis to conformn with the notice, hence why we gave an extension'. In the second case the response would be 'we have no evidence that the RP is taking any steps to conform with the notice hence we are here today'. It must all be based on communication with the RP.

Like many of you I have been involved in cases where the F&RS have sent notices etc. to a client and my advice has always been for the client to keep in touch with the F&RS and keep them updated on what they are doing and involve the officer concerned. The problems have always occured when the client has put the notice to one side and ignored it.

Theer is also the scenario in particular with the larger organisations where the local manager may not have the power to comply with a notice, where the F&RS should consider serving the notice on the MD of the company and not on the local manager. One of the problems with the FP Act was the difficulty of actually identifying who was responsible as was clearly shown in the Rosepark fiasco.

[Dinnertime Dave]

Theer is also the scenario in particular with the larger organisations where the local manager may not have the power to comply with a notice, where the F&RS should consider serving the notice on the MD of the company and not on the local manager. One of the problems with the FP Act was the difficulty of actually identifying who was responsible as was clearly shown in the Rosepark fiasco.

Enforcement Notices are always served on RP. The local manager may get a copy. Problems generally occur when NOD are sent to local managers who don't pass them on. Depending on the company staff & managers bonuses are sometime dependant on having no enforcement actions against the branch.

If you were the manager would you pass it on? I always send all correspondence to head office, experiance  tells me it is the way to get thing done.

[Messy]

Uncooperative RP or unrealistic time scale?  Sometimes it's matter or perspective.

When I was an IO, my team were sympathetic and tried to be reasonable, but had very little understanding of the commercial or procedural difficulties involved with complying with some of the larger changes that may form part of an enforcement notice. For example, 3 months to carry out significant work to a fire alarm system may seem more than reasonable to many IOs who have little or no experience in procurement matters. For public authorities, such procedures can take much longer. And with private companies (especially SMEs) there's no point causing extreme financial hardship.

I was a huge advocate of extending the time given - perhaps several times- if the RP could demonstrate he was making reasonable progress. Plus, what fire service would want to risk a potentially expensive prosecution if, with some patience, the notice will be complied with just by some gentle nudging by the IO?

[Mike Buckley]

Yes I agree with you Messy.

The issue of procurement is one that does need to be seriously considered, I carry out FRAs and FRA reviews for a nationwide chain and I know I have to complete the work by the end of September because any later than that the majority of the issues will not be addressed as next year's budget has already been prepared and sent up for approval and will have to wait for the following year. Obviously there are procedures in place for emergencies and correcting dangerous issues but invoking these is a matter of last resort and will invariably result in inquiries from higher management.

I would also agree that a prosecution should be the last resort as it is expensive, complex and the potential for the fire service to end up with egg on its face is very high. Where I have seen the prosecution documentation my main impression is that a good lawyer could probably get the case dismissed on procedural and legal interpretation grounds. The cases normally end up with a bargaining match where the defendant pleads guilty to a few of the charges and the rest of the charges are dropped.

However having said that there is a need for teeth in the process, whilst the majority of RPs will respond to nudging, there are some who will want to take it to the edge and over if it means they think they can get away with it.

[Dinnertime Dave]

The cases normally end up with a bargaining match where the defendant pleads guilty to a few of the charges and the rest of the charges are dropped.

You've just summed up the entire British legal system.