Responsible Person in Shared Demise

[Messy]

I understand that for a multi-occupied building, each occupier should be carrying out a FRA of their demise, common parts and MOEs, and the Landlord, should also FRA the MOEs and common parts. Pretty straightforward when you get something like a shopping centre with clear demarcation between demises.

But what happens when two RPs share the same demise?

For example, a public building operated under a PFI arrangement. Both the staff from the public body and the PFI provider are employers and both have control. Do they complete separate FRAs covering the same parts of the premises? (seems a bit daft!), or does one take supremacy?

I have come across what I believe may be an anomaly in that in a case similar to what I have described. The PFI company have carried out a FRA as part of their contract. They show themselves as RP, even though 99% of staff in the premises are employed by the public body. The public body have not carried out an FRA and are banking on the PFI FRA as covering their responsibilities.

My view is that both need to carry out a FRA and then communicate their findings under Article 22. Am I right?

[AnthonyB]

I'd say they both do, this sort of thing isn't to uncommon with some of the PFI built health/community centre projects, often centred around a GP clinic, pharmacy and sometimes a further public service (in one case a library).

Often the common areas are very limited and may include a lobby, a plant room, utility intake and by way of control via legal agreement the fire alarm, the PFI has no staff on site and just has their agent visit every now and then and contracted maintenance engineers attend for PP on the services in the building they have retained control over.

The PFI risk assessment is usually very simple due to the limited control and the other various RP's are expected to have their own FRAs as both employers and persons having control, but you do sometimes get some that assume you are doing it for them in the owner's FRA for which they are gently re-educated.

[Tom Sutton]

My interpretation of Messy's scenario would be,
  
The public body is the employer and under article 3a is the Responsible Person (RP), which means under article 5(1) the RP has a duty to implement article 8 to 22. The RP has responsibility to the employees and relevant persons (All persons who have legal right to be on the premises).
 
The RP can allow other persons/organisations (PFI provider) as Persons Having Control (PHC) to take on the duties of individual articles/part of. Under article 5(3) the PHC have a legal duty to implement those articles. There is no limit to how many of the articles, the RP is responsible for, can be done by a PHC.

The RP can allow the PFI to conduct the fire risk assessment, as a PHC, but the final say is the RP.

In addition providing the RP has done everything in his power to ensure the PHC carries out his/her duties the RP has a defence under article 33.

Another point the Landlord, does not have to FRA the MOEs and common parts that is the responsibility of the RP's as it form part of the workplace.

[kurnal]

Messy in response to your original post I understand that whilst the PFI have carried out an FRA as part of their contract,  the public body have not. I think it is quite legitimate for the task to carry out an FRA to be delegated by contract to another party, but  the employer remains accountable as the duty holder and must ensure that both the contract to carry out the FRA and the FRA itself are robust, suitable and sufficient. It sounds like in this case  the public body have not been sufficiently diligent in these regards.

Thanks to Tom for his interpretation with which I agree. However I would suggest that in most multi-occupied buildings there generally remain areas that remain under the control of the Landlord as we have discussed in previous recent (and banal?)  threads.

[Fishy]

My view is that both need to carry out a FRA and then communicate their findings under Article 22. Am I right?

...I agree.  They are both RPs (to the extent of their control over the premises) and each should carry out an assessment of fire risk relevant to that extent.  As others have said, as an RP one can delegate the task, but not the legal responsibility.

[Tom Sutton]

I don't agree the hospital, library, is the principal employer and the RP, the PFI organiser is a person having control not the RP, like many other outside contractors.

[Mike Buckley]

I disagree with Tom. This is one of those sticky issues where there is more than one RP. If we look at both a hospital and a library both of these institutions may not be the RP on the grounds that they are part of a larger organisation i.e. a Health Authority or a Council. Similarly the PFI as PHC is also a Responsible Person. There is a similar situation in some hotel chains, where the hotel chain may lease the building from a building management company acting on behalf of the owner where you can have all three levels of RP, the employer, PHC and the building owner, bearing in mind there can be two PHCs (the hotel chain and the building management company).

Hence as kurnal says all the RPs have a duty to ensure that a suitable and sufficient FRA is carried out, however it does not mean that all the RPs have to carry out an individual FRA just that the FRA is suitable and sufficient for their purpose. For example in a hospital if the PFI carries out an FRA that takes follows ADB but ignores HTM 05 the FRA is clearly not suitable and sufficient for the purposes of the hospital.

You need to bear in mind that part of the aim of the RRO was to ensure that people could not evade their responsibilities and I would suggest the attitude of the Fire Authority would be "let's prosecute the lot and let the courts sort it out!"

[Tom Sutton]

Mike there is only one RP for each workplace, in a single occupancy there is one, in a multi-occupancy the is one for each workplace. Article 3a defines the employer as the RP (person in sole charge) in a workplace if it is not a workplace then article 3b defines the owner or the managing agent the RP.

Article 5 defines the duties a RP as a duty to implement all articles 8 to 22 a PHC only implements specific articles.

Alright Kurnal I have had my say I intend backing out now or should I say I rest my case.

[JT]

Tom has this one completely correct. Having said that, I know of one authority that interprets the legislation in line with the other comments.
My view is that if there is a workplace the employer should carry out an fra and any findings that are the responsibility of the owner/ landlord should be relayed to them and implemented.

So if a notice was issued it should be on the employer 3(a) and only on the 5(3) person if they do not implement any fra findings provided to them.
Carrying out 2 fra's of the same premises is absolutely ridiculous.

No workplace then this is as Tom has stated.

From my experience I see quite a bit of inconsistency of enforcement in this area.

[Fishy]

Will be interesting to see what others think... but I do fundamentally disagree with both Tom and JT.  Entirely possible - indeed routine - to have more than one RP within the same premises (or the same part of a premises).  They're each an RP to the extent they have control over the particular fire risk reduction measures they're responsible for, & their responsibilities don't necessarily end at the boundary of the part(s) of the premises they normally inhabit.  It also means there could quite legitimately be multiple risk assessments covering the same part of a premises, each covering the respective RPs particular obligations.  If they choose to co-operate and cover it all in one, then that's fine (so long as it is suitable & sufficient for both and they co-operate in its maintenance and review).

Though I'm getting old and my brain cells aren't what they used to be, I'm fairly sure that I recall discussing just this point with Andy Jack (the gentleman who ushered the RRO through Parliament) & he confirmed the 'multiple RPs' principle (as well as the "Responsible Person won't normally be a person" issue)!  it was over a pint, though, so perhaps the reliability of that recollection is not to be entirely trusted!

[Jim Scott]

Though I'm getting old and my brain cells aren't what they used to be, I'm fairly sure that I recall discussing just this point with Andy Jack (the gentleman who ushered the RRO through Parliament) & he confirmed the 'multiple RPs' principle (as well as the "Responsible Person won't normally be a person" issue)!  it was over a pint, though, so perhaps the reliability of that recollection is not to be entirely trusted!

If there are two employers, yes.

In the case of a workplace, the employer is the RP. Simple.

[Fishy]

Though I'm getting old and my brain cells aren't what they used to be, I'm fairly sure that I recall discussing just this point with Andy Jack (the gentleman who ushered the RRO through Parliament) & he confirmed the 'multiple RPs' principle (as well as the "Responsible Person won't normally be a person" issue)!  it was over a pint, though, so perhaps the reliability of that recollection is not to be entirely trusted!

If there are two employers, yes.

In the case of a workplace, the employer is the RP. Simple.

... with the slight modification that according to Regulation 3 (a) it is only the employer "...if the workplace is to any extent under his control..." - I agree.

...and if the premises isn't a 'workplace', then regulation 3 (b) kicks in.

[Jim Scott]

Paraphrased from the CFOA perceived insights document.....

"It is difficult to envisage a scenario where a workplace would not be under ANY control of the employer"

So unless this is defined by case law, then it sits comfortable with me.

[Tom Sutton]

Jim this could apply in a multi-occ where the RP is in control to any extent of his own workplace not the other workplaces.

[Fishy]

...or you could be employed to survey an unoccupied building owned by a third party (as another example).