SHE 10 – Fire safety enforcement lacks consistency
There is a huge problem in consistency in fire safety enforcement across England and Wales and a lack of guidance, but these issues could be remedied if fire safety was covered by the new Primary Authority scheme.
This was the message that Hilary Ross, a partner at law firm Bond Pearce, delivered at the SHP Legal Arena in what was another packed session.
Setting the scene for some of the problems she is encountering in this area, Ross said that both the European Court of Justice and the UK courts have made it clear that the aim of the health and safety regime is not to create zero risk, yet this is not always reflected in the way the fire authorities approach the fire safety regime.
“When the Regulatory Reform (Fire Safety) Order 2005 came into play [in October 2006], it was hoisted not just on industry but also on fire officers”, who she accepted were given no additional training, no additional guidance, and no support for the changes the law brought in.
However, she went on to describe a number of instances of bad practice that her clients have experienced when dealing with fire officers, as well as penalties for breaches in certain cases, which she argued are out of kilter with fines in other areas of health and safety.
In certain cases, fire officers are forcing clients to create fire safety documentation, which, said Ross, is a power they do not have under the RRO. Furthermore, she recalled an experience where one of her clients was asked for documents by a fire officer, who had a clear intention of pursuing a prosecution. She told delegates that “where you believe there has been an offence committed, you should caution the person, but that is not always happening”.
She also criticised fire authorities for handing out prohibition notices “like sweeties” – i.e. multiple notices when fewer would suffice – and for issuing them under a “delayed time of entry”. Under health and safety legislation, prohibition notices should only be issued if the risk to individuals is so serious that the operation needs to be stopped with immediate effect. Yet, the use of “delayed time of entry” in the case of fire safety prohibition notices, while suggesting that fire officers are attempting to be reasonable in their approach, is not good practice.
Enforcement notices (the equivalent of health and safety improvement notices) have also posed problems, with Ross highlighting a case where 91 alleged breaches of fire safety law were reported by the officer via multiple notices. She added that there is a “propensity to include things over and above the legal requirement”, leading to expensive ways of amending the breach being recorded.
Among some of the most high-profile prosecutions under the RRO, high-street retailer New Look was recently fined £400,000 and £136,000 costs. Ross pointed out that, given the fire did not result in any deaths, the fine was out of synch with those administered for breaches under the HSWA.
The case was heard on 11 May by the Court of Appeal, which reserved judgement. Ross said the Court has promised to provide guidance in relation to sentencing on fire safety offences, and that this can be expected in the next two weeks.
In summary, Ross said she thought that many of the problems in enforcement could be overcome if fire safety was covered by the Primary Authority scheme, which aims to bring a consistent and proportionate approach to enforcement for organisations that have sites in many different locations in the UK.
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SHE 10 – Fire safety enforcement lacks consistency
There is a huge problem in consistency in fire safety enforcement across England and Wales and a lack of guidance, but these issues could be remedied if fire safety was covered by the new Primary Authority scheme.
Safety & Health Practitioner
SHP - Health and Safety News, Legislation, PPE, CPD and Resources 
Another failure of fire authorities and their officers is to understand the definition of “Responsible Person” within the meaning of the Regulatory Reform (Fire Safety) Order 2005. Fire officers almost invariably try to identify a senior manager or director and ask if they re the Responsible Person. This is despite the fact that the Order quite clearly defines (Article 3(a)) the Responsible Person in respect of a workplace as the employer, which is defined in the Order as having the same meaning as an employer under the provisions of the Health and Safety at Work etc Act 1974. In most cases the employer will be a corporate organisation such as a company, a Council, a Health Trust etc.
Fire officers repeatedly confuse this duty holder concept with potential personal liaiblity of senior staff for offences committed by the employer due to their consent, connivance or neglect which is expressed in the Order in exaclty the same way as under the provisions of Sectoni 37 of the Health and Safety at Work etc Act.
I have already assisted an organisation in having an enforcement notice withdrawn because, despite the fact that the employing organisation was a company, the officer served the notice on a manager naming him as the Responsible Person.
I am not sure if there is a fundamental training error being made in the training of fire officers, but the wording of the Order coudl not be more plain, despite this fire officers repeatedly make this error and seem impervious to any attempt to correct them.
I find a huge variance between the approach of visiting fire officers. My organisation has a number of leisure venues throughout the UK and there is absolutely no consistency. It’s made worse by there being two standards in operation – the new BS9999 and the Building Regs (which are referred to extensively in the Governments Fire Risk Assessment guidance). I’m not surprised that this is reflected in the punishments handed out by the courts.
There can be very little doubt that fire safety enforcement lacks consistency, but there again its not alone because I also find that general safety also suffers from the same problem and having worked for a global company based in the UK I have seen many examples of this inconsistency.
As a Fire and Safety Consultant I acknowledge that this a great problem and also that there is no easy answer to this long standing problem and that whilst the Prime Authority scheme can help it will not provide the easy answer that some people think it will.
With my “safety hat” on and when in my own time if I see something which I know is very dangerous I will raise this with the occupier or owner and if they are willing to put the matter right that will be the end of it but if they take no notice or don’t reply I will send a copy of my concerns to the relevant enforcing authority and this is when it becomes interesting. Many authorities don’t even respond or provide an explanation and so I have to serve a Freedom of Information (FOI) Notice in order to ascertain what action they have taken to rectify the situation.
Let me now give you a couple of examples of these discrepancies which affect fire safety – a couple of years ago I was asked by the BBC to carry out an undercover survey of Hotel Fire Safety and one of the hotels that the BBC booked for me was so bad that it became a feature of the programme. There were many problems including corroded fire escapes, poor or non-existent fire separation, fire exit notices pointing the wrong way, fire doors held open and of a poor standard, poor housekeeping and incorrect procedures. This hotel was so bad that I notified the fire authority the next day and the action that they took was to discuss the problems with the owner and to stop the staff accommodation from being used. No other action was taken and shortly after this another consultant decided to visit a hotel in the same town and because there were no fire strips on the fire doors they issued an Improvement Notice – not exactly consistent treatment.
For the second example I would like to highlight the fire at the Penhallow Hotel in Newquay where 3 people died – would it surprise you to know that the Fire Authority has never issued an official public report into the fire and they have also never made available a copy of the Fire Certificate that they issued.
In a BBC programme about the fire I put forward my reasons for the rapid fire spread and before the programme went out the Fire Authority promised legal action to stop it being broadcast but it was broadcast and showed how the fire was able to spread throughout the building preventing escape.
Until all the authorities that are involved in both fire and health and safety operate a more open and transparent system of enforcement and are more accountable we are unlikely to improve matters for everyone’s benefit.
Alan Cox