04 July 2008
Hilary Ross

Heralded as the biggest overhaul of fire safety legislation in 40 years, the controversial Regulatory Reform (Fire Safety) Order 2005 (FSO) came into force on 1 October 2006.

Its aims were to streamline fire safety legislation, reduce the burden on businesses and improve safety by allowing fire brigades to concentrate on high-risk premises. The government was at pains to point out that where a fire certificate had been issued for premises (or they had been built to recent Building Regulations standards), it was unlikely that any significant improvements would be needed.

Nevertheless, businesses were concerned about whether they could rest on these assurances.

All change

The advent of the FSO raised various questions.

• Would compliance with the old legislation meet the FSO's standards?
• What approach would fire authorities generally adopt in enforcing the Order?
• What level of training would a "competent person" need?
• What circumstances would lead to a fire authority issuing an Alteration Notice?
• How seriously would the courts view breaches of the FSO?

There have been few cases of note since the introduction of the FSO and these offer limited answers.

Sparrow Hawk Hotel

In October 2006, under Article 30 of the FSO, Lancashire Fire and Rescue Service (FRS) issued three enforcement notices to a director of the Sparrow Hawk Hotel. The Notices required the hotel to provide an adequate fire alarm system, a suitable and sufficient risk assessment, and appropriate fire doors.

Sparrow Hawk Hotel appealed against the enforcement notices on three grounds:

• the person served with the enforcement notices was not the responsible person but rather a director of the company who was the responsible person
• the provision of fire detection in bedrooms and the requirement to provide appropriate fire doors of L2 specification (as per BS 5839 Part 1) in "risk rooms" were neither necessary nor appropriate in the circumstances
• no enforcement action had been taken under the old legislation before the FSO came into force.

A district judge heard the appeal at Reedley Magistrates' Court and held that:

• failure to take proceedings under the old regulations was irrelevant to whether or not the fire authority could now take action to enforce compliance with the FSO
• if compliance with the guidelines could not be proven then alternative measures of equal standard had to be taken; in the circumstances, compliance with L2 was appropriate.

As such, the judge decided the enforcement notices should stand. Unfortunately the responsible person issue was dropped.

Though this was only a magistrates' court case, it does give some indication of how the courts may apply the Order. It shows that a fire authority's failure to take action under the old legislation will not preclude action under the FSO. And, even if guidance on how to comply with the old legislation is not followed, it does not mean that there will automatically be a failure to comply with the FSO - provided it can be shown that "alternative measures of equal standards" are in place.

Sefer Enver

In January this year a Blackburn businessman was fined £12,000 after his warehouse was branded a "deathtrap".

He was prosecuted after failing to comply with an enforcement notice. He was charged with six breaches of the FSO, including failure to have a working fire alarm, emergency lighting or a fire risk assessment, and obstructing escape routes with flammable material.

Of particular significance was his lack of a fire risk assessment. The fire safety officer for Lancashire FRS warned: "We need to get the message across that it's the duty of every employer to carry out a full risk assessment. If they don't, we will take action."

The case illustrates that the first recourse of the fire authorities is unlikely to be prosecution, and firms will have the opportunity to rectify shortcomings. But if they don't comply, there's little doubt a prosecution will follow.

Co-operative Group

A recent high-profile case involved the Co-operative Group, which operates the Co-op supermarket stores. In this case, East Sussex FRS inspected a Co-op store in July 2006 and identified numerous breaches of the old legislation, including an inactive fire alarm, fire doors wedged open and escape routes used to store combustible materials (See Co-op burned £250,000 for 13 fire breaches).

In view of these failings, and a prosecution three months earlier for breaches of fire safety provisions, the fire authority inspected all the other Co-op stores within its jurisdiction.

Following these inspections, the authority decided to prosecute the company for 20 breaches of the old legislation, for failures varying from a complete absence of a fire alarm system in one store to propped-open fire doors, rusty escape ladders and insufficient fire detectors in others. The company pointed out it had acquired most of the stores from other retailers, but the fire authority did not accept this as mitigation, arguing the necessary work should have been carried out to bring them up to standard before trading began.

The fire authority was particularly critical of the fact the company had relied on local store managers to carry out risk assessments, even though they believed the managers lacked the necessary knowledge.

The court didn't comment specifically on these issues but committed the matter to the crown court for sentencing. The £250,000 fine imposed was significant given that there had been no death or injury and that such cases are normally dealt with in the magistrates' court, where the maximum fine is £5000 per offence.

Though the case was not brought under the FSO, it indicates that firms can expect high fines for fire safety breaches. It also suggests that defining what constitutes "competent"  is likely to be an ongoing issue.

On notice

There have been no reported cases concerning whether or not it was appropriate for a fire authority to issue an Alteration Notice. But some authorities have taken to issuing notices to certain types of premises, such as shopping centres and football stadiums.

Arguably, a blanket approach to issuing Alternation Notices could be subject to judicial review. However, many dutyholders have found comfort in the fact that the fire authority is involved in approving their systems and have therefore been reluctant to challenge notices. Rather, they tend to rely on them in the same way as they did fire certificates. Some may say this undermines the aims of the FSO, which was designed to remove the burden of certification.

There is some unease among multi-site companies that the new regime is being used by fire authorities to push for changes to fire systems that had been acceptable under the old legislation. This creates an inconsistent approach across the UK, which is costly for businesses. These concerns have not as yet been challenged in court but it's likely they will be.

Lessons learned

It's possible to draw the following conclusions from recent fire safety prosecutions.

• Employers still need clarification as to whether compliance with the old legislation equals compliance with the new. The Sparrow Hawk Hotel case indicates that failure to meet guidance on the old legislation will not in itself result in non-compliance with the FSO. That said, it will fall to prospective defendants to show they implemented alternative measures of equal standard.
• It seems likely that fire authorities will generally give dutyholders the opportunity to rectify problems to achieve compliance. But thereafter, failure to comply even where there has not been an incident will lead to prosecution.
• The level of training/qualifications expected of competent persons remains unclear. This issue requires urgent clarification and has ramifications not only for the FSO but also for health and safety legislation; it's common practice for multi-site companies to delegate day-to-day health and safety operations to managers.
• There appears to be inconsistency in the approach to Alteration Notices across the UK and again more clarity is required.

The objective of the Order was to make the approach to fire safety consistent with the approach to workplace safety generally, hence the cornerstone of the legislation is the requirement to complete a risk assessment. But inconsistency in interpreting the law presents a significant problem for dutyholders.

The FSO is still in its infancy and it's too early to assess whether it's achieving its aim to "maintain and enhance the protection afforded to users of premises (and others who might be affected by fire on the premises)". But it's arguable whether it is reducing the burdens on business, particularly because there is now uncertainty stemming from inconsistent approaches by fire authorities.

For this legislation to work successfully there needs to be harmonisation between fire authorities. The creation of a body, similar to LACORS (which advises local authority regulators) to provide guidance on the implementation of the law would provide a degree of harmonisation and help the legislation achieve its aims. 

In with the new

The main changes introduced by the FSO are as follows.

• The "responsible person": the responsible person is the person in control of the premises - usually the employer in a workplace, and the owner or occupier in other premises. Many premises will have more than one responsible person; employers, landlords, managing agents and tenants could all be responsible persons in a tenanted property and would be required to cooperate to fulfil their duties. The responsible person owes a duty to anyone on the premises and those in the immediate vicinity who may be at risk.
• The "competent person": the responsible person must appoint one or more competent persons to help discharge fire safety duties, such as implementing firefighting measures and evacuation procedures. A competent person is someone who "has sufficient training and experience or knowledge and other qualities...". The level of training is not prescribed, which has led to ambiguity. Some commentators have taken this to mean they must have formal qualifications (such as the NEBOSH Fire Risk Management Certificate), but for businesses with multiple premises this would not be reasonably practicable. In practice, businesses such as retailers appoint their store managers as competent persons and, though trained, these are unlikely to have formal health and safety qualifications. Until there is guidance on this point or a decision by the courts, the criteria allow different interpretations.
• Additional enforcement powers: the FSO grants enforcement authorities the power to issue Alteration Notices. These may be served where they believe the premises pose an actual or possible serious risk if any changes are made to them. Serving an Alteration Notice means the fire authority can intervene before any changes that might significantly increase the fire risk, but there is a distinct lack of guidance on what constitutes high-risk premises. During the drafting of the legislation, this process was described as a "discretionary" Alteration Notice. Interestingly, in the finalised legislation, an Alteration Notice is considered a means of enforcement.

Hilary Ross and Melissa Jones are partners at law firm Bond Pearce, www.bondpearce.com

Categories:
Fire, Article, Enforcement (prosecutions), Enforcement (prosecutions)



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