05 June 2009
Lucie Ponting

"Bedding down well," is the official verdict of a government-commissioned evaluation of the Regulatory Reform (Fire Safety) Order, which concludes that businesses and enforcers are embracing the risk-based approach and see it as an improvement on the previous regime.

But this optimistic picture of progress so far is at odds with the practical experience of fire industry insiders. "I'm very sceptical about how the Order is bedding in and how it's being enforced," says Dr Bob Docherty, director of Flamerisk Safety Solutions and secretary general of the Institute of Fire Safety Managers (IFSM). "I think a lot people still don't know about it and don't know about its consequences." The Fire and Rescue Authorities (FRAs) estimate that up to 40% of organisations are still unaware of the Fire Safety Order (FSO) two-and-a-half years after its introduction, especially small businesses.

Along with industry colleagues, Docherty is especially worried about inconsistencies in enforcement.

"The Fire and Rescue Authorities have had a problem with their changing role," he says. "As consultants looking in, we see no consistency. In a brigade, in one area, fire safety officers say one thing; in another, they say something different. And policy in one brigade is entirely different in another."

Cultural adjustment

The FSO is based firmly on the principle, already familiar to health and safety practitioners, that those responsible for activities giving rise to risk are best placed to control that risk.

"The old way was that the fire brigade would come in and draw up a plan for you; effectively the fire service ran fire safety for you," says Terry Inglefield, director of STK Fire and Risk Management. "This doesn't happen
any more."

The official evaluation (www.lexisurl.com/tv2ed), conducted on behalf of the Department for Communities and Local Government (CLG), says most fire services have responded well to this cultural shift and are training officers in more flexible risk-based audit approaches. Most of the "responsible persons" surveyed during the research (those with overall responsibility for ensuring fire safety at their premises) reported that FRAs were helpful, reasonable and open to discussion; one large enterprise highlighted the willingness of its local service to consider non-standard, engineered solutions. But other businesses queried whether the enforcing authorities have enough understanding of the concept of risk yet.

"Under the old legislation," says Inglefield, "it was about making the building as safe as you could, as far as the building goes. But it didn't cover how people act in a building, what they do, or how they are trained."

The new approach is about factoring in  the likelihood of fire.
"Unfortunately, many in the fire services have still not shaken off the mantle of belt, braces and string," Inglefield observes. "They still do their audits based on old requirements, with no cognisance of risk. They are trained in a prescriptive rule-book-based regime and they haven't moved on."

Bricks and mortar

For Docherty, another problem is that officers don't appear to understand the relationship between the FSO and Approved Document B (Fire Safety) for the erection, extension and material alteration of buildings under the Building Regulations.

"I've had a number of cases involving buildings built to Document B," he says, "and then on day one of occupation, the fire brigade has threatened an enforcement notice, despite having been involved in the consultation process all the way through. The person left most bemused by this is the 'responsible person', who is being let down by the legislation, the fire service and building control."

Another key problem for responsible persons and their advisers is varying standards of enforcement.

"In the audit process there are too many inconsistencies in the way officers work," says Inglefield, "and it's not just between brigades and regions but also within brigades. In one area, he says, a fire safety officer is banning schools from keeping gym mats in the main hall instead of in a fire-resistant store. Twenty miles away, another officer is not at all interested in gym mats but is focusing on coats kept in school corridors. "If brigades can't get their acts together, how can responsible persons expect to get it right?" he asks. "It's not individual officers at fault but rather a lack of strategic direction."

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Audit and enforcement

Fire and Rescue Authorities (FRAs) enforce the Fire Safety Order through locally determined, risk-based programmes of audit visits, which are part of their wider Integrated Risk Management Plans. All authorities are expected to enforce the FSO in line with the principles set out in the Enforcement Concordat for regulatory authorities issued by the Department for Business, Enterprise & Regulatory Reform.

During 2007-08, FRAs undertook over 68,000 fire safety audits, of which 60% were satisfactory. Activities in the remaining 40%, judged as unsatisfactory, led to:

• more than 29,000 informal notifications
• 3840 enforcement notices
• 443 prohibition notices
• 57 alteration notices
• 42 prosecutions under Article 32 (failure to comply with any part of the Order).

FRAs audited an estimated 29% of care homes, 27% of hotels, and 18% of hospitals, compared with just 5% of shops and 4% of offices.

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By the book

Along with the Order, the government produced a series of guides to help "responsible persons" meet their duties (www.lexisurl.com/1wakl). (In fact it was the delay in getting these guides to press that is believed to have caused one of the postponements that pushed the new law into late 2006.)
Though the CLG evaluation concludes that most businesses find the guidance comprehensible, appropriate and useful, some FRAs and businesses said they felt it could be daunting for lay people.

"As a consulting business, we find them very useful," says Inglefield. "But they are written by fire officers for fire officers." His other main concern is that some FRAs are interpreting the guidance as prescription, rather than advice: "You have to remember, it is just guidance; there may be more than one way to comply. But the fire service tends to take the view that guidance is the law, the bible."

Docherty has had similar experiences. Referring to a section in the residential homes guidance about complete evacuation in two-and-a-half minutes, he says: "This is quite clearly nonsense; in the middle of the night with minimum night staff, this is unrealistic."

Yet, he has come across fire safety officers using this section to try to impose other requirements such as sprinkler systems.

Some of the FRA respondents in the CLG research admitted that they are struggling to strike a balance between their enforcement and advisory responsibilities. Docherty recognises this dilemma but he is worried that the balance has now flipped completely, from brigades being very helpful to not being helpful at all.

"Officers say, 'it's not up to me to prove it's dangerous; it's up to you to prove it's not', which can end up in endless circular arguments."

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A single regime

The Regulatory Reform (Fire Safety) Order 2005 consolidated more than 100 pieces of legislation. It repealed the Fire Precautions Act 1971 and revoked the Fire Precautions (Workplace) Regulations 1997.
Its key objectives were to:

• streamline and clarify legislative requirements
• create a regime based on risk assessment, fire prevention and mitigation
• increase compliance
• focus the resources of fire and rescue authorities on premises representing the highest risks
• ensure fire safety facilities and equipment are well maintained.

The Order's main features are:

• a single, simple fire safety regime applying to all workplaces and other
  non-domestic premises
• a risk-assessment-based approach, with responsibility for fire safety resting with a "responsible person"
• the abolition of prescriptive fire certificates
• the inclusion of some self-employed people and parts of the voluntary sector in the regime.
  

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Knowledge gap

Ian Purcell, head of fire safety legislation enforcement at West Yorkshire FRA, still comes across demands for more prescriptive advice. But generally, he finds that responsible persons are responding well to the requirements, "especially if we point them in the right direction".

Some are afraid of the risk assessment, he believes, but most businesses have had to do assessments since 1997. In the main, the idea of the FSO is to make things simpler, not more complicated, and larger companies have realised this, he says.

"If we do an audit, we will try to work with the business to help it make any necessary improvement and to encourage it to come up with an action plan," he says. "We will help and assist, but what we won't do is do the risk assessment for them. We can't be the enforcer and then enforce our own work."

"This legislation is broadly about self-compliance," Inglefield stresses. "But if there's a tripping point for all businesses, it's that they can do the basic things (keeping doors unlocked, having enough extinguishers) but then they get to the point where they don't have the expert knowledge; they won't know whether a wall is fire-resistant or not."

Without the necessary knowledge, they are left not knowing whether their assessment is suitable and sufficient or if they have done enough to satisfy the enforcing bodies.

Where consultants come in to fill this knowledge gap, competence is a big concern. Both Docherty and Inglefield want to see a formal national accreditation scheme. But at the Order's inception, the government was firmly opposed to anything that might be viewed as a consultant's charter.

"The result is that you've got guys out there doing a risk assessment for £50," says Docherty. "You can buy the guidance and set up with no training or professional competence."

Though the IFSM and the Institution of Fire Engineers (IFE) maintain their own registers of accredited consultants, he believes this is not adequate: "We need a national register of approved fire risk assessors; something like the old Corgi system for gas fitters."

Early days

The jury is still out as to whether the FSO is actually improving fire safety or regulatory compliance; any assessment will have to wait for longer-term quantitative data. Inglefield reckons that "we will need a 10-year timescale to judge this accurately", and it will have to be done on a sector by sector basis.

An advocate of the risk-based approach, he believes that individual premises that have a suitable and sufficient risk assessment and abide by the new legislation "will be so much safer" under the new regime. But he also thinks there is a long way to go before the FSO delivers its promise.

It's not about making wholesale changes," he emphasises. But to deliver real improvement, the fire services must "fully embrace their enforcement role and enforce risk [management] in an appropriate manner"; something he does not yet see at a national level.

"The enforcing authorities and responsible persons have got to grasp the concept, work with it and make it work better."

To this end, Flamerisk - in association with the IFSM - is bringing together enforcers, dutyholders and industry experts to discuss current enforcement practice at a major conference at Leeds Metropolitan University on 16 June (www.flamerisk.co.uk/PEEPS_Conference.pdf). "We expect it to be a no-holds-barred discussion," says Docherty.

Categories:
Fire, Article