Misinformation on the new fire safety legislation

IN A world in which, often with the intent of commercial gain, purveyors of products and services appear to enjoy the freedom to promulgate scaremongering information about the new fire safety legislation without challenge, it is extremely sad that this journal continues to constitute a convenient platform as a result of what can only be totally inadequate quality assurance. Given that the vague and convoluted wording of the Regulatory Reform (Fire Safety) Order 2005 needs no assistance in creating confusion, even amongst experienced fire safety practitioners, the role of the journal should be to assist, rather than misinform.

Past issues of the journal have included an article by a senior fire engineer of the Fire Protection Association, asserting that wording incorporated within the Fire Precautions (Workplace) Regulations had been omitted from the Fire Safety Order, when, in fact, even a casual reading of the Order would have revealed that the identical wording, far from being omitted from the Order, constituted a key Article within the Order.

However, new heights (or should it be depths?) of misinformation were reached in an article by David Sugden, chairman of the Passive Fire Protection Federation, within the supplement to the October issue of the journal (see the article, Risk assessment – who’re you going to call?). Outlandish and incorrect assertions within this article seemed to begin with subtle misunderstanding, but culmin-ated in a frenzy of ludicrous misinformation.

We are advised by this article that ‘legislation demands that the fire risk assessment is carried out by a competent person…’. Not only is there no such requirement within the legislation, but the omission of such a requirement was central to Government policy that there should be no implication that organisations need employ consultants to carry out fire risk assessments. Building on this foundation of sand, the article goes on to assert that it is essential that the consultant engaged to carry out the fire risk assessment has general health and safety credentials, a view to which few fire consultants would, I suspect, subscribe.

While these points are, perhaps, subtle, the article continues by making the outlandish suggestion that, when a fire risk assessment has been completed, whether by an individual or by a consultant, any action recommended by the fire risk assessment must, as far as reasonably practicable, be implemented by the responsible person within a 28-day period. The nonsensical nature of this assertion is such that it barely warrants refute, other than to note that, presumably, the author is totally confused between the action plan of a fire risk assessment and an enforcement notice by an enforcing authority, which must allow a minimum (not maximum) of 28 days in which work specified in an enforcement notice must be carried out.

Finally, we learn from the article that a fire and rescue authority ‘has powers to hand out penalties, ranging from fines, through immediate closure of the premises, up to a two-year prison sentence…’. Presumably, in the world portrayed by Mr Sugden, the ladies with the flowery hats and local butchers, who used to populate the benches of Magistrates’ Courts in England and Wales, and the Crown Court judges, who used to hand out the prison sentences, have become totally redundant. I am bound to ask whether the fire and rescue authorities also operate the places of lawful detention and where they might be located. I did ponder whether it might be Moreton in Marsh, but then concluded that to incarcerate anyone there for two years would constitute a cruel and unusual punishment in the context of human rights legislation.

I am copying my letter to the Board of the Institution of Fire Engineers (IFE), since not only do articles of this nature let down the fire safety profession, but they reflect badly on the IFE as the professional body that has, unwisely in my opinion, chosen to adopt the journal as that of the Institution.

C S Todd
Managing director
C S Todd & Associates Limited

Responding to Colin Todd’s concerns, David Sugden of the Passive Fire Protection Federation (PFPF) writes:

HAVING SEEN the letter from Colin Todd, I feel that I must respond in two parts, and have to first of all refer to the fact that the mistakes in the article were seen by the PFPF and that a request had been made to the journal to clarify these points before this letter was received. I will deal with ‘technical’ points later but must first comment on the assertions at the beginning of the letter.

The objective of our piece was to alert non-fire specialists to the major responsibilities that follow from the Fire Safety Order and to draw attention to the risks in not discharging these duties. The Federation itself does not sell anything as such but represents trade associations whose members provide materials and services in the fire safety market. I believe this is an honourable industry and that any company in the industry will have as an objective the ‘commercial gain’ to which Mr Todd appears to object; is this not also true of C S Todd and Associates?

We welcome a challenge and debate on some of our concerns, as we agree with Mr Todd that the wording of the Order leaves something to be desired. However, we cannot comment on any articles not from the PFPF that are raised by Mr Todd.

I would now like to clarify some points in the article that are mistaken, apologise to readers who may have been misled, and thank another reader who pointed a matter out over the telephone most politely. These observations refer to the section of the article on page 5 of the supplement under the sub-heading ‘Help is at hand’.

Mr Todd tells us that it was deliberate Government policy not to state in the Order that the fire risk assessment (FRA) be carried out by a competent person to avoid the need to use a consultant. As a result, the legislation does not actually ‘demand’ that the FRA is carried out by a competent person, as we say in our article. However, under Common Law an employer has a duty of care to employees and others who may be affected, to provide competent staff, proper plant and a safe system of work, which would include, under this legislation, the place of work. It therefore would be an employer’s statutory duty to ensure that the FRA is to be done by a competent person, and the Order defines competence as having ‘sufficient training and experience or knowledge’.

When this legislation came in, the PFPF sought advice from a leading specialist in fire law in view of the liability that we felt was implicit in non-compliance or in the employment of experts. This advice commented that, ‘Throughout the Order the onus of responsibility appears emphatically to be placed on the shoulders of the responsible person’. Additionally, where experts are employed (be they for the FRA itself, to undertake work shown to be required by the FRA, or the maintenance of fire prevention or protection measures) the advice said, ‘The competence of the appointee appears critical to the responsible person’. Given that fire protection measures are, in many cases, based on high technology systems, it seems to us to be perverse to rely on risk assessments carried out by those without the necessary level of competence.

Where maintenance of general fire precautions is concerned, the Order states, in Article 18 (5), that the responsible person must ‘appoint one or more competent persons to assist him in undertaking the preventive and protective measures’.

In commenting in the article on the qualifications for any expert that is brought in by the responsible person, my intent was to advise that persons with health and safety qualifications would not necessarily be suitably qualified and that fire safety knowledge and experience is required, such as that demonstrated by registration on the IFE Register of Fire Risk Assessors. I did not intend to suggest they must have health and safety qualifications, as I accept may be thought from the wording used.

Enforcement

Mr Todd has great fun with a genuine mistake regarding enforcement but again I would like to comment on this part of the Order. The issue by the enforcement authority of alteration notices, enforcement notices or prohibition notices does, of course, require the backing of the courts, and the recipient must take action as the enforcement authority requires within their stated timescale. In the case of an enforcement notice, this period is 28 days or more, as the enforcement authority decides, but this does not include matters requiring attention that are brought to light in the FRA itself, just those highlighted by an enforcement notice. If the recipient does not do so, the courts will be the ones imposing the fines or imprisonment, as I am sure readers realised. The various notices that may be issued have immediate effect and the enforcement authority may stipulate the period for compliance, although it should be noted that a prohibition notice may be issued ‘if anything affects the ability of relevant persons to escape in the event of a fire’ (Article 31 (2)), and this would take effect immediately (Article 31 (5) (a)). As it appears is always the case with British law, there exists an appeals procedure, and it is also clear that this Order will have to be subject to some test cases to clarify many points of law.

The fire safety enforcing authorities will have to establish where they draw lines and how far they must go to ensure employee and public safety, but it seems that the employer (or building owner) and his appointed responsible person are ultimately responsible for fire safety. They must be sure that any actions taken in this regard are well-informed and that persons undertaking work are suitably qualified because employing a specialist will not absolve them of responsibility.

It is clear that the Fire Safety Order is an important step for fire safety. Only time will tell whether this level of importance is fully reflected in a corresponding enhanced level of awareness amongst employers and building owners who now carry the onus of new responsibilities with which they may well be unfamiliar.

David P Sugden
Honorary chairman
Passive Fire Protection Federation

Editor’s response

Thanks to Colin Todd for highlighting the technical inaccuracies in the article starting on p.4 of the Passive Fire Protection Federation supplement.

Like any other responsible publication, the journal makes editorial accuracy a key priority, and any incorrect statements that are published are viewed as a very serious matter. However, it should be pointed out that incorrect or inaccurate statements are a rare occurrence in the great many articles that we publish each month.

On the Fire Safety Order, specifically, we have featured many articles which report on the requirements and implications of the legislation, and which seek to provide guidance, raise awareness and prompt debate – fulfilling what we see as the guiding principles of the journal.

While I appreciate Colin Todd’s point-of-view and agree with his concerns over technical accuracy, I feel obliged to refer to my many conversations with other IFE and FPA members which show that they appreciate their monthly journal. Most are complimentary about the broad range of articles it publishes to appeal to its diverse readership.

To ensure we continue to bring you informative, reliable articles, and in discussion with Colin Todd, the IFE and FPA are in the process of setting up a more formal process for reviewing articles prior to publication.

Rupert Gilbey
Editor, FP&FEJ