Memorandum from the Chief Fire Officers'
Association
1. THE CHIEF
FIRE OFFICERS'
ASSOCIATION
The role of CFOA is to:
— establish and maintain clear communications
links with the membership and facilitate their involvement in
policy-making review.
— establish policy positions for the
Association on key issues confronting the fire service in a proactive
way.
— establish the Association as a body
which provides sustainable and independent professional comments
and advice on all fire service matters.
— change or influence national policy
positions, where appropriate.
— embrace a strategic approach to conducting
business.
— develop international links to identify
and promote best practice.
2. COMMENTARY
2.1 The proposals embodied in the Regulatory
Reform (Fire Safety) Order 2004 are generally welcomed, including
as they do, a duty on the responsible person, not only in relation
to workplaces but to all premises outside the home and, therefore,
requiring consideration of risks to employees, persons resorting
to the premises, persons outside the premises who may be affected
by fire, the environment, the property itself and the safety of
firefighters.
2.2 There are a number of concerns however,
which, if addressed, CFOA believe will make the situation clearer,
both for those who have to comply with the law and those that
enforce it, but most of all will improve the level of safety of
our communities. Each issue is discussed. For ease of reference,
they are collated in Article order.
3. ARTICLE 2—INTERPRETATION
3.1 This article contains the definition
of "relevant persons" and appears to exclude firefighters,
whilst undertaking their statutory functions, from the protections
required to be provided to all other relevant persons. We can
only surmise that the persons drafting the Order decided it would
be unreasonable to place a duty of care on the responsible person
to protect firefighters in their building whilst fighting a fire.
We would not be averse to this position and fully understand the
intention. However, firefighters can legally be on a premises
for a range of other reasons in connection with carrying out duties
in support of the functions of a fire authority, eg collecting
operational intelligence, giving advice, undertaking a fire safety
inspection etc.
3.2 This exclusion also further complicates
other Articles. For example, at Article 7(4)(c), which disapplies
Articles 8 to 23, plus regulations made under Article 24 to any
member of any emergency service if actions under this Article
would prevent them carrying out their duties. As Article 8 to
23 relate, in the main, to relevant persons, has this Order effectively
made firefighters not members of an emergency service?
3.3 At a more fundamental level, we are
concerned that there may be issues arising from the Human Rights
Act 1998, which impinge on the principle of excluding firefighters
from the general protection afforded to all other relevant persons.
4. ARTICLE 9—RISK
ASSESSMENT
4.1 This article fails to state that a competent
person should complete the fire risk assessment. In contrast,
Articles 13 and 15 do refer to competent persons. It may be that
the legislation drafters believed Article 18 (Safety Assistance)
dealt with the issue by requiring the responsible persons to appoint
one or more competent persons to assist with prevention and protective
measures. This indirect reference is, we believe, not clear and
the requirement to use competent persons to draw up the risk assessment
must be clearly stated in Article 9. The risk assessment is fundamental
to this new approach to fire safety law. If done badly, the results
can be catastrophic.
4.2 At Article 9(6), the risk assessment
only need be recorded in writing if there are more than five persons
employed. This could exclude premises where there is a high risk
but less than five persons employed. We therefore submit that
the risk assessment should be in writing for all high risk premises
including those where a significant number of persons resort to
the premises (eg some shops and hotels). "Significant"
in this context, should take account of inter alia the nature
of the risk, the numbers of people exposed and the nature of the
business.
5. ARTICLE 13—FIREFIGHTING
AND FIRE
DETECTION
5.1 This article requires "where necessary"
firefighting and fire detection equipment "in order to safeguard
the safety of relevant persons . . ." This follows the principles
in a legal case which concluded that firefighting equipment is
not required in order to prevent buildings from burning down,
even though they may contaminate the environment. Accordingly,
sprinklers cannot be required by fire authorities to protect premises
and the environment; and a disparity exists between Approved Document
B 2000 of the Building Regulations in connection with sprinklers
and the Order. We submit that the Order should reflect the requirement
for sprinklers in Approved Document B.
6. ARTICLE 14
6.1 The term "where necessary"
appears in Article 14 in relation to emergency exits and the requirement
for them to be kept clear at all times. We cannot envisage a situation
where an emergency exit route can be left obstructed when persons
are in a building and still comply with the duty of care to protect
relevant persons.
6.2 Further, Article 14 at (2)(a-h) does
not include fire doors nor a provision to ensure they are self
closing or fire resisting. Nor is there a provision to ensure
emergency routes are fire resisting. It may be the drafters were
relying on Article 17 to ensure these features, when installed
under the Building Regulations, would be maintained. However,
if missed by Building Regulations requirements, the fire authority
would be powerless to subsequently insist on their installation.
This is the introduction of a hidden statutory bar and should
be removed by including doors, fire resistance and minimum periods
of time, for the integrity of fire resistance for escape routes
in Article 14.
6.3 For the avoidance of doubt, "place
of safety" should be defined to ensure it means a place of
ultimate safety.
7. ARTICLE 17—MAINTENANCE
7.1 The legislation applies to virtually
all premises except domestic premises. In enforcing the legislation,
clarification is necessary on the delineation between the front
door of flats and individual occupancies in houses in multiple
occupation and the common areas (landings, stairwells etc). By
way of example, a fire detector placed in a flat as part of the
overall fire alarm system for the building as a whole, cannot
be required to be maintained, although the detectors etc in the
common areas can. Likewise, damage to the fire resistance of the
front door to the flat, cannot be required to be repaired to offer
the proper level of protection to the main corridor onto which
it leads. This matter is further complicated, as under Article
27 an inspector has no powers of entry to the domestic unit to
determine if there is a risk to "relevant persons" in
the "immediate vicinity".
8. ARTICLE 29—ALTERATIONS
NOTICE
8.1 This article introduces the principle
of alterations notices, which we believe will assist in enforcing
the Order. We would, however, ask the legislators to give enforcers
guidance on the term "serious risk", as this will determine
the level of issue and, therefore, workloads these create.
9. ARTICLE 36—DETERMINATION
OF DISPUTES
BY THE
SECRETARY OF
STATE
9.1 This article provides for the Secretary
of State to determine a dispute between the enforcing authority
and the responsible person if they both agree to refer the matter.
In practice, there are examples of approved inspectors ignoring
fire authority advice during statutory consultation and then refusing
to refer the disputed issues to the Secretary of State under the
existing arrangements of the Building Regulations. To avoid replication
of these issues within the Order, it is recommended that the Secretary
of State be given jurisdiction over disputes in circumstances
where one party wishes to refer a case for determination. This
would be in line with current court procedures.
10. GENERAL CONCERNS
10.1 Provision of Plans
The Order does not give the enforcing authority
the power to require plans, as does some existing fire safety
legislation. A plan is a useful means of showing the layout and
equipment and facilities provided in a building at the time of
construction or redevelopment, and is a useful means of assisting
with the provision of a risk assessment. Most premises, particularly
those more complex and high risk, would already have plans, so
we believe it would add little burden on commerce and industry
to provide them if required by the fire authority.
10.2 Implementation
The introduction of the Order must be accompanied
by an effective advertising campaign targeted at key audiences.
The introduction of the Fire Precautions (Workplace) Regulations
was not conducted well and has led to low levels of awareness
and, therefore, compliance.
10.3 Guidance Documents
CFOA is concerned that the guidance documents
will be suitable and sufficient for the purpose and will be aimed
at too wide an audience. CFOA is keen to assist the Office of
the Deputy Prime Minister in the development of guidance to enforcing
authorities but wish to ensure that relevant persons are properly
catered for with guidance documents. We await the first guidance
document with interest.
May 2004
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