The Regulatory Reform Order and associated legislation in the rest of the UK was supposed to herald a brave new world of risk-based enforcement. But as Bob Docherty reports, there are some early signs that the prescriptive habit is a difficult one to shake off.
When the fire precautions act was introduced in the 1970s, the fire brigades were put on a mission to implement it with vim and vigour. But in those days, we had a cuddly and warm fire brigade. Officers came out and drew up a schedule of work of exactly what was needed to be done, gave you lots of time to do it (and even more when you ran out of time or money or both) and then drew your plans, produced your fire certificate and gave it to you at a knock down price (that is, for free!). Latterly they have got wise and started to charge for their services but at that time, getting money for work did not sit easily with a public service. (How times are changing! But that’s another debate at another time.)
Life in the ’90s
The risk assessment approach to fire safety came of age during the 1990s with the introduction of the Fire Precautions (Workplace) Regulations (FPWR) with the government implementing EU Directives. Remember, the UK nearly got ‘infracted’ by the EC for not implementing them correctly, so hence the amended Regulations in 1999.
Fire Brigades were told at the time to take a ‘light touch’ approach to enforcement, so as not to be a burden on industry. Meanwhile, the ground was being prepared by a new government for a real fire safety bill. The Fire Precautions Act was still running in parallel, so there was confusion about what should be done and the approach to be taken
A light touch, poor publicity through fire brigades and general apathy meant that the Workplace Regulations were a mess. Very few employers picked up on them and even fewer implemented them. The law was not enforced by brigades and, as a consequence, both the public and fire brigades suffered from inertia and apathy.
To ensure fairness and equality, the government issued in 1998 a code of conduct for all local authority enforcement agencies called the Concordat of Good Enforcement. It still exists! Part of it outlines the practices that fire and rescue services should adopt when they find themselves in an enforcement role.
The idea is to ensure that there is openness, consistency, helpfulness and proportionality from enforcing authorities.
2006 and all that
The confused picture of legislation continued until the Regulatory Reform (Fire Safety) Order 2005, the Fire (Scotland) Act 2005, and the Fire and Rescue Service (Northern Ireland) Order 2006 were enacted. Fire consultants like myself waited with baited breath to see how the fire and rescue service would enforce the new legislation, given that they were told to do so with vigour, and given that they seemed not to have got hold of the concept of a risk assessment approach. It seemed to say it all that, when the legislation was introduced in England and Wales, the guidance for enforcement was not issued at the same time. Luckily, Scotland seemed to have got its act together, but we in England and Wales have had to wait until this month for enlightenment.
So, taking the Scottish guidelines as the basis of good enforcement under the new legislation, the fire and rescue service should make sure that:
– Enforcement is part of a risk based approach and part of the IRMP (Integrated Risk Management Plan).
– Account is taken in an enforcement programme of the strategic importance of premises, heritage loss, environmental damage etc.
– An audit programme (an audit that the fire and rescue service carries out to ensure consistency of compliance) is not applied to cases where risk to life is low (unless as part of a sampling approach to test risk assessment methodology or to confirm compliance assumptions.
– A risk based approach is used for enforcement, focused primarily on those who are creating the greatest risk to life from fire (Note, not the greatest risk of fire per se).
– A risk profiling system is introduced using comparative analysis between buildings being used in similar ways in terms of risk.
– Professional judgement is used as part of the overall process.
Additionally, in dealing with non compliance, the fire and rescue service should:
– Minimise the cost of compliance – action should be proportionate to the risk.
– Try and resolve issues unless immediate action is essential and discuss various options in an attempt to resolve any issues.
– Give reasons to the responsible person why any immediate action is necessary.
– Be consistent in its approach to similar situations, as well as ensuring consistency across different fire and rescue services.
– Avoid a prescriptive solution as the sole means of addressing fire safety issues. However, advice – both verbal and in writing – should form a fundamental part of the enforcement.
– Be accountable for the efficiency and effectiveness of their activities.
But in the meantime, there is evidence (anecdotal and otherwise) that some fire and rescue services have learnt absolutely nothing in the past 10 years. I have set out two such cases in the panel on this page.
One of the biggest complaints from the public in the past has been the inconsistency of fire and rescue services. From what I have heard in the past few months and from what I am continuing to hear, it may turn out to be a case of you cannot teach an old dog new tricks, at least in some parts of the fire and rescue service. Will it continue to be: prescription, prescription, prescription until the government realises that yet more needs to be done to wean some enforcers off the prescriptive approach. Until then, the risk-based approach may be nothing more than lip service.
ADDICTED TO PRESCRIPTION
A fire officer carries out a yearly inspection in a low risk premises. He says everything is OK but asks the responsible person to carry out a risk assessment and, when this has been done, to clip it to the old Fire Precautions Act fire certificate.
The assessment is done and the responsible person informs the inspecting officer. He revisits, checks the risk assessment and discovers that its findings are more rigorous than his own! Despite this, he tells the responsible person to implement immediately the action points in the assessment. She replies that these action points are prioritised, but he disagrees and tells her to implement them all forthwith. If not, he will issue an enforcement notice. When the responsible person came to me and asked me what to do, I suggested that she should challenge the decision. The fire and rescue service has no right to threaten an enforcement notice if work is not carried out. They should have issued an enforcement notice in the beginning to tell the person to carry out a fire risk assessment. After that, everything else would have flowed correctly but then again, what do we expect when enforcement officers are asking for responsible persons to clip their risk assessment to a defunct piece of paper – the fire certificate!
The next case leaves me absolutely astounded. First the premises visited is so small that it would have been a Section 9A under the Fire Precautions Act (that is, a premises not needing a fire certificate but still needing to have precautions in place). It’s a ground floor, low risk office with a single staircase to a first floor kitchen/rest room (where no cooking takes place) and toilets, with the staircase continuing to a second floor storage area only.
Firstly, what is the fire and rescue service in question doing inspecting this type of premises? Secondly, the officers issued a Schedule of Work, which states they have carried out a fire safety audit (is that not carrying out a fire risk assessment?) and prescriptively list 14 points that need to be carried out to comply with the legislation. One of the requirements is to install colour CCTV and smoke detection at first and second floor levels. Can anyone tell me why such a premises would need colour CCTV, and who would be monitoring it when only two or three people are in the building? Or perhaps they should employ someone to monitor the CCTV – not really too much of a burden on business!
The enforcement officers also suggest that if the responsible person considers that there may be alternatives to the items put forward by them, these should be put in writing and submitted for consideration (no dialogue or discussion or debate). All this tells me is that some in the fire and rescue service have learnt absolutely nothing in the past 10 years, when they should have been honing their new found duties to ensure they can enforce with credibility, knowledge and consistency.
