10 things you need to know about enforcement notices
I have recently had a number of enquiries about the issuing of and appeals of Enforcement Notices. The most common questions revolve around the extension of enforcement notices and whether or not they can be withdrawn if and when appealed. I thought I would try to clarify some common issues. Here are some (hopefully) helpful pointers to the issuing of enforcement notices:-
1. When considering the issuing of an enforcement notice (EN), officers must be satisfied that there is no risk of death or serious injury to relevant persons. If there is such a risk, a Prohibition Notice should be considered unless measures reducing or alleviating that risk are taken immediately. Whether the EN is complied with in full or not, if the enforcing authority (EA) later wishes to consider a prosecution in respect of the substantive breaches, it will have to prove that those breaches placed relevant persons at risk of death or serious injury. Fire officers will then have to be prepared for the question ‘if there was a risk of death or serious injury, why did you not prohibit?’
2. Enforcement Notices can be issued to responsible persons under Article 3 or persons with control of premises under Articles 5 (3) and (4). If a company is involved. The EN should be addressed to the company name (not an individual representative of the company unless one particular director has accepted responsibility for fire safety) and addressed to the company office. There is no need to address it to the company secretary or the chief executive.
3. I believe that it is not for the enforcing officer to decide which role each party with control of the premises plays in relation to fire safety management. All parties with control of the premises should be served with the same notice, including a requirement under Article 22 that they cooperate and coordinate with each other to ensure compliance.
4. Article 31(3)(b) states that the EN must specify the matters which in the opinion of the EA give rise to the risk to relevant persons. I strongly believe that it is not for the Fire Service to advise on how the Appellant should comply with the FSO. Compliance can only be determined by those responsible for the premises following a suitable and sufficient risk assessment. However, Article 30 (3) states that the notice may ‘include directions as to the measures which the enforcing authority consider are necessary to remedy the failure referred to… And any such measures may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention.’ This would suggest that guidance on how to remedy the breach is optional, but I advise that it is good practice to provide at least some guidance.
Extensions of Time
5. My own personal view is that extensions should only be granted in the rarest of circumstances, and only when there has been some evidence of compliance with a substantial part of the EN. I’m certainly of the opinion that no more than 2 extensions should ever be granted. To extend more than twice undermines the enforcement process and would certainly undermine any future prosecution on the basis that there could not have been an imminent risk of death or serious injury to relevant persons.
6. There are only 3 grounds of appeal:
(i) That the Enforcement Notice was based upon an error of fact/facts
(ii) The Enforcement Notice was wrong in law
(iii) The fire authority erred in the exercise of its discretion in serving the Enforcement Notice.
My interpretation is that ground (i) relates to the issuing officer’s interpretation of the nature of the alleged breach within the premises, and also in relation to whether the notice was issued against the correct person with responsibilities for fire safety. Ground (ii) relates to compliance with the FSO and in particular Article 30 when issuing the notice. Ground (iii) relates to the decision to issue the notice generally.
7. The court when considering the appeal has the power to amend cancel or affirm the notice. (Article 35 (1) and (2)). It should be noted, therefore, that if the court wishes to amend a notice. It must be of the opinion that it was required and correctly issued in the first place. Any decision by a court to amend the notice should not be considered as a ‘loss’ for the enforcing authority.
8. An appeal will be dealt with by the Magistrates Court provided the Appellant has appealed in time and paid the appropriate fee. If the Appellant is not satisfied with the decision of the Magistrates Court, he may appeal to the Crown Court.
9. An EN cannot be withdrawn or extended, if the notice has been appealed. Where a notice has been appealed and then complied with, the correct course of action is for the Appellant to withdraw his appeal, and not for the enforcing authority to withdraw the notice. Compliance with the notice can be used as evidence that the notice was correctly issued, and an order for costs should therefore be sought in favour of the enforcing authority.
10. Where there is a disagreement as to how compliance should best be achieved, a determination by the Secretary of State under Article 36 should be sought. I believe that there have been 4 decisions made under this Article so far, and they can be accessed through the DCLG website.