Risk assessment
9.—(1) The responsible person must make a suitable and sufficient assessment of the risks to which relevant persons are exposed for the purpose of identifying the general fire precautions he needs to take to comply with the requirements and prohibitions imposed on him by or under this Order.
(2) Where a dangerous substance is or is liable to be present in or on the premises, the risk assessment must include consideration of the matters set out in Part 1 of Schedule 1.
(3) Any such assessment must be reviewed by the responsible person regularly so as to keep it up to date and particularly if—
(a)there is reason to suspect that it is no longer valid; or
(b)there has been a significant change in the matters to which it relates including when the premises, special, technical and organisational measures, or organisation of the work undergo significant changes, extensions, or conversions,
and where changes to an assessment are required as a result of any such review, the responsible person must make them.
(4) The responsible person must not employ a young person unless he has, in relation to risks to young persons, made or reviewed an assessment in accordance with paragraphs (1) and (5).
(5) In making or reviewing the assessment, the responsible person who employs or is to employ a young person must take particular account of the matters set out in Part 2 of Schedule 1.
(6) As soon as practicable after the assessment is made or reviewed, the responsible person must record the information prescribed by paragraph (7) where—
(a)he employs five or more employees;
(b)a licence under an enactment is in force in relation to the premises; or
(c)an alterations notice requiring this is in force in relation to the premises.
(7) The prescribed information is—
(a)the significant findings of the assessment, including the measures which have been or will be taken by the responsible person pursuant to this Order; and
(b)any group of persons identified by the assessment as being especially at risk.
(8) No new work activity involving a dangerous substance may commence unless—
(a)the risk assessment has been made; and
(b)the measures required by or under this Order have been implemented.
What the Enforcement Guidance says:
The responsible person must make a suitable and sufficient assessment of the risks to
which relevant persons are exposed for the purpose of identifying the measures they
need to take to comply with the requirements and prohibitions imposed on them by
the Order. The nature of the assessment will vary according to the type and use of the
premises, the persons who use or may use the premises, and the risks associated with
that use. A risk assessment should be reviewed regularly by the responsible person to
keep it up to date, valid and to reflect any significant changes that may have taken place.
The Order contains a requirement to record the “prescribed information” if five or
more persons are employed in order to maintain consistency with health and safety
legislation. The prescribed information comprises the significant findings of the risk
assessment (including the measures taken or to be taken, eg training and maintenance,
consultation and co-ordination) and any group of persons identified as being especially
at risk. Under the Order, the threshold of five or more persons includes those
employees who may work from or in another place away from the premises concerned,
for example an employer with three shops, each of which has two staff would employ
six people and thus be under a duty to record the risk assessment for each shop.
The responsible person must also keep a record if the premises are subject to any
statutory licence, or if required by an alterations notice under the Order in relation to
the premises.
Where a dangerous substance, as defined in article 2 of the Order, is present in or on
the premises the risk assessment must include consideration of all the matters listed
in Part 1 of Schedule 1. These include the amount of the substance and its hazardous
properties and the circumstances of the work including the work processes, use and
storage.
The responsible person must not employ a young person unless they have made or
reviewed a risk assessment, which must have particular regard to the risks to young
persons. The responsible person must take particular account of the matters listed in
Part 2 of Schedule 1 to the Order. It should be noted that the Order uses two terms
“child” being a person who has not yet attained compulsory school leaving age (16 or
the end of the school year in which they will become 16) and “young person” being a
person (including a child) under the age of 18.
For the avoidance of doubt, it is accepted that other persons may record the prescribed
information at the request of, and on behalf of, the responsible person. In such cases
this may be accepted as being recorded by the responsible person. If a responsible
person relies on a risk assessment carried out on their behalf by a person who is
competent to carry out such a risk assessment, it may be a strong mitigating factor
if the responsible person is prosecuted for an offence under article 32, although it
will not relieve the responsible person from criminal liability. For the avoidance of
doubt, enforcement action is taken against the responsible person, not the contractor.
A contractor may well be liable to the responsible person in contract or tort for a
negligently carried out risk assessment, but that is outside of the scope of this guidance.
The suitability of a risk assessment and its recording is partly reliant on its ease of
understanding. In some buildings, particularly in complex buildings, the risk assessment
may need to incorporate plans showing the general fire precautions arrangements – this
may be where it is not possible to identify matters clearly in the narrative of the risk
assessment. There is nothing in the Order which would directly compel a responsible
person to create new plans. However, for some complex buildings a risk assessment
will not be suitable and sufficient or properly recorded without additional plans. Similar
considerations will apply in respect of article 11(1) and other articles which require
information or arrangements to be recorded. Enforcing authorities should therefore
seek practical solutions with the responsible person where such plans are not adequate.
