The Drafting of the Enforcement Notice
The drafting of enforcement notices has always been a tricky business. Fire officers must tread the difficult line of letting a responsible person (RP) know what he has done wrong and how he should remedy any non-compliance, without being too prescriptive as to how compliance should be achieved. The new CFOA guidance upon drafting should therefore be welcomed.
The Fire Safety Order (FSO) deals with this under Article 30. Article 30(3) is taken from the Health and Safety at Work Act 1974, and states
“an enforcement notice may …. include directions as to the measures which the enforcing authority consider are necessary to remedy the failure… 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.”
The use of the word ‘may’ here is somewhat vague and, in my experience, having conducted numerous enforcement notice appeals, fire officers tend to avoid outlining prescriptive measures or alternatives within enforcement notice schedules.
I have dealt with at least three appeals where the grounds of appeal allege that notices were drafted in such a way that it was not clear to the RP how the notice should be complied with. Of course, the fire service’s correct response to that allegation is usually that it is not for the enforcing authority to tell responsible persons how to comply with the FSO.
The case law on this point also comes from appeals made in cases under the Health and Safety at Work Act. Lord Denning in the case of Ormston v Horsham Rural District Council stated “so long as an Enforcement notice tells a man fairly what he has done wrong and what he is required to do to put it right, then the notice is good.”
The Court would ultimately have to decide upon this point. In my view, it is not sufficient for a fire officer to outline the breach as ‘the responsible person has failed to comply with Article 14’and then in the schedule of required work state ‘Article 14 FSO should be complied with’, as this would probably not outline to the layperson exactly what he had done wrong and what he was required to do to put matters right.
The new guidance provided by CFOA provides more clarity and guidance. The suggested form of drafting under each alleged breach and remedy should be dealt with under three headings, Outcome, Action and Reason.
Under the heading ‘Outcome’ a short sentence will be required to indicate what is to be achieved by the remedy. For example, ‘the work is necessary to ensure that escape routes can be used safely in the case of emergency.’ This outlines to the RP what must be achieved to comply with the notice.
Under the heading ‘Action’ a more detailed outline of compliance is required. Rather than simply referring to the Article which has been breached, the RP is given more direction as to how to comply. For example, ‘self-closing devices, intumescent seals and smoke sealing devices must be fitted to all doors.’
The final heading, ‘reason’ outlines to the RP why the work is necessary. This is important, because the RP will not only become more educated in relation to fire safety matters, but will also see the value added to his business or premises by ensuring compliance. For example, doors were not capable of preventing the spread of fire for long enough to allow people to safely escape because there were large gaps between the door and the door frame. There is the potential for smoke to spread from room A into the means of escape.’
The proposed CFOA guidance should help fire safety officers to comply with the requirements of Article 30, ensure better future compliance and comply with the legal requirements involved in drafting any kind of enforcement or improvement notice. In addition, it should be hoped that this will lead to fewer appeals coming before the courts.