The Regulatory Reform (Fire Safety) Order 2005 (the FSO) has now been in force for over 10 years.
A review of the effectiveness of the FSO 2 years after it came into effect found that the Act was “bedding in” well with both enforcers and responsible persons. I am not aware of any further reviews since.
The review highlighted a number of areas which could benefit from further action and one in particular is the “clarification” of who a ‘responsible person’ is.
Clarification in relation to the responsible person is hard to find. Over the past 10 years I have prosecuted for or advised 8 separate Fire Service Authorities (FSA’s). During that time I have conducted a number of Seminars and Training Programs and I can say without question that the most significant concern of raised with me during those sessions by Fire Officers was the identification of a responsible person.
The FSO defines the meaning of responsible person in Article 3 and goes on to provide further assistance in Articles 5 (3) and 5 (4). This is at least more helpful than the Fire Precautions Act 1971 which used the phrase ‘Owner’ or ‘Occupier’ without providing a definition for the word ‘Occupier’.
In addition, there are the numerous guidance documents which also assist in identifying persons who could be responsible.
But what about the Investigating Fire Officer who carries out an audit or an investigation into premises and then has the practical task and reality of having to identify a responsible person, sometimes in situations where nobody wants to accept responsibility for anything, last of all overall Fire Safety Management Responsibilities.
The reality is certainly problematic. Investigating Officers are faced with all kinds of organisations such as Hospitals or Schools, and small private concerns such as partnerships or family businesses.
Investigating Officers may be told that Mr. X is the responsible person by Mr. Y who is the real responsible person but who is trying to evade liability. Mr. A may claim responsibility because he is fearful of Mr. B, and may lose his job or his lease if he doesn’t. Alternatively, all those questioned may hide behind the ‘Corporate veil’ of a large organisation. In my experience these are the problems that investigating officers are regularly encountering ‘on the ground’.
I have therefore tried to provide a step by step guide to correctly identifying and thereafter evidencing the correct responsible person.
Firstly, it should be understood that the use of the phrase ‘The Responsible Person’ is in itself misleading, as there can be more than one person responsible for premises. Indeed there could be any number of persons with separate responsibilities.
My advice has always been to start at the top and then to work downwards until responsible persons are found.
1. The Employer – this definition is fairly straightforward as the employer is usually easily identifiable and if he/she isn’t then staff members are usually quite willing to point them out.
2. The Occupier – this is, as the Act states ‘the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade business or other undertaking (for profit or not)’.
As is often the case, those who run businesses may not own there premises but may well have a lease in place and therefore ‘have control’. Again, these people are usually easily identifiable unless they have a corporate personality which I will discuss later.
3. The Owner – again, this is usually an easy responsible person to identify as a Land Registry Search of most land nowadays will provide details of its owner.
4. Contracted positions or Leasehold Obligations – this is defined by Article 5 (4) which states, “where a person has by virtue or any Contract or Tenancy an obligation of any extent in relation to:
(a) The maintenance or repair of any premises, including anything in or on the premises; or
(b) The Safety of the premises is to be treated: – as being a person who has control over the premises to the extent that his obligation so extends.”
This section clearly covers those appointed by large organisations to oversee either Health & Safety or Fire Risk Management responsibilities, as well as those who have entered into a Contractual or Leasehold Agreement providing them with the responsibility for premises.
This can cover situations where more than one organisation/individual has responsibilities within the same premises. An example could be where a Restaurant is shared with living accommodation within the same building. In such a situation, the person running the restaurant and the owner or leaseholder could be responsible.
5. Any other person with Control over the premises – this is defined by Article 5 (3) which states, “that any duty ……………. shall be imposed on every person ……………… who has, to any extent, control over those premises so far as the requirements relate to matters within his control.” See 6.
I was also involved with a prosecution where a girl died after falling from a defective and dilapidated fire escape. The owner of the premises produced a lease which purported to delegate responsibility for internal and external repairs to the leaseholder. However, the risk assessments provided were in the name of the owner, as the owner accepted that he was paying for redecoration at the time of the accident, a successful prosecution was brought against both the owner and the leaseholder.
6. Those with adopted responsibilities – this could cover Fire Alarm Maintenance Engineers or supposed ‘competent persons’ who have carried out training or who have assisted in the Fire Risk Management responsibilities.
I was involved with two cases where fire alarm engineers have certified defective systems as being fit for purpose. It is my view that as they had sole responsibility for the fire alarms, they could be responsible persons under the act and may be prosecuted as such.
When considering all of the above and when starting at the top, the Fire Officer must consider whether Fire Safety responsibilities have been delegated. If this is the case then a Statement should usually be obtained from the appropriate individual or organisation to confirm how those responsibilities have been delegated and who to.
In my experience, those who are being questioned about the possible breach of the Act are usually very eager to show that they are now no longer responsible for the premises and that they have passed those responsibilities on. If this is evidenced by a Statement then it makes the next stage of the process a lot easier when speaking to those to whom the responsibilities have been delegated.
Follow the Money – if difficulties are arising with identifying the responsible person then the person who is benefiting most financially from the premises or there use should be identified. Witnesses should be asked, who is receiving the rent? Who, if Alterations or Fire Precautions are required will ultimately pay for those works? In to whose bank accounts do profits go or income from the business or premises?
Conduct Consistent with being a responsible person – who have the Fire Service written to in the past? Who usually meets the Fire Officer and conducts the tour of the premises?
When threatened with Enforcement or Prohibition Notices who states that they will see to it that the requirements are met and that the premises are correctly modified?
I recently prosecuted the owner of a hotel who had dealt with the Fire Service, when his premises were inspected through correspondence following inspection. When the case came to court he denied he was the responsible person and brought the manager of a takeaway business trading from within the premises to say that he was responsible. The court decided that as owner of part of the premises he was a responsible person under Article 5(3), and as he had always held himself out to be the responsible person, he was so deemed to be. He received the maximum fine of £5000.
Evidencing the Responsible Person
Once the responsible person or persons have been identified then for Enforcement purposes, evidence is usually required to back up the Fire Officers contention that the person has correctly been identified.
This can be done in three main ways:
Firstly by statements/admissions made to the Fire Officer by those persons. Any such admissions should be recorded in the Fire Officers notebook and if at all possible, signed by the person making those admissions before leaving the premises. On this basis the Fire Officer can give evidence as to what he was told when he arrived at the premises and during his inspection.
Secondly, Statements obtained from employees/residents/guests as to who they have dealt with and as to who they believe were responsible for either the Management of the premises or in particular Fire Safety responsibilities.
Lastly, and perhaps most importantly, through the interview of the suspected responsible person under PACE. Any admissions made will carry significant weight in Court should any Enforcement Notice be appealed or a prosecution takes place.
If necessary admissions that were made at the scene and which were not conducted under PACE, should be recounted in interview and the suspect should be asked to confirm the conversation that took place.
Corporate Personality –v- Individual
Many of the questions put to me over the last 7/8 years have involved situations where Fire Officers investigate large organisations such as schools, companies, city councils, and are unable to correctly identify someone to deal with within that large corporate organisation.
My advice has always been the same. Always start at the top and work your way down. For example with a school, the Headmaster is usually ultimately responsible for the safety of the persons unless that is another person has specifically assigned that role.
Of course the Headmaster will not be responsible for writing the cheque out for any Fire Safety requirements which may be necessary. In which case, the Local Authority responsible for the school should also be considered.
If necessary both the Headmaster and the Local Authority should be interviewed and/or consulted with.
In one case, a fire in an HMO resulted in a successful prosecution by Lancashire FRS against both a city council (the owners) and a housing management company (the managers of the property) who could not decide between them who was responsible for the premises.
The guidance provided in support of the Order states very clearly that an organisation must appoint one or more competent persons depending upon the size and use of the premises.
The guidance also states that such large organisations should have a policy which should be set out in writing and which may cover such things as:
1. Who will hold responsibility for Fire Safety at board level?
2. Who will be responsible for each of their premises (this will be the person who has overall control, usually the Manager)?
If an organisation has failed to comply with the guidance then there are clearly management failings as far as Fire Risk Management is concerned. Accordingly, a corporate body should be held responsible.
If this is a limited company then the limited company may be issued with a Notice or Prosecuted. It should be served at its registered office. Companies should be dealt with in the same way whether they are limited or not, and directors should be served. If it is a Partnership then the individual partners should be considered. If it is a Borough Council then the Borough Council should be considered.
The beauty of the Order is that nobody is considered beyond responsibility.
Below is a list of the prime suspects together with points to consider before deciding upon whom to speak to at the outset or upon whom enforcement action should be taken:
1. The Employer.
2. The Occupier with control of the premises.
3. The Owner.
4. Those with Contracted positions or Leasehold obligations (Tenancies).
5. Any other person with control over any part of the premises.
6. Those who have adopted responsibilities.
Questions to ask
7. Have Fire Safety Management responsibilities been delegated? If so – to whom?
8. Follow the money. Who is ultimately benefiting from the failure to spend money on fire precautions?
9. Has anyone shown conduct consistent with being a responsible person?
As stated at the outset, there are no hard and fast rules. If a responsible person cannot be found there must be management issues relating to the premises. The courts will not be sympathetic to organisations who evade their responsibilities. The bigger the organisation, the more embarrassing it will be for them to explain why they have not satisfied their obligations under the Order.