Rank: Super forum user
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What is the legal status of official guidance published to support the RR(FS)O (Fire Safety (Scotland) Act in Scotland)? Does it have the same sort of standing as guidance under HASAWA, or is it closer to an ACOP? Me and one of my team are busliy debating this, as some of the key things enforcement tells us to do is in guidance rather than the Order, and his question is always, 'Would this stand up in Court?'
The guidance itself does state that it is not the law, but that opinion would depend, presumably, on the status of the guidance?
I know we have to do FRAs and so on, and I'm not suggesting we would do anything we felt was unsafe, I'm just wondering whether there is case law or whatever to let us know what the status of this guidance is,
John
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Rank: Super forum user
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My view is that it's is just guidance the same as a British standard isn't a law. But it is seen as best practice so to ignore what would be seen as best practice then you would have to prove that you have an equal or better systems then the guidance or B.S.
But if you follow the guidance document then this should ensure you are complying with the law as the guidance document is aimed at achieving what is required under the RRFSO and other BS documentation.
Just like the highway code isn't law but code that if followed will ensure you don't break the law. But as a person or business you could enforce stricter requirements on your self or your employees.
At least that's my interpretation which makes sense to me and hopefully others without getting bogged down in the legal stuff.
Phil
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Rank: Super forum user
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Thanks Phil, that's how we see it I suppose (me and my colleague) though I see it as slightly more prescriptive than he does. Any case law anybody knows about would be handy.
To be clear, one of the key provisions which exists only in guidance is that fire services will not evacuate people from e.g. a residential home. This does not appear in the order (or the Act in Scotland), and we wonder what if any legislative force this decision has. Another are we are concerned about is the implication in guidance that we have to have enough staff on at all times to carry out evacuations; does that mean sleep-ins on night shift? It might do if the guidance has force and if the fire service won't assist with evacuation.
By the way, we know the fire service will effect a rescue, but that doesn't help us,
John
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Rank: Guest
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John the fire service won't carry out evacuations because their job is to carry out rescues. There is a difference. That is why your fire safety strategy should ensure that all occupants are safe in the event of a fire (except for maybe those in the room of origin). In a residential home your strategy may not be to evacuate but to have a defend in place strategy. If you choose to have an evacuation strategy then it would be your responsibility to ensure the occupants are able to evacuate without outside assistance i.e. the fire service. How you achieve this is entirely down to you and your staffing levels but one system that is typically used in hospitals is progressive horizontal evacuation where you initially move occupants to a place of relative safety ensuring that there is fire resisting separation between the evacuating occupants and the fire.
The RRO guidance documents are purely that, guidance. If you can meet the intent of the functional requirements of the building regs in another way that does not rely on the 'prescriptive' approach then that is fine. My view is that you may not be able to meet all the prescriptive requirements but you may 'trade off' advantages you have in one area against the disadvantages you have in another area. For example you may not be able to meet the prescriptive requirements for travel distance but you may have a fire detection system that is over and above the minimum required, you may then be able to argue that whilst your travel distances aren't quite as required in the guidance you do have a super dooper fire detection and alarm system that will alert a bit earlier therefore buying you a bit more time to start and complete your evacuation. This is what risk assessment is about.
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Rank: Guest
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Guidance, British/EN standards and code of practice can be used in evidence and is rated by the legal system, but not with the same degree of importance as statute laws such as Acts or Regulations.
There is a hierarchy that is followed from the top rank to the next applicable etc etc.
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Rank: Super forum user
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Thanks Shaun,
Yes, that's what it says in the guidance, and that's the approach we are taking. However, we would be very interested to know just how far we have to follow this line.
As a very practical example, we have been asked by a local fire service to carry out practice evacutions using the minimum level of staff expected to be in the building at any time (that would be at night). Fair enough, BS27555 requires your MIP to be tested to reality, and I don't have a problem with that. The issue is this; the fire service is saying that the number of people we can safely evacuate should be the maximum number of people we can provide care for. I think there are a number of factors to take into account before we accept that as writ, and I am therefore interested in the status of this guidance.
Ciaran's definition is true of guidance issued under HASAWA, but does the fire safety guidance have this status or is it closer to an ACOP? After all, fire services are using it to determine how we should manage our business,
John
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Rank: Forum user
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The RRF Order Article 50 states that the Sec of State must ensure that Guidance is available to assist responsible persons in the discharge of their duties, and to revise it as necessary.
Article 33 sets out your defence, which is for the person to prove that he took all reasonable precautions and exercised all due diligence to avoid the offence
As the Sec of State has a duty to provide the guidance, then it would suggest that complying with it would meet your defence of due diligence etc.
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Rank: Super forum user
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Thanks Roly,
That's kind of what I was getting at. I have looked at those articles and thought this maybe added up to something like an ACOP. We get fire officers quoting this guidance as though it's the law, and if it is (i.e. it has the special status of an ACOP) then fair enough, if it isn't then maybe we need to be more prepared to argue the toss. Which is why I'd be interested in a view on what the courts might (or even have if there's some case law) think,
John
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Rank: New forum user
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Roly hit the nail on the head - Article 50 does place the requirment on the SoS
HMG Guides state that they have been approved by Ministers and have official status.
Guidance can be referred to in a court of law ie it exists and what it generally covers, but unless judges give sanction then no specific quotes can be made unlike an ACoP!
The RRFSO (Fire Safety Order) was made under the Regulatory Reform Act and unlike the HSWA ther is no provision for the production of an ACoP via the SoS.
It may be worthy of note when testing the fire safety enforcers requirements and avialable guidance to take a look at the following link http://www.communities.g.../fire/hotelfiredetection as Sir Ken Knights determination relates to 'what the fire service wanted v's hotels provision
A suitable and sufficient FRA is 'worth it's weight in gold'
Hope this assists
Andy
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