This debate has ranged across whole spectrum of views and opinions regarding FRA. The mod team considers that the arguments have been eloquently expressed by all sides and it is time to bring the discussion to a close. This thread is now locked.

thank you

Peter

Why are there so many "can't be displayed" messages?

If you can't be reasonable with your replies to the topics being discussed why comment at all?

Please, lets not wander off topic quite so quickly after re-opening the topic.
No mystery about #42. It is after all the answer to all things in the universe (with apologies to a certain Ford Prefect) and was in this case simply the post advising the topic was locked.

Friday Peter.

!!!!@@@@**** IPhone, that should be "National Register"

Hi Chris
will try and provide more detail from a desktop rather than small screen on phone but I would fear accreditation and registry will be pricy I also wonder if there will be an impact on PI.

I reckon it will go the same way as asbestos surveying or acredited gas fitters.

If there are specific criterion and registration along with say UKAS certification and a possible change of legislation to place some responsibility on the FRA. I would thing that Insurance underwriters would suggest there would be aditional risk associated with the work and increase premiums as a result.

Sorry - I am a little late on this thread but have been watching from the wings as I have had a nightmare logging into the site since the upgrade. (and have had to change my username to do so now!!)

Bleve - I am somewhat confused about your quote above, as the risk assessor is indeed accountable under article 5(4)(b) of the FSO if they screw up badly.

Indeed, I am aware of a potential prosecution being considered right now against a fire safety consultant who delivered a real mess of a report to a RP. The result is the FRA is definitely not suitable or sufficient despite the RP doing everything asked of him by the FSO and by the dodgy FRA document

So the idea that the assessor is 'protected' isn't quite true - unless you were referring to some other protection of course.

I tend to agree with Bleve on the interpretation of the specific part of the Order quoted here as it relates to persons being in control of premises and to be honest I don't see how a (non-employee) risk assessor can ever be considered as such.

However there is a provision in Articla 32 - Offences, which I think would allow a risk assessor to be held liable in the circumstances which Messy describes. It's detailed in sub-para 10 of Article 32 as follows:

"Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person."

Messy - does this sound like the right part of the Order under which an assessor would be caught if the assessment was bad enough?

Interesting interpretation Messy - I hadn't read it like that I must admit. However I can see that strict legal inteprretation might indeed take that line. Do you know (and are you able to say!) which part of the Order is being considered for use in the potential action you mentioned above?

Messy, I still do not see that the articles quoted may be applied in the manner suggested.

Heather, well spotted in relation to Article 32 (10). It would be very interesting to see the courts interpretation of this article in relation to a fire risk assessor. I would also be very happy to see such a prosecution.

However, to my mind, even though the RP can obtain the services of an other to carry out the FRA, the RP still has the explicit duty to make a S&S assessment of the risks identified and to review the risk assessment (particularly) where there is reason to suspect the RA is not valid.

No such or indeed any duties, responsibilities or definition of a risk assessor are specified within the order. That is not to say that the RA should not be held accountable but I would suspect that this accountability would typically be by way of tort.

Jane, a useful comparison. I note that the HSE indicate that in such cases they are more likely to consider proceedings against the principal duty holder, that is not to say they cannot take proceedings against the consultant but that they consider such an action to be unusual.

I agree that Article 32(10) could be applied in the same manner as Section 36(1) HSAWA.

On considering Article 5(3), (4) as presented by Messy, I can now see and agree how this can be applied (out side of a workplace) to a number of individuals i.e. fire alarm, suppression system design & installation. I still cannot see that it applies to an individual carrying out a FRA as the assessor in the strictist term does not have control or obligation as regards the safety of the premises. The assessor is providing a snap shot of the premises at that particular time, the assessor provides a report of findings and recommendations for the RP to review, consider and possibly act.

The safety of the premises in such circumstance rests with the RP as the controlling mind with access to funds.

Hi Heather,
Taken from the enforment guidelines , within a work place the employer is the RP, outside of a place of work the RP may be others as set out within Article 5.

From the Communities & Local Government (RR(FSO) Guidance Note No. 1 “Enforcement”

Article 3 – Meaning of “responsible person”

33. Article 3 defines who is the responsible person for the premises. In order to meet the obligations under EC Directives, wherever there is an employer they will continue to be responsible for the safety of their employees. In order to achieve the necessary broader coverage of the legislation beyond workplaces, the definition has been extended.

Therefore, where there is no employer in any premises, the occupier or owner of the
premises is the responsible person.


34. The responsible person will be responsible not only for the safety of employees, but for that of any person (a “relevant person”, as defined in article 2) lawfully on the premises, or in the immediate vicinity of the premises and at risk from a fire on the premises.

35. Article 3(a) provides that in a workplace the employer is the responsible person if
the workplace is under the employer’s control. This reflects the Framework Directive
(89/391/EEC),

36. If the premises are not a workplace, or are a workplace but are not under the
employer’s control, the responsible person is determined by whether the person who
has control over the premises does so in connection with the carrying on of a trade,
business or undertaking (whether or not for profit).


37. If so, article 3(b)(i) provides that the person with control is the responsible person.

38. If not, article 3(b)(ii) provides that the owner is the responsible person. Article 5(3)
extends the responsible person’s duties to include any other person to the extent
that they have control of the premises. Under Article 5(4) any person who by virtue
of any contract or tenancy has obligations of any extent in respect of maintenance of
the premises (and anything in them) or the safety of the premises is to be treated to
that extent as a person who has control for the purposes of Article 5(3).

Enforcing authorities should note that due to the reference to the term “any contract” is not intended to be limited to those in respect of the occupation of property, eg a lease or licence to occupy, but would include, for example, a contract for the installation and/or maintenance of a fire alarm system or a fire sprinkler system.

39. In many cases there will be more than one person subject to the obligations of a
responsible person for premises.
and the degree to which the person can exercise control over safety in the premises. This is a deliberate aspect of the Order to allow enforcement action to be taken against the person who is culpable and/or in a position to remedy contraventions.

Heather, Based on this, I consider that within a “workplace” in all cases total responsibility rests with the employer

Bleve

I've had personal involvement in a prosecution under HSWA Section 36(1) where the principal duty holder was not prosecuted, but have also written a Section 36(1) prosecution alongside Section 3(1) charge against the employer.

Regards, Peter

Yes, I have no doubt that we will see proceedings against designers/installers etc but I dont see that this will be applied towards a fire risk assessor mainly due to the wooly legislation and government guidance concerning FRA.

I wouldnt be surprised if the FA backed down and proceeded down the easy path. Pity, proceedings against the FRA would make a lot of people stop and think.