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Regulatory update
8 September 2009
Fire authorities are used to responding to serious incidents and
their aftermath, but it is essential to keep up to date with
regulatory legal issues which are constantly changing. This month
we look at some proposals and changes affecting a Fire Authority’s
position firstly when incidents are investigated and secondly
concerning fire safety.
Incident Investigation
CLG’s Chief Fire and Rescue Adviser Sir Ken Knight has had a
busy time. He was given a month to produce a report on emerging
issues arising from the investigation into the Lakanal House fire
where 6 people lost their lives on 3 July 2009. He delivered his
report on 30 July 2009. Eight “emerging issues” are
identified:-
Investigations, advice to occupants, internal and external fire
spread, passive fire protection, active fire protection,
operational guidance, Regulatory Reform (Fire Safety) Order 2005
and the Decent Homes Programme.
On investigations, Sir Ken notes that there is a potential for a
conflict of interest where the fire safety enforcing authority is
also itself subject to investigation. This scenario can be
eliminated by the use of Article 26 (3) of the Regulatory Reform
(Fire Safety) Order 2005 which enables the fire authority to
arrange with the Health and Safety Executive for the Executive to
discharge its enforcement role.
Lakanal House had been renovated under the Decent Homes
programme. Previously there was no specific basis under the
programme for fire safety works to be undertaken to common parts
given the focus upon the dwelling in the programme. Government has
announced its intention to rectify this aspect in the consultation
document Reform of Council Housing Finance issued by the Housing
Minister on 21 July 2009.
Dodge Holme Court, Mixenden, Halifax
It is no coincidence that in July 2009 officers from West
Yorkshire Fire and Rescue Service and Calderdale Council’s
Environmental Health Services visited the building to assess
whether it met with fire safety requirements. Major concerns were
raised by the Fire Service regarding a serious and imminent fire
safety risk to both the residents and fire-fighters. Works of
£200-300K were identified as necessary and the ownership of this
high rise block of flats was unclear.
It was decided to serve an Emergency Prohibition Order under the
Housing Act 2004, followed by a controlled evacuation and
re-housing of 46 households residing in the flats. This illustrates
how pro-active and joint enforcement action is a potent option
where fire safety risks are unacceptable and likely to remain
so.
Coroners Rules – Rule 43 Letters
Sir Ken wrote to Chiefs on 21 November 2008 concerning the
changes to Rule 43 of the Coroners Rules 1984. The changes took
effect from the 17th July 2008 and are detailed in The Coroners
(Amendment) Rules 2008.
The amended rule introduces a new statutory duty for
organisations to respond to coroner reports. The rule requires that
a written response be provided within 56 days of the day of the
report being sent; although it is possible to apply for an
extension.
The amended rule requires the Coroner to provide interested
parties to the inquest and the Lord Chancellor with a copy of their
report and the response(s) received.
CLG Circular 49/2009 contains the following request:-
When a FRA receives a Coroner’s letter addressed either to a
Chief Fire Officer or a FRA it is advised that the CFRA should be
contacted as soon as possible to ensure that the appropriate advice
is made available to the FRA. It is also advisable that the CFRA is
alerted to any subsequent recommendations made by a coroner within
the Rule 43 process so that consideration can be given as to
whether there is a need to issue or amend national advice or
guidance.
Clearly it is important that national consistency and response
is achieved in relation to the recommendations of coroners. Equally
it is essential that Fire Authorities engage carefully with a
coroner whenever the coroner indicates that the involvement of the
Fire Authority will or may come under consideration at an inquest
and in such circumstances systems need to be in place to ensure
that there is appropriate escalation to senior officers.
Fire Safety
Following on from the hefty £300K fine of Shell, Nottinghamshire
Fire and Rescue Service prosecuted Michael Snow concerning an
indoor market in breach of RRO requirements and Prohibition
Notices. Judge Bennett sentenced Michael Snow to six months
imprisonment suspended for two years; also ordered him to carry out
100 hours of unpaid work; fined him a total of £24 000 and ordered
him to pay the Authority’s costs of £9 000. Anyone wishing a
transcript of the Judge’s remarks in sentencing Mr Snow should
contact Jacob Rickett jrickett@brownejacobson.com.
Finally it should be noted that CLG are proposing to amend the
Regulatory Reform (Fire Safety) Order 2005. This relates to the
requirement in the EU Framework Directive that an employer takes
into account a “worker’s capabilities as regards health and
safety.” This requirement is enacted by the Management of Health
and Safety at Work Regulations 1999. Unfortunately in an effort to
avoid duplication of legislation the 1999 Regulations are
disapplied in relation to fire safety issues under the 2005 Order.
Clearly it is important that this requirement is operative in the
fire safety context so expect it to be in force from February
2010.
This article was first published in Fire
Magazine
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