Mindful of the need to avoid a consultants charter, has the ‘light touch' regulatory ethos of the Fire Safety Order resulted in some responsible persons being out of their depth? Tom Welland thinks this may be the case.

Three years have passed since the Regulatory Reform (Fire Safety) Order came into force, and there is growing concern about the effectiveness of its guidelines, particularly in the current harsh economic climate when every penny spent on non-capital expenditure, such as on safety reviews and staff training, is likely to be begrudged.

Mixed reception
The views of accredited fire risk assessors from the grassroots are mixed. On the one hand, fire safety professionals welcome the consolidation of some 70 separate items of fire safety legislation into a single one. Yet on the other hand, they question the open-endedness of the interpretation of the Fire Safety Order's provisions, which seems to have sown confusion among many of the legislation's enforcers.

In particular, there is frustration that very often brigades are pitted against each other in their judgements as to how the legislation is implemented, with conflicting opinion leading to confusion for key stakeholders in property management. In fact, some fire departments are adopting a very prescriptive approach, against the express intentions of the Order.

For example, a typical case was where a company administered a chain of care homes across a country, and RRFSO-based guidance from one county fire authority conflicted with guidance from another. What's more, the ‘regionalisation' of RRFSO guidelines in this case has also prevented the care home group from devising a common fire safety policy that has country-wide application, adding a further onerous burden of cost.

Pro-forma needed
This search for commonality is also reflected in the lack of consistency in documenting a fire risk assessment, which can lead to a general fogginess in recording and comprehending the assessment. Why is there not simply one definitive, official pro-forma document for completing the risk assessment report? As it is, anyone can compose their own form, and brigade inspecting officers often complain about wading through reams of paper to locate the record of a fire safety measure, when a standard compulsory format would ensure consistency of compliance.

In his interim report into the emerging issues arising from July's multi-fatality fire at Lakanal House in London, the government's chief fire and rescue adviser, Sir Ken Knight, voices concern about the ignorance of appropriate levels of fire safety. Speaking of the need for adequate illumination and signage for the means of escape within common areas of high-rise residential buildings, he said: "Within current guidance there is an expectation for such provision, however it appears this may not be fully understood by the responsible person."

In my own experience this last point is very true, with many a responsible person out of their depth in a role that is not their first line of responsibility, and a role with an unwelcome burden they were reluctant to accept at the outset.

Reasonably practicable?
In the weeks and months after the Lakanal House fire, there has been a flurry of risk assessment activity by social landlords of high rise housing in London and beyond, begging the question as to why these fire risk assessments had not been done some three years after the RRFSO came into force? But according to a BBC investigation, even as recently as last month there were still hundreds of residential blocks over six storeys high in London alone, with no valid risk assessment in place.

Without drawing prejudicial conclusions, this heightened activity may well be an accurate reflection of the response of the public sector generally to the lessons drawn from this tragedy. Of course, the reality is that cash-strapped local authorities, in general, continue to address the enforcement of safety legislation by applying the concept of ‘reasonably practicable'. At a time of tough budget constraints imposed on local authorities, we can expect to see duty-holders follow more and more the principle of reducing risk to levels as low as reasonably practicable.

In the short term, then, the emphasis on pragmatic practice is likely to be a more proportionate risk-assessed approach to potential hazards, and the prioritisation of protection measures essential to life safety. This approach might mean, for example, deferring sophisticated upgrades for automatic fire systems where appropriate, while insisting on more rigorous test and maintenance routines for existing fire protection installations.

The underlying realities of the RRFSO's implementation are further revealed by Southwark Council's most recent comments in the aftermath of the Lakanal fire, when a spokesman said: "When the requirement to undertake fire risk assessments was introduced, it was clearly understood that a programme of several thousand inspections could not be conducted overnight. In Southwark we have to undertake over 3000 inspections. We now have FRAs for all blocks over six storeys and a quarter of them were completed before the fire at Lakanal. Since the tragic events at Lakanal, we have also conducted intrusive inspections on some of our properties. These intrusive inspections are completely different, and go way beyond what is required in a fire risk assessment."

Proportionate solutions
Within my own circle of colleagues in fire risk assessment consultancy, the word is that managers of small to medium sized businesses (i.e. generally those that do not have a full-time employed health and safety manager) are diligent in their duty to their employees, and conscientious in seeking compliance. But they frequently remain uncertain about the extent of the RRFSO's implementation because of the complexity of the fire risk assessment.  And because of this uncertainty, they often fall into the trap of over-prescription of fire safety measures, at prohibitive cost to the business budget.

As one fire safety company which was quoted in the care sector press said recently: "We conduct lots of risk assessments and we like to think that by improving staff awareness by training, reviewing policies and changing management procedures, there is often no need to purchase any more equipment as lots of workplaces, in our experience, have in fact been over-prescribed."

So it should not be forgotten that the RRFSO also says that, in making fire safety arrangements, "the responsible person must make and give effect to such arrangements as are appropriate, having regard to the size of the undertaking and the nature of its activities".

Meaningful dialogue
This ‘proportionality' of response can be aptly demonstrated by the recent case of a company that sought our consultancy to resolve serious difficulties about the application of the new fire safety legislation, following an inspection by the local fire officer.

This company had been in business successfully for over 20 years, and had been routinely inspected by the fire service with few problems. However, after the inspection the firm was served an enforcement notice under the RRFSO, effectively committing the owner to a substantial capital outlay – or even a criminal prosecution if left unchallenged. The key concern of the fire officer was the apparent limited cover provided by the existing fire detection equipment in not conforming to the L1 category of BS 5839-1.

The owner was given just two months to do the work, despite the fact that a full fire risk assessment had only recently been carried out, which had accepted the level of fire detection given by the existing fire alarm system as reasonable in the circumstances of the case.

Unfortunately, with plans to rebuild or, at least, carry out substantial major refurbishment of the property, the estimate of almost £30,000 to install the additional fire detectors was difficult to justify as an extra cost in the short term. Added to this were the inherent structural difficulties of rewiring every room in a predominantly concrete structure with the near impossibility of easily routing and concealing cables.

The notice, therefore, was received with a degree of resigned acceptance. What was not acceptable, however, was the very tight timescale attached and what appeared to be a reluctance on the part of the fire authority to assist in recommending alternative solutions. This is not an isolated case. In our experience it is becoming increasingly difficult to get fire safety officers to agree to deviate from the recommendations contained within the fire safety guides.
     
Compromise agreed
Following one of our consultants visiting the premises, an immediate appeal under Article 35 of the Fire Safety Order was lodged with the local magistrates court. This move was vitally important as the Order only allows 21 days to appeal – time that can easily be swallowed up by discussions and meetings with the fire service, other professionals and contractors.

Our consultancy helped the owner prepare an ‘action plan', formulated to improve both the company's own emergency evacuation plan and the means for detecting a fire in a cost effective and achievable manner. This was put to the fire officer who agreed a compromise.

As high profile cases in the press confirm, fire and rescue authorities nationally are showing an increasing tendency to prosecute, so many companies may feel they are being bulldozed into hasty decisions of over-specification that they'll come to regret.

Under the current difficult economic conditions, the most valuable service fire risk assessment consultants can render their clients is to remind them that the RRFSO is essentially a guidance document for a self-assessment regime, and there are often alternative solutions to be found for any fire safety problem. Nor should they forget that their duty under the RRFSO is to make ‘appropriate' fire safety arrangements, having regard to the size and the nature of their business.

Government register?
Because of its aim to deregulate, one of the undesirable consequences of the Fire Safety Order has been the appearance of amateurs and bogus consultants peddling misleading advice. The Order admits the need, of course, for third party consultancy, since the regulations stipulate that the responsible person can nominate one or more competent persons to assist in the undertaking of fire safety measures.

The assumption of competency by the responsible person, however, can lead to a breach of the regulations if there is a failure to nominate third parties meeting the RRFSO's competency requirements. The Regulations define competency as having "sufficient training and experience or knowledge and other qualities" to enable the task in question to be properly undertaken.

There is a growing number of voluntary registration schemes of fire risk assessors. But when the successful implementation of the legislation hinges on the competency of professional consultants, surely it would make excellent sense for the Communities and Local Government department to support their policy by launching a government register of accredited fire risk assessors? That way, the cowboy consultants would be reined in.

The initial evaluation of the effectiveness of the Fire Safety Order, published in February by the Communities and Local Government department, noted the need for greater clarity about who may have an appropriate level of competency to assist with delivering compliance under the legislation, and for advice on how to access it. It said enforcers recognised that responsible persons may wish to use someone with greater fire safety expertise than themselves to carry out a risk assessment, and they would welcome an agreed accreditation system.  

Tom Welland is fire services manager at Fireco.
Response to this article from CFOA