As a result of my previous article, The End of Fire Risk Assessors?, I have received a number of enquiries regarding the extent to which fire risk assessors could be liable for prosecution in the event of a fire risk assessment being deemed not “suitable and sufficient” by an enforcing authority. I have also been instructed to draft appropriate disclaimers, so as to limit the extent of that liability in the event of an investigation.
As I outlined, any liability would stem from articles 5(3) and 5(4) of the Regulatory Reform (Fire Safety) Order 2005. However, that liability is limited to the extent to which the fire risk assessor has control over the premises in question. In addition, the fire risk assessment which is deemed to be not suitable and sufficient must have placed one or more relevant persons at risk of death or serious injury in case of fire.
It is essential, therefore, that the fire risk assessor makes the terms of his instruction crystal clear within the fire risk assessment. It is not possible to disclaim criminal liability, but it is possible to clarify the exact nature of the assessor’s involvement with the premises. This can be done through disclaimers, which are signed by the responsible person to ensure that the RP is in no doubt about the limited control passed to the assessor.
For example, if the fire risk assessor has no control over the ongoing management of the premises, once the report has been completed then this must be made clear. Nor should he be responsible for the failure to implement significant findings. If the assessor is not satisfied with the amount of information he has regarding the management setup and running of the premises, he should say so in his report, or at least make clear that certain information has not been provided.
The same applies to his lack of control over staffing levels.
Many fire risk assessments are compiled without the assessor having had full access to the premises or an opportunity to test for fire protection or sufficient separation. Again, it should be made clear that findings may be based on visual observation only, and without appropriate surveys being carried out. This may not have been possible for a number of reasons (not least the limited fee for the assessment and report agreed with the responsible person).
Reference should also be made to the requirements of third-party enforcement agencies, such as local authorities or building control and whether or not the terms of instruction extend to those aspects.
Clear disclaimers should be given in respect of subsequent changes to the premises, subsequent faults in equipment, or deterioration in the premises and testing requirements. It may sound obvious, but any draft or provisional assessment should be clearly marked as such.
In addition to proving that a fire risk assessment was not suitable and sufficient, to succeed in any prosecution an enforcing authority would have to show that the responsible person relied entirely upon the fire risk assessment provided, and complied with its recommendations, where relevant. It would then be necessary to prove that the shortcomings of the report placed one or more relevant persons at risk of death or serious injury in case of fire. The risk does not have to be a serious risk, as is put forward by many experts. Any risk will suffice. Accordingly, the fire risk assessor must make very clear that the responsibility for the ongoing management of the premises and even, if necessary, the decision to allow the premises to be used for its present purpose, remains with the responsible person.
In the event of a prosecution, the first thing the court would do is look at the nature of the retainer between the responsible person and the fire risk assessor. It is for this reason that the retainer must be clearly agreed and evidenced within the report, so that the control of the premises is minimized to its correct extent and it is clear that the fire risk assessor has not adopted any unnecessary responsibility for the premises, which should remain with the responsible person.
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I agree with your article, I was thinking the whole time I was reading it that so much could happen between the time of inspection and an incident. I don’t believe a fire risk assessor should be held liable after a certain amount of time because of the variables at play. I would think any attempt to hold a fire risk assessor liable would also have to prove that these assessments happened at regularly defined intervals. I wonder are there any kind of stipulations that say these inspections have to be reconducted after say a renovation or management change?
You are right. I have just been involved in a prosecution where a Risk Assessor was charged 4 years after he had compiled his report. This was because an unsuitable escape route had not been altered in that time. A stipulation that the FRA should be regularly reviewed is certainly recommended but it wouldn’t have helped the assessor in that prosecution.
I’d say that if you have just taken over a building that was owned by someone else then you should look to get your own FRA done, as you are now responsible, and how could you vouch for the previous risk assessment?
@RobYou are right , How could one determine
I think the liability of fire risk assessors should be limited. Like Jonathan said, there are so many things that can happen in between making the assessment and any cases or incidents. At this rate, no one would want to be a fire risk assessor because they are being blamed for something that they aren’t completely liable for.
Warren’s input is pretty much the case-in-point for the debate for me. Four years just seems much too harsh. What about the establishment? Were they charged, too?
Good article Warren, Fire risk assessors are having to put more and more disclaimers on FRA documents. PAS 79 has quite a few in the form of notes and footnotes but the assessor also has to consider site specific disclaimers. Unfortunately the ‘gotcha’ culture amongst some fire authorities makes it as much a back covering exercise these days as it is a practical fire risk assessment. The purpose built flats guidance breaks the assessments down into types 1,2,3 and 4. Type one being non-intrusive. Much of the wording from that description can be used to describe the extent of most… Read more »
Yes – the owners and occupier (employer) were charged too.
Thanks Littlebit, a great comment here. You’re right that a risk assessor has a duty of care to take imminent lifethreatening problems forward, and I would like to think most would. Certainly anyone who is conscientous enough to have PAS79 accreditation would. I almost wonder if a risk assessors oath, like a hypocratic oath, would help here? Risk assessors deal with life safety so they should also be bound by their responsibility. Anyone who is in breach of their own oath could then be expected to be liable for prosecution. This may well weed out the bad eggs who masquerade… Read more »
@Warren, well, at least they were held liable, too.
It goes to show that you can’t always pass on the responsibility, and that anyone in the chain can e held liable for mistakes they’ve made. It’s not an exercise of scapegoating