When the UK’s draft Regulatory Reform (Fire Safety) Order (RRO) was published in 2005, it was heralded as a Risk Assessor’s Charter. The popular belief was that retired fire officers and fire safety consultants would make thousands by charging small and midsized businesses hundreds of pounds to compile a fire risk assessment (FRA) appropriate for their premises.
I think it is fair to say those predictions have not proven accurate. Many small and midsized enterprises have found the cost of an FRA prohibitive and have chosen either to tackle the task themselves or to carry on trading without one.
One aspect of the draft order that may not have been considered in 2005 was that, under Article 5, the fire risk assessor could become a “responsible person” and, as such, be liable to criminal proceedings if the FRA was not suitable and sufficient. The responsible person, defined under Article 3, is required to appoint a competent person to carry out this technical and, to the layperson, complicated task. But, in my view, there is no real definition of “competent” within the order.
Definition of a competent person
Article 18 says a competent person is someone who has “sufficient training and experience or knowledge and other qualities to enable him properly to assist in undertaking the preventive and protective measures.” But how much training, experience, and knowledge is sufficient?
Guidance from the Chief Fire Officers Association (CFOA) recognizes that different levels of competence are likely to be necessary for facilities that provide varying degrees of risk. As far as I am aware, there are still no recognized criteria or accreditation processes that give the layperson any indication of the competence of fire risk assessors.
In July 2011, the Nottingham Crown Court sentenced John O’Rourke of Mansfield Fire Protection Services to eight months in prison. He had pleaded guilty to compiling two FRAs that were not suitable and sufficient. Quite right, you may say, that the public should be protected from incompetent fire risk assessors.
What is suitable and sufficient?
But what about the situation where enforcing fire officers decide that an FRA compiled by a suitably trained and experienced assessor is not suitable and sufficient? Has an offense been committed? It has if the court agrees with the enforcing authority.
And what if a fire risk assessor were convicted of such an offense? Who would want to compile an FRA if a disagreement as to an appropriate escape route or an acceptable means of escape could lead to a criminal investigation?
The Nottingham case confirmed that the fire risk assessor could be held liable under Article 5. The uncertainty about who is and isn’t competent inevitably leads to a situation where the enforcing authorities consider whether an FRA is suitable and sufficient and work backward to evaluate the assessor’s competence.
This is a dangerous situation. How does the consultant defend himself, other than to pay thousands of pounds to another expert consultant, in the hope that this consultant will find support for his reasoned and well-considered viewpoint?
Article 36 provides for a resolution of any such disputes by the secretary of state, who will consider what measures are necessary to remedy an alleged failure to comply with the order. But that article requires the responsible person to admit to breaching the order. This would be tantamount to admitting to a criminal offense.
I understand that the CFOA is about to clarify its position on the competence of fire risk assessors. But will this guidance provides an adequate defense for a risk assessor whose assessment has been deemed not suitable and sufficient? I am not sure that it will.
2023 Fire Safety eBook – Grab your free copy!
Download the Fire Safety in 2023 eBook, keeping you up to date with the biggest news and prosecution stories from around the industry. Chapters include important updates such as the Fire Safety (England) Regulations 2022 and an overview of the new British Standard for the digital management of fire safety information.
Plus, we explore the growing risks of lithium-ion battery fires and hear from experts in disability evacuation and social housing.
