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Fire safety precautions – enforcement and liaison

Formerly OC 217/05 and OC 217/06

Summary

This guidance explains the enforcement and the enforcement demarcations and provides information on the interface between the main general fire safety legislation applicable in the Regulatory Reform (Fire Safety) Order (RR(FS)O) and the Fire (Scotland) Act (F(S)A) (see Legislation section for links). It also outlines the enforcement responsibilities with respect to general fire safety precautions.

Introduction

‘Process’ and ‘General’ fire safety precautions

Legislation distinguishes between process fire safety precautions and general fire safety precautions in the workplace.

The term ‘process fire precautions’ (PFPs) is used to mean those special, technical or organisational measures required to be taken or observed in any workplace connected with the carrying on of any ‘work process’ (see below definition), where those precautions are: 

The term ‘work process’ means all aspects of work involving, or in connection with:

The term ‘PFP’ is not confined to industrial premises but includes all relevant work activities and the keeping and use of dangerous substances.

Enforcement responsibility for PFPs in places of work and in premises where dangerous substances are kept and used lies with HSE or such other enforcing authorities as determined by the Health and Safety (Enforcing Authority) Regulations 1998, the Petroleum (Consolidation) Act 1928 (Enforcement) Regulations 1979 (under review) and the Manufacture and storage of explosives Regulations 2005. See the ‘Further References’ section for links.

The term ‘general fire precautions’ (GFPs) is used to mean the measures in places of work to reduce the risk of fire and its spread on the premises, and include:

Enforcement responsibility for general fire precautions in the majority of workplaces rests with the local Fire and Rescue Authority (FRA). The FRAs are defined in Section 1 of the Fire and Rescues Services Act 2004 for England and Wales (FRSA) and in Section 1 of the Fire (Scotland) Act for Scotland as amended (see Part 2 of the Police and Fire Reform Scotland Act 2012).  However there are certain situations where HSE retains enforcement of general fire precautions (see ‘Action’).

The terms ‘general fire precautions’ and ‘process fire precautions’ overlap and may affect each other in practice. In most cases it will be clear who should give advice and, if appropriate, take enforcement action.

Action

The specific arrangements in nuclear premises, shipbuilding and construction sites are as follows:

Nuclear sites

The Office for Nuclear Regulation (ONR) enforces PFPs and GFPs in the following:

ONR Fire Safety Inspectors enforce the RR(FS)O and the F(S)A on nuclear licensed sites.

On 01 April 2014 ONR became a public corporation, separate from HSE, under changes introduced by the Energy Act 2013. Under the Act the regulation of health and safety on nuclear sites becomes the responsibility of ONR: an in-house ONR Conventional Health and Safety Team (CHST) has been established to carry out this role.

Under the Energy Act 2013 ONR have vires for construction operations within an existing licensed nuclear installation: work extending beyond the existing site boundary falls to HSE. A new nuclear build can only proceed once the operator has obtained a nuclear site licence. The Energy Act 2013 has extended ONR’s vires for new build construction to include the wider construction site, encompassing any overspill beyond the boundary. Construction site and construction work are as defined under the Construction (Design and Management) Regulations 2015.

Acting in collaboration with ONR, the Construction Division (CD) of HSE will regulate nuclear construction projects. A nuclear site remains licensed until there ceases to be any danger from ionising radiations – the site is licensed for all work associated decommissioning.

Shipbuilding and ship repair

HSE enforces PFPs and GFPs where a ship, including a ship which forms part of HM Forces, is in the course of construction, reconstruction or conversion or repair by persons who include persons other than the master and the crew of the ship

More information specific to shipbuilding and ship-repair.

Construction

HSE enforces PFPs and GFPs at any workplace which is or is on a construction site within the meaning of regulation 2(1) of the Construction (Design and Management) Regulations 2007 (CDM) other than construction sites referred to in regulation 46 of those Regulations eg. a construction site which is contained within, or forms part of, premises which are occupied by persons other than those carrying out the construction work. See Appendix 1 for more information specific to Construction.

ONR Fire Safety Inspectors

Where HSE enforces GFPs in the workplace of any of the above premises, ONR Fire Safety Inspectors are available to HSE to provide expert advice, please contact the ONR Lead Fire Inspector. 

HSE Inspectors should take immediate action if they are of the opinion there is a risk of serious personal injury in a premises.

Premises subject to the Control of Major Accident Hazards Regulations 1999 (COMAH)

FRAs have enforcement responsibility for GFPs at all COMAH premises. However, COMAH applies wherever there are sufficient quantities of dangerous substance and inspectors may take actions which might affect general fire precautions because they are dealing with major hazard potential. This means that Article 47 in the RR(FS)O only affects the actions inspectors can take in respect of general fire precautions; it does not affect the application of COMAH. The expectation is that there would be consultation with the fire authorities when this situation arises.

More information on COMAH.

Enforcement Management Model (EMM)

The information in Appendix 2 is intended to be read in conjunction with the EMM to assist in ensuring consistency and proportionality of action when enforcement in relation to where GFPs is involved.

Application of Fee for Intervention (FFI) – when and when not to recover costs

There are two overlapping regimes ie the Regulatory Reform (Fire Safety) Order / Fire (Scotland) Act and the Health and Safety at Work Act (HSWA) and its relevant statutory provisions (RSPs), see legislation section for links to legislation.

HSE Inspectors may have powers under both RR(FS)O / F(S)A and HSWA and its RSPs (see warrants section).

If there is a breach of the law then all inspectors must be clear initially whether this is a breach of the RR(FS)O / F(S)A, or a material breach of the health and safety law under HSWA.

Fee for Intervention will not apply in respect of a breach under the RR(FS)O / F(S)A; Fee for Intervention will apply where there is a material breach of health and safety law under the HSWA, including those which overlap with RR(FS)O / F(S)A

Further HSE guidance for how FFI might be applied can be found in the following links:

Action by HSE/LA inspectors in connection with GFPs (where HSE/LA is not the enforcing authority for GFPs) - matters of evident concern (MECs)

Liaison arrangements between HSE/LAs and FRAs for GFPs

Where an inspector becomes aware of inadequacies in GFPs which are evident and a concern, it is crucial that the local FRA is informed immediately. Draw the concerns to the attention of the duty holder and notify the concerns to the FRA in the following way:

This will enable the FRA to consider the appropriate enforcement action. Include details of this action on the COIN record for the visit. Any report given to the dutyholder at the visit should include a reference of your intention to contact the local FRA.

Inspectors should liaise with the FRA when serving a prohibition notice, an improvement notice or an imposition of a requirement that might affect GFPs is being considered.

For more information see:

OC 18/24v4 Matters of evident concern (MEC)

Local Authority enforcement

Where the notifications described above are within the following Crown premises (where HSE has exclusive enforcement responsibility) the HSE inspector should notify the concerns to the organisations indicated as follows (see Appendix 3 for contact details):

If there are significant PFP inadequacies which overlap with GFPs, joint action may be appropriate. However, the initiative for further action on GFPs, or liaison with any other enforcing authority concerning this, rests with the relevant non HSE enforcing authority once the matter has been notified as above.

Action by Fire and Rescue Authorities in connection with PFPs and matters of evident concern (MECs)

Liaison arrangements between FRAs and HSE

FRAs who become aware of inadequacies in PFPs of immediate concern should draw them to the attention of HSE. Where an immediate risk to life appears to be involved contact HSE through existing local networks or verbally by contacting the HSE Concerns and Advisory Team (CAT) Advice Telephone number 0300 003 1747.

The CAT will record the details in the proforma in Appendix 4 and immediately contact the local HSE inspector. The Inspector contacted by the CAT will be given the details in the proforma on the matter of evident concern. This should be treated as urgent and receive immediate attention. The HSE inspector should subsequently inform the local FRA of the action decided upon.

Where an immediate risk to life is not involved, the FRA should notify HSE via the on-line CAT form or again through local contacts.

Handling workplace concerns about fire precautions from the public

Concerns about fire precautions should be dealt with as follows:

  1. If the concern relates to PFPs, or is one of a number of concerns about a workplace, it should be dealt with in accordance with normal FOD procedures for handling reactive issues.
  2. If the concern relates solely to GFPs in premises for which the HSE/LA is not the enforcing authority, the complainant should be advised to contact their local FRA unless the workplace is occupied or owned by the Crown. In such circumstances, the complainant should be referred to the Crown premises contacts in Appendix 3.

Background

Legislation

Workplace general fire safety requirements, termed ‘general fire precautions’ and in Scotland ‘fire safety measures’, are made under:

Workplace process fire safety requirements, termed ‘process fire precautions (PFPs), are made under:

HSE arrangements for enforcement of the RR(FS)O / F(S)A

Although there are detailed differences between the RR(FS)O and the F(S)A, the fundamental requirements are generally paralleled between the two pieces of legislation. See Appendix 5 for a summary of the equivalent articles.

Warrants

The RR(FS)O and F(S)A are not Relevant Statutory Provisions of the HSWA. Therefore inspectors appointed under Section 19 of HSWA are not entitled to enforce these provisions.

Inspectors must be directly appointed under the RR(FS)O and the F(S)A. Therefore they should confirm that their warrants include enforcement powers under this legislation before seeking to take enforcement action in accordance with them.

The RR(FS)O and F(S)A introduce different enforcement tools to the HSWA. They are summarised in Appendix 6.

Online forms for enforcement and recording under the RR(FS)O and F(S)A can be found in the Forms Desktop  (the Notices are word templates and as per the text under the link on each form, select the link, and select the 'Save' option. Once the form has been saved, open the form in Microsoft Word to ensure normal word functionality).

FRA inspection and enforcement

Fire Safety Officers of the FRAs are responsible for inspections of GFPs and can check that the fire risk assessment and the fire prevention measures of dutyholders are appropriate. The FRAs can also take action when fire safety measures are inadequate by issuing an informal notice suggesting changes the dutyholder should consider making to make the premises safer, and/or give advice. The FRA can also issue an alterations notice, an enforcement notice or a prohibition notice if necessary.

In England and Wales, Section 36 of the RR(FS)O allows determination of disputes between the enforcing authority and a responsible person (or any other person mentioned in article 5(3)) by the Secretary of State (equivalent to appeal to tribunal under HSWA).

Guidance for enforcing authorities on referring matters for determination in England and Wales

In Scotland, Section 67 of the F(S)A as amended (“the Act”) allows referral of a dispute between an enforcing authority and a person who has duties under Chapter 1 of Part 3 of the Act (a “dutyholder”), for determination in a situation where the enforcing authority consider that a dutyholder has failed to comply with their fire safety (Chapter 1) duties  and the enforcing authority and the dutyholder fail to agree on what action should be taken. A referral for a determination under section 67 is submitted to the Chief Fire and Rescue Adviser.

Guidance for enforcing authorities  on referring matters for determination in Scotland  and on Determination of disputes can be found in the following links:

Organisation

No organisational requirements

Further References

HSE How to control risk at work – Fire Safety

HSE Enforcement policy statement

HSE Enforcement management model

Department for Communities and Local Government (DCLG) website

Chief Fire Officers Association (CFOA)

CFOA Enforcers guide

Scottish Fire and Rescue Service

Scottish Fire Law guidance

Fire safety in the workplace

Fire safety in the workplace:   Enforcement, appeals and penalties

Energy Act 2013 – changes to F(S)A

Energy Act 2013 - changes to RR(FS)O

The Health and Safety (Enforcing Authority) Regulations 1998

The Petroleum (Consolidation) Act 1928 (Enforcement) Regulations 1979 (under review)

The Manufacture and Storage of Explosives Regulations 2005

Contacts

FRA list of contacts

HSE Concerns and Advisory Team (CAT) Advice Telephone number 0300 003 1747

Appendixes

Appendix 1 - Construction – specific guidance

Appendix 2 - EMM benchmarks/initial enforcement expectations for GFPs

Appendix 3 - MOD and Crown premises - Contact addresses

Appendix 4 - CAT Proforma

Appendix 5 - Equivalence of provisions RR(FS)O and F(S)A

Appendix 6 - Principles of prevention are identified in the RR(FS)O/F(S)A that are similar to generic risk assessment guidance

Updated 2015-09-30