Fire service enforcement policy - service order 6

Introduction

The main aim of Lincolnshire Fire and Rescue Service is to make Lincolnshire a safer place.  Without imposing unnecessary burden we will:

  • reduce as far as possible the risks and social and economic costs of fires and other dangers
  • seek to ensure businesses comply with legal requirements

Lincolnshire Fire and Rescue Service enforces general fire safety legislation on behalf of Lincolnshire County Council. The legislation we enforce includes The Regulatory Reform (Fire Safety) Order 2005.

This enforcement policy is based on the principles of Better Regulation in the Regulators Code.  It sets out the approach we will take in enforcing the legislation. It will be used in conjunction with guidance issued by:

  • Parliament
  • communities and local government
  • Department for Business Enterprise and Regulatory Reform
  • the Local Better Regulation Office
  • other relevant government departments and agencies

Compliance with fire safety legislation will be achieved through:

  • education
  • providing advice and guidance
  • formal enforcement action

An important part of this enforcement policy is to:

  • secure compliance with statutory requirements
  • use enforcement powers proportionately, including prosecution

We will ensure that all relevant officers are adequately skilled and trained in using this policy. We will seek to work with other enforcing authorities to:

  • ensure collaborative regulation
  • share information

Advice and guidance

We regard prevention as better than cure. We will:

  • aim to secure compliance, avoiding bureaucracy or imposing excessive cost
  • seek to work with the regulated entity to support and encourage economic progress.  We will do this by offering information and advice to those we regulate
  • encourage individuals, businesses and other undertakings to:
    • put safety first
    • integrate fire prevention and fire protection requirements into normal working methods

Under section 6 of the Fire and Rescue Services Act 2004 we will, to the extent that we consider it reasonable to do so, make arrangements:

(a)  to prevent fires and death or injury by fire we will provide:

  • information
  • publicity
  • encouragement regarding the steps to be taken

(b)  for the provision of advice, on request, about:

  • how to prevent fires and restrict their spread in buildings and other property
  • the means of escape from buildings and other property in case of fire

In exercising its duty to provide advice and information, we will not:

  • Undertake fire risk assessments for regulated persons.
  • Appear in court on behalf of regulated persons under health and safety or fire safety legislation.  This includes any prosecution brought by a third party including another enforcing authority.  We will attend as an expert or neutral witness to give general mitigating evidence.
  • Draft fire safety policies and procedures on behalf of regulated persons. It is incumbent upon regulated persons to comply with fire safety legislation.
  • Act as a consultant on fire safety related issues other than:
    • as required to meet statutory consultation requirements imposed on other bodies and persons
    • where it is in the public interest and appropriate to the functions of a best value authority

Our officers will seek to provide advice appropriate to the premises and their use.  They will refer to nationally recognised guidance and standards.

We will not automatically take formal enforcement action where a regulated entity seeks advice or guidance about:

  • correcting fire safety deficiencies or
  • complying with the law

Should enforcement action be necessary, it will be based on the HSE’s Enforcement Management Model (EMM).  This model is considered to be national best practice.

We would prefer to advise and guide than serve notices or prosecute.  We must reserve the right to act in the public interest according to the circumstances of the case.

Purpose and method of enforcement

The purpose of our enforcement function is to:

  • ensure that preventative, remedial action is taken to protect relevant persons
  • secure compliance with the regulatory system.

The term enforcement has a wide meaning.  The need for enforcement may stem from a lack of knowledge or a deliberate or negligent act. It applies to all dealings between us and those on whom the law places a duty.

The purpose of enforcement is to:

  • promote and achieve sustained compliance with the law
  • ensure that the person responsible for premises subject to fire safety regulation takes immediate action to deal with serious risks to persons’ safety
  • ensure those individuals, businesses and other undertakings that breach fire safety requirements are held to account.  This may include bringing alleged offenders before the courts.

We have a wide range of interventions at its disposal to:

  • secure compliance with the law
  • ensure a proportionate response to criminal offences

Officers may offer individuals, businesses and other undertakings information and advice.  This can be in person, in writing by letter or email, or over the telephone. It may include a warning that, in the officer’s opinion, they are failing to comply with the law.

Where appropriate, officers may:

  • agree on an action plan
  • provide a notification of deficiencies report or serve an enforcement
  • prohibit or restrict the use of a premise
  • prosecute

These actions are important ways to bring individuals, businesses and other undertakings to account for alleged breaches of the law:

  • enforcement
  • prohibition notices
  • prosecutions

We will use one or more of these measures to secure compliance with fire safety legislation. This will be where it is appropriate to do so and in accordance with this policy.

Before taking any enforcement action, we will investigate the circumstances:

  • encountered during audits
  • following incidents of complaints

In deciding what resources to devote to these investigations, we will have regard to:

  • the principles of enforcement set out in this statement
  • the objectives published in the Integrated Risk Management Plan

We will use its discretion to decide when to investigate and what enforcement action may be appropriate.

We will set down in writing the decision-making process.  It will be made publicly available.  When deciding on enforcement action, officers will:

  • follow the decision-making process
  • utilise this policy

Such judgments will be made following Better Regulation principles, which are in accordance with the Regulators Code.

Principles of enforcement

We believe in firm but fair enforcement of fire safety law. We follow the principles of:

  • proportionality in applying the law and securing compliance
  • consistency of approach
  • targeting of enforcement action
  • transparency about how the regulator operates
  • what those regulated may expect
  • accountability for the regulator’s actions

Proportionality

Proportionality means relating enforcement action taken to the risk to public safety.

Those whom the law protects and those on whom it places duties (duty holders) expect that our actions will:

  • achieve compliance
  • bring individuals, businesses or other undertakings to account for non-compliance

These actions should be proportionate to:

  • any risks to public safety
  • the seriousness of any breach
  • any actual or potential harm arising from the breach of the law

In determining the appropriate action to take, we will give consideration to:

  • costs
  • effectiveness
  • perceptions of fairness of regulation

These considerations will be appropriately balanced against public safety.  As far as is reasonably practicable, the costs of actions taken are proportionate to the expected benefits.

Targeting

Targeting means ensuring that regulatory effort is directed primarily towards those whose activities give rise to higher levels of risk to public or employee (relevant persons) safety.  This can be where the hazards and risks could be better controlled or against deliberate offences.

Through targeting, we aim our regulatory effort to consider the level of risk. Action will be focused on those directly responsible for the risk and who are best placed to control it.

We have systems for prioritising regulatory effort. These include a risk-based inspection programme and localised plans to identify high-risk premises.

Underpinning our approach to regulatory activity are:

  • risk assessment
  • utilizing methodology and data provided by communities and local government
  • local data, intelligence and knowledge

We will seek to identify relevant, good-quality data to continually improve its risk-based audit and inspection programme.

Consistency

Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends.

Our approach will be consistent regarding:

  • the advice tendered
  • the use of enforcement powers
  • decisions on whether to prosecute
  • responses to incidents and complaints

We have arrangements to promote consistency in the exercise of discretion.  This includes arrangements for liaison with other enforcing authorities.  We will seek to continually improve through internal review, audit and consideration of comments received.

Transparency

Transparency means helping individuals, businesses and other undertakings to understand:

  • what is expected of them
  • what is not expected of them
  • what they should expect from us

This involves distinguishing between statutory requirements and advice or guidance about what is desirable but not compulsory.

This statement sets out the general policy framework within which we operate. Businesses, other undertakings and individuals also need to know:

  • what to expect when an officer calls
  • what rights of complaint are open to them

The following can be expected when an officer is dealing with you:

  • An officer may offer information or advice, either face to face or in writing, including any warning.  They will explain what needs to be done to comply with the law and explain why.
  • Officers will, if asked, write to confirm any advice and to distinguish legal requirements from best practice advice.
  • Unless urgent action is necessary, the option to discuss what is required to comply with the law will be offered before formal enforcement action is taken.
  • A written explanation detailing any rights of appeal against formal enforcement action when the action is taken.
  • Where examples of good practice are identified, officers will aim to provide positive feedback to encourage and reinforce these good practices.  They may share them with others as examples of good practice.

Accountability

Regulators are accountable to the public for their actions. This means that enforcing authorities must have:

  • policies and standards against which they can be judged.  For example, those outlined in this policy and our Equalities policy.
  • an effective and easily accessible mechanism for dealing with comments and handling complaints

Find out about our complaints procedure.

A published complaints procedure demonstrates to the public that we take their comments seriously. These comments highlight potential problems and help us to build on what we do well.

Audit and inspection of premises

We operate a risk-based system of audit and inspection of premises. This system utilises data and guidance from communities and local government together with local intelligence and knowledge.  It incorporates local risk priorities identified from:

  • trends in location
  • types of fire
  • assessment of the vulnerability of groups in local areas within Lincolnshire

From time to time, particularly if any significant changes are proposed, we will consult regulated entities on its methodology.  This will be done through consultation on our Integrated Risk Management Plan or by other means.

Audits and inspections will be undertaken by officers based on our risk-based system.  Priority is given to individual premises and generic premises types or uses assessed as being of relatively higher risk.

The greatest audit and inspection effort will be allocated to premises where:

  • a compliance breach would pose a serious risk to the safety of relevant persons
  • we have reason to believe there is a high likelihood of non-compliance with the law

We continually test the methodology used in the enforcement programme.  To do this, we sample a small number of premises in relatively lower-risk categories. We will respond to allegations of fire risk in any premises for which we are the enforcing authority.  This is regardless of the relative risk level of the premises.

Enforcement regimes may overlap with other enforcing authorities.  We have entered into several agreements with these authorities to clarify which will take the lead for particular premises types.

To minimise audit and inspection burdens for regulated entities, we will continue to seek to develop, engage in, and foster partnerships working with other enforcers and other stakeholder groups.  Often this is through local partnerships, which will encourage joint working relationships.

Use of formal action

Before formal enforcement action is taken, officers will:

  • provide an opportunity to those responsible for complying to make representations
  • try to resolve points of difference

There is an exception where the situation is so serious that immediate action is necessary.

Sometimes immediate action is taken to prohibit or restrict the use of premises.  In such cases, this will be explained in writing to the relevant party or parties, normally within 24 hours. Where rights of appeal exist against formal action, we will clearly state this, with advice on the appeal process.

Decisions on enforcement action

We seek to ensure that legislation is enforced impartially. This will be through policy and management procedures and safeguards.

Certain decisions and actions are made by the following officers:

  • officers who inspect the premises make some decisions about enforcement action.  The officers may consult with more senior colleagues if appropriate.
  • identified senior officers can prohibit or restrict the use of premises or part of the premises.
  • the Chief Fire Officer decides on prosecutions following consultation with the Prosecutions Monitoring Group.

Officers will be fair, independent and objective when considering enforcement action.  They will not let their personal views cloud their judgement.

We will ensure that the correct individuals or company are prosecuted for the right offences.

We are a Public Authority for the purposes of the Human Rights Act 1998.  We will apply the principles of the European Convention on Human Rights in accordance with the Act, as it does in all its enforcement activity.

Prior to taking any enforcement action, we will endeavour to contact the respective fire service should the premises be part of the Primary Authority Scheme (PAS).

Enforcement options

Our policy on determining the level of enforcement action to take utilises nationally recognised risk assessment-based methodology. In deciding what action to take to ensure compliance with the law, we consider the following:

  • the nature and seriousness of any alleged offences
  • the risk of death or serious injury
  • previous experience and record of compliance of the responsible person
  • action taken to prevent any recurrence
  • the likely effectiveness of the various enforcement options
  • any explanation offered and the circumstances and attitude of the responsible person
  • any statutory defence available

We will always seek to use proportionate enforcement action.  Primarily this is the circumstances of the offence and the risk to life.  We will also consider other factors, such as:

  • the size of the business or undertaking
  • the nature of its activities

Our choices of enforcement are:

  • to educate and inform
  • agree an action plan
  • statutory notice identifying the nature of the corrective action needed
  • prohibition or restriction of use
  • referral to other agencies
  • prosecution through the criminal justice system

We will keep its regulatory activities under review through the management of our fire safety enforcement function. This will ensure, so far as reasonably practicable, that all actions are proportionate.  We will impose the minimum burden necessary to secure reasonable compliance with the law.

Educate and inform

When a breach of the law is found, officers may give a verbal or written warning. Officers may also advise on how to comply with the law. Where advice is not mandatory, this will be made clear.

Agreed action plans

Sometimes a fire risk assessment or fire safety audit identifies a need for improvements to premises.  The responsible person will often benefit from advice before implementing the necessary works. Inspectors may provide advice to assist the responsible person to plan and prioritise remedial action to achieve best value and maximum benefit. This may be achieved by formulating an action plan.

An action plan aims to focus attention on:

  • where a risk is identified
  • what preventive and protective measures are necessary to:
    • reduce the risk to an acceptable level, or
    • eliminate the risk altogether
  • the time scale over which remedial action should be taken

The responsible person must fully meet the objectives of an agreed action plan.  Failure may result in formal enforcement action being taken over any matters outstanding.

Enforcement and similar notices

Regulatory notices calling for corrective action would generally be used where:

  • there is a clear breach of the law
  • where the degree of risk or harm from the situation is significant
  • where a remedy needs to be identified and secured within a set period

The notices specify the problem and will:

  • require a remedy as determined by officers, or
  • may allow for other action with an equivalent remedial effect (if the legislation allows)

In most cases, there is a right of appeal against a notice. Where there is a right of appeal, officers will write to the person on whom the notice is served.  The letter will set out the appeal mechanism.

Sometimes a notice requires changes to a premise in which another enforcing body has a statutory interest.  We will consult with such bodies that can reasonably be identified before serving the notice.

Any such consultation will not release the person on whom the notice is served from their statutory obligation.  They must still consult relevant bodies regarding works they will undertake because of a notice. Any failure by us to consult with any particular body or person will not invalidate any notice served under the Regulatory Reform (Fire Safety) Order 2005.

Prohibition and restriction notices

We have powers under Article 31 of the Regulatory Reform (Fire Safety) Order 2005 to:

  • prohibit the use of the whole or part of premises
  • restrict the use of premises

Such action will be considered where conditions are found that constitute a serious risk to life or injury to persons in the event of a fire.

Officers will explain why any immediate action is required at the time and confirm it in writing. Where there are rights of appeal, these will be clearly set out in writing when the action is taken.

Referral to other agencies

Sometimes other health and safety enforcing authorities have a regulatory interest in a particular premise.  Officers will forward details to the appropriate agency.  For example, if apparently dangerous conditions or practices (not related to fire) are noted in a workplace.

Prosecution

We will use our discretion in deciding whether to bring a prosecution.

The decision to prosecute is a serious step. Fair and effective prosecution is a legitimate element of our strategy to reduce the risk of death and injury in the workplace by enforcing fire safety laws. Any prosecution has serious implications for all involved – including those prosecuted, casualties, witnesses and our personnel. We will apply the guidance set out below to make fair and consistent decisions about prosecutions.

Criminal proceedings may be taken against those persons responsible for the offence. Where a company is involved, it will be usual practice to prosecute the company where the offence resulted from its activities.

We will also consider any part played in the offence by the officers of the company, including:

  • directors
  • managers
  • company secretary

Where it can be shown that the offence was attributable to neglect or other failings or actions on their part, action may also be considered against:

  • staff
  • contractors
  • any other person (as well as or instead of the company)

The decision on whether to prosecute will consider the evidential test and the relevant public interest factors set down by the Director of Public Prosecutions in the Code for Crown Prosecutors. No prosecution will go ahead unless we:

  • find sufficient evidence to provide a realistic prospect of conviction
  • decide that prosecution would be in the public interest

We may prosecute without warning or recourse to alternative sanctions where:

  • the circumstances warrant it
  • evidence to support a case is available

Formal cautions

Formal cautions bring those responsible for alleged breaches of the law to account. Where appropriate, we will use this measure and issue an enforcement or prohibition notice.

A formal caution is a statement by the Service that is accepted in writing by the responsible person.  The responsible person will have committed an offence for which there is a realistic prospect of conviction.

A formal caution will only be used where a prosecution could be properly brought. It will be kept on file for five years.  If the responsible person is convicted for a further offence in that period, it will be introduced to the court.

Public interest factors

We will consider the following factors in deciding whether or not to prosecute:

  • the nature and seriousness of any alleged offences
  • the risk of death or serious injury
  • previous experience and record of compliance of the responsible person
  • action taken to prevent any recurrence
  • the likely effectiveness of the various enforcement options
  • any explanation offered and the circumstances and attitude of the responsible person
  • any statutory defence available

These factors are not exhaustive.  Those which apply will depend on the particular circumstances of each case. Deciding on the public interest is more than just adding up the factors for and against prosecution. Each applicable factor must be considered and given appropriate weight according to the circumstances of the case. We will decide how important each factor is and make an overall assessment.

We will normally consider prosecution where there is sufficient evidence of:

  • breaches of legislation that place people at risk of death or serious injury
  • persistent breaches of statutory requirements in relation to the same undertaking
  • failure to comply with formal remedial requirements, such as the requirements of an enforcement notice. It is unacceptable to ignore remedial requirements and unfair to those who do take action to comply.
  • reckless disregard for fire safety requirements. It is in everyone’s interest that irresponsible operations are brought into compliance.
  • failure to supply information without reasonable excuse or knowingly or recklessly supplying false or misleading information. It is essential that:
    • lawful requests for information to us or our officers are complied with
    • accurate information is always supplied to enable informed regulation to be exercised
  • obstruction of officers in carrying out their powers. We regard the obstruction of, or assaults on, our officers while lawfully carrying out their duties seriously.

Human rights and other statutory compliance

All enforcement policy development and actions will comply with the Human Rights Act 1998 and other legislation. Officers will also comply with all relevant codes of practice.  There may be exceptions if the code is:

  • not mandatory
  • good reasons which justify non-compliance

Data protection

The Service will:

  • comply with the general data protection regulations governing the use of personal data
  • respect the rights and freedoms of those individuals when processing their details

Freedom of information

Under the Freedom of Information Act 2000, individuals have a general right to access information held by public authorities. Read more about freedom of information on our website.

Publicity

We will consider publicising any conviction, which could:

  • draw attention to the need to comply with fire safety requirements
  • deter anyone tempted to disregard their duties under fire safety law

Public register

Under the Environment and Safety Information Act 1988, the Fire Service and other local authorities must maintain a register of Notices served concerning health, safety and environmental protection and for related purposes.

Lincolnshire Fire and Rescue uploads details of Notices served to the Enforcement Register.  A local copy of the register is available for inspection at reasonable hours without charge at Services Headquarters.

A person has a right to appeal against a Notice placed on the public register within 14 days following the service of the Notice if they feel it would disclose a trade secret or confidential trade or manufacturing information.

Notices will stay on record for at least three years, and the Fire Safety Section will ensure that any information held is current. Control will be informed of all Notices issued by the Fire Safety team. The Duty Fire Safety Officer will be informed of any incidents at these addresses that have a notice outstanding on them.

Each entry in the register will state sufficient particulars to convey the substance of the Notice to which it relates.

The progress of Notices will be indicated as “ongoing” if the Notice has not been complied with.

Sometimes a Notice is withdrawn or amended.  Any entries in the register related to that Notice will be deleted or amended within seven days. Control will also be informed to remove the address from the database once the premise has complied with any statutory obligation.

Actions by the Courts

Where serious injury or ill health (not exclusive) has resulted, we may request the Magistrates to refer the case to the Crown Court. The same factors as listed under Enforcement options are used, but consideration is also given to the sentencing powers of the Magistrates' Court.

Penalties

The existing law gives the courts considerable scope to punish offenders and deter others. In some cases, the higher courts may impose unlimited fines and imprisonment. We will continue to raise the court’s awareness to the gravity of offences.  We will encourage them to make full use of their powers.

We will always seek to recover the investigation and court proceedings costs.

Further information

Further information about our enforcement of fire safety regulations can be obtained from the following sources: