Liaison Between West York’s Fire & Rescue Authority & the Authority Enforcing Health and Safety At Work Act 1974

				Procedure & Guidance
		Liaison Between West York’s Fire & Rescue Authority & the Authority Enforcing Health and Safety At Work Act 1974
				Ref	- NFG016
Issue/Revision Date	30/08/2011	Review Date	30/08/2014	Version	{_UIVersionString}

Introduction
This note details the consultation and liaison with the Health and Safety Executive (HSE), including the process of dealing with ‘matters of evident concern’, whether uncovered by Fire Protection Inspectors (FPI) employed by the West Yorkshire Fire & Rescue Authority (WYFRA), or an Inspector employed by the HSE.
There is a requirement to establish close liaison links with the HSE to ensure that all aspects of regulation and legislation are included where there may be dual enforcement. This will include

• 
  The Regulatory Reform (Fire Safety) Order 2005
  
• 
  Petroleum (Consolidation) Act 1928
  
• 
  Manufacture and Storage of Explosives Regulations 2005
  
• 
  the Construction (Health, Safety and Welfare) Regulations 1996 (construction sites)
  

There are additional Regulations, however these are not dealt with in this document, but can be referred to in the HSE’s own Operational Circular OC 217/6 available on their website.

The guidance in this document is intended to clarify the role of the FPI and HSE Inspector as to their respective responsibilities of inspection (audit) and enforcement under the Regulatory Reform (Fire Safety) Order 2005 (the Order).
The term 'general fire precautions' has a legal definition given in Article 4 of the Order and for the purposes of the above liaison and consultation procedures should be taken to mean the same as that defined in Article 4.
Under Article 24 of the RRO the Secretary of State may make regulations relating to the risk to safety of persons from fire in any type of premises to which the Order applies. Any such regulations made by the Secretary of State will only embrace control measures falling within the definition of ‘general fire precautions’.
Article 4 however distinguishes between those precautions that are taken or observed in connection with any work process. These are not identified as such; however it is convenient to refer to them as ‘process fire precautions’.
These are special, technical or organisational measures that

• 
  are designed to prevent or reduce the likelihood of fire arising from work processes or reduce its intensity; and
  
• 
  are required to be taken or observed to ensure compliance with any requirements of the ‘relevant statutory provisions’ within the meaning given by section 53(1) of HSWA.
  

Work process means all aspects of work involving or in connection with: -

• 
  The use of plant or machinery; or
  
• 
  The use or storage of any dangerous substance.
  

General Fire Precautions
The prime responsibility for general fire precautions (those given in Article 4 (1)) in places of work and other non-domestic premises rests with WYFRA and these will be enforced primarily by FPI’s employed by the WYFRA. In some cases, other enforcing authorities may have responsibilities for certain fire precautions under more specific legislation, or some types of premises such as sports grounds or Crown premises, and in such cases since WYFRA has no responsibility to inspect the FPI must liaise with the relevant statutory authority, usually the HSE, Local Authority or Crown Premises Inspection Group.
Process Fire Precautions

 

Responsibility for 'process fire precautions' in places of work, and precautions with the keeping and use of dangerous substances in connection with legislation made under the HSWA, or the existing statutory provisions rests with the authority given powers of enforcement under the Health & Safety (Enforcing Authority) Regulations 1989 and the Petroleum (Consolidation) Act 1928 (Enforcement) Regulations 1979. This will therefore be primarily Inspectors from the HSE.

 

Legislative Duties and Powers  

It should be noted that 'general fire precautions' and 'process fire precautions' may overlap and affect each other in practice. For example, the means of fighting fire in connection with the keeping and use of dangerous substances will also form part of the general fire precautions of the building. However, the ‘general fire precautions’ in the building may be affected by the presence of the dangerous substances and perhaps, additional means of escape in case of fire may be necessary.

 

Since the HSWA overlaps with legislation (particularly the Order) for which FRAs are responsible, there will inevitably be a certain amount of dual responsibility for fire safety. Inspectors enforcing the provisions of the HSWA will not assume the responsibilities of the FRA, and will not normally inspect ‘general fire precautions’ during visits to premises. Similarly, FPI’s will not inspect ‘process fire precautions’

However both Inspectors from the HSE and FPI’s from WYFRA must recognise the overlap and liaise where ‘general fire precautions’ affect ‘process fire precautions’ and visa versa.

 

Liaison between the FRA and the Authorities Enforcing the HSWA

Owing to the overlap of certain responsibilities for fire precautions it is essential that FPIs establish and maintain close links with the authorities enforcing the provisions of the HSWA to ensure that there is a free exchange of information. It is important for these authorities to bear in mind the interest of the WYFRA in process hazards, in so far as they affect the ‘general fire precautions’ in premises. They also have a clear interest in any requirements that WYFRA may impose in relation to ‘general fire precautions’ which may affect matters within their responsibility as ‘process fire precautions’.

 

For the purposes of notification by the WYFRA, on matters concerning ‘process fire precautions’, the relevant enforcing Authorities under the HSWA are the Health & Safety Executive (HSE) and the Local Authority Department of Environmental Health (DEH).

 

The boundaries of responsibility between these two authorities are not always clear and in cases of doubt it will be necessary to make an initial telephone contact with one or other of these authorities to determine where responsibility lies prior to formal notification. As a very general guide, factories are controlled under the HSWA by the HSE and premises where the main use is retail, office or warehouse by the DEH.

 

Contact with the HSE and DEH can be made by telephone to their respective offices, the details of which are available on the Internet.

 

Inter-agency Liaison

Inter-agency liaison procedures should be triggered in the following circumstances: - 

• 
  When Inspectors enforcing the HSWA become aware of deficiencies in general fire precautions which are matters of evident concern.
  

• 
  When WYFRA FPIs become aware of deficiencies in process fire precautions which are matters of evident concern to them.
  
• 
  When the issue of prohibition notice or improvement notice which might affect general fire precautions is being considered by an inspector enforcing the HSWA.
  
• 
  Where the issue of a prohibition or enforcement notice that might affect ‘process fire precautions’ is being considered by the FRA (see also Article 30 RRO¹).
  
• 
  To meet requirements for consultation as required by legislation, particularly HSWA Section 23(4) as amended by the RRO.
  

¹In addition and where relevant, Article 30 requires the FRA to consult with the local authority or an ‘approved inspector’.
HSE Liaison Arrangements for ‘Matters of Evident Concern’
Where an inspection is carried out by the HSE the following procedure will be adopted:

All correspondence regarding 'matters of evident concern' will be sent by the HSE to FPHQ and then directed via Fire Safety Support to the SFSM. Fire Protection Support will acknowledge receipt using letter FSLET024 (HSE - Notification of Complaint Received), and start a ‘complaints’ track in the database. They will then send a facsimile with copies of the correspondence to the appropriate District Fire Protection Manager for action.

In cases of immediate risk, the HSE will contact this Authority at FPHQ by telephone. These calls will be directed to the ACO (FS&CR) or, in his absence, the SFSM. The appropriate District or Team Leader will be informed by telephone and an immediate inspection organised. District Support staff will be responsible for creating the ‘complaints’ track in the database. The HSE will confirm their concerns in writing via the route mentioned above. This letter will be acknowledged by Fire Protection Support using letter FSLET024 (HSE - Notification Of Complaint Received). Fire Protection will check for the appropriate entries in the database before sending a facsimile with copies of the correspondence to the appropriate District Fire Protection Manager.

WYFRA Liaison Arrangements for ‘Matters of Evident Concern’
Where an inspection is carried out by an FPI, the following procedures should be adopted.
FPIs should not normally inspect manufacturing processes during inspections of premises. However, occasions will arise during the course of an inspection when inspectors become aware of a process hazards which, in the light of their knowledge of general fire precautions, are a matter of evident concern to them.
An FPI who becomes aware of a process hazard which is a cause of evident concern should draw it to the attention of the relevant enforcing authority under the HSWA. Confirmation of any verbal notification should always be made using letter FSLET020 (Matters of Evident Concern after Inspection). The initiative for any further action to rectify any inadequacies of the process hazard should be left with that authority.
If the matter of evident concern regarding a process hazard poses a degree of risk to persons in case of fire so serious that until steps have been taken to reduce it to a reasonable level the use of the premises ought to be prohibited or restricted, the FPI should, after consultation with the District Fire Protection Officer telephone the relevant enforcing authority under the HSWA and advise them of the situation with a view to taking joint action, and the issuing of an immediate prohibition/restriction notice by the enforcing authority. If the enforcing authority considers that a prohibition notice is not appropriate, consideration should be given to whether a prohibition or restriction notice under Article 31 or the Order would be appropriate.

 

Where a prohibition or restriction notice is considered to be appropriate the District Fire Protection Officer should visit the premises and consult the ACO (FS&CR) or the SPSM prior to the serving of a prohibition or restriction notice

Site Visits by Fire Fighters
Operational crews will visit premises primarily for operational risk information gathering to ensure subsequent incidents can be dealt with having some knowledge of the premises. Such risk information is recorded on a database available to crews at the incident.
Included in the risk inspection is a number of simple fire safety items that need to be completed, which will generate a fire protection risk score. Dependent upon this score will determine if a qualified FPI attends to address possible fire protection deficiencies.

 

Where it is considered that circumstances are of evident concern, the crew/watch manager or fire-fighter who visited the premises should, as a matter of priority, telephone a District Fire Protection Manager with full details of the circumstances. Following receipt of this information by telephone the District Fire Protection Manager should arrange for a visit to the premises by a FPI, within 24 hours in order to assess the degree of risk and take the appropriate action.

 

Dealing with Complaints
If a complaint is received in respect of fire precautions in premises, or an enforcing authority contacts the WYFRA to determine who the relevant authority is in a particular case, a visit should be made within 24 hours where possible to check the subject of the complaint.

 

Any part of the complaint relating to general fire precautions should be dealt with by WYFRA in the usual way, and any part relating to process fire precautions should be referred to the relevant enforcing authority under the HSWA in the manner previously described.

 

HSE Consultation Procedures under RRO
Article 30(5) of the Order requires WYFRA to consult the relevant enforcing authority under the HSWA before serving an enforcement notice requiring alterations to buildings used as a place of work. This requirement parallels the requirement (under Article 45) for Local Authorities to consult FRAs before accepting or requiring alterations to buildings used as a place of work.
The consultation process should be achieved by sending the relevant enforcing authority or body, a copy of the schedule of work required along with standard letter FSLET015. The schedule should be examined by that authority or body to ensure that the requirements do not conflict with Health & Safety or other legislation.
Article 46 of the Order requires a government department (in this context the HSE) or other public authority (including an Approved Inspector) to consult with WYFRA before taking any action that will or may result in changes to any measures affecting ‘general fire precautions’ required by the Order.
When the enforcing authority or other body (either WYFRA or the HSE) has no comment to make, no response to the other party will be made.

 

Any comments or reservations will be sent to each relevant party as soon as practicable within a maximum of 14 days. If, after expressing a reservation, it is necessary to make enquiries or take advice, the time taken to prepare comments, for submission to either party, should not exceed 6 weeks, except with the agreement of the other party.

 


Premises subject to the Petroleum (Consolidation) Act 1928

At premises subject to the Petroleum (Consolidation) Act, HSE inspectors should consult WYFRA (the licensing authority) if action is considered necessary that may affect or be affected by the dispensing of petroleum spirit into the fuel tanks of vehicles.

Premises subject to the Manufacture and Storage of Explosives Regulations 2005 (MSER)

In respect of explosives sites for which HSE is the licensing authority, prior to issuing or varying any site licence WYFRA should be given opportunity to comment. Similarly, WYFRA should notify HSE of any action they intend to take in relation to premises to which the explosives licence relates. HSE will advise WYFRA at an early stage of the licence/variation application, so that they may comment on matters that affect ‘general fire precautions’ before the licence is finalised.

Where the MSER licence applies only to certain parts of the premises, such as stores or registered premises, which are situated within larger premises, HSE Inspectors should consult WYFRA if the arrangements for the keeping of explosives may affect or be affected by the general fire precautions’ in the larger premises. Similarly, WYFRA should notify HSE of any action they intend to take in relation to the wider premises, which could affect the area to which the explosives licence relates.

Construction Sites
Both the WYFRA and HSE have responsibilities for enforcing the Order on construction sites. Where a building is under construction, the HSE is responsible for enforcing ‘general fire precautions’. However, where a building is under construction and this forms part of another building, or is attached to an occupied building, the WYFRA is responsible for enforcing the ‘general fire precautions’.
This is detailed in regulation 46 of The Construction (Design and Management) Regulations 2007 and states
46 Subject to paragraphs (2) and (3)—
(a) in England and Wales the enforcing authority within the meaning of article 25 of the

Regulatory Reform (Fire Safety) Order 2005(a); or

(b) in Scotland the enforcing authority within the meaning of section 61 of the Fire

(Scotland) Act 2005(b),

shall be the enforcing authority in respect of 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 or any activity arising from such work as regards regulations 39 and 40, in so far as those regulations relate to fire, and regulation 41.
(2) In England and Wales paragraph (1) only applies in respect of premises to which the

Regulatory Reform (Fire Safety) Order 2005 applies.

Regulation 39 and 40 deal with Emergency Procedures and Emergency Routes and Exits respectively. Regulation 41 deals with Fire Detection and Fire-Fighting.

Liaison between WYFRA and the HSE (CDM Regulations)
Liaison and consultation with the HSE will take place in the following circumstances:  

• 
  When a cause for evident concern is identified involving matters they enforce; 
  
• 
  If there is doubt as to which authority should enforce the CDM Regulations in the particular circumstances; and 
  
• 
  When WYFRA intend to take enforcement action under the CDM Regulations.
  

 

In premises where WYFRA is not the enforcing authority for the fire provisions of the CDM Regulations, it will inform the HSE of matters of evident concern. WYFRA will also notify the duty holders under the CDM Regulations of those matters and that these are being reported to the HSE.

 

Matters of evident concern should be communicated to the HSE as soon as is practicable by telephone. Arrangements should be made either for a joint visit if necessary, or the matters discussed should be confirmed in writing as soon as possible. The HSE should notify WYFRA in writing of any enforcement action it has taken on the fire provisions of the CDM Regulations.

 

This Authority has agreed to consult the HSE before requiring works in order to comply with regulations 40 and 41of the CDM Regulations. This agreement parallels the requirement for FRAs to consult building authorities to ensure that there is no conflict with the Building Regulations and it is similarly intended to ensure that there is no conflict between the FRA and the HSE.

 

This consultation should be achieved by sending the HSE a copy of the schedule of works along with standard letter Form FSLET015.

 

The schedule will be examined by that authority to ensure that any of our requirements do not conflict with other Health & Safety requirements. When the HSE have no comment to make, no response to WYFRA will be made.

Any comments or reservations will be sent to WYFRA as soon as practicable within a maximum of 14 days. If, after expressing a reservation, it is necessary to make enquiries or take advice, the time taken to prepare comments, for submission to the FRA, should be agreed between the HSE and the District Fire Protection Officer.

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