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Enforcement policy

Enforcement policy

Introduction

The Regulatory Reform (Fire Safety Order 2005 (The Order) places duties upon Responsible Person/s and duty holders to ensure that premises and relevant persons are safe in case of fire. Kent and Medway Fire and Rescue Authority (the Authority) has a duty to enforce The Order, however; on occasions where all attempts by the Authority to assist responsible persons have been exhausted, or where there is an immediate risk to life, the Authority may choose to take enforcement action. This Policy sets out what we will do and explains the process we will follow to ensure we are in line with the Regulators’ Code. It explains our approach to our regulatory functions in relation to fire safety and public safety in our communities. It also explains the behaviours that responsible persons can expect to receive from us.

Scope

This policy applies to all employees of the Authority and the Authority’s customers. 

Policy

Fire safety regulation is founded on the principle that people should be kept safe in case of fire. We regulate to help secure this safety and aim to provide a high-quality service to those we regulate. Our regulatory activity generally extends to premises in which there is a trade, business or other undertakings. 

Where we identify people at risk in case of fire, we will respond proportionately to that risk; taking account of the likelihood and severity of the risk.

The Authority believes in firm but fair enforcement of fire safety standards. We aim to achieve this by: 

  • proportionality 
  • being consistent in our approach to regulation; 
  • targeting our resources and enforcement action  
  • being transparent about how we operate and regulate 
  • being accountable for our actions. 
  • actively working with business to assist with compliance and to advise 

We will have regard to the Regulators’ Code when developing the policies and procedures that guide our regulatory activities. We will encourage and promote fire safety while minimising the associated costs of providing safety from fire. 

We believe that by fostering good relationships with our business community and by working with them, we can improve public safety, business resilience, and can remove any unnecessary burdens of complying with fire safety law. 

The Authority will engage with the business community to seek their views about our policies and practices. Contact details are available on our website and via social media channels. 

In the most serious cases of danger in case of fire, we will take immediate and decisive action to secure safety, for example by serving a prohibition notice that can stop people from using the premises.

Process

1. In accordance with the Regulators’ Code, the Authority takes enforcement action to:

  • a. change the behaviour of the offender; 
  • b. change societal attitudes to the risks from fire; 
  • c. eliminate financial gain or benefit from putting people at risk in case of fire; 
  • d. exercise a proportionate response to the nature of the offence and the harm caused; 
  • e. restore safety to premises where fire safety risks were found;
  • f. encourage fire safety to be secured in future; and 
  • g. impose an appropriate sanction for the particular offender, which can include punishment through the courts.

2. Where it becomes necessary to take action the Authority may:

  • a. provide advice; 
  • b. take informal action; 
  • c. take formal action (including enforcement, alterations and prohibition notices); 
  • d. taking samples of dangerous materials or extracts of recorded information; and 
  • e. securing information to prepare for prosecutions.

3. The enforcement actions listed above are not written in an absolute order of escalation. Enforcement action taken by the Authority is scalable and appropriate to the risk to people in case of fire. 

4. When formal enforcement action is necessary, each case will be considered on its merits. All enforcement decisions will be fair, independent and objective. They will not be influenced by issues such as ethnicity or national origin, gender, religious beliefs, political views or the sexual orientation of the suspect, victim, witness or offender. Such decisions will not be affected by improper or undue pressure from any source, including independent fire risk assessors. 

5. All enforcement activities, including investigations and formal actions, will always be conducted in compliance with the statutory powers of the inspector and all other relevant legislation. 

Helping those we regulate 

6. We will help responsible persons and duty holders to understand what is expected of them and what they should expect from the Authority. Legal requirements will be clearly distinguished from best practice or non-statutory fire safety advice. We will publish guidance in a clear, accessible, concise, format using media appropriate to the target audience, in plain language mostly on the Authority’s website and through social media channels. 

Recognised Guidance relating to the Order

7. In relation to The Order, the Authority only recognises as definitive guidance the recommendations provided within guidance documents issued under Article 50 of the FSO, Fire Safety related British Standards, or nationally recognised best practice guidance documents accepted by the National Fire Chiefs’ Council.

Targeting 

8. Our integrated risk based engagement and inspection program will focus primarily on those whose premises and activities give rise to the most serious risk to life in case of fire. In making an assessment of risk, we will take into account the fire safety record of those we regulate and the current risks to people in case of fire. We will maintain a strategy that will identify and evaluate risks in premises as well as to the wider community and allocate resources to carry out inspections accordingly. We will publish this assessment as part of the Authority’s Customer and Corporate Plan. If it needs to be fundamentally amended due to for example, a change in legislation we will consult with customers through the publication of a Safety and Wellbeing Plan. 

Accountability 

9. The Authority is accountable to its community for its actions. We have policies and standards against which we can be judged, and an effective and easily accessible mechanism for dealing with comments and for handling complaints, through the Authority’s feedback process. 

Principles of Enforcement Action 

10. In assessing necessary and proportionate enforcement action, consideration will be given to (amongst other things): 

  • the fire safety history at the premises, 
  • the history of emergency incidents we have attended and false alarms at the premises, 
  • safety referrals to the premises from other authorities, 
  • any “Primary Authority” relationship that might be in place with the business, or its parent company 
  • the adequacy of fire safety arrangements at the premises, 
  • the attitude of the responsible person/duty holder to providing safety, 
  • statutory guidance, 
  • codes of practice, and 
  • legal advice. 

11. Certain enforcement action, such as the decision to use Simple Caution and/or the decision to prosecute is further and specifically informed by those matters set out below at paragraph 12. In every case, when we require action to remedy unsafe conditions, we will explain the nature of the unsafe conditions to those responsible and will confirm the same in writing.  

The process of taking enforcement action 

12. Educating, informing and advising responsible persons and duty holders about their duties under fire safety legislation will form a fundamental element of our enforcement regime. The Authority will fulfil its obligation, to give on request, advice on fire safety free of charge. 

13. Informal Action: Where the likelihood of fire is low / medium or the consequences of a fire are slight, informal action may be taken. Any Informal action that may be required will be put in writing, advising who is at risk of death or serious injury in case of fire and why. Informal action may also be considered, if those responsible have displayed clear intentions to undertake the required corrective action. Failure to respond to informal action can result in escalation to formal enforcement action. 

14. Alterations Notices: Where  changes to the premises or to the use of premises could result in a significant increase in the risks to people in case of fire on the premises, the Authority may serve an Alterations Notice, which requires the responsible person / duty holder to notify us, before making any alterations or changes. 

15. Enforcement Notices: Enforcement Notices require improvements in safety and will point out that people are at risk in case of fire; where in the building they are located; and what has led to them being put at risk, as well as what should be done to provide safety and how to prevent the same danger from recurring. Enforcement Notices include a reasonable period of time for additional control measures to be put in place. Failure to comply with an Enforcement Notice unless exceptional circumstances are present will result in escalation to an investigation for prosecution. 

16. Prohibition Notices: Where immediate action is considered necessary to keep people safe from fire, a Prohibition Notice, which can prohibit or restrict the use of parts or the whole of a premises, can be served. An explanation of why such action is required will be given at the time and confirmed in writing. Whereas a Prohibition Notice requires action to remove imminent and immediate risks in case of fire, an Enforcement Notice might also be served to deal with less imminent risks in case of fire. 

17. Fire Safety law gives power to warranted inspectors to take samples of dangerous materials or extracts of recorded safety information and documents. When we take materials or documents we will provide an appropriate receipt. In the most serious of cases we will gather information and conduct an investigation to prepare for a prosecution. Any personal data collected as part of this work will be held in compliance with the Authority’s privacy notices and Data Protection Policy. 

18. All our members of staff that make enforcement decisions will be required to follow the Regulators’ Code and will be appropriately trained to perform their roles. 

After Enforcement Action 

19. The Authority will clearly explain what works are required to comply with The Order and will distinguish advisory information from required works. The Authority is willing to discuss alternative arrangements that the Responsible Person or their agents propose to ensure those responsible have clarity of what must be done to achieve compliance. Our letters and Notices will provide details regarding how to appeal against our regulatory decisions. Our letters and Notices will also explain what will happen next, including what the next steps are if you do not undertake the required work. 

20. We encourage those responsible for providing safety in case of fire to contact us if there are any questions or comments about our regulatory activity. 

Failure to Comply with Requirements 

21. Rights of and routes to appeal will be clearly set out in writing and served with our letters.  The failure to comply with an Alterations, Enforcement or Prohibition Notice constitutes an offence under Article 32 and may result in prosecution. 

22. Alterations, Enforcement and Prohibition Notices will remain in force until such time as the notice is complied with, withdrawn or cancelled by the court. 

Cautions and Prosecution 

23. There are a number of offences that can be committed as listed in Article 32 of the Order. Among these are failure to comply with a formal Notice and failing to provide safety in case of fire to such extent that one or more people are put at risk of death or serious injury. The Authority can deal with defendants through Prosecution or Simple Caution. These actions are important ways to bring to account those responsible for legal offences. Where appropriate, we will use one of these measures in addition to issuing a formal notice. 

24. A prosecution can only be taken following full consideration of the facts of the case.

25. A Simple Caution will only be used where a prosecution could be properly brought and there is a realistic prospect of conviction. A Simple Caution includes a written submission from the person responsible that an offence has been committed. 

26. A record of a Simple Caution will be kept on The Authorities file for a period not exceeding seven years and, if a conviction for a further offence is brought within that period, the written submission of the previous offence will be introduced to the court for consideration. 

Other Duties of the Authority 

27. The Authority can request a review of a premises license under Section 51 of the Licensing Act 2003. 

Meeting our standards

28. We will develop a range of measures which measure how will we perform. Some of these will be how quickly we respond to issues we find, whereas others will measure if we are targeting the correct building types to reduce risk in Kent and Medway. Performance will reported as part of the Authority’s Customer and Corporate Plan, which is published annually on our website. Details of enforcement notices issued will be made publicly available on the NFCC website.

  • Introduced by Assistant Director Customer Engagement and Safety
  • Date implemented 16 October 2019
  • Revision No 0 – new policy
  • Review by 16 October 2023
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