Prohibition Notices /
Ref / Click HereCCCRCSESEQFAFSFINICTISOHSOPPREPSSUPTNGTRVS- NFG030
Issue/Revision Date / 04/04/2012 / Review Date / 04/04/2014 / Version / 9.0
Page 1 of 25
- INTRODUCTION
This Note for Guidance has been produced to assist officers in drafting and serving Prohibition Notices under Article 31, Regulatory Reform (Fire Safety) Order 2005 (the Order) or Section 22 of the Health & Safety at Work etc. Act 1974.
Dangerous conditions can be reported or discovered by station personnel during an operational risk visit, following attendance at an operational incident, or by a Fire Protection Inspector (FPI) subsequent to a complaint or during a routine audit.
Prohibiting or restricting the use of premises is the most stringent direct enforcement power available to the Authority and is not to be used lightly. Other than where the service of a Notice is preventative (e.g. to prevent a rave taking place in unsuitable premises), any premises that pose a level of risk that requires prohibition or restriction is likely to have significant failures to comply with the Order. All prohibition cases involving premises in use (i.e. non-preventative cases) should be regarded as a potential prosecution and evidence should be gathered from the outset.
There are a number of points that must be observed by authorities when preparing a Notice in order to comply with the requirements of the legislation and to ensure that the Notice will withstand scrutiny if challenged in a Court of Law. The content of this Note for Guidance is intended to clarify the relevant parts of the legislation; highlight problem areas; advise how problems may be overcome and to explain the necessary procedures to be followed in completing and serving a Notice.
- AUTHORISATION TO SERVE A PROHIBITION NOTICE
- Fire Safety Order - Only those authorised by the Director of Fire Safety to Group 1 named in the Inspecting Officers Appointment & Authorisation Schedule can sign and issue a Prohibition Notice.
- Health & Safety at Work - Only those authorised by the Director of Fire Safety to Group 1 named in the Inspecting Officers Appointment & Authorisation Schedule can sign and issue a Prohibition Notice.
- WHEN TO SERVE A PROHIBITION NOTICE
The Authority may serve a Notice where it is considered that in the opinion of the Authority
- Article 31 - Use of the premises involves or will involve a risk to the relevant persons so serious that use of the premises ought to be prohibited or restricted. The matters relevant to the assessment of the risk to relevant persons include anything affecting their escape from the premises in the event of fire.
- Section 22 - the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice.
Article 31
FPI’s are reminded that falling short of a benchmark standard (e.g. Building Regulations, British Standards, CLG published suite of Guidance for Responsible Persons publications etc.) may not, in itself, constitute sufficient risk to warrant a prohibition Notice (e.g. a solid door and partition albeit non-fire rated, will offer a degree of protection from fire or combustion products). Officers should be careful not to try and make the premises ‘code-compliant’ at this stage.Such shortfalls will be rectified once the immediate danger (i. e. the reason for serving a prohibition notice) has been concluded.
In order to document the appraisal of the risk the FPI must ensure that a Fire Safety Audit form is completed in all potential Article 31 cases. The audit form should be used to confirm the deficiencies contributing to the overall risk and may be used in evidence in any subsequent prosecution or appeal.
Section 22
Provided that the inspector reasonably believes that there is a risk of serious personal injury, a contravention of a statutory provision is not necessary for a prohibition notice to be valid.
The requirement that an activity should not be carried on until specified matters have been remedied may either take effect immediately or be deferred until the end of a specified period.
- PREMISES ON WHICH A NOTICE MAY BE SERVED
- Article 31 of the Regulatory Reform (Fire Safety) Order 2005 applies to all premises apart from those listed in Article 6 of the Order. A Notice can also be applied to premises awaiting imminent occupation, such as pop concert and rave party venues where the risk occurs on occupation. A Notice cannot be applied to a “house which is occupied as a single private dwelling”.
- Section 22 can be served where any of the relevant statutory provisions applies to a building.
If in doubt guidance should be sought from theFire Protection Manager or an Assistant Fire Protection Manager.
- POWERS OF ENTRY
Fire Safety Order
Article 27 gives FPI’s powers of non-forcible entry into premises to which the Order applies. These powers include, by virtue of Article 31(10), power of non-forcible entry to domestic premises other than those which consist of a house which is occupied as a single private dwelling (e.g. the power applies to flats and bed-sits).
Health & Safety at Work
An inspector may, for the purpose of carrying into effect any of the relevant statutory provisions within the field of responsibilityof the enforcing authority which appointed him, enter at any reasonable time (or, in a situation which in his opinion is or may be dangerous, at any time) any premises which he has reason to believe it is necessary for him to enter for the purpose mentioned above.
- PROHIBITION OR RESTRICTION
Article 31 gives the Authority the power to prohibit or restrict the use of premises. All Notices served under Article 31 are classed as Prohibition Notices.
- A Prohibition Notice prohibits the use of the whole of a premises or prohibits all uses;
- A Restriction Notice restricts the use of all or part of premises to specific activities (e.g. the third floor may be used for storage only) or restricts the numbers of persons who can resort to the whole or part of premises (e.g. maximum of 50 persons in function room on 1st floor).
Experience has shown that it is often possible to achieve an acceptable level of fire safety by restricting the use of parts of the premises as an alternative to complete prohibition.
- PROCEDURE TO ISSUE A PROHIBITION NOTICE
Fire Safety Inspector
Once it is suspected that there are dangerous conditions within the premises, the FPI should ensure that an immediate telephone call is made to their Manager, providing brief details and requesting their attendance. Operational staff or those working in Prevention should telephone Control who will pass the information to the Duty Fire Safety Officer or Fire Protection Manager/Assistant.
It is imperative that they do not leave the premises until joined by a Fire Protection Manager/Assistantand the facts regarding the case are discussed. In the case of qualified FPI’s, they should continue to complete their audit as far as possible, including all the relevant articles and complete a simple line plan of the affected area. This is essential both to support the serving of a Notice, and provide evidence should the case subsequently go to court.
Discussions with the responsible person may continue, but no agreements should be promised or intimated until the arrival of theFire Protection Manager(or authorised Level 1 Inspector). Letters of intentionor understanding will not be acceptable as an alternative to a Notice being served.
Fire Protection Manager/Assistant
Where possible, before leaving to attend the premises, they should interrogate the Premises Risk Database to ascertain that the premises under investigation have no existing restrictions in place, and view the last record made. They should then attend the premises, taking a camera with them if one has not been requested.
Interim Measures
If the dangerous conditions can be reduced to an acceptable tolerance by short term (interim) means, this should be discussed and agreed with the responsible person, e.g.
- The provision of air horns and a wakeful watch to overcome lack of or a defective fire alarm system
- Moving persons to a lower or safer place
- Discontinue using a process or ignition source
No Prohibition Notice will be served. It must be clearly understood that once this decision has been made, it will not be possible to serve a Prohibition Notice later if the conditions remain the same. If there is any possible doubt that the interim conditions will be complied with it would be better to serve the Notice.
- PRODUCING A PROHIBITION NOTICE
The Notice will be produced from the Premises Risk Database, using the tracks and steps as necessary. The guidance given in PRD008 will be followed carefully to ensure that a full auditable trail is made. All Prohibition or Restriction notices will be prepared by Managers having Group 1 authorisation in the Inspecting Officers Appointment and Authorisation Schedule.
The details entered on the Notice will be deliberately brief and concise, but must include the following:
- state that the Authority or Inspector is of the said opinion(i.e. dangerous conditions);
- specify the matters which in his opinion give or, as the case may be, will give rise to the said risk;
- direct that the use or activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice have been remedied;
- in the case of Section 22 Notices where in the Inspector’s opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and
- notice may (but need not) include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates; and any such directions
- may be framed to any extent by reference to any approved code of practice; and
- may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention or matter.
In this Authority all Notices will include measures to be taken
If the premises concerned are a House in Multiple Occupation (HMO), the Local Authority Housing Department should be informed of the intention to serve a Notice. However, the arrangement in West Yorkshire with the Housing Departments is such that this would only occur out of hours; when no contact would be possible before the Notice was served. The Housing Department should however be informed at the earliest opportunity for their subsequent actions.
If the Notice is a Relevant Notice (i.e. there are members of the public present), this must also be stated. If only employees are present, the Notice will be “Not a Relevant Notice”.
After completing the Notice a Principal Officer will be contacted before the Notice is served so that, in the event of questions from the responsible person, press or Members of the Fire Authority, they are fully apprised of the circumstances.
- WHO TO SERVE THE NOTICE ON
The Notice should be addressed to and served on the Responsible Person or other person mentioned in Article 5(3), with copies of that Notice being served on any others who need to be made aware of it. This could include, for example, the owner, if different from the Responsible Person, the residents of rooms in HMO’s etc.
It is essential that the identity and address for serving the Notice is established from the outset to ensure that the officer can be certain with whom to deal (for example, if a company is trading under a business name, it is essential that an officer establishes from the outset that they are dealing with a Director, Company Secretary, Manager or some such sufficiently responsible person whose statements may be regarded as those of the company. It should also be ensured that they speak for the company).
The Companies Act states that private limited companies do not have to appoint a company secretary, whereas Public Limited Companies must (by law) appoint a company secretary. Therefore the notice will be issued on the body corporate in both cases but may be addressed to the company secretary only in the case of a Public Limited Company. For the addressee in the case of a Private Limited Company, efforts will have to be made to determine a person (i.e. Director) to which the notice should be addressed. Companies House or other appropriate search facility should be used to assist in this regard.
- SERVING A PROHIBITION NOTICE
If the Responsible Person/Dutyholder is present they should be informed during the inspection as to the nature of the serious risk to persons and of the main steps plus immediate action that should be taken to reduce the risk to persons. If the Responsible Person is not immediately available the persons present at the time of the inspection should be informed of the nature of the risk and impending enforcement action.
The Fire Protection Manager (or authorised Level 1 Inspector) will show the responsible person their authorisation to serve such a Notice (Authorisation Card), and explain the Notice in plain English. They will make reference to the notes accompanying the Notice and explain the responsible person’s right of appeal. The responsible person should be left in no doubt as to
- why the Notice was served,
- when the notice takes effect,
- what the dangerous conditions are,
- how to rectify them (both immediate and longer term) and
- the possible consequences of them disregarding the effect of the Notice.
Article 31
Any notice under the Order should be served on any person either by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.
Any such notice may -
a)in the case of a body corporate, be served on or given to the secretary or clerk of that body; and
b)in the case of a partnership, be served on or given to a partner or a person having control or management of the partnership business. .
For the purposes of this Note the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom is their principal office within the United Kingdom.
If the person to be served with or given any such notice has specified an address in the United Kingdom other than his proper address as the one at which he or someone on his behalf will accept notices and other documents, that address is also to be treated for the purposes of this article and section 7 of the Interpretation Act 1978 as his proper address.
If the name or the address of the responsible person on whom any such notice is to be served cannot after reasonable inquiry be ascertained by the person seeking to serve it, the document may be served by addressing it to the person on whom it is to be served by the description of “responsible person” for the premises (describing them) to which the notice relates, and by delivering it to some responsible individual resident or appearing to be resident on the premises or, if there is no such person to whom it can be delivered, by affixing it or a copy of it to some conspicuous part of the premises.
A prohibition notice is not suspended on appeal.
Section 22
In many cases service of a notice is by hand, immediately on site. Where the notice is served on an employee then a letter with a copy of the notice should be sent to the registered office to ensure they are aware the notice has been served.
Section 46 HSWA details ways by which a notice may be served. There may be other ways outside the scope of Section 46.
Section 46(2) allows for service by delivery or leaving at the recipient's proper address;
Section 46(3) for service on the company secretary or clerk of the body corporate or service on a partnership, by handing to a partner or person controlling or managing the partnership;
Section 46(4) provides that the address for service on the type of person in b) shall be the registered or principal office of the company or the principal office of the partnership;
Section 46(4) allows that the proper address of any person shall be his/her last known address. This does not apply to companies or partnerships (section 7 Interpretation Act 1978)
Section 46(6) allows service on the owner or occupier of premises.
A copy of the notice should be provided to employees or their representatives in accordance with section 28(8)(b) of HSWA.
A prohibition notice is not suspended on appeal, but the appellant can apply to the Tribunal for a direction suspending the operation of the notice until the appeal is finally disposed of or withdrawn. The Tribunal may consider the application either at a hearing or on the basis of written representations from the parties. In either case, the application should be considered as quickly as possible in view of the potential economic effects of an immediate prohibition notice.
All Notices
Section 7 of the Interpretation Act 1978 states that any document served by post (properly addressed, prepaid and posted) will be deemed to have been served at the time at which the letter would be delivered in the usual way by post, unless proved otherwise. In order to confirm that a notice has been properly served details of the delivery and signature can be obtained through the postal system used.
Where appropriate (a relevant Notice) a copy of the notice should be placed on the CFOA public Enforcement Register. Where a notice is served on a person under the age of 18, the inspector must advise Fire Protection Support, so that the name of the young person is omitted from the entry on the notices database(s).
When you serve a notice, you should also serve with it information to tell the duty holder how they can appeal.
- LIAISON WITH OPERATIONAL CREWS
If a restriction or prohibition is placed on premises which normally have a reduced predetermined attendance (PDA), for example an AFA during the day, the PDA for the period of time the notice is in force reverts back to the full PDA for the premises due to the fact that it has been identified that the fire safety provision within the premises is less than adequate and that there is a risk to persons.
Additionally to ensure operational crews attending incidents are aware of notices on premises an automatic foot note indicating a notice is in force is placed on the turnout instructions received at station. Crews mobilised to incidents whilst not at base will be advised by Control that a notice is in force.