Third Party Certification for Fire Risk Assessment provision can “level the playing field” between assessors and fire safety officers

Monday 18th May 2020
Warren Spencer, accredited Higher Courts Advocate, discussed Third Party Certification on episode 3 of the FSM Podcast (13/05/2020)

On episode 3 of the Fire Safety Matters (FSM) Podcast recurring guest Warren Spencer, Managing Director - Blackhurst Budd Solicitors, answered questions from BAFE regarding his thoughts on Third Party Certification and Government fire safety guidance.

Mark Sennett, Chief Executive Officer - Western Business Media, asked: “The question we've had come in from BAFE is they would like to hear your thoughts on Third Party Certification as a statutory defence. Can you give us an insight into that please Warren? “

Warren responded: “Well there's only really one defence in the fire safety order and that’s due diligence and due diligence is that you took all reasonable precautions that any reasonable person would do to avoid the commission of offence under the order… I can't see any situation that where third party certification would not help, of course it would. It would go some way towards showing due diligence.

…Where this would apply most is where you've got perhaps a fire risk assessor arguing with a fire safety officer, as to what is appropriate as a strategy or as a fire risk assessment - what is suitable and sufficient. Clearly if the fire risk assessor has got a third party certificate saying [they are an] accredited fire risk assessor and that's recognised in some way by the government [i.e. UKAS Accredited Third Party Certification] then when the judge comes to decide whose evidence [they] prefer then that can level the playing field as far as the fire risk assessor and the fire safety officer is concerned.”

This insight comes in addition to The Minister of State (The Rt Hon James Brokenshire MP) recently discussing the Fire Safety Bill in the House of Commons (29/04/2020):

“I am aware that the provisions of the Bill will require potentially significant numbers of responsible persons to review and update their fire risk assessments. For many, that will require specialist knowledge and the expertise of the fire risk assessor.”

Mark Sennett continued to question Warren on this topic, asking if he felt the Government fire safety guidance documents carried the same weight as HSE guidance available.

Warren answered: “I’m not over familiar with the health and safety guidance, but certainly the fire safety guidance documents are just that. My first ever case was a case where an enforcement notice had been issued to a hotel owner and the hotel owner was required to do certain things in accordance with the guidance. The hotelier argued that the guidance was just that, it wasn’t law, so he wasn’t bound by it. The judge found that he was bound by the enforcement notice and actually said ‘well this is guidance you’re quite right, if you're not going to follow the guidance you're going to have to show that you have achieved the goals that the guidance achieves in some other way’. In that case he found that he hadn’t, so it is guidance but what's important is achieving the safety measures that the fire officers want you to achieve. The guidance in this area is fairly specific, but the idea of the order is that it's nonprescriptive. The guidance goes some way, the court will expect you to achieve the same goals that the guidance wants you to achieve if you don't follow the guidance in getting there.”

BAFE are pleased to hear Warren Spencer’s positive comments regarding the benefit of Third Party Certification and of the Government guidance documents (that stress the use of certificated providers for quality assurance). He is a well-respected accredited Higher Courts Advocate with experience of over 200 fire safety legislation cases.

Stephen Adams, Chief Executive – BAFE, commented: “Mr Spencer’s discussion with Mark Sennett is insightful to the legal process and rational thought the judge would make with any prosecution. All the BAFE Schemes are monitored on a regular basis to ensure they remain the highest representation of quality and competence, following appropriate standards and best working practice. We are particularly pleased to hear that UKAS Accredited Third Party Certification would help balance the judgement of the fire risk assessor and the fire safety officer in a court of law. This is important to note, as BAFE strongly believe all fire risk assessors should be Third Party Certificated to provide their service.”

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