Decision : Not upheld
Decision date : 12 May 2017
The Ombudsman's final decision:
Summary: There is no evidence of fault in how Humberside Fire and Rescue Service dealt with fire prevention work between 2007 and 2009.
- The complainant, whom I shall refer to as Mr X, complains that between 2007 and 2009, the Council and Humberside Fire and Rescue Service required him to carry out fire prevention work to a flat he owned. The flat was located above commercial premises. But in 2016 the Council and Humberside Fire and Rescue Service took a different approach to fire prevention work when inspecting a shop he owns which is underneath residential flats. Mr X complains the work he had to carry out between 2007 and 2009 was not needed. He also complains that Humberside Fire and Rescue Service should have required the owner of the commercial premises to carry out their own fire prevention work between 2007 and 2009.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will lead to a different outcome, or
- we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- During my investigation I have:
- spoken with Mr X to discuss his complaint;
- sent enquiries to Humberside Fire and Rescue Service (HFRS) and considered its responses;
- considered relevant legislation, guidance and policies as referred to below;
- considered a complaint from Mr X about East Riding Yorkshire Council (“the Council”) which is closely linked to this one;
- Given Mr X and HFRS the opportunity to comment on my draft decision and considered their responses.
What I found
- The events relevant to this case span eighteen years. I have considered all the information available and have summarised the key points. But the chronology below is not meant to include all actions or events.
- In November 1999 the Council consulted with HFRS about changes to a property. The changes would result in commercial premises on the ground floor (Property C). The floors above would consist of flats. Mr X owned one of these flats (Property B).
- The Council asked HFRS to provide comments “with regard to the proposed scheme for means of escape and other fire precautions.” HFRS says the relevant fire prevention guidance at the time was the ‘Houses in Multiple Occupation (HMO) Guidance on Standards’ and ‘Circular 12/92 Houses in Multiple Occupation – Guidance to local housing authorities on standards of fitness under section 352 of the Housing Act 1985’ (“Circular 12/92”). The Department of the Environment produced this document as guidance for local housing authorities on “the standard which they might consider adopting when exercising [their powers]” under section 352 of the Housing Act 1985 (“the Housing Act”).
- HFRS responded to the Council in December 1999.
- In February 2000 the Council issued Mr X as the owner of Property B with a ‘Minded to’ notice under Section 352 of the Housing Act. This allowed local authorities to serve a notice where it felt an HMO failed to meet requirements including “adequate means of escape from fire” and “adequate other fire precautions.” Housing Act 1985 Section 352(1A) (d) and (e)
- In March 2000 the Council consulted with HFRS again due to proposed changes to the internal layout of the building. The relevant standards were those set out in paragraph 7. HFRS responded in April 2000.
- In 2003 the Council adopted a document called ‘Guide to Fire Safety in Houses in Multiple Occupation’ (“GFSHMO”). This document took into account Circular 12/92.
- In November 2007 the Council confirmed the work it felt Property B needed. This was the same as the work originally required in 2000. The Council says this was because it was still following the guidance set out in Circular 12/92 on which it based its own GFSHMO.
- In April 2008 the Council adopted a ‘Housing Fire Safety Protocol’ (“HFS Protocol”) with its neighbouring unitary authorities and HFRS. The aim of the protocol was to describe joint working arrangements and deliver improved fire safety.
- In May 2008 HFRS wrote to the owner of Property C to arrange an audit. This took place in June 2008 and resulted in an action-plan. One of the requirements was to “Ensure suitable fire separation exists between restaurant and flats above”.
- In August 2008 the Local Authorities Coordinators of Regulatory Services (LACORS) published its document ‘Housing – Fire Safety – Guidance on fire safety provisions for certain types of existing housing’ (“the LACORS guidance”). The document contained guidance for landlords, local authorities and fire safety officers on how to ensure adequate fire safety in certain types of residential accommodation. The introduction of the LACORS guidance says it “helps to manage the relationship between the Housing Act 2004 and the Fire Safety Order by offering advice and assistance to enforcers, landlords, managing agents and tenants, amongst others, on ways to make residential buildings safe from fire, regardless of which piece of legislation is relevant.”
- Paragraph 1.3 of the LACORS guidance says “This document does not set prescriptive standards but provides recommendations and guidance for use when assessing the adequacy of fire precautions in these types of premises. Alternative fire risk assessment methods may be equally valid in order to comply with fire safety law, and alternative approaches to individual fire safety solutions may be acceptable.”
- Information from the Council says it held various meetings with Mr X and his wife between December 2007 and April 2009 to discuss the work required to Property B. It also wrote to him.
- Mr X disagreed with the work required. He did not agree with the need to remove a floor in his property to increase the fire protection from the commercial premises below (Property C). Mr X felt there were cheaper ways of increasing the fire resistance – such as special paint on the ceiling of Property C. Mr X disagreed with the need to install a complex fire alarm system and felt HFRS should require the owner of the commercial premises to carry out some of the fire prevention work. Mr X says the Council told him HFRS could not take enforcement action against the owner of the commercial premises. The Council says it has no record of this and officers cannot remember making such a comment.
- Mr X says he referred the Council to the LACORS guidance and that it should use it to reassess the work Property B needed. Mr X says this would have required him to carry out less work. But the Council did not accept the LACORS guidance until December 2010 when it amended its HFS Protocol.
- The required works were completed by August 2009.
- In 2016 the Council and HFRS confirmed the fire prevention work required to a shop Mr X owns (Property D) and the two flats it is beneath (Properties E and F).
- Mr X was happy with the approach taken but felt it was different to the one taken in 2007-09. This meant less fire prevention work was required. Mr X felt he had carried out unnecessary work in 2009 because the Council had not adopted the LACORS guidance.
- Mr X raised his concerns with the Council and wrote to HFRS to keep them informed. In its response to Mr X dated 22 March 2016 HFRS said “our records indicate that both HFRS and [the Council] worked extensively with you during 2007 and 2008 in order that fire precaution standards were improved in order to protect those persons residing in the commercial premises.”
- Mr X responded to HFRS and explained he did not realise HFRS were involved in the events of 2007-09. He said that “you are incorrect in saying that your department worked with me in respect of that property. I myself have not spoken to or even known of your brigade’s involvement with that property...I am therefore now quite astonished by your admission that your organisation was involved as it seems the magnitude of the failure in this matter is quite astounding. I cannot see how two bodies could so plainly get matters so wrong.” Mr X also said “it is now obvious from what has now happened that both [the Council] and [HFRS] incorrectly applied the legislation to [Property B].”
- Mr X complained to the Ombudsman about HFRS in October 2016.
- The events Mr X complains about took place at least seven years ago and relate to assessments originally carried out in 1999 and 2000.
- It is always more difficult and often impractical to investigate historical matters. With the passage of time, memories fade, people leave their posts and records may no longer exist.
- In older cases we are less likely to be able to gather sufficient evidence to reach a sound judgment. Even if some evidence is available, we need to be particularly careful to ensure it is reliable and provides a full picture.
- We also need to remember there are changes to legislation and ways of working. In many cases we cannot apply current standards, guidance, or professional expectations to historical situations – and often it is not appropriate to do so.
- Mr X complains that in 2007-09, HFRS (and the Council which is the subject of a separate complaint) took a different approach to fire prevention work than in 2016. Mr X says this means he carried out unnecessary work in 2007-09.
- Mr X complained to the Council in 2016. Correspondence he received from HFRS led him to believe it was also involved and so Mr X submitted an additional complaint to the Ombudsman.
- But the Ombudsman’s investigation into Mr X’s complaint about the Council’s actions in 2007-09 only reveals a single meeting, in February 2009, between the Council and HFRS. The meeting was about who would require the owner of the commercial premises to carry out fire prevention work.
- I asked HFRS about its involvement in the events of 2007-09. It confirmed its main involvement dated back to 1999 / 2000 when the Council consulted it about the conversion of the property into commercial premises and residential flats. It said that it carried out an audit of the commercial premises in 2008 but was not involved in the Council’s discussions with Mr X between 2007 and 2009.
- As part of my investigation I asked HFRS about its comment that it had “worked extensively” with Mr X. In response, HFRS said it used the term due to its involvement in 1999 and 2000 and the fact it had sent correspondence to the property about the 2008 audit and changes in legislation. HFRS accepted “on reflection that the wording was possibly misleading”. It also said that “the officer was reviewing 10 year old correspondence and facts, and made a judgement based on the correspondence available.”
- The response from HFRS understandably led to Mr X associating it with the Council’s actions in 2007-09. I note the comment from HFRS it was looking at events from ten years ago and its acceptance the wording used was possibly misleading. I would agree with this.
- Based on the evidence available it would seem HFRS was not directly involved in the events of 2007-09. It therefore follows I cannot uphold Mr X’s complaint that HFRS required him to carry out unnecessary work.
- Mr X also complains HFRS failed to require the owner of the commercial premises (Property C) to carry out fire prevention work between 2007-09.
- As explained above, HFRS has said it audited the commercial premises in 2008. HFRS says this resulted in an action-plan which said “Ensure suitable fire separation exists between restaurant and flats above.”
- HFRS was therefore dealing with the commercial premises while the Council dealt with the residential properties (such as the one owned by Mr X).
- In response to my enquiries, HFRS said it would have accepted 30 minutes of fire resistance between the commercial premises and Mr X’s flat. But the Council felt 60 minutes of fire resistance was required and it was entitled to ask for this. HFRS has said that due to the time which has passed it does not know what work was carried out in the commercial premises. It also says the fire officer which dealt with commercial premises at the time has now retired
- The evidence available suggests officers from the Council took decisions of professional judgment about the fire prevention work required. The Council liaised with Mr X about the work it felt was necessary to safeguard his tenants and this was completed in 2009. This exceeded the fire prevention work HFRS had asked the owner of the commercial premises to carry out.
- Even if I were to say HFRS was at fault because it did not require the owner of the commercial premises to carry out the fire prevention work it considered necessary, I do not think I could say this caused Mr X injustice. This is because the Council would still have required him to carry out the same fire prevention work to ensure 60 minutes of fire separation. This is a decision the Council was entitled to take.
- It does seem that a more coordinated approach between the Council and HFRS would have been beneficial. But at least eight years have now passed since the events Mr X complains about. Officers involved at the time are no longer employed by HFRS and limited information is available. Because of this it is difficult to say with certainty what happened. But based on the information available I cannot say HFRS acted with fault. I do not therefore uphold Mr X’s complaint.
- For the reasons set out above I do not uphold Mr X’s complaint and I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman