Summary: Mr X complains the London Fire Brigade wrongly decided his neighbour, the owner of a commercial building, complied with a legal fire safety notice and that it needs to take no further action. The Ombudsman found no evidence of fault in this case. While Mr X strongly disagrees with the findings of the London Fire Brigade’s fire safety inspectors, they followed the correct process and are entitled to reach conclusions about risk as a result.

The complaint

1. Mr X complains the London Fire Brigade has wrongly concluded his neighbour, the owner of a commercial building, has complied with a legal fire safety notice to the extent it needs to take no further action. He says he has presented expert evidence showing the required works have not been completed or have been completed to a poor standard and the risk of fire has not changed since the legal notice was first issued.
2. Mr X says the risk of fire is causing significant stress to him and his family. He also says he has been put to the time, trouble and expense of getting expert reports which could have been avoided if the London Fire Brigade had taken a common-sense approach.

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What I have investigated

3. I have investigated events since February 2018, which is when Mr X expressed concerns to the London Fire Brigade in renewing a matter he had first raised in 2016. While I have noted the earlier events in this decision statement, I have not investigated them as they happened too long ago.

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The Ombudsman’s role and powers

4. Administrative and operational failures by Fire and Rescue Authorities can be investigated by the Ombudsman. (Local Government Act 1974, section 25(bg), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. We cannot question whether a 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)
8. If we are satisfied with a fire authority’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. The London Fire Commissioner is the fire and rescue authority for London. I will however refer to London Fire Brigade (LFB) in this statement as it is the name most people recognise.
10. I spoke with Mr X and read his complaint to the Ombudsman and supporting evidence. I wrote to LFB to make enquiries and reviewed the information and documents it sent in response.
11. Aside from the evidence produced by both parties, I have also taken into account:
• The Regulatory Reform (Fire Safety) Order 2005.
• Guidance issued by the government about enforcement of The Regulatory Reform (Fire Safety) Order 2005, called ‘Guidance Note No. 1: Enforcement’.
• Guidance issued by the government called The Regulators Code 2014.
• The London Fire Commissioner’s ‘Enforcement Policy Statement’.
• Guidance issued by the Chief Fire Officers’ Association called ‘Community Fire Protection’, which provides guidance for fire authorities about the inspection regime.
• Appendix A to Approved Document B of the Building Regulations.
12. I shared my draft decision with Mr X and LFB and I invited them to comment on it.

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What I found

Relevant law and guidance

13. The Regulatory Reform (Fire Safety) Order 2005 (the RRO 2005) is the main fire safety law in England and Wales. It applies to all buildings except individual private homes. It puts a clear legal responsibility on ‘the responsible person’ for a building to reach the required fire safety standards. This duty protects any ‘relevant person’, which includes employees, members of the public using a building and neighbouring residential occupiers.
14. In practice, this usually means commissioning a fire risk assessment and following any recommendations made as a result. The RRO 2005 also says that fire authorities are ‘enforcing authorities’ and “must enforce” the provisions of it, while also having regard for any guidance issued by the government.
15. The government’s guidance says the RRO 2005, “…does not place enforcing authorities under a specific, express duty to issue alterations, enforcement or prohibition notices. It gives them powers to do so where they deem necessary”. It also says enforcement notices “…will be an option of last resort” and used “where less formal action has failed to resolve issues of non-compliance”.
16. The London Fire Commissioner’s enforcement policy says it, “…will always seek to prioritise [its] inspection and enforcement action based on risk”. It uses risk scoring in line with guidance issued by the Chief Fire Officers’ Association about conducting fire safety inspections under the RRO 2005.
17. When it comes to enforcement, there are several choices available to fire authorities. These range from informal advice up to a legal prohibition notice. One option, used in this case, is a Notification of Fire Safety Deficiencies. This is a low-level intervention and while it provides an explanatory notice and improvement schedule to the responsible person, it has no legal force. It is often used in cases where the responsible person is cooperative but can be a prelude to more formal action.

Overview of this case

18. Mr X owns a house which is next door and adjoining to a building built in a later period. There are jointly owned party walls between the buildings, including below ground level in a basement area. The building next door to Mr X has a commercial unit on the ground floor and flats on the higher floors. Mr X says it was an office when he moved in but in recent years became a café instead.
19. LFB first inspected the café in 2016 after Mr X raised fire safety concerns. It reported to Mr X confirming it found “very minor separation problems” but “nothing enforceable”.
20. Mr X renewed his contact with LFB in early 2018 at the suggestion of an officer from his local council. He asked questions about the 2016 inspection, having seen the actual inspection report. LFB replied recognising his concerns but saying it would deal with the responsible person for the café going forward.
21. LFB carried out an inspection of the café in March 2018. It found no existing fire risk assessment in place and that fire separation between the commercial unit and Mr X’s house did not have 60 minutes resistance. The overall safety standard was recorded as high risk, but the inspector found management compliance to be ‘above average’. The report also notes the inspector felt some of the issues reported by Mr X were symptoms of a neighbour dispute.
22. The inspector arranged for a Notification of Fire Safety Deficiencies to be sent to the responsible person later that month. LFB says this is because the overall view was the café was ‘broadly compliant’ with the RRO 2005. It asked for the responsible person to arrange a fire risk assessment, to upgrade the fire resisting separation to meet the 60-minute standard and to service the building’s fire extinguishers. LFB had no plan to return but set a deadline for completion of the actions of 11 July.
23. Mr X asked to see the inspection report and commissioned his own expert to report on the fire separation between the buildings. Mr X’s expert identified non-compliance with the RRO 2005 and set out steps to be taken to ensure compliance. Mr X wrote to LFB, which acknowledged the report and said it would review progress in July.
24. A follow-up inspection took place in July. The inspector found a ‘suitable and sufficient’ fire risk assessment was now in place. The assessment identified fire separation issues and a detailed schedule of building works to be completed was provided by the responsible person. LFB understood this would happen in August and arranged a further inspection for September. LFB told Mr X’s solicitor, who was now dealing with the matter on his behalf, it would use the schedule of building works to assess the responsible person’s compliance in September.
25. In the meantime, Mr X got further expert reports and input. With the responsible person’s agreement he went to the café while building works were ongoing with his own building surveyor and acoustics expert. These experts raised further concerns and Mr X sent their reports to LFB. Mr X had particular concerns about a failure to properly improve fire separation at the basement partition wall.
26. LFB’s intended inspection took place in September 2018. This time it noted the ‘compartmentation’ of the building was now of a reasonable standard, except in some areas specifically noted. The inspector could not access every area of the building, including most of the basement, but in the visible areas the concerns were “adequately addressed”. In writing the inspection report the inspector used the responsible person’s schedule of works to explain the work completed. The conclusion was the building was still ‘broadly compliant’ with the RRO 2005 and now presented a low risk.
27. Mr X obtained a copy of inspection report from LFB and questioned some of the findings, especially in light of his experts’ findings. LFB told Mr X’s solicitor the inspector had seen the expert reports. It explained it uses a ‘risk-based approach’, taking into account the information provided, the result of the on-site inspection and the actual ignition sources identified. It said as the basement was not in use it “lowers the risk significantly”.
28. Mr X later brought the matter to the attention of building control officers at the local council. It contacted LFB and said because of Mr X’s explanation it had concerns there was not adequate fire separation between his house and the café. LFB visited the café once again and then responded to the council.
29. LFB explained the inspections it had already completed and the findings it had made. It said its view was one of low risk of fire, given the small premises which is open plan and where limited cooking takes place. It said there were no ‘work practices’ in the basement area. LFB later updated Mr X’s solicitor confirming it would not complete any more inspections of the café unless it received new information to merit doing so.
30. Mr X made a formal complaint to LFB and then brought it to the Ombudsman. He says LFB has failed to deal with the very high risk of fire spread identified by his experts and he and his family live in fear of the consequences should a fire break out. He is frustrated LFB fire safety inspectors refuse to come to his house to look through the basement partition to see the fabric of the wall.
31. LFB’s overall position is the responsibility for managing the risk of fire sits legally with the responsible person for the building. It believes it has intervened in a way proportionate with the risk identified by its inspectors and will not take any further action.

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Analysis

32. The Ombudsman can only find fault where we can show the LFB has not followed the correct process in reaching a decision. Where it has done that we cannot intervene, even where someone strongly disagrees with the decision itself. This is because its staff can use their professional judgement to make decisions using their training and experience, and we are not an appeals body.
33. LFB has considered the café premises to be ‘broadly compliant’ with the RRO 2005 throughout all its inspections. While at one point it had concerns about fire separation between the café and Mr X’s house, and suggested improvements to it, it did so via a very low-level enforcement measure. The complaint about a failure to ensure compliance with the notice cannot be upheld because it had no legal force.
34. By September 2018, after two more inspections and building work commissioned by the responsible person, LFB decided the café presented a low risk of fire. Mr X strongly disagrees with this decision and provided lots of evidence to support his case. However, a properly completed risk assessment is always going to be an exercise of professional judgement. In this case LFB made its decision after sending qualified inspectors to the building on several occasions. While they could not inspect every area once the work had finished, other factors clearly fed into the assessment such as the size of the café and the cooking facilities in operation.
35. LFB’s view of the risk level plainly influenced its actions from the outset. It informed the type of enforcement measure taken at the start through to the decision not to include the basement area in the latest inspection because it is not in use.
36. I must consider whether it is appropriate for LFB to take a risk-based approach to enforcing the law. Mr X and his solicitor have made arguments to LFB which, in summary, essentially say the RRO 2005 places an absolute duty on LFB to ensure compliance with the law.
37. The law itself, which I referred to in Paragraph 14, is clear about the requirements placed on the LFB. However, this must be read alongside the government’s guidance about the law. That guidance says the RRO 2015 does not put a ‘specific, express’ duty on enforcing authorities to issue notices. And says they only apply to the most serious cases.
38. In addition, the guidance about the risk assessment process from the Chief Fire Officers’ Association makes clear the inspector’s professional judgement is a significant factor.
39. While I accept Mr X’s experts produced detailed reports with clear conclusions, those experts are not the decision makers. Although it would be fault for LFB to wilfully ignore evidence, whatever the source, it can attach whatever weight to it as it sees fit. There is no evidence in this case LFB dismissed Mr X’s expert reports out of hand. I am satisfied the inspectors involved in the case saw them and took account of them. The fact several inspections of a ‘broadly compliant’ building took place supports this. However, LFB were under no duty to respond to the findings of Mr X’s experts directly.
40. I do however have some concern about LFB’s inspector’s decision to quote word for word from the responsible person’s schedule of works in his September 2018 inspection report. While the report made it clear this relied on the responsible person’s submission, more could have been done to explain exactly which works the inspector had been able to confirm or not. This would have been particularly useful given some of Mr X’s experts questioned whether some of the works in the schedule had been properly carried out.
41. Overall though I do not conclude this way of presenting the findings was fault. The ultimate findings – which are the real subject of Mr X’s complaint – remain an exercise of the inspectors’ professional judgement and the product of several inspections and contact from LFB over a few months. As such there are no grounds for the Ombudsman to intervene further.
42. As I have not found fault with LFB’s actions in this case I am concluding this investigation.

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Final decision

43. The decisions taken by LFB are an exercise of professional judgement. Mr X and the experts he commissioned hold a different opinion of risk to the LFB’s inspectors, but that does not mean the decision is fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman