This first came to my attention about five years ago, and I have been tracking it ever since.
Every time I write about the prosecution of fire risk assessors, a handful of people tell me they have never come across a single case. I understand why they say it. These prosecutions do not surface in the way you would expect them to. But a quick search online will show you they are there, and the more I have looked into it, the more I have found. Not only cases that have already concluded, but cases still working their way through a process that takes years to play out.
I gave a presentation on this recently and the room filled up. That told me something. People are worried about it, including the ones who say they have never seen a case. It is not that this is not happening. It is that almost nobody who has been through it is willing to talk about it openly.
Why you don't hear about these cases
I have spoken to several assessors who have been prosecuted personally. One thing comes up again and again, which is how reluctant people are to revisit it. As one of them put it to me, “People don’t want to relive it. If you’re being prosecuted, it means admitting there was something wrong in the process.”
The timescales make it worse. These cases take years to conclude, and three, four or five years is not unusual. One assessor I spoke to is currently being prosecuted for a fire risk assessment that is over a decade old. Six further assessments have been carried out on that building since, and the prosecution has still reached back to the original work. By the time a case becomes visible, the work behind it is often so old that it is difficult for anyone else to learn anything from it.
On paper, the people I have spoken to are not who you would expect to find in that position. Qualified, experienced, holding the right memberships, running legitimate businesses, and prosecuted all the same.
How an assessor ends up in the dutyholder chain
Most assessors I talk to believe the legal duty sits with the responsible person, and that is where their understanding tends to stop. Article 5 of the Fire Safety Order complicates that. Where a person has, by virtue of any contract, an obligation of any extent in relation to the safety of any premises, they are treated as having control of those premises to the extent that obligation extends. In plain terms, contracting to carry out fire safety work can bring you into the dutyholder chain, often without you realising it has happened.
Once you are in scope, the test that matters is whether your assessment was suitable and sufficient. That sounds like a fixed standard, but it is not. It is interpreted later, with hindsight, often with expert opinion, and usually in the context of risk to life. What looked reasonable on the day can be judged insufficient years afterwards.
What assessors think protects them, and what doesn't
The more I have looked into this, the clearer it has become that a lot of what assessors rely on for protection does not hold up the way they expect.
The first is documentation. There is a strong belief that if you record a limitation clearly, you are covered. But there are cases where an area was not accessible, that was documented and raised as an action, and prosecution still followed on the basis that more should have been done. One assessor told me, “I documented it clearly in the report, and it still became the issue.”
The second is reliance on the responsible person. In practice you are always relying on information you are given, whether that is fire strategies, drawings, or statements about what has and has not been approved. If that information turns out to be wrong, or is challenged later, that reliance does not necessarily protect you.
The third is the assumption that if nothing actually went wrong, you are safe. A lot of these cases are not based on a fire or a fatality at all. They are based on risk to life. The threshold is not whether something went wrong, it is whether it could have.
The insurance question I still can't get a straight answer on
Insurance is the one I keep coming back to, because I keep hearing two completely different things.
The assessors I have spoken to who have actually been prosecuted tell me their insurance did not cover them. As one put it, “It’s a criminal offence. I had big PI cover, but it doesn’t cover criminal offences.” Professional indemnity is built for civil claims. Fines are not insurable, and the costs are severe. In one case I looked at, defence costs reached £180,000. Another assessor told me he had a legal bill of £78,000 for a single box of disclosure, before the trial had even started.
And yet I have also spoken to people who are extremely credible, and who are adamant that their insurance does cover them in these situations. I take that seriously. But it leaves me with a question I have not been able to resolve. Are they right, or have they simply never been tested on it? It may even be that some only become involved in a case at all because their insurer has agreed to fund the defence, which is a very different thing from a fine being insurable.
I am still pressing on this, and I would genuinely welcome a straight answer from anyone who has one. For now, my honest position is that “I’m insured” should not be taken to mean “I’m protected” until you have checked, in detail, exactly what your policy will and will not respond to.
A fire risk assessment is a record of a process, not just an output
If there is one shift that comes out of all of this, it is in how we think about the assessment itself.
A fire risk assessment is not just the document you hand over at the end. It is a record of the process you went through to get there. If the question later becomes whether that assessment was suitable and sufficient, Article 33 of the Fire Safety Order provides a statutory defence, which is that you took all reasonable precautions and exercised all due diligence.
That is the bar a defensible record has to clear, and it is higher than most people assume. Noting that something was not available is not, on its own, enough. The question is what you did about it. What did you ask? What steps did you take? How did you record the decision you made, and the reasons you made it? The defence rests on evidence of the process, not the output alone, and that evidence has to stand up to scrutiny under conditions you do not control, years after the fact.
That is the thinking behind RiskBase. Every assessment is captured at the point of work, with timestamps, photographs, records of what was relied on, what could not be accessed, and the decisions made along the way, all held in one place and recoverable years later. The uncomfortable truth is that by the time you need that record, it is too late to build it. Read more about how we do it here.
Why I'll keep writing about this
I am going to keep writing about this, because I think the profession needs to talk about it far more openly than it currently does. If you have been through a prosecution, if you are going through one now, or if you simply know something solid about how insurance really responds to these cases, I would like to hear from you. The more we share, the less likely the rest of us are to learn these lessons too late.
Pete Thomas, RiskBase
