New HSE code will reduce the number of local authority health and safety inspections
For the purposes of enforcement of health and safety law, businesses are divided into two groups: those for whom the regulator is the HSE and those for whom the regulator is a local authority.
In general terms, the LA enforced sector is perceived to contain a higher proportion of "low risk" businesses than the HSE enforced sector (the level of risk in this context being judged by rates of death and injury).
This has lead to a "twin peaks" phenomenon in enforcement, with the rate and level of LA interventions in businesses in their sector inevitably being at a disproportionately lower level of perceived risk compared with the HSE enforced sector.
This has lead to a groundswell of complaints from businesses in the LA enforced sector about over-zealous intervention by LA inspectors (usually Environmental Health Officers).
Professor Löfsted's 2011 review of the UK health and safety system recommended that the HSE should be given the power to direct the health and safety enforcement activities of local authorities, but the government drew back from such a radical move and directed instead that the HSE should draw up an enforcement code for the local authorities to follow.
That code has now been published.
Although the HSE's direction is being given through a code rather than legislation, this is a code which has teeth: it is imposed on LAs under s.18 of the Health and Safety at Work Act, which puts LAs under a legal duty to have regard to the code when enforcing health and safety law.
Furthermore, the code will require LAs to publish risk based service plans, to have an easily accessible complaints procedure, to report their enforcement activities regularly to the HSE, to make the enforcement data publicly available and to have their activities peer reviewed.
The aspects of the code which relate to enforcement activity are striking.
- Interventions must be targeted on activities which give rise to the most serious risks or where the hazards are least well controlled. In particular, unannounced proactive inspections should be reserved only for activities and sectors on a "high risk" list published by the HSE or for businesses where intelligence suggests that risks are not being well controlled.
- When proactively inspecting a business, EHOs should focus on the risk which prompted the inspection and not waste time on inspecting other matters of comparatively lower risk.
- Reactive inspections (i.e. those which result from an incident) should not be a matter of course, but should be reserved for those which comply with the HSE's own incident selection criteria.
- Other inspections should be regarded as advisory visits, to be made with the consent and at the convenience of the business concerned.
- In deciding upon enforcement methods in particular cases, LAs should use the HSE's own enforcement evaluation tools, in order to ensure proportionality.
The "high risk" list published by the HSE means that from now on, LAs will be targeting a very limited list of hazards: legionella, LPG explosions, e.coli infections, being hit by a moving vehicle, falls from height, occupational asthma and deafness, crowd control, carbon monoxide poisoning and violence at work.
The list of "high risk" sectors is similarly limited: premises with cooling towers and evaporative condensers, premises with buried LPG pipework (especially caravan parks), open farms, tyre fitters, motor vehicle repair, high volume warehousing and distribution, industrial retail and wholesale premises, large scale public events, commercial catering establishments using solid fuel equipment and premises with vulnerable working conditions where intelligence suggests that the risks are not being properly managed.
Finally, the code is prescriptive on the training and accreditation requirements for EHOs in relation to the enforcement of health and safety and expects that competencies of individual inspectors should be assessed annually.