HSE considers shake-up of health and safety enforcement allocation

Last month the Health and Safety Executive (‘HSE’) closed its consultation on health and safety enforcement allocation. Further news is awaited as to what impact, if any, the consultation will have on the role of Local Authorities in health and safety enforcement.

The HSE had been seeking industry comment on whether the allocation of responsibility for enforcing the health and safety regime ought to be changed. Enforcement is split between the HSE and Local Authorities (‘LAs’) depending upon the activity undertaken by the dutyholder. The HSE is considering whether it ought to absorb LA regulatory power in some sectors or, conversely, whether it ought to grant greater LA remit. The HSE is “exploring the possible benefits of changing the existing LA/HSE enforcement allocation to see if that would improve regulation or make interpretation simpler”.

The current distribution is governed by the Health and Safety (Enforcing Authority) Regulations 1998 (‘EA Regulations’). Broadly speaking, LAs have a duty to regulate the majority of retail, leisure and service based premises. This is implemented through 380 district and unitary authorities. The HSE on the other hand, has authority over manufacturing, energy, public sector, agriculture and construction.

The Survey

The HSE opened a four-week informal survey on 1 July. The consultation asked businesses whether they understood the HSE/LA division of labour and queried how a change in regulator may affect their perceived regulatory burden. The EA Regulations formed the central focus of the survey. The HSE enquired whether these regulations were still fit for purpose. In the event that they are found not to be so, the HSE has floated the possibility of a redraft. Should the survey reveal ideas that merit further consideration, the HSE will proceed to formal consultations, cost-benefit analyses, and regulatory impact statements.

The survey closed on 28 July.

The Incentive

The move follows a significant decline in LA inspections. Figures published in a paper for the HSE and Local Authority Enforcement Liaison Committee (‘HELA’) revealed a 61% decrease in total visits by LAs in the past six years. The paper can be accessed here. Around 25% of local councils did not carry out any proactive inspections last year.

This reduction is owed, at least in part, to changes in government policy that narrowed LA remit and restricted inspection capacity. The main argument for change, however, is that LAs do not have the resources to properly enforce health and safety. Long-term cuts in LA budgets have meant that “the number of regulatory interventions and the total health and safety regulatory [capacity] in LAs is decreasing”, according to an HSE spokesperson. By proposing potential movement in this field, the HSE seeks to ensure that LAs “have access to sufficient levels of regulatory competency to effectively deliver health and safety regulation”.

In support of this redistribution of responsibility is the notion that LA enforcement officers have an extensive remit. It has been suggested that this implies a lack of expertise. HSE inspectors, on the other hand, tend to be specialised in a given sector. Some might advocate HSE appropriation of the more technical areas, leaving only the most general to LAs.

The Primary Authority Partnerships may yet improve matters at a local level. Primary Authority was established by the Regulatory Enforcement and Sanctions Act 2008. It was also implemented in Scotland through the legal framework of the Regulatory Reform (Scotland) Act 2014. This scheme allows a business operating in two or more LAs to form a partnership with one LA to receive support in relation to a range of regulations. This helps to ensure that local regulation is consistent and efficient.

Alternatively, it may be that having LAs partially responsible for any aspect of health and safety is too fragmented an arrangement. Some would advocate a single body responsible for all enforcement of this kind. In his 2011 report for the government (accessible here), Professor Löftstedt recommended that LA health and safety responsibility be transferred to the HSE. This would be a major task: LAs account for the enforcement of health and safety in around 50% of businesses.

Fees for Intervention

The decline in LA inspections has been proposed as the strongest case for redistributing power. Yet HSE proactive inspections have also declined. The HSE Business Plan for 2015/2016 (which can be accessed here), predicts 20,000 inspections. This is a fall of over a third from the 33,000 inspections carried out in 2010/2011. The implication is that resource pressure is being felt across the board and not solely in the local sectors.

In this regard, it ought to be noted that there is a financial implication for the involvement of the HSE. Under a scheme that came into effect on 1 October 2012, this regulator is able to charge for its health and safety activities. The Health and Safety (Fees) Regulations 2012 provide that those who breach health and safety laws are liable for recovery of the HSE’s related costs, including inspection, investigation and taking enforcement action. The fee payable by dutyholders is £129 per hour. These ‘Fees for Intervention’ (‘FFI’) regulations do not apply to LA health and safety activities. Should the HSE become more widely responsible for enforcement, there is the potential for significant costs to sectors such as hotel, leisure and retail that they had not previously been subject to.

Comment

There are troublesome grey areas in the allocation of health and safety responsibility. Determining which organisation has authority in any particular area is not necessarily straightforward. The divides can appear arbitrary. For instance, LA enforcement officers will inspect car dealers and tyre-fitters, but where the main activities are MOT and repairs, visits will fall to the HSE. Similarly, the HSE is responsible for enforcement in nursing homes, whilst LAs are allocated care homes, with significant power also now resting with the CQC for regulation of health and safety in England and the Care Inspectorate in Scotland. The lines can appear particularly blurred when one considers that the HSE is responsible for business activities taking place in people’s homes, whilst LAs regulate many of the activities that take place in domestic premises, such as tattooing and hairdressing.

It may be that the boundaries set by the EA Regulations are not fit for purpose. However, it is equally possible that the boundaries, as intended, are appropriate, and that it is instead the proper interpretation of those boundaries that is unclear. The reality is likely somewhere in the middle. In light of these difficulties it may be that this is a genuine attempt to review regulations and an A-Z allocation guide that is now archaic. Regardless, proper allocation is a moot point if the HSE and LAs lack sufficient resources to enforce in the sectors for which they are responsible. Both bodies have witnessed a decline in inspections. Arguably the key challenge for effective delivery is not merely one of scope or allocation, but ultimately is a matter of resource availability.

The results of the survey are likely to be presented to the HSE board next year. A further Law Now will be issued on any developments.