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Health and safety: Local authority – inspection regimes

Adrian Mansbridge and Paul Matthews discuss recently published agenda items from the HSE/Local Authority Enforcement Liaison Committee (HELA) which provide an insight into developments following Professor Löfstedt’s recommendations for reform of the Health and Safety inspection regime and the direction this may take in the future.

Current HSE inspection regime

Recently published agenda items from the HSE/Local Authority Enforcement Liaison Committee (HELA) provide an insight into developments following Professor Löfstedt’s recommendations for reform of the Health and Safety inspection regime and the direction this may take in the future.

Local authorities have responsibility for inspecting certain categories of business premises, and are now subject to direction from the HSE. Statistics published recording local authority inspections show that proactive inspection activity across the board between April 2012 to September 2012 reduced by 80%, making up only 14% of all visits. In addition 12% of local authorities undertook no proactive inspections at all during this period. Professor Löfstedt’s recommendation was for proactive inspection activity to be reduced by a third, with enforcement being consistently directed by the HSE to ensure that inspection targeted the areas of the highest risk. In spite of this limited objective, total inspections have nearly halved since 2009/10.

To what extent this is a symptom of Löfstedt’s recommendations is debateable, given that inspections following accidents also significantly reduced, this may simply be a reflection of constrained budgets. Certain categories of inspection did increase, particularly in relation to joint inspections with other local authority functions, such as food standards, where health and safety issues were identified.

The National Local Authority Enforcement Code which sets out a framework for enforcement by local authorities was published in May this year, so it is possible that inspections will henceforth reflect greater consistency with the HSE’s national approach. A consultation on the Code highlights that the majority of local authorities consider the guidance to be helpful. However from the perspective of businesses whilst small and medium businesses considered that a uniform standard would improve consistency, a more sceptical attitude was exhibited by larger, multi-site, businesses, as to whether this objective would be achieved.

For businesses it appears that inspections are being handled with a relatively light touch, however businesses in high risk sectors such as waste management and construction will certainly feel the burden of the new risk driven inspection regime. It should also be remembered that whilst local authority inspectors may provide advice for free HSE inspectors can charge for any failings associated with perceived breaches under the Fee For Intervention scheme. In view of the above we would not be surprised to see this scheme extended to local authority inspectors in the future.

The future of inspections?

A fascinating glimpse of what the future may hold is revealed by a paper entitled “The implications of contracting out HSW delivery”, which states that a number of local authorities are “considering contracting-out their [inspections] to private contractors”. The paper considers that it would technically be possible for a local authority to designate a non-employee as an inspector. However whilst the inspection function can be delegated out this would be subject to the enforcement functions themselves being retained by the local authority as these are conferred by statute.

This raises the fascinating possibility of privately contracted inspectors carrying out an inspector’s role. It is astonishing to think that the role of a health and safety inspector, possessing such draconian powers as the ability to enter premises and seize documents, could be in the hands of a private company, subject to enforcement remaining in the hands of the local authority. Legal arguments over the status of such individuals will almost certainly ensue, particularly as to whether an employee of a privately owned, and profit driven, company, could ever exercise the necessary independence and impartiality of decision making necessary to undertake inspections that may lead ultimately to prosecutions.

If you have any questions or would like more information please contact Adrian Mansbridge, Solicitor, Dispute Resolution on 0113 261 6086 or at adrian.mansbridge@dwf.co.uk or Paul Matthews, Director, Dispute Resolution on 0113 384 0625 or at paul.matthews@dwf.co.uk

By Paul Matthews

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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