Enforcement code leaves local authorities and HSE atop their own peak

Howard Fidderman believes the final version of the HSE's (Health and Safety Executive) enforcement code for local authority regulators is as flawed as its draft version.

The HSE's final version of its code on how local authorities in England, Scotland and Wales should enforce health and safety is almost identical to the draft version it consulted on. The code, claims the HSE, should result in businesses benefiting from a more consistent and proportionate approach by local authorities (LAs). More controversially, the HSE insists the code "will see tens of thousands of businesses removed from health and safety inspections which are not justified on a risk basis, including most shops and offices".

The code represents the HSE's implementation of the Government's response to a recommendation of the Löfstedt Review that the HSE direct LA health and safety inspection and enforcement activity. Critically, it does not implement the recommendation itself and is much the worse for that. The HSE consulted on the code between 31 December 2012 and 1 March 2013, and brought it into force on 28 May, eight weeks after the 1 April target.

Consultation elicited 337 online responses, of which more than two in three were from LAs and their representative bodies. Of the responses, 80% agreed the measures in the code would stop LAs from proactively inspecting lower-risk premises, with a majority of LA respondents agreeing the measures would be helpful, although the HSE also notes: "Some identified that the reduction in LA resourcing was also influencing this change."

Given the importance of the code - LAs enforce half of the UK's business premises - HSB is again reviewing its provisions; we also look at the responses to the consultation and highlight the few changes that have been made to the final version. The lack of change is partly attributable to the "preliminary testing" of an "outline" code that the HSE carried out online in autumn 2012, the results of which were positive. The lack of change is regrettable, however: the code is long-winded and highly repetitive, with many of the sections interchangeable. Too often, it smacks of peddling jargon, compromise and keeping ministers happy, and clearly suffers from the HSE Board having approved the final version of the code by a teleconference (on 2 April) and correspondence rather than in a meeting: the board's discussion took place at a February 2013 meeting while consultation was still ongoing; it decided it would "come to a final decision by correspondence or, if necessary, by teleconference call" once consultation was completed.

The code

The code is made under s.18(4)(b) of the Health and Safety at Work Act (HSW) and replaces the s.18 "standard", which had legal effect as HSE guidance to LAs on how they should perform their duties as enforcing authorities. The code concentrates on four objectives, which are unchanged from the draft version (see box 1), and which HSB examines in detail below. The code guides LAs on how to use their regulatory resource "consistently and to best effect by targeting specific risks or focusing on specific outcomes". It is also clear that: "LAs should use the full range of regulatory interventions available to influence behaviours and the management of risk, with proactive inspection utilised only for premises with higher risks or where intelligence suggests that risks are not being effectively managed."

The code also advises LAs about reporting on compliance and provides for businesses to complain to the Independent Regulatory Challenge Panel where they believe they operate in a lower-risk sector and that they have been subject unreasonably to a proactive inspection. Should the panel uphold such a complaint, the HSE will then work on compliance with the LA.

Roles and responsibilities

The first of the code's four objectives explains the role of regulators is "to support, encourage, advise and, where necessary, hold to account business to ensure that businesses effectively manage the occupational health and safety risks they create". Regulators, the codes states, should choose "the most appropriate way of influencing risk creators" and target their interventions, including inspection and investigation, on businesses and sectors that represent a higher level of risk to the health and safety of workers and the public. The code acknowledges that "the focus of LAs may often be broader than specific health and safety outcomes as they can also have an impact on wider public health outcomes/health inequalities. Additionally, LAs contribute to delivering the growth agenda and can provide invaluable advice to new business."

The final version of the code adds a new paragraph to the section on regulators' responsibilities that refers explicitly to the split in the enforcement of health and safety between the HSE and 382 LAs under the Enforcing Authority (Health and Safety) Regulations 1998. The additional text advises: "This code provides statutory guidance to each LA and a framework to guide local approaches. Meeting the requirements of this code will ensure LAs' approach to enforcement is consistent."

There is no change, however, to the draft text in terms of the assistance the HSE will give LAs to help meet this objective. The HSE insisted, in response to questions from HSB, that "no additional resource is required" for this assistance, with the HSE's LA unit continuing to help LAs. The code commits the HSE to providing LAs with:

• authoritative health and safety advice and guidance for business;
• stakeholder engagement through involvement in industry liaison forums and other national forums;
• specialist health and safety support and advice;
• specific sector strategies with national planning priorities that will inform LA interventions;
• a list of high-risk sectors and activities appropriate for targetting through proactive inspection by LAs;
• support for primary authorities and their inspection plans;
• support for LA peer review of their enforcement decisions, intervention plans and professional competence; and
• a service that will monitor and publish LA intervention data for benchmarking purposes via the LAE1 return (which is the way in which LAs inform the HSE of their enforcement activity over each year).

Business and professionals

Notwithstanding the responsibilities of the regulators, the code remains emphatic that "the primary responsibility for health and safety lies with the businesses and organisations that create the risk." The HSE notes that, although 55% of business respondents to the consultation agreed the code stated all that was necessary about responsibility for managing the risks they create, others put forward additional ideas, hence the inclusion in the final version of the code of a specific requirement that employers should engage their workers on health and safety issues. This is, in fact, the only specific requirement in this section.

Respondents also suggested that the code should include more information on access to competent advice or external expertise and sources of assistance. The HSE therefore specifies in the final version that guidance on risk management is available on the HSE's website or, where more specialised external assistance is needed, from the Occupational Safety and Health Consultants Register.

The HSE has also widened the reference to the responsibilities of professional bodies. The draft text had referred only to the two main bodies for LA regulators - the Chartered Institute of Environmental Health (CIEH), which covers England and Wales, and the Royal Environmental Health Institute of Scotland (REHIS). The final version also notes that: "In addition, there [is] a range of other organisations, for example the Institution of Occupational Safety and Health (IOSH), [which] can help support the delivery of the risk-based approach to regulation outlined by the code."

A risk-based approach

Consultation revealed that 78% of respondents supported a risk-based approach, and the code's second objective accordingly remains to "provide advice and direction to LAs on using a risk-based, targeted and proportionate approach to their interventions and enforcement in accordance with the principles of good regulation". As HSB noted when it reviewed the draft code, there is nothing new in the five enforcement principles of targeting, consistency, proportionality (see box 2), transparency and accountability (see box 3).

The code requires LAs to have risk-based intervention plans that target the most serious risks and the hazards that are the "least well controlled". While the HSE expects LAs to utilise "the whole range of interventions" available to them, it is also explicit that LAs "should not invest limited resources on matters of comparatively low risk - unless, of course, they come across matters of evident concern".

Better targeting will, adds the code, allow LAs to contribute to the "growth agenda" by carrying out advisory visits. The code repeats the wording of the draft text that advisory visits are distinct from regulatory visits and should be made without recourse to the powers of entry available to inspectors under s.20 of the HSW Act. The final version, however, adds that such visits "should be made at the convenience of business".

The proactive list

Significantly, LAs must restrict "unannounced proactive inspection" to an HSE-published list of higher-risk activities and sectors and to "where intelligence suggests risks are not being effectively managed" (although the list itself is not formally part of the code). The HSE published a draft list of 10 such activities and sectors with the consultation document. Of the respondents to the consultation, 77% agreed that such a list would be helpful. The only change to this part of the code following consultation is that the HSE has removed a footnote from the draft code that stated it would review the list annually. Instead, the HSE, in its analysis of consultation - but not in the code - now states the list will be published "at appropriate intervals".

Some of the consultation questions were restricted to LAs, of whom 52% believed the code afforded sufficient local flexibility. LA respondents also pointed out that the flexibility to deal with local priorities should be referenced in the list. The vast majority of those disputing that the code offered sufficient local flexibility commented on the list of proactive inspections, "with most considering that there should be greater emphasis given ... to local priorities/issues".

The HSE's analysis of the responses from all parties notes that many comments were made about how the list might be improved. Although the HSE stated it would amend the list to tighten the definitions of the activities and sectors, our analysis shows it has not done this in any meaningful way.

The final list (see table 1) is almost identical to the draft version, which is disappointing as the list was sufficiently confusing for HSB to seek clarifications on some points from the HSE. Of the three changes to the list, there is just one such clarification, while the only amendment of potential significance would appear to be the removal of "gas explosion" from the proactive inspection list (see table 1).

Consistency

The other of the five risk-based principles that HSB is looking at in detail here is consistency, by which the HSE "means regulators taking a similar approach, in similar circumstances, to achieve similar ends". Businesses should "expect to receive a consistent approach to targeting, enforcement, decisions to prosecute and response to incidents from each LA regulator". The HSE's analysis of consultation responses found that 53% of businesses agreed the code would bring about the desired consistency of approach, but that the scepticism was greatest among large multi-site businesses. The HSE will, in response to such comments, monitor the use of the code in its first year and carry out an early review in 2014. (The consultation questions had mooted a five-yearly review.)

The HSE notes that a desire for more detailed guidance to help LAs behave consistently "cropped up in several places" in responses to the consultation and, as a result, the final version of the code includes a new commitment that: "Supplementary guidance will be provided to support LA implementation of the code and this will be periodically reviewed in the light of experience and implementation."

Primary Authority

The code states LAs should have management arrangements that ensure they apply national guidance, set clear expectations for delivery, "allow appropriate comparison and transparency, via publication annually of health and safety inspection data", and take full account of any Primary Authority (PA) arrangement.

The PA scheme allows a business to form a PA partnership with a single lead LA that governs its regulatory compliance across all LAs in which it operates. Other LAs must follow the compliance advice that the PA has given the business. As at 31 May, there were more than 2,000 partnerships - not all of which include health and safety - covering 758 businesses, 103 LAs, and more than 63,000 premises and 1.6 million employees.

Acknowledging the responses to the consultation, the HSE increased the emphasis in the final version of the code on the PA scheme and its role in ensuring consistency. The HSE added a reminder that the PA and individual inspection plans represent "an important tool in encouraging a consistent approach is taken to a particular business. To ensure consistency nationally, PA inspection plans should follow the principles of the code and be developed taking into account the national priorities and list of activities/sectors considered suitable for proactive inspection.." In a similar vein, the HSE has strengthened the code's targeting provisions, essentially to make it clear that LAs "should", rather than "can", take note of a PA arrangement (see table 2).

Training and competence

The code's third objective covers the training and competence of LA inspectors (usually known as environmental health officers (EHOs)). Inspectors, the code notes, need the professional competence and discretion to differentiate between significant risks and trivial matters and to intervene appropriately. To do this, it suggests, as examples, that LAs use the "Common approach to competency for regulators", which includes the "Regulators development needs assessment (RDNA) tool" and "Guidance to regulator's information point (GRIP)".

The RDNA establishes competencies and behaviours for a range of LA regulatory activities and "sets specific competencies and behaviours for health and safety regulators". The code advises regulators to assess themselves against the competencies at least annually to determine their development needs. They should discuss the outcome with their line manager to address these needs. While 71% of respondents agreed the code provided sufficient guidance on regulator competence, some wanted details of how to maintain competence and reference to resources provided by bodies such as the HSE and IOSH, which the HSE has added to its section on responsibilities.

Compliance assurance

The fourth and final objective is to give assurance that LAs are meeting the code. The HSE hopes this will be secured by monitoring compliance and also by LAs themselves through peer review (see below). LAs, under the code, must ensure they "have a means of monitoring, capturing and sharing health and safety intervention, enforcement, and prosecution activity".

LAs must also make this information publicly available "to encourage local accountability" and also provide it to the HSE via the LAE1 return "to allow the preparation of national data which in turn will assist LAs to benchmark and peer review their work with other LAs". According to the HSE, about nine in 10 LAs "usually" send it their LAE1 data.

The draft version of the code had also advised: "To encourage transparency and accountability, HSE will publish these data for all LAs annually." In what may prove to be a significant - or maybe merely an innocuous - change, the final version substitutes "data" for "these data" so that it commits the HSE only to making available LA data rather than all of the LAE1 return data. There is no change, however, to the commitment that "where there is a lack of information or where the information prompts questions about compliance, HSE will work with the LA in question to assist their implementation of the code."

Peer review

The code recommends an inter-authority peer review in order to assure LAs they are meeting its requirements. The review is not, however, a formal audit, and the HSE envisages it will involve between six and eight LAs considering "any aspects of the code". The HSE notes the consultation respondents largely supported the assurance measures but, in response to comments, it has made a small addition to the final version that also envisages that the peer review could alternatively be carried out "within existing liaison groups".

A review may range from a short, informal group discussion to a written report. The HSE hopes the reviews will share best practice, consider different approaches, and verify that important messages are understood and "necessary change properly embedded". Despite this lack of prescription, the code also lists seven compliance issues that any peer review should question:

• does the LA have a risk-based approach to intervention planning for both local and national priorities;
• do specific intervention plans meet the requirements of the Regulators' compliance code (for example, no inspection without a reason) and the Enforcement management model (EMM) (for example, was enforcement action proportionate to risk);
• is there a published enforcement policy and is it being followed;
• are there adequate arrangements to manage the appointment of suitably qualified inspectors;
• is there a system for ensuring ongoing inspector competence;
• do LAs benchmark their interventions; and
• do LAs peer review their enforcement decisions as part of their peer review process?

As HSB noted when it looked at the draft code, peer review is not a new concept for LA enforcement. In 2010, the HSE produced a suggested method, and a 45-page toolkit, setting out how LAs might undertake a s.18 self-assessment and two-stage peer review (involving two or more principal EHOs from different LAs within the same enforcement group, followed by a countywide meeting).

It remains unclear as to how the new peer review provisions will prove more adept at improving LA enforcement than the previous two-stage review. When we asked the HSE about this, the reply sidestepped the question altogether to note only: "The intention behind peer review is to allow LAs to challenge and assist each other in their implementation of the code. The use of peer review has proved effective in a wide range of activities, including within HSE, and will allow LAs to share best practice and ownership of the code." The HSE has also committed itself to work with interested businesses to publicise better the Independent Regulatory Challenge Panel as a further check.

Twin peaks to stay

In its introduction to the final version of the code, the HSE states, as it did in the draft version: "In his report ... Professor Ragnar Löfstedt recommended that HSE be given a stronger role in directing LA health and safety inspection and enforcement activity." Löfstedt in fact called for something far more fundamental, recommending "that legislation be changed to give HSE the authority to direct all LA health and safety inspection and enforcement activity, in order to ensure that it is consistent and targeted towards the most risky workplaces".

Löfstedt was unequivocal that: " ... to ensure that enforcement is consistent and targeted on risk, there needs to be one single body directing health and safety enforcement across all workplaces. The only way to achieve this would be to pass responsibility to the HSE." As HSB noted during consultation, there is a significant difference between Löfstedt's recommendation that the HSE "direct all" LA health and safety enforcement and the code's intention that the HSE has "a stronger role in directing" the activity.

Löfstedt hoped his recommendation would address the discrepancies that have arisen from the historical enforcement split that makes the HSE, crudely, responsible for higher-risk sectors and LAs for relatively lower-risk sectors (although such risk categorisations are themselves problematic). The HSE itself acknowledged as far back as 2010 that there was no lasting logic to this division. Löfstedt went further, highlighting the effect of the split: "Each enforcing authority can only consider the subset of workplaces that rests within their area of control, generating an artificial barrier to the most efficient targeting of enforcement activity across the board. Premises that are considered relatively low risk amongst the workplaces overseen by HSE (and which are therefore not inspected) may nevertheless be riskier than many of those under LA control. This will result in too many inspections of relatively low-risk workplaces."

Löfstedt believed his recommendation was the only way to level these so-called "twin peaks" - in effect, the recommendation would have allowed the HSE to merge the peaks into a single higher-risk peak, regardless of who the enforcing authority was. Direction by the HSE, added Löfstedt, also had the advantage of "putting responsibility in the hands of a single organisation dedicated to health and safety, and ensuring that enforcement is not influenced by the range of other concerns that LAs have, which in turn contributes to the continued variation in enforcement across the different LAs".

A small step

The Government claimed it "fully support[ed] the overall objectives of the recommendation", but wanted also to maintain the "local" elements of LA enforcement and therefore advised that the HSE would instead implement a code. Such a code, however, is inherently unable to address the twin-peaks problem itself, so the question is whether or not it will at least help LAs to enforce more of the riskier premises for which they are responsible.

The past has witnessed many HSE initiatives to encourage and assist LAs to focus their inspection activity on higher-risk premises, with the HSE arguing earlier this year that "the code should very much be seen as part of the continuing journey of reform." As recently as 2011, the Joint HSE/Local Government Association statement on reduced proactive inspection, with underpinning guidance, covered similar territory. And yet the HSE's chief executive, Geoffrey Podger, was compelled in December 2012 to acknowledge the latest figures for proactive inspections by LAs "indicate that there is still an issue with targeting in [that] a large percentage of the inspections are to lower-risk premises".

In his one-year review of the implementation of his recommendations, Löfstedt noted of the LA code: "While it is unfortunate that the code does not go as far as my recommendation ... it is certainly a step in the right direction and, if adhered to, should ensure a more proportionate, risk-based approach to LA enforcement." The likelihood is that Löfstedt will be proved correct; the code will be a step, but not a leap and certainly not the answer. In the end, direction by a single body - the HSE - is logically the only way to proceed.

LA officers "belittled"

Further doubt as to the impact of the code comes from the CIEH, which took exception to the claim in the HSE and government statement accompanying the launch of the code, noting that: "LAs are being banned from unnecessary health and safety inspections under a new code ... [that] will see tens of thousands of businesses removed from health and safety inspections which are not justified on a risk basis, including most shops and offices." (What the CIEH did not remark upon, however, was that in September 2012, the Department for Business, Innovation & Skills had claimed the code would "exempt hundreds of thousands of businesses from burdensome, regular health and safety inspections").

The CIEH said it had "serious concerns about the language and tone" of the statement, pointing out it "wrongly refers (twice) to LAs as being 'banned' from undertaking unnecessary health and safety inspections". Graham Jukes, the CIEH's chief executive, described the language as "inflammatory and misleading and belitt[ling] the efforts of LA officers in discharging their duties".

The CIEH cautioned too that the claim was "misleading": "Unless one qualifies the statement to indicate that this applies to proactive inspection when there is no local intelligence or evidence to suggest otherwise, proprietors of 'most shops and offices' might believe that they have been exempted from compliance with the HSW Act, and this is not so."

Cuts undermine code

What the code will not, in any case, manage to do is assuage the perilous enforcement predicament of LAs. In 2011/12, LAs in England and Wales managed just 95 health and safety prosecutions between them, which is less than one for each LA a year.

Worse still, confronted with a four-year 28% cut in their budgets from April 2011, many LAs "front-loaded" the reductions. Projections based on LA returns to the HSE for the six months from April 2012 indicate that LAs are set to carry out 86% fewer proactive inspections in 2012/13 than in the baseline year of 2009/10 (a fall from 118,000 to 16,400 proactive inspections).

The reduction means that LAs will have managed an average of 41 proactive inspections each over a year, ie less than one inspection per week per LA. As a response to the March 2011 ministerial statement, Good heath and safety, good for everyone, which looked to LAs to secure a reduction "of at least one-third" in their proactive inspections, an 86% reduction is unacceptable. Furthermore, there was also a drop in all categories of LA inspections and visits over the same period, from 196,000 to 65,306.

The HSE's chief executive, Geoffrey Podger, told the HSE Board's December 2012 meeting that the fall in proactive inspections was "very significant" and that it was "more likely to do with cuts in the number of people likely to do the job [of proactive inspection] than with better targeting". No code, in HSB's view, can compensate for such cuts.

Author: Howard Fidderman is a freelance journalist and editor of HSB.