MPs stuck in groundhog day
A House of Commons committee is unhappy about health and safety in the UK, reports Howard Fidderman.
On this
page
Keeping Podger awake at
night
HSE enforcement is unbalanced
Penalties are too low and too
narrow
Reducing the
burdens
Improving advice
An unhealthy situation
A lack of assistance
The perennial question of
resources
An expanding
remit
Box 1: The HSE’s FIT 3 – not
fit for purpose
Box 2: Other
thoughts of the select committee
Table 1: HSE budget 2003/04-2007/08
For the second time in four years, a House of Commons select committee has raised fundamental doubts about the ability of the HSE to do its job properly. Its report1, published on 21 April, reflects five hearings earlier this year and 46 written submissions. In particular, it questions the adequacy of the HSE’s resources, looks at the difficulties of reducing the toll of work-related ill health, and criticises the HSE for its approach to enforcement and the courts for their seeming unwillingness to sentence appropriately once a conviction is secured.
The Work and Pensions Committee acknowledges that it is a relatively short time since it last inquired into the HSC and HSE in 2004, but points out that:
- there have been important developments since 2004, notably the replacement of the HSC and HSE with a new HSE , the planned relocation of the HSE headquarters to Bootle and a rise in construction deaths during 2006/07; and
- a one-off committee hearing in November 2007 and written evidence revealed that “many” of the committee’s previous concerns remained valid, “persistent and unresolved”, including “the continued paucity of the HSE’s resources, its expanding remit and the impact this has had on its capabilities”, and the inadequate progress towards its Public Service Agreement (PSA) targets for ill health and work-related absence.
Although there is little in the report that has not been said previously by the committee, employers and unions, the report represents a useful snapshot of many of the main unresolved issues in health and safety. The fact, too, that it is a select committee report means that the government, at the very least, will have to provide a measured response. Also important is that government ministers and HSE officials are more inclined to answer questions from a select committee than from journalists.
KEEPING PODGER AWAKE AT NIGHT
The committee notes that the total number of HSE staff fell from 4,162 in April 2003 to 3,458 in April 2007. The number of HSE inspectors fell from 1,651 in April 2003 to 1,389 by the end of 2007; the decrease is most marked in the field operations directorate, where numbers have fallen from 916 to 680 over the same period, but there have been smaller declines in other inspectorates.
The HSE reports 41,496 inspections in 2006/07 – equating, claims the Hazards campaign, to a workplace receiving an HSE inspection every 14.5 years, compared with an average seven-year gap in 2001/02. The Hazards campaign, unions and academics submitted statistical correlations between decreases in inspections and increases in injuries (although there have also been other years when the relationship has been reversed). The HSE claimed, however, that it was not possible either to identify a direct relationship between inspection and accident rates, or to separate the impact of inspections from other tools in the HSE’s kit.
Geoffrey Podger, the HSE’s chief executive, told the committee: “The thing which I lie awake at night puzzling about is, indeed, exactly this issue of what is the correct number of inspectors to have or at what point do you actually reach the tipping point where we cease to have a deterrent effect, where we cease to be influential. We do not have an evidence base for this and it is not, to be frank, obvious to me as to how we could actually get one, but the thing which is unnerving [is that] clearly a point could be reached at which we just did not have enough, and I accept that.”
HSE enforcement is unbalanced
The committee notes that the HSE is “unlikely to reach its aspiration to achieve a 60:40 ratio in its proactive:reactive [inspection] caseload”. Although the HSE wants to direct resources towards proactive work, the balance in 2006/07 was 51:49, due, explains the HSE, to its work being dictated by criteria set out in its Enforcement policy statement. Developments such as the need to assist the police with corporate manslaughter investigations may even tip the balance in favour of reaction. The committee says it is “disappointed” with the balance “given the considerable evidence we received suggesting the importance of proactive inspections”, and it calls on the HSE to publish empirical evidence about the “optimal” mix and allocate its resources accordingly.
HSB has recently covered the worrying decline in enforcement notices, so it suffices to repeat only that the past three years have seen the lowest totals on record. Noting the role of notices in securing compliance, the committee concurs with its own 2004 report and recommends that the HSE increase its enforcement activity in under-performing sectors.
Penalties are too low and too narrow
The committee describes the decreasing number of prosecutions that the HSE and local authorities (LAs) manage to take as well as the low fines that courts impose. We will not go into these in detail, not least because many of the statistics are taken from a recent edition of HSB. The MPs emphasise: “A robust system of prosecution and conviction is needed to enforce health and safety law and act as a critical deterrent to those inclined not to meet their legal obligations.”
The committee makes its by now habitual recommendation that the government introduce legislation to increase the maximum penalties available to courts for breaches of safety law, and that should the Health and Safety (Offences) Bill – which is a private member’s initiative – become law, then a proportion of the increased fine should be returned to the HSE to increase its investigative capability.
The MPs also believe there is “scope” for the HSE to introduce alternative penalties, and that it should “revisit whether innovative penalties could be incorporated into its Enforcement policy statement (it last consulted in 2005). It should be noted that the HSE has recently ruled out immediate use of the alternative penalties contained in the Regulatory Enforcement and Sanctions Bill , which does not, in any case, provide for some of the alternatives to which the MPs allude, notably corporate probation. The committee also recommends that the government outline plans to remove crown immunity from prosecutions for health and safety offences (and thereby bring it into line with the situation pertaining to corporate manslaughter).
One particularly gratifying aspect of the report is the recognition of this journal’s campaign to highlight the HSE’s failure to publish basic information on prosecutions and penalties. Quoting HSB, the committee recommends “the HSE reconsider its decision to stop publishing its annual Offences and penalties report”, which, the committee notes, had formerly “provided an important evidence base for future decisions”.
REDUCING THE BURDENS
The committee endorses the HSE’s attempts to reduce the administrative burden on companies, particularly small and medium-sized enterprises, through initiatives such as its simplification plans. It nevertheless recommends that government take steps to ensure its transposition of EU legislation is consistent with the HSE’s attempts to reduce administration burdens on companies. The committee is “concerned that the implementation of some Directives in UK regulations [had] introduced a more absolute duty on employers, which was over-prescriptive and countered these efforts”. The test of “reasonable practicability”, it argues, introduces a lack of clarity that can increase the burden on employers in meeting their health and safety obligations; it therefore recommends that the Law Commission review the application of the test to the HSW Act.
The conclusions on EU legislation are perplexing for two reasons: first, the detail of the implementation is generally carried out by the HSE, with the government “rubber-stamping” a finished HSE product. Second, the committee appears to have been swayed by evidence from groups such as the Federation of Small Business, rather than the more substantial review carried out for the government by the former solicitor general for Scotland, Neil Davidson, which cleared the HSC/E of goldplating.
Improving advice
A significant part of the committee’s concern about “over-interpretation of health and safety legislation” – in particular, overly complicated risk assessments – arises from what it politely calls “over-zealous health and safety consultants”. The committee is “particularly concerned that the health and safety consultancy profession is currently unregulated. The minister agrees that over-eager health and safety advisers encourage employers to produce over-burdensome risk assessments. We therefore recommend that the government, in consultation with the Institution of Occupational Safety and Health, introduces recognised accreditation for health and safety consultants and advisers, with appropriate sanctions for malpractice.”
But, somewhat disappointingly, the committee allows the HSE to backtrack on an earlier promise that it would make all its guidance available free on the internet. While the HSE is putting increasing amounts of information and advice on its free-to-use website (external website) it still charges for some publications, notably the “L” series on legislation – either through HSE Books or on “hsedirect”, a subscription website. The committee heard evidence that the justification for charging had diminished because the web dispensed with printing, paper and distribution costs, and that some people were not accessing paid publications because of the cost. The HSE replied that it had “given consideration” to making all its advice and guidance free, but that “the loss of income would have to be accompanied by a corresponding reduction in expenditure, which in turn would require the HSE to reduce health and safety activity. In these circumstances, given the HSE’s full programme of work, it is not feasible to make all of its guidance, particularly more specialist publications, freely available to business in the near future.” Unfortunately, the committee recommends only that all guidance pertaining to employers’ general duties under the HSW Act be “freely available without charge”, and that the HSE explain its charging policy.
AN UNHEALTHY SITUATION
The committee notes that the HSE is not on course to meet either of its PSA targets on reducing the incidence of, and days lost, from work-related ill health. (The PSA targets are, in effect, the 10-year Revitalising targets over a shorter term and on a pro-rata basis.) Damningly for the government and the now-defunct HSC, which set the targets in 1999, the committee points out that “it is not clear whether significant progress towards the targets was even within the HSE’s power to achieve” in the first place – a view that has been expounded in these pages since the targets were set. HSE chief executive Geoffrey Podger admitted to the committee that “we do not delude ourselves that we actually fully understand what is going on.”
In 2007, the PSA targets were replaced by a “departmental strategic objective” to improve health and safety outcomes, supported by key indicators. Lord McKenzie, the parliamentary under-secretary of state responsible for health and safety, admitted to the committee that there were problems for the HSE in meeting the ill-health target and that this had caused it to “refresh where the direction and where the focus of the HSE is”. Podger, however, insists that working days lost is “a very proper target for government to have … and for us to contribute to … The truth is that we are limited as to the number of levers that we, as the HSE, can pull in this area.”
The committee disagrees, however, concluding that working days lost is not “a realistic target for the HSE as many of the factors affecting its achievement are outside its control”. Nevertheless, it requests that the HSE continue to collect data on the numbers of working days lost.
The committee also accepts the criticisms levelled by some witnesses at the quality of occupational health (OH) data that the HSE uses, including the voluntary reporting schemes for physicians, self-reported illness in the Labour Force Survey, and the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR). It is, says the committee, “unacceptable that the HSE acknowledges that it makes its policy decisions on flawed and incomplete data. RIDDOR is not fulfilling its role and the HSE is failing in its duties to enforce obligations under the Regulations. We call on the HSE to urgently address the shortcomings in its data collection.”
The committee also appears to accept a point made by Simon Pickvance, the senior occupational health adviser at the Sheffield Occupational Health Advisory Service. Pickvance argues that the HSE has no clear exposition of the arrangements it expects to see for preventing work-related ill health: “Guidance for LA inspectors,” he says, “is probably the closest the HSE has come, but still fails to show how the interrelations between risk assessment, health surveillance and hazard-control measures are to be managed, and how this system should be monitored and controlled.” The committee concludes that there is potential for the HSE to build on its stress-management standards to “demonstrate what a good, healthy workplace should be, including what constitutes a good OH structure within an organisation”. It also calls on the HSE to ensure that it embeds OH in its inspectors’ training programmes and takes enforcement action against those who breach their duties relating to health.
A lack of assistance
The committee draws attention to the plight of the Employment Medical Advisory Service (EMAS), which is part of the HSE’s field operations directorate and is charged with providing advice on, and investigating, health issues. Although staffing levels reached 120 in the early 1990s (split equally between doctors and nurses), they have now fallen to seven full-time doctors and 25 nurses. The HSE plans to increase its size, but only by two or three posts.
The committee notes that the recently wound-up Workplace Health Connect, which provided advice to small firms on health and safety issues has attracted mixed reactions as to how successful it was. There is, however, little dispute over the need for some kind of OH service, and the committee endorses the recent recommendation of Carol Black for a business-led OH consultancy service. In time, it envisages the role of EMAS being supplanted by this service. But the committee cautions that it is “unconvinced that take-up would be sufficient” if business were expected to pay towards the service. Further, it “would be concerned if advice services were taxpayer-funded in Scotland and Wales [through Workboost Wales and Safe and Healthy Working] but not in England”.
THE PERENNIAL QUESTION OF RESOURCES
The committee emphasises that the question of whether the HSE’s resources are adequate for it to carry out its work are “fundamental to every aspect of the inquiry”. It notes that the settlement for the three years from April 2005 was “slightly better than flat in cash terms” than the previous settlement “because the HSE had previously, intentionally, built up a reserve and rolled forward the accumulated cash to boost activity”. The following three-year settlement, from 2007, set the HSE’s total budget at £712.5 million (including one-off funding of £23 million) – a “nominal” increase of 3.6% on the previous three-year total of £688 million. The Department for Work and Pensions (DWP), in contrast, faces a 5% year-on-year cut in real terms. The committee concludes, however, that it is unable to “obtain a clear picture of the true nature” of the three-year settlement because there is no indication of projections of income (from services such as charging) or a profile of resources between 2008/09 and 2010/11. It is “disappointed” that the HSE was still unable to provide this information six months after the announcement of the settlement and within days of the first of the three years starting. It therefore asks the DWP to rectify these shortcomings.
The committee also notes an HSE underspend of £12 million in 2007/08. The HSE attributes this “largely [to] the need to carry forward funding into the next period”. The MPs call this explanation “unacceptable”, noting “with dismay” that neither the HSE nor the minister mentioned this in two meetings with the committee. The committee has therefore asked the DWP “to clarify the reasons for this obfuscation”.
An expanding remit
The budget “increase” also needs to be read against the “expanding remit” of the HSE, including its role as the competent authority for the new chemicals regime (REACH), increased work in major hazards and construction, and “new” areas such as road safety and hospital infections. The HSC’s chair, Judith Hackitt, admitted to the committee that demands such as investigating the foot-and-mouth outbreak make it “more difficult” to provide elsewhere the expertise for which the HSE is recognised.
Overall, the committee concludes, it is disappointed that “many of the criticisms” raised about funding during its previous inquiry were “reiterated” this time around. “There is widespread concern that the HSE is inadequately funded and that this undermines its ability to regulate effectively within its core remit.” It is not clear, it continues, that any additional inspections can be funded from the HSE’s existing budget. Finally, the HSE is “spreading itself too thinly”, and the DWP must evaluate whether the HSE has the capacity to assume the extra responsibilities it has been given.
1. The role of the HSC and the HSE in regulating workplace health and safety (external website), House of Commons Work and Pensions Committee, third report of session 2007–08, volume I (report) and II (oral and written evidence), HC 246 and HC 246–II.
Howard Fidderman is a freelance journalist and editor of Health and Safety Bulletin.
