A group of experts discuss local authority health and safety regulation and the implications of recent government reform.
There has been a decrease in the number of inspections, conducted by the local authorities during the past two years. The data does suggest a shift from a proactive to a reactive enforcement system. What the impact of this will be?
Jenny Morris: I think you’re absolutely right. The data on inspections does show a decline over a number of years. However, I think part of the question is, are inspections the right way to do things or the only way to do things? I think the answer is no; it needs to be a mix; inspections are only one way. I absolutely support the move towards a risk-based approach but then the question is how to calculate risks, whose risks, what kind of risks, their proportionality and what are the issues behind that. If you look at data on inspections and on accident investigations, they’ve gone down but they’re not the whole picture. I’m not clear on what the actual picture is on the rest of it and that’s really important to know.
Andy Lucas: Those are interesting points that you raised, Jenny. As a practitioner, and also as a local authority manager whose job and role is to set out a work plan for the next year, I’ll be perfectly honest with you, I’ve never been a big fan of an inspection programme anyway, so the fact that there’s a shift away from proactive inspections to a more reactive approach I think is welcomed.
We have to go back to where we really are in health and safety regulation. There is this thing called ‘self-regulation’ which really places the responsibility, initially, on the business. So, in an ideal world, we shouldn’t have to carry out proactive inspections. But I think that because of our culture and the way that we’ve worked over the years, unfortunately, we’ve kind of used the inspection programme almost like a comfort blanket: that’s what we’re here to do; we’re here to do inspections. But I totally agree that inspections are not really a particularly sophisticated way of targeting our resources. So, I’m very much in favour of moving away from inspections and towards alternative interventions as a means to target our limited resources in a far better way, so that we can perhaps be more effective. Yes, inspections have decreased and I don’t really see that being a big problem.
Elaine Harbour: I agree with everything everybody has said. I actually did have a look at the figures; it’s quite interesting. Proactive inspections are down but reactive investigations, complaint investigations are actually only showing a slight decrease, so I think what we’re probably getting to a case of changing the proportion of proactive to reactive. But what’s really most interesting actually is the move to the other interventions. We’re certainly seeing much more advisory type activities which I think recognises Andy’s point and one that we [HSE] make quite a lot of in terms of who is responsible for managing the risks.
Under the law, businesses are responsible and the role of the regulator is to hold them to account where necessary, but to help support and advise as well. I think now what we’re seeing more is that probably about 40% of visits are in a sort of advisory capacity or using other interventions. That’s a good thing. It’s quite helpful to see inspections as part of the bigger picture because it’s not the only tool and there’s a danger sometimes that you only look at inspections where actually there’s a whole range of other work that influences how a business manages its risks.
Andy Lucas: The other thing is, and I hope everyone would agree, there seems to be this expectation about the way that we [LAs] perform as regulators. There’s a very high priority placed on how many inspections we actually carry out. We need to tackle that myth; we’re not just here to carry out inspections, we have a whole range of tools to use to assist businesses and, okay, when things go wrong, to regulate. This whole idea and discussion around the proactive inspection programme, although it’s important, it doesn’t really reflect modern health and safety regulation. That’s a really important point to make.
Jenny Morris: I absolutely agree, but all this other work isn’t really recognised. One of the problems that health and safety suffers from is the myth around what it is and what it isn’t. If we could, between us all, get out a better picture of what is being done now and try and shift some of those preconceptions, it would be very useful for everybody, I believe.
Andy Lucas: Hopefully we’re going to discuss how LAs contribute to the overall UK health and safety regulation picture, we seem to be in a bit of a blind spot and there are huge, huge benefits in having LA health and safety regulators.
What are the consequence of this shift and which sectors would be more affected by it?
Jenny Morris: It’s very difficult for me to do this, Andy may give you a better idea, but I will just give you some thoughts on it. What we’re actually seeing in terms of inspection is the focus on highest risk. If you pick up other things through alternative interventions, it’s fine. There are issues around the recognition of this, not least at LA level and whether the resource is there. It’s difficult because it crosses over into a number of other areas but, although you’ve got a national picture of what’s going on, we need to understand what is happening at the local level.
It’s really important to have some kind of intervention across the whole picture. Yes, it is all right to focus on the highest risk but if you leave the medium and low risk out, then things are likely to go wrong. The area where I get less assurance is whether or not there is much focus on occupational health. It’s more the hard health and safety that gets talked about in most cases and that’s what looks to me the most obvious bit in the Local Authority [Enforcement] Code.
Andy Lucas: In the past, I suppose, most of our regulatory work has been around safety rather than health issues, a situation which is thankfully changing. But if we are moving towards a more reactive enforcement system then obviously, we react to whatever’s coming in: if occupational health issues come in, obviously we will deal with them.
It’s quite difficult to predict which sectors will be more affected by this. I’m not really comfortable with giving an opinion on that because I don’t feel I’ve got the data, maybe Elaine will have an overview of the landscape. But what I would say in general terms is, if we are moving away from a proactive to a reactive enforcement system, that will inevitably generate more resource. It will provide the regulators and obviously LAs with more freedom to direct resources to where we think they should go and that will obviously include following the [enforcement] code. Also, let’s not forget that Annex A is something to consider. In terms of proactive inspections we are entitled to consider intelligence-led visits, which sometimes is overlooked. A lot of people think we’re not allowed to look at this particular premises or this particular sector because it’s not included in Annex A. Well, we can, provided that it is intelligence led. So, I would say one of the consequences and one of the benefits of a move away from a fairly static proactive inspection programme would be greater flexibility, and better targeting of our resources to where we actually think we can make the most improvements.
Elaine Harbour: We [HSE] did some sampling activity just to have a look at where inspections were being targeted and actually what we’re seeing now is some of the reductions are in the lower risk inspections. It’s basically showing a better targeting of resources and given that we have less resource – and, we’ll have less in the future – it is really important to be targeting what we know is higher risk.
If I may be allowed a slight correction, the annex isn’t an annex to the code; it was an annex to the consultative document. The list that we published is completely separate to the code to allow periodical reviews and updates as necessary. It is completely separate but I accept it was an annex to the consultation document.
The code itself can help LAs as it gives the national intelligence on where we think the key risks are – which particular activities, in which sectors. What we try to say in the code, in terms of highlighting and targeting resources to the best effect, is that we’ll give the national intelligence via a list but LAs have local intelligence too. Quite often issues are local, they’re not necessarily national, so please deal with them. We have asked for a feedback loop, that LAs alert us of the things that they’re dealing with locally so we can start adding that into a bigger picture. This is where actually national and local can work together to best effect.
Regarding occupational health; it’s something we are looking at in our ongoing reviews of priorities and focus on activities, we will be picking up some more of the occupational health issues.
Do the code and the annex give HSE sufficient oversight of LA enforcement activity or have a detrimental effect?
Elaine Harbour: My team was responsible for developing the code. We were asked to develop it to ensure inspection and enforcement activity was consistent and targeted at the most risky workplaces. The code was written by regulators for regulators, it’s a principles-based code and there were a number of considerations that we wanted to build into it.
The first consideration was the focus on risk management and clarifying who’s responsible for what, making best use of resources, recognising the climate that we’re living in. We wanted to keep a focus on competence and professionalism. We needed to meet the local expectations and we’ve touched on that. We also needed to meet business expectations and we needed to meet central government expectations. There were a lot of considerations. The list that I mentioned was designed to inform LAs of the targets and ask them to run those inspections alongside local intelligence. It’s similar in approach to the national priorities we published previously.
In terms of the code what we’re trying to do is to set out a risk-based approach and outline the sort of risk-based regulatory approach we suggest LAs should follow. A lot is not necessarily new; it is linked to the Regulators Code, and no inspection without a reason, but is about actually helping LAs target their inspections.
We also covered the need for competent and trained regulators and then, in the final bit, set out the means that will allow LAs to assure themselves that they are meeting the code.
The monitoring arrangements are for LAs to benchmark their activity and to use peer review to be able to challenge or offer a support to those who find difficult to meet the code; but the code itself doesn’t give the oversight. It’s more about setting the framework in which both HSE and local authorities operate.
Jenny Morris: I wouldn’t disagree with what Elaine’s just said; I think it’s about a change in the way of working and the best use of resources. It’s trying to update the system around protections, a risk-based approach. But it’s not just about the annex; it allows the use of local intelligence and I don’t think that’s always recognised or people understand what it allows them to do.
I certainly know there’s been a lot of talk about different case studies to illustrate it and some of the backup material suggests that, and I am going to make the point again, that LAs should use the full range of interventions. My concerns about this are that some LAs that are doing it are saying it’s great, this gives us the flexibility, we can work within our local knowledge to best effect, but some of them aren’t and they’re seeing it as an excuse to do less; and that’s not good.
What always worries me around this are the SMEs and the interactions with SMEs, because if you look at the business makeup of this country, and we are worried about jobs and economic success, there are a huge number of SMEs that are seen as drivers of economic recovery. This gives the opportunity to target them. Will it happen? I don’t know. That’s where HSE’s oversight will come into it, they will be able to look at what’s going on and hopefully identify where things are not being done or whether could things be done better. So we can make it overall a smarter and more efficient system.
Andy Lucas: I almost feel obliged to perhaps not agree with everybody; I am going to start off by saying, yes; that sounds pretty much as I would see it. I don’t know whether this is a criticism or congratulations to Elaine’s team at HSE, but I don’t actually consider the code as anything groundbreaking, anything new, anything that “oh, blimey, we’ve not done that before”. I wouldn’t like to give the impression that local authorities haven’t targeted their regulatory approaches, that we haven’t been proportionate or transparent or accountable, that we haven’t carried out peer review because we have.
LAs have got a fairly good track record of carrying out peer review, so I don’t actually think the code offers anything that is unfamiliar to us. In fact I would actually say, and this might upset a few people, that I wish it had gone a little bit further, because if we talk in terms of oversight and obviously giving direction, we’ve always received direction from HSE going back to the Priority Programme. We’ve always been led by, if you like, HSE’s oversight of the high-risk activities or sectors that we should consider and the priority topics.
It’s interesting that the issue of peer review has been raised, that is probably the only point I really wanted to make here in response to this question. I have discussed it with other LAs, whether they’re regional colleagues or national colleagues, and I think there is a feeling within LAs that by and large we do our best to provide the kind of service that ties in and meets the expectations of our employers and the public, but there are some LAs that don’t and HSE used to carry out audits of the poorer performing LAs.
There is a view that that could be strengthened and that could have been strengthened in this particular document too, whichever way you want to look at it – either help the poorer performers or give them a little bit of a push along to bring them up to the same kind of standard as the other LAs. So I really would have liked to see something along the lines of audits, I would also like to see some more consistent advice from HSE with regards to peer review. We’re quite happy to carry out peer review within the West Midlands LAs, but we also have different ideas of what that should represent. We actually see peer review as a very, very positive move forward to help some of the perhaps poorer resourced LAs to understand what they need to do to meet a minimum standard of regulation.
Are local authorities (LAs) still the right bodies to carry out enforcement or should it, as suggested by Löfstedt and more recently in Martin Temple’s triennial review, move to HSE’s jurisdiction, in order to get more balanced standards across the country? Has the primary authority scheme helped?
Elaine Harbour: There is a perceived criticism of LAs from stakeholders and it has occurred in a number of reports. We think LAs need to be aware and react to this; what we’re saying is we’ve got the [LA enforcement] code and it provides a means for consistency. If this is what they were already doing, it’s not a problem, and for others who were not using the code, it at least helps get them into a good place, and we can support their implementation. The message is all around stepping up, if you like. LAs provide invaluable support to business; it’s multifunctional and it’s all done on economies of scale. The code is there to address the consistency and targeting issues. What we want is, instead of it being seen as HSE’s responsibility to get LAs to work consistently, it is for LAs to work with the tools we have provided. We also think that a challenge from LA to LA is just as powerful, or even more powerful, in getting people to almost align activities.
The primary authority is designed to provide a framework for strategic engagement across LAs. The code asks primary authority inspection plans to follow the code and it’s an important tool for encouraging that consistent approach to a particular business. I see it in terms of different scales and not a sort of either/or. They can actually work in combination.
Jenny Morris: I think LAs are the right body to do it; especially because they are local and they can establish relationships with businesses and, if we’re moving to even more intelligence-led system, they can get that intelligence. If you are remote from the businesses, that is not going to work so well.
I’m a supporter of primary authority schemes. However, I do see them as being predominantly taken up by large businesses. There are issues with SMEs as I’ve touched upon before. SMEs are important, and in terms of damage they could do, if you want to use that term, it might be relatively limited because they don’t employ many people, but still they do affect individuals and, cumulatively, they can have a significant impact. While I absolutely accept it’s their responsibility to manage their own health and safety there is a balance here and that’s where the LAs come in.
There is a move now to allow trade associations to set up primary authorities with an LA. That’s great in terms of getting assured guidance, but I cannot see any way this really could extend into inspection plans. Elaine has talked about inspection plans, they are a good thing because they focus where the attention is needed, but I can’t see how that would work for the SME, unless there is some control over that activity as you would have with a head office to all its branches. I’ve never seen a trade association that has that level of control or monitoring over its membership. So, the short answer to the primary authority question is they add to the matrix. Actually, I think we’re getting to a more collaborative and risk-based working, they add something but they’re not the only answer; LAs have a key role to play.
Andy Lucas: Being a LA that’s joined the primary authority party quite late on – I only decided that we would pursue the primary authority probably in April last year – we’ve been very lucky to sign off a few big companies and we’re still in the process of attracting more. The issue is whether primary authorities can make that difference: I think they can. I take on board everything that Jenny said with regards to small businesses, but I think we would see a co-ordinated primary authority partnership as perhaps going some way to help in that. So, for example, we’re talking to a large pub company, they have about 4,500 tenanted pubs, which in themselves would be classed as legal entities in their own right and they would be small/medium sized enterprises. So, in that respect, primary authority can meet that demand with small businesses.
If primary authority schemes are going to be successful, it needs to be more than just a numbers game. The problem rests with the LAs signing up three, four, five, six, seven companies and saying “we’ve got all these primary authorities, but not actually do anything with them”. That is my big, big concern.
I think the Better Regulation Delivery Office (BRDO) has a responsibility to take a far closer look at how these partnerships are being managed. I would like to see an expectation that every single health and safety primary authority partnership produces an inspection plan, because at the moment there’s still no requirement to do this. I could sign up with a big company and I could say, “oh great, we’ve got a primary authority partnership with ‘X’ Limited” and 12 months down the line we still haven’t done anything. Well, that’s not going to achieve anything, that’s not helping anybody. So I would like to see some improvements in that respect.
Now the question about LAs still being the right bodies to carry out enforcement, obviously I’m going to say yes, of course they are, but we really do need to understand and appreciate that HSE and LAs are not the same, they are different. HSE can provide certain things that an LA can’t provide but equally an LA can provide services that HSE can’t. We are local, that’s why we’re called ‘local authorities’. We can change in directions far quicker than HSE. Obviously, if we investigate a number of incidents at the start of the year, then by the back end of the year we can target certain other areas that perhaps at the beginning of the year
we weren’t thinking about.
That’s just one of the benefits of LAs and sometimes it’s very easy to lump them all into the same group and say “all LAs are this and all LAs are that”. They’re not, they are different themselves and I think we do need to do more to highlight the poorer performing LAs and help them, or to exert some pressure to bring them up to a standard, because LAs do work under many, many different budgetary pressures and they have their own priorities. All these need to be taken into consideration. So, there are certain benefits in maintaining LAs, for example our approach to relationships with local businesses. In our case, we run a business forum and we get multi-site businesses as well as small and medium size enterprises coming along.
Another strength is that we do take enforcement action. Some of the current figures for prosecutions suggest that LA prosecutions are on the rise, and that’s good, that’s something that we should be pleased about; we’re not perfect, but I do think there is a role for LA regulation of health and safety and, if we did not exist, then there would be a whole swathe of premises/sectors that simply would not be subject to any regulatory support or enforcement; that is the down side that we do need to consider.
With increasingly tight budgets, some LAs are looking to outsource their regulatory functions. Will there be any consequences for health and safety as a result?
Andy Lucas: I would like to be the first one for this question because it is quite interesting. I know this has been subject to some HSE guidance and advice, which I think we’re all in total agreement with. It would appear that LAs can outsource certain aspects, and let’s make the point we’ve been outsourcing our inspections for years, some LAs might outsource their reactive work, complaint work, etc. One thing that we haven’t outsourced – and I understand the legal advice is that we can’t do that anyway – is the regulatory side of things; so we wouldn’t be outsourcing or getting contractors to serve improvement notices or to serve prohibition notices. As long as it continues, then I don’t think there’s particularly a problem. However, if that changes and enforcement is privatised I think would a terrible step, to be perfectly honest.
Elaine Harbour: The way the law is framed, there’s a statutory duty under section 18 [of the Health and Safety at Work Act] for an LA to make adequate arrangements for enforcement and that duty cannot be delegated, so that LA has to make the arrangements. However, the LA can appoint inspectors under section 19; they can appoint their own employees or they can appoint a contractor. That contractor, basically subject to the contractual arrangements, will determine what to do, but LAs are able to give enforcement powers to a contractor.
The LA appoints an inspector under section 19 of the act and in doing so will specify the powers (under section 20) that they have. This is the same whether the LA appoints an employee or a contractor as an inspector, so this means in effect that a contractor is able to take enforcement and prosecutions.
The section 18 has no provision to delegate, which means the LA always has to retain some form of oversight of the activity and that’s to ensure it’s done correctly. So, an LA can appoint who they want to be an inspector but they cannot delegate the oversight of that function. Much, obviously, will depend on the contractual arrangements and the working arrangements. I would only add that we’re mindful of the fact that some LAs are looking at contracting out services, so the code is designed to equally apply to contractors out-service as an in-house one.
Jenny Morris: Only to add something to what Elaine’s touched on: the impact will depend on what the contract says. And then of course it comes back to the question of does that meet the LA’s requirement to make ‘adequate arrangements’ – what are the ‘adequate arrangements’? If they decide to do just proactive inspections in limited areas, is that good enough? I think that’s an interesting question to consider. I haven’t seen any of these contracts, I don’t know what they say, but my experience of contracts is they’re hugely powerful and actually, when you contract out to a private company, the bit never to be forgotten is that company is not doing it just because it thinks it’s a nice thing to do, the company will be there to make money. Now, the argument often has been that it can be more efficient contracting it out. I can’t comment about that, but ultimately I think it’s really going to depend on what the contract requires to be done in terms of health and safety interventions.
Elaine Harbour: I’m sure others may have something to say, but I think LAs are actually quite innovative. Undoubtedly, resources are getting tighter and we know that LAs are increasingly looking at novel ways of delivering their services and sharing resources. It’s not just about contracting out; it’s about maintaining capacity and capability. We know some are doing sort of shared services; there’s flexible use of LA resources via flexible warrants. There are areas where they are concentrating expertise in certain individuals and sharing it around larger groups of authorities. So I think there are a number of different ways that LAs can work that will enable them to still meet their statutory responsibilities.
Is there a risk that with increasingly tight resources, some LA environmental health departments won’t be able to meet their statutory responsibilities “to make adequate arrangements for enforcement”?
Andy Lucas: For me, the interesting question within this question is what does ‘make adequate arrangements for enforcement’ actually mean? We’re very familiar with the phrase, it’s been with us since 1974 but do we ever actually stop and ask the question what does this actually mean?
I suppose that in the previous guidance that we used to work to, good old section 18 guidance and section 18 standard, there was a certain expectation that those documents gave some insight into what adequate arrangement for enforcement means. But to be honest with you, you can ask 10 regulators what does it mean and I’m sure you’d get 10 different answers. It probably means exactly what you can get away with, so if you’re a large LA like Birmingham I like to think that our interpretation of adequate arrangements is perhaps hopefully some way off the average in a better direction. But there will be some small LAs that would probably be equally able to justify the smaller resources that they place into the health and safety regulation function and also meet that criteria or that condition of being ‘adequate’.
It is very difficult to actually discuss without any sort of benchmarks. I don’t know whether there’s any studies being carried out to look at possibly determining a guide or benchmark, like full time equivalents per 1,000 businesses, something like that. It is difficult and it’s a phrase that although we’re used to, we probably don’t actually stop and have a conversation about what that actually means to LAs.
We also struggle, obviously, with competing priorities and when you look at the services that we provide I can’t actually think of any performance indicators that are applied to health and safety regulations. With food inspections and food safety there is an expectation that you would do so many inspections in so many categories, but in health and safety, certainly, it’s not that straightforward, so it is difficult to actually interpret that phrase. It can go in your favour in saying that our minimal resources actually meet that and so it makes it harder to make improvements, when we don’t believe they’re meeting that standard. So it’s an interesting conversation I think.
Jenny Morris: I absolutely agree that LAs are innovative; we have seen many shared services. I was alluding to it when we were talking about contracting out. On the other side, I don’t think there is a real benchmark for what ‘adequate arrangements’ mean. What you have to recognise is that LAs have a huge and wide range of responsibilities and Andy was alluding to this when he was talking about measures against what they do. If you look at what the Local Government Association says in terms of regulatory services – and I hate that term but it’s what they use – it’s pretty much bottom of the pile when it comes to allocation of resources. Besides, LAs have been undergoing very severe cuts for some period of time and we haven’t finished yet.
In terms of innovation and shared services there is at least one LA that I would have held up as the benchmark for doing everything they should and bringing together a whole load of services, developing expertise, sharing it and seeking to market it out. So they would have done everything I would have thought you could have asked for. However, in the newest round of cuts their funding has been slashed almost to the bone, so I wonder if they can continue and it’s not a good point to finish on. However, I think there needs to be full recognition that the value of health and safety; it’s probably not appreciated and it comes very low in some LAs. When we look across all LAs there is a vast variation in the way that health and safety and food safety are resourced. Some value these services much more than others; some don’t seem to value them.
Elaine Harbour: I think it does bring us back to almost the starting point. It’s one of the things I’ve mentioned over a number of years: there is a danger that we value a service purely on the number of inspections. What we’re trying to do with the code is just make much clearer to everybody that we’re talking about the management of risks and the risks in a particular authority as being the reason why you need a service and health and safety inspectors. It’s not about doing a number of inspections, it’s actually about a safe community by making sure those risks are acceptably managed.
Andy Lucas: It’s been quite an interesting discussion. I think we all seem to be saying the same thing which is very positive. I don’t think there is any real criticism of any aspects of the national code. I think from an LA perspective things are difficult, but you do tend to find that LAs do actually have a peculiar view of the work that they do in health and safety and it means a lot to them. I would certainly welcome the themes in the code: reduction in certain proactive inspections and giving us the flexibility to put the resources where we think they are needed. We have some flexibility because obviously you’re dealing with 400 plus LAs and they’re all shapes and sizes, but I think we are moving in the right direction and I suppose time will tell whether the code continues to make any improvements for us.
Jenny Morris: I think Andy is absolutely right that LA health and safety teams are very skilled people and they have to deal with a load of things. I know HSE appreciates this fully, but as resources go down, it will be essential to maintain a competent and suitably skilled workforce. There is a risk that some employers might be tempted to reduce costs by employing staff without the essential knowledge and skills. It is not just about staff numbers it is actually about quality and competence.
Elaine Harbour: I agree; the code is one sort of key consideration that I mentioned earlier. The reality is that we do more than ever need to be working together because of the reputational risks on both sides. And equally it’s about professionalism; there is a job to be done, we have limited resources, let’s target where we know we can make a difference and show that we can work together and share information and be tackling key risks within the system as a whole.
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