HSE and Environment Agency roundup - April 2019

We have taken a look at some of the Health and Safety Executive (HSE) and Environment Agency hot topics emerging over recent months and interesting recent developments. Here is a short summary of what we found:

No deal Brexit

As outlined in our December 2018 HSE roundup, the HSE continues to contribute to cross-government work which is being coordinated by the Department for Exiting the European Union.

The HSE has produced ‘no deal guidance’ which can be located on its website. As a contingency, the UK Government has made changes to health, safety and environmental legislation so that, for example, regulation of chemicals continues without issue if the UK leaves without a deal. Specific guidance on the following areas can be located on the HSE website:

  • Authorisation of biocidal substances and products
  • Classification, labelling and packaging of substances and chemicals
  • Export and import of hazardous chemicals from and into Europe
  • Pesticides or plant protection products
  • Registration, evaluation, authorisation and restriction of chemicals (REACH)
  • Explosives
  • Equipment and machinery.

Guidance has also been produced by the Department for the Environment, Food and Rural Affairs for manufacturers and suppliers of fertilisers to set out the rules that will apply if the UK proceeds to ‘no deal’.

In the past few weeks, more information has also been forthcoming regarding the government’s plans for environmental governance post-Brexit.

Among other things it has been confirmed that:

  • An interim green watchdog has been set up to investigate and record environmental breaches by the government and other public bodies, until such time as the permanent watchdog, the Office for Environmental Protection (OEP), is established, possibly as late as December 2020 or 2021.
  • The commissioner of the interim body is set to be Professor Richard Macrory, one of the country’s most highly regarded environmental and regulatory law academics.
  • While the permanent OEP will have the power to take enforcement action, this will be restricted to issuing information notices and decision notices, which need not be followed by the public body. It will not have the power to issue fines and it will have to fall back on judicial review proceedings as a final resort.
  • In the meantime, while the interim watchdog will be funded by DEFRA and will be part of the DEFRA family, the Environment Secretary Michael Gove has asserted its independent credentials.

Related items:

Bouncy castles and inflatables advice

Whether your business is involved with the running and operation of fun fairs, or even if your organisation only organises fun days for charity every now and then, if your business buys or hires bouncy castles or other inflatables then you should be aware of the HSE’s recent advice on their use.

The risk of injury with the use of bouncy castles and other play inflatables (whether hired or purchased), is well known. There are several examples where bouncy castles have blown away or collapsed in adverse weather conditions with serious consequences not only for the injured persons, but also for the operators and organisers of the event.

The Crown Prosecution Service (CPS) and the HSE have brought several prosecutions for safety related failings and allegations of manslaughter by gross negligence. Most notably, in June 2018, two fairground workers were convicted of manslaughter by gross negligence after a bouncy castle blew away, fatally injuring a young girl who was inside.

The jury convicted the couple, who were husband and wife, and they were sentenced to three years each in prison. In that case, the court called upon the HSE to take steps to make it compulsory for fairground operators to have proper wind speed measuring equipment.

At the end of 2018, the HSE provided updated guidance on bouncy castle use which includes: ‘before you buy or hire’, ‘setting up safely’ and ‘test and inspections’. With regard to wind speed measuring, the new guidance sets out that “when the inflatable is being operated outside, use an anemometer to measure the wind speed at regular intervals. If one of these is not available, the inflatable should not be operated outside”. It appears that it is open to interpretation as to what constitutes “regular intervals” but at least as often as the manufacturer’s instructions require will likely be the minimum expectation.

Whilst this updated guidance is only that, guidance, and not law as such, no doubt the HSE and the CPS will point to this in future cases where there has been a serious incident, in support of asserting non-compliance with the law.

Farm inspection regime

As outlined in our article in August 2018, Looking forward – HSE business plan 2018/2019, the HSE planned to undertake approximately 20,000 targeted inspections of pre-determined sectors including: metal fabrication, agriculture, waste and recycling and food manufacturing.

True to their word, at the end of last month the HSE concluded a two-month long targeted inspection programme of agricultural sites across the UK. We explore this further in our article on health and safety in agriculture in the wake of the inspection programme.

Related item: Health and safety in agriculture and the HSE’s new farm inspection programme

Environment Agency promises prosecutions against organised crime gangs

The Chief Executive of the Environment Agency (EA), Sir James Bevan, recently firmly defended the EA after a government commissioned review last year concluded that it had “neither the necessary authority, powers nor business model to counter the criminal scourge” presented by organised crime gangs making wide use of the UK’s waste industry to commit fraud and illegal fly tipping.

On the contrary, Sir James, has now promised a number of prosecutions of senior gang members, with the first trials to commence in the next few months.

Significant HSE fees increase

The HSE operates a Fee for Intervention (FFI) cost recovery scheme, which came into effect on 1 October 2012. Under The Health and Safety (Fees) Regulations 2012 (the Regulations) organisations are liable for recovery of HSE’s related costs when an inspector believes that there has been a “material breach” of health and safety law. This includes the cost of inspection, investigation and taking enforcement action.

The Regulations put a duty on the HSE to recover its costs for carrying out its regulatory functions from those it believes have committed a “material breach”. The trigger for the issue of FFI invoices is the service of a Notification of Contravention.

The hourly rate that the HSE charge started off at £124 per hour in 2012, increasing shortly after to £129 per hour. However, there has recently been a significant increase in the HSE hourly rate which is likely to have an impact on businesses that are subject to HSE investigations. As of 6 April 2019, the hourly rate will increase from £129 to £154 per hour. That’s almost a 20% increase in the fees that can be levied by the HSE prior to there being any independent determination as to whether a breach has actually been committed or not.

FFI invoices for complex or lengthy investigations can run into the thousands of pounds, and with this increase in hourly rate they are on course to get even higher. This change increases the onus on businesses to seek legal advice as soon as the Notification of Contravention is issued so that, where appropriate, the allegation of material breach can be rebutted, and, if applicable, an application can be made for the invoices to be stayed until the outcome of any HSE investigation or prosecution. Any invoices should be checked to ensure that the HSE are only claiming back what they are legitimately able to recover.

Read other items in Health, Safety and Environment Brief - April 2019