A new National Local Authority Enforcement Code governing health and safety enforcers is due to be launched soon. The Code replaces the existing section 18 standard by outlining a risk based approach that health and safety enforcing authorities will need to adopt and provides the HSE with a stronger role in directing enforement activity.

In order to "reduce fears and costs for businesses" (Vince Cable), it is intended that proactive health and safety activities will be stopped, almost completely, through the Code. It has been suggested that this will enable time to be freed up in the private sector which will, in turn, help boost jobs and the economy.

Unannounced proactive inspections will be limited to a specific list of high risk activities published by the HSE. Whilst local authorities will still be able to educate and carry out other planned interventions these will need to be targetted to higher risk activities, in relation to matters of evident concern or those with a poor record. As well as some proactive work authorities will also continue reacting to complaints, accidents and incidents.

After Lofstedt established that health and safety legislation is fit for purpose the only other way it seems that administators were able to 'deregulate' would be to ensure that the legislation is not enforced. Most legislation provides an incentive to compliance through the threat of enforcement (call it 'fear' if you like). However, whilst the risk of an accident may be slim, the likelyhood of an inspection will now be almost nonexistent. Furthermore, there is a danger that exisiting premises records will quickly become out of date and any new premises will remain 'unregistered' (and therefore unchecked). It follows that, other than an educated guess as to the activity taking place, the only way of determining whether a workplace presents a high risk or not may be once the accident or ill health has been reported.

Stopping routine interventions is a brave move that, some say, will in time lead to a rise of accidents and ill health. However, an anarchic health and safety culture need not be an inevtiability. Despite the proposed changes there will still be an obligation on enforcing authorities to ensure that they implement effective enforcement plans. Those more innovative and informed of authorities, unburdened by the tie of routine inspections, may even view this as an opportunity to expand their range of 'intervention' activity.

Occupational health and safety enforcement and education activity will now be largely dependent upon enlightened managers who are motivated to research, identify and review local priorities. This won't come as much of a change to those local authorities already implementing 'needs based' or 'outcome related' strategies; for others, a more evidence based approach to service planning will need to be adopted in order to 'fill the void'. Like all core environmental health or regulatory functions The future of occupational health and safety services at local level lies very much in the hands of public service managers.

The changes are expected to be implemented from April 2013 but the consultation on the new Code is open until the 1st of March 2013 (see HSE website).

Food Auhtority PerformanceThe FSA have recently announced that they will be participating in a pilot scheme to audit and rate food authority performance in Wales. It is not intended that the audit process itself will change radically but is more likely that the results of the audit will be transformed into a score (the methodology for which will be drawn up in due course). There is not much time though as in April 2013 a report on the pilot will be evaluated and the approach considered for extension.

The idea behind the scheme is to provide further transparency and clarity of information to consumers. Opposers have questioned though, whether will this actually be useful for, and empower, consumers in any way. Reports in the press suggest that the scheme has been welcomed by two of the 20 food authorities who have volunteered to pilot the project. However, other food authorities and bodies such as the Welsh food advisory committee have not been supportive of the proposal. Whilst the review into official controls continues to take place and local authority funding being cut dramatically the timing of the pilot is causing concern. Other professionals have raised immediate concerns citing the potential for a loss of confidence in enforcement and potential legal challenges.

However, due to the powers invested in the FSA under the Food Standards Act, they are well within their rights to ensure that the framework agreement is being implemented effectively and need to demonstrate their own competence as the primary food authority to the European Commission. In addition, similar approaches are already undertaken by other bodies with statutory oversight such as OFSTED and the Care Quality Commission. In response, the FSA have tried to reassure food authorities though by saying that there is no desire to 'gold plate' and as long as LA’s meet the standard in the framework agreement there would be no reason why the LA would not get a top score.

The FSA have taken on additional staff to undertake the pilot in Wales but its not sure if they are able to audit all UK food authorities. Their current auditing rate, based on focused subject specific audits, represents a small proportion of local authorities. But, hypothetically speaking, if this scheme were able to be realised across the UK is it really something that should be feared? Furthermore, could this form part of the answer to the official controls review?

The FSA have indicated that, in England, there is the potential for any additional auditing to include inter-authority auditing as well as traditional FSA auditing. Those food authorities not already participating are advised to implement third party or regional inter-authority auditing partnerships; having such arangements in place will bring food professionals up to speed with the process and help demonstrate the ongoing committment to quality, consistency and transparency that the FSA are looking for.

Third party audits are currently available from Encentre. Contact us for more information.

Red Tape Monster"I don't think there's any one single way you can cut back the health and safety monster. You have got to look at the quantity of rules, and we are cutting them back. You have got to look at the way they are enforced, and we are making sure that is more reasonable" - David Cameron on the burden of health and safety regulation. Similar statements have also been made by Nick Clegg and many other politicians and there are even implications that resolving the "health and safety situation" will save the economy!

In Lord Young's 2010 report it was not so much health and safety enforcement but the compensation culture that was at fault. Soon after Lord Young, a more comprehensive review of health and safety regulation was comissioned from academic Professor Ragnar Lofstedt. This time the remit was narrowed to an examination of the scope for reducing the burden of legislation on business. His conclusion went further, stating that overall, there was no case for radically altering current health and safety legislation.

The Lofstedt report is a well researched document backed by some significant statistical evidence. It shows that work-related injuries and illness cause a great deal of expense to businesses and the economy. In the 2010/2011 financial year 4.4 million working days were lost due to workplace injuries and 22.1 million lost due to work-related ill health. Whilst it was said that the costs incurred by businesses in implementing health and safety regulation was burdensome (to the tune of £2 billion pounds per year) the overall cost of workplace accidents and ill health has been estimated to be up to a staggering £20 billion a year.

Lofstedt states that the benefits of health and safety regulation are significant but was able to point out some areas where the reglatory framework could be simplified (for example, in the explosives, mining and biocides industries). He noted that the scope for wholescale change to health and safety legislation is limited though. One of the reasons for this is due to the vast majority of legislation deriving from the EU (in the form of Directives). The most notable of these were what is referred to as the 'Six-Pack'. Since their inception statutory activity has continued to take place - to the extent that 41 of the 65 new regulations introduced between 1997 and 2009 originated in the EU. Little that could be done here then in the short-term. However, he did recommend that simplifications, or consolidations, of the Approved Codes of Practice (which support the intepretation of some European laws) are made. Those changes have recently been consulted on by the HSE.

When posing the question as to whether smaller businesses should be exempt from some health and safety legislation Lofstedt's answer was "no"; he points out that this sector is more prone to accidents than larger businesses. He did express concern, however, that lower risk businesses were subject to a greater proportion of inspections than higher risk businesses. This has already resulted in routine inspections being halted in many local authorties (despite the fact that typically such visits are completed in under an hour and occur once in every 10-15 years). Most local authorities will now only intervene where a complaint or accident has taken place.

Another one of Lofstedt's suggestions was that the HSE should direct the enforcement activities of local authorities. In doing so, he supposed that more of a distinction between health and safety and other regulatory duties would come about. (Although this does conflict with Lord Young's previous recommendation for combined inspections). In response, a new Enforcement Code will steer local authority intervention planning and put in place new reporting procedures so that activity can be monitored. This is currently being consulted upon by the HSE.

Lofstedt's report did not include an examination of how businesses and public organisations implement health and safety regulation; an area that is often associated as being the cause of many of the health and safety myths that end up in the newspapers. Neither was there an examination of how much support does (and could be) provided by inspectors in helping SMEs comply with their legislative requirements more efficiently. The results of which may present a different picture. Mind you, when you are in the business of politics having a monster to bring out and beat up every now and again can provide a useful distraction to whatever else is, or is not, happening.

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