EHJ October 2003 page 300

Does this sound familiar? “Local authorities failing in their health and safety enforcement duties are likely to be named and shamed by the Health and Safety Commission (HSC). There was a marked distinction between the best and worst performing local authorities, which is no longer acceptable. It will not be tolerated by the HSC, the Government or the local authorities”. It may sound like a quotation from recent weeks, but in fact was made by the HSC’s chairman, Bill Callaghan, to the Chartered Institute of Environmental Health (CIEH) conference in the year 2000.1

Is it any wonder that the worst performing local authorities are not exactly “quaking in their boots” at the most recent threats from the HSC, when it has not acted on its threat from three years ago? If the HSC is serious, then it had better get on with its “naming and shaming” or risk being thought of as the boy who cried wolf once too often.

The reluctance of the HSC to take effective action against poor performing local authorities is at first puzzling. It is worth exploring this by comparing the HSC with the Food Standards Agency (FSA) and its relations with local authorities and by looking more closely at the statistics relating to both HSE and local authority enforcement activity. The performance position of local government as a whole is by no means as bad as is often painted, although there is no excuse for those local authorities that do little or nothing in the field of health and safety enforcement.

The HSC has ample powers to step in where a local authority is not fulfilling its duties, but has never used them. Admittedly, it has a very limited auditing capability and the audits that have been done are low key and not public, which certainly does not help in raising the profile. This is in marked contrast to the FSA with its very public auditing process.

It occurs to me, that the HSC has always had its own inspectorate in the form of the HSE. Perhaps this has enabled it to never fully engage with local authorities effectively, but also leaves it open to criticism if compared against local authorities. In contrast, the FSA does not have its own general inspectorate. From the beginning, it has had to gain an understanding of, and work very closely with, local government. Had it not done so, it could not hope to achieve its objectives. It has not always been an easy relationship and there are still some tensions, but it is a largely healthy relationship in my estimation and one from which the HSC should learn.

To return to the issue of the resources being deployed by local authorities, it is important to provide some context and the recent report issued by the HSE statistics division does not provide a full picture.2 Local authorities operate an inspection programme based on the priority rating system in HELA circular 67/1 (Rev 2). An important part of that circular advises that premises that are rated “C”, that is low risk, should not normally form part of the inspection programme. However, when the national statistics are issued the figures published relate to all premises in the local authority enforced sector, including “C” rated premises.

This gives a slightly misleading picture, because around 50 to 60 per cent of all premises in the local authority enforced sector are “C” rated.3 Of course, premises move out of the “C” rating from time to time as changes in business or management, or indeed inspection priorities, occur. However, a clear majority of the businesses are low risk. This is not surprising given that local authorities are largely confined to enforcing in the service sector and many of these businesses are small office and retail businesses.

Much has been made recently of the expanding service sector and increased resources this expansion requires from local authorities. Given that much of the growth in the service sector is in those small office-based premises and in the rapidly expanding public sector, which the HSE enforces, it does not necessarily follow that increased local authority resources are required. It also needs to be pointed out that if inspection works, then the number of premises requiring inspection each year, excluding any growth in the total number of premises, should reduce.

When the inspection figures for local authorities were released recently, the coverage focused on reductions in the number of inspectors and the number of inspections carried out by local authorities.4 It is instructive to compare local authority figures with those for HSE inspectors. However, this is by no means straightforward, as the figures are not directly comparable. While inspectors do essentially the same job, the figures collected by the HSE for local authorities are different to those collected from the HSE itself! It is difficult to think of any justification for this.

HSE field operations division (FOD) had around 780 field and specialist inspectors in April 2002, plus a smaller number of senior managers, compared with 1,060 full-time equivalent (FTE) inspectors working in the local authority enforced sector (including managers). Those local authority inspectors carried out 266,000 visits in 2001/2, of which 157,000 were preventive inspections. This is compared with the 111,000 investigation and inspection contacts (of all types) carried out by the HSE FOD. Local authorities with around a third more inspectors than the HSE carry out over two and a half times more preventive inspections.2, 5

I have not heard any criticism of the HSE visit rate, or suggestions that the HSE FOD should lose its inspection role, yet such suggestions have been made recently in relation to local authority enforcement.4 The truth is that local authorities carry out far more inspections than the HSE. Perhaps local authorities should be shouting that fact from the rooftops!

The visit rate for local authorities was 23 visits per 100 premises in 2001/2, but given that over half the premises are “C” rated and do not form part of the normal inspection programme, one could even suggest that there are actually more inspectors deployed by local authorities on average than is strictly necessary. Those figures suggest that every premises that is in the inspection programme will be visited on average every two years, more often than would be indicated as necessary by the risk rating scheme.

How does this compare to the HSE? The HSE does not “calculate such a figure”, nor does it calculate the number of visits per FTE inspector.5 This does suggest however that local authorities may not have been entirely irrational in switching resources to other priorities.

Let us consider fatalities: in agriculture and construction alone (2001/2) there were 118 fatalities; in the whole of the local authority enforced sector there were 40. There are just 220 inspectors deployed by the HSE in agricultural and construction safety, compared with the 1,060 deployed by local authorities for the whole of their enforcement sector. Is it local authorities or the HSE that are not deploying adequate resources?

What these figures actually demonstrate is that the total national inspection resource is not being properly deployed to the areas of greatest risk. The whole purpose of the revitalising health and safety strategy was to target resources effectively on the areas of greatest risk. It is quite clear that the local authority health and safety inspectors are not being used to best effect. There may be arguments about whether individual local authorities are performing adequately, but the biggest failure lies at the centre, where the HSC has failed to shift premises and activities to the local authorities to enforce, to correct the current and long-standing imbalance between the HSE and local authorities. Local authority inspectors have been saying this for years, but apart from tinkering at the edges with the enforcing authority regulations nothing has changed.

What can be done about this? There needs to be a major switch in the allocation of premises or activities between the HSE and local authorities. The relevant strengths of local authorities and the HSE should drive this process. Local authorities in particular are close to their communities, they can engage readily with small businesses, they have many different dealings with the businesses in the community and they have a statutory duty to consider the economic and social wellbeing of their area. They also have a clear remit to address public health in partnership with primary care trusts, of which occupational health ought to form a key part.

In short, local authorities are best placed to engage with local businesses and local communities. If the HSC is serious about really engaging local authorities and obtaining their commitment at high level to health and safety work, then it needs to enable those local authorities to play a much bigger part in addressing the health and safety agenda at a local level. Local authorities cannot do this if they are restricted to dealing with the service sector of the economy alone.

Radical action is required and I suggest that the basic presumption in the Enforcing Authority Regulations needs to be reversed.6 In short, that the local authority shall be the competent health and safety authority for its area and shall deal with all premises and activities in that area except for those specifically reserved to the HSE. Effectively, the HSE would retain those premises and activities where they have particular expertise and where that expertise is unlikely to be available at local authority level.

It would also remove from the HSE most small-scale activity, such as small factory units and much of the work of small building businesses. Many of these are already regulated by local authorities in other areas such as trading standards and building control. A radical change of this nature would provide much better balance in the use of the national inspection resource. It would also result in many businesses that have not had a HSE inspection for years, if at all, being brought into the local authority enforced sector where they can and will be addressed, in preference to all those low risk businesses currently being inspected. The days of tinkering at the edges of the Enforcing Authority Regulations are at an end. It is time for a change and for local authorities to play a major role in health and safety in this country.

References

1. http://www.cieh.org/news/congress2000/ten.htm (downloaded 8/9/03).
2. HELA Health and Safety Activity Bulletin 2003: Inspection and enforcement in local authority enforced sectors.
3. Personal communication from the HSE by e-mail 19/8/03.
4. HSC press release C039: 3 – 31 July 2003.
5. Personal communication from HSE FOD by e-mail 22/8/03.
6. Health and Safety (Enforcing Authority) Regulations 1999.

Stewart Brock is principal EHO at Taunton Deane Borough Council and the views expressed are his own and not necessarily those of his employers.