Health and Safety
Executive / Commission
Local authority circulars
To: Directors of Environmental Health/ Chief Environmental Health Officers of London, Metropolitan, District and Unitary Authorities and Chief Executives of County Councils.
For the attention of: Environmental Services / Trading Standards / Fire Authorities / Other
This circular gives advice to local authority enforcement officers
1 This circular describes the changes made to the HSW Act by the Consumer Protection Act 1987. The amendments come into effect 1 March 1988. They are principally to strengthen the HSW Act, section 6. There are several consequential changes to other sections, the most important of which concerns the service of prohibition notices under s.22 (see para 14 below). Appendix 1 contains the amended version of s.6, with the changes sidelined. In the following guidance, the term "supplier" includes designers, manufacturers and importers as appropriate.
2 Local Authorities are reminded to take up all s.6 matters with their local HSE area office.
3 Previously, s.6 required suppliers to ensure, so far as reasonably practicable, that articles and substances they supplied were "safe and without risks to health when properly used". The term "use" was not defined. To clarify more precisely the circumstances in which s.6 applies, the phrase "when properly used" has been removed, and replaced by a more detailed description of the activities for which duties are owed. These are:
4 The qualifying phrase "for use at work" has been deleted from s 6(4) and s 6(5). It had meant, or example, that s.6 did not apply to the warehousing of substances ultimately intended for sale to the public. Suppliers now have duties to protect, and provide information to, people at work in the chain of supply, regardless of the category of the eventual user of the substance. They must also consider the health and safety of people using the substance in premises covered by HSW Act s.4. As before, suppliers do not have duties under s.6 for the safety of users such as members of the public who are not at work and who are not in s.4 premises. Consumer safety is covered by the Consumer Protection Act 1987.
5 Previously, suppliers had to make available adequate information on safe use but had no explicit duty o keep users up-to-date. Now, they must actually provide adequate information to their customers. So far as reasonably practicable, they must also supply both past and present customers with revised advice on new and serious risks that become known after the amendments to s.6 take effect. In deciding how to provide further advice, suppliers will have to weigh the severity of the newly known risk against the cost and difficulty of tracing past customers.
6 The Solicitor has advised that the proof of whether something is "known" has 2 stages. First, whether the information is available in the public domain and second whether, on an objective test, the supplier should have been aware of that information.
7 lnformation need not accompany each delivery of items that are regularly or frequently supplied to the same customers, if the information first provided remains relevant and up-to-date.
8 Some items pass through the hands of several suppliers before reaching the eventual users. Chemicals might for example be supplied in bulk, then be further processed, mixed or divided before final supply for use. Each supplier is required to provide information to the next person in the chain of supply only. The information provided must however take account of reasonably foreseeable risks to everyone further along the supply chain, including the eventual user, provided the item is going to be used at work. The intention is that manufacturers will provide adequate and reasonably comprehensive information. Intermediate suppliers will then add any necessary extra advice arising from changes that they have made to the items in question.
9 Under the old s.6(10) articles and substances were not considered to be properly used if relevant information available from the supplier had been disregarded. Now, the information that suppliers provide will not satisfy s.6 (10) as amended unless it takes account of all reasonably foreseeable risks during the activities listed in para 3 above, and during the dismantling and disposal of articles and the disposal of substances. It must also deal with risks from "the inherent properties of the substance"; the previous duty had been restricted to risks arising from the substance "when properly used".
10 S.6(10) also requires courts to have regard to information that the supplier has provided, when deciding whether legal obligations have been discharged. They will consider particularly the information's relevance and whether it covers all reasonably foreseeable risks.
11 References have been included to allow the full application of s.6 to fairground equipment. S.6(1) protects employees such as operators, while a new s.6 (1A) gives the public using fairground equipment similar protection to that in s.6 (1) for people at work. S.6 (3) places duties on erectors and installers. Definitions of "article of fairground equipment" and "fairground equipment" have been added to s.53. These exclude equipment such as pinball or video machines and side stalls.
12 The amendments have clarified the responsibilities of importers under s.6. Previously, it had been arguable that s.6 (7) limited their duties because the matters of concern were not within their control, and also that it was reasonable for them to make fairly frequent use of written undertakings under s.6 (8) to relieve themselves of duties under s.6. A new s.6 (8A) places them in a similar position to UK manufacturers, by making them responsible under s.6 for defects in items that they supply, even though they may have had no control over the manufacturing or design activities which gave rise to those defects. They must ensure that the items meet the requirements of s.6 in full. They may not use s.6 (8) to delegate their duties to a greater extent than UK suppliers or manufacturers.
13 Under s.6(8) a customer may give a written undertaking to take specified steps to ensure that the article being supplied is safe during the activities listed in s.6 (1A) (see para 3 above). This is primarily to allow a manufacturer to make an article to a customer's own specification, or to supply a component which is potentially unsafe on its own. The undertaking relieves the supplier of duties under s.6 to the extent that is reasonable, taking account of the terms in which the undertaking is written. It does not transfer the s.6 duties to the person who gives it.
14 S.22 has been amended to allow Inspectors to serve immediate prohibition notices on suppliers to prevent the supply of products likely to cause a risk of serious personal injury when used. The phrase "about to be carried on" in s.22 (1) and (2) has been replaced by "likely to be carried on", and the new requirement in s.22 (4) to allege imminent risk has been deleted. It is now open for an Inspector to decide when a PN should take effect. This change affects all prohibition notices, not simply those served on suppliers. Prohibition Notice forms amended to reflect the change will be available from 1 March 1988.
15 New sections 25A and 27A have been added to enable customs officers to seize and detain articles and substances, and to provide information on imports to enforcing authorities of HSW Act. Further guidance will be given on these 2 new services. HSE will establish a single, central point of contact with customs and excise, which LAs will be invited to use.
APPENDIX 1
6. (1) It shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work or any article of fairground equipment-
(a) to ensure, so far as is reasonably practicable, that the article is so designed and constructed that it will be safe and without risks to health at all times when it is being set, used, cleaned or maintained by a person at work;
(b) to carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph;
(c) to take such steps as are necessary to secure that persons supplied by that person with the article are provided with adequate information about the use for which the article is designed or has been tested and about any conditions necessary to ensure that it will be safe and without risks to health at all such times as are mentioned in paragraph (a) above and when it is being dismantled or disposed of; and
(d) to take such steps as are necessary to secure, so far as is reasonably practicable, that persons so supplied are provided with all such revisions of information provided to them by virtue of the preceding paragraph as are necessary by reason of its becoming known that anything gives rise to a serious risk to health or safety.
(1A) It shall be the duty of any person who designs, manufactures, imports or supplies any article of fairground equipment -
(a) to ensure, so far as is reasonably practicable, that the article is so designed and constructed that it will be safe and without risks to health at all times when it is being used for or in connection with the entertainment of members of the public;
(b) to carryout or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph;
(c) to take such steps as are necessary to secure that persons supplied by that person with the article are provided with adequate information about the use for which the article is designed or has been tested and about any conditions necessary to ensure that it will be safe and without risks to health at all times when it is being used for or in connection with the entertainment of members of the public; and
(d) to take such steps as are necessary to secure, so far as is reasonably practicable, that persons so supplied are provided with all such revisions of information provided to them by virtue of the preceding paragraph as are necessary by reason of its becoming known that anything gives rise to a serious risk to health or safety.
(2) It shall be the duty of any person who undertakes the design or manufacture of any article or use at work or of any article of fairground equipment to carryout or arrange for the carrying out of any necessary research with a view to the discovery and, so far as is reasonably practicable, the elimination or minimisation of any risks to health or safety to which the design or article may give rise.
(3) lt. shall be the duty of any person who erects or install any article for use at work in any premises where that article is to be used by persons at work or who erects or installs any article of fairground equipment to ensure, so far as is reasonably practicable, that nothing about the way in which the article is erected or installed makes it unsafe or a risk to health at any such time as is mentioned in paragraph (a) of subsection (1) or, as the case may be, in paragraph (a) of subsection (1) or (1 A) above.
(4) It shall be the duty of any person who manufactures, imports or supplies any substance-
(a) to ensure, so far as is reasonably practicable, that the substance will be safe and without risks to health at all times when it is being used, handled, processed, stored or transported by a person at work or in premises to which section 4 above applies.
(b) to carryout or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph.
(c) to take such steps as are necessary to secure that persons supplied by that person with the substance are provided with adequate information about any risks to health or safety to which the inherent properties of the substance may give rise, about the results of any relevant tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health at all such times as are mentioned in paragraph (a) above and when the substance is being disposed of; and
(d) to take such steps as are necessary to secure, so far as is reasonably practicable, that persons so supplied are provided with all such revisions of information provided to them by virtue of the preceding paragraph as are necessary by reason of its becoming known that anything gives rise to a serious risk to health or safety.
(5) It shall be the duty of any person who undertakes the manufacture of any substance to carryout or arrange for the carrying out of any necessary research with a view to the discovery and, so far as is reasonably practicable, the elimination or minimisation of any risks to health or safety to which the substance may give rise at all such times as are mentioned in paragraph (a) of subsection (4) above.
(6) Nothing in the preceding provisions of this section shall be taken to require a person to repeat any testing, examination or research which has been carried out otherwise than by him or at his instance, in so far as it is reasonable for him to rely on the results thereof for the purpose of those provisions.
(7) Any duty imposed on any person by any of the preceding provisions of this section shall extend only to things done in the course of a trade, business or other undertaking carried on by him (whether for profit or not) and to matters within his control.
(8) Where a person designs, manufactures, imports or supplies an article or use at work or an article of fairground equipment and does so for or to another on the basis of a written undertaking by that other to take specified steps sufficient to ensure, so far as is reasonably practicable, that the article will be safe and without risks to health at all such times as are mentioned in paragraph (a) of subsection (1) or, as the case may be, in paragraph (a) of subsection (1) or (1A) above the undertaking shall have the effect of relieving the first mentioned person from the duty imposed by virtue of that paragraph to such extent as is reasonable having regard to the terms of the undertaking.
(8A) Nothing in subsection (7) or (8) above shall relieve any person who imports any article or substance from any duty in respect of anything which -
(a) in the case of an article designed outside the United Kingdom, was done by and in the course of any trade profession or other undertaking carried on by, or was within the control of, the person who designed the article; or
(b) in the case of an article or substance manufactured outside the United Kingdom, was done by and in the course of any trade, profession or other undertaking carried on by, or was within the control of, the person who manufactured the article or substance.
(9) Where a person ('the ostensible supplier') supplies any article or substance to another ('the customer') under a hire-purchase agreement, conditional sale agreement or credit-sale agreement, and the ostensible supplier-
(a) carried on the business of financing the acquisition of goods by others by means of such agreements; and
(b) in the course of that business acquired his interest in the article or substances supplied to the customer as a means of financing its acquisition by the customer from a third person( 'the effective supplier'), the effective supplier and not the ostensible supplier shall be treated for the purposes of this section as supplying the article or substance to the customer, and any duty imposed by the preceding provisions of this section on suppliers shall accordingly fall on the effective supplier and not on the ostensible supplier.
(10) For the purposes of this section an absence of safety or a risk to health shall be disregarded insofar as the case in or in relation to which it would arise is shown to be one the occurrence of which could not reasonably be foreseen; and in determining whether any duty imposed by virtue of paragraph (a) of subsection (1), (1A) or (4) above has been performed regard shall be had to any relevant information or advice which has been provided to any person by the supplier by whom the article has been designed, manufactured, imported or supplied or, as the case may be, by the person by whom the substance has been manufactured imported or supplied.
(1) This section applies to any activities which are being or are likely to be carried on by or under the control of any person being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply.
(2) If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Part referred to as 'a prohibition notice').
(3) A prohibition notice shall -
(a) state that the inspector is of the said opinion;
(b) specify the matters which in his opinion give or, as the case may be, will give rise to the said risks;
(c) where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and
(d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied.
(4) A direction contained in a prohibition notice in pursuance of subsection (3)(d) above shall take effect-
(a) at the end of the period specified in the notice; or
(b) if the notices so declares, immediately.
25A-(1) A customs officer may, for the purpose off facilitating the exercise or performance by any enforcing authority or inspector of any of the powers or duties of the authority or inspector under any of the relevant statutory provisions, seize any imported article or imported substance and detain it for not more that two working days.
(2) Anything seized and detained under this section shall be dealt with during the period of its detention in such manner as the Commissioners of Customs and Excise may direct.
(3) In subsection (l) above the reference to two working days is a reference to a period of forty-eight hours calculated from the time when the goods in question are seized but disregarding so much of any period as fails on a Saturday or Sunday or on Christmas day, Good Friday or a day which is a Bank Holiday under the Banking and Financial Dealings Act 1971 in the part of Great Britain where the goods are seized.
27A-(1.) If they think it appropriate to do so for the purpose of facilitating the exercise or performance by any person to whom sub-section (2) below applies of any of that person's powers or duties under any of the relevant statutory provisions, the Commissioners of Customs and Excise may authorise the disclosure to that person of any information obtained for the purposes of the exercise by the Commissioners of their functions in relation to imports.
(2) This subsection applies to an enforcing authority and to an inspector.
(3) A disclosure of information made to any person under sub-section (l) above shall be made in such manner as may be directed by the Commissioners of Customs and Excise and may be made through such persons acting on behalf of that person as may be so directed.
(4) Information may be disclosed to a person under subsection (l) above whether or not the disclosure of the information has been requested by or on behalf of that person.
28 Restrictions on disclosure of information- (I) In this and the two following subsections-
(a) "relevant information" means information- obtained by a person under section 27(l) or furnished to any person under section 27A above or in pursuance of a requirement imposed by any of the relevant statutory provisions; and
33 Offences- (1) It is an offence for a person:-
(h) intentionally to obstruct an inspector in the exercise or performance of his powers or duties; or to obstruct a customs officer in the exercise of his powers under section 25A.
53 General interpretation of Part l-(1) in this Part unless the context otherwise requires -
'article of fairground equipment' means any fairground equipment or any article designed for use as a component in any such equipment;
'customs officer' means an officer within the meaning of the Customs and Excise Management Act 1979,
'fairground equipment' means any fairground ride, any similar plant which is designed to be in motion for entertainment purposes with members of the public on or inside it or any plant which is designed to be used by members of the public for entertainment purposes either as a slide or for bouncing upon, and in this definition the reference to plant which is designed to be in motion with members of the public on or inside it includes a reference to swings, dodgems and other plant which is designed to be in motion wholly or partly under the control of, or to be put in motion by, a member of the public,
'micro-organism' includes any microscopic biological entity which is capable of replication;
'substance' means any natural or artificial substance, (including micro-organisms) whether in solid or liquid form or in the form of a gas or vapour;