Regulatory Decision Making (RDM) Audit 2008

In November 2008 HSE concluded a further audit of health and safety regulatory decision making. The audit was facilitated by HSE’s Internal Audit unit and was undertaken by a peer review panel comprising experienced inspectors from HSE and a Local Authority. The audit was comparable in methodology, scope and sample size to the previous RDM Audit conducted in 2005/06.

The main aim of the audit was to provide information and assurance on the quality of regulatory decisions made during the investigation of incidents by HSE and Local Authorities. The audit also provided evidence of the impact of the actions taken under the Enforcement Programme to improve the consistency of enforcement decision making in line with HSE’s Enforcement Policy Statement (EPS).

The peer review panel examined 127 enforcement decisions taken during conventional accident investigations that had been carried out by HSE and LA inspectors. The audit found that in the majority of the investigations sampled (120 of 127) the panel agreed with the action taken by the inspector. The very high level of consistency found compares favourably with the 2005/06 which also found a high level of consistency (108 of the 126 investigations sampled in agreement). Overall, the findings of the audit appear to represent a positive improvement in the consistency of enforcement decisions taken during investigations and provide greater assurance about the application of enforcement decision making processes.

The audit did find that in a small minority of cases (7) the action taken did not appear to be in accordance with the EPS and stronger action may have been appropriate on the basis of the information available. Of these 7 cases there were 3 instances where the panel considered a prosecution may have been appropriate (the 2005/06 audit had found 18 cases were stronger action may have been required, including 12 cases where the panel felt prosecution appropriate). There were no instances where the panel felt the inspector had been over-zealous. In reaching and interpreting their conclusions the peer review panel recognised the following factors required taking into account:

• Enforcement decisions are professional judgements made according to the particular circumstances of each case
• Definitive enforcement decisions can be difficult to reach and the EPS expects regulators to exercise discretion when deciding appropriate action
• The panel approach and artificial setting of the audit can escalate enforcement decision making.

HSE does not use RDM Audits to extrapolate indicative levels of enforcement activity and considers it inappropriate to do so; the audits focus on a narrow range of incident types and are not representative samples of all of HSE’s investigation activity. They also do not evaluate whether a decision to prosecute would have actually progressed to prosecution, i.e. whether the
investigated case would have met the evidential sufficiency and public interest tests required by the Code for Crown Prosecutors.

Conducting regulatory decision making audits and acting on the results is just one of the ways HSE enables enforcement decision making consistent with the EPS. In addition to well-established arrangements for enforcement management oversight, guidance and training, HSE operational divisions will shortly be commencing a rolling programme of investigation peer-review exercises to provide further assurance and improvements in consistency.

• 2008 Regulatory Decision Making Audit report [77KB]