OG status:

Fully open

Author unit / section:

OSD 5.4

Target audience:

All OSD Inspectors

Version No:

1

Purpose

This SPC provides guidance on how to determine the appropriate enforcement action to achieve compliance with the accommodation provisions of Regulation 12(1) and Schedule 1 of the Offshore Installations and Wells (Design and Construction, etc.) Regulations 1996 (DCR).

Background

This SPC should be read in conjunction with:

• A guide to the integrity, workplace environment and miscellaneous aspects of the Offshore Installations and Wells (Design and Construction, etc) Regulations 1996 L85
• SPC/Enf/170 The Offshore Installations and Wells (Design and Construction, etc) Regulations 1996
• Operations Notice 82 Guidance for the provision of accommodation offshore

While each situation is unique, all enforcement action must be in accordance with HSE's Enforcement Policy Statement. In particular it must be proportionate, consistent in approach, transparent, and targeted at those who control the risks. In addition, decisions concerning enforcement action must be made in accordance with the principles in the Enforcement Management Model (EMM).

The approach outlined in this guideline should be applied formally by inspectors when investigating all complaints related to accommodation standards or where the “double occupancy standard” (i.e. 2 persons in a cabin in any 24 hr period) is not being met. It should also be used by Operations Managers when assessing submissions for exceptional circumstances.

Guidelines

General

Enforcement action may be required where an inspection or investigation reveals that a dutyholder is failing to comply with the requirements of regulation 12(1) and Schedule 1 of DCR.

Exceptions to the above may occur in two circumstances:

(1) Short-term Incidents: From time to time there may be short duration unplanned events that challenge compliance with the above DCR standards.  These include circumstances requiring a short term deviation from DCR standards such as a helicopter breakdown or an unforeseen event requiring a raised POB to address safety imperatives.

(2) Exceptional Circumstances: On rare occasions there may be an event that (despite good planning) could not have been foreseen or avoided. Where this involves a safety or welfare imperative the initial enforcement expectation may be revised if the longer term benefits to health, safety and welfare outweigh the costs of short term compromise of welfare standards – but only when there is no other means of achieving compliance and the impact on welfare standards are mitigated.

Application of the enforcement management model

For the purposes of the EMM, these Regulations fall under the description of "compliance and administrative arrangements" since they are not in themselves risk based. Details of the general approach to enforcement can be found in the EMM itself.

To determine the appropriate action, it is first necessary to assess the level of non-compliance. This can fall into three categories (absent, inadequate, minor) each of which is defined in EMM Table 4. This is then combined with the authority of the benchmark standard (in this case principally the legislation itself) to reach an initial enforcement expectation as in EMM Table 5.2.

The next stage is to apply dutyholder and strategic factors (EMM Tables 6 and 7 respectively) to the initial enforcement expectation in order to reach an enforcement conclusion, i.e. the action that should be taken in the particular circumstances. The appendix contains two tables which apply the EMM principles to the DCR accommodation requirements and provides further guidance on the dutyholder and strategic factors that might be taken into consideration. This provides a framework for decision making as an aid to consistency.

Management review

All enforcement decisions should be management reviewed by the line manager and Band 1 until further notice.

Each circumstance will require judgement in establishing whether there are sufficient factors that indicate a case for temporary non-compliance with DCR accommodation standards. The following provides some of the factors which should be recorded in the enforcement assessment record:

• Requirement for raised POB based on health, safety or welfare not commercial reasons;
• Circumstances have come about despite good planning and use of resource;
• Time available is limited by circumstances (e.g. weather, inter dependences on other operations);
• Event could escalate and compromise health, safety or welfare if not addressed;
• Effect of raised POB does not impact on compliance with other legal requirements (e.g. PFEER, MAR).

Where a decision is made to allow operation at a lower standard the dutyholder will be required to demonstrate that:

• All reasonably practicable alternatives have been fully explored;
• That the effect of the compromise on accommodation standards will be mitigated wherever possible;
• Action has been taken to ensure food hygiene and water quality during period of raised POB;
• Clear time period for operating out with DCR and formal plans on reinstating compliance;
• Consultation with affected workforce has taken place and appropriate action taken; 
• The period of non-compliance will be minimised by good planning.

EMM record

Decisions made in the management review should also be recorded in sufficient detail to make it clear how the final enforcement decision was reached.

The EMM management review should record a timescale for revisiting the decision to ensure an early return to compliance. A record should also be made of action taken by the dutyholder to prevent further recurrence.

Further information

Further advice can be obtained from Ahsan Saleem 0151 951 3040

Appendix (para 8)

Table 1: Aid to determining the initial enforcement expectation following non-compliance with the accommodation requirements of regulation 12 (1) and Schedule 1 of DCR

Schedule 1	Regulatory requirements with examples of possible breaches	Non-compliance descriptor	Authority of benchmark standard
Para 60 Sufficient beds	Accommodation must contain sufficient beds for the number of persons expected to sleep on the installation to avoid “hot bunking”	Absent	Defined
Para 61 (a)	Sleeping room must not be overcrowded: a) between 6.9 and 11cu/m per person b) 6.9 cu/m or less per person	(a) Inadequate (b) Absent	Established
Para 61 (b)	Sleeping rooms must contain adequate space for the storage of clothes (a) insufficient number of lockers for POB and those offboard (b) insufficient number of lockers for POB	(a) Inadequate (b) Absent	Established
Para 61 (c)	Sleeping accommodation SFAIRP be occupied by such number of persons to provide reasonable privacy (a) over 2 persons occupying a cabin in any 24 hrs period (b) over 2 persons occupying a cabin in any 24 hrs period and less than 11 cu m space per person	(a) Inadequate (b) Absent	Established
Para 62	Accommodation must provide sufficient number of showers and washing facilities equipped with clean hot and cold water (a) more than 4 people sharing one shower and washing facility (b) more than 6 people sharing one shower and washing facility (c) inadequate supply of clean running hot and cold water	(a) Inadequate (b) Absent (c) Absent	Established
Para 64	Accommodation must be equipped with sufficient number of toilets and washbasins (a) More than 4 people sharing a toilet and washbasin (b) more than 6 people sharing a toilet and a washbasin	(a) Inadequate (b) Absent	Established

Table 2: Dutyholder and strategic factors to be taken into account when determining the enforcement conclusion following non-compliance with the accommodation requirements of regulation 12 (1) and Schedule 1 of DCR

NB: This table provides additional guidance on some of the factors contained in EMM Tables 6 and 7. The full table must be referred to when considering the enforcement conclusion in a particular situation.

Dutyholder factors	Guidance
Is there history of relevant written or verbal enforcement?	This should be considered in terms of any previous contact with the dutyholder on accommodation issues. In particular have they been given previous advice on the actual aspect of the Regulations in question?
Is the non-compliance short-term and a result of an unforeseen event e.g. helicopter breakdown or major safety problem requiring raised POB?	The dutyholder must demonstrate action to minimise the effect on welfare standards and reinstate compliance within 2 weeks.
Does non-compliance deliver a safety or welfare benefit that outweighs the immediate welfare hardship?	The EMM decision will be referred to the relevant Operations Manager for review. Consideration must be given to the full range of circumstances that apply and in particular: that non-compliance is not motivated by commercial advantage; Circumstances have come about despite good planning and use of resource; demonstration that all reasonably practicable alternatives have been fully explored; That the effect of the compromise on accommodation standards will be mitigated wherever possible; Time available is limited by circumstances (e.g. weather, inter dependences on other operations

Strategic factors	Guidance
Does the action coincide with the public interest?	The EMM considers this in the context of the public expectations of HSE and also how we target resources based on risk. The latter is not relevant in this situation.
Are vulnerable groups protected?	This will not be particularly relevant.
What is the functional impact of the action?	This is considered in terms of the impact on the workers themselves including: potential for the event to escalate and compromise health, safety or welfare if not addressed; the impact of raised POB on compliance with other legal requirements (e.g. PFEER, MAR); the potential for poor welfare to result in safety related issues e.g. fatigue; Action has been taken to ensure food hygiene and water quality during period of raised POB; Clear time period for operating out with DCR and formal plans on reinstating compliance; Consultation with affected workforce has taken place and appropriate action taken;  The period of non-compliance will be minimised by good planning.