Appendix: Health and Safety (Enforcing Authority) Regulations 1998: A-Z guide to allocation

legislation other than the relevant statutory provisions of HSW Act

business activity

rented domestic accommodation

Houses in multiple occupation (HMOs)

Reg.2(1)(a) defines this as including horticulture, fruit growing, seed growing, dairy farming, livestock breeding and keeping, including the management of livestock up to the point of slaughter or export from Great Britain, forestry, the use of land as grazing land, market gardens and nursery grounds and the preparation of land for agricultural use. (Sch 2 para 7).

But these activities are not defined as 'agricultural activities' when carried out at a garden centre or other shop. (Reg. 2.(1)(b)). LA enforced.
For this purpose ‘livestock breeding and keeping’ does not include activities the main purpose of which is entertainment. (Reg 2.(1)). Thus ‘open farms’ visited by the general public would be LA enforced.

The common parts of land within the perimeter of an airport (except airport car parks), which are not within a building or to which passengers are admitted but other members of the public are not admitted (reg.3(4)(b)), ie 'air-side’ to which only passengers and airport employees have access.

See the Memorandum of understanding with Civil Aviation Authority and associated annexes listed on the CAA's website http://www.caa.co.uk/srg/ safety_initiatives/ default.asp?page=700 for guidance the boundary between CAA and HSE.  Guidance on the type of accidents investigated by the Department for Transports Air Accident Investigation Branch are listed on their website. Accidents reported to AAIB are not reportable under RIDDOR, though HSE may wish to investigate a small subset of these accidents to establish if health and safety law has been breached (eg where a vehicle strikes a parked aircraft, but also injures a pedestrian).  Joint HSE/AAIB investigations are unlikely, because AAIB's locus is only to prevent recurrence; they have no punitive powers.  Further guidance can be obtained from the Transportation Section of CACTUS.

The memorandum of understanding (MoU) between the Health and Safety Executive (HSE), The Maritime and Coastguard Agency (MCA) and the Maritime Accident Investigation Branch (MAIB) for Health & Safety Enforcement activities etc at the water margin and offshore (file 780) summarises types of crafts covered by this agreement and the inspection and enforcement responsibilities which apply.

The Merchant Shipping Act 1995 s.313 defines a ship as ‘every description of vessel used in navigation’. For the purposes of the MoU, a ship is considered to be used in navigation if it operates on the sea or on waters listed in the Annex to Merchant Shipping Notice MSN 1719(M) ‘Categorisation of Waters’, and subsequent revisions. Examples of some of the boats and activities where HSW Act may be enforced by HSE or LAs are detailed below.

Any vessel carrying more than 12 passengers must be certificated by MCA as a passenger vessel.

b) Provision for under 18 yrs by educational authority/local authority

c) Provision by a school or college for its own pupils or students

d) Provision by voluntary organisation with volunteer boatman and/or instructors

Note Where there is no employment, there should be no intervention by an enforcing authority in the sporting or other activities of private clubs, except in reaction to serious incidents or follow-up of complaints.
Where there are known to be employed or self-employed persons working in a private club, plans for any preventative inspection should be based solely on the risks arising from the employment activities.
These general principles need to be qualified where members of the public who are not club members, or their invited guests are put at risk by the clubs activities.
HSC Guidance HSC(G)1 contains further advice (see OC 331/3).
See 'child care, playgroup, nursery facilities and after school clubs'.

(i) - All notifiable construction projects.
CDM Regs defines a project as being notifiable if the construction phase exceeds 30 days or involves more than 500 person days of construction work, or

(ii) - Where the whole or part of the work to be undertaken by the contractor at the premises is to the external fabric or other external part of a building or structure,
Note:Fabric is the basic structure, the walls, roof and floor. ‘Other external part’ refers to something other than the fabric. An external door, for example, is a fixture believed to fall within this description. A door also forms part of the structure, and its construction or repair etc falls within the definition of 'construction work'.

(iii) - Where the construction work is carried out in a physically segregated area of the premises, the activities normally carried out in that area have been suspended for the purpose of enabling the construction work to be carried out, the contractor has authority to exclude from that area persons who are not attending in connection with the carrying out of the work and the work is not the maintenance of insulation on pipes, boilers or other parts of heating or water systems or its removal from them.

‘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". (HSW Act s.53, as amended by the Consumer Protection Act 1987).

‘Fairground’ means such part of premises as is for the time being used wholly or mainly for the operation of fairground equipment, other than a coin-operated ride, non-powered children's playground equipment, swimming pool slide, go-kart, or plant to be used by members of the public for entertainment purposes for bouncing upon. (Reg.2(1)(b)).

ORR

• Miniature railways less that 350 mm guage ( except where it has a level crossing that crosses a carriageway )
• a cableway installation; or
• a guided bus system;
• any other system of guided transport that employs vehicles which for some or all of the time when they are in operation travel along roads;
• an establishment to which the Control of Major Accident Hazards Regulations 1999
• in a factory;
• in a mine;
• in a nuclear licensed site;
• in a quarry; or
• in warehouse premises.

LAs, however, are the enforcing authority for the office activities, defined by reg.2, of these premises.

LAs are responsible for parts of railway ‘opearational premises ‘ ( Eg stations ) separately occupied for the carrying on of any trade, business or undertaking other than for the purposes of the system, including shops, offices or premises used for the provision of catering services or temporary residential accommodation;

The provision of qualified nursing care distinguishes a nursing home from a residential care home so, when determining the most appropriate enforcing authority, it is necessary to consider carefully the main activity, this should focus on the main purpose for which an organisation uses a premises. The time spent caring for patients or residents, or the number of beds, cannot be the sole indicators of allocation, however they are factors which may need to be taken into account.
Where nursing/medical care is the main activity, HSE will be the enforcing authority.