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The use of Health and Safety (Enforcing Authority) Regulations 1998: Regulations 5 (Transfer) and 6 (Assignments)

Summary

This OG gives guidance on the interpretation and use of the Health and Safety (enforcing authority) Regulations 1998 (EA Regulations) Regulations 5 and 6.

Introduction

Regulation 5 of the EA Regulations allows enforcement responsibility for any particular premises, part of premises, or any activity carried on there, to be transferred from HSE to the local authority (LA) or vice versa. The purpose of a Regulation 5 transfer is to enable the inevitable complexities of allocation in respect of individual premises for which the Regulations are not able to cater to be smoothed out with sensible pragmatic local arrangements, which result in more efficient enforcement.

Where there is uncertainty about whether HSE or an LA is the appropriate enforcing authority under the Regulations, regulation 6 may be used to make an assignment to either enforcing authority. In order to allow regulation 6 to be used, both enforcing authorities must agree that there is uncertainty and must also agree which is the appropriate authority to enforce. Every effort should be made to agree an assignment but where agreement cannot be reached the Secretary of State has the power to make one.

Action

Para 3.3 (within OM 2011/02) explains that for Regulation 5 transfers and Regulation 6 assignments,  this duty should be only performed by persons with the appropriate competence/expertise and seniority to discharge these functions. Band 2 inspectors /ELOs have been judged to be the appropriate staff to discharge this duty within FOD.

Background

Agreement to transfers is an Executive function under the Regulations. The process and procedure for the delegation of authorities for staff within FOD to exercise the functions of the Executive is set out within OM 2011/02.

Organisation

A transfer may be made only by agreement between the two enforcing authorities involved, although the Secretary of State may also make a transfer, even where there is disagreement between the two enforcing authorities.

Except in the case of Crown offices there is no need to seek the views or obtain the agreement of those who are the subject of the transfer.

Except in relation to office activities, Crown premises or activities cannot be transferred for enforcement to LAs. Any transfer of Crown office activities and the premises used for them requires agreement between HSE, the LA concerned and the government department or other public body concerned.

Where a transfer has been made from an LA to HSE, the Band 2 inspector/ELO should ensure that those affected by the transfer are informed that it has taken place. Those affected will vary in each case but will normally be:

  1. The employer;
  2. the owner or controller of the premises, and
  3. representatives of the employees.

A new occupier taking over premises which have previously been transferred, under circumstances where the transfer will continue to be valid, does not have to be notified of the existing transfer arrangement.

Example scenarios where Regulation 5 transfers can be considered

  1. where a single business is artificially split between enforcing authorities by the presence of a road between buildings;
  2. where the presence or absence of significant hazards makes the allocation inappropriate, such as complex wood machining equipment attached to a timber merchants, or a metal slitting and coiling line in a steel stockholders, both of which may be more appropriate for HSE enforcement;
  3. book shops, banks etc and clubs on a university campus which may be more appropriate for LA enforcement;
  4. minor activities when they are located in premises allocated to the other authority, e.g. a small, simple recording studio in an arts centre;
  5. Premises which are operated by major companies and the bulk of whose business is inspected by the other enforcing authority and enforcement of the whole business by a single authority leads to greater efficiency and effectiveness;
  6. activities operated by contractors, e.g. leisure centres on behalf of LAs but where the extent of LA involvement makes fair enforcement problematic due to the potential conflict of interest; and
  7. Activities in domestic premises such as pre-school child care, bed and breakfast provision, where LAs already have an enforcement role for other purposes e.g. pest control or social work registration and they would otherwise be allocated such activities were they located in separate premises. Allocation of the activities rather than premises themselves would seem necessary to avoid permanently transferring individual private residences for all health and safety at work enforcement purposes. However, the priority afforded to enforcement of such premises by either HSE or LAs would be unlikely to warrant a transfer.

Targeting

Regulation 5 is designed for the transfer of particular premises. The transfer of generic categories of premises is not permissible. However, lists of individual identified premises can be used in conjunction with a single notice of transfer where large numbers are involved.

Where a request for transfer is refused, efforts should be made to resolve this at a local level with discussion taking place between the LA and the ELO. If agreement cannot be reached, the Local Authority Unit and the relevant HSE Regional Director should be involved. If there is still no resolution, the dispute should be taken to the HSE/LA Enforcement Liaison Committee (HELA).

Regulation 5.2 gives the Secretary of State power to make a transfer. This power has not been delegated and any request should only be made as a last resort.

Regulation 5 cannot be used retrospectively to avoid a defence to enforcement activity brought about by the wrong enforcing authority. Transfer must take place before enforcement action is commenced.

Recording and Reporting

Transfers should be agreed and confirmed in writing. Agreements should be clearly stated and specific about the effective date and time of transfer. Careful consideration should be given to the objective of the transfer, in particular whether the transfer applies to an occupier, or to the premises or part of premises. Transfers limited by a named occupier would give rise to the need for a repeat transfer if the occupier changed but the activity did not. A suggested form of notice is given at Appendix 2.

Written agreements to transfers should be made by ELOs. Inspectors signing agreements should satisfy themselves that representatives signing for LAs have been given the delegated authority by their council.

Enforcement liaison officers should copy all notices of transfer to the Local Authority Unit who will:

  1. Monitor the operation of this regulation, and
  2. Maintain a national register of transfers.

Regulation 6 Assignments

Where there is uncertainty about whether HSE or an LA is the appropriate enforcing authority under the EA Regulations, Regulation 6 may be used to make an assignment to either enforcing authority. In order to allow Regulation 6 to be used, both enforcing authorities must agree that there is uncertainty and must also agree which is the appropriate authority to enforce.

Every effort should be made to agree an assignment. Where local agreement cannot be reached, the steps to reach resolution as outlined for Regulation 5 transfers should be followed, with requests to the Secretary of State to use their powers to assign to one enforcing authority or another as a last resort.

The arrangements and procedures for completing an assignment are the same as those for effecting transfers under Regulation 5. A suggested form of notice is given at Appendix 3.

Resources

OG Health and Safety (Enforcing Authority) Regulations 1998 (formerly OC 124/7).

Contacts

Local Authority Unit

Appendices

Appendix 1: Draft HSE letter to those affected by transfers of enforcement responsibility

Appendix 2: Reglation 5 - Notice of transfer of enforcement responsibility

Appendix 3: Regulation 6 - Notice of assignment of enforcement responsibility

Updated 2015-07-29