Any local authority (LA) which is an enforcing authority under the Health and Safety at Work etc Act 1974 (HSWA) has the power under Section 19(1) HSWA to:
".... appoint as inspectors (under whatever title it may from time to time determine) such persons having suitable qualifications as it thinks necessary for carrying into effect the relevant statutory provisions within its field of responsibility and may terminate any appointment made under this section."
To meet their duty under S18 (4)(a) HSWA to “make adequate arrangements for enforcement” LAs should ensure inspectors only exercise their HSWA powers when there are suitable management controls in place and they have the necessary competencies. For example, by using the Regulators Development Needs Analysis tool (RDNA) which has a framework of competencies expected of a fully qualified LA health and safety inspector and the Guidance for Regulators Information Point (GRIP) which is designed to signpost health and safety regulators to current information, guidance and advice.
The following local authorities are enforcing authorities for the purposes of HSWA:
In accordance with Section 19(2) HSWA each inspector is required to have a written instrument of appointment, known hereafter as a "warrant. The warrant should specify the powers conferred on the inspector. These are the only powers the inspector may exercise and they apply only within the field of responsibility of the appointing authority.
Authorities should satisfy themselves that the person signing the warrant is properly authorised to do so as it may be necessary to produce evidence of this if an inspector's appointment is challenged.
The Act requires that the warrant specifies those powers the inspector is entitled to use. The powers are set out in the following sections of HSWA:
Section 38 of HSWA states that “Proceedings for an offence under any of the relevant statutory provisions shall not, in England and Wales, be instituted except by an inspector or by or with the consent of the Director of Public Prosecutions.”
Warrants should also show any powers derived from health and safety regulations and/or powers under existing relevant statutory provisions (defined in Section 53(1) of HSWA), and regulations, orders or other legislation made under them.
Authorities should ensure that, in line with the requirements of Section 19(1) of HSWA, inspectors are authorised to exercise only those powers for which they are qualified and authorisations should be removed when they are no longer valid.
When carrying out their inspection duties, inspectors should always be able to produce their warrant, or a duly authenticated copy on request.
Situations may arise when action is brought against an inspector arising out of their inspectorial duties. Under Section 26 of the Health and Safety at Work Act 1974, local authorities may indemnify the inspector providing they are satisfied the act complained of was honestly believed to be within the powers of the inspector and that their duty as an inspector required or entitled them to do it.
The power to indemnify becomes operative, "Where an action has been brought against an inspector in respect of an act done in the execution or purported execution of any of the relevant statutory provisions and the circumstances are such that he is not legally entitled to require the enforcing authority which appointed him to indemnify him....”
It is recommended that every local authority issue a statement along the following lines:
'Section 26 of the Health and Safety at Work etc. Act 1974’ allows local authorities to indemnify inspectors appointed under that Act under specified circumstances. It is the policy of this authority to indemnify inspectors appointed under that Act against the whole of any damages and costs or expenses which may be involved, if the authority is satisfied that the inspector honestly believed that the act complained of was within their powers and that their duty as an inspector entitled them to do it, providing the inspector was not wilfully acting against instructions.'
Enforcement officers should be aware of Local Authority Circular (LAC) 22/2 which provides advice on authorising 'other persons' who may be required to accompany an inspector.