Safety Case Handling and Assessment Manual - Arrangements for review of non-acceptance decisions

• Introduction
• Arrangements for reviews
• Fees
• Arrangements for review of acceptance decisions

Introduction

1 The decision by OSD not to accept a safety case is sent to the dutyholder as described in 'SCHAM Assessment Procedures' para 70.

2 Before a decision is made to not accept a safety case, it is essential that the dutyholder is given sufficient opportunity to satisfactorily resolve the matters affecting acceptance. The CM shall therefore ensure that this has been done before making a non-acceptance recommendation in the case close out report.

Arrangement for reviews

3 The decision letter notifying the dutyholder of HSE's decision not to accept a safety case refers to an attachment describing the arrangements for a review of the decision. This attachment is in 'Arrangements for review of acceptance decisions' below. It takes account of comments from offshore trade associations and unions. It forms an agreement between them and HSE, and provides the basis for reviews of non-acceptance decisions.

4 The text of this agreement must not be amended without prior consultation via the HSE/Industry Liaison Forum and the offshore trades unions.  However the review panel may change any part of the review procedure for a particular review, as described in the procedure.

5 The panel will not hear new issues which have not been discussed between OSD and the dutyholder during the assessment process. If such an issue is raised, the panel will suspend the review meeting and may decide that the assessment process should be re-opened. Any resulting delay may give the dutyholder grounds for complaint. The CM should therefore maintain contact with the dutyholder after the decision letter is sent, to help ensure that any request for a review only relates to matters relating to the non-acceptance decision.

Fees

6 dutyholders are charged for work related to reviews. However this is considered to be unfair if the review finds in favour of the dutyholder. In the event of a review finding in favour of a dutyholder, the charge should be reduced to a token amount. The actual charge payable in a particular instance should be decided by the relevant IMT operations manager. See also the document 'Charging for Offshore Activities: A Guide' available on the HSE web site.

Arrangements for review of acceptance decisions

1 Introduction

1.1 The safety case assessment process will be carried out against a timetable set out in the work plan and will be an interactive process involving the dutyholder. During this interaction, HSE may raise issues which, if not satisfactorily resolved, may be deemed to be of such significance that HSE considers acceptance of the case would be inappropriate.

1.2 The following guidance explains the process (agreed between HSE, the offshore trade associations and trades unions) which will be followed during the period leading to a non-acceptance recommendation and the review process that is available to the dutyholder in these circumstances.

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2 The process leading to non-acceptance recommendation

2.1 When a matter is identified which could lead to non-acceptance of the safety case, the case manager will formally alert the dutyholder at the earliest practicable stage by sending an issue note. The issue note will summarise the matter(s) of concern with reference to the relevant Regulations or guidance; and explain the action/information being sought. A deadline will be agreed for response by the dutyholder to enable further assessment leading to acceptance within the timescale set in the work plan (or any revision agreed with the dutyholder).

2.2 The dutyholder will always be given the opportunity to resolve any matter raised in an issue note before a decision is reached that the case cannot be accepted.

2.3 When the assessment and associated discussions with the dutyholder are complete, the responsible operations manager will decide whether the safety case can be accepted, based on the case manager's recommendations. The operations manager will brief the head of OSD where the case cannot be accepted. The head of OSD will advise the director of HID.

2.4 The dutyholder will be informed in writing of the decision OSD takes on behalf of HSE. Where a safety case is not accepted, the letter will explain the reasons and invite the dutyholder to discuss the way forward with the head of OSD. The letter will also advise the dutyholder that it may choose to apply to the Executive for a review of the decision.

2.5 Representatives of the workforce - normally, the safety representatives for that installation, and who are referred to in this document as "safety representatives" - will also be informed of the decision taken by OSD on behalf of HSE in writing. If a safety case is not accepted, OSD will send a summary of the reasons for this rejection to the safety representatives (and also to the dutyholder, if it has not already received the summary).

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3 The submission of an application for review

3.1 Where OSD notifies the dutyholder of non-acceptance of a safety case following completion of the assessment, the dutyholder may choose to apply to the Executive for a review of the decision. The application should be made in writing to the Chief Executive:

1. within 21 calendar days of the day on which the dutyholder receives the letter notifying non-acceptance; or
2. if, within 21 calendar days of the day on which the dutyholder receives the letter notifying non-acceptance the dutyholder arranges to meet the head of OSD to discuss the way forward as set out in paragraph 2.4, within 21 calendar days of the day of that meeting.

3.2 The application should:

1. provide a summary of the reasons for seeking the review;
2. include any views submitted by safety representatives and any other supporting documentation submitted to OSD as part of the dutyholder's safety case submission e.g. relevant information or opinions obtained from third party experts; and
3. indicate whether the dutyholder wishes to make personal representations to the review panel and, if so, who will be attending the review meeting.

3.3 If the dutyholder wishes to make personal representations to the review panel, then the review panel will convene a review meeting and respond to the dutyholder's application for review as follows:

1. within 10 calendar days of receipt of the dutyholder's application:
   1. inform the dutyholder, the directors of HID and OSD of the names of those representing HSE at the review meeting ("the review panel"); and
   2. propose a time, date and place for the review meeting; and
2. arrange for a review meeting to be held within 21 calendar days of receipt of the dutyholder's application.

3.4 The review panel will also:

1. inform safety representatives of the dutyholder's request and reasons for seeking a review;
2. invite safety representatives to make any points they consider relevant to the review. All submissions should be sent to the review panel via HSE's Legal Adviser's office (see paragraph 5.1 below) not later than 10 working days prior to the review meeting. A summary of issues raised will be sent to the dutyholder and OSD. Submissions received from safety representatives less than 10 working days prior to the review meeting will not be considered by the review panel. HSE will not disclose a safety representative's name without their prior written consent;
3. invite safety representatives to nominate up to two of their number to attend the review meeting.

3.5 In cases where there is no resident workforce or there are no safety representatives (e.g. if the installation in question is stacked or currently operating outside the UKCS), the review panel may make such alternative arrangements as appear appropriate to hear representative views from those whose health and safety may be affected by the matters under review.

3.6 Where a dutyholder does not wish to attend a review meeting, the Executive will:

1. follow the procedures described in paragraphs 3.4(i), 3.4(ii) and 4.5; and
2. inform the dutyholder and the safety representatives of its decision on the review in writing within 28 working days of receipt of the review application.

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4 The review panel and its role

The composition of the review panel

4.1 As soon as possible after the chief executive receives an application for review from a dutyholder, HSE will appoint a review panel to represent it for the purposes of the review consisting of:

1. one member of the Executive; and
2. two senior HSE officials unconnected with the relevant safety case.

4.2 In the exceptional event that no member of the Executive is, for whatever reason, able to represent HSE for the purposes of the review at the relevant time, he or she may be replaced by another senior HSE official unconnected with the relevant safety case.

4.3 The review panel will be advised on legal and procedural issues by the HSE Solicitor.

General principles

4.4 All documents which are to be put before the review panel should be sent via HSE's Legal Adviser's office. All parties will be given the necessary contact details as soon as possible after the chief executive receives an application for review from a dutyholder.

4.5 Prior to the review meeting, the review panel may ask the dutyholder, the director of HID, OSD or safety representatives to clarify matters raised in the application for review or any other document. The review panel will make any reply available to all other parties.

4.6 The review panel will make every reasonable effort to ensure that every stage in the review procedure is completed by the date specified in this document. If it is not possible to meet any time limit for whatever reason (e.g. the review panel may need more time to read the papers, or a party may request more time to prepare its case), the review panel will keep all of the parties informed of how it intends to proceed.

4.7 The review panel, may ask the dutyholder and OSD to appoint a joint expert to give evidence to the review panel on any issue relevant to the review; the costs of the joint expert will be shared equally between the dutyholder and OSD. The panel will make the appointment if the dutyholder and OSD cannot agree. Where the appointment of a joint expert is not appropriate, the panel may allow each of the dutyholder and OSD to appoint an expert. Such expert or experts would attend the review meeting and give evidence to the panel in front of all parties present.

Suspension of the review procedure

4.8 The review panel may suspend the review process or the review meeting, as the case may be:

1. if it is asked to consider issues or arguments raised by the dutyholder and OSD which were not raised before the safety case was rejected; or
2. for such other reason as the review panel thinks fit, after consultation with all parties to the review procedure.

4.9 If the review procedure is suspended by the review panel for the reason specified in paragraph 4.8(i), the review panel may, after consulting all of the parties to the review process or present at the review meeting as the case may be, decide that it would be more appropriate if the dutyholder pursued those new issues or arguments by re-opening discussions with OSD or submitting a revised safety case and accordingly declare the review process or the review meeting at an end. In any other case, the panel will lift the suspension and the review process or the review meeting will continue as before (and the time periods referred to in this procedure shall, if necessary, be adjusted accordingly).

4.10 If the review procedure is suspended by the review panel for the reason specified in paragraph 4.8(ii), as soon as possible thereafter, it will tell the parties how it intends to proceed. It will be open to the panel, after consultation with the parties, to ask the parties to commence further discussions or to bring the review proceedings to an end.

General power to alter review procedure

4.11 The review panel may change any part of the review procedure for a particular review:

1. on the application of any relevant party; or
2. on its own initiative, as it thinks fit.

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5 Review meeting

5.1 The review panel will allocate ½ day for the review meeting. A recording of the meeting will be made and circulated to all parties in the form of a transcript. If, for some reason, it is not possible to use recording equipment, minutes will be taken and copies will be circulated to all parties. Proceedings will otherwise be informal.

5.2 The review panel will begin the meeting by introducing themselves and telling the parties how they propose to conduct the meeting. Proceedings will generally thereafter take place in the following order:

1. the dutyholder will be asked to present its case against non-acceptance, based on the information previously provided with the review application;
2. OSD will be asked to present its case against acceptance, based on the information previously provided to HSE;
3. the safety representatives, if any, will be asked if they wish to say anything to the review panel;
4. if an expert or experts have been appointed, the joint expert or, if the dutyholder and OSD have both appointed experts, first the dutyholder's expert and then OSD's expert, will present expert evidence to the panel;
5. the review panel will address any questions it may have to any of the parties and any expert, having regard to any relevant points made by the parties or any expert in their submissions;
6. each party will then be invited to make a brief closing submission; and
7. the review panel will draw the meeting to a close.

5.3 At the close of the meeting, the review panel will indicate when the dutyholder will receive the review panel's decision on the review. If the decision of the review panel is not unanimous, the decision will reflect the conclusions of the majority.

5.4 If the review panel decide that the safety case was wrongly rejected, it will order OSD to ensure that the disputed safety case is processed and accepted in accordance with its normal procedure as soon as possible thereafter.

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6  Evaluation of the review arrangements

6.1 The arrangements described in this document will be reviewed periodically by, and changes will be undertaken in consultation with the offshore trade associations and trades unions.