The use of Health and Safety (Enforcing Authority) Regulations 1998: Regulations 5 (Transfer) and 6 (Assignments)
This OG gives guidance on the interpretation and use of the Health and Safety (Enforcing Authority) Regulations 1998 (EA Regulations) Regulations 5 and 6.
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.
Para 3.3 (within OM 2011/02) explains that for Regulation 5 transfers and Regulation 6 assignments, this duty should only be performed by persons with the appropriate competence/expertise and seniority to discharge these functions. Within HSE Band 2 inspectors /Enforcement Liaison Officers (ELOs) in FOD have been judged to be the appropriate staff to discharge this duty; LAs should make their own local arrangements.
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. LAs should make their own local arrangements.
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. A similar approach should be adopted by LAs. Those affected will vary in each case but will normally be:
- The employer;
- the owner or controller of the premises, and
- 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.
Once HSE or an LA become aware of the need for a Regulation 5 transfer or a Regulation 6 assignment they should take steps to bring it about at the earliest possible opportunity.
Example scenarios where Regulation 5 transfers can be considered
- Where a single business is artificially split between enforcing authorities by the presence of a road between buildings.
- 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.
- Book shops, banks etc and clubs on a university campus which may be more appropriate for LA enforcement.
- Minor activities when they are located in premises allocated to the other authority, for example a small, simple recording studio in an arts centre.
- 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.
- Activities operated by contractors, for example leisure centres on behalf of LAs but where the extent of LA involvement makes fair enforcement problematic due to the potential conflict of interest.
- Activities in domestic premises such as pre-school child care or bed and breakfast provision, where LAs already have an enforcement role for other purposes, for example 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.
- To allow the investigation of an incident at an LA enforced site where the incident is of such exceptional magnitude and/or complexity that it outstrips the regulatory resources or experience that could reasonably be expected to be available to an LA, even with HSE providing technical / forensic support (See ‘Transfers Following an Exceptional Incident’).
Transfers Following an Exceptional Incident
It is not intended that HSE will regularly take on enforcement responsibility where the LA is the enforcing authority. However, following an exceptional incident, a transfer of enforcement responsibility to HSE under the EA Regulations should be considered as a last resort, if all other means of allowing the LA to retain enforcement responsibility have been considered. Such a consideration should include, amongst other options, the provision of HSE technical/forensic specialists to support the LA, or support from other LAs or agencies. Whilst the wide range of premises and activities enforced under the EA regulations means we cannot provide a formal definition of an ‘exceptional incident’, they are likely to be major and complex incidents often involving multiple fatalities, major injuries or serious cases of ill health. Examples of potential exceptional incidents are:
- Large scale collapse of fixed stadium seating
- Steam boiler explosion at a sports centre
- A major Legionella incident at a hotel complex
- A large gas explosion in a shopping centre
- A major chlorine release at a leisure park swimming pool
- A mass crowd crush incident at a music festival
The transfer following an exceptional incident should ideally be agreed before a full investigation has commenced and before enforcement action has been taken. In addition, those involved in finalising the practical arrangements of the transfer following an exceptional incident (HSE ELO and their LA equivalent), should have obtained internal agreement for the transfer from their relevant senior officer.
Once the investigation and any proceedings have concluded, the LA and HSE should consider whether the premises should be transferred back to the LA
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.
ELOs should copy all notices of transfer to the Local Authority Unit who will:
- Monitor the operation of this regulation, and
- 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.
OG Health and Safety (Enforcing Authority) Regulations 1998 (formerly OC 124/7).