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Businesses that believe they have been the recipients of erroneous, or over-the-top advice from HSE or Local Authority (LA) inspectors can now appeal these decisions to an independent panel.
The Government announced its intention to set up such a body as part of its response to the findings of the Löfstedt review in November – which called, more generally, for a process to challenge cases of incorrect and over-application of health and safety legislation.
Now up and running, the new Independent Regulatory Challenge Panel will look into complaints regarding health and safety advice given by HSE or LA inspectors that duty-holders believe is “incorrect, or goes beyond what is required to control the risk adequately”.
The panel will be chaired by Tricia Henton, former director of environment and business at the Environment Agency. She will be joined by Local Government Regulation’s (formerly LACORS) Mark DuVal, and its former executive director Derek Allen, as well as two ex-employees of the HSE. Other panel members may be appointed in due course.
If businesses are unhappy with the advice they have received, they are encouraged in the first instance to seek to resolve the matter with the relevant HSE or LA inspector, and the inspector’s manager. If they are not satisfied, businesses can then raise the issue with the panel by filling out an online form on the HSE website. If they are still not satisfied with the findings of the panel, they can follow the existing complaints procedures, including writing to the chief executive of the HSE, or relevant LA chief executive, as well as contacting local MPs, or local councillors.
The panel will only consider cases from 30 June last year onwards, and a summary of the cases and the panel’s findings will be made available on the HSE website. An HSE spokesperson said that because the process is new, it is difficult to estimate the scale and number of cases that will be referred to the panel. Nevertheless, to give greater clarity, terms of reference for the panel will be published in the next couple of weeks.
The spokesperson, who was keen to emphasise the independent nature of the panel, added that the HSE is expected to abide by the panel’s decisions, which, in most instances, should be made promptly by the panel, although there is no defined timescale.
The panel will also only deal with decisions of regulatory advice to control risks, which stop short of enforcement action. Hence, the appeals mechanism is completely separate from other appeals processes that will cover costs-recovery, and which already cover enforcement notices.
Asked if the HSE is concerned that a further appeals process will undermine the authority of its inspectors, and bring their competence under added scrutiny, the spokesperson replied: “Tackling disproportionate advice is vital in restoring confidence in the core business of health and safety, which is to reduce accidents and ill health. But, when our standards are not matched, it is only right that employers and duty-holders have a means to appeal decisions.”
Paul Verrico, solicitor-advocate at Eversheds law firm, welcomed the panel from the point of view of accessibility, perspective and accountability. He told SHP: “All too often, our clients either receive conflicting advice from inspectors, or opinions that go beyond the HSE’s written and documented protocols, or codes of practice.”
Traditionally, he added, businesses’ only practical course of action in such circumstances has been to dispute the advice with the inspector, or bite the bullet.
However, he cautioned that LA inspectors would need to “ensure they receive the same messages and have the same access to information as HSE inspectors,” as the panel will be judging both HSE and LA inspectors to the same standards.