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May 17, 2012

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SHE 12 – Fight your battles but don’t neglect the overall war

Practitioners should not be afraid to challenge regulators over decisions with which they take issue – but just as important as why you challenge is how you challenge.

Attendees at the SHP Legal Arena today (17 May) heard an informative and pragmatic presentation from Eversheds’ head of regulatory, David Young, who told them the relationship between them and their contacts at the HSE and local authorities is one of the most important in their working lives.

David went on to define ‘challenge’, saying it could be done in on of three ways: formally (procedural), formally (new developments), and informally. In all three approaches, he emphasised, the key is engagement with the regulator. He explained: “If you are served with an enforcement notice, you have choices as to how to respond. All notices have a right of appeal but what you don’t want is to end up in a ‘them’ and ‘us’ situation. You have to maintain a dialogue.”

But beware FFI, warned David, who reminded the audience that, from October this year, if the HSE intervenes in relation to a material breach of health and safety law, it will charge £124 per hour for its time – which could have a significant bearing on duty-holders’ decisions to contest its actions.

He said: “Even sitting down and negotiating with the HSE has to be part of a strategy on how you deal with enforcement notices.”

Regarding formal challenge mechanisms, David gave a brief overview of the two recently established challenge panels, via which complaints can be lodged about advice or action perceived to be incorrect, or over the top. In January, the HSE set up the Independent Regulatory Challenge Panel to provide a means for disputing the decisions of senior inspectors whose view of a particular situation is felt to be extreme.

Said David: “Basically, this panel means you can go over the inspector’s head. But, so far, there have been no referrals to it. Why not? Well, I think one reason is that if you go over the inspector’s head because you think they are being disproportionate, then you have created a conflict situation. I think it will be interesting to see if the panel survives, and what sort of complaints get submitted to it.”

Moving on to informal challenge mechanisms, David said this essentially meant “the cup-of-tea relationships” most duty-holders have with inspectors. But he also reminded the audience not to forget opportunities to influence the regulator through other bodies, like trade bodies and unions.

As for the types of situation in which a challenge might arise, David said it will happen where the regulator “has clearly overstepped its powers – but in reality, this is rare, because their powers are so wide!” If the regulator is wrong in law, then the process will move down the tribunal route. If it is about disputed facts, then this is what the dialogue between duty-holder and regulator will focus on.

Said David: “The first question we ask duty-holders in every scenario is: what does a result look like for you? Do you have to win at all costs, or is there a middle ground that we can explore? Most relationships demand concessions and compromises on both sides. The important thing to bear in mind is that while you might win the battle, but lose the war.”

He also underlined the importance of “judging the mood – what is the inspector’s position? Where is he or she coming from? Also, what about the mood internally in your organisation? What do you tell your managing director, or your financial people? Again, from October, bear in mind that any engagement with the HSE will cost you money.”

David summed up by saying the key steps to follow when you have been the subject of an enforcement notice and are considering a challenge are:

  • Review the facts;
  • Look at the wider situation, from the internal and external perspectives;
  • Assess the inspector involved;
  • Consider the timing – is there potential for adverse publicity for the organisation, for example: and
  • Consider alternative strategies to challenging and thus potentially alienating the regulator.

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