Posted By Dave Wilson
would like some feedback on a situation.

if you were going to dismantle an Asbestos cement roof with cowls etc and there was an AIB ceiling covering the access to the roof void so that you could not know how you were going to do this task until the AIB Ceiling was removed which would take 3 weeks! How would you feel if on day one of the job a prohibition notice was served on you for not having a suitable Risk assessment for working at height to remove the roof in three weeks and you did not know how this was to be done?

So my question is at what stage of a job must a risk assessment be produced for future works????

Posted By Dave Wilson
Factual!

We really could not plan this until we had sen what the access could be so scaffolding or MEWP so this was planned in and we knew we had to plan for it but did not know how.

So once we had removed some of the ceiling we could get a better idea of how to do this.

Wrote a generic RA and faxed and was allowed to carry on without a further visit and then completely re done the RA two weeks later!!! Well miffed!

Posted By CFT
Dave

You state the section 22 was issued for not being in possession of a valid RA for WAH; clearly this issue appears to have been dealt with now and the PN removed by the enforcing authority.

Whilst I agree your methodology may have dynamically altered during the process, I believe the PN was issued solely for not adhering to the following when when intending to work at height:

Avoidance of risks from work at height
6. - (1) In identifying the measures required by this regulation, every employer shall take account of a risk assessment under regulation 3 of the Management Regulations.

CFT

Posted By Doug Kelly
Dave

I agree with Catman. Based on your outline, you seem to have been treated unfairly, especially as the task was not due to start for 3 weeks . Could it be that the Inspector expected you to have explicitly stated 'somewhere' that the RA and MS for the AC removal phase of the job would be prepared prior to commencement of that phase? If this was a CDM project with a H & S Plan, I think I would expect this to be documented - it would be evidence that the situation was being managed.

Incidentally, will having a PN on your record preclude your company from inclusion on tender lists? (Past experience suggests that this can lead to immediate disqualification by certain clients). If this is the case, is it possible the PN can be appealed against and hopefully expunged - there could be commercial implication here?

Hope this helps

Regards

Posted By peter gotch
Dave

So would I.

That you have already complied is irrelevant, as [as you are aware] having PN on the name and shame site and on your responses to prequals etc will be perceived adversely by some clients.

Two years ago we got an Improvement Notice telling us that the Inspector did not think we had systems to make sure that our clients knew about their CDM responsibilities and that we didn't have systems for design risk assessment and reduction.

Once I had finished falling off my chair and laughing, I went to see our Director for H&S and advised that we had no choice but to appeal, as result of the likelihood that some of our clients would do the no smoke without fire bit.

Eventually after 4 hour meeting notice withdrawn. Less egg on HSE's faces than losing in the Employment Tribunal and us telling the Press.

P

Posted By Steve Rhodes
Dave

If you are accurate in what you say and that the prohibition was due to lack of risk assessment this is legally incorrect in any event. The lack of a risk assessment, while being a contravention does not in itself produce circumstances which produce serious risk of personal injury. The correct means of dealing with lack of risk assessment would be an improvement notice. If they considered the work to be done was dangerous then they can prohibit the work, but that is not what you infer. You may have grounds for appeal in that the wrong legal process was followed

Posted By Dave Wilson
Take the point guys, when challenged the Inspector said that the issue of a IN instead of a PN was in her opinion "thought about doing this but if you appealed then you could have carried on working!" when pointed out that this was not grounds for service of a PN we were told you can always appeal.

Once a PN is issued the HSE cannot legally withdraw it like a IN only an Tribunal can do this, also there is no requirement anymore for the imminent bit either.

Just going through a form filling and tick box exercise is an absolute waste of time as this does not ensure safety on site, RA have to be real and practicable and most of all ensure the safety of people.

Im still really miffed, we should of appealed!

Posted By Robert K Lewis
DW

I gather from this the PN was issued some time ago and you are now out of time for appeal. Go the the Inspectors principal and hopefully you have contemporaneous records of the inspectors comments. There is grounds for formal complaint over this and I think the HSE really do need to take control of the errant foibles of some inspectors.

It really irks me when I read this stories - the HSE rattle on about employers managing competence when they seem unable to ensure that inspectors apply the regulatory standards set out in a competent manner.

If you are in time appeal and make sure the win is in the press.

Bob

Posted By Dave Wilson
Granville,

Just read your previous response and you are correct in saying that at some point we knew etc correct! however how this was in the future and as such could not have been planned for as we did not know the access arrangements until we had removed the AIB Ceiling. WE did not have all the information to plan this, as required by the WAH regs, properly and we did a generic RA after the visit faxed to HSE and then had to throw it away and plan the job properly once we had all the relevant info.

As for serious breaches of CAR 06?? what were they?

If the [reference removed] who do not generally deal with asbestos knew what they were talking about then this may not have arisen.

Still miffed!

Posted By Jim Walker
Dave,

You have my sympathies, as Bob says these people do not understand the commercial impact of being served with PNs or INs.

I've had dealings with HSE inspectors for over 20 years, recently the "quality" has noticeably dropped. Only to be expected against a background of cuts to the front line.
I doubt anyone with more than a few years experience under their belt is left at HSE.

Posted By Granville Jenkins
I would just like to set the record straight before continuing with this response, as mentioned earlier the comments that I am making are my personal comments and should not be interpreted as anything other than that (I am not having a go at Dave!)

To begin, asbestos containing material had been previously identified which should have alerted management to the requirements of 'The Control of Asbestos at Work Regulations 2006 (CAWR)

I was hoping to avoid quoting the Regulations, however, I will only provide the bare bones of the Regulations any one who wants to put some meat on the bones will need to refer to the CAWR 2006 (which can be found at www.opsi.gov.uk/SI/si2006/20062739.htm

In brief (or as briefly as I feel comfortable with) the CAWR place the following duties on employers and/or their designated representative (dutyholder):-

Part 1 - Preliminaries:

Reg3 - Application of these Regulations.


Part 2 - General Requirements

Reg 4 - Duty to manage asbestos in non-domestic premises:
(3)..."In order to enable him to manage the risk from asbestos in non-domestic premises the dutyholder shall ensure that a suitable and sufficient assessment is carried out" ...
(6) "The dutyholder shall ensure that the assessment is reviewed forthwith if- (a) there is reason to suspect that the assessment is no longer valid" ...

Reg5 - Identification of the presence of asbestos.

Reg6 - Assessment of work which exposes employees to asbestos.

Reg 7 - Plan of work:
(1)"An employer shall not undertake any work with asbestos unless he has prepared a suitable written plan of work detailing how that work is to be carried out"...
(4) "The plan of work shall include in particular details of- (a) the nature and probable duration of the work; (b) the location of the place where the work is to be carried out; (c) the methods to be applied where the work involves the handling of asbestos or materials containing asbestos; (d) the characteristics of the equipment to be used for - (i) protection and decontamination of those carrying out the work, and (ii) protection of other persons on or near the work site; (e) the measures that the employer intends to take in order to comply with the requirements of Regulation 11 (Prevention or reduction of exposure to asbestos); and (f) the measures which the employer intends to take in order to comply with the requirements of Regulation 17 (Cleanliness of premises and plant).

Reg8 - Licensing of work with asbestos.

Reg9 - Notification of work with asbestos.

Reg 10 Information, instruction and training: (1) Every employer shall ensure that adequate information, instruction and training is given to those of his employees - (a) who are liable to be exposed to asbestos, or who supervise such employees, so that they are aware of - (i) the properties of asbestos and its effects on health, including the interaction with smoking; (ii) the types of products or material likely to contain asbestos; (iii) the operations which could result in asbestos exposure and the importance of preventative controls to minimise exposure; (iv) safe work practices, control measures, and protective equipment; (v) the purpose, choice, limitations, proper use and maintenance of respiratory equipment; (vi) emergency procedures; (vii) hygiene requirements; (viii) decontamination procedures; (ix) waste handling procedures; (x) medical examination requirements, and (xi) the control limit and the need for air monitoring, in order to safeguard themselves and other employees; and (b) who carry out work in connection with the employers duties under these Regulations, so that they can carry out the work effectively.

Reg11 - Prevention or reduction of exposure to asbestos.

Reg12 - Use of control measures.

Reg13 - Maintenance of control measures etc.

Reg14 - Provision of cleaning and protective clothing.

Reg15 - Arrangements to deal with accidents, incidents and emergencies.

Reg16 - Duty to prevent or reduce the spread of asbestos.

Reg17 - Cleanliness of premises and plant.

Reg18 - Designated areas.

Reg19 - Air monitoring.

Reg20 - Standards for air testing and site clearance certification.

Reg21 - Standards for analysis.

Reg22 Health records and medical surveillance.

Reg23 - Washing and changing facilities.

Reg24 - Storage, distribution and labelling of raw asbestos and asbestos waste.

Then you continue into Part 3 'Prohibitions and Related Provisions (which I will omit except for Reg 37).

Reg37 - Defence: "Subject to Regulation 21 of the Management of Health and Safety at Work Regulations 1999, in any proceedings for an offence consisting of contravention of Part 2 of these Regulations it shall be a defence for any person to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of that offence."

If you read these Regulations you will note that the word 'shall' keeps recurring; shall is an absolute term there are no 'ifs or buts' not complying to these Regulations is not an option.

Regards
Granville

Posted By Davelfc
Dave,

I have just read your thread.

I can fully understand your frustration.

I cannot understand how an inspector can issue a PN for non RA of a task that is not in operation?

This is a strong case for appeal, if they have given you notice for the access for the removal of the roof sheets, then it sounds to me you have all your ducks in a row for the hazardous work you are curently conducting.

I an many others can only sympathise with you especially if the 21 days have expired for appeal.

This sounds like an ovr zealous inspector, who prefers the big stick approach rather than working with contractors, and don't understand the commercial implications. Safety has to come first but even that as in this case seems to come in stages if you are going to adequately achieve the safe system of works. If as it seem this is future works then, you still had more thasn enough time to suitably Risk assess the task once other preliminary works had been achieved to fully apprciate your plan, it sounds like you where doing it the safest way practcial by removing the material to access from beneath which says to me you where going to use suitable access equipment and a safe system of works.

if you where reckless as some contractors are then you would have simply removed the sheets from above, with greater hazards and consequently more potential to cause injury.

My perecpetion form the inormation given is that you have been unfairly treated and as i said before I sympathise.

All you can do if you have missed your appeal date is say what can we learn from this as an organisation.

I had recent task working at height in a more serious situation, in the Risk Assessment, and MS we simply put odwn that we crash decked the areas out with scaffold in a stepped stageing and edge protected the outer envelpoe of the building this was then inspected by a competent person, then I wnent and further inspected the area prior to work started, which was recorded in the original MS as a control procedure, to ensure that we had denied the areas we could not access but also to looka t potential for falling objetcs etc.

What I am trying to say is, anything you know you need to review or re-assess in the future, as second stage works, record this in your original assessment as future works to be re-assessed, and bullet point the tasks to be assessed when it is practical to do so. Easy to say in hind sight.

As with some of the previous posts, and if i was in your position I would be agrieved and actually would have ofrced the issue with HSE to tibunal, as some inspectors may not be as experienced and practical as they may be in a few years time, and sometimes a challenge helps them with their practical development and system awarenss to processes, its very simple to inspect and see a problem, in this case there ought to have been some dialogue, and chance for the inspector say I would like to see how you do this when you get to that stage please inform me and if I have time in my extremely busy schedule then I will return, I am sure you would have had the most approriate measures in place, and everyone would have been happy with their days work and smiling on the way home.

I have lot of respect for the enforcing authorities and some a very good at their job and very practical, but as always in any walk of life some are still developing, and gaining experience.
Sympathies
Dave