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peter gotch  
#1 Posted : 22 April 2021 14:11:39(UTC)
Rank: Super forum user
peter gotch

All

The car park thread has been diverted on to a topic that may be worth discussing in its own right.

Just because an HSE or local authority Inspector serves a Prohibition or Improvement Notice, or more recently one of those Fee For Intervention Notices of Contravention doesn't mean that the recipient has to take it on the chin.

May be perfectly good reasons for doing so, including that the recipient is non-compliant but also for strategic reasons such as avoiding hassle.

But it is ALWAYS worth looking hard at the Notice and considering its merits and whether to challenge either Notice or the FFI price tag attached to it (priced at a very high hourly rate, whatever the rank of the person serving it).

This is particularly so when there is no clear benchmark as to what the law requires in practice, eg. an industry standard.

Before serving any Notice, an Inspector has to be of the "opinion" that there is a breach of legislation or in the case of a Prohibition Notice that there is imminent risk of serious personal injury.

Like anyone their opinion may not be valid, and particularly so when it comes to any legislative requirement that is qualified e.g. to do what is "reasonably practicable". 

In the car park thread, Chris' MD made a decision to take the hit and do what the Inspector wanted, apparently with little, if any, guidance from the Inspector as to what might constitute sufficient separation between vehicles and pedestrians, with costs in terms of both £££ of capital to make changes and resultant reduced car parking capacity, resulting in people parking on the public highway leading in Chris' opinion (which might be just as valid as that of the Inspector, or MORE valid) in an increase in overall risk.

I have the perception that the overall quality of HSE Inspectors has deteriorated as deep cuts to HSE's budget have continued year on year, particularly since 2010, which means that the "opinion" of a current Inspector may be less likely to be valid than in days past.

There will always be scales of levels of competence of Inspectors both overall and in relation to specific sectors or topics, but perhaps those  scales are at a level lower than they used to be.

When I did 4 years inspecting Construction and Fairgrounds my Principal Inspector gave me some sound advice that remains relevant. His advice was that if I had any doubts about serving a Notice, particularly one that would immediately stop a job, I should opt for prosecution instead. That way if my opinion was wrong, there was no risk that HSE could be hit by Judicial Review with a claim for all the costs of my decision to instruct the recipient of a Notice to stop work. 

It's somewhat different with most Notices served by HSE and local authority Inspectors as there is 21 days to appeal and the Notice is suspended until a tribunal has made a decision as to whether to confirm it, amend it, or, of course find in favour of the Appellant. This suspension does NOT apply to an Immediate Prohibition Notices, so that the costs sustained by a successful Appllant could escalate significantly whilst they await the outcome of their Appeal.

Inspectors are not used to having their Notices challenged - it happens SO rarely. This is likely to produce a climate in which some get rather complacent!

thanks 8 users thanked peter gotch for this useful post.
A Kurdziel on 22/04/2021(UTC), Roundtuit on 22/04/2021(UTC), RVThompson on 23/04/2021(UTC), chris42 on 23/04/2021(UTC), Yossarian on 23/04/2021(UTC), aud on 26/04/2021(UTC), stevedm on 27/04/2021(UTC), CptBeaky on 27/04/2021(UTC)
Roundtuit  
#2 Posted : 22 April 2021 16:52:14(UTC)
Rank: Super forum user
Roundtuit

Love the line on "opinion" this being the nebulous grey we find ourselves wading through.

Driving without due care or wanton and reckless driving are also opinion.

Roundtuit  
#3 Posted : 22 April 2021 16:52:14(UTC)
Rank: Super forum user
Roundtuit

Love the line on "opinion" this being the nebulous grey we find ourselves wading through.

Driving without due care or wanton and reckless driving are also opinion.

aud  
#4 Posted : 26 April 2021 19:04:37(UTC)
Rank: Super forum user
aud

Interesting Peter.

Some years back the organisation I worked in was served a couple of INs around (personal) hoists.

First and only time - I was itching to appeal, thought we had grounds and a lawyer working for us thought the act of appealing just in itself could overturn the Notices. As these are heard at Employment Tribunals, with a 'layperson' panel, I thought it could have got a positive outcome.

However my own employer legal people were risk averse and although appeal costs are low, (pre FFI too) they didn't want to upset the inspector. Shame - win or lose it would have been a great CPD add for me!

thanks 1 user thanked aud for this useful post.
A Kurdziel on 27/04/2021(UTC)
peter gotch  
#5 Posted : 27 April 2021 11:41:40(UTC)
Rank: Super forum user
peter gotch

Aud, yes it almost certainly would have been "great CPD" for you.

Good that some understand what CPD is supposed to be about.

Can fully understand the reluctance to challenge the Inspector. When we went through the experience I made sure that the subsequent meeting with HSE was NOT at the design office involved in the project associated with the incident (with a good excuse in terms of the logistics of those attending getting there). Didn't want an Inspector suddenly deciding to trawl through our project files, in an attempt at revenge at being caught out for not having their ducks in a row when they served the Notices.

thanks 1 user thanked peter gotch for this useful post.
A Kurdziel on 27/04/2021(UTC)
Mark.Poole  
#6 Posted : 29 April 2021 15:14:48(UTC)
Rank: New forum user
Mark.Poole

An interesting post this as I have just had an inspection this week and have been issued an Improvement Notice relating to a breach of Work at Height Regulations 2005.

We have a commercial workshops on site (we are a transport & logisctics company), in the workshops are inspection pits, the HSE Inspector did not like the fact there were no "pit covers" and so issued the IN.

My mitigations to him were this:

  • There are only three members of staff working in there, they are fully trained thus relying on training, competence and knowledge.
  • All other persons (visitors etc) are not permited entry and if they are they do not go close to the pits (there are walkways and segregation)
  • The pits spend 85% of the time covered by a vehicle or trailer, it was a rare day of the inspection when they were both currently uncovered (in transition from one vehicle to another).
  • When not in use they are normall cordoned off by posts with plastic chains (sadly on this occasion they were not in place).
  • There are plent of signs warning of the hazard

I noticed your post mentions "Opinion" because thats exactly what happened, the inspector stated that in his opinion the posts and chains only served to warn of a hazard but did not ensure a person could not fall down the pit, his reasoning was that if a person tripped they would fall though the chains taking them with them into the pit, this means we did not comply, there was still a risk to our employees.

I tried to argue that with all the mitigating controls in place surely this falls within the relms of "Where Reasonably Practicable" insomuch as the controls had lowered the risk, the inspector did not agree.

I can see his reasoning, the cost of covering the pits has been a couple of hundred pounds, compare that to a person falling into the pit sustaining serious injury or death and its a no brainer, so with that in mind I wonder about your thoughts, how far or how much is Reasonably Practicable?

chris42  
#7 Posted : 29 April 2021 15:56:28(UTC)
Rank: Super forum user
chris42

So you are doing as shown in HSG 261, page 53.

They do mention covers, but they say where practical a few pages before that.

If you have near constant changing of vehicles you could claim it is not practical.

Of course discussing your opinion verse their opinion will cost you £154 per hour.

Best of luck 

Chris

oops apparently now at £160 / hour as of 01/04/21

Edited by user 29 April 2021 16:01:25(UTC)  | Reason: price increase

Roundtuit  
#8 Posted : 29 April 2021 16:08:56(UTC)
Rank: Super forum user
Roundtuit

Then you end up with the manual handling injury lifting covers to and fro. Our pit used to have railway sleeper sections as the cover when not in use "just in case" the driver wasnt watching their steering in the rest of the garage. Thankfully the pit was only used a couple of days per month.

Roundtuit  
#9 Posted : 29 April 2021 16:08:56(UTC)
Rank: Super forum user
Roundtuit

Then you end up with the manual handling injury lifting covers to and fro. Our pit used to have railway sleeper sections as the cover when not in use "just in case" the driver wasnt watching their steering in the rest of the garage. Thankfully the pit was only used a couple of days per month.

peter gotch  
#10 Posted : 29 April 2021 18:02:35(UTC)
Rank: Super forum user
peter gotch

It costs the recipient £160 an hour if they accept whatever the Inspector says or if they lose on appeal.

If they win on appeal they should demand lots of money back!

So, the inspection pit. £200 to cover the pits. Nothing.

But assessing what is "reasonably practicable" requires consideration of "time, money and effort" and the net benefit in terms of risk reduction (or increase?).

Each time a person moves the boards covering the pit into place or removes them to enable work in the pit, they are necessarily at risk of falling in. Add in other risks of doing that job such as the manual handling suggested and the net benefit in terms of risk reduction is debatable. Add in the time (= money, repeatedly) to do this and the Inspector's opinion might well be incorrect.

With a well controlled environment with a limited number of people working near the pit, the risk of falling in could well increase if covers are in place. Possibly the likely consequence also increases. Someone accidentally steps over the edge - they probably land on their feet. In contrast, if someone is bending over to place or remove a board, they have a good chance of hitting the bottom head first, thence with overall greater average consequence. 

The test of the Inspector's opinion could be illustrated by a minor, short duration roof repair on a four storey building with a sloping roof with direct access from the top floor. Of course, a roofer could fall perhaps 20m and the consequences might likely be very severe or fatal. But against that you have to assess the risks of providing full height roof edge protection and taking it down again. Erecting and dismantling scaffolding is a well known high risk activity (even when done by the rule book) - so you put more people at risk for longer periods. Ergo the risk may actually be increased for all but the roofer.

As has been indicated earlier, HSE's own guidance is qualified. Inspectors should NOT take one page of HSE guidance out of context.

chris42  
#11 Posted : 30 April 2021 20:04:01(UTC)
Rank: Super forum user
chris42

The pit covers in HSG261 look like they would cost a lot more than £200, in fact I would think it closer if you added a zero to the right hand end of that number.

What the inspector is suggesting is no small thing in my view.

Chris

peter gotch  
#12 Posted : 01 May 2021 12:59:03(UTC)
Rank: Super forum user
peter gotch

Hi Chris 

Mark indicated that the cost of the covers was "a couple of hundred pounds", but with or without a zero on the end of that, this is a minor expense compared to the hassle.

One of the key judgments on what is "reasonably practicable" talks about "time, money and effort".

From my perspective, in this scenario the "time [and] effort" are likely to be much more relevant than the "...money...", though of course the £200 or £2000 does come in to the overall equation.

Each and every occasion, someone or someones has to remove the cover and then replace it, this takes time/effort (and thence money) whilst also presenting risks. 

Once did an assessment of whether a proposed safety investment was "reasonably practicable" considering the different judgments in Edwards v NCB and Marshall v Gotham, the latter being less generous from a regulator's perspective [i.e. making it easier for the duty holder to show that something is NOT reasonably practicable].

Either way the proposed expenditure was clearly disproporportionate by reference to HSE guidance ('R2P2'), even before I needed to consider attempting to apply a value for loss of heritage and amenity.

One of the problems from the duty holder's perspective is that the burden of proof lies with them rather than the Inspector to prove that something was NOT reasonably practicable (on the balance of the evidence). 

So, the Inspector can afford to be a little bit lazy and simply provide their opinion, without the need to substantiate this.

From a legislator's point of view this is probably the right way to draft the legislation in terms of onus of proof. In most scenarios it would be almost impossible for the Inspector to prove that something IS reasonably practicable - we simply do not have sufficient statistical data.

As example, it used to be the case that about 10 roofers fell to their deaths in the UK each year. We have a reasonable idea of how many people have the job title "roofer", so you could work out how roughly how many roofer hours are worked per year in the UK, and thence calculate the probability of a fatal accident per year (in R2P2 terms the Individual Risk of Death) involving a roofer falling as say 6 x 10-6 (it might well be significantly higher!). But that would be very simplistic as many of the accidents that happen are to people whose job titles are NOT "roofer". So that 6 x 10-6 might actually be 2 or 3 x 10-6 and would vary VERY substantially according to the nature of the work being done - duration, weather, flat or sloping (and if sloping, how steep), roof surface, the work to be done, precautions etc etc etc.

If you attempted the same exercise looking at the likelihood of someone falling into a pit and being killed the sums would be FAR more difficult to work out.

chris42  
#13 Posted : 04 May 2021 08:26:30(UTC)
Rank: Super forum user
chris42

Yes Peter, I agree the initial cost is only one small part, the ongoing issues will be more of a problem. The possibility of someone kneeling or squatting near the pit edge to deploy a cover being just one as you mention the other issues. My comment about cost was against both your and the OP original post.

However, an employer has access to even less statistical data, so they have even more of a problem, to prove what they are doing IS reasonably practical. Then we are back to opinion. This issue has been discussed and with the information presented it would appear you an ex-inspector also seem to agree it is not necessarily reasonably practical and the IN should not have been served. From the OP they seem to have listed the appropriate controls and obviously had the discussion about reasonably practicable but got nowhere.

One thing not in their favour was the employees were not using the said controls on the day (and possibly never).

It would be interesting if the OP is willing is to find out if they will just comply or appeal and the outcome of that. I assume any appeal with be reviewed by someone else in the HSE.

To be consistent I assume that the companies where they took the photos to go in the HSE guidance were also served an IN ????

Chris

Dazzling Puddock  
#14 Posted : 04 May 2021 13:44:00(UTC)
Rank: Forum user
Dazzling Puddock

Every pit cover I have ever worked with has been installed from inside the pit not above it!!

I think that, reading between the lines, that the inspector would not have been too bothered had the chains and posts been in place at the time of his visit, there is no use telling them that posts in chains are always used to keep others clear when they were not in place during the visit.

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