HSE’s recent announcement of its proposed Fee For Intervention scheme, (FFI), has brought into sharp focus the need for churches and voluntary organizations to pay greater attention to their management of health and safety.  An earlier post reported a recent case in which a PCC had been faced with fines and cost of £9,500 even after a strong mitigation plea, which resulted from an incident in which as self-employed person had been seriously injured.  The FFI scheme further increases these potential costs, to which must be added legal fees.

In addition to its Press Release, the HSE has published detailed Guidance and a 4-page summary ‘What you need to know’ on the operation of the scheme.  A copy of its Enforcement Management Model is also available.  The Guidance will be finalized in advance of the Regulations coming into effect for which the planned date is 1 October 2012.  The Health and Safety (Fees) Regulations 2012 to which the Guidance is directed were laid before Parliament on 28^th June under the negative resolution, and the HSE is planning for them to be effective in early October.  These are accompanied by a Regulatory Impact Assessment, (RIA) on the implications of implementing the scheme, and an Explanatory Note on the Regulations.

Analysis of the Regulations

Consultations on the scheme took place during 2011, and although a commencement date in April 2012 was planned, due to discussions on the technical details, implementation was changed to October.  An examination of the Consultation Document and RIA reveals that the scheme is aimed at business and industry, which is logical given that cost-recovery is its raison d’être.  Churches and voluntary organizations are a relatively small part of the HSE’s workload and, as such, of its expenditure.

However, it is clear from the Regulations and Guidance that organizations such as Oxfam, the Salvation Army and faith groups will fall within its ambit.  The elements relating to the payment are given in Regulation 23(a)&(b); and subject to certain conditions in Regulation 24, the fee is payable when three conditions are met:

• a person is contravening or has contravened one or more of the relevant statutory provisions for which the Executive is the enforcing authority; and
• an inspector is of the opinion that that person is doing so or has done so; and
•  [the inspector] notifies that person in writing of that opinion.

The last bullet is critical, since under Regulation 23(5):

• “an inspector of the opinion that a person is contravening or has contravened one or more of the relevant statutory provisions must have regard, when deciding whether to notify that person in writing of that opinion, to the guidance entitled “HSE 47 – Guidance on the application of Fee for Intervention” (1st edition) approved by the Executive on 11th June 2012” [emphasis added].

Currently the Guidance does not give the inspector any discretion regarding the payment of the Fee by churches and similar organizations, although certain other classes of person are excluded from the payment regime, i.e.

• persons in their capacity as an employee, (s24(7));and
• self-employed persons who did not expose any other person to risk, (s24(8));

Likewise, certain activities are excluded:

• in relation to certain activities involving genetic modification as defined in SI 2000/2831, (as amended), (s24(11&12));
• any contravention of the relevant statutory provisions which relates to any of the activities specified in paragraph 3(3) of Part 1 of Schedule 3to the Control of Substances Hazardous to Health Regulations,  (SI 2002/2677 as amended), (s24(13); and
• in relation to licensable work with asbestos, by a person who holds a licence to carry out work with asbestos, (as defined in S.I. 2012/6320,  (s24(14); and

In addition, s24(16) provides exemptions in relation to the Executive’s activities under the following provisions, as amended:

• Control of Major Accident Hazards Regulations, SI 1999/743;
• Genetically Modified Organisms (Contained Use) Regulations SI 2000/2831;
• Biocidal Products Regulations SI 2001/880; and
• Chemicals (Hazard Information and Packaging for Supply) Regulations SI 2009/716.

Finally, these particular Regulations will not apply to activities for which another regulator is the competent authority, [although it is government policy to extend the provisions to Local Authorities].

From the commencement of the Regulations, ‘Dutyholders’ found to be in material breach of HASAWA 1974 will be charged at £124 per hour for the time it takes HSE to identify and conclude its regulatory action, in relation to that material breach.

These costs will include associated office work, but where the Health and Safety Laboratory, (HSL), or third-party involvement is required, the actual costs of the work will be recovered.  The following estimates were included in the Consultation, [at 4.13.3], and were based upon an hourly rate of £133.  Although this rate has been revised down in the Guidance, it is unlikely to have a significant effect.

Comment

The Environment Agency has for some time operated a cost recovery scheme for Environmental Permitting, although it is quite different from FFI.  It is a risk-based, up-front charging scheme on companies, based upon their scoring within the scheme, i.e. it is applied post facto the basis of general environmental performance and infraction, and near misses.

Although the HSE scheme is focussed on businesses and industry, it is applicable to anyone with a duty under the Act.  However, these other groups have not been the focus of the consultation process, the RIA, or the 1^st Edition of the Guidance.  It is clear from the Consultation that the objective of the scheme is the implementation of Government policy on cost recovery, [para. 2.1.1] and to reduce the level of health and safety inspection by about one third, (i.e. 11,000 fewer inspections p.a.).

The absence of churches and similar organizations from the discussions to date suggests that these are likely to contribute little to resultant revenue stream.  It would therefore be appropriate if in the proposed revision of the Guidance, inspectors were permitted a degree of discretion in its implementation to these groups.

The FFI and the Church

Whilst there are a number of hazards within a church, the risks associated with these are generally low.  [A hazard is the potential of an activity, process or substance to cause harm; a risk is the likelihood of that activity, process or substance actually causing harm, (sometime qualified by an indication of the severity of that harm)].  Furthermore, although most activities within a church are ‘done right’, the associated documentation lags behind the practice, and different aspects of health and safety are often treated as a ‘one off’ with no overall policy or strategy.

Fortunately, the number of health and safety incidents for the church as a whole is very low, but this can lead complacency.  Churches tend to be diligent in their maintenance of CRB records and the associated checks, because it is in their interest to do so – and because they are very conscious of their moral duty to protect vulnerable people.  Health and Safety is no different.

Postscript

The more astute PCC members might suggest that there is no need for concern, since neither of the cases highlighted in the earlier post would be affected by the new Regulations: one was prosecuted by a Local Authority and the other involved a self-employed person.  This would be incorrect with regard to the latter, since it was not the actions of the self-employed person that gave rise to the prosecution, it was the PCC that pleaded guilty.

With regard to the “competent authority”, duties under HASAWA 1974 are split between local authorities, with routine issues relating to religious premises being dealt with by local authorities, and the ‘big, bad, and ugly’ activities by the HSE.  Of the recent cases involving churches reported in the Safety & Health Practitioner, the Official Magazine of the Institute of Occupational Health & Safety, all those relating to building work had been prosecuted by the HSE, and in most cases the contractor was found liable.