Fees For Intervention: better H&S data?

Ashford’s Richard Voke says FFI data capture could offer the industry an unexpected upside – insight into H&S trends

In September the HSE conducted a “targeted inspection initiative”, more colloquially known as an inspection blitz, the target being the refurbishing and general repair sector. The aims were:

• to increase awareness of HSE’s expectations of the industry
• to demonstrate that HSE will use the enforcement tools at its disposal
• to prevent immediate risk and bring about sustained improvements

The inspectors visited 2,607 sites and were particularly looking for issues in relation to falls from height; site good order; structural stability; asbestos; respirable silica; and welfare. 

The results showed that basic standards were not being met on 1,105 sites (42%); resulting in enforcement action being taken on 644 sites (24%) comprising 539 prohibition notices and 414 improvement notices.

The most common problems related to work at height, dust exposure and welfare. According to Heather Bryant, the HSE’s chief inspector of construction, these results were “disappointing”. 

A similar exercise carried out in February and March this year resulted in 18% of sites being issued with notices, which the then chief inspector of construction, Philip White, thought showed that “the majority of construction employers do take their responsibilities to their workers seriously”.

I suggest that the difference between the 18% in the spring and 24% in the autumn should not be regarded as too significant – the results were generated by different inspectors, in different areas, at different times of the year (even different chief inspectors). Perhaps the significant difference is in the way the results were perceived. 

First, it is interesting that fairly similar results were regarded in a negative way by Bryant in the autumn, but positively by White in the Spring – perhaps they are just different “glass half empty/full” type people. 

Second, the autumn exercise reported in terms of sites where “basic safety standards were not being met”, then providing a sub-category of 644 sites that had notices issued.  The spring report just covers the sites that had notices issued.

I also had a quick search of previous reports of construction “blitzes” (2007/08, 2009 and 2010) and found  that, like the spring 2013 exercise, there is only noting of sites that had notices served, no mention of the category of sites that were “falling below acceptable health and safety standards” as reported in autumn 2013. 

It is pure speculation, but this new development in HSE data recording may be a by-product of the Fees for Intervention scheme (FFI) introduced during October 2012. This requires the HSE to charge for its time while it deals with a “material health and safety breach” identified in a visit. 

Inspectors involved in the “blitz” may have carried out site visits in line with FFI categories and interventions, which could explain why sites are being publicised as “below acceptable standards” even when they are not issued with a prohibition or improvement notice, which was not the case in previous initiatives. The FFI system may not have been sufficiently embedded to have been worth considering in the spring exercise.

If the above is true, what does it mean? There will obviously be a greater degree of scrutiny and recording of all site visits to ensure that the FFI is monitored for fairness and transparency. Perhaps as a result there will be a more demanding, but consistent approach, to inspection to reduce possible appeals. This may in turn create greater pressure for improvements in health and safety in the construction sector. 

On the face of it these would be positive outcomes following the introduction of FFI. This counters the many negative responses that prevailed at the time of FFI implementation such as: constructors not inviting the HSE to site for advice for fear of being judged in breach and incurring FFI costs; and changing the role of the HSE from a proactive, objective resource for industry to a more reactive, punitive agency. 

FFI has not been universally welcomed from within the HSE, as it will generate closer scrutiny of the approach and competence of individual HSE inspectors – some worry that there will be a breakdown in trust between employers and the HSE, which will in turn reduce HSE’s effectiveness.

The above discussion is just one interesting aspect that has arisen out of the results of the recent autumn blitz. There are other issues that come to mind, such as:

• there is no mention of possible prosecutions as there has been in previous blitzes;
• on this and all previous similar exercises, there has been the lament that working at height has been a problem, yet these regulations have been recommended to be reviewed by the otherwise excellent (in my humble opinion) Lofstedt report; and
• what are the characteristics of the refurbishment sector that requires such close scrutiny?

These issues are beyond the scope of this article, but may be worth looking at in the future.

Richard Voke is a partner at Ashfords Solicitors and is the head of the firm’s business risk and regulation team. Prior to becoming a solicitor, he spent eight years in the HSE investigating accidents, specialising in the oil and energy sectors.