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CDM and work at height regs to be reviewed and tower crane regs revoked

In March 2011 Employment Minister Chris Grayling announced that risk management specialist Professor Ragnar E Löfstedt would chair a review of all health and safety regulation, with a view to “simplifying the rules and easing the unnecessary burdens on business”. The Professor has now published his report: Reclaiming health and safety for all: An independent review of health and safety legislation.

The report contains what are described as “recommendations that will reduce requirements on business where they do not lead to improved health and safety outcomes, or remove pressures on business to go beyond what the regulations require” . The recommendations are to be delivered by April 2015 with earlier target dates for some of them.

Government accepts the report findings

The Government will begin an immediate consultation on the abolition of “large numbers” of health and safety regulations.

From 1 January 2012 a new ‘challenge panel’ will allow businesses to get the decisions of health and safety inspectors overturned immediately if they have got it wrong. Minister for Employment Chris Grayling said:

“By accepting the recommendations of Professor Löfstedt we are putting common sense back at the heart of health and safety. Our reforms will root out needless bureaucracy and be a significant boost to the million self employed people who will be moved out of health and safety regulation altogether.”

The key recommendations and additional recommendations are reproduced verbatim below.

HSE welcomes the report findings

In welcoming publication of the Lofstedt review, Judith Hackitt, the Chair of HSE, said:

“Professor Lofstedt’s insightful report will go a long way to refocusing health and safety in Great Britain on those things that matter – supporting those who want to do the right thing and reducing rates of work-related death, injury and ill health.”

HSE said it would meet the timetable set by the Government for implementing those recommendations for which it was responsible.

Report demands evaluation of CDM 2007 effectiveness

The review reports that a number of consultees expressed concerns about the way the CDM Regulations 2007 were working in practice. The report states:

“A recent review of the impact of CDM 2007 reported to the Construction Industry Advisory Committee in July 2011. It concluded that the regulations were meeting the objectives of the 2007 changes with respect to improving clarity and the management of health and safety within the construction industry. The research did, however, note that there remain concerns, echoed by a number of those who replied to the call for evidence and the RTC, over the effectiveness of the regulations in minimising bureaucracy, bringing about integrated teams and addressing issues of competence.

The requirement for competence of all duty holders seems to go further than required by the TCMSD …… with a proliferation of accreditation schemes and competency qualifications that are costly for industry, particularly small firms, and which have questionable benefits.

Some hold the view that the ACoP is over complicated (though some find it helpful) and some question its relevance especially with respect to small employers/renovation work where most of the improvements on the regulatory framework and revision of guidance needs to be undertaken.

I recommend that HSE should complete the evaluation of the effectiveness of CDM 2007 and the associated ACoP by April 2012 to ensure there is a clearer expression of duties, a reduction of bureaucracy and appropriate guidance for small projects.

Comment

Our immediate comments from a construction sector perspective are:

• very few ‘self-employed’ persons working in construction carry out activities which “pose no potential risk of harm to others” i.e. the public or co-workers. Those that do are already left to their own devices by HSE. The impact of this change will be minimal;
• revoking the regulations on head protection will have no impact on the ‘burden’ of health and safety;
• the Notification of Tower Crane Regulations were enacted as much to boost public ‘confidence’ rather than reduce actual ‘risk’. If revoked, the first tower crane incident involving a crane unknown to HSE will generate considerable public concern;
• the package of HSE and Industry guidance for CDM 2007 is already seen by many to be clear and helpful. Further iteration of the package may provoke more discussion and uncertainty rather than greater clarity;
• HSE has only recently improved the construction web pages for builders working on small projects although better quality one page information sheets might help SMEs and micro businesses;
• the proposals to give HSE formal ‘authority’ over determining Local Authority inspection priortities only formalises the current de facto position; and
• reviewing the work at height regulations is unlikely to ensure people do not go “beyond what is either proportionate or beyond what the legislation was originally intended to cover.”

The report is weak on both content and analysis. The impact on construction project teams is likely to be minimal.

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KEY RECOMMENDATIONS

1. Self-Employed Exemption – exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others.
2. Approved Codes– HSE should review all its ACoPs. The initial phase of the review should be completed by June 2012 so businesses have certainty about what is planned and when changes can be anticipated.
3. Consolidation of Regulations – HSE undertakes a programme of sector-specific consolidations to be completed by April 2015.
4. HSE to direct Local Authorities – that legislation is changed to give HSE the authority to direct all local authority health and safety inspection and enforcement activity, in order to ensure that it is consistent and targeted towards the most risky workplaces.
5. Civil Liability– that the original intention of the pre-action protocol standard disclosure list is clarified and restated and that regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with ‘reasonably practicable’ where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of those provisions.

Further recommendations on specific regulations

The following regulations should be revoked:

• The Notification of Tower Cranes Regulations 2010 and the Notification of Conventional Tower Cranes (Amendment) Regulations 2010 – because the Impact Assessment was not able to identify any quantifiable benefits to health and safety outcomes.
• The Celluloid and Cinematograph Film Act 1922 (Exemptions) Regulations 1980 and the Celluloid and Cinematograph Film Act 1922 (Repeals and Modifications) Regulations 1974 that are no longer needed to control health and safety risks.
• The Construction (Head Protection) Regulations 1989 that duplicate responsibilities set out in the later Personal Protective Equipment at Work Regulations 1992.

The following regulations should be amended, clarified or reviewed:

• The Health and Safety (First Aid) Regulations 1981 should be amended to remove the requirement for HSE to approve the training and qualifications of appointed first-aid personnel. This requirement seems to have little justification provided the training meets a certain standard.
• The Construction (Design and Management) Regulations 2007 and the associated ACoP evaluation should be completed by April 2012 to ensure there is a clearer expression of duties, a reduction of bureaucracy and appropriate guidance for small projects.
• The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) and its associated guidance should be amended by the end of 2013 to provide clarity for businesses on how to comply with the requirements.
• The requirement for portable appliance testing should be further clarified (including through changes to the wording of the Electricity at Work Regulations 1989 if necessary) by April 2012 to stop over-compliance and ensure that these messages reach all appropriate stakeholder groups.
• The Work at Height Regulations 2005 and the associated guidance should be reviewed by April 2013 to ensure that they do not lead to people going beyond what is either proportionate or beyond what the legislation was originally intended to cover.

Clarifying regulatory requirements

In addition to the sector-specific consolidation exercise I recommend that:

• HSE commissions research by January 2012 to help decide if the core set of health and safety regulations could be consolidated in such a way that would provide clarity and savings for businesses;
• HSE should redesign the information on its website to distinguish between the regulations that impose specific duties on businesses and those that define ‘administrative requirements’ or revoke/amend earlier regulations;
• HSE should also continue to help businesses understand what is ‘reasonably practicable’ for specific activities where the evidence demonstrates that they need further advice to comply with the law in a proportionate way.

Application of regulatory requirements

In addition to giving HSE the authority to direct local authority health and safety inspection and enforcement activity I also recommend that:

• HSE should also be the Primary Authority for multi-site national organisations; and that
• all those involved should work together with the aim of commencing health and safety prosecutions within three years of an incident occurring.

Improving the understanding of risk

In order to stimulate a wider debate about risk in society and how it should be regulated, I recommend that:

• the House of Lords be invited to set up a Select Committee on risk or establish a sub-committee of the Science and Technology Committee to consider how to engage society in a discussion about risk; and
• in parallel, the Government asks the Chief Scientific Adviser to convene an expert group aimed at addressing the same challenge. The outcomes of such work need to be disseminated widely across Parliament, policy makers, academics and the public.

This article was posted on 28th November 2011