Delays in Statutory Inspections Due to Covid-19

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As a result of the UK ‘lockdown’ since the evening of 23rd March 2020, a number of businesses have been unable to arrange key mandated inspections for plant and machinery due to restrictions on movement.  This issue may also have had an impact in other areas too, including the 7 day inspection of scaffolding on building and refurbishment sites, and for inspections to test and treat bacteria levels in systems capable of producing contaminated water droplets such as air conditioning systems and cooling towers.  Legionella could become a particular issue with buildings temporarily out of use coupled with rising temperatures – and what we really don’t need right now of course is another wide scale pneumonia like infection spread by droplets.

In all areas where inspections are mandated, this is a critical issue.

The inspection issue is though particularly key for those subject to time critical Statutory Inspections by the Competent Person under the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER), Pressure Safety Systems Regulations 2000 (PSSR), the Work at Height Regulations 2005 (WAH) (for scaffolding), but also under the Provision and Use of Work Equipment Regulations 1998 (PUWER) and COSHH.

Statutory Inspections are a legal requirement and failure to meet the inspection requirement is a criminal offenceregardless of the reason for the delay. Over the next few months this is likely to be an escalating issue as more inspections will fall due, and authorised inspectors even when permitted to attend premises when lockdown ends, struggle to recover from the accumulating backlog.  To the extent that there is any latitude by regulators now with delay in inspections, that may dissipate faster than the backlog can be dealt with.  It is also for consideration that those Competent Persons are as susceptible to contracting COVID-19 as many others, which brings a threat to the resourcing of Statutory Inspections at the ground level.

Delay with time critical inspections creates three key issues:

  • Risk of failures in equipment overdue for inspection or rise in the levels of harmful bacteria , which could cause injury or other harm (e.g. to other plant and property particularly if pressurised equipment fails).
  • Risk of prosecution – the wording of relevant regulations is generally strict and allows no leeway for late inspections
  • Repudiation of Insurance claims – policies normally require current certification to be in place as a condition of breakdown cover and other policies

Led by Finch Consulting’s Richard Hoyle, a senior consultant with particular experience in mechanical and materials engineering inspection and failure, PSSR, LOLER and PUWER, with Chartered Environmentalist Clare Fowell who has expertise in environmental management, and Sue Dearden, specialist health and safety lawyer, Finch Consulting’s experts together consider what the implications are of delayed inspection, and advise on practical steps that can be taken to mitigate these risks during the COVID-19 crisis.

What is the likely approach of the regulators to delays with Statutory Inspections?

This is an area developing quite quickly as an understanding of the particular issues catches up with those mandating the restrictions which they appreciate to late are having an adverse impact on the risks to health and safety.

The vast majority of plant and machinery inspections are carried out by independent organisations many of which (for plant inspections) are affiliated to insurers.

A key feature of regulated plant, and of some inspections in other regulated areas, is that it must be inspected within a specific period set by the relevant regulation or by a Written Scheme of Examination (WSE).  That periodicity must not be allowed to overrun.  If it does, there is a material breach of the law, which could lead to the equipment being shut down, or the breach prosecuted by the relevant enforcing authority.  Moreover, it could compromise the safety of people.

This can also have ramifications for insurance if the plant item is out of compliance with the Regulatory framework.

The HSE has so far been of little help to business on this issue and has not suggested any latitude with late inspections, in stark contrast for example to the Government’s more pragmatic approach on MOTs for motor vehicles where a six month exemption from testing has been announced.

On 16th March 2020 the Safety Federation (SAFed)  issued a statement[1] intended for its members, based on advice from the HSE specifically on the COVID-19 issue and its impact on inspection of lifting equipment.  This made clear that the HSE position is that lifting equipment should not be used until it has been examined by a Competent Person; that if there are shortages in Competent Persons they should prioritise premises where the most vulnerable are located (such as hospitals) and reminding that,

“Most premises have more than one lift so some redundancy is already built in should a lift have to be taken out of use having gone beyond its examination date until an engineer is available to visit.

“There is a higher risk of lifting equipment failure should it not be examined as per the six-month schedule and dutyholders are expected to take all reasonably practicable steps to make sure their equipment complies with the law. HSE will keep the situation under review and does not have any plans to issue any exemptions to LOLER requirements.”  [Emphasis added].

From Ireland’s HSA, a more practical approach has been adopted so far, to at least allow for the possibility that inspections might not actually be possible, and whilst it made clear no derogation from duty was being considered, it recommended:

“A pragmatic approach should be used and entering sites to conduct inspections should be following controlled circumstances, considering the health perspective of those conducting the examinations.  For example, examination companies should consider their workforce safety from a health point of view, just as clients are doing. This could be done by preparing a Risk Assessment or adopting a company approach to ensure protection of workforce health considering the risks posed in the environment in which the examinations will take place.

If the examination of a piece of equipment is overdue, the responsibility is with the client and a pragmatic approach should be adopted.”

On 19th March 2020, Government Guidance was published on what was considered to be a ‘Critical Sector’ [2].   This made no mention of the Statutory Inspection bodies although clearly some of their inspections would support critical sectors.

On the 20th March 2020, SAFed, issued a statement [3] suggesting that those carrying out Statutory Inspections should consider themselves key workers:

SAFed Member Companies provide statutory examinations and inspection services to national legislation standards, to ensure the safety of machinery, plant and equipment, and the health and

welfare of operatives, personnel and the public. Therefore, we consider the Inspection and Conformity

industry, and our members as listed at the end of this Brief, to be within the essential public services.

The self-identification by SAFed member companies as key/critical workers is justified as follows:

– SAFed has consulted with the HSE and it has been confirmed that there is no derogation from law (relaxation of regulation) and so the examinations and inspections are to be completed as per schedule. This work is conducted by our member companies.

 – The continued operation of the Engineering Inspection, Testing and Certification Industry is essential to ensure the safety of, as an example, health care settings, as well as any continued activities of UK PLC, and the continued compliance of these industries with law.

 – The industries listed considered to be essential within the Government guidelines and supported by SAFed members in their regulatory duties are as follows (not an exhaustive list):

  • Health & social care
  • Education & childcare
  • Key public services
  • Local & national
  • government
  • Food & other necessary goods
  • Public safety & national security
  • Utilities, communication & financial services
  • Transport

 SAFed member companies will continue to seek formal declaration as key workers, and whilst this confirmation is sought are self-identifying to ensure the ongoing safe operation and compliance as required by the HSE, of the essential sectors as defined by the Government.”

 On 24 March 2020, the HSE responded to a further letter from SAFed seeking clarification of a number of outstanding issues.  This reconfirmed the statutory duties to maintain work equipment and carry out thorough examinations, Written Schemes of Examination and Statutory Inspections.  Whilst acknowledging that under certain circumstances some legislation does allow for postponement of inspection, even where that was an option, it added,  “It remains the duty holders responsibility to ensure that the equipment is safe to use”.

The HSE continued, “At the current time, HSE is not considering issuing exemptions or relaxation of these requirements, but we recognise that this is a fluid situation and the position is constantly under review

Within the statement was clarification from the Department for Business, Energy and Industrial Strategy (BEIS), which designated a list of inspection providers that were to be considered as ‘Key Workers’ but with a warning that all activity should be in keeping with Public Health England (PHE) guidance. There was no reference to Public Health Scotland or Public Health Wales.

Without any moratorium from the regulators, currently the position remains that delay of a mandated inspection is a potentially actionable breach of the regulations.

That said, even before current issues, overdue inspections were (are) commonplace within the inspection provider industry.  There are more items of plant and equipment in the UK and Eire that come under the Statutory Inspection Regulations than there are Engineer Surveyors/Competent Persons to complete the required inspection manhours on time every time. The HSE historically has seemed to recognise this industry wide issue but still has power to enforce a breach in the Regulations should there be lateness in an inspection.  The requirement for the inspections is strict.

Provided however that:

  • Delay in inspection is in spite of best endeavours to arrange it,
  • Active and adequate steps are taken to mitigate the risk that arises from the delay,
  • It can be shown that continued use of the equipment is for essential work under Government guidelines (and bear in mind that the definition of essential work has shifted since 24th March and continues to move almost daily), and
  • Evidence is retained of those steps,

Finch experts feel that the risk of prosecution (and certainly of conviction) is low if inspection has to be deferred but emphasise that there is absolutely no room for complacency.   Because of accruing backlogs deferral is likely to be an issue for some time after lockdown ends.   Any tolerance of a strict breach now is less likely to continue post lockdown when in practical terms inspections may still be delayed.

If failures to inspect and test for legionella allow the escape of contaminated droplets and infection, that has the potential to be even more serious than most plant failures.  Many will remember the 2002 Barrow in Furness outbreak originating from an air conditioning unit on top of the council owned arts and leisure facility in the town which became contaminated when the contract for testing and treating the water in the system was cancelled.  Seven people died and 180 people suffered ill health as a result.  The council, and the architect who made the poor decision on the contract were both prosecuted – the architect facing manslaughter charges for the deaths (though both were eventually convicted only on the HSWA charges).  Regulators are unlikely to be tolerant of any inspection delays that lead to legionella contamination and all organisations responsible for any equipment that might cause spread of the disease should be considering urgently how they can meet their obligations under the Control of Substances Hazardous to Health Regulations 2002 (COSHH) and the ACOP L8 as the COVID-19 situation develops and changes, and ensuring contingency plans are in place.

Can inspections simply be deferred until the next available date post lockdown?

Deferral without taking further steps to mitigate risk is not advised.

As far as plant and equipment is concerned, you minimise your risk of prosecution for breach and help to ensure the ongoing safety of your staff and others if additional steps are taken to mitigate the risk engendered by delays in inspection.

Breach might still be an issue for your insurers and Finch recommends that you proactively consider this issue with your broker/insurer to agree the sufficiency of your proposed additional measures, and to agree that your policy will not be voided by reason of delay due to the unavailability of a Competent Person because of COVID-19 control measures.

You might also consider informing the HSE of your position and what you are doing about it.  You are less likely to be subjected to enforcement action if they have been informed of the situation and taken no issue with your proposals at the time.  The grim reality at present is that the HSE is so overstretched it is at present currently only generally responding to reports of fatalities. However, this should not breed complacency with duty holders.

As far as legionella is concerned, delay is simply not a viable option because of the numbers who might be infected with the potential risk of death.  At the very least, if you have equipment that might generate contaminated droplets, you should be putting in place a contingency plan to ensure the legislative requirements can be met as the situation across the country evolves.

What mitigating steps could be considered?

Do not underestimate the seriousness of a delayed plant and equipment inspection. Statutory Inspection Engineers/Competent Persons find thousands of ‘serious defects’ of machinery and equipment particularly under PSSR and LOLER thorough examinations every year. These serious defects are reportable to the appropriate Enforcement Authority as being a danger to life and limb.  Under LOLER, forklift trucks/telescopic handlers and lifting accessories usually command the higher proportion of serious defects followed by passenger and goods lifts. Deterioration and failure of pressure equipment can also have devastating consequences for those nearby and for the premises where they are located so identifying and remedying those serious defects is clearly crucial.  The identification of less severe defects can also prevent them from escalating to a serious defect.

The first control in the circumstances must be that plant and machinery which has not had its mandated inspection and is not required for essential services, should be placed out of service until the overdue inspection has been carried out.

Where, however, the equipment is needed for essential services, then a specific risk assessment of the equipment, with input from engineers familiar with the equipment and from those who operate the equipment, should consider what might fail and with what potential consequences (who, what and how might a failure impact and how might that risk be eliminated or managed).

Ways to mitigate the additional risks identified in your risk assessment are particularly important.  They might include additional checks to be made (with a prescribed frequency – e.g. daily or at the beginning of each new shift), parts pro-actively rather than reactively being replaced, and additional maintenance requirements.   Explain in the risk assessment why it is being carried out, for how long the measures will continue, and ensure that the continued validity of the risk assessment is reviewed at least weekly

Finch engineers experienced with plant and machinery in a range of industries are available if independent technical input is needed to this risk assessment process.

Since delay in relation to legionella is not an option, if a testing company you use is no longer able to visit your site and you are reliant on their services, then request emergency equipment from the testing company to enable legionella testing to continue along with online training on how to undertake the training.

Inspections where a Competent Person is available

If a Competent Person/examiner is available to visit and undertake any of the inspections required, the relevant duty holder (plant user/owner) has an obligation to ensure  that the inspection takes place, that the plant is made available for inspection and it is accessible/prepared for examination.

The examiner may be carrying Covid-19 and employers have general duties under Sections 2 and 3 of the Health and Safety at Work etc Act 1974 (HSWA) to take reasonably practicable steps to avoid putting staff and others at risk of injury. This duty extends to protecting the visiting examiner too.

The visit needs careful thought and risk management to ensure that social distancing can be maintained that strict hygiene rules are followed.  Follow the government’s guidelines for current advice to minimise risk of contamination including, so far as possible, isolating the area where the examiner is to work from others, and enforcing recommended distancing from the examiner throughout the visit.

Where does this leave inspections and compliance under the Regulations? 

Blurred edges in communication during COVID-19 briefs has caught out some major providers of Statutory Inspections, and information on what the duty holder must do in these circumstances is not readily available from the HSE.  Instead it is being cascaded by other organisations (SAFed for one),  in a ‘closed group’ and this takes time to disseminate.  Savvy duty holders will be aware of the issue, but our experience is that the knowledge in this area often lacks critical insight into how the inspection industry operates.

The HSE appears both committed to upholding the Regulations, in particular the rigour in ensuring that inspection periodicities are adhered to, but so far seems non-committal on the items that are unable to be reached for inspection or where inspections cannot be resourced by the providers.  Either way the onus is put squarely on the duty holder to ensure that the equipment is safe to use.

Don’t ignore the consequences of late inspections.  For businesses which have not yet faced a delay in a Statutory Inspection and those in temporary hibernation who are not yet having to face the issue as equipment is not currently being used, this period may be an opportunity.  It is an opportunity to get a better handle on Statutory Inspections going forwards, to review your arrangements which ensure you meet your obligations, and to check that you have a robust planning strategy in place to ensure that deadlines are always met.

It is also an opportunity to consider what additional records should be kept in order for each piece of machinery and plant such as historical maintenance logs, location of WSEs (also whether they are up to date), and planning for inspection due dates to ensure that full compliance can always be achieved.  If the next required inspection cannot take place, then at least the documents are in situ in order to conduct a risk assessment on the suitability of continued safe use for an interim period.  If delay is likely, there is no reason not to start considering the risk assessment now.

On the environmental side, there has been no national statement from either the Environment Agency (EA) or Natural Resources Wales (NRW) regarding how they will approach a lack of monitoring by an environmental permit holder or a lack of access to a  site for the regulator for permit visits.

However, EA permit regulatory officers are writing to permit holders to understand what their contingency plans “may mean for your permitted activities and any perceived risks you can foresee for continuing environmental protection or compliance with your Environmental Permit”.  The EA is also working on COVID-19 Regulatory Position Statements to support business and are requesting feedback from permit holders on issues they encounter.

With extensive engineering experience across a range of industries including the HSE and Statutory Inspection, Finch can assist with both legal and technical advice in connection with the inspection of plant and equipment, and can help business manage the risks to the environment of having to close permitted sites either temporarily or permanently, or on whether they are able to stay open if included in the Government’s list of critical workers.

If you would like more information, please feel free to contact Richard on [email protected] who will be able to assist or can introduce you to the relevant Finch expert best placed to meet your needs.

NB: This article is current as at 31st March 2020 but will not be kept updated.

[1] http://www.safed.co.uk/wp-content/uploads/2020/03/SAFed-Information-for-Members-HSE-HSA-Position-on-Thorough-Examinations-considering-Covid-19-Outbreak.pdf

 

[2] https://www.gov.uk/government/publications/coronavirus-covid-19-maintaining-educational-provision/guidance-for-schools-colleges-and-local-authorities-on-maintaining-educational-provision

 

[3] http://www.safed.co.uk/wp-content/uploads/2020/03/SAFed-Brief-Members-Only-Self-Identification-as-Key-Workers-based-on-HSE-and-Government-Guidelines.pdf

 

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