The effect of COVID19 on Statutory Examinations

I was asked recently: ”Where do I stand concerning statutory inspections such as my LOLER inspections for the forklift trucks? At the moment, all of my forklift trucks are running and are within date. Soon, the checks and inspections will fall due for some of my FLTs. What can I do about this?”
Unsurprisingly, the answer is not simple. As things stand, there has been no change in the laws dealing with statutory examination and inspection. Until the HSE addresses the situation, I suggest you rely on the basic principles of risk assessment for guidance.

Consider the following points:

• make an assessment to determine if any plant or equipment is essential for safety or operation of the premises – if plant or equipment is not
  required, it could be taken out of use.
• is it possible for somebody else to carry out the statutory examination (Though it is likely that the answer to this is no)
• is it necessary to use the equipment
• could you use alternative equipment

If it is required to use the equipment, drill down a little further:

• is the equipment generally in good condition
• does the equipment usually pass statutory inspection without the need for remedial action
• has the equipment been serviced and maintained and kept in good working condition
• are the operators carrying out regular unmeaningful checks and reviews in the workplace
• Assess which plant and equipment require statutory inspections and examinations and when these are due.
• Liaise with the relevant contractors who carry out statutory inspections and examinations to determine what level of service they can provide (for
  hospitals, care homes or infrastructure essential to the running of the country, it would be prudent to draw your contractor’s attention to this)

If a decision is made to continue to use plant or equipment despite it not having had the relevant statutory examination and inspection in order to
safeguard life, it is essential that this reasoning is recorded.

Inform your insurance company if any planned inspection and testing is not being completed or if premises or part of the premises are closed. If closing premises for a period of time, and where it is decided to shut off the power to services such as electrical, gas, water and ventilation systems, plant shutdowns should be undertaken in accordance with manufacturer instructions to ensure that it is done safely. On subsequent restart manufacturer guidance should be followed to ensure that the plant is re-energised safely and to avoid potential damage.

• Follow Public Health England recommendations on hygiene and social distancing (maintain two metres between people).

Careful consideration of these points and incorporation into a workplace risk assessment may go some way to mitigate any action taken by an enforcement authority at a later date. Unfortunately, there are no guarantees on this subject. It is likely that the HSE will issue suitable guidance on this subject soon. I will incorporate any such updates into future blog posts.

HSE Update 15 April 2020: Carrying out thorough examination and testing of lifting and pressure equipment during the coronavirus outbreak

HSE recognises the potential challenges when carrying out legal requirements for thorough examination and testing (TE&T) of plant and equipment as a result of additional precautions people need to take to help reduce risk of transmission of coronavirus (COVID-19).

The law for Lifting Operations and Lifting Equipment Regulations (LOLER) and Pressure Systems Safety Regulations (PSSR) remain in place.

The following advice is to help duty holders (you) ensure that their work plant and equipment remain safe to use. It helps to guide decision making to see if TE&T requirements can still be met.

Maintaining your thorough examination and testing scheme

• ensure social distancing measures in the workplace aren’t perceived to be a barrier to carrying out TE&T – businesses and inspection bodies should cooperate to ensure access to plant and equipment for TE&T continues to schedule
• for businesses that are currently closed, ie they have either elected or been required to do so to meet COVID-19 related government advice or restrictions, you should still give access to visiting inspectors to undertake thorough examinations
• there may be occasions where inspectors are not available to meet the demands of industry and this may lead to difficulties for some businesses fulfilling their obligations for TE&T. Inspectors are supporting GB industry to maintain operations and viability and may have to prioritise critical industries and the protection of equipment aiding vulnerable persons
• if you experience problems in undertaking scheduled thorough examinations as you can’t cannot access inspection services, you should adopt a risk based process to determine the whether there are steps you can to take to safely continue to use equipment (that has not had its scheduled TE&T) or decide to stop using the equipment
• the overarching legal obligation remains, ie ensure that equipment is safe to use

Social distancing, even for inspection engineers

Engineers working at the premises should follow current guidance on distancing and good hygiene as recommended by Public Health England, as
well as any site rules. This is to protect the engineers carrying out the work as well as anyone who may be affected by their work or presence. The
HSE advises that where it identifies employers not complying with the relevant Public Health England guidance e.g. not taking appropriate action to
socially distance, it will consider actions to improve control such as the issuing of enforcement notices.

HSE’s enforcement approach during the period of the outbreak

HSE will adopt a pragmatic and proportionate approach towards enforcement action for non-compliance with statutory requirements which are directly attributable to the coronavirus (Covid-19) outbreak.

Our usual enforcement response will be to take no action if the only failing is that TE&T is not carried out by the required date.

Equipment should only be used outside of its test regime if you can demonstrate that it is critical for essential work and that it can still be operated safely.

You must be able to demonstrate that you have made all reasonable attempts to have the TE&T carried out, made a thorough assessment of the increased risk and taken appropriate action to manage it.