We have been working with care homes to update their contracts and advise on the risks of charging the resident a regular “top-up” or additional fee where a resident is funded through NHS CHC
In light of the Covid-19 pandemic, many workplaces are closed or restricting visitors and access; similarly, many individuals are self-isolating due to being symptomatic or being vulnerable due to their age or underlying health conditions. The Health and Safety Executive’s latest guidance reminds organisations that they must endeavour to maintain the safety of the lifting equipment under their control throughout the pandemic.
All organisations have an obligation under section 3(1) of the Health and Safety at Work Act 1974 to ensure so far as is reasonably practicable the health and safety of those affected by its operations. This obligation will also extend to ensuring that any lifting equipment under its control is safe for continued use.
The Lifting Operations and Lifting Equipment Regulations 1998 (‘LOLER’) place obligations on those in control of lifting equipment to ensure it is fit for purpose, appropriate for the task, suitably marked and subject to a schedule of thorough examination and testing. Strictly, LOLER only applies to work equipment, such as a hoist used in a care home or lifts used by workers on a construction site.
However, organisations should still follow the same requirements for all lifts that they are responsible for in residential settings. The Health and Safety Executive are clear that if an organisation complies with LOLER in respect of its lifting equipment, it will also likely comply with its obligations under section 3(1) of the Health and Safety at Work Act 1974. Compliance with LOLER in respect of lifting equipment will also often be a condition of an organisation’s insurance policy.
While all organisations should aim to comply with LOLER, this has become increasingly difficult in light of the challenges posed by the Covid-19 pandemic, including a shortage of engineers and increased refusals of access. In response, the Health and Safety Executive has provided guidance regarding its expectations in respect of lift safety.
The Health and Safety Executive’s updated guidance
The Health and Safety Executive (‘HSE’) is clear that LOLER is still in force, including the requirement to undertake thorough examinations. For equipment that lifts people, such examinations are required every six months.
The HSE indicates that organisations must take all reasonable steps to ensure that thorough examinations are carried out according to the requisite schedule. Inevitably, there will be some circumstances currently where examinations cannot be carried out. For example, where lifting equipment is located in the home of someone who is self-isolating, shielding or vulnerable, the HSE accepts that the thorough examination may be deferred until the relevant period of isolation is over.
Where a thorough examination is overdue, organisations should consider whether the relevant equipment should be taken out of use. It should take a risk-based approach in doing so, and should, in particular, consider whether the continued use of the lift is both essential and safe.
Where equipment remains in use, the HSE expects organisations to be able to demonstrate that they conducted a thorough risk assessment regarding the continued use of the equipment and have put measures in place to mitigate any risks identified.
The HSE states in its guidance that it 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”.
While this guidance does not strictly apply to lifts used for domestic purposes, it provides a clear framework for organisations to follow in order to demonstrate they comply with their wider safety obligations in respect of such lifts.
Organisations should endeavour to ensure that their lifting equipment remains adequately maintained, inspected and safe to use during the pandemic. Given the difficulties that may be faced in doing this, it is essential that organisations adequately assess the risks of allowing the continued use of equipment when its thorough examination is overdue. Organisations will also have to consider the risks of decommissioning equipment which, due to the lockdown, may be important for its customers and service users.
If you are concerned about your organisation’s ability to achieve compliance with health and safety requirements during this time, we advise that you seek legal advice.
If you have any questions about this e-briefing or any of your other regulatory responsibilities, please contact our Regulatory team.
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