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Ensuring
a Notice is Valid
HSE's Enforcement Guide gives the following advice
to inspectors about ensuring that the notice is valid.
| "1. |
Before
serving a notice you should be of the considered
opinion, based on reasonable grounds, that the
chosen form of notice (improvement or prohibition)
is justified. You should also:
| • |
ensure
that before issuing a notice you have gathered
any evidence which may not be available
after issuing it, i.e. when people may not
wish to cooperate with you. You may wish
to take photographs of site conditions and
possibly statements; |
| • |
decide
whether the information available is strong
enough to support the notice if the duty
holder appeals. |
|
| 2. |
You
must consider whether a notice will survive an
appeal. Normally it will be sufficient if:
| • |
you
have complied with the requirements for
that type of notice, as set out in the Act; |
| • |
you
have acted reasonably in serving the notice; |
| • |
the
wording of the notice is sufficiently clear.
Any breach of the law, remedial action,
and date for compliance, should be clear
from the words of the notice; |
| • |
the
notice is properly served. |
|
| 3.
|
Tribunals
will usually find that you have acted reasonably
in serving the notice if:
| • |
you
have ensured that you have enough information,
at the time of service, to form the opinion
required; |
| • |
you
have had regard to the relevant HSE policies,
have followed any Directorate procedures
and guidance, and your decision is consistent
with the HSC Enforcement Policy Statement.
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|
| 4.
|
The
suggested methods for compliance contained in
the notice schedule should be unambiguous but
still allow that there may be other methods of
compliance. The dutyholder should be able to tell
when they have achieved the standard required
for compliance rather than the emphasis being
placed on the HSE inspector to approve the steps
taken." |
To
read what the HSE guide says about the validity of
a notice, click
here. (the above however is a copy)
Serving
a Notice
In relation to ensuring that the notice is properly
served, section 46 of the Health and Safety at Work
Act 1974 sets out how a notice can be served on an
individual, company or partnership.
| 1. |
Any
notice required or authorised by any of the relevant
statutory provisions to be served on or given
to an inspector may be served or given by delivering
it to him or by leaving it at, or sending it by
post to, his office. |
| 2. |
Any
such notice required or authorised to be served
on or given to a person other than an inspector
may be served or given by delivering it to him,
or by leaving it at his proper address, or by
sending it by post to him at that address.
|
| 3.
|
Any
such notice may
| • |
in
the case of a body corporate, be served
on or given to the secretary or clerk of
that body |
| • |
in
the case of a partnership, be served on
or given to a partner or a person having
the control or management of the partnership
business or, in Scotland, the firm. |
|
| 4.
|
For
the purposes of this section and of section 26
of the Interpretation Act 1889 {1889 c. 63.} (Service
of documents by post) in its application to this
section, the proper address of any person on or
to whom any such notice is to be served or given
shall be his last known address, except that
| • |
in
the case of a body corporate or their secretary
or clerk, it shall be the address of the
registered or principal office of that body; |
| • |
in the case of a partnership or a person
having the control or the management of
the partnership business, it shall be the
principal office of the partnership; |
and for the purposes of this subsection the principal
office of a company registered outside the United
Kingdom or of a partnership carrying on business
outside the United Kingdom shall be their principal
office within the United Kingdom. |
| 5 |
If
the person to be served with or given any such
notice has specified an address within the United
Kingdom other than his proper address within the
meaning of subsection (4) above as the one at
which he or someone on his behalf will accept
notices of the same description as that notice,
that address shall also be treated for the purposes
of this section and section 26 of the Interpretation
Act 1889 {1889 c. 63.} as his proper address.
|
| 6 |
Without
prejudice to any other provision of this section,
any such notice required or authorised to be served
on or given to the owner or occupier of any premises
(whether a body corporate or not) may be served
or given by sending it by post to him at those
premises, or by addressing it by name to the person
on or to whom it is to be served or given and
delivering it to some responsible person who is
or appears to be resident or employed in the premises.
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| 7 |
If
the name or the address of any owner or occupier
of premises on or to whom any such notice as aforesaid
is to be served or given cannot after reasonable
inquiry be ascertained, the notice may be served
or given by addressing it to the person on or
to whom it is to be served or given by the description
of "owner" or "occupier" of
the premises (describing them) to which the notice
relates, and by delivering it to some responsible
person who is or appears to be resident or employed
in the premises, or, if there is no such person
to whom it can be delivered, by affixing it or
a copy of it to some conspicuous part of the premises.
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| 8 |
The
preceding provisions of this section shall apply
to the sending or giving of a document as they
apply to the giving of a notice.
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It
should be noted that the Enforcement Guide states
that:
Service
of improvement notices where the corporate body
operates on a number of sites has given rise to
difficulties in the past. You should therefore ensure
that the notice comes to the attention of senior
members of the organisation and also to ensure that
it is served; in the case of a corporation, at the
registered office which may be a firm of solicitors
or accountants.
To
read what the Enforcement Guide says about the serving
of a notice, click
here
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