Mike Sopp looks at the duty to test, examine and maintain lifts on your premises.
In March 2015, a lift company was ordered to pay £100,000 in fines and costs following an incident at Tower Bridge when a lift fell several metres into a service pit leaving four passengers with bone fractures.
The Health and Safety Executive (HSE) stated that the company responsible for maintaining and servicing the lift “could and should have done more to ensure the lift was properly maintained, and there were clear failings in this regard” particularly in relation to analysis of the data in the regime.
Although in this case, the owners of the premises were not prosecuted (as they were not deemed to be in control of the lift), this case highlights the potential outcomes if passenger lifts are not subject to appropriate examination, testing, inspection and maintenance regimes.
Legislative scope and dutyholders
The Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) apply to the use of lifting equipment provided as work equipment and build on the requirements of the Provision and Use of Work Equipment Regulations 1998 (PUWER).
When considering the application of these regulations to passenger lifts as work equipment, there are two matters that will need to be given consideration:
which passenger lifts will come under the requirements and
who is responsible for the application of the regulations?
The HSE website states that passenger lifts and combined goods/passenger lifts in workplaces which are primarily used by people at work will be subject to the legislative regime.
Where passenger lifts are not used by people at work (eg in public areas of a shopping centre) but operated by, or to some extent under the control of, an employer or self-employed person in connection with their business, passenger lifts will be outside the regime.
However, the operator will still have some responsibility under s.3 and s.4 of the Health and Safety at Work, etc Act 1974 “as the risks may be the same as when using lifts in connection with work, a similar regime of maintenance, inspection and examination to that required under LOLER and PUWER may be entirely 'reasonably practicable' in managing the risks”.
Where LOLER/PUWER does apply, consideration must be given as to who the dutyholder is. LOLER states that these regulations apply to the employer but may also apply to the self-employed and to a person who has control to any extent of lifting equipment, persons at work using, supervising or managing equipment or the way equipment is used.
In the case noted above, the servicing and maintenance company were deemed to be in control to the extent that they were deemed to be the dutyholder.
Many building owners/employers/occupiers outsource facilities functions to third parties. When doing so, it is essential that the extent of control over passenger lifts is given consideration as part of the contract.
Thorough examination and testing
As the Lift and Escalator Industry Association (LEIA) states, “maintenance of lifts and escalators is not an optional feature”.
Under LOLER, the dutyholder has a legal responsibility to ensure that the lift/s is thoroughly examined and that it is safe to use. The primary aim of the thorough examination is to detect any defects which are, or might become, dangerous.
In addition, such maintenance will protect a key building asset and enable appropriate financial planning in terms of repairs and replacement of parts, etc.
A thorough examination is defined as “a systematic and detailed examination of the lift and all its associated equipment by a competent person”. Such a thorough examination should be undertaken:
after substantial and significant changes have been made to the lift
at least every six months or in accordance with an examination scheme
following “exceptional circumstances” such as damage, failure or long periods out of use.
The examination scheme mentioned may specify periods that differ from the statutory intervals, but this must be based on a rigorous assessment of the risks and be completed by the competent person.
The dutyholder is obliged to ensure that a “competent person” is appointed to undertake the examination; this is “someone who has sufficient technical and practical knowledge of the lift to be able to detect any defects and assess how significant they are”.
A key aspect of appointment is that they are “sufficiently independent and impartial”. This does not mean that the competent person cannot be employed directly by the dutyholder, but they must have sufficient independence to give objective decisions.
It is common for the dutyholder to appoint a third-party contractor to undertake the maintenance regime on their account. The LEIA provides useful guidance on the types of contracts that can be drawn up and what is expected of both parties in any contractual arrangement.
The dutyholder has an important function in the examination regime, they must:
keep the competent person informed of any changes in the lift operating conditions
make relevant documentation available to the competent person
act promptly to remedy any defects
ensure all documentation complies with the regulations
keep adequate record.
However, as the LEIA note, the key role of the dutyholder will be to “act upon the recommendations of the contractor in a timely manner particularly in respect of defective or missing safety devices”.
If the competent person considers it to be necessary, the thorough examination can be supplemented by testing. The purpose of the supplementary tests is to support the thorough examination in order to establish the equipment’s suitability for continued safe use.
In determining the tests that are required, the competent person should take account of the relevant guidance and standards. Further information on the types of test can be found in the Safety Assessment Federation publication Guidelines on the Supplementary Tests of In-service Lifts.
Inspection and maintenance
Under LOLER, lifting equipment may also need to be inspected at suitable intervals between thorough examinations. Determination of inspection requirements in terms of scope and frequency should be made by the competent person, based on the risk assessment.
The criterion given in the Approved Code of Practice is that inspection will be required when the assessment has identified “a significant risk to the operator or other workers from the use of the lifting equipment”. Potential issues an inspection regime can detect are:
rapid wear arising from use in an arduous environment
failure through repeated operation
tampering with safety devices.
When assessing the need for inspections the competent person should make reference to any guidance from the lifts manufacturer and record, as part of the overall thorough examination scheme, details of the inspection regime required. This should include:
the visual and functional checks required to be undertaken (eg alarm interlocks)
frequency of the inspections
details of the person/organisation responsible for completing the inspection.
Inspections may be done “in-house” by a competent, trained employee or they may be undertaken by third party contractors.
A regime of thorough examinations may check upon and indicate areas of poor maintenance, but are not intended to replace or be confused with maintenance regimes.
Preventive maintenance aims to ensure the lifting equipment continues to operate as intended, and risks associated with wear or deterioration is avoided. The HSE emphasise that dutyholders should “not wait for the results of a thorough examination before carrying out maintenance” on lifting equipment.
As with inspections, the need for maintenance may be driven by the risk assessment as well as outcomes from the examination, testing and inspection regimes. Typically, maintenance may involve replacing worn or damaged parts, making routine adjustments to ensure risks are avoided or replacing time-expired components.
HSE guidance notes that the competent person undertaking the thorough examinations should not be the same person who performs routine maintenance as they would be responsible for assessing their own work.
Clearly, the objective of the above regimes is to ensure that passenger lifts remain in a safe condition during operational use. Both competent person and dutyholders have responsibilities in relation to ensuring sufficient documentation and records are available that can then be analysed to ensure the regimes are meeting this objective.
To ensure the safe use of passenger lifts the building occupier should ensure that there is clarity as to who the dutyholder will be. This may depend upon the type of maintenance contract that exists with any third-party competent person.
The dutyholder should:
be aware of the legal and best practice requirements that apply to the maintenance of lifts
when appointing a competent person, undertake the necessary due diligence checks on the competency of the person/organisation to be appointed
where the competent person is a third party, ensure an appropriate service level agreement is developed in accordance with best practice
make available to the competent person all relevant technical information on the lift installation
act immediately on any reports of defects provided by the competent person undertaking maintenance, testing inspections or examinations
retain suitable records of the maintenance regime and any remedial action taken.
LG1: Lifts. Guidelines on the supplementary tests of in-service lifts (currently under review)
Lift and Escalator Industry Association
Maintenance Requirement for Lifts, Lifting Platforms, Escalators and Moving Walks