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Major Policy Shift means that certain Deaths and Injuries of members of the public no longer investigated by the HSE

Deaths and injuries of members of the public, which until recently would have been investigated by the Health and Safety Executive, will no longer be subject to inquiry, the Centre for Corporate Accountability has discovered.

The HSE will also no longer inspect hospitals, the police, local authorities and others to see whether they are complying with their public safety duties.

HSE's new highly restrictive policy is contained in internal guidance to inspectors - operational from October of last year - which the CCA is publishing for the first time.

The CCA only came to know that a new policy had been established when one of its advice workers asked the HSE the reasons why it was refusing to investigate the death of a member of the public. The CCA's Advice Service is now involved in representing three families whose relatives have died, where the HSE are currently refusing to investigate. To read about these click here

The CCA is seeking expert legal advice on whether the policy is lawful or not, but the preliminary view of John Halford, a public law specialist at Bindman and Partners Solicitors, is that it is likely to breach a number of public law principles and the Human Rights Act 1998. To read what he says, click here

The principal reason for this major shift appears to be lack of financial resources. Internal HSE papers state that

"HSE’s Field Operations Directorate estimate some 38 staff years annually (excluding work-related road transport) were spent dealing with "public safety" issues ... This is, however, likely to be an underestimate."

To read about general HSE funding issues, Click Here

In its written evidence to the Select Committee on Work and Pensions - currently inquiring into the work of the Health and Safety Commission/Executive - published last week, the HSC stated:

"Following a modest increase in resources, [the] Spending Review 2002, set a baseline which rises slightly in 2003/4, and 2004/5 and drops back in 2005/6. When rising costs are taken into account this represents a significant reduction in spending power. .... To meet this we have adopted a financial strategy of efficiencies and cost reductions."

The new policy will mean that most deaths and injuries of members of the public resulting from unsafe working practices of the police, prisons, hospitals and local councils will not be investigated by a regulatory body with powers to impose enforcement notices and able to prosecute for breaches of health and safety law.

David Bergman, Director of the Centre for Corporate Accountability stated that:

"We are very concerned about this new policy. The HSE has a statutory obligation to establish adequate arrangements for enforcing public safety duties imposed upon employers under health and safety law. This new policy appears to be an attempt to subvert this requirement."

In the past, HSE's default policy was that all public safety deaths and major injuries would be investigated unless all of the following conditions existed.

•	there was another agency involved in regulating the safety of this particular work activity;
•	the legislation, which this agency was enforcing, was adequate to regulate health or safety issues;
•	the agency had the necessary enforcement powers.

However, the HSE's new policy is that it will only investigate if all of the following conditions applied:

•	the HSE is provided with a sufficient indication that a breach of section 3 of the Health and Safety at Work Act was the probable cause of, or a significant contributory factor, to the injury or risk complained of; and
•	there is a high level of risk or HSE needs to act/investigate in the interests of justice; and
•	there is no other, more appropriate, regulatory body to deal with it

In determining whether a regulatory body is appropriate or not, the new policy states that no account should be taken of the fact that the regulatory body body has no enforcing powers.

This new policy will not effect situations when public safety issues are indivisible from worker safety issues (i.e. in relation to construction, the railways and the nuclear industry): making construction sites and railways safer for workers will make them safer for the public, and vice-versa. In such industries, the HSE does accept that it continues to have responsibilities to enforce the legislation concerned with public safety.

However the HSE does not accept that it necessarily has any role in the enforcement of health and safety law in relation to members of the public when the public safety issue arising from a work-activity is entirely separate from anything that will make the work-place safer for workers.

You can download the operational circular by clicking here (word).

To read a briefing about this new policy, click here

CCA - Press Inquiries Contact: David Bergman

020 7 490 4494 (office) 07876 364571 (mobile)

 

 

The Centre runs a Work-Related Death Advice Service which provides free, independent and confidential advice to bereaved families on investigation and prosecution issues arising from the death. The three cases that the CCA is involved in are as follows:

One involves a death of a school boy involving a school bus where the HSE are refusing to investigate whether the local authority or bus company should have provided adult supervision.

The second involves a death involving a man who drowned after being dragged away by rip-tides. The HSE are currently saying that they will not investigate whether the local authority provided adequate notices concerning the dangers of the tide and an adequate system of lifeguarding.

The third involves the death of a woman as a result of inadequate care by social services and a private company. The HSE are refusing to investigate the death.

In all these cases there is no other agency with enforcement and prosecution powers investigating the death.

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John Halford, a specialist public law solicitor at Bindmans and Partners has told the CCA

"This policy represents a blatant attempt by the HSE to cast off very significant statutory responsibilities. Whether that is possible by means of an internal policy is highly questionable: the 1974 Health and Safety at Work Act says that local authorities can be empowered to undertake certain investigations (typically in relation to commercial premises) but only when regulations are made for that purpose. On this occasion, there have been no such regulations made and the HSE apparently considers that other bodies, including advisory groups with no powers to investigate or prosecute can somehow fill the gap. Worse still, for certain activities such as outdoors and adventure sports, it apparently believes that no regulation is necessary by anyone. It is quite impossible to see how this policy promotes the underlying purpose of the 1974 Act which is that businesses and public bodies should keep public safety in the forefront of their minds and that the HSE should make sure they do so, guiding, investigating and, where necessary, prosecuting. Further, the 1974 Act in one of the ways that the UK makes sure that the right to life is protected by law. That is the most important right in the European Convention on Human Rights and is now enforceable through the Human Rights Act. The HSE remains under a legal duty to protect life and guard against serious injury under both Acts. It would be wrong in principle and wrong in law for it to turn its back on that duty. Yet the policy suggests that is exactly what the HSE intends to do in relation to many areas of life where the public are at risk."

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