Local authorities: correct enforcing authority or a conflict of interest?

Prosecutions brought by a local authority against businesses in which that local authority has a vested interest, can present an actual or perceived conflict of interest that can compromise health and safety enforcement action.

Background

The Health and Safety (Enforcing Authority) Regulations 1998 (EA Regulations) were introduced with a view to avoiding confusion in relation to the individual roles of enforcing authorities.

The rule of thumb being that each regulatory authority operates within their respective area with no cross over, save for exceptional occasions where a conflict or potential conflict of interest exists that would be detrimental to bringing a successful prosecution. In those circumstances, the investigation should not be carried out by the local authority and instead be passed onto the Health and Safety Executive (HSE).

However, HSE guidance (LA enforcement in premises in which they may have an interest), suggests that such circumstances should be few and far between, but reviewing and keeping under review every case, is good practice. In our experience, as the enforcing authority’s investigation develops, usually the issue of conflict becomes more apparent as disclosure and witness evidence is gathered.

Investigations and potential conflicts of interest

Local authorities should ensure that they are not conflicted from acting as the enforcing authority in an investigation by having in place adequate arrangements. This should include having a clear enforcement policy and ensuring that the investigation is independent from other relevant departments related to the investigation within the local authority.

As the investigation progresses and new evidence is gathered, the enforcing authority should check that the position has not changed by carrying out regular reviews. However, experience suggests that financial pressure means that many local authorities do not have the resources to conduct these reviews.

Part of the local authority’s role includes the provision of leisure centres, the placement of elderly individuals into care homes, ensuring adequate school places, and social care services. This can involve outsourcing to other companies through a tender or vetting process. The successful company can subsequently find themselves operating in premises owned by the local authority and according to local authority requirements in terms of health and safety procedures and processes.

The question of conflict can arise when an incident occurs in or on premises owned by the local authority, where a company is operating on behalf of the local authority, or where the local authority has a vested management interest in the manner in which that company operates. When an incident arises in these circumstances, the local authority must consider whether it is appropriate for it to investigate and determine whether enforcement action should be taken against that company. Below are examples of the types of issues that can arise:

Care homes

The provision of state funded care for the elderly, involves care homes being vetted by the local authority for inclusion on its approved list. Before an individual can be placed, the local authority is also required to review the care needs of the individual concerned to establish whether they are suitable to be placed in one of the approved care homes.

Failure to pass on vital information about an individual to the care home (which would otherwise have led to a refusal by the care home to accept that individual) would result in a conflict of interest if the individual is subsequently injured or fatally injured as a result of that omission.

Leisure centres

Local authority owned leisure centres involve a similar tender process for suitable companies to operate them. This involves consideration of the company’s health and safety procedures and processes that are audited every year by the local authority. Often under the agreement between the company and the local authority, the company may provide monthly updates to the local authority that include reference to health and safety. In turn, the local authority sometimes carries out random spot checks to ensure compliance.

If following the approval by the local authority of the company’s procedures, there is an incident resulting in injury or fatality, the question arises as to whether the local authority should be the enforcing authority. Analysis of the amount of control the local authority has retained in respect of the management of operations on site and control of the premises is key. As before, gathering relevant evidence and regularly reviewing the evidence as the investigation develops is essential to be able to determine whether the local authority is conflicted.

Comment

In relation to local authority investigations, the issue of whether the local authority is the correct enforcing authority should be regularly reviewed during the lifetime of a case, from day one of the investigation up to and including the course of any trial. Early scrutiny of the enforcement policy can be of assistance to ensure that its own procedure is being properly followed.

Where applicable, steps should also be taken to ensure that the local authority has provided full disclosure in relation to their role. If there is any doubt, concerns should be raised with the local authority in writing, with a request that it provides confirmation it has taken measures to satisfy itself that it is independent and the correct enforcing authority.

Read other items in Health, Safety and Environment Brief - April 2019