London Borough of Havering (16 018 272)

Category : Environment and regulation > Health and safety

Decision : Not upheld

Decision date : 22 Jan 2018

The Ombudsman's final decision:

Summary: there is no fault by the Council regarding its decision not to pursue a supermarket for failing to report a customer’s accident in store.

The complaint

  1. The complainant whom I shall refer to as Mrs J, complains the Council failed to pursue action against a supermarket which did not report an accident that occurred in the store.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have
    • considered the complaint and the copy correspondence provided by the complainant;
    • made enquiries of the Council and considered the comments and documents the Council provided; and
    • discussed the complaint with the complainant; and
    • considered her comments on my draft decision.

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What I found

  1. Mrs J had a fall in a supermarket in January 2014, injuring her face. She says that the floor of the baby change area was wet and this caused her accident. An ambulance was called and Mrs J was taken to accident and emergency. Mrs J pursued a claim against the store for personal injury.
  2. Her claim took a long time as the store rejected her allegations and said that there were no records held by the store regarding the accident. However, in late 2015 the store accepted it was liable. Mrs J claimed damages of £ 5250.
  3. The store had offered £3550 to settle the claim but later questioned the basis of Mrs J’s claim. It then withdrew its offer.
  4. In late 2016 and January 2017 Mrs J contacted the Council’s environmental health department regarding the accident because she had found out that the store should have reported the accident under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (commonly referred to as RIDDOR). These regulations require an employer to report certain accidents to the regulatory authority, the Council. She said she had checked with the Health and Safety Executive and it did not have a record of the store reporting the accident.
  5. The Council confirmed it had not received a RIDDOR report from the store. An officer discussed the matter with Mr and Mrs J and agreed to visit the store. Mrs J said that the Council’s officer said he would take action against the store for failing to report the accident.
  6. However, he later wrote to Mr and Mrs J and said the Council was not going to take further action. He gave details of Mr and Mrs J’s recollection of the incident in 2014. They said the store had taken photos and agreed they would make a report the accident. However, when the officer visited the store there was no accident report regarding the incident. The stores records regarding cleaning did not show a leak reported on the day of the incident. He explained that none of the staff who had been working on the day of the incident were still working there. With regard to the store not making a RIDDOR report, the Council said it would need to prove beyond all reasonable doubt that the accident took place and that it was reportable. The Council said it had completed an enforcement assessment record and found that the store had an excellent record of compliance reporting accidents. The Council said that because the accident was historical it could not investigate as it had happened too long ago and conditions in the store may be different.
  7. The officer’s note of the visit to the store shows the store confirmed that the staff did not work at the store now. The store’s central records regarding maintenance were checked and it had no record of a maintenance issue in the baby change room. The store did not have an accident record regarding the incident. The officer’s notes show he concluded the Council could not verify evidence as the accident happened 3 years ago and that the store had a good record of compliance.
  8. Mr J complained on behalf of Mrs J that the Council should take action because he had evidence the accident took place in the form of ambulance and hospital records. He said the store had also admitted the floor was wet and admitted liability. He said the Council should take action against the store for failing to report the accident in accordance with RIDDOR. Mr J complained to the Ombudsman.
  9. I understand that in June 2017 Mrs J accepted an offer of £3550 as compensation form the store.

Analysis

  1. There was a delay in the accident being considered because but was not brought to the Council’s attention until 3 years after the event. This was not due to a fault by the Council.
  2. In its response to my enquiries the Council explained its view that while there was some evidence that an accident took place, it was not clear that it took place within the store or that it was a reportable accident in accordance with RIDDOR. A reportable accident is one that is a work related accident or one that takes place on an employer’s premises and the person is taken to hospital.
  3. I sent the Council the evidence Mr J said showed the accident took place in the store and the information that he believed showed the store had admitted liability. The Council said the evidence showed an accident took place in the vicinity of the store, but not that it actually took place within the store. Therefore, it did not have proof beyond reasonable doubt that the accident took place. In addition the evidence it had received showed the store had withdrawn its offer so it did not agree it had admitted liability.
  4. The Council said that if it received confirmation from Mr and Mrs J the store had admitted liability it may reconsider the matter. But it said that it was unlikely to change its decision that it was not appropriate to take action against the store.
  5. I have considered whether there was fault in the Council’s decision making and the factors it considered. The Council considered
    • the passage of time and lack of evidence meant it was unable to investigate
    • conditions in the store may have changed.
    • The store had a good record of compliance, reporting accidents in accordance with RIDDOR. Therefore taking action against the store was not appropriate.
  6. I have not found there is fault in the Council decision making. The Council must consider whether it is appropriate and in the public interest to take enforcement action. It is not obliged to take action in all cases.

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Final decision

  1. For the reasons I have explained I do not find there is fault by the Council. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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