Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s failure to take action under health and safety legislation following his wife’s accident at an airport. This is because we do not consider the actions complained of has caused Mr or Mrs X an injustice which warrants our involvement.

The complaint

1. Mr X complains the Council failed to carry out its health and safety responsibilities after his wife suffered an accident at an airport.
2. He also complains the Council failed to provide information he requested and failed to follow its complaints procedure.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault
• the fault has not caused injustice to the person who complained
• the injustice is not significant enough to justify our involvement
• it is unlikely further investigation will lead to a different outcome

(Local Government Act 1974, section 24A (6), as amended)

6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

7. I considered information provided by Mr X and the Council.

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What I found

8. In 2018 Mr X’s wife fell over while walking on an uneven walkway outside the terminal building at Luton Airport. She suffered injuries which needed surgery.
9. Mr X says when he tried to report the accident to airport staff they told him they did not have an accident book.
10. Mr X telephoned the Council’s health and safety team the following day. He emailed photos of his wife’s injuries and the walkway where she fell. A few days later the Council told him it would inform the site manager of the works at the airport that an accident had occurred, and he would take action.
11. Shortly afterwards, Mr X travelled through the airport again and noted nothing had been done to the walkway where his wife fell.
12. Mr X says he spent some months trying to secure the services of a ‘No win no fee’ solicitor.
13. In June 2019 Mr X asked the Council, as owner of the airport, for CCTV footage of his wife’s accident. He says the Council failed to respond to his request. The Council told Mr X it was not responsible for enforcing at the airport and referred him to the airport operator.
14. In July 2019, a year after the accident, Mr X complained to the Council saying it had failed to check the airport had reported Mrs X’s accident. He says the Council failed to respond to his complaint, only contacting after he involved his MP.

Assessment

15. I understand that Mr X believes the Council has a conflict of interest because it is the owner of Luton Airport and is the local authority for enforcing health and safety legislation.
16. The council says it is not the relevant body and has referred Mr X to the Health and Safety Executive (HSE) and the airport operator.
17. Mr X has provided an email from the HSE which says that the Council deals with the health and safety concerns he has raised. However, the Council says it is not.
18. Responsibility for enforcing breaches of health and safety at work legislation is divided between the HSE and local authorities depending on the nature and location of the work activity in question. The split of responsibilities is set out in statutory Regulations.
19. The Council and the HSE have different interpretations of how the Regulations should apply in Mr X’s circumstances. The HSE suggests the Council is the enforcement authority but the Council says the airport operator is responsible.
20. The Ombudsman cannot make a ruling on the interpretation of health and safety legislation. I do not consider we are able to say there was fault by the Council in respect of the legal view it has taken. Also, we do not have jurisdiction to consider complaints about the HSE.
21. I understand Mr X wants someone held accountable for his wife’s accident. But even if the Council has been at fault in failing to recognise its health and safety responsibilities regarding accident reporting in this case; I am not convinced we could say Mr X had suffered a significant resulting injustice on this point to warrant our involvement.
22. Mr X also complained about the Council’s failure to provide information. The Information Commissioner’s Office is the body with specific powers and expertise to investigate Freedom of Information Act and Environmental Information Regulations issues. The Information Commissioner’s Officer has powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004. Mr X has already referred this part of his complaint to the ICO. Therefore, I do not intend to investigate this part of his complaint.
23. Finally, Mr X has concerns about the Council’s failure to follow its complaints procedures. While we would expect the Council to respond under its complaints policy, I do not propose to investigate this issue further. It is not a good use of public resources to investigate complaints about complaint procedures, if we are not dealing with the substantive issue.

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Final decision

24. I will not investigate this complaint. I do not consider that Mr or Mrs X has suffered an injustice because of the alleged failure to enforce health and safety regulations which warrants our involvement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman