Summary: Mr X’s partner Ms Y suffered an accident at a private health club. Mr X says the Council’s failure to carry out health and safety inspections of the club before the accident contributed to the severity of her injuries. The Ombudsman will not investigate this complaint as we are unlikely to find fault in the Council’s actions. Nor is an investigation likely to lead to a different outcome.

The complaint

1. Mr X complains for his partner, Ms Y. Ms Y suffered an accident at a private members health club. Mr X says the Council’s failure to carry out regular health and safety inspections of the club led directly to the club’s failure to have a suitably qualified first aider on site. He says when Ms Y had her accident, an unqualified person put a pressure bandage on her ankle which worsened her injury.

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The Ombudsman’s role and powers

2. 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
• it is unlikely further investigation will lead to a different outcome.

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

3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered the information provided by Mr X, including the Council’s responses to his complaint and discussed his concerns with him.
5. I also considered the local authority enforcement code issued by the Health and Safety Executive (HSE).
6. Mr X commented on the draft version of this decision.

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What I found

7. Enforcing health and safety legislation is divided mainly between local authorities and the Health and Safety Executive (HSE).  Generally, local authorities are the main enforcing authority for retail, wholesale distribution and warehousing, hotel and catering premises, offices, and the consumer/leisure industries.
8. The HSE published the National Local Authority Enforcement Code in 2013. This sets out the risk-based approach local authorities should take to target health and safety interventions.
9. The Code says the primary responsibility for managing health and safety risks lies with the business who creates the risk. However, local authorities have an important role in ensuring the effective and proportionate management of risks, supporting business, protecting their communities, and contributing to a wider public health agenda. It also states:

“Proactive inspection must only be used to target the high-risk activities in those sectors specified by HSE or where intelligence suggests risks are not being effectively managed. For this purpose, HSE will publish a list of high-risk sectors (and the key activities that make them such) that are to be subject to proactive inspections by local authorities.”

What happened

10. Ms Y is a member of a private health club and spa. During a visit to the club in August she slipped and fell in the changing room. A club employee gave first aid. A later hospital visit confirmed Ms Y had broken her ankle
11. Mr X reported Ms Y’s accident to the Council within three days. The following week the Council carried out an unannounced site visit.
12. The Council says its officer noted the following during the visit:
• The correct flooring is in the changing area with slip signs in place;
• The club advised it has a qualified first aider for the public according to HSE advice (although it has no obligation to provide one);
• An employee gave what she considered was appropriate first aid to Ms Y at the time of the incident;
• While the area where Ms Y fell is drier than the area immediately next to the pool, it is near the showers so it is expected that it may on occasion be wet; and
• No chemical residue was present on the floor during the inspection.
13. The club also advised staff check the floor every hour and mop it when wet.
14. The Council confirmed it was satisfied with the health and safety arrangements at the club.

Assessment

15. Mr X is not satisfied with the Council’s investigation. He says the Council should have carried out regular inspections of the club in the years prior to Ms Y’s accident.
16. He also says the Council has failed to protection the public. However, the National Local Authority Enforcement Code states that proactive inspections should be targeted towards organisations on the list of high-risk sectors published by the HSE.
17. Private members health clubs are not on the list therefore the Council is not required to carry out such inspections.
18. Mr X believes the actions of the first aider increased the severity of Ms Y’s injury. The first aider is an employee of the club. This is therefore not a matter for the Ombudsman. Mr X has advised he is taking legal action against the club.
19. I understand that Mr X believes the Council’s inspection after he reported Ms Y’s accident was not sufficiently robust. And the Council should have carried out proactive inspections of the club. However, while Ms Y’s injuries are not disputed, I do not believe she has suffered any injustice because of the Council’s actions.
20. The Ombudsman may not criticise the Council unless he is satisfied the complainant has suffered injustice through administrative fault by the Council. Unless fault and injustice are present, he may not pursue the matter. Where there is no injustice or where the injustice is not significant, the Ombudsman will normally exercise his discretion not to pursue the matter. He is publicly funded and must ensure appropriate use of his resources.

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Final decision

21. I will not investigate this complaint because:
• we are unlikely to find fault in the Council’s actions regarding the private health club before or after Ms Y’s accident
• an investigation is unlikely to lead to a different outcome
• we do not consider Ms Y has suffered an injustice as a direct result of the Council’s actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman