Summary: The Ombudsman will not investigate Mr X’s complaint about how the Council dealt with a health and safety matter. This is because there is not enough evidence of fault by the Council and it is unlikely we could achieve anything more.

The complaint

1. The complainant, whom I shall call Mr X, complains on behalf of a relative, Mrs Y, who is employed by a nursery in the Council’s area. Mr X is concerned about the Council’s response to health and safety concerns raised about Mrs Y’s employer during her pregnancy. Mr X is unhappy the Council did not prosecute Mrs Y’s employer and instead issued a verbal warning.

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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, or
• the fault has not caused injustice to the person who complained, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (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 Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

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What I found

5. Mrs Y is employed by a nursery in the Council’s area. The Council’s health and safety team became involved after Mrs Y was declared unfit to work during her pregnancy. The Council provided advice to Mrs Y’s employer about risk assessments and record keeping. This constituted a verbal warning. The Council explained to Mrs Y’s employer that a revised risk assessment needed to be agreed with Mrs Y before she could return to work.
6. Mrs Y asked Mr X to act on her behalf. Mrs Y and Mr X complained to the Council about its decision not to take formal action against Mrs Y’s employer. Mr X says the Council failed to follow the Health and Safety Executive’s (HSE’s) Enforcement Policy Statement (EPS) to decide what action it should take. In its responses to Mrs Y and Mr X’s complaints the Council:
• Referred to the HSE’s Enforcement Management Module (EMM) as a tool used to guide the Council’s decision.
• Said the EMM and the Council’s own enforcement policy around proportionality supported the route taken.
• Confirmed the decision to issue a verbal warning was considered appropriate and would lead to the necessary improvements.
• Explained that if the advice offered by the Council was followed, when Mrs Y returns to work, her employer will have met the relevant legal duties.
7. The role of the Ombudsman is to look for administrative fault. We are not a right of appeal for people who disagree with a council’s decision. We will not normally question decisions of professional judgment unless there is evidence of fault in how the decision was reached.
8. It is clear Mrs Y and Mr X disagree with the Council’s decision. But it was for the Council to decide what action it should take against Mrs Y’s employer. The Council decided that formal enforcement action was not necessary, and a verbal warning would lead to compliance with the relevant legislation. While I know Mrs Y and Mr X are unhappy with this decision, that does not mean the decision itself is flawed. The Council has reviewed its decision and has provided what I consider to be proportionate and reasonable responses to the complaints it has received.
9. Mr X is unhappy the Council did not refer to the HSE’s EPS in its response. But the EPS explains that HSE inspectors are guided by the EMM – which the Council did refer to. The EPS also refers to ensuring action is “proportionate to the health and safety risks and any breaches of the law”. The Council says it took such an approach in response to Mrs Y and Mr X’s concerns.
10. Based on the evidence available, I do not think an investigation by the Ombudsman would be likely to find fault with the way the Council has acted. We also have no powers to instruct the Council to prosecute Mrs Y’s employer. Any injustice to Mrs Y would also seem to flow from her employer’s actions, not the decision by the Council about how to proceed. An investigation by the Ombudsman is not therefore appropriate.

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Final decision

11. The Ombudsman will not investigate Mr X’s complaint. This is because there is not enough evidence of fault by the Council and it is unlikely we could achieve anything more.

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Investigator's decision on behalf of the Ombudsman