Summary: Mrs X complained the Council failed to properly investigate an incident at a local swimming pool which hospitalised several children including her child Y. She said this has caused her and the other parents to experience significant emotional distress. The Council was not at fault in how it conducted its investigation into the incident.

The complaint

1. Mrs X complained the Council failed to carry out a thorough investigation into a serious incident at a local swimming pool which exposed Mrs X’s child Y and others to a toxic substance.
2. She said Y and the other children were hospitalised due to the incident and this caused her significant distress and upset.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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

5. I made enquiries of the Council and considered the information it and Mrs X provided. This included Mrs X’s complaint form, complaint correspondence shared between the Council and Mrs X and the inpatient discharge summaries for the children.
6. I will write to the Council and Mrs X with the draft decision. I considered the Council and Mrs X’s comments before I wrote the final decision.

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What I found

Statutory guidance

7. The Health and Safety at Work Act 1974 is the primary piece of legislation governing occupational health and safety in Great Britain. It sets out the duties employers have towards their employees and the public.
8. Section 22 of the act gives investigating officers the power to serve a prohibition notice if the officer believes the activity being carried out could cause harm or risk to the public.

HSE Enforcement Management Model

9. The council’s health and safety enforcement is carried out by environmental health officers. The Enforcement management model (EMM) is a system which inspectors use to inform their regulatory actions. They have the power to stop the work activity or seize the offending article.
10. The purpose of enforcement is to ensure duty holders take immediate action to deal with serious risks.
11. When a breach of health and safety is identified, the inspector will decide what action to take. Inspectors have wide discretion to exercise their professional judgement so that appropriate action can be taken.
12. Inspectors should collect information, assess the risk, and consider how best to ensure everyone’s safety. If the inspector identifies a potential hazard, they should consider whether further action is required to deal with it.
13. Inspectors should base their judgement on information about hazards and control measures informed by their training, experience, and the relevant guidance.
14. Once action has been taken, the inspector should reconsider the overall situation and decide whether other enforcement issues remain. The EMM is not a procedure in its own right. It is not intended to fetter the inspector’s discretion when making enforcement decisions and it does not direct enforcement in any particular case.

What happened

15. In May 2021, Mrs X’s child Y and several other children became seriously unwell after attending a swimming lesson at a local swimming pool. The children had to attend hospital and were released the next day after receiving treatment for exposure to a toxic chemical.
16. The pool operator closed the pool for 24 hours following the incident. An environmental health officer visited the site the next day and performed safety checks. Inspectors from the Police and Fire service also attended. The officer tested the pool’s quality and performed safety checks. The officer could not find anything wrong with the pool and all inspectors agreed there was no ongoing risk to the public. The pool operator decided to reopen the pool the next day.
17. After one of the parents queried the reopening with the pool operator, they received the following text, “In terms of the pool being safe to use, I am sure it is, as long as management make sure they do not carry out maintenance while people are in the pool…I should know tomorrow if it is necessary to put in place further measures to make sure this cannot happen again.”
18. After the pool reopened, the officer contacted the hospital to ask for information about the children’s condition. He also asked a pool expert to inspect the pool and collect samples. The expert visited the pool twice in June 2021 and found a faulty valve. The Council has clarified that the valve was not found to be the cause of the problem. Based on the expert’s findings, the officer issued an improvement notice to the pool operator, which resulted in a further safety inspection and deep clean of the pool.
19. The Council wrote to Mrs X and the parents to update them on what it was doing to address the problem.
20. Mrs X complained the Council reopened the pool without properly investigating whether it was safe to do so or communicating properly with the parents involved or the hospital.
21. The Council did not uphold Ms X’s complaint. The Council said the IO followed the correct process whilst investigating the incident and to date there has been no recurrence of the problem.
22. Mrs X brought the complaint to the Ombudsman.

Findings

23. It is not the Ombudsman’s role to criticise the merits of the decision the Council made; it is our role to consider whether the Council followed the correct process in making this decision. Following the pool incident, the Council was required to take immediate action to address the risk, prevent any further harm occurring and assess whether further action was required. The evidence shows the Council acted quickly to inspect the pool and did not find the source of the problem. The investigating officer did not find evidence of any ongoing risk to the public and this was affirmed by several other inspectors. The inspector therefore decided it was not necessary to take enforcement action. The pool operator reopened the pool as there was no evidence the public was at risk. As there were faults later found with the pool and there appeared to be some doubt on the operator’s behalf as to the condition of the pool, I can understand Mrs X’s concern. However, the Council has clarified that these faults were not the cause of the problem. I am satisfied the Council acted within the perimeters of its health and safety policy. The Council is not at fault.

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Final decision

24. The Council was not at fault in how it addressed the incident at the pool. There was no evidence of injustice caused. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman