Michael Pender, Jan Klempar and Paul Mullen
PFD Report
All Responded
Ref: 2024-0049
All 1 response received
· Deadline: 27 Mar 2024
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Source: Courts and Tribunals Judiciary
Coroner’s Concerns
The MATTERS OF CONCERN fall into two broad areas:
COVID-19 related concerns i) The government took the decision to offer furlough to those in receipt of PAYE as at the end of February 2020. Most of the c1600 lifeguards who work on the 250 beaches where the RNLI are present are seasonal employees. They did not qualify for furlough. At that point in time, the RNLI was in the process or recruiting and training the seasonal lifeguards it required. When furlough was not offered, a number had to seek alternative means of income. As lockdown was eased and lifeguards were required, the RNLI did not have immediately available to it the seasonal employees it required to provide beach safety around the coast. Information Classification: CONTROLLED I found this contributed to the problems that ensued in a partial sense. I do not suggest that had the seasonal lifeguards been furloughed all of the difficulties could have been avoided. The evidence revealed some lifeguards may not have wanted to take up their position in light of COVID and there were additional complications like how new lifeguards became formally qualified when providers were not available as well as how the RNLI could have provided COVID secure places of work in the time available; ii) The lack of advance notice given to the RNLI of government’s intention to relax lockdown and allow people to travel to the beach again. The RNLI anticipated the difficulties developing. It wrote to the Department of Transport and the Prime Minister to make sure the relevant people were aware of the problems. By letter of 24 April 2020, Kelly Tolhurst MP, Minister for Aviation, Maritime & Security informed the RNLI Chief Executive that: ‘Officials will ensure RNLI is notified as far in advance as possible to enable you to mobilise your assets as appropriate.’ That did not happen. The RNLI learned of the decision to relax lockdown at the same time as the general public and was put in an impossible situation of needing to provide lifeguards on beaches the next day. Mr Pender drowned before there were any lifeguards on any beaches. iii) The RNLI had considerable difficulties sourcing PPE on the open market. Thought may wish to be given to whether it should have priority access to government stock in the event of a future pandemic. It is recognised that this was an unprecedented situation that was changing rapidly where there were many competing interests. There do appear, however, to be lessons that can be learned from considered review of what has happened. I am not sure whether responsibility to undertake this best lies with you or the on-going public inquiry. I have written to the Secretary to the inquiry additionally and leave you to resolve between yourselves who is best placed to address this. Beach Safety concerns generally I want to put what follows in an accurate context.
In 2019, there were RNLI lifeguards on 248 beaches. There were approximately 1600 lifeguards, the vast majority of whom were employed on a seasonal basis. They were on beaches that saw approximately 18M visitors, they provided 200,000 hours of supervised patrols during the Information Classification: CONTROLLED course of which 30,000 people were assisted and an estimated 154 lives saved. The total cost came in at £21 million, in respect of which the charity received contributions totalling just under £4 million.
In 2016, seven men drowned at Camber Sands in East Sussex. My colleague, HM Senior Coroner Mr Craze, wrote a series of PFDs. This led to the publication by the MCA of previously lacking guidance for landowners and local authorities on how to manage beach safety and is to be welcomed.
The MCA also commissioned from DWF a report reviewing legal responsibilities for beach safety that was available in January 2019 but not published until November 2020. It identified a confused and conflicting legal landscape where there was no clear legal duty to provide lifeguards and most owners/occupiers were acting out of social conscience than for any other reason. All stakeholders wanted greater clarity to be introduced. That has not happened and there has been no formal government response to the review. Indeed, it appears as though there is no government department that has responsibility for the area. In a letter from the Secretary of State for Transport, Mr Harper, to me I was informed: Neither the MCA, nor the Department for Transport (DfT), has any wider responsibilities for beach safety policy or legislation.
This may provide an explanation for why this concern has remained for so long. As long ago as 2006, a local MP observed that it was a ‘ridiculous anomaly’ that there was more regulation for swimming in a public pool than there was for swimming in the more dangerous environment of the sea, or that there were stricter standards for working on a vessel at sea than there were for members of the public going to the coast.
What is apparent, however, is that a stated intention to reduce drownings by half by 2026 is in real danger of being missed.
It is for government to decide whether there should be policy in this area and, if so, who should be responsible for it. My duty is simply to bring the concerns to your attention which I hope I have now discharged.
COVID-19 related concerns i) The government took the decision to offer furlough to those in receipt of PAYE as at the end of February 2020. Most of the c1600 lifeguards who work on the 250 beaches where the RNLI are present are seasonal employees. They did not qualify for furlough. At that point in time, the RNLI was in the process or recruiting and training the seasonal lifeguards it required. When furlough was not offered, a number had to seek alternative means of income. As lockdown was eased and lifeguards were required, the RNLI did not have immediately available to it the seasonal employees it required to provide beach safety around the coast. Information Classification: CONTROLLED I found this contributed to the problems that ensued in a partial sense. I do not suggest that had the seasonal lifeguards been furloughed all of the difficulties could have been avoided. The evidence revealed some lifeguards may not have wanted to take up their position in light of COVID and there were additional complications like how new lifeguards became formally qualified when providers were not available as well as how the RNLI could have provided COVID secure places of work in the time available; ii) The lack of advance notice given to the RNLI of government’s intention to relax lockdown and allow people to travel to the beach again. The RNLI anticipated the difficulties developing. It wrote to the Department of Transport and the Prime Minister to make sure the relevant people were aware of the problems. By letter of 24 April 2020, Kelly Tolhurst MP, Minister for Aviation, Maritime & Security informed the RNLI Chief Executive that: ‘Officials will ensure RNLI is notified as far in advance as possible to enable you to mobilise your assets as appropriate.’ That did not happen. The RNLI learned of the decision to relax lockdown at the same time as the general public and was put in an impossible situation of needing to provide lifeguards on beaches the next day. Mr Pender drowned before there were any lifeguards on any beaches. iii) The RNLI had considerable difficulties sourcing PPE on the open market. Thought may wish to be given to whether it should have priority access to government stock in the event of a future pandemic. It is recognised that this was an unprecedented situation that was changing rapidly where there were many competing interests. There do appear, however, to be lessons that can be learned from considered review of what has happened. I am not sure whether responsibility to undertake this best lies with you or the on-going public inquiry. I have written to the Secretary to the inquiry additionally and leave you to resolve between yourselves who is best placed to address this. Beach Safety concerns generally I want to put what follows in an accurate context.
In 2019, there were RNLI lifeguards on 248 beaches. There were approximately 1600 lifeguards, the vast majority of whom were employed on a seasonal basis. They were on beaches that saw approximately 18M visitors, they provided 200,000 hours of supervised patrols during the Information Classification: CONTROLLED course of which 30,000 people were assisted and an estimated 154 lives saved. The total cost came in at £21 million, in respect of which the charity received contributions totalling just under £4 million.
In 2016, seven men drowned at Camber Sands in East Sussex. My colleague, HM Senior Coroner Mr Craze, wrote a series of PFDs. This led to the publication by the MCA of previously lacking guidance for landowners and local authorities on how to manage beach safety and is to be welcomed.
The MCA also commissioned from DWF a report reviewing legal responsibilities for beach safety that was available in January 2019 but not published until November 2020. It identified a confused and conflicting legal landscape where there was no clear legal duty to provide lifeguards and most owners/occupiers were acting out of social conscience than for any other reason. All stakeholders wanted greater clarity to be introduced. That has not happened and there has been no formal government response to the review. Indeed, it appears as though there is no government department that has responsibility for the area. In a letter from the Secretary of State for Transport, Mr Harper, to me I was informed: Neither the MCA, nor the Department for Transport (DfT), has any wider responsibilities for beach safety policy or legislation.
This may provide an explanation for why this concern has remained for so long. As long ago as 2006, a local MP observed that it was a ‘ridiculous anomaly’ that there was more regulation for swimming in a public pool than there was for swimming in the more dangerous environment of the sea, or that there were stricter standards for working on a vessel at sea than there were for members of the public going to the coast.
What is apparent, however, is that a stated intention to reduce drownings by half by 2026 is in real danger of being missed.
It is for government to decide whether there should be policy in this area and, if so, who should be responsible for it. My duty is simply to bring the concerns to your attention which I hope I have now discharged.
Responses
The Cabinet Office has shared concerns regarding the ineligibility of seasonal lifeguards for furlough with HMT and HMRC. For beach safety, they clarify there is no single lead department but highlight that the National Water Safety Forum is improving data collection and planning broader risk assessments.
AI summary
View full response
Dear Mr Cox, I am grateful for your letter dated 31 January 2024 relating to the deaths of Michael Pender, Jan Klempar and Paul Mullen. Thank you also for the Regulation 28 Preventing Future Deaths report you prepared setting out your judgement following the inquests into the deaths and your concerns around the circumstances in which these deaths occurred. I note from your letter dated 10 May 2024 that you are seeking a formal response to your Preventing Future Deaths report, following my letter acknowledging receipt of the same. I have reviewed the concerns that you highlighted for the Government’s attention in relation to the easing of Covid-19 measures in the first half of 2020, which served as the common backdrop for the deaths as detailed in your correspondence. I also acknowledge the concern you have raised in relation to the issue of beach safety policy more generally, and responsibility for it within UK Government. Please find below the actions taken or planned action in relation to your recommendations relating to these issues, or an explanation where no action is being taken. Covid-19 measures The UK Covid-19 Inquiry is ongoing and given they are also in receipt of your Preventing Future Deaths report, we await its recommendations from Module 2 of the Inquiry, focussing on decision-making and political governance during the pandemic. However, I believe it is appropriate to pass on your observations to the government departments most likely to influence future measures in a similar pandemic or national crisis and have addressed your concerns relating to Covid-19 measures as follows: ○ On the issue of the RNLI lifeguards not being eligible for furlough, we have shared your concerns with HMT and HMRC given their oversight of the policy, which they have acknowledged receipt of. Covid economic support schemes, including the Coronavirus Job Retention Scheme, are being examined in Module 9 of the Inquiry, and we await the Inquiry’s recommendations on this issue;
○ On the RNLI receiving advance notice to allow them to recruit and train lifeguards, the Department for Transport and the Maritime and Coastguard Agency have advised they maintain a strong working relationship with the RNLI with regular communication with the organisation. Government communication is also a subject that was covered in Module 2 of the UK Covid-19 Inquiry so we await their recommendations in relation to this; ○ On the concerns around the RNLI not having access to an adequate supply of PPE, we have passed your concerns onto DHSC, which they have acknowledged receipt of. The procurement and distribution of healthcare related supplies including PPE is being examined in Module 5 of the Inquiry, and we await the Inquiry’s recommendations on this issue. Beach safety policy I note your concerns in relation to beach safety policy more generally, including the calls for greater clarity for landowners and occupiers on their duties, and the lack of clear departmental responsibility within government. Government is currently considering these issues and we would be happy to provide your office with an update as this progresses. You raised, in particular, the National Water Safety Forum’s (NWSF) target to reduce drownings by half by 2026. When formed in 2004, the Forum brought together a broad range of existing groups into a one-stop-shop for the prevention of drowning and water safety harm in the UK. HM Coastguard (HMCG), part of the Maritime & Coastguard Agency (MCA), is a member of the Forum and works with stakeholders to share information from HMCG incidents. The MCA communications team works with HMCG to highlight safety messaging to members of the public in attempts to try to reduce incidents around the coastline of the UK. The MCA’s surveyors and marine office teams ensure that vessels are safe for those working or travelling on board. Their navigation specialists support the team and wider services to protect routes taken. The fishing industry is important for the United Kingdom (UK), and we continue to work with this sector to reduce fatalities and support them in developing best work practices. The data from the NWSF’s Water Incident Database suggests the number of deaths caused by drowning have fluctuated in recent years. There has been a significant increase in water-based activity participation rates over the past four years, particularly stand-up paddle boarding, kayaking and open-water swimming. The Forum believes that a more defined reduction in drownings in relation to population and participation numbers would be evident were these factors fully analysed. The NWSF are improving their data collection to enhance understanding of the data. They intend to broaden their risk assessment to include rescues to understand localities that require targeted prevention work. In addition, they plan to carry out a demographic analysis to assess the impact of reduced rates of swimming attainment in schools to assist in future plans to prevent drownings.
I am grateful to you for bringing the above issues to my attention. We remain committed to working with the Inquiry to facilitate its investigations into the pandemic, and we await any recommendations it may make in the areas you have raised, as well as any further questions or comments you may have on the above.
○ On the RNLI receiving advance notice to allow them to recruit and train lifeguards, the Department for Transport and the Maritime and Coastguard Agency have advised they maintain a strong working relationship with the RNLI with regular communication with the organisation. Government communication is also a subject that was covered in Module 2 of the UK Covid-19 Inquiry so we await their recommendations in relation to this; ○ On the concerns around the RNLI not having access to an adequate supply of PPE, we have passed your concerns onto DHSC, which they have acknowledged receipt of. The procurement and distribution of healthcare related supplies including PPE is being examined in Module 5 of the Inquiry, and we await the Inquiry’s recommendations on this issue. Beach safety policy I note your concerns in relation to beach safety policy more generally, including the calls for greater clarity for landowners and occupiers on their duties, and the lack of clear departmental responsibility within government. Government is currently considering these issues and we would be happy to provide your office with an update as this progresses. You raised, in particular, the National Water Safety Forum’s (NWSF) target to reduce drownings by half by 2026. When formed in 2004, the Forum brought together a broad range of existing groups into a one-stop-shop for the prevention of drowning and water safety harm in the UK. HM Coastguard (HMCG), part of the Maritime & Coastguard Agency (MCA), is a member of the Forum and works with stakeholders to share information from HMCG incidents. The MCA communications team works with HMCG to highlight safety messaging to members of the public in attempts to try to reduce incidents around the coastline of the UK. The MCA’s surveyors and marine office teams ensure that vessels are safe for those working or travelling on board. Their navigation specialists support the team and wider services to protect routes taken. The fishing industry is important for the United Kingdom (UK), and we continue to work with this sector to reduce fatalities and support them in developing best work practices. The data from the NWSF’s Water Incident Database suggests the number of deaths caused by drowning have fluctuated in recent years. There has been a significant increase in water-based activity participation rates over the past four years, particularly stand-up paddle boarding, kayaking and open-water swimming. The Forum believes that a more defined reduction in drownings in relation to population and participation numbers would be evident were these factors fully analysed. The NWSF are improving their data collection to enhance understanding of the data. They intend to broaden their risk assessment to include rescues to understand localities that require targeted prevention work. In addition, they plan to carry out a demographic analysis to assess the impact of reduced rates of swimming attainment in schools to assist in future plans to prevent drownings.
I am grateful to you for bringing the above issues to my attention. We remain committed to working with the Inquiry to facilitate its investigations into the pandemic, and we await any recommendations it may make in the areas you have raised, as well as any further questions or comments you may have on the above.
Action Should Be Taken
Information Classification: CONTROLLED
Report Sections
Investigation and Inquest
On 31/1/24, I concluded the inquests into the deaths of: i) Michael Pender, who drowned at Treyarnon beach on 25/5/20; ii) Jan Klempar, who drowned at Porthcurno beach on 25/6/20; iii) Paul Mullen, who drowned at Church Cove on the Lizard on 20/8/20.
The three inquests were heard together as they arose out of a common occurrence namely that, following the relaxation of the national lockdown after the COVID-19 pandemic, they all happened on beaches that would ordinarily have been lifeguarded but were not at the material times. A copy of my judgment is attached.
The three inquests were heard together as they arose out of a common occurrence namely that, following the relaxation of the national lockdown after the COVID-19 pandemic, they all happened on beaches that would ordinarily have been lifeguarded but were not at the material times. A copy of my judgment is attached.
Circumstances of the Death
i) Mr Pender drowned at Treyarnon beach on 25 May 2020. He lived locally. At the time, the country had just come out of lockdown after the emergence of the COVID-19 pandemic. Lifeguards would ordinarily have been present on the beach but, on that date, were not. Additional signage had been put up and there had been an extensive media campaign to alert the public to the position. Mr Pender was seen to get into difficulty. He was found floating in the water and taken to Padstow lifeboat station where he was confirmed deceased. ii) Mr Klempar drowned at Porthcurno beach on 25 June 2020., having travelled down from the Midlands for the day with his Information Classification: CONTROLLED family. At the time, the country was still coming out of lockdown after the emergence of the COVID-19 pandemic. Lifeguards would ordinarily have been present on the beach but, at the time of the incident, were not. Additional signage had been put up and there had been an extensive media campaign to alert the public to the position. Mr Klempar was seen to get into difficulty. He was found floating in the water and recovered to the beach. Efforts to resuscitate him were unsuccessful. iii) Mr Mullen drowned at Church Cove on the Lizard on 20 August 2020. He was on holiday with his family. At the time, the country was still coming out of lockdown after the emergence of the COVID-19 pandemic. Lifeguards would ordinarily have been present on the beach but, at the time of the incident, were not. Additional signage had been put up and there had been an extensive media campaign to alert the public to the position. The sea was unusually rough due to an approaching storm. Mr Mullen went into the sea after his son got into difficulties. He was found floating in the water and recovered to the beach. Efforts to resuscitate him were unsuccessful.
Copies Sent To
RNLI
MCA
Cornwall Council
National Trust
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Data sourced from Courts and Tribunals Judiciary under the Open Government Licence.