Health and Safety Executive

3. Mr L complains on behalf of his son, I, about Health and Safety Executive (HSE) regarding its investigation and lack of action taken in response to an accident I had at work in November 2021. Mr L complains that HSE did not investigate the accident to a level in line with its own policies, such as carrying out a site visit, and when he raised his concerns, HSE responses lacked empathy and he faced delays in receiving responses, with some of his communications not responded to for months. Mr L complains that HSE failed to provide details of its investigating officer and did not provide copy of the investigation report or information he had requested under Freedom of Information (FOi).

4. Mr L says that, as a result of HSE’s service, I has not received an adequate investigation into the accident, lessons have not been learned to avoid repeat issues, Mr L has suffered stress and upset at HSE’s apparent lack of interest in the accident and poor service and has not had the opportunity to seek compensation due to lack of evidence provided by HSE about its investigation.

5. Mr L would like an apology, service improvements and financial redress.

6. In November 2021, Mr L received a telephone call to advise him that his son had fallen at height from a ladder at work and lost consciousness, though he had since become conscious. Mr L, now extremely worried and upset, was told that his son was injured and some time after Mr L had arrived at site I was taken to hospital where his injuries were found to be a broken collar bone, punctured lung, severe ear injury and concussion.

7. Mr L returned to the site a few days later and took photographs of the scene as he was concerned there was now a crane on site for lifting tools to height, which had not been there prior to I’s accident. Mr L was told that HSE had been notified and would be visiting the site. Having had no communications about the matter, Mr L contacted Information Rights at HSE in February 2022 to request copies of its reports into the incident. Mr L received no response to the first and second email he sent and after calls to HSE was advised to send in a formal request which he did in May. HSE responded in May, attaching a RIDDOR report and advising of the Information Commissioner’s Office (ICO) contact details should Mr L remain unhappy with the response to his data request.

8. Mr L, who had requested copies of HSE’s investigation reports, responded in June to HSE to ask what other information was available. HSE responded the next day to advise that after enquiries had been made, no site visit had taken place and no action had been taken against the employer. HSE responded to signpost to its website information on the matter and advised Mr L’s email would be forwarded to the ‘Visiting Officer’. Mr L emailed to ask the name of the Officer and HSE responded to advise that it was withholding any further information it held under the FOI Act and provided details of how to pursue information were Mr L to take out a civil claim.

9. In July 2022, Mr L sent an email to Information Management team at HSE to complain about the lack of information it had provided, that HSE had failed in its duty to investigate the serious accident in which his son had suffered injuries and requesting that it reopen its investigation or provide the documentation it had so he could pursue a civil claim. Mr L requested that the email be forwarded to a supervisor and the formal complaints unit.

10. In August, HSE sent a response from an Appeal Officer with no prior involvement in the case which advised that the decision to withhold the information under the FOI Act had been upheld and that a response had been sent to Mr L’s initial February 2022 email to signpost to the relevant address for such requests and said that it had no record of receipt of further emails from Mr L in February. HSE advised that Mr L would need to make applications through the Civil Procedure Rules and make formal request for information required to pursue a civil case, signposted to guidance on civil action and provided details of the ICO were Mr L to remain unhappy with the response.

11. Mr L received a first stage complaint response (relating to matters we are able to consider) on 4 August 2022 and a second final response to further concerns he had raised on 3 November on 29 November 2022 which signposted to us were he to remain dissatisfied.

Information Rights concerns

14. Mr L complains that HSE failed to provide information of its enquiries and investigations into the incident and that he faced considerable delays in receiving any response to his requests.

15. HSE, in its response to Mr L’s data concerns, say that it has provided the information it has decided appropriate and is unable to disclose further information under the FOI Act. HSE say that it has responded to Mr L’s concerns in a timely manner and had not received further emails indicating its response sent in February 2022 had not been received.

16. We are not the appropriate organisation to consider concerns about information/data requests as this is the role of the ICO, who are the final authority on data matters outside of the court. When we discussed this with Mr L, he told us that HSE had not previously signposted to another organisation. We could see that HSE responses sent in May and August 2022 provided details of the ICO and signposted Mr L were he to remain unhappy.

17. We do recognise the frustrations that Mr L had whilst making his requests and complaint about data matters. We are unable to consider this aspect of the compliant further. ICO may be able to consider Mr L’s concerns were he to make contact now, though it may be likely to be out of time to pursue this as ICO ask that concerns be brought to it within 3 months of an organisation’s final response on data matters.

HSE decision not to investigate

18. Mr L complains that HSE failed to carry out adequate investigations into his son’s accident, which he says should have triggered a full investigation as I had lost consciousness. Mr L complained that HSE had not considered any causation factors of the incident, had not visited the site and had provided insensitive, inadequate and unreasonably delayed responses to his queries and concerns.

19. HSE, in its complaint responses, say that due to the number of reported incidents it receives, it considers whether investigation is appropriate under its Incident Selection Criteria and where it is not clear if an investigation is warranted, it makes initial enquiries. HSE say that it does not carry out a site visit for all reported incidents and that full investigations are not necessarily carried out following triage and initial enquiries. HSE say that the information it had received from its enquiries – risk assessments, incident report, independent health and safety report and personal statements – led to its decision that the employer had taken the incident seriously and implemented remedial action, leading to the conclusion that no site visit or investigations were necessary.

20. In response to Mr L’s complaint that causation factors had not been considered by HSE, it says that lack of witnesses to the incident meant it was unlikely the cause would be clear or the accident prevented had the remedial steps been in place at that time. HSE apologised that Mr L had felt his concerns had not been handled sensitively under the circumstances and advised that the relevant department had taken his feedback for learning and improvement.

Our considerations

21. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. Mr L complains that HSE took the decision to not investigate the incident or carry out a site visit, despite W’s injuries meeting the criteria for investigation. We have looked at how the HSE made this decision and have not found any indications that something has gone wrong.

22. There is no dispute in this complaint that the injuries W sustained meet the HSE’s criteria for selection for investigation under its Incident Selection Criteria. We looked at this guidance, which says:

3.1 Incidents should be selected for investigation with consideration of HSE's Enforcement Policy Statement (EPS).

and

When deciding which incidents to investigate and the level of resource to be allocated to the investigation, account should be taken of the:

• severity and scale of potential or actual harm; • seriousness of any potential breach of the law; • duty holder's known past health and safety performance; • enforcement priorities; • practicality of achieving results; and • wider relevance of the event, including serious public concern

and

3.3 Not every incident reported to LAs will require investigation after initial enquiries have been made. The criteria for selecting incidents suitable for further investigation are detailed below.

and

5.0 Mandatory investigations The following defined major incidents should always be investigated:

5. 2 All work-related accidents resulting in a "Specified Injury" [RIDDOR Reg. 4(1)] to any person, including non-workers, that meet any of the following conditions:

• Loss of consciousness caused by head injury or asphyxia;

6.0 Non–investigation of a mandatory incident

6.2 The grounds for not investigating incidents that would normally be investigated may include: • where an investigation is impractical, eg unavailability of key witness(es), key evidence is no longer available; • no reasonably practicable precautions available to prevent the incident\accident or its recurrence;

23. We also looked at HSE’s Enforcement Policy Statement, which says:

11.3 We undertake investigations in order to:

gather information and establish the facts identify the immediate and underlying causes and the lessons to be learnt prevent recurrence identify breaches of health and safety law take appropriate action, including the service of notices and prosecution.

24. From the above guidance and policy, we can see that even when injuries sustained from an accident meet the criteria for mandatory investigation, this does not automatically mean that an investigation would be triggered. When we contacted HSE, it told us that when it made its initial enquiries to decide whether to investigate, it had found the employer had already carried out a risk assessment and engaged an independent health and safety consultant to report on the site. This report, which HSE had received and found it showed the site and ladder used was broadly compliant with requirements, noted remedial action had been taken of ladder placement. HSE told us that the information it had received from its initial enquiries, the lack of witness statements and I’s recollection of events and the remedial action already taken led to its decision not to investigate further.

25. When we looked at the information we received from HSE and what it considered in order to make its decision, against the guidance and policy we looked at, we could see no indication of maladministration. We do not doubt the severity of the impact caused to W and Mr L due to the incident and recognise the frustration and disappointment Mr L and I would have felt when they found HSE had decided not to investigate. We could not say that HSE had done anything wrong in making that decision.

26. We looked at HSE’s complaint procedure ‘Complaints about HSE’ which says that it aims to respond to concerns within 15-20 working days. We decided that HSE provided responses to Mr L’s complaints within its advised aimed for timeframes – concerns raised on 26 July were responded to on 4 August and further concerns raised on 3 November were responded to on 29 November. Mr L raised concerns with us that he had not received the final response until he had sent a chaser email to HSE in February 2023, following which he received the response. We would like to reassure Mr L that we have seen the email and attached response sent to his email address in November 2022 by HSE, though we are unable to say why he did not receive this. We recognise that Mr L felt the responses from HSE were insensitive to the manner of concerns he had raised and could see that HSE had apologised that its responses had caused him to feel this way. We decided HSE had responded reasonably in its acknowledgement and apology here.

27. In summary, we have seen no indication that HSE have done anything wrong here and will be taking no further action on the complaint. We do recognise that this may be disappointing to Mr L and I and we hope that the reasons for our decision has been clearly explained above.

1. We have carefully considered Mr L’s complaint about HSE. We have seen no indication that HSE have done anything seriously wrong or acted outside its own policy and processes.

2. We saw no indication that, in not providing an investigation into I’s accident at work, HSE has done anything wrong. We saw no indication that HSE had unreasonably delayed its responses to Mr L’s complaint. We recognise that the concerns Mr L has brought to us are very important to him and hope that our consideration of his complaint is reassuring.