Kirsty Williams Took On The Civil Service, And Lost.

Kirsty Williams AM/AC, the Assembly Member for Brecon and Radnorshire and leader of the Liberal Democrats in Wales at the time, on my behalf, asked the Adventure Activities Licensing Authority the question that I had put to them but they refused to answer... 

'Is it acceptable to the licensing authority for a licensed activity provider to be taking groups of young people gorge walking in the mixed terrain of the Sychryd in the client’s own footwear, which usually ranges from good running shoes through old and treadless to slip on flat soled pumps, or even 'crocs', usually with no socks?'

Rather unexpectedly, Kirsty Williams received the same political answer, one that does not answer a fairly simple question and one that empowers adventure activity companies to make up their own rules regarding safety. I believe this is wholly wrong, is a failure of the democratic system and confirms to me that withdrawing from adventure activity licensing was the only ethical approach to take.

The HSE representative, Mr Richard Broughton, states that AALA advice to me regarding boots for Gorge Walking is correct but that the HSE have no statutory power to enforce such guidelines. Mr Broughton, in his responses, carefully avoids any mention of 'pumps' or  'crocs' as he obviously doesn't want to be drawn on this issue, after all, it is a horrendous can of worms with virtually ALL adventure activity providers working in the UK allowing a wide range of inappropriate footwear for Gorge Walking, Coasteering and other similar activities. 

It appears that I have taken this as far as I can. For if an AM can't get a straight answer to a question from a government department and if that department is unable to act on the issue, then truly, there is nowhere to go. 

But this means that your children, all children taking part in adventure activities in the UK, are likely to be offered activities that have been risk assessed with an eye on the bottom line, the income from the contract, and will be out there, in potentially dangerous environments, with inadequate personal protection and clothing. 

I will be closely monitoring and recording provisions in the Gorge again this year. And accidents, I'm sure they will occur, they usually do... So a word of advice... Please, if considering booking gorge walking or coasteering, ask the company you have contacted what their risk assessment say about footwear. If it's old trainers or on the day the company allow you to wear crocs or pumps, then please let me know. And make sure you book your gorge walk with a company that insists on walking boots.

The following is the later correspondence between myself, Kirsty Williams and the HSE (on behalf of AALA). If you don't have time or inclination to read all then I would recommend the blistering attack, by myself, on the UK's civil servants, the final letter at the bottom of this blog...

And finally, only 2 photos show footwear suitable for gorge walking and 1 for coasteering... Can you guess which? I have seen all of the 'wrong' shoes being worn, without socks, by those taking part in gorge walking in Wales:

Dear Ms Williams

Safety Precautions – Gorge Walking

Thank you for your correspondence of 10 August.  Can I first note my apologies for not replying sooner to the concerns raised by Mr Lamb with whom we have corresponded previously on this general issue.

All commercial providers of outdoor activities have a legal duty to ensure that the risks of harm associated with the activity are controlled.  The way for a provider to do this is through a risk assessment, which will help in first identifying the most significant risks and associated harm and then deciding on sensible and proportionate controls.  

The risks associated with gorge walking would include the risk of cuts to the feet from hard rock and slipping and potentially falling.  Suitable footwear would help control these risks and it is of course for the provider of an activity to bear the cost of buying and providing this footwear, or any other sensible control for other risks.  On balance, it would seem that the advice given to Mr Lamb on suitable footwear was sound.  

Without more information, I am not able to comment on the specific approaches taken by other providers though I can say that they too have a duty to assess the risks and implement and bear the cost of suitable controls.

On the matter of the recording of accidents, there is a legal duty to do this under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations depending on the nature of the injury and the length of any resultant incapacity.  We are aware that many injuries across all industry sectors are not reported via this route and so the statistics we get on numbers of injuries are not complete.  But that said inspectors from the Licensing Service routinely look at accident reports as a part of the inspection process to see what accidents are occurring, see that the provider is responding appropriately where needed and to aid general intelligence.  There is much to learn from accidents and incidents and these are discussed by the inspection team and in addition, the Adventure Activities Licensing Authority Board receives information about significant incidents at its meetings.

I hope that this helps and once again, can I apologise for the delay in replying. Kind regards

Dr Richard Broughton (on behalf of the AALA), Health and Safety Executive

Dear Mr Broughton,

Kirsty Williams AM has forwarded the response from yourself re issues I have been having regarding AALA and it's inconsistent and rather dangerous approach regarding footwear for what is the most popular outdoor activity in South Wales. I commend you on being the first HSE official to state that appropriate footwear for the activity is footwear that protects against cuts, slips and falls and that it's the responsibility of the activity provider to ensure clients are safely kited out. And you are correct that this was the advice given by AALA to me at the start of licensing. 

Why is it then that I am one of a small band of providers that provide footwear and most operators allow clients to use their own unsuitable footwear? Why is it then that mountain and cave rescue teams have stated that injuries in the gorge are attributable to inappropriate footwear? And why is it that I have effectively been arguing with AALA for fifteen years on the issue of non enforcement of their own advice? 

I would like you to answer the question posed to AALA and that has been forwarded to many for consideration… 

'Is it acceptable to the licensing authority for a licensed activity provider to be taking groups of young people gorge walking in the mixed terrain of the Sychryd in the clients own footwear, which usually ranges from good running shoes through old and treadless to slip on flat soled pumps, or even 'crocs', usually with no socks?'

If this matter is not resolved in the very near future then I will be taking this as far as I can, with no regard for industry profile. 

I believe that the HSE and AALA have a responsibility to protect the public, especially young people from unnecessary injury whilst taking part in adventurous activities.  We have to wear walking boots when walking up a mountain, we have to wear wellies when caving. There is no governing body for gorge walking, unlike caving and mountaineering, but operators have to have technical advice and they receive this advice from cavers, climbers and mountaineers. The gorge terrain is similar to that of a cave or very broken ground on a wet mountain… So, please can you answer my question or tell me why AALA officials have refused to… 

Thank you for your time

Andrew Lamb

Dear Mr Lamb

Thank you for this correspondence. 

I have little to add to my previous reply save to note and emphasise one point.  And that is the need for sensible and proportionate controls to be identified through a risk assessment.  From an assessment of the risks there may be many approaches to control.  In the same location on the same day differing controls may be equally acceptable depending on multiple factors.  Clearly, we can summise as to the hazards and associated risk with the activity you describe in the generality and we can think from this what may or may not be an appropriate control.  But it rather depends on the circumstances for the activity at any time, as I note. 

It is for this reason that I cannot comment on what other providers may or may not being doing as it may be that following an assessment controls vary, not least because the delivery of an adventurous activity may vary day-to-day. 

Kind regards

Dr Richard Broughton (on behalf of the AALA)

Dear Mr Broughton,

Effectively then, you are stating that despite AALA advice re footwear for gorge walking being that providers should ensure clients have walking boots or wellington boots AALA do find it acceptable for licensed providers to be taking young people gorge walking in slip-on pumps and crocs, so long as they have risk assessed the activity and their risk assessment finds that any footwear is acceptable in the gorge environment.

The gorge environment includes river, climbing, muddy, deep water, rough and broken ground and scrambling. This environment is far more difficult and challenging than a day on a mountain and yet  AALA and the HSE are stating that any footwear is OK for the gorge but all walking up Pen y Fan or Snowdon clients would be required to be wearing walking boots.

I give up asking the same question over and over as not one of you will answer it so please explain the above discrepancy.

And I disagree that outdoor professionals when honestly risk assessing can come up with control measures that would allow for pumps or crocs or old trainers and I urge you to think about how you would justify such a risk assessment. Inappropriate footwear is not justifiable except as a cost-saving exercise for the operator. That is the bottom line here and I simply cannot understand why AALA and the HSE are pandering to the industry on this matter. 

Thank you for your time

Andrew Lamb

Dear Andrew Lamb,

In follow up to your email below I am writing to enquire whether you have now received a response from the AALA to your email and to your specific question.  I would be grateful for an update on this matter.

Thank you for your assistance.  I look forward to hearing from you.

Yours sincerely

Kirsty Williams

Dear Kirsty,

Thank you for getting in touch and following up on this matter. 

The plain answer is no and I don't know know how to proceed with this. I have several responses but all are sidestepping the direct question and the responses appear contradictory and confused.

AALA are stating that they have no legal framework to force providers to improve their levels of client care and HSE is stating that it is the provider’s own risk assessment that drives the standard of revision.

It would appear that with regards to all adventure activities, so long as the provider can make a case for, for example, crocs for a hill walk, and so long as that provider can locate a technical advisor willing to agree with them, then anything goes. And it would also appear that each case of injury is dealt with by insurance or a small claim case. I know of one successful claim in Merthyr Court in which the judge agreed footwear choice was in part to blame for a client’s injury and the activity company was found to be at fault...

I find this to be an appalling state of affairs and one that requires a swift resolution as people are unnecessarily injured.

I would still like AALA or the HSE to directly answer my question. It is simple and is just asking if they agree that slip-on shoes or crocs are acceptable footwear for gorge walking - it really shouldn't have taken this much effort and this length of time to still be waiting for a yes or no answer… 

If you could ask for a yes or no response that would be great and if not then what is the next step? 

Thank you for your time.

Andy Lamb

Dear Mr Lamb

Please find attached the further response that I have now received from the AALA.

Unfortunately I do not feel that I will be able to make any further progress on this issue on your behalf. If you do feel that I can be of assistance in this or any other matter however, please do not hesitate to get back in touch.

Kind regards

Kirsty

Dear Ms Williams

Safety Precautions – Gorge Walking

Thank you for your correspondence of 18 December last year.  As you will know the HSE and the AALA as well as officials at the Licensing Service have been in correspondence with Mr Lamb on this issue for some time now.  There is little we can add to the points we have made in earlier correspondence but in answer to your specific question on what is and is not suitable footwear when engaged in activities such as gorge walking I hope the following explains requirements.

Health and safety legislation in Great Britain requires that the risks are controlled so far as is reasonably practicable.  The way to do this is through a suitable and sufficient assessment of the risks.  This risk assessment will look at an activity, identify the main hazards, assess the risk and then decide on the most suitable controls.  It follows from this that for any activity, depending on the nature of that activity, controls may vary and so for example what is or is not suitable footwear when say gorge walking is not prescribed.  It is for those arranging and managing this activity to decide on appropriate controls following their risk assessment.

We therefore cannot state categorically that footwear of type ‘x’ is appropriate for all types of gorge walking.  This will and should be decided by an activity provider’s risk assessment as the activity itself and terrain and other environmental conditions may vary, sometimes from day-to-day.  Of course, we may advise in the generality on the range of footwear that might be suitable given the variability of activity and terrain and so on, but none of this is as I note prescribed.

I hope this clarifies the legal requirements and the approach of the inspection and regulatory authorities.

Yours sincerely

Dr Richard Broughton (on behalf of the AALA)

Dear Kirsty,

Thank you for the time that you have put into this. 

It is obvious that AALA and the HSE are unable to answer a simple question, even when asked by a leading political figure. I think this raises serious questions of governance and responsibility to the electorate as if I as a voter and you as a political leader cannot gain an answer then, really, whose country are we living in?

It is a matter of urgency that minimum standards are introduced across the adventure activity industry for activities without an NGB so that individual companies are not able to legally deny clients safe provision. It is simply a crazy situation that each outdoor company can effectively write its own site-specific standards and so sidestep what, to any lay passerby, would be a minimal requirement. 

Children and adults alike are at risk in the gorge environment and in coasteering situations. There will be many further injuries. There will be deaths and I predict that these will be attributable, at least in part, to inappropriate footwear.

But we all know that where corners are cut in one area it is likely that corners are being cut in others. 

In 2005 I warned the HSE, Swansea City Council, AALA, Tourism Swansea Bay and BAPA that Clyne Farm was dangerous and was operating illegally. They were fined last week for an accident on their assault course that occurred in 2009. I am currently seeking answers as to why the HSE and AALA didn't act when I blew the whistle and passed detailed information of corner cutting and law-breaking to them.

I have knowledge of many other instances of serious injuries, including a fatality, being caused by cost and corner cutting…  I have found this whole process frustrating and debilitating.

I am the good guy and I have been demonised by AALA and made to feel that I am at fault. I am not. The HSE inspectors who do nothing, who maintain their positions of authority and income through feeding and nurturing the status quo, are at fault. And, it is clear from the political responses to a direct and simple question, that they know this.

Once again, thank you for your support in this and I am sorry that you were unable to elicit a sensible response from the public servants that are tasked to serve us.

Andy Lamb

Comments

I received supportive comments from the OIA who also drew a blank with regard to pursuing the footwear issue... but hopefully, they'll be able to continue to plug away at this important matter...

Final response from OIA...

Good Evening Andrew,

We will try our best to bring it up where we can and see what can be done, I can completely see where you are coming from with it all and it does see incredibly frustrating.

Best Regards...

Dear OIA,

Thank you for that - I have gone as far as I can with HSE - they couldn't even give a straight response to The leader of the Liberal Democrats in Wales, as senior a politician as I was able to get interested in the matter. There is no legislation but they state that operators have a responsibility to provide appropriate PPE including footwear where risk assessments indicate they are needed. Now we all write our own risk assessments so the law is farcical and young people, as well as adults, are daily being put at unnecessary risk of injury because of penny-pinching on the part of activity companies. After all, all non-professionals state to me that they think it wrong that people are seen gorge walking in trainers, pumps and crocs. And to me, as a professional, it makes no sense and leaves me feeling angry towards most of my peers. After all, none would walk up a mountain with a group in trainers, or go into a cave with a group in trainers… so why gorge walk/scramble - the terrain is far more difficult and mixed than either…

I can go no further with this for the time being as in pursuing this I have lost friends and made enemies and I feel that I've done what I can. And if HSE and AALA are not talking sense then what else can be done?

I hope maybe that you can raise the issue where relevant.

Andy Lamb