Select Committee on Environment, Transport and Regional Affairs Memoranda

Supplementary Memorandum by the Health and Safety Executive (CEM 102(b))

  Pursuant to my letters of 8 and 11 January, please find below additional information relating to the Health and Safety Executive's (HSE) responsibility for cemetery memorials.


  HSE's main purpose is to ensure that risks to people's health and safety from work activities are properly controlled. This includes the work of public bodies such as local authorities and their role as burial authorities (BA) whose activities might affect the health and safety of people not in their employment. The key duties under the Health and Safety at Work etc Act 1974 (HSWA) are qualified by the term "so far as is reasonably practicable". The meaning of this is set out in case law (Edwards v NCB [1949] 1 KB 704 at 712, [1949] 1 All ER 743 at 747, CA, per Asquith LG) and requires a balance of risk against cost. Where the risk is trivial, it may not be worth spending money to reduce risks further. However, as the risks increase, then progressively less weight can be given to the costs of measures needed to avoid those risks.

  Any decision by HSE to take enforcement action must be in accordance with the Health and Safety Commission's (HSC) enforcement policy. This requires the decision to be proportionate to the circumstances, consistent as to the process and outcome, targeted at the more serious risk, and transparent to all with an interest.

  In reaching decisions, HSE takes account of a number of factors including: the risk; the appropriate standard applicable; the employer's attitude; and the management arrangements for health and safety. Other factors would include: previous enforcement and inspection history; general conditions; and resource, including the impact of the cost on the duty holder.

  As crown prosecutors HSE must comply with the code for crown prosecutors. This requires HSE to consider the public interest when making enforcement decisions. In the case of memorial safety there are a number of "public interest" opinions that must be balanced, for example:

    (a)  concern of the relatives who own graves;

    (b)  concern about the risk posed by unstable memorials;

    (c)  particular concerns from those injured or bereaved by falling memorials;

    (d)  public concern about the amenity and aesthetic value of cemeteries.

  Where councils have responsibilities to maintain the heritage or amenity value of things in their care, HSE would expect spending decisions also to take health and safety improvements into account. HSE would similarly take amenity and heritage considerations into account in health and safety solutions. However, this cannot be at the expense of people being put at significant health and safety risk. It should be noted, however, that IBCA research suggests that most unstable memorials requiring attention to make them safe are less than 40 years old, and not those older memorials which might be considered to be of particular heritage value.

  When making enforcement decisions, HSE will also take account of other legal requirements on duty holders, such as the Local Authorities Cemeteries Order 1977 (LACO).

  It is HSE's view that heritage and amenity considerations need not be in conflict with health and safety and indeed they will in general share the same objectives. The method used to secure the safety of memorials is a matter for the BA. The legal duty enforced by HSE is that the cemetery is safe; how the BA secures that is its decision.

  There are several ways of ensuring that structurally unsafe memorials are made safe until permanent repairs can be made. These include laying down memorials or cordoning them off and displaying warning notices. There are also various proprietary pieces of equipment designed to support memorials in the upright position. HSE is aware of some BAs which have temporarily closed cemeteries whilst safety issues are dealt with, rather than lay down numerous memorials.


  The decision to issue an Improvement Notice (IN) against Harrogate Borough Council (HBC), after a six year old was killed by an unstable memorial, was made taking all the above issues into account, including the following:

    (e)  HBC first surveyed its cemeteries in 1997. This resulted in a high percentage of unsafe memorials being laid down causing local complaints and adverse media interest. The inspection programme was halted;

    (f)  the programme was not reconsidered until October 1999 and re-implemented early in 2000;

    (g)  the implemented survey plan was not targeted in its approach and did not address dangerous memorials as a priority.

  The IN was discussed with senior officers at HBC prior to service. HSWA provides a mechanism for appeal against the terms of a Notice if the recipient feels it is incorrectly issued or requires action that is not reasonably practicable. HBC did not exercise this right of appeal. In fact HSE received a letter from HBC's Chief Executive expressing thanks for its considered approach.


  HSE has regular dealings with English Heritage (EH) on a number of issues, and has inspected EH managed sites such as castles and stately homes.

  HSE has discussed with EH the appropriate way of ensuring the safety of listed structures and buildings which are owned by other organisations. Our joint aim is to find mutually acceptable ways of ensuring buildings and structures of historical or heritage value are made safe and remain so.

  There have been no discussions with EH on the issue of memorial safety. HSE has discussed the impact of preservation orders on memorials with individual local authorities, and has advised that if a listed memorial is unsafe then it must be securely cordoned off until it can be repaired safely. This may temporarily affect the overall aesthetics of the cemetery but the risk of serious injury or death cannot be left unattended just because a preservation order exists.


  HSE accepts that the BA is not the owner of the memorials and has to comply with other legislation, notably LACO. This sets out the administrative procedures that BAs should follow before they take action to repair a damaged memorial or lay it flat.

  However, LACO makes it clear (Article 3) that BAs have the power to take action where memorials constitute a risk to safety. HSE expects BAs to use this power to ensure safety where a memorial presents an immediate danger to cemetery users. In other situations where the risk is not immediate, HSE expects the BA to satisfy the full requirements of LACO and contact the owners of the memorial before taking direct action.

  If suitable inspection procedures are in place, owners should be informed and asked to take appropriate action before memorials become a significant risk.

  The difficulty in tracing ownership is recognised by HSE. The guidance published by the CBA, to which HSE contributed, deals with this issue. It recommends that the application to erect a memorial contains full installation and fixing details, and that the right to erect memorials be subject to a period inspection requirement as part of the grant conditions. Whilst this will not solve the problem with existing memorials where ownership has expired or cannot be traced, it will if implemented prevent the problem from escalating.


  Although HBC state that HSE agreed to consult with the Local Government Ombudsman on memorial management and safety, the inspectors at the meeting recall no such agreement.

  The Local Government Ombudsman investigated a complaint against Newcastle under Lyme Borough Council regarding the council's approach to inspection and addressing unsafe memorials. The finding of maladministration causing injustice was for failing to give advance publicity about the survey for memorial safety to grave owners and laying down memorials that were not unsafe. The issue was not whether the authority had the duty to take action in respect of memorial safety, but the method which they used.

  HSE concurs with the finding. Only in cases of immediate danger should a burial authority take action without notification to the memorial owner.

  Having considered the Ombudsman's report, HSE sees no strategic need to enter into discussions over its findings in the case against Newcastle under Lyme. Unfortunately, this view has not been formally confirmed to HBC.


  HSE cannot assess accurately the likelihood of another case similar to Harrogate. The number of accidents reported to HSE are low, however, those that have been reported involve serious injury or deaths of children. If the CBA and IBCA guidelines are followed HSE believes that the risks of such accidents will be significantly reduced.


  HSE contributed to the CBA and IBCA guidance and consider the guidelines for management of memorials to be reasonably practicable. HSE will bring the guidance to the attention of all inspectors and will expect inspectors to bring the guidance to the attention of duty holders during inspections of Local Authorities.

  HSE places a priority on the inspection of health and safety management in Local Authorities. During these inspections we may look at one service, such as education, or we may look at a range of services. HSE does not expect inspectors to routinely inspect cemeteries. There are no plans to change this approach in the light of the CBA/IBCA guidance.

  HSE will continue to work closely with the industry on the management of cemeteries, in particular management of memorials and in the development of training standards for their inspection.

  HSE has regular contact with the Local Government Association (LGA) primarily over local authorities' role as enforcers of health and safety legislation. There is no separate or distinct part of the LGA for HSE to deal with on discussions over the role of local authorities as employers. HSE is working with the Local Government Employers Organisation (EO) to address this. The EO has recently created a new post to advise local authorities as employers. This post will be invaluable in the future to disseminate health and safety information to all local authorities. However, local authorities only account for a small proportion of BAs, albeit the larger cemeteries.

  Under health and safety legislation the duty holder has the responsibility to assess and control the risks to employees and non-employees. Guidance and advice may be sought from organisations such as HSE, EO or, as in the case of cemeteries, the CBA and IBCA, but the onus is on the duty holder to do so. Neither local authorities or any other duty holders can rely on organisations such as HSE and EO to actively inform them of all the risks inherent in their undertakings.

  HSE, therefore, does not individually and proactively contact all duty holders and advise them of the risks associated with their activities. Rather, HSE uses intermediaries such as the CBA and IBCA to disseminate guidance to as wide an audience as possible. The onus, however, is still on the employer to seek the relevant information.

  Section 40 of the HSWA states that in any proceeding for an offence under health and safety legislation (where the duty is qualified by "so far as is reasonably practicable"), it is for the accused to prove that it was not reasonably practicable to do more than they did. It is unlikely that not being aware of a risk, or failing to obtain relevant industry guidance, would satisfy this test.


  The accident data previously supplied to the committee relates to accidents to members of the public involving memorials. None of the circumstances surrounding the accidents suggest vandalism, although some children, including the fatal at Harrogate, were playing unsupervised in cemeteries. The data was compiled from the HSE database of reported accidents (searching on accidents to members of the public in cemeteries). 27 accidents were found, 10 relating to memorials.

Christopher Triggs

HSE Secretariat

February 2001

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