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  1 KB 704 at 712,  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
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
(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.
HARROGATE BC IMPROVEMENT
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
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 APPROACH TO
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.