Agreement between the Adventure Activities Licensing Authority and the Local Authorities Coordinators of Regulatory Services

To : Health and Safety Enforcing Authorities

For the attention of: Local Authority Health and Safety Enforcement Managers, Health and Safety Regulators and others

This circular gives advice to local authority enforcement officers

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Background

The Health and Safety Executive (HSE) has been designated as the Adventure Activities Licensing Authority (AALA) under The Activity Centres (Young Persons' Safety) Act 1995. HSE, in its capacity as the AALA, has contracted with Tourism Quality Services Ltd (TQS) to carry out the delivery of the licensing regime on its behalf.  TQS will operate under the title Adventure Activities Licensing Service (AALS) for the purposes of carrying out such delivery.  For the purposes of this agreement references to AALA should be taken to include AALS where appropriate.

Purpose

This circular sets out the working arrangements between AALA and the Local Authorities Coordinators of Regulatory Services (LACORS) on behalf of Local Authorities (LAs) enforcing the Health and Safety at Work etc. Act 1974 (HSWA) and relevant statutory provisions. Its purpose is to avoid unnecessary duplication of effort, ensure effective coordination when needed and free exchange of relevant information to promote the maintenance of the highest standards of safety within the adventure activity sector by utilising the knowledge and skills of both AALA and LAs to best effect. It only applies in relation to providers for which LAs are the enforcing authority for health and safety legislation.

Health and safety legislation relating to adventure activity providers

HSWA and its relevant statutory provisions deal with the protection of people affected by work activities. There is a duty under HSWA to protect those not at work from the risks arising out of work activities; this includes participants in adventure activities where the facilities are provided by people who are employers or are self-employed.  A number of Regulations made under HSWA also apply to adventure activity providers.  In particular, the Management of Health and Safety at Work Regulations 1999 (MHSWR) have a key role with requirements on organisation, arrangements, training, and working practices necessary to protect the health and safety of employees and participants.

The Activity Centres (Young Persons' Safety) Act 1995 and Adventure Activities Licensing Regulations 2004 (AALR) set up a licensing scheme that applies to providers of facilities for certain adventure activities to young people under 18 years of age (as prescribed by regulations).  Most of the providers subject to licensing will also be subject to HSWA and its relevant statutory provisions. Some organisations, not subject to HSWA because staff are volunteers, will be subject to licensing by AALA if they provide facilities to the public for payment.  The safety requirements for licensing are drawn directly from, or are more specific statements of, the general duties imposed by HSWA or MHSWR. These requirements are intended to secure the safety of the young people participating in the activities, though many providers will in fact apply the requirements to other participants equally.  Annex 2 gives details of the prescribed activities. 

The licensing regime creates an overlap of responsibilities for ensuring health and safety in the adventure activity sector.  AALA has powers through licensing; the health and safety enforcing authorities (HSE and LAs) have wider enforcement powers. Demarcation of enforcement responsibility for HSWA between HSE and LAs is shown in Annex 1.

AALA's responsibilities and use of powers

AALA has sole statutory responsibility for matters relating the licensing regime.  These matters relate to health and safety in connection with the facilities for adventure activities prescribed by AALR as subject to licensing.  Where the provider and activities are subject to licensing, AALA is required to secure safety standards by:

• inspection to ensure the provider is meeting the safety requirements set out in AALR;
• granting a licence only if it is satisfied the provider has demonstrated that the safety requirements have been met;
• imposition of standard licence conditions with an option to impose non-standard conditions;
• the investigation of complaints relating to matters within its remit and taking appropriate action, (otherwise passing them on to the relevant enforcing authority (EA)); and
• notifying complainant of the outcome of its investigations or the referral of the complaint to the EA.

AALA will make full use of its powers under AALR and take action through the licensing procedures to ensure that appropriate health and safety standards are met. It is expected these licensing powers will be adequate in the great majority of cases.

AALA’s powers through licensing cannot be applied:

• with immediate effect to matters in scope of the licensing scheme because its only recourse is to revoke or amend the licence and the provider has to be given notice of such action; or
• to matters outside the scope of the AALR.

Where matters of evident concern which it cannot remedy soon enough or at all, come to its notice through inspection or otherwise, AALS will notify the relevant EA without delay (see paragraph 15, Matters of evident concern). The LA will take whatever action it deems appropriate.

AALA will have due regard to the guidance on the Adventure Activities Licensing Regulations 2004 (L77 rev) [expected publication summer 2007] and the Health and Safety Commission's enforcement policy statement, in particular with regard to proportionality in applying the law and seeking compliance; consistency of approach; targeting of action and transparency about its operations and procedures.

AALA will liaise with the LAs in relation to any action that it has taken, or proposes to take, in respect of prescribed adventure activities by sending to the LA a copy of any licence, or letter refusing a licence, that it sends to providers for which the LA has enforcement responsibilities. 

LAs responsibilities and use of powers

LAs are recommended to take into account AALA's activities when they prioritise their approach to the inspection of adventure activity providers.  It is AALA’s intention to avoid unnecessary duplication of effort and dual inspection. The inspection of, and issue of a licence to, a provider of prescribed adventure activities, by the AALA, will be an important factor in determining whether and to what extent LAs should undertake a preventive inspection visit.  LAs should also take into account the extent of activities provided within and without the scope of licensing, any perceived risks to employees and the public and any health and safety concerns related to the management or the administration of the operation which are not addressed by licensing conditions, and any facilities unrelated to adventure activities.  Communication and liaison between LAs and AALA should ensure that the skills of each agency are deployed to best effect.

LA’s have responsibility for matters relating to health and safety that are outside the scope of AALR where the provider has duties under HSWA and the LA is the enforcing authority. These include matters relating to:

• adventure activities outside the scope of the licensing regime;
• the health and safety at work of employed and self-employed people not involved in prescribed adventure activities;

Where an LA is the enforcing authority it has sole responsibility for the following, even where matters are within the scope of AALR;

• enforcement action when considered necessary and licensing powers are inadequate;
• the investigation of accidents and dangerous occurrences which the provider has to report to LA;

LAs should co-operate with AALA over any action they have taken, or propose to take, at licensed activity centres. In particular:

• liaison over programmed inspection;
• informing AALA and AALS of its intention to investigate accidents, dangerous occurrences or complaints;
• copying to AALA and AALS letters sent to licensed providers;
• copying to AALA and AALS Improvement and Prohibition Notices served on licensed providers;
• informing AALA and AALS of its intention to prosecute a licensed provider.

Contact information for AALA and AALS is given at Annex 3.

Complaints

The substance of a complaint determines the responsibility for investigation.  Generally complaints will fall under one of the following broad headings:

1. about a provider in connection with matters covered by licensing;
2. about a provider in connection with matters not covered by licensing;
3. about the AALS

The AALS would deal with (i), the LA with (ii), AALA would deal with (iii).

Matters of evident concern

Matters relating to serious deficiencies in the health and safety standards at adventure activity centres (examples are given in Annex 4), which come to the attention of AALS will be drawn to the attention of the relevant LA in the following way:

• where an immediate risk to life, or risk of serious personal injury, appears to be involved, AALS will notify the LA immediately by telephone followed by written confirmation of any action taken, or proposed, in respect of prescribed adventure activities (e.g. withdrawal of licence).  The LA are asked to notify the AALA and AALS of any subsequent action decided on.
• where an immediate risk to life is not involved and there is no risk of serious personal injury, AALS will take what action it considers necessary in respect of prescribed adventure activities using its powers under AALR.  It will also notify the LA in writing of any matters falling outside the scope of AALR.

Matters relating to deficiencies in the undertaking of prescribed adventure activities may come to the attention of LAs.  LAs are asked to bring these to the attention of AALS in the following way:

• where an immediate risk to life, or risk of serious personal injury appears to be involved, the LA will take appropriate action and inform AALS, by telephone, of action taken and/or proposed.  AALS will then notify the LA of any subsequent action it decides on; or
• where an immediate risk to life, or risk of serious personal injury is not involved, the LA will notify  AALS in writing.

AALA assistance to LAs regarding investigations and proposed enforcement action

Where requested by an LA, AALA will provide any expert assistance it can on technical matters relating to prescribed and non-prescribed adventure activities.  This is likely to arise when investigating accidents or incidents that may result in the prosecution of either a provider or an individual acting on the provider's behalf.  The LA may request that a representative of AALA accompany an Environmental Health Officer to provide technical advice, where necessary in the course of their investigations.  Where this results in costs to AALA for additional services and actions which it would not otherwise incur, AALA may recover its costs from the LA.  These costs will be subject to negotiation and agreement between both parties on a case-by-case basis.

Where AALS becomes aware of a situation which requires referral to the LA, it will obtain as much information as is possible within its powers by making all reasonable requests to the provider or the provider's agent as will assist the LA in making a decision on action to take or, which could be used as primary evidence of an offence having been committed.  Such information might reasonably be expected to include the following when a licensed activity is involved: names and addresses of instructors, responsible persons, and witnesses; date; time; location; and where possible copies of relevant documents and photographs.  When a licensed activity is not involved, the AALS will have no power to obtain such information from others but a record will be made of what they witnessed.

Resolution of difficulties with this agreement

It is expected that most difficulties in operating to this circular will be resolved by discussion at local level.  Where difficulties arise which cannot be resolved in this way, the matter should be referred to the Chairman of the AALA Management Group, who will consult whoever he considers appropriate to come to an agreement on interpretation of this Circular and whether there is any need to recommend a revision.

For the AALA	For LACORS
Sandra Caldwell	Geoffrey Theobald, OBE
Director of Field Operations	Chair
Chair AALA Management Board	LACORS

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ANNEX 1

DEMARCATION OF ENFORCEMENT RESPONSIBILITY BETWEEN HSE AND LOCAL AUTHORITIES AS IT RELATES TO THE PROVISION OF ADVENTURE ACTIVITIES

Allocation of enforcement responsibility is determined by the Health and Safety (Enforcing Authority) Regulations 1998 (HS(EA)Regulations), which are applied to the enforcement of the Adventure Activities Licensing Regulations 2004 by the Adventure Activities (Enforcing Authority) Regulations 2004.  The outdoor activity industry is divided between HSE and LAs depending on the nature of the undertaking and the main activity offered as is the norm for other types of undertaking.

HSE is the enforcing authority for health and safety legislation where:

• the provider offers activities which are mainly educational, i.e. part of the curriculum for outdoor education;
• where the provider is a LA;
• where a provider occupies no base premises; and
• where the provider's only base is domestic premises.

The relevant LA is the enforcing authority for health and safety legislation where the premises are used to provide facilities mainly for leisure or corporate activities, most of which will fall within the private/commercial sector.

Where educational premises are used as a base by a provider during the school holidays, then HSE is the enforcing authority (although HSE and the relevant LA may agree to a local transfer of enforcement responsibility under reg.5 of the HS(EA) Regulations if this is appropriate).

Where a provider offers activities during term-time to school parties and to other young people during the holiday periods, then enforcement responsibility may fall to either HSE or the LA depending on the main activity.  In such situations the enforcement responsibility will be determined on a case-by-case basis.

The Adventure Activities Licensing Regulations 2004 extend the enforcement provisions of HSWA to apply to the licensing regulations.  The enforcement powers of LAs, as they pertain to adventure activities are extended so they cover not only activities conducted at premises allocated to them but also adventure activities conducted elsewhere from those premises.  HSE already has these powers.  Thus enforcement responsibility for adventure activities, such as climbing at a crag remote from the home base, will fall to the enforcing authority responsible for the home base.

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ANNEX 2

These definitions are taken from the publication Guidance from the Licensing Authority on the Adventure Activities Licensing Regulations 2004 (L77)

Caving

Caving for the purposes of the licensing scheme covers most activities done underground in natural caves or in mines, including variants described as potholing, cave diving and mine exploration.  It does not include visits to the parts of show caves or tourist mines that are open to the public or to the parts of the mines (underground excavations made for the purpose of getting minerals) that are still being worked.  It also excludes visits to natural caves or parts of caves that give rise only to everyday hazards that would be obvious to and surmountable by someone with no previous experience of the cave or special knowledge of hazards in caves.  A judgement on whether exploration can be carried out safely without the application of special skills or techniques may have to be made by an expert in caving except in the most straightforward of cases.  A licence would always be needed if rock climbing or diving equipment were required for safe access.

Climbing

Climbing for the purposes of the licensing scheme covers most activities involving movement over difficult terrain which requires the use of hands as well as feet and where safety requires either the use of the equipment or the skills and techniques of a rock or ice climber.  As well as rock climbing and ice climbing it includes variants such as gorge walking, ghyll scrambling and sea level traversing.  A licence is not required for scrambling where injury would not occur if equipment or special techniques to protect the individual from falling were not used and where other hazards, which might cause injury, are everyday hazards that would be obvious to and surmountable by someone with no previous experience of rock or ice climbing.  Use of climbing walls, abseiling towers and similar manmade structures designed for practising climbing techniques are excluded from licensing but this does not extend to other outdoor manmade structure such as disused railway viaducts.

Trekking

Trekking for the purposes of the licensing scheme covers walking, pony trekking, mountain biking, off-piste skiing, or similar, in remote open country.  Travelling in any place which is moorland (open uncultivated land at any height above sea level) or on a mountain above 600 m and from which it would take more than 30 minutes travelling time, using the standard Naismith’s Rule, to walk back to an accessible road or refuge is subject to licensing except for on-piste skiing.  Journeys by public transport or other mechanised means are not subject to licensing.

Woodland, forests and other cultivated land is excluded from the definition only where it is less than 600 m above sea level.  A road that does not have the width or surface to be used by an ordinary road going ambulance would not be an accessible road.  A refuge is a building offering shelter for the party in an emergency and it must either be occupied or have some means of summoning help.  The distance which can be covered in the 30 minutes travelling time will never be more than 2.5 km and will be less if there are uphill sections on the route back.  It must also be over a route which can be walked safely so must not have any unfordable rivers or precipitous ground on it.  Time of year and weather conditions may mean that a road is not an accessible road  or a seasonally open or occupied building is not a refuge at some times of the year.  The distance calculated by reference to travelling time is a standard one not dependent on weather conditions or the capabilities of the party that might require the adoption of a smaller distance.

Within the remote areas described in the previous paragraph any activity, which involves journeying on foot, on horse (includes pony) or on pedal cycle or skiing off-piste is subject to licensing.  Skiing is defined as sliding over snow or ice on skis, skates, sledges or similar equipment (e.g. snowboards or improvised sledges).

Watersports

Watersports for the purposes of the licensing scheme covers most activities involving unpowered craft on certain specified waters.  The specified waters include any place within the territorial limits of Great Britain on the sea or any other tidal waters, including estuaries, the tidal reaches of rivers, sea lochs and harbours.  The term also includes any body of inland water in which it is possible to be more than 50 m from the nearest perimeter bank; and any inland waters where the surface is turbulent because of weirs, rapids, waterfalls or fast flowing currents (white water).  A licence is not needed for use of craft on inland lakes, lochs or other bodies of placid water which are less than 100 m wide throughout their length and where surface turbulence is limited to the regular waves produced by wind action.  If a lake or loch is greater than 100 m wide, use of craft on any part of that body of water would be subject to licensing; a river or canal connected to it would be a separate body of water or location and would not be subject to licensing unless there is white water there.  Any stretch of inland water which is catergorised at Grade II or above according to the International Canoe Federation classification would be subject to licensing.  Grade 1 waters would normally be outside licensing, but unlicensed providers will not be able to use them when they are turbulent at times of spate flow.

The craft subject to licensing, if used on specified waters, are canoes, kayaks or similar craft; rafts (inflatable or improvised); sailing boats, windsurfers, sailing dinghies or other wind-propelled craft.  A licence is not required for the use of rowing boats, powered or towed inflatables or rafts, and the larger sailing vessels that go to sea and are subject to Merchant Shipping Act certification.

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ANNEX 3

Contact Addresses

Adventure Activities Licensing Authority

Gavin Howat
AALAMG
HSE
375 West George Street
Glasgow
G2 4LW

0141-275-3094
gavin.howat@hse.gsi.gov.uk

Adventure Activities Licensing Service
44 Lambourne Crescent
Cardiff Business Park
Llanishen
Cardiff
CF14 5GG

029 2075 5715
info@aals.org.uk

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ANNEX 4

EXAMPLES OF MATTERS OF EVIDENT CONCERN

Introduction

The following examples are illustrations of matters that might give rise to evident concern and hence a need for the parties to this agreement to keep each other informed. The examples are not exhaustive.

Examples

Deficiencies in the arrangements for ensuring safety in non-prescribed adventure activities which give cause for concern;

Participants swimming in river or lake without supervision or rescue equipment available, either in free time or as part of an organised activity; Children climbing on a climbing wall without adequate supervision by a qualified instructor either in free time, or as part of an organised activity.

Deficiencies in the arrangements for ensuring safety in prescribed adventure activities, whereby a serious breach of health and safety law is suspected or there is risk of serious personal injury, for which action is likely to result in withdrawal, or refusal to issue, a licence;

Organised abseiling session under the supervision of a group leader who is a qualified canoeing instructor but is not qualified to instruct and supervise a group in abseiling techniques; Children under sailing instruction not wearing life jackets or buoyancy aids.

Deficiencies in the arrangements for ensuring safety of employees and others, or deficiencies in the undertaking of any work activity ancillary to the provision of adventure activities;

the keeping of large quantities of highly flammable liquids (e.g. adhesives, solvents, coatings, etc) used for repair/maintenance in the general workshop with no proper provision for storage; damaged electrical cable for mains-powered equipment where the conductors are exposed creating a risk of electric shock to office staff or others;

poorly maintained, sited or protected LPG installations; lack of maintenance of gas appliances;

the reckless driving of a minibus by an employee in the provider's premises lack of means of escape from accommodation in the event of fire

Where AALA is considering the imposition of a requirement or condition in the licence, which may affect non-prescribed adventure activities;

The licensed provider is required to improve safety arrangements for an activity for young people but groups of adult clients face a similar risk which the provider is reluctant to address.

Someone who requires to hold a licence is providing a prescribed adventure activity without holding a licence to do so.

A non-licensed yachting club selling sailing instruction courses to persons under 18.

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