Version:

2

Date:

29 July 2008

Review Date:

12 February 2012

Author Unit/Section:

AALAMG

Open Government Status:

Fully Open

Target Audience:

HSE Inspectors with responsibility for adventure activities

Summary

This OC describes the Adventure Activities Licensing Regulations 2004, explains the key features of the Regulations and the licensing scheme. HSE has been designated as the Adventure Activities Licensing Authority and has contracted TQS Ltd to discharge most of its day-to-day functions under the licensing regulations. TQS is referred to as the Adventure Activities Licensing Service. Details are given of the interface between HSE inspectors and inspectors from TQS Ltd.

Background

The Adventure Activities Licensing Regulations 2004 (AALR) give effect to the provisions in the Activity Centres (Young Persons' Safety) Act 1995. 
The AALR require certain providers of facilities for adventure activities to be licensed. The Secretary of State for Work and Pensions designated HSE as the Adventure Activities Licensing Authority (AALA) on 1 April 2007. HSE has contracted TQS Ltd (the former AALA) to discharge most of the day-to-day licensing functions, including the issue of licences. TQS is known as the Adventure Activities Licensing Service (AALS). AALS may be contacted at:

Adventure Activities Licensing Service
44 Lambourne Crescent
Llanishen
Cardiff CF14 5GF
(tel: 029 2075 5715; fax: 029 2075 5757; email: info@aals.org.uk)

A governance system has been established to ensure the effective discharge of the obligations on HSE as the licensing authority and on TQS as the contractor. These arrangements are also intended to ensure ease of communication between the parties and to provide appropriate oversight at a senior level.

A Board has been established with delegated responsibility from the Executive to act as the AALA. This Board is known as the Adventure Activities Licensing Authority Management Board (AALAMB). It has a strategic overview of the regime, is a forum for review of disputed licensing decisions that have not been resolved by other routes and will consider the future policy on the regime as a whole. The AALAMB only meets on an occasional basis.

Day to day oversight of the regime, monitoring of contractor performance, provision of guidance and support to inspectors, liaison with the adventure activities sector, etc. is carried out by the Adventure Activities Licensing Authority Management Group (AALAMG). Contact information for the AALAMG is given at the end of this OC.

The AALA has published new guidance on the licensing regime as Guidance from the Licensing Authority on The Adventure Activities Licensing Regulations 2004 (L77). This guidance sets out the standards that the AALA and AALS will adopt when deciding whether a provider of adventure activities has met the requirements for the granting of a licence.

Scope

The AALR set out the statutory scheme for the licensing of certain adventure activities. In general (but see exceptions under the Legal Interpretation section of this guidance), those who provide, in return for payment, facilities for certain adventure activities to young people under 18 must hold a licence and comply with its requirements. Such facilities must include some element of instruction or leadership. The term 'adventure activity' is broadly defined in reg.2(1) as caving, climbing, trekking or water sports, although these activities are further defined later in the AALR. It is an offence to offer in-scope activities to young people without holding a licence.

Role of the Adventure Activities Licensing Service

AALS appoints persons to consider licence applications and accompanying documents, to inspect the applicant's facilities and to prepare a report upon which the decision to issue a licence is based. AALS are authorised to sign and issue licences on AALA’s behalf.

The AALS has no statutory enforcement powers and no immediate power to prevent an activity continuing. In respect of licensing, its powers are confined to the;

• granting, refusal, revocation or variation of a licence;
• attachment of non-standard conditions to a licence (in addition to specified standard conditions);
• inspection of premises and equipment used in connection with the facilities for the specified adventure activities;
• gathering of information from licence holders in respect of the licensed activities; and
• inspecting of any other places, equipment and documents as the person making the inspection thinks necessary for the purpose of enabling AALS to satisfy itself about the granting of a licence.

The AALS cannot investigate accidents or dangerous occurrences but is responsible for dealing with complaints involving licensed activities and for taking appropriate action. This may involve referring the matter to the appropriate enforcing authority. The enforcing authority can ask AALS to assist in the investigation of accidents or incidents. In this case, AALAMG must be informed as soon as possible. AALAMG will liaise with AALS to ensure that any matters regarding any prior role issues, cost recovery etc. are managed appropriately.

Enforcement arrangements

The AALR are not made under HSW Act and they are not relevant statutory provisions. However, for the purposes of enforcement, AALR reg.17 provides for them to be treated as such.

Generally, enforcement allocation follows the normal pattern but the enforcement responsibilities of LAs are extended to cover the activities conducted remote from a base where that base is allocated to them.

In broad terms, HSE will be the AALR enforcing authority for educational providers and for all centres run by LAs, as well as for those who retain domestic premises as a base for peripatetic and remote working. LAs will be the enforcing authority for the remaining providers, including the commercial providers such as multi-activity holiday centres.

Contract and working arrangements

The contract between HSE and TQS Ltd details, inter alia, how the two organisations will work together.

A separate agreement has been made with LACORS that covers AALA's dealings with LAs and this is available to LAs as a LAC.

Under the terms of the contract, HSE and AALS will liaise closely over matters requiring formal enforcement action to be taken. However, it has been agreed that AALS will use the powers under AALR wherever appropriate and thus HSE will not normally be expected to intervene in these circumstances.

The role of HSE inspectors with regard to licensed activity providers for which they have AALR and/or HSW Act enforcement responsibility is generally for the investigation of accidents and dangerous occurrences, complaints about adventure activity matters outside the scope of licensing and all other health and safety matters outside the scope of licensing. AALS will generally deal with all matters related to licensing and with complaints relating to matters in scope of the licensing regime. They may be called upon to assist HSE inspectors in investigations. AALAMG must be informed in this case.

Legal interpretation

The following information may assist inspectors in interpreting AALR (further information is given in L77, Appendix 1):

Persons required to hold a licence (reg.3)

The key question in determining who should hold a licence is ‘who is providing the facilities for adventure activities’?  In determining this, account should be taken of the extent of responsibility for, and control over, the venue, equipment, safety and emergency arrangements - as well as the provision of leadership or instruction. Thus, individual instructors who are employees of, or contracted as agents of, the provider would not need a licence in their own right if the provider (i.e. their employer or principal or anyone else who has authorised them) holds a licence for such facilities.

Voluntary associations - facilities for members

Where a voluntary association (which is defined in reg.2(1) of AALR) provides facilities for its own members (also defined in reg.2(1) of AALR), the association is not required to hold a licence. Where that association employs an instructor who receives payment, but the activities are offered only to its own members, again no licence is required either by the association or the instructor. However, where an instructor is contracted by the association to provide an activity session for its members in return for payment, and the instructor takes responsibility for organising the session, or has responsibility or control over some of the factors listed in the preceding paragraph, then the instructor becomes the effective provider and requires a licence (HSW Act enforcement responsibility would fall to the enforcing authority responsible for the provider).

Voluntary associations - facilities for non-members

Where a voluntary association provides facilities to non-members for payment, the association is required to hold a licence, other than for 'taster' sessions referred to in reg.3(2)(a)(iii) or where an agreement exists between the association and a second voluntary association. Note: where a person is made a “member” solely for the purpose of receiving instruction then this is discounted for the purposes of licensing and in this case the voluntary association would require a licence.

Self-employed instructor

Where independent instructors receive payment for sessions arranged by themselves, then, irrespective of client status (as long as they are under 18), they are required to hold a licence. This includes peripatetic instructors working without a fixed base (e.g. from domestic premises).

Education centres (schools, colleges etc)

An education centre will generally require a licence if it fulfils the criteria specified in regs.2 and 3. This will usually be the case if it provides facilities to the public or to pupils of another educational establishment. It will not require a licence if it is part of an educational establishment providing activities only for its own students. The ‘for payment’ test for the need to hold a licence in reg.3(1) is set aside in the case of local authorities providing facilities to schools without payment and therefore in these cases, local authorities will require a licence.

Family groups

A licence is not needed to provide facilities to young people accompanied by their parent or legally appointed individual guardian.

Persons to be safeguarded

The AALR are intended to secure the safety of young people participating in certain adventure activities. The reference to 'other persons' in reg.6(1)(a)(i) is intended to cover those persons participating with the young people e.g. instructors and accompanying teachers. It is not intended to include, for example, an adult-only group attending an activity centre and who may be participating alongside a 'licensed' group, nor persons participating in a provider’s non-licensable activities.

Under reg.6, the AALA has to take into account the safety of employees engaged in prescribed adventure activities when considering whether to issue, renew, etc a licence.

Volunteer providers

Providers who are not self-employed, employees or employers are not subject to HSWA. Thus, the enforcement powers provided under AALR apply only to the prescribed adventure activities in relation to such providers.  Inspectors have no powers with respect to the other aspects of the provider’s operation.

Voluntary or non-statutory accreditation scheme

Inspectors should be aware that work is currently underway under the auspices of the Adventure Activities Industry Advisory Committee (N.B. this is not an HSE committee) to set up a non-statutory accreditation scheme that may cover a broader range of activities and providers than the current statutory scheme.  Inspectors will be kept informed of developments.

Action by inspectors

Recording

Information or papers received about adventure activity providers for which HSE is the enforcing authority, should not be retained for any longer than required. If the provider is not registered then a COIN record should be created where appropriate.

Inspection

Duplication of inspection of activity providers by both the AALS and HSE inspectors should be avoided, but joint or separate inspection activity might be appropriate where:

• activities extend beyond those licensable by AALA;
• specific HSW concerns are to be addressed; or
• HSE has no previous or recent knowledge of the operation of a business by an activity provider.

In determining the need for, or the extent of any planned inspection, inspectors should take account of AALS inspection activities and the issue of licences and should establish contact with AALS to agree demarcation and to plan visits to minimise the burden on the business. HSE involvement with activity providers whose activities are all or predominately subject to AALR should normally be confined to reactive work, although AALS should be informed of the inspector’s intention to visit. Any letter sent following a visit to such providers should be copied to AALS.

Where, during the course of a visit, an inspector finds matters of evident concern (see Annex 1) relating to prescribed adventure activities, then the procedures in this OC should be followed i.e. the provider should be informed and the matter referred, in writing, to AALS. It is particularly important that, where there is an immediate risk of death or serious personal injury, the inspector takes the appropriate action to prohibit the activity before referring the matter to AALS.

Where matters of evident concern outside of licensing are seen, inspectors should follow existing arrangements and procedures for dealing with these or passing the information on to the appropriate authority.

Inspectors should continue to follow established procedures for dealing with accidents and dangerous occurrences, although AALS should be informed (in writing) of the action taken, or proposed, in respect of all adventure activities (whether or not they are prescribed activities). A joint investigation with AALS may be appropriate (e.g. where technical expertise is required). Where technical matters are involved, Inspectors are advised to consult AALS promptly. Where additional assistance is needed from AALS, for example attendance in court as an expert witness, then a charge may be made by AALS. Such matters will be dealt with on a case-by-case basis and should be referred to the AALAMG.

Enforcement

Complaints relating to non-licensable activities should be dealt with in the normal manner. The assistance of AALS may be sought if inspectors feel it to be appropriate or necessary. Any complaints concerning licensable adventure activities should be referred to AALS and the complainant informed of this action.

If consideration is being given to taking formal enforcement action on any matter relating to the technical aspects of a prescribed activity, then Inspectors should contact AALAMG or AALS for advice and support as appropriate. It is very important that any enforcement on technical matters has appropriate support in the same way as in any other sector.

Copies of any notices served by HSE must be forwarded to AALMG and AALS. AALAMG must also be informed of HSE's intention to prosecute a licensed provider.

The enforcement, offences and penalties provisions of HSW Act apply to the AALR in the same way as for the relevant statutory provisions. Any decisions regarding formal enforcement action should follow existing practice and be consistent with HSE's enforcement policy statement. However, inspectors should be aware of the high public interest which usually follows a serious accident to a young person at an activity centre, and this will be one factor in considering enforcement action.

Liaison

Liaison between HSE and AALS should be undertaken at local office level. Any matters not resolved locally, should be referred to AALMG.

Further information

Further background information on the developments leading to the establishing of the statutory licensing scheme may be found in the HSE report into Safety at Outdoor Activity Centres (file 331). Any queries concerning the licensing scheme, this OC or enforcement demarcation matters between HSE and LAs (which cannot be resolved through the Enforcement Liaison Officer arrangements) should be referred to AALMG.

Incidents and accidents in the adventure activities sector, whether licensable or not, inevitably attract media and political interest. In the event of an incident, inspectors should be aware that there is likely to be a need to prepare briefing material for both HSE internal needs and for the media. The relevant Head of Operations and AALAMG should be advised promptly of any incident and the action being taken. AALAMG and Press Office have prepared an outline press briefing that can be used as a basis if required.

Contacts

The AALAMB can be contacted through the AALAMG.

Contact information for AALAMG: 

Gavin Howat
VPN 521-3094 (0141-275-3094)
Email: gavin.howat@hse.gsi.gov.uk
Additional information on AALS can be found at www.aals.org.uk

Cancellation of instructions

OC 331/5, version 1 - cancel and destroy.

Annex 1 – Examples of matters of evident concern

Introduction

The following examples are illustrations of matters that might give rise to evident concern. The examples are not exhaustive.

Examples

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

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

Deficiencies in the arrangements for ensuring safety in prescribed adventure activities, or deficiencies in the undertaking of any such activity, 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 competent 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,) used for repair/maintenance in the general workshop with no proper provision for storage or poor outboard motor fuel storage;
• damaged electrical cable for mains-powered equipment where the conductors are exposed creating a risk of electric shock to staff or others;
• poorly maintained, sited or protected LPG installations, including pipe work;
• 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 who are not members.