The Health and Safety Executive v Gateshead Metropolitan Borough Council

Article

20 March, 2008

The Health and Safety Executive v Gateshead Metropolitan Borough Council
Gateshead Magistrates' Court
Tuesday 19 February 2008 at 10:30AM

Charge

Criminal charge in accordance with s33(1) Health and Safety at Work Act 1974 (HSWA) for breach of s3(1) namely:
"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonable practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."
The Health and Safety Executive (HSE) alleged that Gateshead Metropolitan Borough Council did not have an effective gas safety management system and therefore did not do everything reasonably practicable to ensure the health and safety of people they did not employ.

Plea

Gateshead MBC pleaded guilty at the first available opportunity. The magistrates accepted jurisdiction to sentence immediately upon representations to the same made by both parties.

Facts

Crookhill Primary School was built in 1907 when it was known as Crookhill County and Elementary School. Part of the original building was a brick chimney leading out of a boiler room, situated directly below two adjoining classrooms. Inside the boiler room were three high efficiency gas fired boilers connected to a common flue header. The flue header was connected to a flexible flue liner within the chimney due to the fact that the chimney's age made it impossible to guarantee the integrity of the flue. Evacuation of the flue gases was also assisted by the installation of a mechanical fan.

The boilers and flue system was installed in 1999 to replace the old coal fired boilers. They were installed by independent contractors who fitted the boilers and further sub-contracted the work to fit the flue system. The entire heating system had been maintained since installation by the local Environmental Services Department.

The boilers themselves worked in sequence. Initially Boiler 1 was switched on and acted as the lead boiler operating on a cycle. The boiler began to heat the school to the desired temperature. If the temperature was not reached, Boiler 2 switched on. If this did not satisfy demand then finally Boiler 3 would switch on. Once the desired temperature was reached the boilers switched off in order of Boiler 3, then Boiler 2 and then Boiler 1. If the temperature dropped again then the boilers switched back on as detailed before.

On 14 November 2006, the day of the incident, the boilers themselves were switched on by remote timer at approximately 7:30am. The usual teacher was away on a training day and so a supply teacher was covering alongside a teaching assistant. The former arrived at school at 8.30am and by the time the children had arrived at 9:00am she had developed a headache. Soon after three pupils started to feel unwell and after a playground break the supply teacher's headache began to worsen. The children in the class also started to show similar symptoms as was the teaching assistant; however she blamed her headache on herself forgetting her glasses. By 11:30am two thirds of the children looked grey and washed out and one pupil asked to leave to get a glass of water. At the point upon which another pupil collapsed to their knees, the supply teacher went to get help.

The supply teacher contacted the Head Teacher of the school and the decision was taken to evacuate the class. The teachers and children were taken to South Tyneside District and the Queen Elizabeth Hospitals in Gateshead were they were closely monitored. It was found that the levels of carbon monoxide contained in the blood of those working in the classroom ranged from 3.8% to 17.1%. In addition these figures were of a conservative value as the samples were taken hours later; thus, in reality the levels of carbon monoxide at the time the class was evacuated could have been even higher. One child was kept in over night for observation and subsequent talks with the parents revealed that some children had suffered from long standing problems such as headaches, tiredness and nausea. These symptoms were not experienced over the weekends, but rather coincided with attendance at school.

At the school fire fighters turned off the boilers and at 3:00pm Michael Bourne of the HSE attended the school to carry out an investigation of the site. The investigation lasted two days and concerned itself with the fundamental problems which led directly to the incident itself, both with the gas heating system at the school and the gas management system of Gateshead MBC.

Close attention paid to the combustion process of the three boilers revealed that they had not been maintained properly. In fact Boiler 1 was actually working incorrectly. The gas boilers themselves operate by burning gas to heat water. No problems arise when the fuel is burnt properly, however if the combustion process is not efficiently carried out carbon monoxide is produced as a byproduct. Carbon monoxide is considered dangerous to health when its level numbers between 5,000 and 10,000 parts per million (ppm). Tests carried out on Boiler 1 showed carbon monoxide levels at 21,000 ppm. To put this into context the manufacturers guidelines indicate a normal level of 100 ppm.

Flue tests carried out by the HSE revealed gases were leaking back into the boiler room through a small hole which was discovered in the brick work of the chimney. When all three boilers were tested at the same time carbon monoxide levels reached 174,000 ppm within 20 minutes, upon which the equipment locked out. Low levels of carbon monoxide were subsequently detected in the classroom, which after an hour (20 minutes for which the boilers were switched on and 40 minutes for which they were left off) measured 51 ppm. The HSE could only hazard a guess at what the levels were at 11:00am on the day of the incident after the boilers had been running for three and a half hours.

Upon further tests to Boiler 1 the heat exchanger was found to be blocked. About 75% of the heat exchanger was affected by debris which had built up in the boiler. In addition a critical orifice disc was found to be missing from the valve assembly. The function of this disc was to control the amount of fuel being used in the combustion process and in its absence it appeared that twice as much gas was being burnt than was necessary. This excess gas was not being burnt efficiently and so carbon monoxide and debris was being produced.

When the chimney breast was unbricked and the flue liner examined in more detail, 10mm gaps were found at the connection points between the parts of the flue liner that were leading into and out of the chimney. It was from here that the carbon monoxide was leaking into the chimney and then through the hole that had previously been discovered. The fact that the flue system wasn't airtight and carbon monoxide was leaking back into the boiler room created a vicious circle. Boilers need clean air to function properly, however in this case the boilers were drawing in dirty air containing high levels of carbon monoxide. A simple flue flow test would have picked up this defect however the HSE's wider investigation into Gateshead MBC's gas management system revealed no thorough maintenance of the heating installation had been conducted.

Prosecution Submissions

Investigations into the gas management system revealed serious shortcomings on the part of Gateshead MBC. An organization the size of Gateshead MBC would need a robust system in place, which would stress the importance of keeping records, maintaining quality control and implementing training schemes above and beyond the National Accredited Standard in order to provide applied and specific training. In truth, any record of information collected was not monitored. In relation to the standard forms used to collect the information, critical information was often missing and in some instances not even requested. Gateshead MBC rarely checked the records and so anomalies were not noticed.

In respect of quality control the HSE would expect 1 in 50 services on boilers to be rechecked to ensure that work was being conducted to a high standard. This would also help to highlight any potentially serious problems with any gas installations. Unfortunately Gateshead MBC never implemented a procedure to check the work that they were carrying out and were therefore unaware that the boilers and flue systems were being serviced to the desired standard.

Furthermore Gateshead MBC was not aware of the wide range of training that is required in relation to each specific boiler. Different boilers work in different ways and so different training is needed. This lack of foresight meant that the maintenance engineer responsible for the boiler and flue system at the school was ignorant to the need for the orifice disc inside Boiler 1 and thus did not realize that it was missing when the system was last serviced. In fact this problem was compounded by the lack of access to the manufacturer's instructions which accompanied the boilers.

S3(1) of the HSWA refers to the need for an employer to take steps which are reasonable practicable. The HSE argue that it is reasonable practicable for Gateshead MBC to operate an effective gas management system which incorporates the thorough completion of forms, the monitoring of records and the provision of suitable adequate training. HSE guidance on gas safety management has been available for some time and CORGI released advice regarding training and quality control in 2003. In fact it must be noted that in June 2005 CORGI investigated Gateshead MBC and prepared a report detailing suitable recommendations for improvement. Unfortunately Gateshead MBC was undergoing fundamental change at the time their housing and gas departments were splitting apart and thus the recommendations were never taken forward.

Gateshead MBC failed to devise and implement an effective gas management system and training programme. Whilst the HSE accepted that the flue system was not installed by Gateshead MBC, had it been properly maintained and serviced the incident might never have happened. Some concession was made to that fact that following the incident Gateshead MBC helped fully with the investigation and upon HSE requests that similar boilers were checked in their properties a huge programme was initiated by the council in which 60 places were checked over a three day period. This in turn led to the discovery of one other defective installation but immediate remedial action was taken.

An improvement notice was issued with the agreement of Gateshead MBC, requiring a full review of the gas management system with the assistance of CORGI acting as an independent body. This was fully complied with by Gateshead MBC and resulted in new procedures and a series of related forms being drafted. Presentations of the lessons learned from the incident have been made by Gateshead MBC to other local authorities, warning of the potential dangers that could be faced if a robust gas management system is not followed. The HSE commended the openness of Gateshead MBC in this instance.

However the incident itself carried aggravating factors and thus needed to be considered with the seriousness it warranted.
R v Friskies
R v How Engineering

Costs Sought:

The Prosecution sought costs of £6,830.00

Defence Submissions

The submissions made by the prosecution were based on fact and, in light of the guilty plea offered by Gateshead MBC, the defence did not intend to deny the failures of the council. In fact the defence could only offer an unreserved apology to all the parties affected. However it was important to put these failures into context. How exactly have they come about?

The incident itself affected children aged 8-9 years old. Although 25 people were taken to hospital, all but two were released the same day. The two in question were asthmatics and so extra precaution was taken. No evidence of long lasting damages or difficulties suffered by any of the children or teachers has been found. The response of the school was quick and open, given the emergency services and the HSE were called immediately.

Although the levels of carbon monoxide in the classroom were significant, the high figures reported by the HSE were isolated to the boiler room.

The paperwork and system failures were only identified in the broader investigation. The design and installation of the flue network was undertaken by an independent and supposedly expert sub-contractor. The fault was inherent in the design.

The key issue centred on what would have been visually apparent at the time of the last inspection. Although, the investigation of the flue by the HSE revealed 10mm gaps between the individual parts and CORGI recommended that the seal between the boiler and flue should be checked to ensure it is air tight, this is not required as a national standard of practice. In fact it would have been virtually impossible for the service engineer on the day of the inspection to find the gaps in the liner as the flue liner itself is encased in brick. Even so Gateshead MBC has now promised to go beyond standard practice in future to ensure that such a flue check is carried out.

The gas service engineer responsible for carrying out the service and maintenance to the heating system had 25 years experience and was trained to a nationally recognized standard. On 10 July 2006 he serviced the boilers and saw that a new valve for Boiler 1 was required. He ordered the new part and fitted it on 18 July. The engineer in question did not realize that the orifice disc was missing; in fact he was not aware that a boiler such as the ones in the school even contained such a component. It would therefore appear that the disc was absent from the boiler from then onwards although it can not be determined whether it had been lost before or during the service by the engineer. On the date the new valve was fitted the engineer carried out a visual inspection test. The flue flow test which would have revealed the leak in the flue liner was not conducted.

In respect of the deposits which were blocking the heat exchanges, these were not apparent when the inspection was carried out. In light of this the defence contended that these deposits were a symptom of the missing disc and only began to build up following the installation of the new valve.

The defence took the opportunity to reiterate the efforts made by Gateshead MBC following the incident, with particular reference to the checks carried out to other properties which were part of Gateshead MBC. It was stressed that this was not done as a result of the improvement notice, rather the work had commenced before the agreement with the HSE. The checks carried out represent a substantial amount of work, made up of roughly 68 properties including 35 schools. Further action which saw Gateshead MBC set up a review team led by their head of legal services. It was this course of action which led to the improvement plan and ultimately reflects the seriousness with which the council took the aftermath of the incident.

Opportunity was taken to put the contents of the 2005 CORGI report into perspective. Reference had been made to part of the report in the summary provided by the prosecution; however, the defence asserted that the whole report was not as critical as the prosecution made it appear. Its findings were positive in relation to some aspects of Gateshead MBC's gas management system. Far from there being a total lack of training, it was established that there were guidance and qualifications in place. Whether they were suitable and applied is another question, however the gas work inspected at the time of CORGI's audit had been carried out on a competent level.

Although there were problems with the supervision and maintenance of quality control at a local lower level there was no knowledge of what was happening due to inspections not being adequately recorded this could not be seen to detract from the work that was being carried out. There was not an issue as to whether the service and maintenance work was being completed, but more so that there was no satisfactory knowledge at a managerial level that said work was being conducted effectively. However it should be noted that corrective action has subsequently been taken.

The proposals and recommendations made by CORGI following their report were not implemented because the person in charge of doing so was transferred away from Gateshead MBC. In his absence the responsibility was not passed on. There is no question that had he remained the officer in charge would have implemented the recommendations, however that is not to say that the incident would have not occurred.

The defence summarised their position by putting forward four factors of mitigation.

Firstly, they pointed to the steps taken by Gateshead MBC to remedy their deficiencies and other related problems. They organized an efficient and speedy response, which saw the improvement plan successfully completed. The council has since applied for its own accreditation and held presentations with the view to spread ideas on best practice. In September 2007 such a talk attracted the attention of nine other local councils. Gateshead MBC now intends to go beyond standard practice and reach best practice in all aspects of its work.

Secondly, the defence argued that Gateshead MBC had co-operated with HSE throughout the entire investigation. They did not interfere with the investigation and have never been found trying to conceal anything that would further implicate them, choosing to act openly and honestly in accordance with the investigation.

Thirdly, there was a prompt admission of liability with a guilty plea made at first instance.

Fourthly, it was noted that there were no other HSE prosecutions either outstanding or spent. In helping to establish what weight should be attributed to this the defence pointed out that Gateshead MBC is a large organization with over 10,000 employed, 2000 of which work in the Environmental Services Department; 500 public buildings and a housing stock totaling 24,000 properties.

Final reference was made to the Milford Haven Port Authority. Whilst this does not exonerate the defendant and offers no immunity from prosecution it is highly material in relation to the defendant's status as a public body. If a fine was to be met by Gateshead MBC, it would not be borne by directors or shareholders. The fine would penalize public funds and ultimately the tax payer. Thus a fine at the lower end of the scale should be considered.

Held

A section 39 direction was made to the press in respect of forbidding the naming of any child in the press reports.

In light of the aggravated breach which had occurred over a long period of time and having taken into account the mitigating circumstances put forward by the defence and having considered the judgment in Milford Haven Port Authority, it was ordered that Gateshead MBC pay a fine of £10,000 in addition to costs of £6,830.

Representatives:
Michael Bourne for the Prosecution
Mr. Saxby for the Defence

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