Over the past two years, we have seen an increasing number of GDPR claims being made alleging that an individual’s data protection rights have been breached.
It is always useful for organisations to be aware of regulatory and prosecution trends so that they can be mindful of the risks that are most likely to be at the forefront of regulators’ minds. A better understanding of regulators’ priorities can help providers to make targeted improvements to their services and address potential issues before incidents, inspections and enforcement actions take place.
In this ebriefing, we identify what we see as the key messages arising from recent prosecutions in the care and housing sectors.
Since the Care Quality Commission (CQC) was given powers to prosecute health and social care providers in 2015, there has been a clear trend of increasing criminal enforcement action against providers. 211 criminal enforcement actions were taken against providers in 2018/19 compared to 159 in 2017/18. Initially, the increase in criminal enforcement action was mainly attributable to the CQC’s significant use of fixed penalty notices, where a provider can avoid formal prosecution if they admit a breach of regulations and pay a fixed penalty of up to £4,000. More recently there has been a noticeable increase in formal prosecutions in the criminal courts. Since the beginning of November 2020, there have been 11 prosecutions; an average of two prosecutions per month.
Below we have identified some of the key areas upon which enforcement action has been taken.
Falls are a common issue within the care sector, with one-third of over 65's and around half of over 80's likely to fall in any year. Falls can be a cause of distress, pain, injury, loss of confidence, loss of independence and in the most serious cases, death.
As a result, the need to manage and reduce the risks associated with falls should be well known. Despite this, in April a care home was fined £10,000 after a resident fell when being transferred from a bath chair hoist to a wheelchair by staff. The resident sadly died a few days later in hospital. The subsequent CQC investigation concluded that there had been a failure to adequately assess the risk of falls and that staff did not have sufficient training to use the chair hoist safely.
Falls from height have always been a well-known risk in the housing and construction sectors and the subject of frequent prosecutions by the Health and Safety Executive; we have, however, also seen a noticeable increase in recent care sector prosecutions relating to falls from height:
- At the end of November 2020, the CQC reported that an owner of a North Yorkshire care home had been fined £80,000 after a 99-year-old man died after falling from his bedroom window. The resident was at risk of falls and used a walking frame to move around. On the morning of his death, staff found that his window, which was a single-glazed sash window, had been smashed and the resident was on the ground outside.
- In early February, a care home was fined £80,000 by the CQC after a resident died after falling out of a window. The window from which he fell was restricted by a single metal chain, which had been in place for over 15 years. A health and safety consultant had previously attended the home and advised that all windows with chains were changed.
- In March, a care home was fined £21,000 by the Health and Safety Executive after a resident was injured in a fall from height. An investigation had found that the safety chains in place on the resident’s bedroom window were inadequate to prevent the risk of falls.
Providers must, as appropriate, carry out an assessment of the risks of falls arising from the premises and the risks of falls for individual service users. Following these risk assessments, providers should then put in place measures to mitigate the risks identified. In all cases, providers must ensure that they take into account sector-specific guidance. For example, in the case of falls from windows, detailed guidance from the Health and Safety Executive is available here.
Duty of Candour
Under regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, all care providers must be open and transparent with their residents/service users/patients. When something goes wrong which results in a ‘serious notifiable incident’, providers are expected to issue a prompt apology.
We have previously seen the CQC use its powers to issue fixed penalty notices for breach of these requirements. However, recent months have seen the first two prosecutions for breach of the 'Duty of Candour'.
- In October 2020, University Hospitals Plymouth NHS Trust was fined £1,600, after it admitted that it had failed to apologise following the death of a 91-year-old woman, Mrs Elsie Woodfield. In addition, the court ordered the trust to pay over £10,000 towards the CQC’s costs.
- In April 2021, a healthcare provider was fined for failing to comply with its Duty of Candour. Spire Healthcare Limited was fined £5,000 after it failed to apologise or disclose details of failures in treatment to four patients in a timely manner. The four patients received treatment from Spire up until 2017, when concerns were raised by the Clinical Commissioning Group. Spire carried out a review. In November 2018, Spire issued letters to the four patients informing them about the concerns. In addition to the fine imposed, the court ordered Spire to meet the CQC’s costs of £15,000.
It appears clear that the CQC are intent on making greater use of their criminal enforcement powers in this area. Whilst the prosecutions brought to date all relate to hospitals, it is clear that the CQC will be carefully considering this issue throughout the Health and Social Care sector.
Following serious incidents, providers will naturally be anxious about appearing to make admissions which might expose them to the risk of civil claims or regulatory action for a failure to provide safe care; they must, however also take equal care to ensure that they comply with the need for transparency. For more information and advice about how to handle complaints and incidents, please contact a member of the regulatory team.
Other key prosecutions conducted by the CQC in the last six months are outlined below and demonstrate the range of risks that providers must address:
- A Surrey care home was fined £100,000 after a 92-year-old woman was assaulted by another person living at the service whilst she was nursed in bed.
- A care provider was fined £140,000 after a resident fell when another resident, known to display challenging behaviours, grabbed her walking frame and pushed it.
- A West Hampshire care home was fined £150,000 after an elderly man died from legionella disease in its care.
- A Hampshire care home was ordered to pay £80,000 following an incident in which a man died in a choking incident while eating his meal.
Housing providers will no doubt have been focusing their attention on the safety-related obligations created by the Fire Safety Act and the anticipated measures required under the Building Safety Bill and Social Housing White Paper. However, it is important that they do not lose sight of their general obligations to the workforce, residents and members of the public arising under health and safety legislation. As with the care sector, recent prosecutions may give some insight into areas that housing providers should ensure are being addressed.
1. Falls from height
Falls from height continue to receive significant attention from the Health and Safety Executive, with around over 20 prosecutions brought since November 2020 relating to falls from height. The Health and Safety Executive repeatedly make clear that falls from height remain the most common cause of work-related fatalities and injuries. Given the common nature of such incidents and the Health and Safety Executive’s determination to take robust action, it is not surprising that the numbers of prosecutions in relation to falls from height remain high. Given the involvement of housing providers in construction projects and repairs, the risk of falls is one that must always be kept in mind.
In November 2020, a company director was given a suspended 8-month prison sentence for failing to provide protection to workers from falls at height. Workers were carrying out work on roofs without appropriate protection. This case demonstrates that directors can also be held personally liable for these health and safety failings.
In a separate case, a large homebuilder and an electrical contractor were fined substantial amounts (£140,000 and £20,000 respectively) after failing to comply with work at height regulations.
It should not be forgotten that health and safety breaches are based on risk and a prosecution can be brought against an organisation for the creation of risk, without an actual injury being sustained. In April, a company was fined £18,000 and ordered to pay costs of £3,342 after they were found to have been putting their employees at significant risk of a fall from height while working on a roof. On two occasions, two of the company’s employees were observed waterproofing a flat roof close to an unprotected edge without the means to prevent a fall. The workers were not being monitored and had accessed the roof to do the work as they were unable to carry out the task from below with the equipment which had been provided for them.
The Work at Height Regulations 2005 applies where any work is undertaken at a height. The Regulations define 'work at height' as any activity where there is a risk that employees can fall from one level to another and include work at ground level where an individual may fall through an opening.
It is important that providers carry out a risk assessment to identify any hazards to the individuals that may be affected by them. Providers must then apply the hierarchy of control measures:
- Avoid work at height where it's reasonably practicable to do so.
- Where work at height cannot be easily avoided, prevent falls using either an existing place of work that is already safe or the right type of equipment.
- Minimise the distance and consequences of a fall, by using the right type of equipment where the risk cannot be eliminated.
For more information and advice about the health and safety issues arising from working from height, please contact a member of the regulatory team.
The Health and Safety Executive have prosecuted a number of asbestos-related cases in the last few months. Both cases related to refurbishment work, which will be highly relevant to housing providers undertaking repairs and voids work:
- A construction company was fined £12,000 and a property management company fined £25,000 after failing to manage asbestos safely during a refurbishment. It was found that materials containing asbestos had been discarded from the property and had fallen into a public car park below. The asbestos survey which had identified the presence of asbestos-containing materials had also not been passed to the contractor before work commenced.
- A construction firm was fined £30,000 when workers were exposed to asbestos whilst refurbishing a flat. The principal contractor failed to obtain an asbestos survey prior to commencing work and when a subcontractor made it known that there was asbestos-containing material within the flat, the company allowed the work to continue and failed to ensure that the asbestos-containing material was removed. This meant that several people were exposed to asbestos fibres over a prolonged period.
Whilst the use of asbestos has been banned since 1999, many buildings still contain significant amounts of asbestos-containing materials. Under the Control of Asbestos Regulations 2012 (Asbestos Regulations) housing providers will have an active duty to manage asbestos-containing materials within non-domestic premises, with a strict requirement to assess whether asbestos is present and to manage and control the risks associated with any asbestos-containing materials identified.
In addition, where any demolition, maintenance or other work likely to create the risk of exposure to asbestos is being conducted, an inspection must be carried out to assess the risks. Detailed guidance is provided by the Health and Safety Executive in relation to the management of any work carried out once asbestos-containing materials are identified.
3. Construction (Design and Management) Regulations 2005
The Construction (Design and Management) Regulations 2005 are frequently referred to in the housing sector, especially in contract negotiations for new developments and building work.
The regulations allocate responsibilities and obligations to different duty holders. One of which is the 'commercial client'. The commercial client will be the organisation or individual for whom a construction project is carried out as part of their business/operations. The organisation that holds the role of the client will, amongst other duties, be required to make suitable arrangements for the managing of a project and to ensure the principal designer and principal contractor carry out their duties.
Often, we see clients place significant reliance on the principal designer and principal contractor to complete their relevant obligations without providing any appropriate oversight.
In a recent prosecution, following a catalogue of health and safety breaches at a construction site, two joint clients (one an individual and one an organisation) were prosecuted by the Health and Safety Executive, alongside the principal contractor, for breaches of the regulations. During their investigation, the Health and Safety Executive found that the joint clients did not ensure the principal contractor complied with their duties. The individual client received a 29 week suspended custodial sentence, 3 months electronic curfew and was ordered to pay costs of £5,000; the organisation client was fined £20,000 and ordered to pay costs of £5,000.
If an organisation is the client in relation to a construction project, they must ensure they comply with their specific obligations under the regulations. This will likely involve regular communication and active monitoring of the work.
4. Hand-arm vibration
Hand-arm vibration arises from the use of hand-held power tools and can cause significant, life-impacting ill health.
The Control of Vibration at Work Regulations 2005 require employers to prevent or reduce the risks to health and safety from exposure to vibration at work. The Health and Safety Executive set out a number of actions on its website (accessible here) as to what an employer must do to comply with their obligations under the regulations.
Whilst naturally this involves assessing vibration risks and taking the appropriate action to eliminate or reduce the levels of exposure to vibration and the risks associated with that exposure, employers must also provide information and training to staff about the risks associated with vibration and the actions being taken to mitigate, reduce or eliminate the risks to which they are exposed.
The information and training the Health and Safety Executive require to be provided to employees is significant; its suggested list of what should be provided to staff can be found here.
A recent prosecution has demonstrated the importance the Health and Safety Executive place on clear, appropriate and comprehensive training being provided to staff. A housing association was fined £80,000 and ordered to pay costs of £5,293.10 after it pleaded guilty to breaches of Regulation 5(1), 6(1) and 7 of the Control of Vibration at Work Regulations 2005. Four of its employees developed Hand Arm Vibration Syndrome over a period of several years. The employees were working at various sites carrying out ground maintenance and general construction work using vibrating tools on a daily basis. The Health and Safety Executive found that employees were not provided with information and training regarding the risks of exposure to vibration and as a result, they were not aware of the risks or the need for health surveillance and ways to minimise exposure to vibration using controls.
Other key prosecutions for housing providers from the last six months are outlined below and demonstrate the range of risks that providers must address:
- A construction logistics provider was fined £850,000 after a marshall was fatally injured after being struck by a reversing lorry.
- Tower Hamlets Council was fined £330,000 after a 5-year-old girl died when playground equipment fell on top of her at Mile End Park. For more information on playground safety, please read Lorna Kenyon’s ebriefing on the case.
All of those cases serve as a reminder that housing providers must take a holistic view in relation to safety-related issues, ensuring that equal attention is paid to the risks arising from their operations to residents, employees and members of the public alike.
For more information
For further information or if you have any questions about the issues outlined in this ebriefing, please contact a member of the regulatory team.
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