Adventure Activities Licensing Regulations 2004 – Guidance for Enforcing Authorities
OC331-5 (rev)
Summary
This guidance explains the Adventure Activities Licensing Regulations 2004 (AALR), the implications for health and safety enforcing authorities (EA) and the working arrangements with the Adventure Activities Licensing Authority and Service.
Introduction
The Health and Safety Executive (HSE) is designated under the Activity Centres (Young Persons' Safety) Act 1995 (1995 Act) as the Adventure Activities Licensing Authority (AALA). AALA has contracted Tourism Quality Services Ltd (TQS), operating as the Adventure Activities Licensing Service (AALS) to deliver most of the day-to-day licensing activities.
This guidance replaces OC331-5 and LAC 47-22, which are withdrawn.
Action
- Use this guidance when making or considering any intervention with or taking enforcement action against licensed providers and note the roles and responsibilities of AALA, AALS (Appendix 1) and EA (Appendix 2);
- Deal with complaints as set out in Appendix 3;
- Deal with matters of evident concern as set out in Appendix 4;
- Confirm enforcement allocation before taking action. Local authorities will be the EA for many providers.
Background
The 1995 Act set up a licensing scheme that applies to providers of specified adventure activities to young people under 18 years of age. AALR and Health and Safety at Work Act 1974 (HSW) apply to most licensed activity providers. AALR do not replace or override the HSW duties.
Activity providers take many forms including sole traders, Local Authority departments, as well as conventional 'activity centres'.
- HSE Adventure activities licensing website
- Detailed information about the application of AALR, licensable activities, requirements on licence holders and related interpretation is in L77
There are some voluntary accreditation schemes in this sector offered by some of the national governing bodies of sport. There is also a multi-activity accreditation known as "Adventuremark". A voluntary accreditation does not replace the need to hold a licence where required.
AALS inspectors sample both licensable and non-licensable activities and there is no legal requirement for a provider who holds an AALA licence to join any other scheme.
Many providers offer both licensable and non-licensable activities. This guidance aims to avoid gaps or duplication in regulating activity providers, while ensuring that each party gets the information it needs so that they can be satisfied that all aspects of provision have been appropriately considered.
Types of activity provision
Under AALR, there are two types of adventure activities: those that require a licence and those that do not. In reality, there are three types of adventure activity provision:
- Type 1 - those who offer no licensable activities - it is the responsibility of the enforcing authority to make all appropriate interventions;
- Type 2 - those who offer only licensable activities - AALS is responsible for inspecting the activities offered by these providers; EAs need only be concerned with reactive interventions and facilities other than adventure activities.
- Type 3 - those who offer both licensable and non-licensable activities – both AALS and enforcing authorities have a role. Because AALS inspectors sample both licensable and non-licensable activities EAs need only be concerned with reactive interventions and facilities other than adventure activities.
Organisation
Recording & Reporting
Record interventions and enforcement in the usual way. Advise AALA when enforcement action against a licensed provider is taken or proposed as this may have implications for their licence.
Contact and working arrangements
Contact between EAs and the relevant AALS inspector is encouraged to facilitate good working relationships and information exchange. EAs should copy letters to licensed providers about adventure activities to AALA.
EAs and AALA will liaise closely over matters requiring formal enforcement action. However, AALS will use its powers under AALR wherever appropriate and EAs will not normally need to intervene in circumstances such as refusal or revocation of a licence.
Where AALS is aware of a situation at a licensed centre that requires referral to the EA, it will obtain as much information as possible within its powers. Such information might include;
- names of instructors, managers and witnesses;
- date, time and location;
- where possible copies of relevant documents and photographs.
Assistance to EAs
EAs can ask for assistance to investigate accidents or incidents. AALA will provide what assistance it can on both licensable and non-licensable activities, particularly those that may result in formal enforcement action against either a provider or an individual.
The EA needs to consider the level of expert knowledge required. Although AALS inspectors have considerable expertise in activity provision, they are not all experts in every licensable activity. It may be necessary to seek other expert opinion in some cases and AALA may be able to identify suitable individuals. Where providing expert opinion results in additional costs to AALA, these may be recovered from the EA. These costs will be subject to negotiation and agreement between both parties on a case-by-case basis.
Freedom of Information Requests
AALA will deal with any requests for disclosure of information about licensing matters under FOI.
Further references
- Information on the regulations, activities, equipment, qualifications etc
- General information about the inspection of activity providers
Contacts
Adventure Activities Licensing Authority
HSE
Cornerstone,
107 West Regent Street,
Glasgow,
G2 2BA
Appendices
Appendix 1: Role of AALS
AALS:
- Inspects the adventure activity provision (including equipment and activities) and makes the decision (on behalf of AALA) to issue a licence or not. The licence may have particular conditions attached;
- Will only issue a licence if the safety management arrangements, activities sampled and any other matters considered are satisfactory;
- Will inform the EA when a provider is first issued with a licence,
- Can revoke or refuse to renew an existing licence and will inform the enforcing authority if it intends to refuse or revoke a licence or that a refusal is being considered;
- Has no statutory enforcement powers and no immediate power to prevent an activity continuing;
- Cannot investigate accidents or dangerous occurrences, although it may assist other agencies to do so.
- Will attempt to resolve all or any HSW matters which comes to its attentions, and which are within its field of expertise, and will notify the EA if this is unsuccessful.
AALS inspectors will take appropriate and proportionate action to address any deficiencies they find. If they find deficiencies with any adventure activity, irrespective of whether or not it is licensable, they will address it. Where matters fall outside of the regulations, AALS will bring these to the attention of the enforcing authority if the provider does not address them voluntarily. In the great majority of cases, AALS intervention is adequate.
AALS conducts sampling inspections focused on safety management and activity provision. They do not inspect every activity but focus on activities that will yield the most useful information. The inspection seeks to identify all adventure activities, both licensable and non-licensable, as the two are commonly related.
AALS handle initial representations from providers about licensing decisions. If AALS cannot resolve the matter, the provider may make formal representations to the AALA. If the matter cannot be resolved, there is a formal right of appeal under AALR reg. 15. There is no appeal to the enforcing authority on licensing decisions.
Appendix 2: Enforcing authorities' responsibilities and powers
There is no change in responsibilities in relation to HSW because of AALR. Note, whether or not AALS has taken action does not prevent the enforcing authority from taking any action they see fit.
LAs should note that activities may take place away from the activity centre and should consider undertaking proactive inspection even if they are in another authority's geography. Note: any proactive inspection undertaken should be in line with the requirements of the National Local Authority Enforcement Code.
AALS inspect providers at least once every three years and EAs should consider this when they prioritise inspections. EAs should focus on providers who do not hold a licence in accordance with their own arrangements, resources and priorities. Duplication of inspection is undesirable but a joint inspection may be appropriate where specific HSW concerns need addressing at a licensed provider.
Where all or some of a provider's adventure activities are subject to AALR, the EAs involvement will normally be reactive. Their involvement with other HSW matters, that is, arrangements other than their adventure activities, is not affected. They should inform AALS of their intention to make a reactive visit related to licensable activities. The EA has sole responsibility for enforcement action under HSW and investigation of reportable accidents and dangerous occurrences, even where matters are within the scope of AALR.
EAs should co-operate with AALA over any action they have taken, or propose to take, at licensed activity centres. In particular by:
- informing AALA of its intention to investigate accidents or dangerous occurrences related to any adventure activities;
- copying to AALA all letters sent to licensed providers about matters that could impinge on activity safety;
- copying to AALA any Improvement or Prohibition Notices served on licensed providers;
- informing AALA of its intention to prosecute a licensed provider on any HSW matter.
Information exchange is essential to ensure that AALA is aware of any matters of concern that could be of wider relevance to the sector and of any matters that may affect a provider's licence.
Appendix 3: Complaints about the management of safety of Adventure Activities.
The substance of a complaint determines the responsibility for investigation.
| Complaint about | Who investigates? | Note |
|---|---|---|
| Provider offering only non-licensable activities | EA | AALS assists if needed |
| Provider offering only licensable activities | AALS | Refer matter to EA if other HSW matters involved or enforcement action required |
| Provider offering both licensable and non-licensable activities | AALS | Refer matter to EA if other HSW matters involved or enforcement action required |
Appendix 4: Matters of evident concern
Matters of evident concern at adventure activity providers that come to the attention of AALS will be dealt with as follows:
- Immediate risk to life, or risk of serious personal injury appears to be involved, AALS will immediately bring this to the attention of the provider. They will then notify the EA by the most appropriate practical means including written confirmation of any action taken, or proposed, in respect of adventure activities. The EA should notify the AALA and AALS of any subsequent action taken;
- Where an immediate risk to life is not involved or there is no risk of serious personal injury, AALS will take what action it considers necessary regarding licensable activities and refer it to the EA if not adequately addressed. Matters out with licensing should be referred to the EA.
Matters of evident concern relating to activity providers may come to the attention of the EA. They should bring these to the attention of AALA in the following way:
- Where an immediate risk to life, or risk of serious personal injury appears to be involved, the EA should take appropriate action and inform AALA and AALS of the action taken. The EA will be advised of any subsequent action taken; or
- Where an immediate risk to life, or risk of serious personal injury is not involved, the EA will notify AALS in writing.
Examples of matters of evident concern
- Young people swimming in river or lake without adequate supervision, either in their free time or as part of an organised activity;
- Young people on a climbing wall without adequate supervision or considerations of safety by a competent instructor;
- Children rock climbing without suitable head protection;
- Improper storage of outboard motor fuel;
- Damaged mains electric cable creating a risk of electric shock;
- Poorly maintained LPG installations, including storage and pipe work;
- Lack of maintenance of gas appliances;
- Dangerous grounds, buildings or facilities.
Other offences which EAs should pursue.
- Non-licensed sailing club selling sailing instruction to persons under 18 who are not members;
- Offering a prescribed adventure activity without a licence when one is required.