By
Chartered Health and Safety Practitioner 'Bravo Three Zero'
Previously, we looked at Civil Aviation Publication 660, co-produced by BPA Ltd and the CAA to govern parachuting, in the context of insurance. In this article, we shall examine CAP 660 in the context of Health and Safety legislation.
Now, let's take another look at CAP 660.
CAP 660 –– Parachuting
2.4 Nothing in CAP 600 is intended to conflict with the ANO or other legislation, which in case of doubt must be regarded as overriding.
3.12 The use of a Safety Management System (SMS) is mandatory for PTOs and Display Teams.
It is therefore recommended that they refer to CAP 795: SMS Guidance for Organisations and CAP 1059: SMS Guidance for small, non-complex organisations in order to fulfil this requirement.
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| CAP 660: Mooning the Law? |
CAP 660 clearly recognises that persons are at work. In other words, they are consequently subject to the Health and Safety at Work Act 1974 –– which is therefore the primary governing legislation –– and its regulations, particularly the Management of Health and Safety at Work Regulations 1999.
CAP 660's Safety Management System requirement is interesting as these are high-level risk-based safety documents and, in many cases, replacements for Safety Cases.
An SMS pertains to the Policy, Organisation and Arrangements as required under Section 2 of the Health and Safety at Work Act 1974 and would be considered in law as overriding any operations manual, particularly one written by an amateur sports organisation like the British Parachute Association.
Various BPA Council Members and PTO operators have publicly stated that BPA Ltd senior management, particularly the Chief Operations Officer Tony Butler, have on numerous occasions stated that they do not want any HSE involvement in skydiving.
How would BPA Ltd sidestep Health and Safety regulations pertaining to parachuting? First of all, it is necessary to read this text:
Appendix: Health and Safety (Enforcing Authority)
Regulations 1998: A-Z guide to allocation schedule
Parachuting
A demarcation of responsibility has been agreed between the HSE and the CAA for the safety of non-employees, including the public, involved or affected by parachuting.
Serious or fatal incidents/accidents are subject to a British Parachute Association Board of Enquiry who report to the CAA. OC801/2 and Supplement provide further guidance. Incidents/complaints referred to the LA should be discussed with the ELO in the first instance.
MOD parachuting
This Supplement to OC 801/2 outlines the approach which should be adopted in relation to parachuting undertaken by MOD. The arrangements are different from those detailed in OC 801/2.
1. As a general rule parachuting undertaken by service personnel and parachuting by civilian members of MOD sponsored parachuting clubs is not subject to the day-to-day control and regulation of the British Parachuting Association (BPA). Similarly the CAA is only involved in accident investigations if the internal MOD Board of Inquiry report identifies matters which they regard as having implications outside the MOD.
2. The HSW Act ss.2 and 3 will apply to military parachuting and with the exception of parachute activities outside the General Agreement (see FOD Code IN Fh for details), will be subject to inspection.
3. Accidents to service personnel are not reportable under RIDDOR but accidents to civilians taking part in MOD sponsored parachuting together with accidents involving other persons who may be affected (eg persons on the ground hit by a parachutist) will be reportable subject to the normal criteria.
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| BPA COO Tony Butler: respecting the law? |
Secondly the BPA are almost certainly misleading the HSE, arguing that parachuting is not a work activity and any non-work related parachute accident is subject to BPA investigations as established in the Allocation Schedule.
Thirdly, to square the circle, the BPA insurance does not cover anyone at work or affected by a work activity, as Don Canard revealed in Protection Racket.
This means that display teams, instructors and coaches, tandem instructors, riggers and packers drop zone control staff and even tandem skydiving 'students' are unlikely to be adequately covered by BPA Ltd's insurance cover.
Furthermore, not reporting accidents and injuries under RIDDOR is a criminal offence normally prosecuted under section 2 of the Health and Safety at Work Act 1974, and carries heavy fines.
It seems clear that BPA Ltd directors, executives and representatives have connived to evade reporting duties for decades, as the death of John Ward and and other incidents indicate.
This raises yet another question: why is BPA Ltd not reporting accidents and incidents in accordance with current legal requirements? Could it be that the British Parachute Association –– which claims to be empowered by the Civil Aviation Authority with regulatory oversight of parachuting in the United Kingdom –– is not Health and Safety-compliant?
Incident and Accident
Reporting and Investigation
Reportable Accidents
4.12 An accident shall be reported to the Air Accidents Investigation Branch (AAIB) and the local Police if, between the time when anyone boards an aircraft with the intention of flight and such time as all have left it if:
§ Anyone is killed or seriously injured while in or on the aircraft or by direct contact with any part of the aircraft, including any part which has become detached from it.
§ The aircraft incurs damage or structural failure.
§ The aircraft is missing or completely inaccessible.
§ The aircraft commander (or if the commander is killed or incapacitated, the operator) must report immediately by telephone to the AAIB on 01252 512299. This number is monitored 24 hours a day.
Note: There are some exceptions – full details are contained in:
https://www.gov.uk/government/organisations/airaccidents-investigation-branch.
§ In the event of an accident, an MOR must also be submitted to the CAA within 72 hours.
Mandatory Occurrence Reporting
4.14 Any incident which endangers, or which if not corrected would endanger any aircraft, its occupants or any other person, shall be reported to the CAA. These provisions also apply to any defect or malfunctioning of such an aircraft or of a ground facility which may be used in connection with its operation.
4.15 The CAA requires a written report of any incident of a serious nature or accident involving injury or damage to a third party.
4.16 Accidents occurring at locations under the control of the MoD or involving members of the armed forces who are on duty or deemed to be on duty will also be reported and investigated in accordance with MoD regulations.
4.17 The requirements of CAP 660 do not absolve any person from the requirements of other legislation or regulations relating to health and safety or the reporting of accidents, which may in some circumstances be overriding.
4.18 Incidents of a serious nature involving British Skydiving Parachute Training Organisations and Display Teams must be reported to British Skydiving, who will follow their established procedure.
4.19 Fatal accidents involving British Skydiving Parachute Training Organisations and Display Teams are subject to a British Skydiving Board of Inquiry, which is composed of experienced British Skydiving Examiners and the Chief Operating Officer and/or the Safety and Technical Officer, none of whom must have any direct interest in the organisation involved. The inquiry report will be passed to the Police, the Coroner and the CAA.
This all appears reasonably transparent and simple to the untrained eye but any qualified safety professional can see that the above extract from the CAP 660 seems to be written with the intention of obscuring and thus evading legal requirements and obligations. Paragraph 4.17 is particularly revealing and worth repeating:
4.17 The requirements of CAP 660 do not absolve any person from the requirements of other legislation or regulations relating to health and safety or the reporting of accidents, which may in some circumstances be overriding.
This wording, which seems deliberately opaque, refers directly to SI 1471 The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, more usually known by its acronym RIDDOR.
These regulations require reporting to the Health and Safety Executive (HSE)/Local Authorities (LA) via the established mechanism of specified events or occurrences in relation to persons at work or as a result of a work activity.
RIDDOR is overriding and any exemption not to report to the HSE/LA is subject to delegation of responsibility from the HSE to another Authority for example to the Air Accident Investigation Branch via SI 321 the Civil Aviation (Investigation of Air Accident and Incidents) Regulation 2018.
Air Navigation Order 2016
Part 2 Application of the Order
Exceptions from application of provisions of the Order for certain classes of aircraft
23.—
(1) This article applies to
(a) any small balloon;
(b) any kite weighing not more than 2kg
(c) any small unmanned aircraft; and
(d) any parachute including a parascending parachute.
(2) Subject to paragraph (3), nothing in this Order applies to or in relation to an aircraft to which this article applies.
(3) Articles 2, 91, 92, 94, 95, 239, 241 and 257 (except 257(2)(a)) apply to or in relation to an aircraft to which this article applies, and article 265 applies in relation to those articles.
CHAPTER 3 Specialised Activities
Dropping of persons and grant of parachuting permissions
90.—(1) Subject to paragraphs (9), (10) and (11), a person must not drop, be dropped or be permitted to drop to the surface or jump from an aircraft flying over the United Kingdom except under and in accordance with the terms of either a police air operator’s certificate or a parachuting permission granted by the CAA under this article.
(2) A person must not drop, be dropped or be permitted to drop from an aircraft in flight so as to endanger persons or property.
(3) The CAA must grant a parachuting permission if it is satisfied that the applicant is a fit person to hold the permission and is competent to conduct parachuting safely, having regard in particular to the applicant’s—
(a)previous conduct and experience; and
(b)equipment, organisation, staffing and other arrangements.
(4) An aircraft must not be used for the purpose of dropping persons unless the aircraft (a)has a certificate of airworthiness and (i)that certificate has been issued or rendered valid for that aircraft under the law of the country in which the aircraft is registered; and (ii)that certificate, or the flight manual for the aircraft, includes an express provision that it may be used for that purpose; or
(b)has been authorised for the purpose of dropping persons by — (i)the CAA or (ii)an organisation approved by the CAA to provide such an authorisation, and is operated in accordance with a written permission granted by the CAA under this article; or
(c)is operated under and in accordance with the terms of a police air operator’s certificate.
(5) Every applicant for and holder of a parachuting permission must make available to the CAA if requested a parachuting manual.
(6) The holder of a parachuting permission must make such amendments or additions to its parachuting manual as the CAA may require.
(7) The holder of a parachuting permission must make its parachuting manual available to every employee or person who is engaged or may engage in parachuting activities conducted by the holder.
(8) The manual must contain all such information and instructions as may be necessary to enable such employees or persons to perform their duties.
(9) Nothing in this article applies to the descent of persons by parachute from an aircraft in an emergency.
The Air Navigation Order establishes the extent and limitations of CAA jurisdiction in relation to parachuting. The CAA has regulatory oversight of all persons on the aircraft and must give permission for a parachutist to exit. Once the parachutist has exited and cleared the aircraft, responsibility for regulatory oversight reverts from the Civil Aviation Authority to the Health and Safety Executive.
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| Letter of the Law on Parachuting Oversight |
Responsibility for receipt of reports and investigation of accidents relating to parachuting reside with the Air Accident Investigation Branch if the accident occurs in or on the aircraft, or the parachutist comes into contact with an aircraft as in the case of the death of John Ward.
In other cases, skydiving and parachuting accidents are reportable under RIDDOR and fall within the jurisdiction of the HSE. This is further clarified in the CAA/HSE Memorandum of Understanding, Version 4.0 issued in December 2016 with CAP 1484 providing guidance in relation to the relevant authority remit.
CAP 1484
CHAPTER 1
Scope
1.2 HSE health and safety function
§ By agreement HSE is responsible for regulating the occupational health and safety of all work activities on and around an aircraft on the ground, except the activities of crew members whilst they are on board the aircraft.
§ The HSE retains enforcement responsibilities for health and safety employee and employer consultation legislation.
1.3 CAA aviation safety function
§ These functions include the safety of air navigation and aircraft including airworthiness, the control of air traffic, the certification of operators of aircraft and the licensing of air crew members and aerodromes.
Derivation of legal powers
1.6 HSE health and safety function
§ The Health and Safety at Work etc. Act 1974 (HSWA) places general duties on employers to look after the health, safety and welfare of their employees. They also have duties to protect the health and safety of other persons who may be affected by the work activity. It places similar duties on the self-employed. It also places duties on employees to look after their own and others’ health and safety.
§ Regulations made under the HSWA generally make more explicit what employers are required to do to manage health and safety.
§ Both the HSWA and regulations made under the Act covering particular hazards or sectors of work require that risks arising from the work activities are controlled, so far as is reasonably practicable.
1.7 CAA aviation safety function
§ Safety regulatory functions of the Civil Aviation Authority derive from the Civil Aviation Act 1982 and from its designation as the United Kingdom competent authority for the purposes of European aviation safety regulations.
§ The detailed powers and obligations for aviation safety functions are set out in Air Navigation Order 2016 (ANO) made pursuant to Section 60 of the Civil Aviation Act 1982 and in Regulations (such as the Rules of the Air Regulations, Air Navigation (General) Regulations and Air Navigation (Dangerous Goods) Regulations made pursuant to powers contained in the ANO.
§ Additionally Regulation 216/2008 establishes the European Aviation Safety Agency and enables detailed implementing rules to be made. The implementing rules deal with initial aircraft certification, continuing airworthiness, aircrew licensing, aerodrome certification and aircraft operations. For each of these, the CAA is designated as the UK competent authority.
1.8 CAA occupational health and safety function
§ The CAA’s occupational health and safety regulation functions are set out in the Civil Aviation (Working Time) Regulations 2004 (as amended).
§ These regulations require that the health and safety of crew members be adequately protected while they are at work for UK registered operators.
Chapter 6
Flying for personal transportation, recreational flying and parachuting
CAA remit
6.2 The CAA is responsible, under the terms of the Civil Aviation Act and the Air Navigation Order (ANO), and where applicable, European Union regulations for generally regulating the safety of all aviation activities.
HSE/LA remit
6.4 The HSE and the relevant Local Authority (LA) are responsible for enforcing health and safety law at all premises. Detail is contained in the Health and Safety enforcing regulations and associated guidance.
6.7 Many recreational and personal transport flying activities provide employment, either in connection with the main activities or as a sideline. Chapter 1 to this guidance gives details of the appropriate application of legislation.
6.8 There are certain circumstances in which the HSE/LA may become involved in investigations into accidents. For example, civilian parachuting accidents must be reported to AAIB only if the accident occurs while the injured party is in or upon an aircraft or by direct contact with any part of an aircraft. Accidents are reportable to the HSE/LA when they arise out of or in connection with work.
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BPA Ltd COO Tony Butler has been quoted in the media as claiming to have been involved in investgations into more than fifty skydiving-related deaths during his thirty-year career with BPA Ltd. BPA-affiliated Parachute Training Organisation operators attribute many of these deaths to bad canopy-handling skills.
The average British skydiver receives six hours of training before his or her first solo jump compared to British military parachutists who undergo around 137 hours of training during their Basic Parachute Course at RAF Brize Norton. Military parachutists at all levels are trained by government-qualified instructors whose qualifications can be proven.
All of this raises the question of why there has never been any prosecution or other
enforcement action in relation to a skydiving accident nor even a probation or
improvement notice. The BPA oversees parachuting but who oversees –- and regulates –- the BPA?
Bravo Three Zero
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