After Standards’ reform: The sunny uplands of possibility?

As a topic of conversation, the role and scope of play equipment and surfacing standards[1] may appear somewhat dry and technical, a bit of a turn-off.  But consider this:

• The playground equipment and surfacing industry here in the UK has an estimated annual turnover in the order of £170m – £200m, a significant proportion of which is in effect funded by taxpayers and charitable funders.  Question has to be: Does that spend represent value for money, is it doing the best possible work for children’s play opportunities?

• And a wider question: Are decisions about the detail of play provision spending lodged in the right hands?   Is decision-making about play provision well-balanced, or askew?

Those latter questions should counter the notion that questions about standards are merely dry and technical.  In this article I speculate as to what benefits might flow from a rationalisation of play equipment and surfacing standards.

The discussion so far

For readers who have only now visited this blog, you can get up to speed on one particular perspective on standards by reading the joint paper[2] ‘Children’s Play Space and Safety Management: Rethinking the Role of Play Equipment Standards’.  In addition, there is my previous post  ‘Standards: Time for Reform?’  which acts as an introduction to the article that follows below.

But before moving on, I’ll summarise some key points.  Skip the next three paragraphs if you’re familiar with the sort of arguments I’ve[3] deployed in respect of the need for Standards’ reform.

The proposed change

It is proposed that standards should be restricted to those matters susceptible to objective, technical assessment, for example, the tensile strength of metal, the depth required for foundations and so forth.

A consequence of that change

In contrast, those matters characterised as ‘value-saturated’ would be devolved to individual play provision providers, the duty holders. Decisions in this value-saturated area should be framed by, for example, the provider’s:

• play policy
• understanding of play
• understanding of children and teenagers’ behaviours and interests
• local conditions
• and the duty holder’s assessment of what, in any particular case, constitutes an ‘acceptable level of risk’.

‘Value-saturated’ matters include, for example, fall heights, surfacing, minimum space around equipment.  These latter and related matters are not susceptible to the catchall, uniform stipulations of a standard.

Rebalancing decision-making

One practical effect of the proposed change would be to shift decision-making to the local level, to those actually responsible for play provision on a daily basis.  Local decision making should be based on risk-benefit assessment.  This is important: It is not suggested that matters withdrawn from the purview of standards do not require consideration, that they are of no consequence.  Rather, the question is who is best placed to considers them, who is to make decisions in this ‘value-saturated’ realm.

Currently, decision-making in this wide area has been hived off to standard making-bodies.   The truth is that, notwithstanding the play sector’s enthusiasm for risk-benefit assessment, its scope of use is significantly limited in those play areas where standards hold sway. This means that, in practice, much provision is outside the risk-benefit judgment-making process; or only susceptible to it at the margins.

Come the changes, different providers are likely to make different decisions about what they consider ‘an acceptable level of risk’.  Good.   A ‘mixed economy’ of play provision will emerge, experimentation will increase, different experiences will be available for scrutiny and assessment.  No longer encased in a catchall standard, play providers will have the opportunity to be more thoughtful and creative about their provision.

A counter argument here could be that, terrified by this new burden of responsibility, some play providers – think, for example, housing developers – will make their play provision even more bland and uninteresting than is currently the case.  That seems to me a risk worth taking.  It is not as though these organisations are immune to influence, argument and local pressure.

Courts

Claims against play providers do not keep the courts that busy.  Nevertheless, when a claim does go to court the lower courts in particular tend to treat adherence to standards as indicating that the duty of care has been fulfilled, and the test of reasonableness met.

Deviation from the standard, whether large or small , can lead to a negative judgment even where, on a wider, risk-benefit assessment view, that judgment may be questionable.

With standards confined to a more limited territory, the courts will no longer be able to rely on them as a form of assurance beyond the matters where it is proposed they have authority .  This represents a potentially seismic change in the way courts will have to look at negligence cases in play provision.  For the courts, now no longer able lazily to reach for a standard as the basis for a verdict, the focus will have to shift to the play provider’s judgment-based, risk-benefit assessment.

The courts would now have to address the question as to whether, in the light of the particular circumstances of the case, the play provider had acted reasonably in coming to their risk-benefit judgment. Note, this is distinct from the question of whether that risk-benefit judgment resulted in a negative outcome.  A negative outcome – for example, a serious injury – is not the criterion by which reasonableness is judged.

Potential beneficial effect

The potential beneficial effect for play providers is that, so long as they have embedded risk-benefit assessment into their practice, they will have less reason to fear the courts.  This then has the potential to create more scope for play providers to create richer play environments than is currently the case.

It also gives a leg-up to proponents and designers of more natural play environments – the farce of some play providers and inspectors attempting to shoehorn fallen trees, boulders  and other ‘natural’ features into compliance with play equipment and surfacing standards will cease. We should see the end of  trees or boulders being judged non-compliant in relation to standards.

Insurers

We can speculate that, over time, changes in the way the courts address play cases will have an impact on insurers. They, too, will be unable to rely on standards beyond the more restricted scope that they now cover.  This will create more space within which risk-benefit assessment can flourish and be seen as the legitimate and necessary decision-making tool for judgments about risk in play.

The pace of change may be fast or slow. I do not know.  But one can speculate that, over time, a more varied insurance market will develop, with some insurers being quicker than others to see that, in practice, risk-benefit assessment is a process that does not hurt their bottom line.

Once again, the overall beneficial effect will be to free play providers from unhelpful constraints and enable them to think more creatively about their provision.

Play equipment and surfacing industry

As noted above, the play equipment and surfacing industry has a turnover of somewhere between £170m – £200m (difficult to get an accurate figure; and of course the UK public sector market has undoubtedly shrunk in recent years)  a significant portion of which is, and will in the future be, income derived from taxpayer and charity-funded projects.

It is estimated that in any conventional, equipped playground somewhere in the region of 50% of the expenditure goes on impact absorbent surfacing and fencing.  Many consider that much of this expenditure represents neither value for money nor does it contribute to a meaningful diminution of risk to children and teenagers at play. This latter contention is of course hotly contested by those of a contrary view.

What counts here, however, is that, in the light of informed and authoritative doubt about the utility of impact absorbing surfacing (IAS), it is reasonable that a play provider should reach their own view as to whether IAS represents a net benefit, and if so, which form of surfacing should be deployed, and in what circumstances.   The shift here, once again, is to local decision-making via a risk-benefit assessment.

To be clear: It is not that surfacing should not be considered.  The issue is who should consider it.  This being a value-saturated matter, it becomes a matter for local decision-making.

I allow myself the optimistic prediction that once surfacing is released from the grip of standards, there will be a decline in expenditure, certainly of rubber-based products and, all things being equal, a concomitant shift in play provision expenditure to the actual play environment.

More widely, with standards restricted to those matters susceptible to objective, technical assessment, the space will be created for a more creative play equipment industry to develop, one  no longer shackled to standards that determine practically every aspect of a conventional playground.

With so many aspects of play equipment captured in a standard, the difference in much equipment is essentially cosmetic, rather than substantive.   With enhanced flexibility, the hope must be that  smaller equipment manufacturers will potentially have more opportunities to find a foothold in a market currently substantially dominated by larger companies.

From the perspective of the larger play equipment manufacturers, standards are commercially useful, for a reason that lies at the heart of standards, that is, the ‘ objective [of standards] is to agree on common specifications to respond to the needs of industry…’.

Where one relies on mass production, economies of scale, and sales across national boundaries profitability is enhanced by a rigid, cross-jurisdiction standards’ regime.

Procurement

A curtailment of the territory occupied by standards should affect procurement criteria.  The current, in my view erroneous, insistence of provision purchasers that standards be adhered to as a condition of tender, will lose its force.  As with the courts, in a wide range of matters there simply will be no standard to refer to.  Once again, this is likely to free up this sector of the market and create space for more innovative approaches to play provision, as well as encouraging play provision providers to be more thoughtful and creative.

Natural play environments

I mentioned earlier that limiting standards in the way described will contribute to ending the farce of trying to make ‘natural’ features meet a play equipment or surfacing standard.  This alone should encourage  designers and landscape architects to be more creative, to escape stipulations that simply make no sense in this context.  Once again, to stress, nothing proposed here is to suggest that the matters that the current standards cover are of no significance.  Questions of fall heights, surfacing and so forth must be considered, but via the concepts and procedures of risk-benefit assessment.

Inspections

The proposed curtailment of the territory occupied by standards will affect the scope of inspections. Currently, inspections are tied to checking against the standards. This function will to a significant extent fall away.  The role and scope of inspections is ripe for thought and discussion.  I suspect I’ll come back to the subject in due course.  

Lest there be doubt

This article has been about how standards have strayed beyond their proper boundaries to colonise areas beyond their competence.  It has also looked at the potential benefits consequential to limiting their current scope.

No argument has been made against play equipment as such.  In fact, in my view, the proposed changes allow for a more permissive, creative approach to the design of play equipment.   It would therefore be wrong to think that the case against current play equipment and surfacing standards is proxy for an argument against play equipment.  It is not.

Public and charitable funds

To the degree that the points made here have purchase, is the degree to which a significant percentage of current spending decisions on play equipment and surfacing can be thought ill-judged, to the point of wastefulness.

We are ever eager to knock on Government’s door for funds for play and this of course is valid. Equally, it is salutary to consider whether our own house is in good order.  Arguably, to a significant extent, we have not to date spent well or wisely in that extensive territory captured by standards.

Endword

It may be considered that I have given a somewhat panglossian account of the potential benefits that could flow from a change in standards.  At this stage, in what has yet to become a wide-ranging debate, I think it helpful to give as clear account as possible of potential benefits.

There will doubtless be out and out detractors to the points made here, and others who will wish to enter caveats and refinements to the argument.

Good. Bring it on.   The subject being addressed here is neither a marginal nor minor matter.

[1] In this article the term ‘standard(s)’ means play equipment and surfacing standards.  There is no intention in this article to look at standards as such.

[2] Co-authors are: Professor David Ball, Harry Harbottle, Tim Gill, Bernard Spiegal

[3] It’s important to note that the position expressed in this article is mine alone and does not imply agreement by the co-authors of the joint paper referred to above.