Environmental Health Department
Statement of Enforcement Policy
1.0 Introduction
1.1 This Statement outlines the enforcement policy of the Environmental
Health Department of Taunton Deane Borough Council.
- Copies will be made available to businesses and individuals at
a cost of £1.50.
1.2 Wherever possible, officers will seek to find solutions which are
arrived at by agreement and co-operation and will keep in mind the maxim that
prevention is better than cure.
- Officers are required to regulate activities across a wide range of businesses
and in their professional dealings with every type of individual. Full regard
will be had to the different abilities which are encountered and to the importance
of the education and help which they themselves are able to give to achieve
compliance.
1.3 However, the aim behind much of the department's efforts is the protection
of persons at work, the general public and the environment from harm caused
by failure to comply with the safeguards provided for in law.
- This being the case, there will be circumstances in which enforcement is unavoidable
and the Council does not shrink from using its full legal powers, including
prosecution, where it is necessary to do so.
1.4 There are two distinct facets to enforcement, which may be taken
to mean either of the following:
a) Enforcement for Compliance - This ensures that the Council has programmes
in place for monitoring compliance by businesses and individuals with the various
legislation affecting them.
- For example, there will be inspection programmes in place for food premises,
workplaces, authorised processes and some privately rented accommodation.
- Many such programmes are based upon the risk while others require inspections at pre-determined intervals, or set annual targets for the number of inspections
to be made.
- Because of the diversity of requirements under the different legislation and
Guidance, it is not practicable in this document to be prescriptive about the
ways in which inspection programmes are organised and monitored.
- However, each Team/Section has in place the means to arrange programmes or
visits which will satisfy the needs of their particular legislation and the mechanism for monitoring.
b) Enforcement for Non Compliance - In this aspect of enforcement, the options available for taking action against
businesses or individuals for ignoring or otherwise failing to comply with their
legal obligations are discussed.
1.5 For the purposes of this Procedure, enforcement for non compliance
includes the following:
a) Prosecution;
b) Formal Cautions;
c) The service of Notices, included 'Minded to Take
Action' where applicable;
d) Works in Default, including seizure of equipment;
e) Revocation (of Licenses or Authorisations);
f) Written warnings (sometimes known as informal Notices);
and the principles outlined in the Enforcement Concordat (the Government's
own enforcement Guidelines) and paragraphs 3.1 to 4.8, below, will be applied
to all such actions.
1.6 Enforcement action may be taken as a result of an incident, a complaint
or an inspection.
2.0 Legal Provisions
2.1 Apart from the specific laws relating to the technical aspects of
environmental health work, there are a number of other legal or semi-legal provisions
relating to or having a bearing on enforcement as a whole.
These include:
a) The Enforcement Concordat.
b) PACE.
c) Regulation of Investigatory Powers Act.
d)
Human Rights Act.
e) Freedom of Information Act.
f) Data
Protection Act.
g) Environmental Information Regulations.
h)
Local Government Act.
i) Race Relations (Amendment) Act.
j) Codes of Practice/Guidance.
2.2 Many of the above contain little more than a passing reference to
the needs of enforcement whereas some, such as PACE, and others, are fundamental.
- Officers will comply with all of the enforcement provisions of the above when
they are relevant to a particular case.
2.3 Whenever possible, the Council will work in partnership with other
agencies to achieve common goals on matters of mutual concern.
- These Agencies will include, for example, the Environment Agency, the Health
Authority and the Health and Safety Executive, and many others, as may be appropriate.
3.0 Specific Considerations
3.1 The enforcement policy is based on firmness and fairness.
Where it is necessary, enforcement will be undertaken without fear or favour
and without consideration of the race, ethnic background, religion, social status,
colour, sex or sexual orientation of any persons involved.
3.2 If any person exerts undue or improper pressure in an attempt to
influence a decision concerning enforcement, it will be reported without delay.
3.3 As a general rule and where there may be
options, the level of enforcement contemplated will be the minimum at which
a satisfactory solution is thought to be achievable.
4.0 The Enforcement Concordat
4.1 The principles outlined in paragraphs 4.2 to 4.8, below, will be
followed at all times. These are derived from the Government's Enforcement Concordat,
to which the Council as a whole is fully committed.
4.2 Procedures - Advice from officers will be clear and simple
and will, on request, be confirmed in writing, explaining why any remedial works
may be necessary and stating the timescale for progress and completion. A clear
distinction will be made between legal requirements and best or desirable practice.
- Before formal action is taken, the opportunity may be provided to discuss the
circumstances of the case and, if possible, resolve points of difference unless immediate action is required (for example in the interests of health and safety,
environmental protection or to prevent evidence from being destroyed).
- In circumstances where immediate action is necessary, an explanation of why
such action was required will be given at the time or, if this is not practical,
within 5 working days.
- Where there are rights of Appeal against specific actions, advice on the mechanism
to be followed will be given in writing. Wherever possible, this will be included
with the enforcement Notice or other documentation.
4.3 Transparency - Information and advice will be published in
plain language concerning the legislation which the Council is applying. Officers
will be open about the work required, including any financial costs in complying,
and consultation will take place as appropriate. Discussion will take place
concerning general enforcement issues, specific compliance failures or problems
with anyone who is experiencing difficulties.
4.4 Helpfulness - Officers will provide a courteous and efficient
enforcement service and individual officers will identify themselves by name.
A contact telephone number will be provided for on-going discussions. Businesses
and individuals will be actively encouraged to seek advice and information relating
to the Department's enforcement role.
4.5 Complaints - If business operators or members of the public
indicate that they wish to complain about any aspect of enforcement work, officers
will ensure that the mechanism for doing so is clearly explained.
4.6 Proportionality - Costs of compliance are to
minimised to ensure that any actions required by the Council are proportional
to the risks involved.
Where the law allows, officers will take account of the circumstances of a
case and the attitude of the operator when considering the level of enforcement
action.
4.7 Consistency - Consistency means taking a similar approach
in similar circumstances to achieve similar ends. The aim is to achieve consistency
in the advice given, the response to incidents and the ways in which statutory
powers are used.
- Consistency does not mean simple uniformity and officers will need to take
account of many variables such as the scale of the risk, the attitude and actions
of those involved and any history of compliance, whether positive or negative.
- Decisions on enforcement action are a matter of professional judgement and
officers will frequently be required to use discretion. Efforts will continue
in order to develop arrangements for promoting consistency, including effective
arrangements for liaison with neighbouring Authorities and other enforcing agencies.
- Every effort will be made to ensure consistent enforcement standards between
local authorities. However, local circumstances may preclude an entirely uniform
approach on all issues.
5.0 Specific Enforcement Actions
The Procedures or guidance to
be followed when conducting specific types of non-compliance enforcement are
contained in paragraphs as follows:
a) Prosecution. Paragraphs 6.0-6.13
b) Formal Cautions. Paragraphs 7.0 - 7.5
c) Notices. Paragraphs 8.0 - 8.4
d) Works in Default. Paragraphs 9.0 - 9.2
e) Revocation. Paragraphs 10.0 - 10.5
f) Written warnings. Paragraphs 11.0 - 11.3
6.0 Prosecution
6.1 Where statutory powers to prosecute exist, the decision to do so
is not taken lightly.
- Each case is unique and will be processed according to its own merits. There
is no suggestion that Prosecution will automatically follow the discovery of
an alleged offence. In particular, alternative actions to prosecution which
are outlines in paragraphs 6.3, below, will be considered in all cases and at
every stage.
6.2 The decision as to whether to prosecute or not will be constantly
reviewed and, if necessary, changed up until such time as an irrevocable step
(eg offering a Formal Caution as an alternative) is made.
6.3 Alternatives to Prosecution - The following steps will be considered
as alternatives to prosecution, where applicable, as part of the decision making
process. However, each must be examined in light of Public Interest (see paragraphs
6.11 to 6.13 below);
a) Formal Caution.
b) Works in default.
c) Written Warning.
6.4 Test for Prosecution - Before a decision to prosecute is taken,
the case must satisfy, in general terms, the following Tests:
a) Evidential Test.
b) Public Interest Test.
- Each of which is described in more detail below.
6.5 Evidential Test - There must be sufficient good quality evidence
to provide a realistic prospect of conviction against each defendant
and on each charge, before prosecution is authorised.
- This is an objective test and means that a jury or bench of Magistrates, properly
directed in accordance with the law, is more likely than not to convict each
defendant on each charge.
6.6 Each prospective prosecution is scrutinised throughout the Line Management
chain before the papers are sent to Legal Services, in accordance with Procedures.
- This is so that the evidence can be tested by officers not directly
involved in the preparation of the case.
6.7 The following will be borne in mind by case officers throughout the
investigation:
a) The validity and relevance of any tape recorded interviews.
b) The continuity of evidence.
c) The quality of any notes and records kept during the investigation.
d) The level of compliance with the Enforcement Concordat, all legislation
having a bearing on enforcement practice, and internal Procedures.
If there have been substantive departures from accepted practice on any of
the above, this will be made known to line management and Legal Services, so
that decisions on whether or not to proceed can be properly informed.
6.8 Officers may obtain evidence from many different categories throughout
an investigation.
- Unused material will be disclosed in accordance with the requirements of the
Criminal Procedure and Investigation Act 1996.
6.9 In considering the evidence, the following will be addressed:
a) Any factors which might reduce the reliability of an admission made during
a taped interview such as, for example, a defendant's age, or lack of understanding.
b) Any factors which might have a bearing on the reliability of any witness.
6.10 If, after balancing the above, it is concluded that there is not a
realistic prospect of conviction, the case will not proceed to
prosecution.
- One of the alternatives listed in paragraph 6.3, above, may still
be used if appropriate.
6.11 The Public Interest Test - A number of factors will determine
whether or not a particular prosecution is in the public interest and a balance
in favour or against will be made between these factors, any of which might
be present.
6.12 Those factors which will tend towards prosecution include positive
answers to the following, which may not be an exhaustive list:
a) Number of people affected by the offence.
b) Degree to which people are/were affected (seriousness
of the offence).
c) Evidence that the offence was committed deliberately
or maliciously.
d) Evidence that the defendant intimidated or harassed
those affected.
e) Evidence of previous or on-going offences of a similar type.
f) Likelihood of repeated offence which may be deterred by prosecution.
g) Defendant was in a position of authority.
h) Lack of co-operation on the part of the defendant.
i) Offence is widespread, at least in the general area
in which it was committed.
6.13 Factors which might argue against a protection will include:
a) Court is likely to impose a very small penalty
on conviction.
b) Offence appears to have been the result of a genuine misunderstanding or
mistake.
c) Harm done was minor and was the result of a single incident, particularly
if it was caused by a misjudgement.
d) Willingness on the part of the defendant to co-operate and to ensure that
no future offences of a similar nature are committed.
e) Long delay between offence and trial, unless
i) The offence is serious.
ii) The delay has been caused, at least
in part, by the defendant.
iii) The Offence has only recently come
to light.
iv) The complexity of the investigation
results in unavoidable delays.
f) Defendant is elderly, in poor health or confused
(unless there is a real possibility that the offence will be repeated).
g) Defendant has, so far as possible, put right the
harm caused by the offence.
h) A key witness has refused to testify or to provide a Witness Statement
or, if they are the only victim, they have strongly indicated opposition to
a prosecution.
7.0 Formal Cautions
7.1 Where it is felt that prosecution may not be appropriate, the use
of the Formal Caution may be considered. In all such cases, the Home Office
Guidance on the use of Formal Cautions will be closely followed, where it applies
to legislation enforced by Environmental Health.
7.2 Typically, the reason for choosing this
option will be that the case does not fully meet the PUBLIC INTEREST TEST described
in paragraphs 6.11 to 6.13, above. It may be, for example, that the offence
did not result in real harm to any person, or that the person responsible co-operated
fully in limiting the effects of the offence.
7.3 A Formal Caution will never be used simply because
the evidence in a case is not robust enough to give a reasonable prospect of
success in prosecution.
Indeed, if a Formal Caution is offered and refused, the most likely alternative
enforcement action would be prosecution, so the evidence must always be sufficient
before a Formal Caution is considered.
7.4 Other factors governing the use of a Formal Caution include:
a) Line Management are informed before a Formal Caution
is offered.
b) No more than one Formal Caution will be issued
to the same business or person for a similar offence within the expiry period. If a further, similar offence is committed before the expiry of the Formal
Caution, then prosecution will normally be taken in all but the most exceptional
circumstances.
c) Unless the circumstances are wholly exceptional, details of any outstanding
Formal Caution will be placed before the Court in any prosecution taken within
the expiry date of the Formal Caution.
d) The suspect will be given the opportunity, if (s)he so wishes, of viewing
all of the evidence gathered in the case, including any which may weaken or
undermine the prosecution. This is to enable them, and/or their legal advisor,
to assess the evidence, so that the decision whether to accept the Caution or
not can be an informed one.
e) If accepted, the Caution will be fully recorded and a copy of the documentation
held on a Register of Formal Cautions.
8.0 Notices
8.1 The service of statutory Notices is a routine part of the work of
Environmental Health and it is not appropriate to deal with the format and wording
of Notices within a document such as this. However, there are some points of
commonality affecting all types of Notice, as follows:
a) Peer Review;
b) Associated documentation;
c) Method of Service;
each of which is dealt with in the following paragraphs.
8.2 Peer Review - There are occasions when speed of service is of
the essence and in such cases peer review may not be practicable.
Wherever possible, the use of standardised Notices will be used when peer review
is not possible, to ensure the greatest level of uniformity of approach.
When peer review is possible, and this should be in the majority of cases, each
Notice will be scrutinised by a member of the Team unconnected with the case,
using a checklist format produced for the purpose.
8.3 Associated Documentation - Under normal circumstances, the following
information will accompany a formal Notice:
a) A covering letter, setting out the background to the Notice and designating
a case officer or other point of contact.
b) A copy of the relevant Appeal provisions.
c) A separate Schedule of Works, where
appropriate.
d) Any other information which may help the person served to understand and
comply with the terms of the Notice.
8.4 Method of Service - This may be specified in individual legislation
and, in such cases, the method of service will be followed exactly.
Where there is no prescribed method, any of the following may be
used:
a) Hand delivery - The Notice will be given directly to the person(s)
identified as being responsible. Where this method is used, the date, time,
place and other relevant details will be contemporaneously entered into official
notebooks.
b) Recorded Delivery - The Notice is sent by first class, recorded delivery
post.
c) Normal Post - Where normal post is used, a short Witness Statement
may be provided giving details of the contents of the envelope, the date, time,
and place of posting, and the address to which sent.
The Statement will be in addition to an entry into the case officer's official
notebook.
d) Left at Scene - The Notice may be left at the scene, ie a premises
or vehicle. If this method is used, service will normally be by two officers.
Each will make a contemporaneous entry in their official notebook and each may
provide a short Witness Statement giving details of the contents of the envelope
left at the scene, the date, time and place of service.
9.0 Works in Default (WiD)
9.1 Works in Default refers to the powers given to the Council under specified
legislation to undertake works required in a Notice that has not been complied
with in the time permitted. A charge is normally made for carrying out such
work, which the person(s) named on the Notice would be required to pay.
9.2 The approval of line management will be sought before arrangements
are made to carry out works in default. At the time that approval is sought,
the case officer will provide full details of the perceived need to undertake
the work, and be prepared to discuss alternatives.
9.3 There are two distinct types of WiD, these being:
a) Seizure of equipment causing a nuisance, for example stereo equipment in
respect of noise problems.
b) Physical works undertaken by the Council to abate nuisance or comply with
specified standards, for example carrying out drainage works where there may
be risks to health.
10.0 Revocation
10.1 In some circumstances, notably Licensing and Authorisations made under
the Environmental Protection Act, the revocation of a Licence or Authorisation
may be used as an enforcement method.
10.2 Whilst this is a legitimate enforcement action,
it is always remembered that the above may involve the removal of livelihood,
sometimes without reference to an independent arbiter or the Courts.
Accordingly, revocation is used only as a last resort, when other sanctions
are either inappropriate, or have been tried without success.
10.3 No revocation action is taken without reference to line management.
10.4 Where revocation action is taken, it will normally follow at least
two warnings, in writing. However, it is recognised that this will not always
be possible, especially in the case of some types of Licensing offence.
10.5 When revocation action is taken, those concerned will be informed of
any rights which they may have to appeal and be told of any time limits or other
constraints which may apply.
11.0 Written Warnings
11.1 Perhaps the commonest and most versatile form of enforcement is the
use of a written warning, which may result from a service request investigation,
or a routine inspection visit.
11.2 There are few rules governing the use of this type of action, as it
is not a regulated or statutory function.
However, a written warning will normally:
a) Clearly state the nature of the problem and suggest either specific remedies
or a standard to be achieved.
b) State the actions which may follow if
matters do not improve.
c) Designate a named officer as point of
contact.
d) Clearly distinguish between a legal requirement and 'desirable standard'.
e) Indicate any follow-up action intended, (such as a re-visit in 14 days etc).
f) Offer to work with the person(s) responsible
in finding a solution.
g) Point the way to specialist advice or
additional information.
11.3 The tone of a written warning will be firm, businesslike, unambiguous,
polite and helpful.
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