Agenda Item No 8 Community and Environment Board 31 March 2008 Report of the Assistant Chief Executive (Special Projects) Update of Regulatory Enforcement Authorisations in relation to Food and Health and Safety 1 Summary 1.1 The purpose of the report is to revise the procedure for prosecution of food offences and health and safety offences, suggest improvements to the information updates on Regulatory control and revise the outdated legislation and personnel references of previous decisions. 2 Recommendation to the Council a That the power to instigate prosecution proceedings continues to be delegated to the Solicitor to the Council; b That the decision to institute a prosecution file be delegated to the Environmental Health Manager; c That consultation on proposed changes of legislation be brought to the attention of the Board by informal for note type reports; and d That the outcome of prosecutions be reported formally to Board. 3 Background 3.1 Members will recall that from time to time new pieces of legislation concerning food and or health and safety appear to be enforced by the Council’s Environmental Health staff and for which authorisation is sought. 3.2 As the current procedures are reviewed, it is timely to seek approval for authorisations in line with the current law and codes of practice and of course the Hampton Principles referred to elsewhere in the agenda. 3.3 Decisions of the previous Committees in 1989 and 1992 have established principles on when prosecution should be considered. 3.4 These decisions have now been superseded by precedents, Codes of Practice and latterly by the Department of Business Enterprise and Regulatory Reform’s Regulators code of compliance. 3.5 More reliance on the European Communities Act 1972 as a method of statute setting and ever changing titles of statues and statutory instruments has now left some references out of date. 8/1 D:\533571879.doc 3.6 Similarly the references in those decisions that were designed to give management control, need to be reviewed as they have been superceded by the change of post titles, Directorates and defunct Committees. 3.7 Much management control of enforcement from mere letter writing through to formal cautions has been exercised by senior officers for some considerable time, bound by such things as the agreed enforcement policies, the agreed Enforcement Concordat – both of which have been advised by the Codes of Practice (- originally No. 2 Legal Matters) under the Food Safety Act 1990, and the Enforcement management model under the Health and Safety at Work etc. Act 1974 and both of which have reference to the Code of Practice for Crown Prosecutors. As another report on the agenda advises, the Regulators Code of Compliance will add further to the decision making process of which type of enforcement actions to consider. 3.8 With this in mind Members are asked to agree that the decision for prosecution under the Food Law and Health and Safety Law in force at the relevant time, be delegated to the Environmental Health Manager in consultation with the relevant Assistant Director for Regulatory matters and or the Solicitor to the Council. The Board would then receive activity reports on cases as and when they occur. 3.9 This removes current reference to the Chairman and possibly the Assistant Director (Regulatory and Community Support), and relies on the knowledge base of the Council’s regulatory professionals in maintaining the statutory duty placed on the Council - as Food Authority (in the case of the Food Safety Act and regulations) and as the employers of officers authorised under Section 19 Health and Safety at Work etc. Act 1974 (for matters concerning health, safety and welfare in premises allocated to the Local Authority by the Enforcing Authority Regulations) - after consideration of the statutory requirements and relevant Codes of practice, and the Council’s Solicitor who is already authorised to instigate those proceedings. 3.10 Because of the nature of food regulatory control, very few cases actually reach Court proceedings as the removal of the hazards are the primary objective rather than punatative sanctions. That having been said there are occasions when prosecution would be appropriate. Such cases may well include following on from an Emergency Prohibition Order - which closes a food premises because of imminent health risks, or following a serious food poisoning outbreak or for continued and gross contraventions of the Regulations and often in such cases, time is of the essence. These are examples and not meant to be an exhaustive list. 3.11 Actions for Health and Safety regulatory breaches are again infrequent, and management of the cases are by using the approved Health and Safety Executive’s (HSE) Enforcement Management Model. Such management involves linking clearly hazard, risk, outcome and degree of harm rather than outcome and blame. 3.12 Current Government practice is to offer new legislation and regulations up for consultation before finalisation. It may be more appropriate to draw Members’ attention to such consultation as and when they occur through means other than formal reports to inform of changes that are impending. 8/2 D:\533571879.doc 4 Report Implications 4.1 Safer Communities Implications 4.1.1 No direct implications from this report however the situations it seeks to control if not attended to would have an adverse effect by permitting unsafe or unsuitable hygiene conditions to go unpunished. 4.2 Legal and Human Rights Implications 4.2.1 The implications of the Council acting outside of the law are untenable and the report seeks to redress any area where confusion could occur. 4.3 Environment and Sustainability Implications 4.3.1 The existence of conditions that offend the law give rise to risk to compliant businesses. The report seeks to ensure miscreants are dealt with appropriately within a system of overall management and legal control. 4.4 Human Resources Implications 4.4.1 Previous staffing references are now obsolete, as posts have been renamed. The onus is on the Environmental Health Managers as the most senior Environmental Health professionals, but as such is within their management control. 4.5 Risk Management Implications 4.5.1 The current risk assessment - EH11 appended -covers a decision making risk. This amendment to procedure and policy is based on the controls already in place and is sufficient. 4.6 Equalities Implications 4.6.1 Attached. 4.7 Links to Council’s Priorities 4.7.1 The Councils main priority is to act within the law. The Contact Officer for this report is Paul Williams (719328). Background Papers Local Government Act 1972 Section 100D, as substituted by the Local Government Act, 2000 Section 97 Background Paper No Author Nature of Background Paper Agenda Item No 9 Borough EHO Environmental Control Committee Agenda Item No 5 Borough EHO Environmental Protection and Improvement Committee Date Committee Report 18 Sept 1989 Committee Report 15 June 1990 8/3 D:\533571879.doc Corporate Theme: Quality Service Provision Risk Ref Risk: Title/Description EH11 Incorrect professional decisions resulting in legal action or appeals (relating to Food Safety, Health & Safety and other legal requirements – see p84 of constitution) Consequence Risk Ref Compensation Ombudsman Court Action Higher insurance costs Adverse publicity Re-training /disciplinary of staff Increased financial cost Likelihood (5 = high, 1 = low) Impact (5 = high, 1 = low) Gross Risk Rating Responsible Officer 2 4 8 P Williams “ “ “ Options for additional / replacement control procedure Existing Control Procedures Continuing CPD/PTU for each Delegation and specific authorisations-in constitution. Level of delegation set according to risk involved Training appraisalstaff CPD & PTU examined by PWcomplete a presentation at team meeting- cascade learning Supervision of Enforcement Policycheck list, shows evidence (all enforcement is graduated by seniority but comes through PW. If PW enforces- action checked by level below) Cost Resources Likelihood( 5 = high, 1 = low) Impact (5 = high, 1 = low) Net Risk Rating 2 3 6 Likelihood (5 = high, 1 = low) Impact (5 = high, 1 = low) Net Risk Rating Can only be carried by qualified staff, therefore low risk (Delegation to close premises only with Paul Williams and Steve Whiles) Completed By: P W Williams Re-moderated 11/10/2006 Date:22/06/04 Moderated RMG 26/11/2004 8/4 D:\533571879.doc Initial Equality Impact Assessment Pro Forma Section Environmental Health Officer responsible for the assessment (Commercial and Licensing) Name of Policy to be Prosecution for Food, Health and Date of Assessment assessed Safety Offences 6th Feb 2008 1 Briefly describe the aims, objectives and purpose of the policy. 2 Are there any associated objectives of the policy? Please explain. 3 Who is intended to benefit from this policy, and in what way? 4 What outcomes are wanted from this policy? 5 6 8 Paul N Williams Is this a new or existing policy ? Existing but reviewed To update obsolete references to posts and legislation & streamline procedures if prosecution is the outcome. Linked to the impending Regulators Code of Compliance (elsewhere on the agenda) to ensure appropriate regulatory controls without unnecessary burdens to compliant business. The overall objective is the health, safety and welfare of those living, visiting or having business in the Borough. Directly the Enforcement staff and Council – overall those living, visiting or having business in the Borough notably the compliant businesses who should thrive and be economically buoyant. Appropriate and fair enforcement outcomes, appropriate use of legal and Court resources, and a system easily understood by the enforcement staff involved. What factors/forces could contribute/ There may some businesses who are incapable or unable to comply and hence will need the detract from the outcomes? full force of the law. This will not be seen as detraction though, more of a positive use of process to secure compliance or remove the hazard from the Borough. Who are the main Both the regulated entities ( business) and 7 Who implements the The Commercial licensing team stakeholders in relation to the public at large who use the services of policy, and who is , its manager will have overall the policy? those businesses. responsible for the policy? responsibility with the Councils solicitor. Please explain. Language differences MAY be an issue in a Are there concerns that the policy could have a small number of cases. differential impact on racial groups? What existing evidence (either presumed or otherwise) do you have for this ? D:\533571879.doc Y Aware of the current number of businesses by racial/ethic or national background that from knowledge of the routine inspections that no particular language problems exist. Monitoring will continue and translation services both spoken and written are or can be available. 9 Are there concerns that the policy could have a differential impact due to gender? What existing evidence (either presumed or otherwise) do you have for this? 10 Are there concerns that the policy could have a differential impact due to disability? What existing evidence (either presumed or otherwise) do you have for this? 11 Are there concerns that the policy could have a differential impact due to sexual orientation? What existing evidence (either presumed or otherwise) do you have for this? 12 Are there concerns that the policy could have a differential impact due to their age? What existing evidence (either presumed or otherwise) do you have for this? 13 Are there concerns that the policy could have a differential impact due to their religious belief? What existing evidence (either presumed or otherwise) do you have for this? D:\533571879.doc N There is no evidence from knowledge of routine inspections that gender would have an impact N There is no evidence from knowledge of routine inspections that disability would have an impact. N There is no evidence from knowledge of routine inspections that sexual orientation would have an impact N There is no evidence from knowledge of routine inspections that age would have an impact, save only for operational difficulty sometimes of older people knowing best and being averse to change or new ideas. N There is no evidence from knowledge of routine inspections that religious belief would have an impact 14 Are there concerns that the policy could have a differential impact due to them having dependants/ Caring responsibilities? What existing evidence (either presumed or otherwise) do you have for this? 15 Are there concerns that the policy could have a differential impact due to them having an offending past? N There is no evidence from knowledge of routine inspections that being a carers or having dependents would have an impact Enforcement regimes use graduated approaches therefore offending past is an issue. However, the Rehabilitation of Offenders act would apply. Previous offences against Companies would only be considered to justify bringing the action or on sentencing. Y What existing evidence (either presumed or otherwise) do you have for this? 16 Are there concerns that the policy could have a differential impact due to them being trans-gendered or transsexual? What existing evidence (either presumed or otherwise) do you have for this? 17 Could the differential impact identified in 8 – 16 amount to there being the potential for adverse impact in this policy? 18 Can this adverse impact be justified on the grounds of promoting equality of opportunity for one group? Or any other reason? 19 Should the policy proceed to a partial impact assessment? D:\533571879.doc N There is no evidence from knowledge of routine inspections that being trans-gendered or trans sexual would have an impact N Please explain. A considered, open, transparent system exists anterior to the decisions made in this policy. Please explain for each equality heading (questions 8-16 on a separate piece of paper). N/A N 20 If Yes, is there enough to a full EIA? 21 If no please detail the steps taken to minimise the adverse impact? 22 Date on which Partial or Full assessment to be completed by. N/A Regulatory enforcement is a matter for decision after the facts and in line with other Statutory requirements. Management of the process is a key component to check compliance with policies and codes. If prosecution is the outcome it will not have an adverse effect on the policy, it will be because the miscreant(s) has not complied with requirements N/A Comments The Council’s duty is to enforce the legislation delegated to it and by it to its officers. Ignorance is no defence in law. Mechanisms exist at a point anterior in time to the effects of this report and its policy, to ensure understanding of both the requirements and the effects of non-compliance , a structured approach and timetable to achieve compliance and the help and advice that will assist any entity wishing to comply the ability to do so. The policy therefore has little bearing on those compliant businesses but will either ensure non-compliant businesses are either assisted in achieving the minimum standards set by law or assisting them through the Court system to realise their errors. Signed (Completing Officer) : ……………………………………………………………………… Date : ……………………………………………………………………… Signed (Head of Section): ………………………………………………………………………… Date: ………………………………………………………………………… D:\533571879.doc