Regulators’ Code
Frequently Asked Questions for
Local Authorities and
Fire and Rescue Authorities
February 2015
Regulators’ Code: Frequently Asked Questions for Local Authorities and Fire & Rescue Authorities
General questions
1.
When did the Regulators’ Code come into force?
The Regulators’ Code came into statutory force on 6th April 2014, replacing the Regulators’
Compliance Code.
2.
Who does the Regulators’ Code apply to?
The Regulators’ Code applies to a range of regulatory functions exercised by local authorities
and fire and rescue authorities. The Code applies to local authorities in England, Wales,
Northern Ireland and Scotland.
In Wales, Northern Ireland and Scotland the Code applies to reserved matters that are
specified for the purposes of the Code, and local authorities still need to have regard to all
provisions of the Code, for example by preparing and publishing service standards. These
service standards may, of course, extend to areas that are not within scope of the Code.
The regulatory functions that are within scope of the Code are specified in the Legislative
and Regulatory Reform (Regulatory Functions) Order 2007 (as amended), in accordance
with section 24 of the Legislative and Regulatory Reform Act 2006.
The Code also applies to a range of non-economic national regulators and to specified
functions exercised by Ministers. A summary of the regulators and regulatory functions within
scope of the Code is available on the gov.uk website.
3.
What is the legal basis of the Regulators’ Code?
The Regulators’ Code was approved by Parliament and issued by the Secretary of State in
accordance with section 22 of the Legislative and Regulatory Reform Act 2006. Local
authorities and fire and rescue authorities exercising functions within the scope of the Code
must have regard to it when setting policies or principles that determine how they carry out
their regulatory activities.
This duty to ‘have regard to’ the Code means that local authorities need to comply with the
provisions of the Code or be able to explain why they have chosen another course of action.
This is an active duty, as with other statutory codes and guidance for local authorities, such
as the Food Law Codes of Practice issued by the Food Standards Agency, and the Guidance
to Licensing Authorities issued by the Gambling Commission.
National regulators that have a function of setting standards or giving guidance to local
authorities which guide their exercise of regulatory functions are also under a duty to have
regard to the Code.
4.
Should regulators still be using the Enforcement Concordat?
The Enforcement Concordat was published in 1998 and was adopted by the majority of local
authorities on a voluntary basis, prior to the introduction of a statutory Code in 2008.
Where local authorities and fire and rescue authorities are exercising functions within the
scope of the Regulators’ Code then they should be using the Code in place of the
Enforcement Concordat.
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Regulators’ Code: Frequently Asked Questions for Local Authorities and Fire & Rescue Authorities
We recommend that regulators acting outside the statutory scope of the Regulators’ Code
should now adopt it on a voluntary basis, in place of the Enforcement Concordat. This will
help to provide a clear and consistent approach across regulators that businesses and others
can understand. We are aware that a number of local authorities are seeing voluntary
adoption of the Code as a sensible option in relation to service areas such as planning
enforcement, which are currently outside of the statutory scope of the Code.
5.
Does the Regulators’ Code stop regulators from taking appropriate action
against those who are non-compliant?
No – the Regulators’ Code promotes proportionate, consistent and targeted regulatory
activity, which includes taking appropriate action where non-compliance is identified.
6.
Regulators acting within scope “must have regard to the code”. What does this
mean in practice?
As set out in section 22 of the Legislative and Regulatory Reform Act 2006, regulators acting
within scope of the Regulators’ Code must have regard to the Code in ‘determining any
general policies or principles’ by reference to which they exercise their regulatory function.
This means that a local authority or fire and rescue authority must explicitly consider the
Code when determining relevant policies and principles, and any decision to deviate from the
provisions contained within the Code should be properly reasoned and based on material
evidence.
The legislation also requires regulators acting within scope of the Code to have regard to it
when ‘setting standards or giving guidance generally in relation to the exercise of other
regulatory functions’. For example, where a national regulator issues statutory guidance to
local authorities in relation to a regulatory function within scope of the Code, the national
regulator must have regard to the Code in producing the guidance, and should be conscious
that the local authority will be required to have regard to the Code in developing its policies
under the statutory guidance.
7.
How does the Regulators’ Code impact on frontline officers?
The Legislative and Regulatory Reform Act 2006 requires regulators to have regard to the
Code when developing the policies and principles that guide their regulatory activities. These
policies and principles govern the activities of frontline officers and these officers will
therefore be influenced, in their daily activities, by the provisions of the Code.
In contrast, the statutory principles of good regulation, as set out in section 21 of the
Legislative and Regulatory Reform Act 2006 impact directly on frontline officers. This means
that they must have regard, in carrying out all of their regulatory activities, to the need to do
so in a way that is transparent, accountable, proportionate, consistent and targeted only at
cases in which action is needed.
Each local authority and fire and rescue authority should ensure that its officers understand
the statutory principles of good regulation and the Code, and that they act in accordance with
the authority’s own published service standards and enforcement policy.
BRDO makes available a slide pack to support local authorities and fire and rescue
authorities in training their own staff on the Code. This is available at
http://www.regulatorsdevelopment.info/grip/la/section_1.
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Regulators’ Code: Frequently Asked Questions for Local Authorities and Fire & Rescue Authorities
Questions on the provisions of the Code
1.
How can a regulator ‘improve confidence in compliance for those they regulate
by providing greater certainty’ (section 1.2) and ensure that advice can be relied
on (section 5.5)?
Businesses need clear regulatory information, guidance and advice that they can rely on in
order to invest and grow.
This wording in the Code recognises the importance for businesses of having confidence that
they understand what is required, and that their chosen approach to complying with
regulations is accepted by regulators. A local authority or fire and rescue authority can
provide certainty to a business by giving a commitment, when providing advice or guidance,
that the business will not face enforcement action where it complies with that advice or
guidance. For example, Primary Authority provides a mechanism whereby a single authority
can make such a commitment on behalf of all local authorities.
2.
What is meant in section 5 of the Code by ‘information, guidance and advice’?
Regulators and businesses sometimes use different terminology when talking about the
support that is provided to raise awareness and understanding of regulatory requirements,
and to help businesses to comply with them. For the purposes of the Code, the following
terminology is used:
‘Information’ – this term is used to refer to knowledge communicated about facts. An
example of information provided by a regulator to a group of businesses could be a bulletin
announcing that new legislation that may be relevant to the businesses has been passed,
with an indication of the commencement date.
‘Guidance’ – this term is used to refer to an interpretation given of regulations or regulatory
requirements. An example of guidance could be a leaflet explaining and interpreting
legislative requirements in plain English and suggesting ways in which businesses might
meet the requirements.
‘Advice’ – this term is used to refer to a specific recommendation or recommendations given
in a particular context or in the light of a particular set of circumstances. An example of
advice could be detailed recommendations on the steps that an individual business might
take to comply with a particular requirement, taking account of the business’ operating
model.
3.
What is considered a ‘serious breach’, in section 2.2 of the Code?
The Regulators’ Code covers a wide range of regulatory functions and the nature of a
serious breach will depend to some extent on the regulator's specific objectives. The
Government expects each regulator to apply their own discretion in deciding whether a
breach is ‘serious’ and the appropriate actions to be taken. However, it is the Government’s
opinion that a regulator might rationally take the view that a ‘serious breach’ would be one
that had caused, or had the potential to cause, significant harm to the public or the
environment.
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Regulators’ Code: Frequently Asked Questions for Local Authorities and Fire & Rescue Authorities
Service standards
1.
What are ‘service standards’?
The Regulators’ Code includes the provision that regulators should ensure their approach to
regulatory activity is transparent. This should be communicated via a regulator’s published
‘service standards’, setting out what those they regulate should be able to expect from their
regulator.
Details of what should be included in a regulator’s ‘service standards’ are included in section
6 of the Code. An example of how a local authority might approach service standards is
available in the Regulators’ Code Section 6, Local Authority Toolkit.
2.
My authority already publishes service standards. Will these need to be
changed?
We recommend that existing published information, such as customer service standards or
charters, and enforcement policies, should be reviewed to see whether they are meet the
provisions of the new Code. There is no need to change published information that already
satisfies the Code’s provisions – it will be sufficient to provide any additional information that
is not currently made available.
We recommend also that local authorities and fire and rescue authorities review their
provision of information to ensure that it is clear and easily accessible to those they regulate,
including on their website.
3.
Local authorities provide many regulatory services. Does each have to publish
individual ‘service standards’?
It is for each local authority to consider the way in which it organises and delivers its
regulatory services and to determine an approach to service standards that will work best for
itself and those it regulates.
This may mean that the local authority chooses to develop and publish a single set of service
standards, or separate service standards for each of its regulatory services. A key concern,
whichever approach is taken, is that those regulated by the local authority are able to find the
information relevant and applicable to them. Where multiple service standards are published,
their applicability will need to be clearly explained, and each should signpost the others.
4.
What is expected of local authorities in terms of ensuring that service standards
and other published information are accessible?
The Code expects that, as a minimum, information published in accordance with its
provisions is available at a single point on the local authority's website that is clearly
signposted.
In signposting to this information, key factors to consider might include:
•
How the information would most easily be found by a business arriving at the local
authority's 'Home page'. For example, many local authority websites channel
businesses to a 'Business' page. Links to information on regulatory services, and their
service standards, are likely to be found on this 'Business' page more easily than in
function-specific areas of the website.
•
Whether businesses that search terms used in the Code, such as 'service standards'
and 'enforcement policy' will find the information they are looking for.
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Regulators’ Code: Frequently Asked Questions for Local Authorities and Fire & Rescue Authorities
•
Whether written communications such as letters and records of visit should include
details of the web page.
Not all businesses that the local authority regulates will visit its website. It is important to
consider other ways of making published information available to such businesses, and
views can usefully be sought through engagement with business groups.
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Regulators’ Code: Frequently Asked Questions for Local Authorities and Fire & Rescue Authorities
Complaints and appeals
1.
What is the difference between a complaint and an appeal?
The Code includes separate provisions in relation to 'complaints' and 'appeals'. However, it is
recognised that, for both regulators and businesses, there is often no clear distinction
between these two. For the purposes of the Code, the terms are used in the following way:
'Complaint' is used to mean an expression of dissatisfaction with the way that a service has
been provided, or is being provided. For example, a business might complain that an officer
visiting the business lacked courtesy, or that there was an unreasonable delay in dealing with
a licence application.
'Appeal' is used to mean a challenge that is made to a regulator's decision, advice or actions,
with the purpose of changing the decision, advice or action. For example, where an officer
identifies non-compliance, and advises the business to take a particular course of action to
remedy the non-compliance, the business may wish to challenge the advice on the basis that
an alternative course of action could also achieve compliance. Rights to appeal could be
through very prescriptive processes, such as statutory rights to appeal against specific
enforcement actions, or they could be less formal and would be dealt with using the same
processes as complaints.
2.
Does a local authority or fire and rescue authority need to set up new
complaints and appeals processes under the Code?
It is not necessary to set up new processes, but there is a need to make sure that existing
corporate complaint processes are in line with the provisions of the Code (sections 2 and 6).
Key factors to consider might include:
3.
•
The complaints processes should be visible and accessible to businesses, and others
that the authority regulates.
•
The complaints processes should cater for challenges to regulatory decisions where
there is no statutory process.
•
An emphasis on early resolution of differences of opinion about compliance solutions,
for example through dialogue and the option of receiving a 'second opinion', is
important.
•
Complaints and appeals data in relation to the authority’s regulatory role should be
made available.
What is the role of the Local Government Ombudsman?
The Local Government Ombudsman (LGO) has a statutory role in investigating complaints
about services provided by local authorities, fire and rescue authorities and other specified
bodies in England.
The LGO’s job is to investigate complaints in a fair and independent way. It is a free service
that is available to consumers and businesses.
In most cases the LGO will only consider a complaint once the local authority’s internal
processes have been given a fair opportunity to resolve the matter. The LGO has the same
powers as the High Court to obtain information and documents. When the LGO finds that an
authority it has investigated was at fault, it may recommend how the authority should put
right the injustice it caused.
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Regulators’ Code: Frequently Asked Questions for Local Authorities and Fire & Rescue Authorities
The LGO will not investigate a complaint if a complainant has a right of appeal to a statutory
tribunal, court or government minister that is reasonable for them to use.
4.
How will the LGO use the Code?
The LGO will use the Regulators’ Code as a framework against which it will assess
unresolved complaints that it receives in respect of local regulatory services that are within its
jurisdiction, and within scope of the Code.
The LGO examines complaints that it receives with a view to establishing whether the local
authority or fire and rescue authority was at fault in terms of whether it followed its own
policies and procedures and whether it acted properly within the legal framework. For
example, in examining a complaint from a business about the conduct of a local authority,
the LGO would consider the local authority’s published service standards and enforcement
policy, in the context of the framework established by the principles of good regulation and
the Regulators’ Code.
5.
Will the LGO publish data on complaints against local regulatory services?
The Ombudsman’s decision statements are published on the LGO’s website but the names
of complainants and other individuals are not included in published material. In some cases
the LGO issues formal reports which require publication by the authority complained about.
The LGO also publishes an annual review of every local authority which includes a summary
of statistics relating to the complaints received and dealt with against each council.
The impact of the implementation of the Code will be monitored by the LGO and reviewed
over the course of its first year. Where there are systemic issues identified, or good practice
to be shared, a themed or special report may be published.
6.
What is the role of non-statutory appeals mechanisms operated by national
regulators in respect of local authorities?
Non-statutory appeals mechanisms such as those operated by the Health and Safety
Executive (HSE) and Food Standards Agency (FSA) do not replace either the local
authority’s own complaints processes, or the progression of unresolved complaints about a
local authority service to the LGO.
These non-statutory appeals mechanisms do offer an opportunity to seek an independent,
impartial and expert view on questions which are of a technical nature, for example in
relation to whether regulatory advice given by a local officer to a business was correct and
proportionate.
In the case of both the HSE’s Independent Regulatory Challenge Panel, and the FSA’s
Independent Business Appeal Panel, the panel has no powers and its role is to offer
authoritative technical advice which the local authority should take account of where
appropriate. The handling of such advice by the local authority may be considered by the
LGO.
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Regulators’ Code: Frequently Asked Questions for Local Authorities and Fire & Rescue Authorities
7.
How does the role of the LGO work with the statutory determination process in
respect of fire safety?
The statutory determination process under the Regulatory Reform (Fire Safety) Order 2005
offers an opportunity for a fire and rescue authority and a business to seek an independent,
impartial and expert view on questions which are of a technical nature, for example in
relation to correct interpretation and application of the legal requirements.
This statutory process does not replace either the authority’s own complaints processes, or
the progression of unresolved complaints about the fire and rescue authority to the LGO.
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Regulators’ Code: Frequently Asked Questions for Local Authorities and Fire & Rescue Authorities
Monitoring
1.
Will a local authority or fire and rescue authority need to submit annual returns
to the Government?
No – the Code does not require regulators to submit any returns to the Government.
However, regulators should be publishing information that allows their service users,
including those they regulate, to see what they are doing and how they are performing.
2.
Is a local authority or fire and rescue authority expected to publish a statement
of compliance with the Code, or an action plan to deliver compliance?
The Code does not require a regulator to publish a statement explaining how it complies with
the provisions of the Code, or to publish an action plan setting out how it will achieve
compliance with the Code.
However, some national regulators, having assessed their own compliance with the Code,
are choosing, in the interests of transparency and accountability, to publish an action plan
setting out the areas in which they have identified that change or improvement is needed.
3.
How will compliance with the Regulators’ Code be monitored?
The Government expects regulators to take responsibility for ensuring that they meet their
statutory responsibility to have regard to the Code on an ongoing basis.
We expect that improved transparency will make it easier for businesses and others to
understand how regulators should deliver their services. We also anticipate that businesses
and others will feel better able to challenge regulators, using their published complaints and
appeals processes, where they are not meeting their statutory responsibilities, or are not
acting in accordance with their published policies and service standards.
We will keep a watching brief on regulators, in order to understand the impact of the Code.
4.
What are the consequences should an organisation fail to act in accordance
with the Regulators’ Code?
It is a statutory requirement for regulators acting within scope of the Regulators’ Code to
have regard to its provisions. The Government is confident that regulators will meet their
statutory responsibility.
The Code provides that the Government will challenge regulators where there is evidence
that policies and standards are not in line with the Code or are not followed. Where there is
evidence that a regulator is failing to have regard to the provisions of the Code, we will liaise
directly with that regulator.
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