AGENDA ITEM NO. 4(e)
REPORT:
DATE:
Safe and Attractive Neighbourhoods Policy &
Performance Board
`
20 July 2004
REPORTING OFFICER:
Executive Director, Environment and Development
SUBJECT:
Review of Enforcement Policy: The Food and Health
& Safety Service
WARD(s):
Boroughwide
1.0
PURPOSE OF REPORT
1.1
To provide Members with the opportunity to examine and comment upon
the revised Enforcement Policy of the Food and Health & Safety Service
that has recently undergone review in the light of recent guidance from the
Health & Safety Executive (HSE) and Inter Authority Audit.
2.0
RECOMMENDED: That subject to any comments and suggestions
from Members a revised policy be referred to the executive sub
committee for consideration.
3.0
SUPPORTING INFORMATION
3.1
The Food Safety & Standards Service and the Health & Safety Service
are obliged under the Best Value Indicator BVPI 166, Section 18 of the
Health & Safety at Work etc Act 1974 and the Food Standards Agency
Framework Agreement on Local Authority Food Law Enforcement to have
written and published enforcement policies.
3.2
The Food Safety and Health & Safety Enforcement Policy has been
recently reviewed following renewed guidance from the Health & Safety
Executive (HSE) and following an Inter Authority Audit carried out by the
Merseyside Health & Safety Liaison Group.
3.3
The Health & Safety Executive Local Authority Liaison Committee (HELA)
has required all local Authorities to incorporate the Enforcement
Management Model (EMM) into their enforcement activity from April 2004,
in order to promote consistent enforcement in accordance with the Health
& Safety Commission’s (HSC) Enforcement Policy Statement and the
Government’s Enforcement Concordat.
3.4
The Health & Safety Service underwent a successful Inter Authority Audit
in September 2003 carried out within the Merseyside Health & Safety
Liaison Group. After scoring in a number of service delivery areas, Halton
was found to have a compliance score of 3 (top possible score 4) that
indicated full compliance with the statutory requirements of the HSC’s
Section 18 guidance. However a number of minor details were raised in
the audit report including the requirement to make specific reference to
Section 18 compliance, Lead Authorities and HSE and HELA guidance
within the Enforcement Policy.
These details together with reference to the EMM have now been
incorporated into the reviewed Enforcement Policy.
A summary of the Enforcement Policy will be made available on the Food
Safety and Health & Safety Unit web site and users will be able to access
a full copy, on request. All correspondence sent to businesses following
inspections, include a note that a copy of the enforcement policy is
available on request.
4.0
POLICY IMPLICATIONS
4.1
There are no additional policy implications beyond those stated in the
report.
5.0
OTHER IMPLICATIONS
5.1
The production of this enforcement policy is in line with the Council’s drive
to provide Best Value services. There are no additional resource
implications.
6.0
LIST OF BACKGROUND PAPERS UNDER SECTION 100D OF THE
LOCAL GOVERNMENT ACT 1972
6.1
There are no background papers under the meaning of the Act
Appendix- Review of Enforcement Policy: The Food and Health & Safety Service
The Food and Health & Safety Unit.
Environmental Health Division
Halton Borough Council
Revised draft
UNIT ENFORCEMENT POLICY
1.
1.1
Introduction
The Food and Health & Safety Unit is committed to fair and effective
enforcement in carrying out our duties in ensuring the health, safety and
well being of all residents, visitors, businesses and persons working within
the Borough.
1.2
This policy is based on the principles set out in the Environmental Health
and Consumer Protection Department top tier enforcement policy and The
Enforcement Concordat to which Halton Borough Council has committed.
It sets out in a clear, open and transparent way, what enforcement options
are available and how the decision is taken to apply that action.
1.3
This policy incorporates transparency, consistency, targeting,
proportionality and accountability in accordance with the Health & Safety
Commission’s (HSC) Section 18 Guidance for Enforcement Policy
Statements (EPS).
1.4
All enforcement action will be informed by the HSC’s statement on
Enforcement Policy and guidance produced by the Food Standards
Agency (FSA), the Health & Safety Executive (HSE) and the Health &
Safety Executive Local Authority Enforcement Liaison Committee (HELA).
2.
2.1
Approval
The Environmental Health and Consumer Protection Departmental
Enforcement Policy was considered by The Environment Policy &
Performance Board of Halton Borough Council on 25th September 2001
and approved by the Executive Board on the 20 th June 2002.
3.
3.1
Scope
This policy applies to specific enforcement activities under the legislation
enforced by The Food Safety and Health & Safety teams within the Unit.
3.2
Enforcement action includes action carried out in the exercise of, or
against the background of statutory enforcement powers. This is not
limited to formal enforcement action such as prosecution but includes the
inspection of premises to check compliance with relevant legislation and
the provision of advice to aid compliance.
4.
4.1
Access
This policy, the Enforcement Concordat and the Departmental first tier
policy will be made available on the Council web site. Paper copies will be
provided on application by telephone (0151 471 7599) by email
(Halton@cieh.org.uk) or by writing to The Principal Environmental Health
Officer of the unit.
4.2
This policy will be made available on tape, in braille, large type, or in a
language other than English, on request.
5.
5.1
Giving Information
Officers respond to service requests and carry out planned inspections
that may result in enforcement action against businesses or individuals.
During the progression of the investigation the business or individual will
be kept informed and notified of any new information. However, if the
release of the information may adversely affect the investigation, this
information will be withheld until a more appropriate time.
5.2
Any individual wishing to further discuss inspections or investigations with
a senior officer may do so by contacting the Unit directly. All
correspondence sent to proprietors following inspections will have the
name of the senior officer with whom further discussions may be carried
out. Leaflets outlining this enforcement policy and the individual’s rights
are available from the Office. These leaflets will form part of a business
pack that will be disseminated to all businesses in the Borough.
6.
6.1
Deciding What Action to Take
After carrying out inspections or investigations the officer will decide what
level of enforcement action, if any, to take. The options will be no action,
informal action or formal action.
6.2
In making the decision the officer will consider:
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The reliability of the evidence
The witness statements available
The seriousness of the offence or conditions
The past history of the individual or business
Confidence in management
The requirements of legislation
The consequence of non compliance
The likely effectiveness of various enforcement options
7.
7.1
What level of Enforcement Action?
One or more of the following forms of action can be taken:
 No action
 Revisit of the Premises
 Verbal warning and advice
 Written warning and advice
 Referral to an Outside Body for Further Action.
 Formal Notice
 Formal Caution
 Prohibition
 Suspension or Revocation of Butcher’s License
 Prosecution
 Selection for Accident Investigation
No Action
7.2
Following an inspection if there are no contraventions, no further action
will be taken. This decision will be confirmed by letter. Recommendations
of good practice may be given.
7.2.1
In exceptional circumstances contraventions may not warrant any
action, for example, where the cost of compliance to the offender
outweighs the detrimental impact of the contravention on the
community.
7.2.2
A decision of no action may be taken where formal enforcement action
is inappropriate in the circumstances, such as where a trader has
ceased to trade, or the offender is elderly or frail and formal action
would seriously damage their well being.
7.2.3
A decision to take no action must be recorded in writing and must take
into account the health & safety implications of the contravention.
Revisits or Follow-up Visits to Premises
7.3
Following a written warning or verbal warning, we may revisit the premises
to check compliance. For minor contraventions a revisit may be carried out
after an agreed deadline. Officers will then decide whether to actually
make the revisit depending upon the risk to health implications of the
contravention and the perceived likely responding action of the offender to
the verbal advice.
7.4
Following a formal notice, we will always revisit the premises to check
compliance.
Verbal Warning and Advice
7.5
For minor breaches of the law, verbal advice will be given, clearly
identifying the contraventions. The officer will give guidance on what
action may be taken and will agree a deadline by which this work is
completed. Officers will then decide whether to actually make the revisit
depending on the risk to health implications of the contravention and the
perceived likely responding action of the offender to the verbal advice.
Written Warnings & Advice
7.6
For contraventions that do not fall into circumstances outlined above in
7.7.2, a letter is sent, clearly identifying the contraventions, giving advice
on how to put them right and including an agreed deadline by which this
must be done, where appropriate. Failure to comply could result in a
notice being served or more severe enforcement action being taken. The
time allowed will be reasonable but will also take into account the health
and safety implications of the contravention.
7.6.1
The officer may also give recommendations of good practice but they
will be clearly distinguishable from legal requirements.
Recommendations are not legally enforceable.
7.6.2
The name of the Principal Officer will be included on all warning letters
to allow the recipient the opportunity to discuss the case with someone
other than the case officer.
Formal Notice
7.7
Statutory Notices are served to require offenders to cease contravening
activities or give offenders reasonable time to rectify a contravention.
7.7.1
Notices are served for matters that are a risk to food and health and
safety, not for minor technical contraventions.
7.7.2
Notices will be considered instead of written warning letters when:
 There are specific legal requirements or guidance to serve notice
 There are significant breaches of legislation
 There is a lack of confidence in the recipient to respond to informal
action
 Standards are generally poor with little management awareness of
statutory requirements
 The consequence of non-compliance would be potentially serious
to public health, safety or welfare
 Although there is an intention to prosecute, effective action also
needs to be taken to remedy conditions that are serious or
deteriorating.
7.7.3
Failure to comply with a statutory notice is an offence that can lead to
prosecution. However, recipients of a legal notice will be given full
written details on their rights of appeal and how to appeal, when the
notice is served.
Formal Caution
7.8
The following conditions must be satisfied to warrant a formal caution:
 Sufficient evidence must be available to prove the case
 The offender must admit the offence
 The offender must agree to be cautioned
 The offence must not have been committed by the offender before.
7.8.1
A record of the Formal Caution will be sent to the Local Authority Coordinating Body on Food and Trading Standards (LACOTS) or Health
& Safety Executive (HSE) as appropriate, and will be kept on file for
three years.
7.8.2
If the offender commits a further offence, the Formal Caution may
influence our decision to take a prosecution. If during the time the
caution is in force the offender pleads guilty to or is found guilty of
committing another offence anywhere in England and Wales, the
caution may be cited in court and this may influence the severity of the
sentence that the court imposes.
Seizure
7.9
We have powers under various pieces of legislation to seize faulty and
dangerous equipment and unwholesome or contaminated food to prevent
harm to customers, employees, other businesses and members of the
public.
7.9.1
When we seize food we consider unfit, we must produce it before a
Magistrate, as soon as possible, for them to confirm the seizure and
condemn the food as unfit. If the Magistrate does not condemn the
food, we will return the food to the owner who will be entitled to
compensation for any loss suffered. We will always give full details of
all our actions to the owner of the food when we exercise this power.
7.9.2
Officers have the power under the Health & Safety Act to seize any
article or substance that is likely to cause danger to health & safety.
The officer will discuss actions with the manager or the proprietor, as
appropriate, and leave a Notice of Possession & Detaining that will
outline what has been seized and why. This notice will be left with a
responsible person or fixed in a conspicuous place. Details of how to
appeal will be attached to this notice.
Prohibition.
7.10 Where there is an imminent risk to health & safety or where the team
agrees this a more appropriate course of action than any other, then
prohibition action will be used as an enforcement measure to remedy
contraventions or dangerous circumstances that pose an imminent danger
of serious personal injury. There will be opportunities and means of appeal
that will be available for action under both health & safety and food safety
legislation.
7.10.1
Prohibition can mean closure of the premises, a process or part of the
premises. The court may also impose a prohibition on a proprietor
convicted of any offences, to prevent the proprietor from carrying on a
food business.
Suspension or Revocation of Butcher’s License
7.11 The officer will suspend or revoke the licence when there is a significant
and persistent breach of the licensing conditions, for example, where the
authority has little or no confidence in the ongoing hygiene, food safety
management and conditions at the premises.
7.11.1
In practice suspension or revocation of a licence is not considered as
the first option where breaches are found on inspection. Where other
enforcement approaches in the particular case are likely to secure
compliance with the licensing requirements within a suitable time
scale, these will be taken.
7.11.2
Revocation amounts to permanent removal of the licence which has
been issued and cannot be reversed other than by a magistrate.
Details of how to appeal will be issued when the licence is revoked.
7.12 Prosecution
To warrant prosecution, the individual or organisation will have carried out one or
more of the following:
 Engaged in fraudulent activity
 Shown negligence or recklessness with respect to legal obligations that
results in a risk to health to others.
 Deliberately or persistently ignored written warnings or formal notices
 Endangered to a serious degree the health, safety or well being of people or
the environment
 Obstructed an officer during the undertaking of his/her duties.
7.13 Selection for Accident Investigation
7.13.1
Notifications of accidents from the Incident Contact Centre (ICC) are
selected for investigation by the Senior Environmental Health Officer
(SEHO) or in his absence the Principal Environmental Health Officer
(PEHO) or other nominated officer on a daily basis.
7.13.2
Selection is taken according to HELA guidance (ref. LAC 22/13
Incident Accident Investigation Selection Procedures). Criteria for
selecting incidents for investigation shall target effort at the more
significant events without distorting the overall balance of resource
between preventative and reactive work
7.13.3
All reported fatalities will be investigated except when circumstances
indicate that investigation is not appropriate, for example, death from
natural causes or unrelated work activity.
7.13.4
The following factors will be considered for selecting injuries, ill health
& dangerous occurrences for investigation:
 Actual and potential severity of the event
 Seriousness of the potential breach
 Track record of dutyholder
 Enforcement priorities, political factors, public expectations
aversion to risk
 Practicality of achieving results
 Relevance of event to a wider range of premises
 Legal factors
 Resource constraints
7.13.5
Criteria for selecting complaints for investigation should take account
of:
 The potential of the circumstances to cause injury, ill health or
death
 The imminence of the risk
 The types and numbers of persons at risk
 Track record of the undertaking, if known
 Reliability of information received
 Informants attempt at self resolution
 Practicality of investigation
 Political investigation and public aversion to risk
8.
8.1
Determining Whether to Take Formal Enforcement Action
Officers will consult with the Principal Officer and legal advisers in
deciding whether there is sufficient evidence and whether it is in the public
interest to carry out formal action.
Is There Sufficient Evidence?
8.2
The Officer, Principal Officer and legal advisers must be satisfied that
there is enough evidence to provide a realistic prospect of conviction
against each defendant on each charge. A realistic prospect of conviction
is an objective test. It means that a jury or bench of magistrates, properly
directed in accordance with the law, is more likely than not to convict the
defendant of the charge alleged. This is a separate test from the one that
the criminal courts themselves must apply. A jury or magistrates’ court
should only convict if satisfied it is sure of a defendant’s guilt.
8.2.1
When deciding whether there is enough evidence to prosecute, the
team must consider whether the evidence can be used and is reliable.
Is it in The Public Interest?
8.3
Once the team is satisfied there is enough evidence to provide a realistic
prospect of conviction, they must consider whether pursuing the case is in
the public interest. A list of common public interest factors both for and
against prosecution can be seen in Appendix A (attached). This list is not
exhaustive. The factors that apply will depend on the facts in each case.
8.3.1
The team will balance factors for and against prosecution carefully and
fairly. Public interest factors that can affect the decision to prosecute
usually depend on the seriousness of the offence or the circumstances
of the suspect. Some factors may increase the need to prosecute but
others may suggest that another course of action would be better.
Other forms of formal action such as formal cautions or statutory
notices may be taken.
9.
9.1
Liaison including Home Authority & Lead Authority Liaison
Where there are shared enforcement roles, the officer shall advise the
particular enforcement agency identified. For example the officer will
contact The Health & Safety Executive (HSE) in relation to gas safety or
The Home or Originating Authorities in food safety matters or Lead
Authorities for health & safety. The Home or Originating Authority and
Lead Authority is a local Authority which acts as a focal point for liaison in
food or health & safety matters between an organisation with outlets in a
number of areas and local authorities in those areas. The aim is to
promote consistency in the enforcement of organisations.
9.2
The officer will inform other authorities of offences and problems
witnessed, for example the Fire Authority. Any HSE or other enforcement
officer accompanying the officer from Halton Borough Council during an
inspection must be authorised by the Chief Executive.
9.3
The team will endeavour to co-ordinate and maximise the effective
enforcement of any matters that are related to more than one of the
Authority’s services. Where an enforcement matter extends beyond the
District boundaries, all relevant authorities and other organisations will be
informed of the matter as soon as possible and all enforcement activity coordinated with them.
10.
10.1
Appointment & Competency of Officers
Halton Borough Council only appoints officers with enforcement
responsibilities under the relevant legislation, with suitable qualifications
and competencies necessary for carrying into effect the relevant statutory
provisions.
10.2
Standards of competence and training in enforcement will be maintained
according to Section 18 of the Health & Safety at Work etc Act 1974
(HSWA) and the Food Standards Agency’s Framework Agreement on
Local Authority Food Law Enforcement.
10.3
Trainees and others who have not reached the necessary standards of
competency and who carry out visits to premises for the purposes of
providing food and health & safety advice and enforcing the regulations
will be appropriately supervised by a colleague who does possess all the
necessary standards of competence. The form the supervision will take
will depend on the level and training and experience of the individual
concerned. The degree and extent of supervisions will be expected to
change over time as the person being supervised gains in experience and
competence.
11
11.1
Monitoring Enforcement Activity
All officers of the Unit are subject to the Cheshire Chief Environmental
Health Officers Group Competency Management Framework. Accordingly
officers undergo accompanied inspections and case audits to ensure
enforcement action is consistent and compliant with the Enforcement
Policy.
11.2
In addition internal monitoring and customer evaluations are carried out
throughout the year.
12.1
12.2
Considering the Views of Those Affected by Offences
The Food and Health & Safety Unit undertakes enforcement on behalf of
the public at large and not just in the interests of any particular individual
or group. However, when considering the public interest test (see 8.3), the
consequences for those affected by the offence and any view expressed
by those affected will be taken into account in deciding whether or not, or
how to take enforcement action.
13. The Code for Crown Prosecutors
13.1 This policy takes account of all relevant parts of the Code for Crown
Prosecutors.
14. Regulation of Investigatory Powers Act 2000, Human Rights Act 1998
and Police and Criminal Evidence Act 1984 Code of Practice.
The Unit will act in accordance with all provisions of the acts. Officers, in
the course of their daily duties of investigations and inspections, have a
positive obligation to ensure that respect for human rights are at the core
of our service.
15. Implementation of Enforcement Policy
15.1 Written procedures for prosecutions will available to all officers. All
procedures will be regularly reviewed and scheduled internal audits by the
Principal Officer will take place to ensure all enforcement activity is carried
out in accordance with this policy. All instances of non-compliance will be
examined, recorded. All appropriate action taken in response to noncompliance will also be recorded.
16. The Enforcement Management Model
16.1 Health & safety enforcement officers will apply the principles of the
Enforcement Management Model (EMM) to all regulatory actions
according to guidance issued by the Health & Safety Executive Local
Authority Enforcement Liaison Committee (HELA).
16.2
Principles of the EMM will be applied formally to enforcement action taken
by inspectors following the investigation of all fatalities and major incidents
according to the Health & Safety Service work procedure for the EMM.
17. Complaints about Enforcement
All Correspondence sent out will display the direct telephone number of
the Senior officer to whom all initial complaints should be directed. Should
the complainant not be satisfied with the response of the Senior or
Principal EHO, they will be sent a copy of the LA’s Any Complaints?
leaflet that outlines how a formal complaint may be made against the LA.
Date of Review June 2004 (YS)
Date of next Review June 2006
Appendix A
Some Public interest factors in favour of prosecution:
The more serious the offence, the more likely it is that a prosecution will be
needed in the public interest. A prosecution is likely to be taken if:
 A conviction is likely to result in a significant sentence
 The evidence shows that the defendant was a ringleader or an organiser of
the offence
 There is evidence that the offence was premeditated
 The victim of the offence was vulnerable
 The defendant’s previous convictions or cautions are relevant to the present
offence
 There are grounds for believing that the offence is likely to be continued or
repeated, for example by a history of non-compliance
Some common public interest factors against prosecution:
A prosecution is less likely to be taken if
 The court is likely to impose a nominal penalty
 The defendant has already been made the subject of a sentence and any
further conviction would be unlikely to result in the imposition of an additional
sentence or order, unless the nature of the particular offence requires a
prosecution
 The offence was committed as a result of a genuine mistake or
misunderstanding (these factors will be balanced against the seriousness of
the offence)
 The loss or harm can be described as minor and was a result of a single
incident, particularly if caused by misjudgement
 There has been a long delay between the offence taking place and the date
of the trial, unless:
-The offence is serious
-The delay has been caused in part by the defendant
-The offence has only recently come to light or
-The complexity of the offence has meant that there has been a
long investigation.
 A prosecution is likely to have a bad effect on the victim’s physical or mental
health, bearing in mind the seriousness of the offence
 The defendant is elderly or was at the time of the offence suffering from
significant mental or physical health, unless the offence is serious or there is
a real possibility that it may be repeated