General Enforcement Policy for Environmental Health and Licensing

Date: 5 June 2014

1. Introduction

1.1 This document sets out what business and others being regulated within the Horsham District Council can expect from enforcement officers in the Environmental Health and Licensing Department.

1.2 The aim of the Council is to continually improve the health, safety, welfare and quality of life of people who live in, work in or visit the Horsham District. To achieve this, the Council uses a variety of statutory powers and duties, which are enforced in an equitable, practical and consistent manner. Care is taken to help businesses and others meet their legal obligations without unnecessary expense, whilst taking firm action, including prosecution where appropriate, against those who flout the law or act irresponsibly.

1.3 The Council has adopted the principles of good enforcement and has had regard to current legislation, guidance and codes of practice in developing this policy as detailed in Appendix A.

1.4 This is a general policy document and, where necessary, individual service areas will produce more detailed guidance on how and when enforcement action may be taken.

1.5 Authorised Officers will act in accordance with this policy

2.0 Scope of Environmental Health and Licensing Services

2.1 The Environmental Health and Licensing Department contributes to the protection of public health and safety, reduction of crime and anti-social behaviour, and environmental protection

2.2 The Department provides a wide range of services aimed at safeguarding the environment and improving health, safety and well-being of our community.

2.3 The main areas of work covered by this enforcement policy are:

• Food Safety: inspection of food businesses, investigation of complaints about food and food premises, food sampling, advice and training.
• Occupational Health and Safety: inspections of workplaces, investigations of accidents at work, investigations of complaints about health and safety at work, advice and training.
• Public Health: investigating food poisoning outbreaks and control of communicable disease, promoting public health initiatives, dealing with filthy and verminous premises, control of stray dogs, private water supplies sampling.
• Pollution Control: investigating complaints of statutory nuisance, environmental permitting, dealing with contaminated land, tackling poor air quality, investigating complaints of private drainage systems.
• Private Sector Housing: tackling unsatisfactory housing conditions in private rented accommodation, inspection and licensing of houses in multiple occupation, licensing of caravan sites, housing assistance towards repair and adapting homes; investigating complaints about long term empty dwellings and bring them back into use. Read our Private Sector Housing Enforcement Policy .
• Licensing: determining and regulating various licensing and registration functions such as alcohol, entertainment, gambling, taxis and private hire, animal welfare, skin piercing, scrap metal ,street trading, charitable collections, lotteries. Pest Control: pest control advice and treatment.

3.0 Our approach to dealing with non-compliance

3.1 The Council will ensure that the action it takes is proportional to the risk, is consistent in application, is targeted to areas where hazards are greatest and least well controlled and is transparent to those who are subject to enforcement action.

3.2 Programmed inspection strategies will be based on the risk category of the business. This will be determined using Government guidelines on risk assessment and inspection frequencies. When appropriate, inspections will carried out without giving prior notice.

3.3 In determining what is reasonably practical to control risks, the Council will exercise judgement and discretion, recognising that the final determination of reasonableness of their actions is made by the Courts.

3.4 As far as the law allows, the Council will take account of the circumstances of the case and the attitude of the individual/operator when considering action. It will make use of the full range of enforcement options available to it from informal advice, warnings, through to the service of formal notices, prosecutions and injunctions.

3.5 Factors which affect the choice of enforcement option include:

• The requirements of specific Council policy;
• The seriousness of the offence and the degree of risk;
• The past history of the business/individuals involved;
• Confidence in those involved in the issue;
• Consequences of non-compliance
• The likely effectiveness of the enforcement option to secure compliance.

3.6 Formal action will only be initiated when -

• helping, talking and telling have failed to resolve the issue; or
• there is a serious/urgent risk to public safety, health or the environment; or
• the offence is so serious that other forms of action would be inappropriate and it would not be in the public interest not to do so; or
• in particular cases, where the law requires that formal action be taken.

3.7 The Council will take particular care to work with small businesses and voluntary and community organisations so that those organisations can meet their legal obligations without unnecessary expense, where practicable.

3.8 The Council will endeavour to carry out our duties in a fair, equitable and consistent manner, and take a similar approach in similar circumstances to achieve compliance. There are procedural and managerial arrangements in place to promote consistency of approach and judgement, and council will liaise with other local authorities and enforcement agencies to assist them in this aim.

3.9 The Council believes prevention is better than cure and it will actively work with businesses to advise and assist them to comply with their obligations. It will help those who are subject to, or affected by any enforcement action, to understand what is expected of them and what they should expect from the Council. In particular, it will clearly differentiate between legal requirements which must be complied with and advice, guidance and recommendations that are desirable but not compulsory.

3.10 The Council will provide information and advice in plain English on the rules that they apply and will disseminate this as widely as possible. It will be open about how it sets about its work, including any charges that are set, consulting business, voluntary organisations, charities, consumers, employers and employees. It will discuss general issues, specific compliance failures or problems with anyone experiencing difficulties.

3.11 The Council will provide a courteous and efficient service. Staff will carry ID cards, identify themselves by name and provide contact points and telephone extension numbers to assist in reaching them.

3.12 Advice from an officer will be put clearly and simply and will be confirmed in writing, on request, explaining why any remedial work is necessary and when it has to be completed. Legal requirements will be clearly distinguished from best practice advice.

3.13 Before formal enforcement action is taken officers will provide an opportunity 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 or environmental protection or to prevent evidence being destroyed).

3.14 Where immediate action is considered necessary, an explanation of why such action is required will be given at the time and confirmed in writing.

3.15 Where there are rights of appeal against formal action, advice on the appeal mechanism will be clearly set out in writing at the time the action is taken (whenever possible this advice will be issued with the enforcement notice).

3.16 The Council needs businesses and individuals to approach it where guidance and advice is required and to cooperate by assisting the Council at all times.

3.17 Above all the Council expect people to recognise that it is their responsibility to comply with the law.

4.0 Conduct of the investigation

4.1 All investigations will be carried out under the following legislation and in accordance with any associated guidance or codes of practice, in so far as they relate to Council:

• the Police and Criminal Evidence Act 1984
• the Criminal Procedure and Investigations Act 1996
• the Regulation of Investigatory Powers Act 2000
• the Criminal Justice and Police Act 2001
• the Human Rights Act 2018

4.2 These Acts and associated guidance control how evidence is collected and used and give a range of protections to citizens and potential defendants. Our authorised officers will also comply with the requirements of the particular legislation under which they are acting, and with any associated guidance or codes of practice.

5.0 Enforcement options

Compliance Advice, Guidance and Support

5.1 The Council uses compliance advice, guidance and support as a first response in the case of many breaches of legislation that are identified. Compliance advice is provided, sometimes in the form of a warning letter, to assist individuals and businesses in rectifying breaches as quickly and efficiently as possible, avoiding the need for further enforcement action. A warning letter will set out what should be done to rectify the breach and to prevent re-occurrence. If a similar breach is identified in the future, this letter will be persuasive in considering the most appropriate enforcement action to take on that occasion. Such a letter cannot be cited in court as a previous conviction but it may be presented in evidence.

5.11 The Council recognises that where a business has entered into a partnership with a primary authority, the primary authority will provide compliance advice and support, and the Council will take such advice into account when considering the most appropriate enforcement action for it to take. It may discuss any need for compliance advice and support with the primary authority.

5.12 Where more formal enforcement action, such as a simple caution or prosecution, is taken, the Council recognises that there is likely to be an ongoing need for compliance advice and support, to prevent further breaches.

Voluntary Undertakings

5.2 The Council may accept voluntary undertakings that breaches will be rectified and/or recurrences prevented. The Council will take any failure to honour voluntary undertakings very seriously and enforcement action is likely to result.

Statutory Notices

5.3  In respect of many breaches the Council has powers to issue statutory notices. These include: ‘Enforcement Notices’, ‘Prohibition Notices’, ‘Emergency Prohibition Notices’, and ‘Improvement Notices’. Such notices are legally binding. Failure to comply with a statutory notice can be a criminal offence and may lead to prosecution and/ or, where appropriate, the carrying out of work in default.

5.31 A statutory notice will clearly set out actions which must be taken and the timescale within which they must be taken. It is likely to require that any breach is rectified and/or prevented from recurring. It may also prohibit specified activities until the breach has been rectified and/or safeguards have been put in place to prevent future breaches. Where a statutory notice is issued, an explanation of the appeals process will be provided to the recipient.

5.32 Some notices issued in respect of premises may be affixed to the premises and/or registered as local land charges.

Financial penalties

5.4 The Council has powers to issue fixed penalty notices in respect of some breaches. A fixed penalty notice is not a criminal fine, and does not appear on an individual’s criminal record. If a fixed penalty is not paid, the Council may commence criminal proceedings or take other enforcement action in respect of the breach.

5.41 If a fixed penalty is paid in respect of a breach the Council will not take any further enforcement action in respect of that breach. Payment of a fixed penalty does not provide immunity from prosecution in respect of similar or recurrent breaches.

5.42 The Council is only able to issue fixed penalty notices where it has specific powers to do so. If fixed penalty notices are available, their issue is at the Council’s discretion. In some circumstances, in particular where breaches are serious or recurrent, it may be that prosecution is more appropriate than the issue of a fixed penalty notice.

Injunctive Actions, Enforcement Orders etc.

5.5 In some circumstances the Council may seek a direction from the court (in the form of an order or an injunction) that a breach is rectified and/or prevented from recurring. The court may also direct that specified activities be suspended until the breach has been rectified and/or safeguards have been put in place to prevent future breaches.

5.51 Failure to comply with a court order constitutes contempt of court, a serious offence which may lead to imprisonment.

5.52 The Council is required to seek enforcement orders after issuing some enforcement notices, providing the court with an opportunity to confirm the restrictions imposed by the notice. Otherwise, the Council will usually only seek a court order if it has serious concerns about compliance with voluntary undertakings or a notice.

Simple Caution

5.6  The Council has the power to issue simple cautions (previously known as ‘formal cautions’) as an alternative to prosecution for some less serious offences, where a person admits an offence and consents to the simple caution. Where a simple caution is offered and declined, the Council is likely to consider prosecution.

5.61 A simple caution will appear on the offender’s criminal record. It is likely to influence how the Council and others deal with any similar breaches in the future, and may be cited in court if the offender is subsequently prosecuted for a similar offence. If a simple caution is issued to an individual (rather than a corporation) it may have consequences if that individual seeks certain types of employment.

5.62 Simple cautions will be used in accordance with Home Office Circular 016/2008 and other relevant guidance.

Prosecution

5.7  The Council may prosecute in respect of serious or recurrent breaches, or where other enforcement actions, such as voluntary undertakings or statutory notices have failed to secure compliance. When deciding whether to prosecute the Council has regard to the provisions of The Code for Crown Prosecutors as issued by the Director of Public Prosecutions.

5.71 Prosecution will only be considered where the Council is satisfied that it has sufficient evidence to provide a realistic prospect of conviction against the defendant(s).

5.72 Before deciding that prosecution is appropriate, the Council will consider all relevant circumstances carefully and will have regard to the following public interest criteria:

• How serious is the offence committed
• What is the level of culpability of the suspect
• What are the circumstances of and harm caused
• What is the impact on the community
• Is prosecution a proportionate response

5.73 A successful prosecution will result in a criminal record. The court may impose a fine and in respect of particularly serious breaches a prison sentence. The court may order the forfeiture and disposal of noncompliant goods and/or the confiscation of any profits which have resulted from the breach. Prosecution may also lead, in some circumstances, to the disqualification of individuals from acting as company directors.

Refusal/Suspension/Revocation of Licences

5.8  The Council issues a number of licences and permits. The Council also has a role to play in ensuring that appropriate standards are met in relation to licences issued by other agencies. Most licences include conditions which require the licence holder to take steps to ensure that, for example, a business is properly run. Breach of these conditions may lead to a review of the licence which may result in its revocation or amendment.

5.81 When considering future licence applications, the Council may take previous breaches and enforcement action into account.

6.0 Complaints against the service

6.1 Horsham District Council is committed to the delivery of responsive, good quality customer services. Details of the Council’s complaint procedure are available on the Council’s web site. The Council has also produced “A guide about how to make comments, compliments and complaints about Horsham District Council” which is available on request. Should any person or business be unhappy with the action taken or information or advice given by the Council’s Environmental Health and Licensing staff or believe that they have not received fair or consistent treatment as outlined in this policy, they will be given the opportunity of discussing the mater with the officer’s line manager.

7. Policy review

7.1 The policy will be reviewed at least every three years or when there is a change in legislation or guidance by the Environmental Health and Licensing Manager.

7.2 This policy was adopted by the Council at the meeting of the Cabinet held on 5th June 2014.

8. Commenting on the policy

Please contact us should you wish to make any comments about the contents this policy. We welcome feed back on how this policy affects you and any improvements that we can make.

You can contact us:

• By phone: 01403 215100
• By writing: Environmental Health & Licensing Department Parkside Chart Way Horsham West Sussex RH12 1RL
• By email: ehl@horsham.gov.uk

Appendix: Legislation, Guidance and Codes that influenced the preparation of this policy

Principles of Good Regulation

The Legislative and Regulatory Reform Act 2006, Part 2, requires the council to have regard to the Principles of Good Regulation when exercising a specified regulatory function. For local authorities, the specified functions include those carried out by our environmental health, trading standards and licensing services. We will exercise our regulatory activities in a way which is:

• (i) Proportionate – our activities will reflect the level of risk to the public and enforcement action taken will relate to the seriousness of the offence,
• (ii) Accountable – our activities will be open to public scrutiny, with clear and accessible policies, and fair and efficient complaints procedures,
• (iii)Consistent – our advice to those we regulate will be robust and reliable and we will respect advice provided by others. Where circumstances are similar, we will endeavour to act in similar ways to other local authorities,
• (iv)Transparent – we will ensure that those we regulate are able to understand what is expected of them and what they can anticipate in return, and
• (v) Targeted – we will focus our resources on higher risk enterprises and activities, reflecting local need and national priorities.

Regulators Code (BRDO, 2013)

The Council has had regard to the Regulators’ Code in the preparation of this policy. In certain instances we may conclude that a provision in the Code is either not relevant or is outweighed by another provision. We will ensure that any decision to depart from the Code will be properly reasoned, based on material evidence and documented.

Human Rights Act 1998

The Council is a public authority for the purposes of the Human Rights Act 1998. We therefore apply the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This Policy and all associated enforcement decisions take account of the provisions of the Human Rights Act 1998. In particular, due regard is had to the right to a fair trial and the right to respect for private and family life, home and correspondence.

Data Protection Act 2018

Where there is a need for the Council to share enforcement information with other agencies, we will follow the provisions of the Data Protection Act 2018.

The Code for Crown Prosecutors

When deciding whether to prosecute the council has regard to the provisions of The Code for Crown Prosecutors as issued by the Director of Public Prosecutions.

The Code for Crown Prosecutors is a public document that sets out the general principles to follow when decisions are made in respect of prosecuting cases. The Code sets out two tests that must be satisfied, commonly referred to as the ‘Evidential Test’ and the ‘Public Interest Test’:

a. Evidential Test - is there enough evidence against the defendant? When deciding whether there is enough evidence to prosecute, the council will consider what evidence can be used in court and is reliable. We must be satisfied there is enough evidence to provide a "realistic prospect of conviction" against each alleged offender.

b. Public Interest Test - is it in the public interest for the case to be brought to court? The Council will balance factors for and against prosecution carefully and fairly, considering each case on its merits.

Regulatory Enforcement and Sanctions Act 2008 ('the RES Act')

The Regulatory Enforcement and Sanctions Act 2008, as amended, established the Primary Authority scheme. We will comply with the requirements of the Act when we are considering taking enforcement action against any business or organisation that has a primary authority, and will have regard to guidance issued by the Secretary of State in relation to Primary Authority.