Enforcement policy - Environmental Health

Introduction

The Environmental Health and Licensing Service carries out a wide range of legal duties under different Acts and Regulations. These are applied while carrying out routine inspections of business premises, responding to complaints and offering advice.

This Enforcement Policy outlines the approach we take when considering enforcement action. It is intended to ensure that we deal with all of our customers in a fair and consistent way. The policy applies to the following services:

• Environmental Protection including noise, land and air pollution
• Food Safety
• Health and Safety
• Licensing, including; taxis, street trading, the sale of alcohol and premises providing public entertainment
• Animal Health, Pest Control and Dog Warden services

Principles of enforcement

The Environmental Health and Licensing Service has formally adopted the Government’s Enforcement Concordat. This means that we will be open, helpful, fair and careful to ensure that any action we require is proportionate to the risks involved. This approach is intended to provide better information to businesses and the community and help us to provide effective services.

We will take into account the needs of businesses and members of the public. For example, where appropriate we will provide our services outside normal office hours and have available interpreters for those whose first language is not English.

We will follow the approach set out in this document at all times, including when we carry out enforcement activities in conjunction with other services within the Council, with other local authorities or with other agencies.

We will make sure that all enforcement action complies with all relevant legislation including, the Police and Criminal Evidence Act 1984, the Criminal Procedures and Investigations Act 1996, the Human Rights Act 1998, the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 (so far as this legislation applies to local authorities

Preventing the need for enforcement action

We believe that the first step in enforcement is to help prevent contravention of the law by raising awareness and promoting good practice. Methods of achieving this include:

• Providing advice to members of the public and businesses
• Routine inspections of businesses
• The investigation of complaints
• The production of leaflets and other forms of written guidance
• Promotional activities including the issuing of press releases

Informal action

Where appropriate, we will try to resolve any situation where the law may have been broken, without issuing formal notices or referring the matter to the courts. This will be our first option when the circumstances indicate that a minor offence may have been committed and we are confident that the appropriate action will be taken to deal with the problem. When it is necessary, we will confirm the situation in writing in a clear manner, explain why any recommended remedial action is necessary and over what time scale it should be completed. We will make sure that legal requirements are clearly distinguished from recommendations in any correspondence.

Legal notices

Many of the pieces of legislation that we enforce require us to serve formal notices on individuals, businesses and other organisations. These will set out specific legal requirements that must be met. Where a formal notice is served, the method of appealing against the notice and the time scale for doing so will be provided in writing at the same time. The notice will explain what is wrong, the action that needs to be taken and an outline of the consequences if the notice is not complied with. Failure to comply with a notice may constitute an offence. In some circumstances, the Council will have the power to carry out work and recover the cost from the parties involved.

Where we can, we will try to provide an opportunity to discuss matters and resolve points of difference before a notice is served. However, this may not be possible where immediate action is considered necessary, e.g. in the interests of health and safety, to prevent an imminent risk to health, or to protect the environment.

Legal proceedings

The use of legal proceedings is an important part of the Council’s powers. It aims to address breaches of legislation, prevent a recurrence and act as a deterrent to others.

Where the other courses of action mentioned in this policy are considered inappropriate and the circumstances warrant it, legal proceedings will be considered. These may be in the form of prosecution in the courts or a Formal Caution.

Any decision to commence legal proceedings will be in accordance with the Council’s Scheme of Delegation and documented procedures and take into account the criteria set down in the Code for Crown Prosecutors and Attorney Generals Guidelines.

We recognise that commencing legal proceedings is a serious matter. Before taking this action we will consider the following factors:

• Whether there is sufficient, reliable evidence to prove the offence and if there is a realistic prospect of conviction
• The seriousness and effect of the offence
• The foresee-ability of the offence and the circumstances leading to it
• The intent, previous of history and personal circumstances of the parties involved
• The attitude of the offender
• Any legal defences that may be available to the offender
• Whether legal proceedings are in the public interest
• The deterrent effect of a prosecution, on the offender and others

Formal caution

The use of a Formal Caution offers an alternative to prosecution in the courts and will be considered as part of any decision to commence legal proceedings. The purposes of a Formal Caution are:

• To deal quickly with less serious offenders
• To divert them from unnecessary appearance in the criminal courts, and
• To reduce the chances of their re-offending
• Before issuing a caution, the following conditions must be satisfied:
• There must be evidence of guilt sufficient to give a realistic prospect of conviction if the case were to be taken to prosecution
• The offender must understand the significance of the formal caution and agree to it
• The offender must admit the alleged offence by signing a Formal Caution form

A Formal Caution is a serious matter, which will influence any future decision should the company or individual offend again. It can also be referred to in any subsequent court proceedings. Where the offer of a Formal Caution is refused, a prosecution will normally be pursued.

Companies and individuals

Legal proceedings will be taken against those responsible for the offence. Where an offence results from the activities of a company, we will also consider any part played by members of the company including Directors, Managers, the Company Secretary and employees, and whether proceedings against an individual are appropriate.

The way in which we will provide our services

• We will provide a courteous and efficient service and our staff will identify themselves by name when they visit, or speak to callers on the telephone
• We will enter into discussion and offer advice where appropriate to try to ensure that individuals or organisations do not unnecessarily expose themselves to the possibility of formal action through a lack of understanding, or information
• We will be consistent in our approach by following the criteria and guidance set down in relevant legislation, codes of practice and our written procedures
• We will give all individuals or organisations which may be subject to legal proceedings the opportunity to make representations in writing which will be considered along with the facts of the case
• We will ensure that before deciding to offer a formal caution, or take a prosecution, the case is subject to independent review by a senior manager
• We will be objective to ensure that our decisions are not influenced by the gender, ethnic origin, religious or political beliefs, or sexual preferences of any alleged offender

What to do if we have not followed this policy

Anyone who is unhappy with the service they have received, should contact us using the contact details on this page. We are committed to providing quality services and suggestions and criticisms about any aspect of our service will help us to do this. We will deal with any complaint in strict confidence.

Wherever possible we will attempt to resolve complaints informally by discussing it with those involved as soon as we can. If we cannot do this, we aim to respond in writing within 10 working days of receiving a complaint. We will keep complainants updated of progress until the complaint is resolved.

If the problem has still not been resolved

If a complaint cannot be resolved informally, we also have a formal complaints procedure. Complaint forms can be obtained in person or by post from the above address. Formal complaints are dealt with by the Chief Environmental Health & Licensing Officer.

Alternatively, the local Ward Councillor, or Member of Parliament can be contacted. The nearest Council Information Office will provide their details. The local press also has information on the times and places when they are available to meet the public.

The Local Government Ombudsman

Anyone who thinks they have been unfairly treated can ask the Local Government Ombudsman to investigate. They can be contacted at the following address:

Local Government Ombudsman,
Beverley House, 
17 Shipton Road,
York  Y03 5FZ

Tel: 01904 380200
Fax: 01904 380269

www.lgo.org.uk

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