Environmental Health enforcement policy

Levels of enforcement action

In assessing what enforcement action is necessary and proportionate, consideration will be given to

• the seriousness of compliance failure

• the business's or individual's past performance and its current practice

• the risks being controlled

• legal, official or professional guidance

• our the local priorities

Where the law has been contravened, there are a range of enforcement options available to seek compliance with the law. Under normal circumstances, a process of escalation will be used, where appropriate, starting with advice and guidance, until compliance is reached. Exceptions to this process of escalation would include:

• public health

• safety

• community safety

• the environment (such as fly tipping or air pollution)

• risk to animal health or welfare, and

• where the offences have been committed deliberately or negligently, or

• involve deception or where there is significant economic detriment, or

• continued non-compliance

• irreversibility (such as knocking down a building)

The sanctions or penalties that are used will:

• aim to change the behaviour of the offender

• aim to eliminate any financial gain or benefit from non-compliance

• be responsive and consider what is appropriate for the particular offender and the particular regulatory issue (this can include punishment and the public stigma that should be associated with a criminal conviction)

• be proportionate to the nature of the offence and the harm caused

• aim to restore the harm caused by regulatory non-compliance, where appropriate

• aim to improve non-compliance and deter future non-compliance

There are a large number of potential enforcement options. The level of the action taken varies from no action through to proceedings in court.

In certain circumstances there may be specific guidance or instruction issued by central government which direct us to act in a specific way.

See the examples of enforcement below.

No action

In certain circumstances, contraventions of the law may not warrant any action. Consideration will be given to whether the resultant cost of action would outweigh the detrimental impact of the contravention (sometimes referred to as the public interest test). A decision of no action may also be taken where formal enforcement is inappropriate in the circumstances. In such cases we will advise the offender of the reasons for taking no action.

Informal action and advice

For minor breaches of the law we may give verbal or written advice. We will clearly identify any contraventions of the law and give advice on how to put them right, including a deadline by which this must be done. The time allowed will be reasonable, and take into account the seriousness of the contravention and the implications of the non-compliance. We will be clear about what are requirements and what are recommendations. Failure to comply could result in an escalation of enforcement action.

Fixed penalty notices

Certain offences may be dealt with by fixed penalty notices (FPN) where prescribed by legislation. They are recognised as a low-level enforcement tool and avoid a criminal record for the defendant. Where legislation permits an offence to be dealt with by way of a fixed penalty notice we may chose to administer one on a first occasion, without issuing a warning. Such matters may include dog fouling, littering, waste disposal activities, breach of a public space protection order  (PSPO), and alcohol consumption in a defined area, however, this list is not exhaustive.

The alleged offender’s choice to not cooperate with the officer (for example, refuse to give a name and address), to dispute or not pay the FPN will result in the case being escalated to the Magistrates Court.

We will only offer a FPN where we have robust evidence that an offence has been committed by the individual. This may be evidence gathered directly by our officers, or that passed to officers by partners documented in a form admissible to the courts.

Penalty charge notices

Penalty charge notices (PCNs) (for example, parking tickets) are prescribed by certain legislation as a method of enforcement by which the offender pays an amount of money to the enforcer in recognition of the breach. Failure to pay the PCN will result in the offender being pursued in the County Court for non-payment of the debt. A PCN does not create a criminal record and we may choose to issue a PCN without first issuing a warning.

Voluntary closure, prohibition, surrender or undertaking

A business or individual may in some circumstances, where there is an imminent risk, provide an offer to voluntarily close premises or cease to use any product, equipment, treatment, process or building associated with the imminent risk. In such circumstances the proprietor or individual would be requested to confirm their undertaking in writing. Failure to comply may entail further formal action.

Formal or statutory notice

Certain legislation allows notices to be served requiring offenders to take specific actions or cease certain activities. Notices may require activities to cease immediately. In other circumstances they must cease or change within a reasonable time, and take into account the seriousness of the contravention and the implications of the non-compliance.

All notices issued will include details of any applicable appeals procedures.

Works in default

Following the service of a notice, certain types of notice allow works to be carried out in default. This means that if a notice is not complied with (a breach of the notice) we may carry out any necessary works to satisfy the requirements of the notice ourselves. Works in default may be carried out where:

• there is no reasonable prospect of the person responsible carrying out the work, for example, the person is absent or infirm

• there is an imminent risk to public or the environment, for example, a ringing intruder alarm

• hazard to health, for example, electrics

• a prosecution is not appropriate

• a prosecution has been brought and the works have still not been carried out

• it is appropriate to get the nuisance abated quickly

Where the law allows, we may then charge the person/business served with the notice for any cost we incur in carrying out the work, including administration. Failure to comply may entail further formal action.

Where the authority is required to undertake works in default it will ensure that the works are appropriate and the costs incurred are not unduly excessive.

Forfeiture proceedings

This procedure, dealt with through an application in an appropriate court, may be used in conjunction with seizure and/or prosecution where there is a need to dispose of goods in order to prevent them re-entering the market place or being used to cause a further problem.

Seizure

Certain legislation enables officers to seize goods, equipment or documents, for example. unsafe food, sound equipment that is being used to cause a statutory noise nuisance, workplace articles and/or substances, unsafe products or any goods that may be required as evidence for possible future court proceedings. When we seize goods we will give a receipt to the person from whom the goods are taken.

Where appropriate we will explain the procedure for their reclaim, and indicate any cost associated with storage, return or where applicable disposal of items. We will ensure that costs incurred are not unduly excessive.

Powers of entry

In most circumstances the exercising of powers of entry is unnecessary because access is voluntarily given. If access is denied then officers may exercise powers of entry which may be immediate or may require the Council to provide at least 24 hours written notices of its intention to enter a premises.

Where appropriate we will seek to obtain a warrant from the magistrates’ court to enter premises where legislation provides for this and the circumstances justify the action.

We will have appropriate regard to the Protection of Freedoms Act 2012 and the associated Code of Practice on Powers of Entry (external link to a PDF document).

Injunctive actions

In certain circumstances, for example where offenders are repeatedly found guilty of similar offences or where it is considered that injunctive action is the most appropriate course of enforcement, then injunctive actions may be used to deal with repeat offenders or significant potential or actual environmental or customer detriment. Injunctive action includes agreements and formal undertakings to improve compliance which, if breached, may lead to the obtaining of an injunction in the civil law courts.

In situations where the non-compliance under investigation amounts to anti-social behaviour, such as persistent targeting of an individual or a group of individuals in a particular area, then anti-social behaviour orders as appropriate or criminal behaviour orders may be sought to stop the activity.

Simple caution

A simple caution is an admission of guilt, but is not a form of sentence, nor is it a criminal conviction. For a simple caution to be issued:

• there must be sufficient evidence available to prove the case

• the offender must admit the offence

• it must be in the public interest to use a simple caution

• the offender must be 18 years or over

The offender should not have received a simple caution for a similar offence within the last 2 years.

We have opted to follow the guidance issued by the government in relation to the issuing of simple cautions. For details on the Ministry of Justice guidance see this advice on their web site (external link to a PDF document).

A record of the caution will be kept on file for 2 years. If the offender commits a further offence, the 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.

Simple cautions are an alternative to prosecutions in appropriate cases. Simple cautions can only be issued if the defendant admits the offence, and the circumstances are such the interests of the public and justice would be better served without recourse to legal proceedings in the first instance.

If the caution is not administered, because the suspect refuses to accept it, the facts of the case will be reviewed again, without the option of a simple caution, and a prosecution may result.

Benefits cautions or sanctions

The benefits legislation provides for additional sanctions, beyond those applicable to other areas of our work. These include administrative penalties. These are also used as an alternative to prosecution. In such cases the Administrative Penalty and any linked caution will be retained on file for five years.

These are issued if the circumstances are such that the interests of the public and justice would be better served without recourse to legal proceedings in the first instance.

Administrative penalty

Under the Social Security Administration Act 1992 an administrative penalty may be issued as an alternative to a prosecution in matters relating to housing and council tax benefit. A minimum penalty of £350 or 50% of the overpayment, whichever is greater (up to a maximum penalty of £2,000) may be offered for offences committed wholly on or after 8 May 2012. For offences that are committed prior to, or span, 8 May 2012 the administrative penalty is calculated at 30% of the determined overpayment.

In determining whether to offer an administrative penalty there must be sufficient evidence in which to consider commencing criminal proceedings. The offer of an administrative penalty is more likely in cases where dishonesty does not form part of the offence, it is the first time the customer had caused a fraudulent overpayment or there was a clear lack of intent on the part of the customer.

An administrative penalty cannot be imposed and there is no obligation on the part of any person to accept it. If accepted that person has 14 days to withdraw their agreement to pay the penalty (cooling off period). If the penalty is not paid then civil recovery of the debt will be initiated in the County Court.

Where an administrative penalty has not been accepted or a person has withdrawn their agreement to pay, then alternative enforcement action will be considered in respect of the original breach. Administrative penalties are not recorded as a criminal offence.

Refusal, revocation or suspension of a licence

Certain types of businesses, premises and individuals require licenses to operate legally. A refusal, revocation or suspension of a licence will normally ensue when one or more of the following criteria are met:

• deliberately or persistently breached legal obligations which likely to cause material loss or harm to others

• deliberately or persistently ignored written warnings or formal notices

• endangered the health, safety or well being of people, animals or the environment

• obstructed an officer

• non-payment of relevant fee

• providing false or incomplete information

• not fit and proper person.

• qualifying criteria not met

Prosecution

A prosecution will normally ensue where the individual or organisation meets one or more of the following criteria:

• deliberately, negligently or persistently breached legal obligations

• used an element of deception, theft or fraud

• made significant gain or caused significant loss

• deliberately or persistently ignored written advice or formal notices

• endangered, to a significant degree, the health, safety or well being of people, animals or the environment

• assaulted or obstructed an Officer in the course of their duties

Proceeds of crime applications

Applications may be made under the Proceeds of Crime Act for the confiscation of assets in serious cases. Their purpose is to recover the financial benefit that the offender has obtained from his criminal conduct.

Proceedings are conducted according to the civil standard of proof.

Applications are made after a conviction has been secured. Any proceeds received from the proceeds of crime act action will be used in line with relevant guidelines.