Enforcement policy

1. Introduction

In March 1998 the Government's Better Regulation Unit published an Enforcement Concordat, which sets out a blueprint for fair, practical and consistent enforcement across the country. The Concordat has been developed jointly by representatives of businesses, local authorities and central government and has been circulated for adoption by enforcement agencies. The Concordat draws on good practice already operated by many local authorities and other agencies.

Cambridge City Council fully supports this initiative and has set out within this Enforcement Policy the principles to be adopted by all departments and officers exercising any enforcement functions. In signing the Concordat and adopting this Enforcement Policy the Council is stating its commitment to an enforcement service which is courteous and helpful and which works with individuals and businesses, wherever possible, to help them comply with the law.

The Council nevertheless acknowledges the need for firm action against those that flout the law and put consumers and others at risk. In drafting this policy the council has taken the provisions of the Human Rights Act 1998 into account. In the Council's view this Enforcement Policy is compatible with Convention Rights.

2. Enforcement activity

The Council has a duty to enforce a wide range of statutes relating to public health and safety, quality of life, preservation of public and residential amenity maintenance of the environment and protection of public funds. All of these activities will be carried out having regard to the general principles of good enforcement practice outlined in this Policy document. The services falling within the scope of this policy include:

1. Environment and Planning Department

a) Environmental Health and Waste Strategy Service
Pollution Control, Environmental Protection, Health and Safety, Public Health, Food Safety, Imported Food Control and other port health functions, House Conditions, Animal Welfare and Unauthorised Encampments.

b) Development Services
Planning Control, Building Control.

c) Transport Services
Licensing of Taxis and Private Hire Cars.

d) Street Services
Street Trading and other street licensing functions.

e) Policy and Projects
Listed Buildings, Conservation Areas, Tree Preservation.

2. Finance Department

Revenue Recovery and the investigation of Housing Benefit, Council Tax and national non-domestic rate fraud.

3. Community Services Department

Antisocial Behaviour Orders, harassment and Illegal Evictions.

4. City Services

Abandoned Vehicles.

Although primary responsibility for compliance with the law rests with individuals and business, the Council will provide free information to help them to understand legal requirements and will seek to raise awareness about the need to comply.

3. Delegation of authority

The Council's Scheme of Delegation specifies the extent to which enforcement powers are delegated to officers. Whilst delegation may often be to officers, in certain circumstances the decision to take enforcement action lies with the relevant Council Committee, for example refusal to grant or renew a Public Entertainments Licence.

4. Principles of enforcement

The Council believes in firm but fair regulation. Underlying the policy are the principles of proportionality in the application of the law and in securing compliance; consistency of approach; openness about how the Council operates and what those customers may expect, and targeting of enforcement action.

4.1 Proportionality

The enforcement action taken by the Council will be proportionate to the risks posed and to the seriousness of any breach of the law.

Some incidents or breaches of regulatory requirements have the potential to cause serious risks to public health and safety, environmental damage or loss of public or residential amenity. One of the Council's responsibilities is to protect the public and prevent harm to the environment from occurring or continuing. There may be occasions when the breach of regulations will justify statutory action. Any such action will only be taken in accordance with the law, and after due consideration has been given to any Convention Rights, under the Human Rights Act 1998, that may be affected by such action.

4.2 Consistency

The Council aims to achieve consistency in advice tendered, the response to complaints and other incidents, the use of powers and decisions on whether to prosecute.

However, the Council recognises that consistency does not mean simple uniformity. Officers need to take account of many variables; the scale of the breach; the attitude and actions of management, and the history of previous incidents or breaches. Decisions on enforcement action are a matter of professional judgement and the Council, through its officers, needs to exercise discretion. The Council will continue to develop arrangements to promote consistency including effective arrangements for liaison with other enforcing authorities.

4.3 Openness

Openness is important in maintaining public confidence in the Council's ability to regulate. It means helping all customers to understand what is expected of them and what they should expect from the Council. It also means making clear why an officer intends to or has taken enforcement action.

Openness is an integral part of the role of Council officers and the Council continues to train its staff and to develop its procedures to ensure that:

• where remedial action is required, it is clearly explained (in writing if requested) why the action is necessary and when it must be carried out; a distinction being made between best practice advice and legal requirements;
• opportunity is provided to discuss what is required to comply with the law before formal enforcement action is taken, unless urgent action is required, for example, to protect the environment, to prevent evidence being destroyed or in the course of an investigation into fraud, or other criminal offences, which may lead to prosecution;
• where urgent action is required, a written explanation of the reasons is provided as soon as practicable after the event;
• written explanation is given on any rights of appeal against formal enforcement action at the time the action is taken;

4.4 Targeting

Targeting means making sure that regulatory effort is directed primarily towards those who are responsible for risk to health and safety or whose activity gives rise to serious environmental damage, where the risks are least well controlled or against deliberate or organised crime. Action will be primarily focused on lawbreakers or those directly responsible for the risk and who are best placed to control it.

The Council has systems for prioritising regulatory effort. They include the response to complaints from the public about regulated activities, the assessment of the risks posed by business operation and the gathering and acting on intelligence about illegal activity.

In the case of regulated industries, management actions are important. Repeated incidents or breaches of regulatory requirements, which are related, may be an indication of an unwillingness to change behaviour or an inability to achieve sufficient control, and may require a review of the regulatory requirements, the actions of the operator and additional investment. A relatively low hazard site or activity, poorly managed, has potential for greater risk to the environment than a higher hazard site or activity where proper control measures are in place.

The Council will always seek to recover the costs of investigation and Court proceedings.

5. Enforcement options

The Council recognises the importance of achieving and maintaining consistency in its approach to enforcement. For many areas of our enforcement activity government guidance already exists in the form of Codes of Practice, Planning Policy Guidance, Government Circulars etc. There may also be local or regional Codes of Practice such as the Charter and Code of Practice for the collection of debts, which have been produced locally to promote consistency in our enforcement activity. When making enforcement decisions officers must have regard to any relevant national or local guidance as well as the provisions of the Human Rights Act 1998 and this Enforcement Policy.

Enforcement decisions must be consistent, balanced, and fair and relate to common standards that ensure the public or environment is adequately protected. The criteria to be considered will include:

• the seriousness of the offence;
  
• the history of the activity;
  
• confidence in achieving compliance;
  
• consequences of non-compliance; and
  
• likely effectiveness of the various enforcement options.

The criteria are not exhaustive and those which apply will depend on the particular circumstances of each case. This does not mean that all factors must be in favour of enforcement action, rather that, on balance, the preponderance is in favour.

Having considered the enforcement criteria the following options are available:

• to take no action; or
  
• to take informal action: or
  
• to serve statutory notices; or
  
• to issue formal cautions; or
  
• to suspend, revoke or refuse to renew a licence; or
  
• to impose an administrative penalty; or
  
• to prosecute or apply for a Court Order.

Where appropriate a staged approach to enforcement should be adopted and in the first instance business should be given the opportunity to discuss and remedy problems before action is taken, unless immediate action is required.

5.1 Informal Action

Informal Action will be taken when:

• the act or omission is not serious enough to warrant formal action; or
• from the individual's or business's past history it can be reasonably expected that informal action will achieve compliance; or
  
• the confidence in an individual or business proprietor is high; or
  
• the consequences of non-compliance will not pose a significant risk to public health, public safety or the environment.

When an informal approach is used to secure compliance with regulations, confirmation of what action is required must be confirmed in writing. All correspondence must clearly differentiate between legal requirements and recommendations of good practice and must indicate the regulations contravened and the measures, which will enable compliance.

5.2 Statutory Notices

Statutory Notices will be issued where one of the following criteria apply:

• where there is a statutory duty to do so;
  
• there are significant contraventions of legislation;
  
• there is a lack of confidence in the proprietor or enterprise to respond to an informal approach;
  
• there is a history of non-compliance;
  
• standards are generally poor with little management awareness of statutory requirements;
  
• the consequences of non-compliance could be potentially serious to public health, or cause public nuisance, or be irreversible; or
  
• where, in addition to prosecution, measures need to be taken to remedy conditions that are serious, deteriorating or where the service of a notice is needed to support a prosecution.

Failure to comply with a statutory notice will, in general and where relevant, result in prosecution and/or works in default where appropriate.

5.3 Prohibition Notices

It will be necessary to consider the service of a Prohibition Notice, stop notice or injunction in one or more of the following circumstances:

• an imminent risk of injury to health or safety can be demonstrated;
  
• an imminent risk of serious pollution to the environment can be demonstrated;
  
• the consequences of not taking immediate and decisive action to protect the public would be unacceptable;
  
• where an unauthorised development is unacceptable and immediate remedial action is required because the breach is causing serious harm to public amenity in the neighbourhood of the site or where there has been a breach of a condition notice;
  
• where unauthorised development is unacceptable and continuing works are causing irreversible damage and remedial action is not a satisfactory option;
  
• the guidance criteria concerning the conditions when prohibition may be appropriate are fulfilled;
  
• there is no confidence in the integrity of an un-prompted offer made by a proprietor to voluntarily close premises or cease the use of any equipment, process or treatment associated with the imminent risk; or
• a proprietor is unwilling to confirm in writing his/her un-prompted offer of a voluntary prohibition.
• where it would be the most effective remedy available.

5.4 Prosecution

The Council recognises that the decision to prosecute is significant and could have far reaching consequences on the offender. The decision to undertake a prosecution will normally be taken by the relevant Director/Head of Service in consultation with the Council's Solicitor. The criteria for the issue of proceedings are:

• the alleged offence involves a flagrant breach of the law such that public health, safety or well being is or has been put at risk or irreversible damage had resulted;
  
• there has been a reckless disregard for the environment;
  
• the alleged offence involves deception, which may or may not result in a loss or potential loss of public funds;
  
• the integrity of the licensing framework is threatened;
  
• the alleged offence involves a failure by the suspected offender to correct an identified serious potential risk having been given a reasonable opportunity to comply with the lawful requirements of an authorised officer;
  
• the alleged offence involves a failure to comply in full or in part with the requirements of a statutory notice;
  
• there is a history of similar offences;
  
• the alleged offence causes public alarm and it is desirable to reassure the public and deter other offenders; or
• a prosecution is in the public interest, there is realistic prospect of conviction and sufficient evidence to support proceedings.

All relevant evidence and information will be considered before deciding upon a prosecution in order to enable a consistent, fair and objective decision to be made. The Council will have regard to the Attorney General's Code for Crown Prosecutions, which means that the following criteria will be considered:

• Whether the standard of evidence is sufficient for there to be a realistic prospect of prosecution;
  
• Whether the prosecution is in the public interest;
  
• The likely penalty, i.e. if the probable penalty would only be an absolute discharge then it would not normally be considered in the public interest to prosecute;
  
• Currency, i.e. regard would be had to the time which has elapsed since the date of any alleged offence;
  
• Youth, with regard being taken of previous character, parental attitude, and the likelihood of the alleged offence being repeated;
  
• Old age; infirmity, or other medical condition, in particular, whether the accused is fit to stand trial.

5.5 Prosecution Without Warning

As a general rule a person or a company will be given a reasonable opportunity to comply with the law, although in some circumstances prosecution may be undertaken without giving prior warning, e.g.

• the contravention is a particularly serious one;
  
• there has been a particularly blatant disregard of the law;
  
• a statutory notice has been previously issued for a similar offence; or
  
• the integrity of the licensing framework is threatened.

5.6 Formal Cautions

A formal caution may be issued as an alternative to a prosecution. Formal cautions will be issued to:

• deal quickly and simply with less serious offences;
  
• divert less serious offences away from the courts; or
  
• reduce the chances of repeat offences.

To safeguard the suspected offender's interests the following conditions will be fulfilled before a caution is administered:

• there must be evidence of the suspected offender's guilt sufficient to give a realistic prospect of conviction; and
  
• the suspected offender must admit the offence; and
  
• the suspected offender must understand the significance of a formal caution and give an informed consent to being cautioned.

No pressure will be applied to a person to accept a formal caution.

Should a person decline the offer of a formal caution a prosecution will be pursued.

5.7 Non Compliance with Policy

If any person is unhappy with the action taken, or information or advice given they will be given the opportunity of discussing the matter with the relevant line manager or Head of Service. This is without prejudice to any formal appeals mechanism or to the Council's formal complaints procedure.

6. Training and appointment of officers

All officers undertaking enforcement duties will be suitably trained and qualified so as to ensure that they are fully competent to undertake their enforcement activities.

All officers will be formally authorised by the relevant Council committee or delegated officer to exercise specified powers under relevant statutes. The level of authorisation for each officer will be determined by their qualifications, experience and competence having regard to any relevant national guidelines. Authorisation will be in writing and in a form, which can be shown on request. A copy of an officer's authorisation will be held in their personal file.

The Council support the principle of continuing professional development and will ensure that all officers are given additional in-post training to maintain up to date knowledge and skills.

7. Management systems

Staff competency and the consistency of enforcement will be reviewed by each department on a regular basis.

The Council will maintain management systems to monitor the quality and nature of enforcement activities undertaken, so as to ensure, as far as is reasonably practicable, a uniform and consistent approach. Where local or national coordinating bodies exist such as LACOTS (Local Authorities Coordinating Body on Food and Trading Standards) and the Cambridgeshire Food Liaison Group, the Council will ensure that wherever possible its enforcement practices are consistent with best practice. The review of the enforcement services may involve any of the following activities:

• Review of enforcement standards by members of the Council;
• Quality Assurance systems such as ISO9002;
  
• supervising officer for enforcement action;
  
• monitoring visits by line managers;
  
• shadowing visits by colleagues;
  
• monitoring of correspondence and statutory notices;
  
• peer review exercises;
  
• internal training sessions and workshops on enforcement issues;
  
• customer satisfaction surveys;
  
• business focus groups;
  
• quality assurance.

8. Review of this policy

This policy document will be reviewed on a regular basis.

This document was published in May 2001.

For further information email Jas Lally.