PAPER
B
POLICY COMMISSION BLUE PAPER
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RESPONSIBLE BODY Policy
Commission for Safer Communities |
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PROJECT NAME Corporate Enforcement |
REFERENCE NUMBER Saf 4/05 |
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1. PURPOSE OF ENQUIRY AND PROPOSED OUTCOMES 1.1
To improve
protection for consumers and business. 1.2
To ensure more
efficient use of resources. 1.3
To reduce the
regulatory burden on businesses. |
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2. RECOMMENDATIONS To be decided by the Policy Commission on 15 March
2007 |
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This body of
work and the above recommendations were agreed and accepted by Members of the
Policy Commission for Safer Communities on 15 march 2007
Cllr David Williams Commissioner |
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3. BACKGROUND TO ENQUIRY THE NATIONAL CONTEXT 3.1
Councils have a fundamental responsibility
for protecting the communities that they represent using the legislative tools
handed down by national government.
Councils implement, administer and enforce a raft of legislation
designed to protect health, local economies and the environment. Councils are subject to external audit to
ensure consistent, impartial and effective application. 3.2
Councils have flexibility to determine the
most appropriate fit for brigading enforcement services into frameworks that
are best suited to local need and effective at delivering value for
money. This enquiry has lead to the Policy
Commission for Safer Communities examining alternative service delivery
frameworks. Common themes have been
identified. In unitary authority
structures for example, environmental health and trading standards are often
co-located with common management as is the case with the Isle of Wight
Council. No standard structure for
enforcement services in local authorities has been widely adopted. 3.3
The Commission devoted time to exploring the
Single Non Emergency Number or SNEN concept.
SNEN encourages the public to telephone “101” as a confidential 24
hour number giving direct access to advice, information and action for
community safety matters whilst freeing up the 999 service to handle
emergencies. The “101” service has
been piloted in Hampshire and the Isle of Wight (and 4 other areas);
originally with proposals for a second wave of authorities implementing in 2007,
and a national launch in 2008. The
second wave of SNEN and the national launch has been delayed as evaluation of
early results from the first wave of pilots continues. The Commission noted that SNEN was
established to deliver solutions for individuals and communities concerned
about:- · vandalism,
graffiti and other deliberate damage to property · noisy
neighbours · abandoned
vehicles · rubbish
and litter, including fly tipping · alcohol
related anti-social behaviour · drug
related anti-social behaviour · street
lighting problems 3.4
In 2005 the Clean Neighbourhoods and
Environment Act was passed. The Act
introduced changes to what is known as the fixed penalty notice regime. Competent officers with appropriate
authorisations can now issue fixed penalty notices (FPNs) for a range of
environmental crimes. Secondary
legislation made under the Act, and guidance published by the Department for
Environment Food and Rural Affairs (DEFRA), provides a model for local
authorities to tackle environmental crime by adopting the fixed penalty
notice regime. In certain
circumstances parish councils can also adopt powers to authorise competent
officers to issue fixed penalty notices. Income generated from FPNs is generally retained by the issuing
authority for the purpose of supporting activity underpinning the linked
legislation. If the issuing authority
has been categorised under the Comprehensive Performance Assessment as
“excellent” or “good”, or is a quality parish council, additional
flexibilities can be sought from DEFRA to broaden use of FPN income. Local authorities have powers to set
amounts for FPNs within a standard range generally from £50-£80. In some cases the amount can, however, be
set as high as £300. Arrangements can
be made for Councils to authorise Police Community Support Officers to issue
FPN’s for environmental crimes with subsequent penalty income being made
payable to the relevant local authority. 3.5
The Commission has taken evidence about the
work of the government’s Hampton Commission[1]
and more recently the Cabinet Office’s Better Regulation Executive. The Better Regulation Executive (BRE) has
been established by government to “cut red tape” and so help to make
businesses more productive and public services more efficient. The BRE promotes a notion of a light touch
to regulation that keeps protections high but burdens low. The BRE promotes confidence in the ability
of good regulation or green tape as opposed to red tape to protect consumers,
the economy and the environment. The Department of Trade and Industry’s
response to BRE has been to establish the “Retail Enforcement Pilot”. This project is of relevance to those
local authority enforcement services accountable for premise based
enforcement. ·
The Retail Enforcement Pilot facilitates a
shared approach from trading standards, fire, environmental health food
safety and health safety teams, prioritising visits based on risk and
reducing inspections for businesses that perform well. ·
The London Borough of Bexley and
Warwickshire County Council (and three of its districts) are undertaking
trials and have successfully co-ordinated a risk based inspection programme
based on relative risk and evidence of business performance. A “lead regulator” is assigned who also
acts as eyes and ears for other disciplines, thereby sharing information and
reducing visits for well-run businesses.
This policy improves business education and compliance, enhancing
consumer and worker protection. ·
This approach theoretically allows local authorities
to make their own strategic and hazard based judgements as to which premises
are visited, so that they maximise value from their resources. Any resource released from planned routine
inspections will pick up cross referrals from joint inspections, allow more
focus on educating businesses and undertaking more targeted intelligence led
campaigns and tackling rogue traders. ·
Preliminary results from the trials indicate
that: §
Routine planned inspections can be reduced
by up to 30 percent for compliant businesses §
Enhanced consumer protection through better
intelligence sharing and cross referral of problems or issues between
regulators §
A reduction in the requirements for form
filling for local authorities and businesses §
Co-ordinated working increases the
efficiency and effectiveness of inspection services A second phase of trials with other local authorities
is expected in 2007 (Isle of Wight Council has volunteered) and will be
followed by a full evaluation of the Pilot model in Spring 2008. Further details are on the DTi website[2].
3.6
The government funded Food Standards Agency
(FSA) is a primary enforcement partner for all food authorities. The Isle of Wight Council is a food
authority. In November the FSA
announced changes to the approach to food law enforcement by local
authorities. The FSA’s “New Vision”
is in part a response to the Hampton Commission’s report on enforcement. The current focus on local authority
inspections for food standards and food hygiene purposes is to be augmented
by a suite of interventions giving authorities greater flexibilities. The emphasis is shifting from outputs i.e.
numbers of inspections to outcomes i.e. effectiveness of interventions to
enhance levels of business compliance.
The FSA is consulting all stakeholders on its detailed proposals
before full implementation. The
review is timely and consistent with initiatives referred to elsewhere in
this blue paper and will almost certainly require a shift in front line
enforcement principles in environmental health and to a lesser extent trading
standards. 3.7
National government has various tools at its
disposal to promote effective enforcement at a local level. An “enforcement concordat”[3](ante) to underpin local enforcement
policies is one such tool. The
enforcement concordat calls for a transparent risk based proportionate
approach. Another government
announcement indicates that the “enforcement concordat” is to be supplemented
by a new statutory Regulators Compliance Code[4](ante) designed to ensure that
regulatory best practice is widely adopted.
The Compliance Code will be framed to promote: ·
Comprehensive risk assessments to help
target resources ·
Regulators being accountable but independent ·
No inspections of business without reason ·
Business will only be obliged to provide
information to regulators once ·
Businesses that persistently offend should
be identified quickly ·
Regulators should provide authoritative
accessible advice easily and cheaply ·
Regulators should only intervene when there
is a clear case for protection THE LOCAL CONTEXT 3.8
The Commission has undertaken audits,
interviewed stakeholders, made a visit to a best practice authority
(Birmingham) and taken evidence from key officers at meetings and a workshop. A model that has
evolved during the Commission’s work has been to view this Council’s broad enforcement
agenda as being in four blocks: ·
Premise based enforcement ~ predominantly
Consumer Protection ·
Environmental crime ~ Safer Communities,
Engineering Services and Consumer Protection ·
Traffic and parking ~ predominantly
Engineering Services ·
Development Control and Building Control ~
predominantly Planning Services Pockets of
enforcement have been identified elsewhere, for example, in Housing Services
and Children’s Services. Appendix “B”
sets out the existing enforcement activity undertaken by the Council and the
responsible service areas. Audits have been
undertaken to attempt to assess resource (people and finance) allocation to
corporate enforcement with varying degrees of success. Definitions of the term “enforcement”
varied, from the very narrow i.e. direct action taken in the Courts to the
very broad i.e. workshops and seminars to business representatives to explain
legislation. Probably the most
appropriate definition of enforcement and one accepted by the Commission was that
used by the Cabinet Office. Local
government enforcement is defined . . “as work carried out to protect the
public, the environment and groups such as consumers and workers”. This broad
definition encompasses recent innovations by this Council including cold
calling control zones, the buy with confidence trader approval scheme and the
soon to be launched “scores on the doors” food business rating scheme. 3.9
Our analysis of the four block approach to
enforcement revealed that enforcement activity was widely dispersed across
several directorates and conducted from many office locations. These arrangements may not be the most
effective for joined up working. The
aim should be for local residents to only make one point of contact with the
Council over any enforcement issue. It
should not be for a local resident or an elected member to determine where
ownership or responsibility for tackling an enforcement problem sits within
our officer structures. The Council’s
reputation is damaged if officers fail to take ownership of a problem and a
customer is referred from service to service and back again. 3.10 The
Commission noted that this enquiry had links to other commission enquiries both
completed and still underway. In particular
the Commission considered: Consumption of
Alcohol in Public Places (completed) Community
Support Officers (completed) Decriminalised Parking
(blue paper adopted, implementation underway) Environmental Crime
Strategy (scope adopted, for completion in 2007) This emphasis on
enforcement is clearly by design and a reflection of the higher profile
regulatory activity has in a modern local authority. Modern local authorities have an
opportunity to build reputation through firm but fair application of good
regulation. Modern local authorities
must deliver better regulatory outcomes. 3.11 The
Commission recognised the importance of good legal process in all the
Council’s enforcement dealings. Several
members viewed formal enforcement action, particularly prosecution, as a
failure to persuade an offender to correct illegal behaviour; others
recognised that formal enforcement action would from time to time be
inevitable. Legal process is
expensive; a failure to adopt correct legal process can be very expensive if
the Council fails in a legal action and costs are awarded against the
authority. Local initiatives such as
“the prosecutor’s forum” where enforcers from a range of Council disciplines
come together for workshops and to share best practice mitigate against the
consequences of an error in legal process. 3.12 Good
legal process requires employing competent officers in diverse enforcement
disciplines. This local authority, as
with many other local authorities, faces the challenge of recruiting and
retaining good quality professional enforcement officers. Common enforcement principles need to be
underpinned by an appropriate level of professional knowledge and expertise. 3.13 Modern
working practices require modern technology.
Our enforcement officers are usually most effective when working in
the community. Investments are
planned to increase the use of new technologies, for example to enable remote
interrogation of databases. There is
an opportunity for further work to be done under the broad banner of
information management to share intelligence more effectively across our
enforcement teams. It was noted by
the Commission that the Council has long term plans to adopt a corporate
Geographical Information System standard.
This initiative has important implications for corporate enforcement,
in that a shared database should provide enhanced intelligence and focus
enforcement activity in areas where it is most needed. |
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4. CONSULTATION 4.1 The
Commission has consulted widely through formal and informal meetings, a
service audit, a workshop and a site visit, and taken evidence through
discussions with other local authorities and representative bodies. Consultees include: ·
Engineering Services ·
Planning Services (including Building
Control) ·
Environmental Health (including Licensing) ·
Trading Standards ·
Safer Communities Partnership ·
Fire & Rescue Service ·
Housing Services ·
Fareham Borough Council ·
Birmingham City Council ·
Local Government Association ·
Local Authorities Co-ordinating Body on
Regulatory Services ·
Chamber of Commerce, Tourism and Industry ·
Trade Union (UNISON) ·
Cabinet members 4.2 Commission
meeting notes and supporting papers to this enquiry are identified in section
7 of this blue paper. |
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5.1
Several of this Council’s departments have
enforcement policies. These reflect
the different legislation applicable to different service areas. There should, however, be a policy of best
practice setting out guiding principles of the Council’s approach to
enforcement in a way that is easily understood by businesses and those
enforced against; and by consumers, workers and residents who are protected
by the Council carrying out its duties. 5.2
Recent changes to the Council’s directorate
and service structures better reflect the priority being given to “corporate
enforcement”. However, further work
is required to establish ensure an integrated approach to enforcement and
that best practice is adopted by all service areas involved in enforcement. 5.3
The SNEN concept reflects pressures on the
‘999’ system and dissatisfaction with the public sector’s inability to effectively
resolve concerns identified in paragraph 3.3 of this blue paper. Resolution includes removing the concern and
following up whenever reasonably possible with enforcement action. National enthusiasm for SNEN may be on the
wane, however the benefits of successfully implementing SNEN principles are
broadly accepted. This Council’s organisational
management arrangements should be capable of linking the elements of SNEN to
improve effectiveness. 5.4
The Council has licensing responsibilities
predominantly geared to protecting public health and promoting public safety
located in Consumer Protection. There
are two key elements to the licensing process, its administration and
thereafter ongoing enforcement. If
one takes a wider view of “licensing” the Council charges many businesses
before they undertake a range of activities.
Using this wider definition, “licensing” functions are undertaken
across the authority for example in fire and rescue, housing, engineering
services, public markets. Situations
have been outlined to the Commission where businesses pay “licensing” fees to
more than one Council service. 5.5
The Police Authority plans to employ up to 29
police community support officers (PCSO’s) on the island have been confirmed. Following a decision of Cabinet in March
2006, the Council has established a small team of five accredited community
support officers (ACSOs). These officers
have formed the nucleus of a new Council Environmental Response Unit. Evidence from other authorities points to
Environmental Response Units succeeding where:- ·
Strong links are established with the police
to avoid duplication of effort and agree common priorities ·
There is allocation of specific budget (in
this regard that the cost of an ACSO with overheads is approximately £30k per
annum) ·
The unit works alongside competent and
experienced “enforcers”, and procedures are in place to support a “three
legged” approach incorporating education, enforcement and clean up. ·
The authority gives the unit high profile
and commits to rapid response. 5.6
The notion of enforcement officers undertaking
a wider range of enforcement tasks offers enhanced development opportunities
for Council officers. Examples have been
identified during the course of the enquiry to demonstrate progress towards officers
broadening their enforcement brief and as a consequence more efficient
resource use. The Commission
encourages this approach whilst at the same time recognising the value of the
Council employing specialist enforcement officers. 5.7
The profile of the prosecutor’s forum within
the authority may have been undervalued.
It appears to the Commission that the forum is the ideal network for
provision of value for money training and consistent application of enforcement
procedures. The forum may have a role
in preparing a single overarching enforcement policy for Council adoption. 5.8
The impetus to improve this Council’s
approach to premise based enforcement has already been established and a
request lodged with government for this Council to be included in the second
wave of authorities selected to trial the “Retail Enforcement Pilot”. The Commission encourages this approach. 5.9
Until recently, the Council’s dog warden
service was delivered by a private sector contractor. The client officer was an Environmental
Health specialist. Expertise was
built up in the use of Fixed Penalty Notices. The 3 dog wardens became Council employees when the contract
ended. The Commission, whilst mindful
of the benefits of robust enforcement, is sensitive to the excesses of over
zealous enforcement witnessed elsewhere when parking enforcement has been
vested with an external contractor. 5.10 Other
authorities have cautioned against rapid combination/joint tasking of ACSO
and parking enforcement teams. Rapid
combination appears to dilute impact and effectiveness. The Commission cautions against such joint
tasking until new arrangements in these respective service areas are working
satisfactorily. 5.11 The
outcome of the current debates about the Council’s Fire and Rescue Service
could impact on this enquiry in a number of ways. Insofar as enforcement is concerned the Fire and Rescue Service
licence’s businesses that store petroleum spirit and petroleum based
product. Petroleum licensing activity
is not undertaken by the Hampshire Fire Authority. 5.12 One
of this Council’s more recent appointments is a Head of Planning Services. Planning enforcement is an area of
particular concern and there is scope for improvement in this area. The Commission believes that the new Head
of Service should be accountable to the authority for delivering improvements
in planning enforcement. The case for
avoiding disaggregation of planning enforcement from the wider planning service
at a time of considerable change is logical.
5.13 The
introduction of the Clean Neighbourhoods and Environment Act 2005 marked a
series of new powers and changes for Local Authorities to tackle
environmental crime and anti-social behaviour. Whilst it is understood that the Council has adopted powers to
enforce against environmental crime, it is recognised that a lack of
resources may have impacted on the
ability of Council Officers to effectively undertake this function. ·
Litter ·
Abandoned and nuisance vehicles ·
Dog Fouling / Dog Control Orders ·
Waste Crime ·
Shopping and Luggage Trolleys ·
Noise nuisance ·
Graffiti and Flyposting |
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RISK ASSESSMENT OF OPTIONS – Steve Milford, Finance
Manager – Safer Communities This blue paper outlines 6 options, A – F and each has been examined below against the risks identified relating to Corporate Enforcement. The following risks are apparent, with the detailed scoring shown in the Appendix. Risk 1 – Continuing to work in
“silos” Public will continue to be
confused as to which department is responsible for which aspects of
enforcement. Departments will not benefit from shared experiences and good
practice. Possibility of actual or perceived duplication, i.e. businesses
receiving uncoordinated visits / inspections. Possibility of inconsistent /
conflicting advice. The Status Quo and Decriminalised Parking options show
the highest scores for this risk, since they represent the least change
alternatives. Risk 2 – Legislation – meeting
existing and new requirements Rapid combination could dilute
the impact of established professional routines. More difficult for “generic”
inspectors to effectively enforce a wider range of legislation. New
legislation – don’t know what requirements will be and if new structures can
cope. The options involving the greatest levels of “generic” working result in the highest
levels of risk of not meeting legislative requirements, i.e. the Retail
Enforcement pilot option. Risk 3 (a) – Service
deteriorates following switch from reaction / inspection to prevention /
education Incidents of non-compliance will
not actively be deterred / discovered if there is insufficient inspection.
Conversely, inadequate training / education of citizens / businesses will
lead to non-compliance in future. Taking the view of short term
deterioration of service from this switch, there is a small risk with the
Retail Enforcement option. Risk 3 (b) – Service fails to
improve in longer term by not switching to prevention / education Inadequate training / education
of citizens / businesses will lead to non-compliance in future. Most of the
current options involve low levels of switching resources from inspection
to education and therefore score some risk here. Risk 4 – Impact of change on
current / new staff Staff may feel that their chosen professions are being down-graded / under-valued in any move towards “generic enforcement”, leading to low morale. This could exacerbate current difficulties in recruitment and retention in certain areas. Conversely, some staff will welcome changes and the ability to extend their skills. Currently only the Retail Enforcement pilot is immediately affected by this risk. Risk 5 – Physical
implementation of change Reorganisation will cost a certain amount of time and money, including retraining. Some options will require additional resources that will need to be funded. Significant deviation in mode of service delivery could make the IW difficult to compare with other local authorities and therefore difficult to measure performance. Most changes will entail some costs, at least initially,though this is only likely to impact on the Retail Enforcement pilot option. Risk 6 – Physical harm or
death of a client / consumer Ultimately there is a risk that inadequate enforcement could lead to such a serious breach of regulations that a client / consumer is injured or even dies. The services where such risks are higher are Environmental Health, Trading Standards and Fire, so any changes adversely affecting the standards of these services could increase the risk of physical harm or death. This is a theoretical risk, whether we instigate change or not – at this stage, none of the proposed changes would appear to so drastic that they would actually increase the risk of harm or death. The probability of this risk occurring is low and the impact high, but as it is considered to be equal across all options it is not scored in the table in the attached Appendix. |
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1. BRTF (Better Regulation Task Force) Report – ‘Regulation, Less is More’, March 2005 2. John Hutton, Minister for the Cabinet Office, ‘Modernising Local Enforcement’, 14 September 2005, http://www.cabinetoffice.gov.uk/about_the_cabinet_office/speeches/hutton/html/modernising_local_enforcement.asp 3. Medway Council Corporate, Enforcement Policy, 11 August 2005 4. Fareham Borough Council, Enforcement Policy, http://www.fareham.gov.uk/council/departments/healthcommunity/enfpol.asp 5.
Regulatory Justice:
Sanctioning in a post-Hampton World, consultation document, May 2006 6. Regulatory Justice – consultation document, May 2006 7.
Enfield Borough
Council – Environmental Crime Unit promotional video, August 2006 Internal 8.
Enforcement Audit,
Isle of Wight Council. Responses received from: a)
Trading Standards b)
Customer Account
Services c)
Housing Renewal d)
Revenues &
Benefits e)
Safer Communities f)
Highways & Waste g)
Learning Effectiveness h)
Planning Services –
Development Control i)
Environmental Health j)
Children & Family
Services k)
Fire & Rescue 9. Warren Haynes, Environmental Health Manager, IW Council, 6 July 2006 10. Helen Miles, Legal Services, IW Council, 1 August 2006 11. Unison Branch Secretary, 2 August 2006 12. Nat Slade, Senior Environmental Health Practitioner, IW Council on DTI Enforcement Initiative, 3 August 2006 13. Richard Stone, Trading Standards Manager, IW
Council, 8 August 2006 14. Alan Barnes, Housing Renewal Manager, IW Council, 21 August 2006 15.
Prue
Grimshaw, Head of Children & Family Services, IW Council, 27 August 2006
16. Abandoned Vehicles procedures, 29 August 2006 17. Peter Taylor, Traffic Manager, IW Council, up-date on de-criminalising of parking project, 1 September 2006 18. Steve Boswell, Operational Manager, Engineering Services, IW Council, 7 September 2006 19. Building Control Presentation (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 20. Building Control Briefing Paper, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 21. Consumer Protection Structure, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 22. Development Control, Planning Services, Briefing Paper, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 23. Development Control, Planning Services, Presentation, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 24. Engineering Services Briefing Paper, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 25. Engineering Services Presentation, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 26. Fire & Rescue Services Briefing Paper, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 27. Fire & Rescue Services Presentation, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 28. Housing Renewal Presentation, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 29. Safer Communities Briefing Paper, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 30. Safer Communities Presentation, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 31. Trading Standards Briefing Paper, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 32. Trading Standards Presentation, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 33. Environmental Health Briefing Paper, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) 34. Environmental Health Presentation, (Overview & Scrutiny Team, Corporate Enforcement Workshop, 17 October 2006) ·
Overview and
Scrutiny Team, Notes of Evidence, 5/1/06 (Saf.PC.5/01/06 – Public Meeting)
Isle of Wight Council ·
Overview and
Scrutiny Team, Notes of Evidence, 1/6/06 (Saf.PC.1/6/06 – Public Meeting)
Isle of Wight Council ·
Overview and
Scrutiny Team, Notes of Evidence, 6/7/06 (Saf.PC.6/7/06 – Public Meeting)
Isle of Wight Council ·
Overview and
Scrutiny Team, Notes of Evidence, 8/8/06 (Saf.PC.8/8/06 – Public Meeting)
Isle of Wight Council ·
Overview and
Scrutiny Team, Notes of Evidence, 7/9/06 (Saf.PC.7/9/06 – Public Meeting) Isle of Wight Council · Corporate
Enforcement Workshop, 17/10/06 ·
Overview and
Scrutiny Team, 2005, Notes of Evidence, 2/11/06 (Saf.PC2/11/06 – Public
Meeting) Isle of Wight Council · Overview & Scrutiny Team, Notes of Evidence,
Birmingham City Council visit, 16 November 2006 |
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Prepared by: Cllr David Williams, Policy
Commissioner Rob Owen, Head of
Consumer Protection April west, Overview
& ScrutinyTeam Date 07 March 2007 |
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