Regeneration and Culture General Enforcement Policy

As with all local authorities, Parliament has given Leicester City Council the task of enforcing laws that regulate a wide range of activities. This document, the Regeneration & Culture Department’s General Enforcement Policy, sets out why and how regulatory actions are carried out by the Department.

This document should be read in conjunction with:

• The Council’s Constitution and the Department’s Scheme of Authorisation which specify how enforcement responsibilities are delegated to officers,

• The Council’s Prosecutions Policy, which applies to criminal prosecutions and simple cautions,

• The service-specific policies that relate to the specific nature of enforcement activity carried out by some service teams, e.g. Licensing Policy,

• The Regulators’ Compliance Code, introduced in 2008 as part of the Government’s Better Regulation agenda, to embed a risk-based, proportionate and targeted approach to our regulation of local businesses and,

• The Government’s Enforcement Concordat, which sets out the principles of good practice that the Department has committed itself to.

What is Enforcement?

Regulation plays an important part in promoting fair trading, assisting the economic progress of local businesses and in protecting the health, safety, amenity, and economic interests of Leicester’s citizens.  Enforcement includes -

• Providing information on the law and best practice advice to assist local businesses,

• Inspections to check compliance with legislation,

• Investigation of complaints that indicate that the law has been breached to a significant extent,

• Responding proportionately to any regulatory breaches.

Who Carries out Enforcement?

Leicester City Council’s enforcement powers are in the first place given to the Council as a whole.  The Council, its Cabinet and Committees may reserve decisions about the exercise of these powers or delegate them to officers of the Council.  Because of the range and complexity of modern legislation, most enforcement activities are delegated in this way.  This means that enforcement of each piece of legislation covered by the General Enforcement Policy will be carried out by officers who are:

• Duly authorised under the relevant legislation,

• Appropriately trained in their area of work and,

• Supported and monitored through documented management procedures.

Details of how enforcement responsibilities are delegated are contained in the Council’s Constitution and in the Department’s Scheme of Authorisation.

About our Enforcement Policy

The enforcement work undertaken by a wide range of services, including Environmental Health, Trading Standards, Building Control, Development Control, and Licensing all come within the scope of this policy.

Leicester City Council wishes to follow the best standards of good practice in enforcement work.

By law, we must have regard to the four principles of good regulation set out in the Legislative and Regulatory Reform Act 2006. Those principles are that regulatory activities to which the Act applies should be carried out in a way which is:

• Transparent

• Accountable

• Proportionate

• Consistent

In addition, our regulatory activities will be targeted only at cases in which action is needed.

The Act also requires that the Council has regard to the Regulators’ Compliance Code when determining its general enforcement policy.

Therefore, this General Enforcement Policy embodies the aims of the Council together with requirements of the Regulators’ Compliance Code and the principles set out in the Enforcememt Concordat.

The Regeneration & Culture Department will:

• Adopt and follow clear standards of enforcement.

• Carry out enforcement in an open way so that everyone involved understands what action may be taken and what their rights and entitlements are.

• Be helpful to all parties affected by any regulatory activity.

• Apply clear procedures for dealing with complaints about the service.

• Carry out enforcement in a way that is necessary, proportionate and consistent.

• Carry out enforcement in fair way without compromising reasonable regulatory standards.

• Apply procedures for responding to complaints that allege regulatory non-compliance by a third party

• Respond to all requests for advice concerning regulatory and enforcement matters.

• Consult people about the delivery of enforcement services.

• Systematically monitor and review our enforcement services.

• Prioritise and direct our business regulation effectively by adopting an intelligence-led approach and/or using risk assessments to focus our resources where they are most needed.

• Give priority to enforcement action where non-compliance is seen to be due to deliberate intent, recklessness or, unfair or unsafe practices.

• Where there is a shared enforcement role, e.g. with the Office of Fair Trading, the Food Standards Agency or the Police, we shall co-ordinate our activity to achieve the most effective and efficient outcomes.

• Adopt procedures for handling statutory notifications and inter-agency exchanges of information.

Where individual services produce Service-specific Enforcement Policies and Procedures for their area of responsibility these will comply with this General Enforcement Policy. These documents will set out clear standards to enable those affected to comply with the policies and any associated regulations. Group Managers will be responsible for ensuring that these Policies and Procedures are monitored and complied with.

Service Standards and Monitoring

Service-specific Policies and Procedures are tailored to each Service’s delegated enforcement duties.  These documents set out clearly what standards people are entitled to expect from each City Council Service, for example:

For people subject to enforcement action, we will aim to provide:

• Suitable and  targeted information programmes to help achieve compliance with the law.

• Information about enforcement actions, including timescales, which we may take on finding a breach of the legislation.

• Clear advice about what action needs to be taken to avoid or remedy breaches of the law. Our advice will distinguish between the legal requirements and our recommendations of best practice.

• Where businesses are subject to regulatory controls we will provide information on the planned level and frequency of inspections, linked to an assessment of risk.

• Arrangements for inspecting businesses at suitable times.

• Co-ordination of the functions of different Council Services and outside agencies to minimise the burden on businesses from multiple inspections.

• Clear standards for response to complaints about any aspect of our enforcement activities.

• Arrangements for communicating with people in the most appropriate language and format.

• Arrangements for ensuring that information obtained in the course of enforcement activities is stored in compliance with data protection legislation and other statutory requirements.

• Consistency of enforcement across business sectors where similar trading practices and activities exist.

For people benefiting from enforcement action, we will aim to provide:

• Clear information about how we will respond to complaints and within what times.

• Arrangements for visiting complainants to investigate their problem where and when it is happening.

• Standards for keeping people informed of progress with complaint investigations and enforcement action.

• Arrangements for communicating with complainants in the most appropriate language and format.

• Standards for response to complaints from people who are dissatisfied about enforcement activities carried out on their behalf.

• A clear explanation in cases where any limitation or non-availability of legal powers prevent us from dealing with some matters.

• Arrangements for review and revision of Service-specific Policies and Procedures in the light of monitoring and consultation.

Confidentiality

We understand that people making complaints may not wish their identity to be made known to the party about whom the complaint is being made. Wherever possible we will take care to respect the confidentiality of complainants. However in some circumstances papers relating to individual cases may be in the public domain. We will endeavour to make it clear whether or not complainant confidentiality can be maintained. Anonymous complaints will be investigated wherever it is appropriate and in the public interest.

Formal Action

Ignorance of the law is not an excuse for failure to comply.  However, the Department will make every effort to assist businesses and individuals to comply with the legislation by providing information and advice. We will ensure that regulatory activity is targeted only at cases where action is needed and such action will always be carried out in a way which is transparent, accountable, consistent and proportionate.

Service-specific Policy and Procedure documents issued under the General Enforcement Policy will clearly set out the criteria to be met before we take formal action under the legislation.  Formal Action includes:

• Statutory Notices where the law allows us to issue these to secure necessary improvements and/or to prevent undesirable behaviour.

• Simple Cautions which we can issue in connection with minor offending or first offences. The issuing of such cautions will be made in line with guidelines issued to us by the Home Office.

• Prosecution for more serious or repeated breaches of the criminal law where it is in the public interest to punish offenders and where such action will act as a deterrent to others.

• Formal Undertakings where certain laws allow us to accept an undertaking from a business that it will cease to engage in harmful action or unfair trading practices.

• Enforcement Orders, civil law actionsthrough the County Courts that order a business to stop any of a range of unfair practices listed under the Enterprise Act 2002.

• Licensing Reviews where relevant powers exist and the circumstances warrant it. Such action may be used to prevent crime or to protect the public from harm. Outcomes can range from conditions being applied to a licence through to revocation.

• High Court Injunctions may be sought in very serious cases particularly where no other effective remedies are available to us.

All decisions on the use of simple cautions and prosecutions will be made by us referring to the Council’s Prosecutions Policy.This policy is based upon national guidance set out in The Code for Crown Prosecutors published by the Crown Prosecution Service. The two main tests set out in the Code are:

• Is the evidence substantial and reliable, giving a reasonable prospect of securing a conviction?

• Is prosecution is in the public interest, taking account of the seriousness or frequency of the offence, the attitude of the accused and the likely penalty?

In addition, the Council will comply with legislation that protects the rights of persons subject to legal action, which controls how evidence against offenders may be obtained and which preserves the confidentiality of personal information, in particular:

• The Police and Criminal Evidence Act 1984

• The Human Rights Act 1998

• The Data Protection Act 1998

• The Regulation of Investigatory Powers Act 2000

In cases where:

• no statutory powers are available,

• following diligent investigation, no clear evidence a breach of the legislation has been obtained or,

• the public interest is not served,

• further action may not be possible or appropriate.  In such cases, we will inform the parties of our decision and the reasons for it.

November 2008