Enforcement Policy: Principles, Procedures, and Options for Local Council, Study notes of Business

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London Borough of Hillingdon Enforcement Policy Adopted by Cabinet 14th October 2021 Review Date – October 2024 Contents 1 Introduction ............................................................................................................................... 3 2 Activities within scope ................................................................................................................ 3 3 Principles of Enforcement .......................................................................................................... 4 4 Governing Legislation and Codes .............................................................................................. 5 5 Delegation of Authority .............................................................................................................. 6 6 Shared Enforcement Role ......................................................................................................... 6 7 Data Protection .......................................................................................................................... 7 8 Primary Authority / Home Authority ............................................................................................ 7 9 Risk Assessment and Planned Inspections ............................................................................... 8 10 Sufficiency of Evidence .......................................................................................................... 8 11 Enforcement Options ............................................................................................................. 9 12 Compliance Advice, Guidance and Support ......................................................................... 10 13 Voluntary Undertakings ........................................................................................................ 10 14 Statutory Notices .................................................................................................................. 11 15 Fixed Penalty Notices .......................................................................................................... 11 16 Injunctive Actions, Enforcement Orders etc. ......................................................................... 11 17 Simple Cautions ................................................................................................................... 11 18 Conditional Cautions ............................................................................................................ 12 19 Prosecutions ........................................................................................................................ 13 20 Confiscation Proceedings .................................................................................................... 14 21 Refusal/Suspension/Revocation of Licences ........................................................................ 14 22 Seizure of Food, Goods, Plant and Equipment ..................................................................... 14 23 Integration with other Council Policies and Strategies .......................................................... 15 24 How Enforcement Decisions are Made ................................................................................ 15 25 Complaints about the Councils Enforcement Activity ............................................................ 15 5 • If there is an element of fraud, intent, or gross negligence in commission of the offence or breach the risk of re-offending; • The offence, though not serious in itself, is widespread in the area; • The frailty or youth of any individual likely to be proceeded against (always bearing in mind the seriousness of the offence or breach); • The previous history of the business or individual – including previous advice given; • Whether the victim was vulnerable, put in considerable fear, suffered personal attack, damage or disturbance; • Whether or not violence was used/threatened; • Whether or not the offence or breach was committed against a person serving the public (e.g. obstruction/assault of Council staff); • Important but uncertain legal points may have to be tested by way of prosecution; • Any relevant case law. 3.8 Public Sector Equality Duty - All enforcement action will be undertaken without regard to race, colour, religion, gender, or sexual orientation. Enforcement action taken against an individual or organisation will be consistent with the Council’s commitment to equality and diversity. If necessary, during formal enforcement action, correspondence will be translated and interpreters provided. 4 Governing Legislation and Codes 4.1 The Council will comply with and follow the requirements laid out in the following legislation and codes when considering the approach to investigations and enforcement: • Regulators Code (Better Regulation Delivery Office) 2014 • Human Rights Act 1998 • Data Protection Act 2018 • Regulatory Enforcement and Sanctions Act 2008 • Code for Crown Prosecutors • Regulation of Investigatory Powers Act 2000 (RIPA) • Investigatory Powers Act 2016 • Police and Criminal Evidence Act 1984 • Public Interest Disclosure Act 1998 • Criminal Procedure and Investigations Act 1996 • Criminal Justice and Police Act 2001 • Attorney General's Guidelines on Disclosure 2020 • Pre-action protocol for Possession claims by Social Landlords 4.1 These Acts and associated guidance dictate how evidence is collected and used and give a range of protections to both investigators and defendants. 6 5 Delegation of Authority 5.1 The Council’s scheme of delegations specifies the extent to which enforcement powers are delegated to officers and elected members. 5.2 Officers are authorised to carry out enforcement in all cases to a level which is considered by the Council, to be appropriate given their training, qualifications and/or experience. 6 Shared Enforcement Role 6.1 Where there is a shared enforcement role, officers will liaise fully with any relevant enforcement agencies at the earliest possible stage to agree a suitable approach to any enforcement action. Partners will be kept updated with the progress of any shared enforcement matter, as necessary. The Council may also carry out joint operations with partner enforcement agencies from time to time. 6.2 Where the Council shares or has a complementary role with other regulatory agencies we will seek to avoid duplication through joint/coordinated inspection or data sharing. The Council has entered into a number of agreements and protocols with other key regulators concerning the division of enforcement responsibility and data sharing. 6.3 Partner enforcement agencies include, but are not restricted to: • Metropolitan Police Service • Home Office • UK Border Force • HMRC • Health & Safety Executive • Food Standards Agency • Environment Agency • Gambling Commission • London Fire Brigade • DEFRA • DHSE • Planning Inspectorate • Medicines and Healthcare products Regulatory Agency (MHRA) • Brand representatives (Trading Standards) 6.4 Officers will endeavour to co-ordinate visits and actions with other such agencies to achieve the most efficient and effective outcomes and to minimise inconvenience for those who are being visited, inspected or subject to enforcement action. 6.5 Information concerning allegations outside the remit of the services covered by this 7 policy may be referred to the appropriate enforcement authority with any contact details (by agreement) to enable that agency to investigate the allegation. 6.6 For complex cases which cross-cut a number of Council teams and services, the Council will share information internally which may be relevant in achieving compliance or enforcement outcomes 6.7 Where Council teams share data and intelligence, it will take a collaborative approach to ‘problem solving’ and will include a wide range of partners e.g. Adult Social Care/Community Mental Health and numerous multi-agency groups e.g. CR MARAC who can play an effective role in securing sustainable outcomes. There are also added benefits from multi-agency / collaborative working including: • Bringing together different skills, perspectives and resources • Promoting collective responsibility • Focussing on common objectives • Facilitating effective and compliant information sharing • Avoiding duplication of effort and service ‘gaps’ 6.8 Information of enforcement cases where the Council has decided to serve a notice or commence a prosecution may be passed to potential property purchasers via the Local Land Charges Register, and CON 29 enquiry. 7 Data Protection 7.1 The Council may from time to time need to share information with other local and national agencies and law enforcement in order to deliver its services or fulfil its statutory duties. Where this occurs, the Council has robust data sharing protocols in place with these bodies and it will only share individuals' personal data in circumstances where it is necessary for its public duties, it is either required or allowed by law to do so and it is in the public interest. 7.2 The transparent use of data as reflected in individual published Privacy Notices listed on the Councils website. The benefits and use of information sharing protocols between services and partner agencies in the context of prevention, intervention, enforcement and rehabilitation and under the Crime & Disorder Act 1998 8 Primary Authority / Home Authority 8.1 Where relevant, enforcement activities will be carried out in accordance with the procedure laid down within the Primary Authority Scheme. Where the Primary Authority Scheme is not applicable, officers will have regard to the Home Authority Principle, to promote good enforcement practice and to reduce burdens on business. 10 12 Compliance Advice, Guidance and Support 12.1 The Council will provide advice, guidance and support on compliance matters as a first response in many cases where a positive regulatory or contractual outcome can be achieved. Formal advice may be made in the form of a warning or advisory letter to identify the remedial actions which need to be taken to secure compliance quickly and efficiently. The Council also recognises that many businesses and individuals will require a level of education and support to bring their activities in line with statutory and contractual requirements. 12.2 Officers will normally use this option where the potential impact of non-compliance is minor, there is reasonable confidence that the business or individual will take appropriate corrective action and where this is the first contact with them on the issue. As far as the law allows, officers will take account of the circumstances of the case and the conduct of the business or individual, when considering action. 12.3 Officers will provide advice clearly and simply. Officers will make it clear that they are either making a recommendation in relation to best practice or giving advice on meeting legal requirements. Significant advice on legal requirements and recommendations on best practice will be confirmed in writing. Where appropriate, legal requirements will be confirmed by service of a Statutory Notice. 12.4 Officers may issue written warnings to make clear that any further breaches of legislation will be viewed seriously and that these may be subject to enforcement action. 12.5 Wherever possible, officers will try to provide written advice on good practice, industry guidance or technical information where there is a need for help in meeting requirements. However, issuing advice or warnings does not remove the necessity for the Council to serve formal notices in certain circumstances, to ensure that compliance is achieved within a prescribed period. 12.6 Notwithstanding that in the most serious of circumstances, it will be appropriate to impose more formal enforcement actions and the Council will consider the principles outlined in Section 6 of this policy. 13 Voluntary Undertakings 13.1 The Council has the discretion to accept voluntary undertakings to rectify and prevent breaches. Voluntary undertakings may include a commitment from the person/business to make changes to their operation or behaviour to bring them in line with regulatory requirements. A voluntary undertaking is likely to include a timescale to comply with any failures to comply likely to result in formal enforcement action. 11 14 Statutory Notices 14.1 The Council has powers to issue a range of improvement, Abatement, Suspension, Prohibition, Closure etc. notices which require certain actions by those who have been served with a notice. 14.2 Any statutory notice will clearly set out the legal powers, exact actions that are required and a timescale to comply with the notice. Notices will also include rights of appeal and the likely consequences of non-compliance with the notice. 14.3 Failure to comply with notices are likely to result in more formal enforcement action being escalated. 14.4 The Council also has powers to apply to the Court for Orders following the service of certain notices. Owners/occupiers/businesses/tenants will be advised of all stages of these formal proceedings. 15 Fixed Penalty Notices 15.1 The Council has powers to issue fixed penalty notices for some offences. A FPN does not appear on an individual’s criminal record but any non-payment or unsuccessful appeal of a notice is likely to result in a Criminal Prosecution or Civil Enforcement action. 15.2 Where a FPN is paid, the Council will not pursue the matter any further and will consider the matter closed. 15.3 Where repeat FPN’s are issued for the same offence, the Council does have discretion to pursue a prosecution. 16 Injunctive Actions, Enforcement Orders etc. 16.1 In some circumstances, the Council may seek formal orders or injunctions from the Court to ensure that a breach is rectified or to prevent a breach from occurring. 16.2 Non-compliance with Court orders usually carries severe penalties i.e. imprisonment. 17 Simple Cautions 17.1 Where the evidential thresholds are met and the enforcement principles have been satisfied, the Council may decide to issue a Simple Caution as an alternative to prosecution for some less serious offences, where the person has admitted to the offence and is willing to accept a caution. The Council will also consider whether it is in in the public interest to offer a simple caution in the circumstances. 12 17.2 Home Office Circular 016/2008 states that the purpose of a caution is: • To deal quickly and simply with less serious offenders; • To deal with first time offenders; • To divert them from unnecessary appearances in the criminal courts; and • To reduce the chances of them re-offending. 17.3 The following conditions must be fulfilled before a simple caution is administered: • There must be evidence of the suspected offender’s guilt, sufficient to give a realistic prospect of conviction; • The suspected offender must admit the offence; • The suspected offender must understand the significance of the caution and give an informed consent to being cautioned. 18 Conditional Cautions 18.1 Where the evidential thresholds are met and the enforcement principles have been satisfied, the Council may decide to issue a Conditional Caution as an alternative to prosecution for some less serious offences. A conditional caution allows the relevant prosecutor to decide to give a caution with one or more conditions attached. When considering whether to administer a conditional caution, regard will be given to Criminal Justice Act 2003 and the Code of Practice for Adult Conditional Cautions. The Council will also consider whether it is in in the public interest to offer a simple caution in the circumstances. 18.2 The following five requirements must be fulfilled before a conditional caution can be administered: I. There must be evidence that the offender has committed an offence; II. The relevant prosecutor must determine that there is sufficient evidence to give a realistic prospect of conviction and that a conditional caution should be given to the offender for that offence; III. The offender must admit to the relevant prosecutor that they have committed the offence; IV. The relevant prosecutor must explain the effect of the conditional caution and warn the offender that failure to comply with any of the conditions may result in a prosecution for that offence and; V. The offender must sign a document containing the details of the offence, an admission and consent to be given a conditional caution – the details of the conditions must also be attached to the conditional caution.