GBC Executive Committee enforcement policy

James Whiteman Managing Director

Contact Officer:

John Armstrong, Democratic Services Manager.

Tel: 01483 444102

19 December 2017

Dear Councillor

Your attendance is requested at a meeting of the EXECUTIVE to be held in the Council Chamber, Millmead House, Millmead, Guildford, Surrey, GU2 4BB on TUESDAY 2 JANUARY 2018 at 7.00 pm.

Yours faithfully

James Whiteman

Managing Director

MEMBERS OF THE EXECUTIVE

Chairman: Councillor Paul Spooner

(Leader of the Council and Lead Councillor for Planning and Regeneration)

Vice-Chairman: Councillor Matt Furniss

(Deputy Leader of the Council and Lead Councillor for Infrastructure and Governance)

Councillor David Bilbé, Lead Councillor for Economic Development and Tourism

Councillor Richard Billington, Lead Councillor for Rural Economy, Countryside, Parks and Leisure

Councillor Philip Brooker, Lead Councillor for Housing and Environment

Councillor Geoff Davis, Lead Councillor for Special Projects and Social Enterprise

Councillor Graham Ellwood, Lead Councillor for Licensing and Community Safety

Councillor Michael Illman, Lead Councillor for Finance and Asset Management

Councillor Nikki Nelson-Smith, Lead Councillor for Social Welfare, Heritage and the Arts

Councillor Iseult Roche, Lead Councillor for Project Aspire, Health, Safeguarding and Sport

Agenda item number: 5

Executive Report

Ward(s) affected: All

Report of Head of Health and Community Care Services

Author: John Martin

Tel: 01483 444380

E-mail: john.martin@guildford.gov.uk

Lead Councillor responsible: Graham Ellwood

Tel: 07899 846626

E-mail: graham.ellwood@guildford.gov.uk

Date: 2 January 2018

Corporate Regulatory Enforcement Policy

Executive Summary

This report details the results of a consultation on the draft corporate enforcement policy and explains how the issues raised are reflected within the revised policy.

Recommendation to Executive

That the Executive adopts the revised enforcement policy.

Reason for recommendation:

To provide a clear framework for the way the Council undertakes its regulatory functions.

1. Purpose of Report

1.1 This report sets out the results of the consultation on a draft Enforcement Policy, which was approved by the Executive on 18 March 2017, responds to the issues raised, and proposes a revised Policy for approval.

1.2 The Policy will provide the basis for a consistent approach to regulation across the range of regulatory functions we carry out.

2. Strategic Framework

2.1 The Enforcement Policy supports the following strategic priorities:

Economy – to grow a sustainable economy that will support all aspects of the Borough.

Environment – improving sustainability and protecting our countryside, balancing this with the needs of the rural and wider economy.

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Society – to evolve a self-reliant and sustaining community, while supporting our most vulnerable residents.

3. Background

3.1 The Legislative and Regulatory Reform Act 2006 (“the Act”) imposes a duty on anyone exercising a specified regulatory function to have regard to the principles of good regulation. The principles provide that regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent and should be targeted only at cases in which action is needed.

3.2 Under Section 23 of the Act, the Minister issued a Regulators’ Code in 2014, which gives guidance on exercising regulatory functions. As a regulatory body, the Council is under a duty to have regard to the Code in exercising regulatory powers, setting standards or giving general advice.

3.3 If adopted, the Enforcement Policy will apply to all our regulatory functions.

3.4 A working group, with representatives from different regulatory functions across the Council, including finance, building control, cleansing, housing, and environmental health provided feedback on the draft policy and this has been incorporated into the final version.

3.5 The diversity of regulatory powers makes it difficult to encapsulate detailed processes in this policy. Often there are detailed and differing processes that need to be followed. For this reason, whilst the policy sets out principles that will be followed, more detail is contained in service specific policies.

4. Feedback to the consultation and our proposed response

4.1 We published the draft Policy on the Council’s website and comments were invited over a period of two months.

4.2 Two responses were received, both from the Council’s Private Sector Housing Team, and the comments are set out in the table below.

Section of Draft Policy	Comment	Response
Our Approach – paragraph 3.1	Suggest inclusion of ‘protecting amenity of the area’.	Policy amended accordingly
Our Approach – paragraph 4.2	Suggest including the provision ‘and requiring action to be taken to ensure compliance’.	Policy wording amended
Enforcement Actions – paragraph 5.1	Suggest including the words ‘statutory guidance’ in paragraph 5.1.	Policy amended accordingly
Achieving compliance - paragraph 4.2	Should the Policy specifically mention the use of injunctions?	Injunctions included in the list of enforcement options.
Fixed Penalty Notices – paragraph 6.1	Could the annex be removed? It does not include all fixed penalty charges. For example under the	The Annex listing fixed penalty notices has been removed from the

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Agenda item number: 5

Section of Draft Policy	Comment	Response
	Enterprise Act for not belonging to a redress scheme (letting or managing agents) is missing along with penalties charged under the Smoke and Carbon Monoxide Regulations. The Annex will go out of date if there are further changes in legislation introducing fixed penalty charges.	Policy, and reference made within the section on FPNs to levels of charges.
Works in default – paragraph 8.1	Suggest including the words ‘or in case of emergency’ in paragraph 7.1.	Policy amended accordingly
Authorisation of Officers – paragraph 9.2	Suggest including the provision that ‘Authorisations will be reviewed regularly (insert timescale) to ensure they are up to date.	Policy amended accordingly
Complaints – paragraph 11.1	Propose the policy provides that ‘Any dissatisfaction with the enforcement action taken should initially be discussed with the service provider’, as there can be genuine misunderstandings that can easily be resolved.	Policy amended accordingly
Civil Penalties – paragraphs 7.1 and 7.2	The Council has been given guidance on civil penalties as an alternative to prosecution. Will the enforcement policy be broad enough to cover this type of enforcement?	The Policy has been amended and now includes a section relating to the use of civil penalties for certain offences.

Financial Implications

5.1 There are no financial implications arising from consulting on the draft policy.

6. Legal Implications

6.1 The Act requires the Council to have regard to the regulatory principles and the Regulators’ Code when exercising our regulatory functions. Whilst it is not a legal requirement to have an Enforcement policy, the adoption of a Corporate Enforcement Policy, which incorporates the principles of the Regulators’ Code and sets out how we will apply them, will help to ensure compliance with our legal duty.

6.2 Although the proposed policy is based on the principles of the Regulators’ code, an Equalities Impact screening assessment has been carried out which indicates that a full assessment is not required.

7. Human Resource Implications

7.1 The proposed policy will not have any additional human resource implications.

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8. Conclusion

8.1 The amended Enforcement Policy will provide the framework for transparency and consistency in our approach to exercising regulatory functions.

9. Background Papers

Regulators Code 2014

Regulators Code: Summary of regulators and regulatory functions covered 2014

Legislative and Regulatory Reform Act 2006

Legislative and Regulatory Reform (Regulatory Functions) Order 2007

Legislative and Regulatory Reform (Regulatory Functions) (Amendment) Order 2009

Legislative and Regulatory Reform (Regulatory Functions) (Amendment) Order 2011

Legislative and Regulatory Reform (Regulatory Functions) (Amendment) Order 2014

Equalities Impact screening assessment

10. Appendices

Appendix 1: Enforcement Policy

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Guildford Borough Council Draft

Regulatory Enforcement Policy

Contents

Section	Content
1	Purpose
2	Legal and Policy Context
3	Our Approach
4	Achieving Compliance
5	Enforcement action
6	Fixed Penalty Notices
7	Civil Penalty Offences
8	Works in default
9	Authorisation of Officers
10	Status and Review
11	Complaints
Annex 1	Glossary of Legislation

Date approved by Executive:

1. Purpose

1.1 This policy sets out the Council’s approach to securing compliance with regulatory requirements and applies to all our regulatory functions. It applies to all services where the Council can enforce against a person, organisation or company to make them comply with the law. Any services where the Council has a legal duty or power to ensure compliance are included. Services that are relevant to a Borough Council include, but are not limited to, environmental health, food safety, noise nuisance, health and safety, licensing, anti-social behaviour, waste offences (including fly tipping), dangerous dogs/dog fouling, planning and housing. Many of these areas, such as planning, have more detailed service specific enforcement policies within the umbrella of this corporate policy.

1.2 More detailed service specific enforcement options in respect of particular areas such as health and safety, food safety, licensing, housing, planning and building control may be set out in service specific policies, which follow the principles in this policy.

1.3 This policy and service-specific enforcement policies have and will continue to have, regard to the statutory Regulators' Code, issued by the Minister of State for the Department for Business, Enterprise and Regulatory Reform under section 22(1) of the Legislative and Regulatory Reform Act 2006 (“the Act”).

1.4 It is ultimately the responsibility of individuals and businesses to comply with the law.

2. Legal and Policy context

2.1 Section 21 of the Act requires the Council to have regard to the way it carries out regulatory functions and to do so in a way which is transparent, accountable, proportionate, consistent and targeted at cases where action is needed.

2.2 Section 22 of the Act requires us to have regard to the Regulators’ Code in determining any general policies or principles by reference to which we exercise regulatory functions.

3. Our Approach

3.1 Effective and well-targeted regulation is essential in promoting fairness and protection from harm as well as protecting the amenity of the area. Our aim is to work in a transparent, accountable, proportionate and consistent way, to assist individuals and businesses to comply with relevant legislation.

3.2 We do this by:

helping and encouraging regulated bodies, businesses and individuals to understand and meet regulatory requirements more easily  responding proportionately to regulatory breaches

1. We will normally take a supportive approach to achieving compliance with regulatory requirements especially with those who work with us to do so. Where required, we will consider the use of all necessary enforcement action against those who commit serious breaches, flout the law, or refuse to work with us to seek compliance.

1. Enforcement services will carry out their duties in support of the Council’s Strategic aims and objectives, which are drawn up in consultation with the public and are set out in:

The Corporate Plan and strategic decisions
Corporate priorities
Service-specific service plans and inspection polices, which reflect the above priorities and the core enforcement activities for each service

4. Achieving Compliance

4.1 We undertake a range of activities to help achieve compliance with legislation. These include:

Provision of advice and guidance
Training and education
Programmed and responsive inspections.
Inspections/investigations following complaints by third parties.  Street patrols.

4.2 Where we discover non-compliance, the options to promote/seek compliance will include:

undertaking pro-active education programmes.
explaining legal requirements and, where appropriate, the means to achieve compliance
providing an opportunity to discuss points in issue where appropriate
consideration of alternative means and reasonable timescales to achieve compliance
service of advisory letters, warnings, statutory notices or prohibitions detailing non-compliance and requiring action to be taken to achieve compliance
enforcement actions including, but not limited to, formal caution, seizure of documents or goods, closure of premises, fixed penalty notices, civil enforcement penalties, prosecution and/or injunction

4.3 Whilst we aim to assist individuals and businesses to comply, we may take immediate, without notice, enforcement action where this is deemed necessary, reasonable and proportionate.

5. Enforcement action

5.1 Where we discover non-compliance, the decision about the most appropriate enforcement action will be made on a ‘case by case’ basis and in accordance with

this policy, statutory guidance and any service or legislation specific procedures/processes that are relevant.

5.2 Enforcement decisions and actions will be made with due regard to the provisions of:

the Human Rights Act 1998
the Crime and Disorder Act 1998
Equality Act 2010
service-specific legislation
all other relevant legislation applicable from time to time

5.3 We aim to relate the level of enforcement action to the risks presented. The action we take will be proportionate to the seriousness of the breach and in reaching a decision we will consider:

the risk that non-compliance poses to the safety, health or economic welfare of the public at large or to individuals
the effect on the environment or community
evidence that suggests that there was pre-meditation in the commission of an offence
whether the offence involved a failure to comply in full or in part with the requirements of a statutory notice or order
whether there is a history of previous warnings or the commission of similar offences
aggravated circumstances such as obstruction of an officer or aggressive behaviour towards the public
whether the offence, although not serious in itself, is widespread in the area where it is committed and enforcement action will help dissuade others from committing the same offence
the gravity of the alleged offence, taken together with the seriousness of any actual or potential harm
the general record and approach of the offender
whether there has been reckless disregard of requirements
whether there has been a repetition of a breach that was subject to previous warning or formal action
whether false information has been supplied willfully, or there has been an intent to deceive

1. Any decision to prosecute will be taken in accordance with the Code for Crown Prosecutors.

1. Where we take legal action, we will normally seek to recover the costs of doing so.

1. Information concerning non-compliance may be shared with other enforcement agencies. Any such action will only be undertaken in the public interest and in compliance with the Data Protection Act 1998.

1. Wherever possible and appropriate we will co-ordinate visits and enforcement action with other services /agencies.

6. Fixed Penalty Notice Offences

6.1 We carry out a range of enforcement duties where legislation prescribes fixed penalty offences. Paying a fixed penalty is an admission that an offence has been committed but avoids the need for an individual to be prosecuted.

6.2 Where we have evidence that an offence has been committed, we will normally issue a fixed penalty notice unless there are exceptional circumstances to justify not doing so.

6.3 Where penalties are not paid, we will normally prosecute for the offence.

6.4 Any income from the issue of fixed penalty notices will be used for enforcement purposes.

7. Civil Penalty Offences

7.1 The Council has the power to impose Civil penalties as an alternative to prosecution for certain offences.

7.2 Where a civil penalty is applied, the level of penalty will be determined using the relevant charging structure, developed in accordance with the guidance issued to local authorities and approved by the Council.

8. Works in default

8.1 Where we carry out works in default for non-compliance with notices or in the case of an emergency, we will seek to recover the full cost of these works including the cost of time, materials or reports associated with these.

9. Authorisation of Officers

9.1 Delegation of powers to enforcement officers is in accordance with the scheme of delegation within the Council’s Constitution.

9.2 Only officers who are competent by training, qualification and/or experience will be authorised to take enforcement action and are required to show their written authorisation on demand. Officer authorisations will be reviewed at least annually to ensure that they are up to date.

9.3 Officers will also have sufficient training and understanding of this enforcement policy to ensure a consistent approach to their duties.

10. Status and Review

10.1 This policy was adopted by the Executive on Date of Executive approval.

10.2 It will be reviewed every three years, or sooner if there are substantial legislative changes to the legislative framework.

11. Complaints

11.1 Any dissatisfaction with the enforcement action taken should initially be discussed with the relevant head of service, as there are often genuine misunderstandings that can be resolved.

11.2 If this does not achieve a resolution then complaints concerning the application of this enforcement policy will be dealt with in accordance with the Council's customer complaints procedure. Details of the procedure are available on the Council’s website or by contacting the Customer Service Centre on 01483 505050.

Annex 1

GLOSSARY OF LEGISLATION

Document