Enforcement Policy

Statement 

This policy sets out Cherwell District Council’s (the Council) approach to enforcement. 

The policy sets out what businesses and other individuals and organisations who are regulated by the Council can expect from the Council’s enforcement officers. The Council will comply with the principles of the Regulators Code which was published in July 2013.

Introduction 

The Council will use a consistent and proportionate approach to enforcement that is targeted and contributes to achieving the Council’s priorities and policy aims and meets the needs of the community.

Enforcement means the actions and activities that the Council’s officers carry out as regulators. This includes advisory visits and assisting with compliance, as well as formal enforcement action. The Council is committed to equitable enforcement practice, promoting proportionate, consistent and targeted regulatory activity.

Supporting these principles does not detract from the Council’s core purpose to protect the vulnerable, the environment and to meet any other objective laid down in law. The Council will talk to, and work openly and constructively with, those it regulates so that it can build relationships based on trust and understanding.

The Council fully supports the Government’s commitment to reduce regulatory burdens and support compliant business growth. This will give businesses greater confidence to invest and grow locally, regionally and internationally.

The Council expects most businesses to comply with the law, and will therefore aim to help businesses to achieve that objective. The Council will, however, take firm action against those that flout the law or act irresponsibly. In this way the Council aims to ensure a safe and fair trading environment for compliant businesses.

The Council will consult businesses and other interested parties on the development of clear standards, which set out levels of service and performance that residents, businesses, and visitors to the Council’s district, can expect to receive. Each year details of the Council’s performance will be published on the Council’s website.

General principles

1. How did the Council develop this policy?

1.1 Before publishing this policy, the Council consulted with businesses, their associations and forums, the local enterprise partnerships (LEP), and local Councillors. As well as consulting with the Council’s community this policy was approved on 1 September 2014 by Cherwell District Council’s Executive.

1.2 The Council is committed to good enforcement practice. In addition some of its service areas are required by law to follow the Regulators Code principles.

1.3 There are other laws which The Council has to abide by to ensure that it respects human rights and equality so that it does not discriminate against individuals or organisations.

1.4 Appendix A provides more detail on the laws that have influenced the development of this policy.

2. What is this policy for?

2.1 This policy communicates the Council's policy in respect of its approach to dealing with non-compliance to

a) those affected by its activities; and

b) officers of the Council.

2.2 The Council's officers will be suitably qualified and authorised to carry out regulatory activities and to administer proportionate and effective remedies. Where work is undertaken outside of normal office hours the principles of this policy will still be observed.

3. When does this policy apply?

3.1 This policy is an overarching policy which shows our commitment to the fundamental principles of good enforcement. Subject to paragraph 3.2 below, it applies to all of the Council’s regulatory services.

3.2 For some of the Council’s services there are more detailed policies which relate to specific laws, service standards and procedures that it has to follow. These provide businesses and the community with more detail on the areas that the Council regulates, and the services which the Council provides to assist those businesses, organisations and individuals who are subject to that regulation, and are listed in Appendix B.

4. Our approach to dealing with non-compliance

4.1 When the Council identifies a breach of the law the action it will take will depend on the gravity and nature of the offence and the urgency with which any breach needs to be resolved. In some cases the Council will respond with informal action and officers may offer advice, information and guidance to help secure compliance.

4.2 Should the Council’s advice and assistance be rejected the Council will use more formal action, such as the service of a legal notice, the application of a civil/administrative penalty or prosecution. If formal enforcement action is necessary it will be appropriate and will depend on the seriousness of the breach. The range of potential enforcement action that the Council is empowered to take is detailed in Appendix C.

4.3 The Council will take particular care to work with small businesses, community and voluntary groups and individual residents so that they can meet their legal obligations.

4.4 Officers will clearly explain:

• what the non-compliant item or activity is;
• the advice being given by the officer;
• the actions required to resolve the breach;
• the decisions taken by the officer; and
• the reasons why these decisions were taken.

4.5 Subject to paragraph 4.6 below, officers will provide an opportunity for dialogue with businesses and other individuals and organisations about the advice given, requirements and any decisions taken in order to ensure that they are clearly understood, proportionate and consistent.

4.6 In cases where:

• there is a serious breach and immediate enforcement action is required;
• there is a legislative requirement to take immediate enforcement action; or
• the offering of dialogue would defeat the purpose of the enforcement action,

paragraph 4.5 will not apply.

4.7 Officers will communicate clearly and confirm formal action in writing. All communication will be clear, consistent and timely. The difference between legal requirements and advice and guidance will be clear. Email may be used by officers to communicate, but all formal documents (such as any legal notice or summons to attend a court hearing) will be sent in hard copy.

4.8 All enforcement officers will be authorised to exercise statutory functions on behalf of the Council. Officers will carry a card with them that can be produced on request to confirm their authority to carry out inspections, investigations and to enter premises. Full details of how officers are authorised are contained within the Council’s Constitution in the Scheme of Delegation. 

Details of the officer(s) managing investigations/making decisions are covered in the constitution.

4.12 Enforcement notices will be placed on the Council’s public register if the Council considers that the notice relates to matters of public concern, or the Council is required by law to do so.

4.13 The Council reserves the right to publish details about other enforcement action that it has taken, e.g. a prosecution, if the Council believes it is in the public interest, or will act as a deterrent to others.

5. How does the Council decide what action it will take?

5.1 The action that the Council chooses to take depends upon the legislation governing the activity, as well as the particular circumstances and the approach of the business or regulated individual or organisation to resolving the breach.

5.2 The Council is committed to taking firm action against those that deliberately or persistently choose not to comply with the law.

5.3 The Council is committed to creating an environment where businesses, and other individuals and organisations, who ask for advice about non-compliance, or where they show a willingness to resolve the non-compliance, can be confident that this will not trigger enforcement action.

6. What factors influence the Council’s response to a breach?

6.1 The Council will choose proportionate approaches based on relevant factors including, for example, regularity and/or seriousness of the breach(s), and the business size and capacity.

6.2 Where the Council is considering its response to a breach for a business in a Primary Authority partnership it will have regard to the advice and support of the Primary Authority.
View details of Primary Authority partnerships.  

6.3 Where the Council has provided advice or guidance to a business or others it may check that non-compliance has been rectified. In cases where the breach has not been rectified the Council will reconsider its approach to enforcement taking into account the reasons that the business or other individuals or organisations give for the failure to comply.

6.4 The Council may take more formal action if the business or other individual or organisation has not shown any willingness to comply. A clear explanation of any decision will be given to the business or other individual or organisation.

6.5 On occasions details of a breach may be referred to another regulatory body. A clear explanation, along with the details of the other regulatory body, of any decision will be given to the business or other individual or organisation.

7. Responding to complaints about non compliance

When responding to complaints the Council will:

• include details of any risk scheme used to determine whether individual complaints require investigation; and

• give advice regarding how different departments may become involved in a breach i.e. non-compliance with a licence for breach of a noise condition may also be reviewed by the Anti-Social Behaviour team or statutory notices for nuisance issued, etc.

8. How do we carry out our investigations?

8.1 All investigations will be carried out, as appropriate, in line with the following legislation:

• Police and Criminal Evidence Act 1984
• Criminal Procedure and Investigations Act 1996
• Regulation of Investigatory Powers Act 2000
• Criminal Justice and Police Act 2001 and
• Human Rights Act 1998

and in accordance with any associated guidance or codes of practice, in so far as they relate to the Council.

8.2 These Acts, and associated guidance and codes of practice, control how evidence is collected and used, govern how any suspects are treated by enforcement agencies and give a range of protections to citizens and potential defendants. Any amendments to the relevant Acts, guidance or codes of practice, following publication of this policy will be taken into account and adhered to.

8.3 Enforcement officers will comply with the legislation under which they are acting and with any associated guidance or codes of practice.

8.4 Any business, individual or other organisation that obstructs an enforcement officer from carrying out an investigation will be dealt with in accordance with the law that the officer is acting under.

8.5 Cases will be reviewed regularly and complainants, offenders and witnesses will be regularly informed and updated on the progress of the investigation.

9. Decisions on enforcement action

A detailed explanation of the types of action listed above can be found in Appendix C.

9.2 Factors which the Council may consider when making a decision as to the appropriate approach to enforcement will have regard to the Macrory Principles including:

a) aiming to change the behaviour of the offender;
b) aiming to eliminate any financial gain or benefit from non-compliance;
c) being responsive and considering what is appropriate for the particular offender and regulatory issue, which can include punishment and the public stigma associated with a criminal conviction;
d) being proportionate to the nature of the offence and the harm caused;
e) aiming to restore the harm caused by regulatory non-compliance, where appropriate; and
f) aiming to deter future non-compliance.

9.3 The Council will consider the effect of risk on all parties involved at every stage of the decision making process when it decides to take enforcement action.

9.4 Where available the Council will identify a suitable decision making model and explain the effect of that decision making model on the investigation. For example, for health and safety enforcement it will use the HSE’s Enforcement Management Model for enforcement under the Licensing Act 2003 it will consider the guidance issued under Section 182, and so on.

9.5 Where necessary the Council will consult with other enforcement bodies or any other organisation regulating the conduct of the business, individual or organisation facing enforcement action before proceeding to take any action. The Council will notify any applicable Primary Authority of any proposed enforcement action prior to proceeding with any such action.

9.6 Any decision taken on enforcement action will be monitored and reviewed.

9.7 Where the Council takes enforcement action it will provide a timely explanation in writing of any rights to representation or rights to appeal, and practical information on the process involved to the business or other individuals or organisations.

10. Review of this policy

10.1 The Council will keep this policy under review taking into account changes in legislation, codes of practice or guidance, including any changes or additions to the subsidiary policies detailed in Appendix B.

10.2 Before the Council changes the policy it will consider the impact on businesses and engage with business representatives. The Council has a consultation strategy to ensure that it engages with businesses, the community and others when developing policies and service standards. View details of the Council’s approach to consultation. 

11. Comments, complaints and appeals process

11.1 The Council has a policy for comments and complaints about its services and conduct of its officers.

11.2 Those regulated are able to challenge or complain about the Council’s enforcement decision, or about a failure to comply with the regulatory code or this policy.

11.3 All complaints and challenges will be considered impartially, objectively and transparently in accordance with the Council’s complaints policy.

11.4 Where a legal right of appeal exists against enforcement action taken, the offender will be given clear simple guidance in writing on how and where they can appeal against the decision.