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Enforcement Policy

12 July 2016

 

1. About this policy

1.1. This policy covers all aspects of Essex County Council’s Trading Standards enforcement activities including:
 
• Responding to complaints
• Conducting investigations
• Carrying out visits to businesses
• Providing advice and guidance
• Undertaking specific projects
• Sampling and test purchasing goods and services.
• Dealing with non-compliances
 
1.2. We subscribe to the principals and objectives of the statutory Code of Practice for Regulators (the Code) made under the Legislative and Regulatory Reform Act 2006. We believe that all enforcement should be risk based and proportionate.
 
1.3. We believe that effective enforcement can act as an enabler to economic activity and we acknowledge that the vast majority of Essex businesses are honest, legitimate enterprises that want to keep within the law. We want to work with those businesses, helping and encouraging them to understand and meet regulatory requirements.
 
1.4. We believe that the vast majority of businesses in Essex accept their responsibility to ensure that they comply with the law. If they fail to do that we understand the need to respond proportionately and in so doing we will consider the size and nature of the business and the potential impact of any requirements we may seek to impose.
 
1.5. We will adopt an intelligence led approach in line with the National Intelligence Model with all enforcement activities and ensure that we only target those businesses that are causing the greatest detriment to Essex consumers and legitimate businesses. Service demand is managed through a tactical tasking process which helps us target our resources effectively and focus our activity where we can have the greatest impact. We run regular tasking meetings to enable a rapid response to emerging issues and keep track of the progress that we are making to deal with rogue traders and businesses causing the most consumer and business detriment.
 
1.6.  We will use the principles of the National Trading Standards Board (NTSB) risk assessment methodology to help target our resources effectively, concentrating our efforts where there is the greatest likelihood of non-compliance and the potential for most harm.
 

2. Inspections

2.1. We do not undertake routine inspection programmes based solely on the NTSB risk rating scheme. The NTSB scheme contains four classifications with recommended visit periods:
• High Risk – yearly
• Upper Medium – every two years
• Lower Medium – every five years
• Low – no recommendation
• Unrated – new premises that are yet to have their ‘likelihood of compliance’ checked and be risked.
 
2.2. Examples of premises that would fall into each category:
• High Risk – manufacturers and importers of regulated goods involving safety and food on a local, regional or national scale
• Upper Mediums – manufacturers and importers that have demonstrated a high confidence in their management control;  large retailers of regulated goods (such as food and safety) with a visit history that has established a lower confidence level in their management control
• Lower Mediums – large retailers as above but businesses with a visit history that has established a higher confidence level in their management control
• Low – smaller businesses trading locally such as caterers, retailers, wholesalers
 
2.3. For the purposes of this policy, an inspection is a visit initiated by Trading Standards to a business premises to check compliance with any trading standards legislation. An inspection does not include a visit to the business in response to a complaint or enquiry.
 
2.4. For the purposes of this policy an alternative intervention is a method of maintaining contact with a business that doesn’t involve an inspection visit (e.g. letter to a business requesting a response and an update on their business activity; a telephone conversation with the business to update our records on any changes to their business activity).
 
2.5. We will not undertake routine inspection of upper medium, lower medium and low risk premises unless intelligence suggests a need to visit the premises. High risk premises will receive a visit or (where high confidence in management control is demonstrated) an alternative intervention once every 12 months. We will only visit unrated premises if intelligence suggests they are highest risk.
 
2.6. This policy has been developed having regard to the Food Law Code of Practice and the Feed Law Code of Practice published by the Food Standards Agency. The inspection policy outlined in 2.5 above does not directly follow the relevant risk assessment schemes in that there will be no inspection programme for medium risk premises (including upper medium and lower medium). It will therefore not be in full compliance with the Codes of Practice however we are confident that this approach is reasonable and pragmatic based on all factors including the resources available and the likelihood of non-compliance.
 
2.7. We will undertake inspection of premises storing more than 250kg NEC explosives and petroleum prior to the issue or renewal of their license.
 
2.8. We will undertake an inspection of all massage establishments prior to the issue of the initial license.
 

3. Sampling

3.1. For the purposes of this policy, sampling includes the procurement for testing and analysis of any goods or services by ECC Trading Standards staff, whether formally (as prescribed by legislation or official guidance) or informally, to ascertain their compliance with any aspects of Trading Standards legislation.
 
3.2. We will undertake sampling activities as part of the intelligence-led, targeted, enforcement projects outlined in our annual service plan. Samples may also be procured during inspections at premises as outlined above, as part of an investigation or in response to intelligence received.
 
3.3. To reduce costs, save time and ensure a wide spread of sampling activity, we will undertake informal sampling programmes whenever this is deemed operationally appropriate. Formal enforcement action will only be taken in respect of samples of goods and services taken in accordance with official guidance (where this exists).
 
 

4. Provision of Advice and Guidance

4.1. We will ensure that all businesses have access to free general advice via our website and will also offer businesses more detailed advice and consultancy services which they can purchase (see ECC Trading Standards Business Advice and Charging Policy). We will ensure our advice is offered in appropriate formats and is clear and (as far as possible) jargon free. When giving advice we will distinguish clearly between statutory requirements and that which is desirable but not mandatory.
 
4.2. Wherever practicable we will liaise with other relevant advice and enforcement agencies that have joint or complementary enforcement roles to ensure that we take a joined-up approach. We will provide a single point of contact for signposting or referring businesses to advice and assistance from other agencies. Where possible we will undertake joint visits with other regulators and combine written advice in one, clear, practical communication. We will share data with other enforcement agencies where this is practicable, beneficial and cost effective (subject to restrictions under the Data Protection Act, and other Trading Standards legislation).
 

5. Dealing with Non-Compliances

 
5.1. If a business is found to be non-compliant we will, where appropriate, offer to deal with it by offering advice and guidance specific to that non-compliance and seek to rectify matters within an agreed timescale.
 
5.2. If we issue information or advice to a business which they fail to follow we can take formal action to achieve compliance. Formal action in this sense includes:
 
  • Securing an undertaking from the business that they will comply with their legal obligations.
  • Commencing action in the civil courts under the Enterprise Act 2002 to seek an enforcement order.
  • Issuing cautions and warnings.
  • Prosecuting offenders in the criminal courts.
  • Seizing goods and other evidence.
  • Issuing Suspension Notices, Improvement Notices or other such statutory documents.
  • Requesting a licence review (e.g. alcohol sales).
  • Instituting a product recall.
  • Issuing a Financial Penalty (e.g. in accordance with Part 3 and 4 of the Consumer Rights Act 2015 schedule 9 and 10).

 

5.3. In considering what action might be appropriate we will seek to –
 
  • Change the behaviour of the offender.
  • Eliminate any financial gain, in particular using the Proceeds of Crime Act.
  • Consider what is appropriate for the particular offender
  • Be proportionate to the nature of the offence and the harm caused.
  • Deter any future non-compliance.
  • Have regard to any Government advice or guidance that has been issued to assist in determining a financial penalty for any non-compliance
 
5.4. Before taking formal action, we will liaise with all relevant agencies
where a joint or complementary enforcement role exists. We subscribe to the principles of the Department for Business Innovation and Skills (BIS) Primary Authority Principle.
 
5.5. Whilst our overriding aim is to help businesses understand and comply with the law we will not hesitate to investigate and where appropriate take immediate formal action against any person or business that deliberately, dishonestly, recklessly or fraudulently breaches fair trading and safety laws in Essex. In so doing we will have regard to the Code for Crown Prosecutors and the Essex County Council Trading Standards Prosecution Policy (including compliance with Human Rights legislation and Equality and Diversity issues).

5.6. Essex County Council operates a complaints procedure covering the actions of Essex County Council Trading Standards Services. Further details are available on our website at www.essex.gov.uk or by calling Contact Essex on 0345 603 7626.
April 2016