Enforcement policy

There is a scale of regulatory and enforcement actions that officers can resort to, from taking no action to prosecution.  Not all options are available in all cases, and some actions are specific to particular legislation.     

In no particular order, examples of the most common actions include:

• No action
• Verbal advice or direction
• Written advice or direction
• Fixed penalty notice or penalty notice
• Formal notice or order
• Seizure of property
• Refusal, variation, suspension or revocation of a licence
• Simple caution
• Prosecution
• Civil penalty or penalty charge notices
• Injunctive relief applications
• Orders on conviction application (eg, deprivation, forfeiture, proceeds of crime)
• First-tier tribunal application (eg, rent repayment orders, banning orders)

In assessing what action is reasonable and proportionate, consideration will be given to:

• The gravity of the offence, including the maximum penalty upon conviction
• The level of harm or potential harm
• The level of culpability
• Scale of offending
• Any history of compliance or non-compliance
• Confidence in the business, and any steps taken by the business since the commission of the offence
• Relevant guidance
• Aggravating factors such as obstruction of officers
• Local priorities of the Council

Actions will often start at a low level and escalate until compliance is reached. Exceptions would be where there is a risk to people, the environment or animals, or the offences have been committed deliberately, repeatedly or involve deception.

In its law enforcement role, the Service investigates many offences that are not regulatory, such as fly tipping, tenant harassment, or animal cruelty.  In many of these cases, the starting point will be prosecution.

No action.  In some cases, the circumstances may not warrant any action. Some examples of where this might apply include that the business has ceased to trade, that the level of harm and culpability is so low that taking action would be disproportionate, or that the concern is minor, and the officer has confidence that it will be corrected.

Verbal or written advice or direction.  For minor regulatory offences or concerns officers may give verbal or written advice or direction. Officers will clearly identify the offence and provide advice on how to remedy it and a date by which this must be done. The time provided will be reasonable and take into account the implications of ongoing non-compliance.  Sometimes officers will provide advice on ‘best practice’, and they will clearly distinguish between what must be done to comply with the law and what is advice only.  Failure to comply could result in an escalation of action.

Fixed penalty notices and penalty notices.  Certain offences may be dealt with by a fixed penalty notice (FPN) or penalty notice (PN). The amount of an FPN is either set in law, or by the Council within parameters set in law, whereas the amount of a PN is set by officers based on a range of factors including the offence and levels of harm and culpability in a particular case. Both provide the suspect with the opportunity to discharge liability to conviction by payment of a penalty.  For some offences the starting point will usually be a FPN or PN.  Repeat offences will usually result in prosecution. 

Formal notice or order.  Some legislation allows for a notice or order to be served requiring specific steps to be taken, or to cease certain behaviour.  In some circumstances, these can require immediate action, whereas in others the time provided will be reasonable and take into account the implications of ongoing non-compliance.  Examples of notices and orders include improvement notices, prohibition notices, closure orders, community protection notices, enforcement notices, slum clearance declarations, and abatement notices.  In some cases, a charge will be made where a notice or order is served.  Where required, notices issued will include details of any applicable appeals procedures.  Where a notice or order is not complied with, the law often allows for the Council to carry out the works in default.  This may be instead of or in addition to prosecuting for failing to comply with the notice or order.  The costs involved in doing this will usually be recovered from the person the notice or order was served on.  In some cases, a charge will be registered against a property meaning it cannot be sold without the debt being paid. 

Seizure of property.  Officers have powers to seize property that is evidence of an offence, and in certain other circumstances.  Examples include seizing unsafe food, dangerous equipment, equipment involved in causing a nuisance, vehicles that have been connected to waste offences, and animals that are suffering.

Refusal, variation, suspension and revocation of a licence.  In some cases licences may be refused, varied, suspended or revoked.  Examples include taxi drivers, operators or vehicles, animal activities, gambling, scrap metal, and houses in multiple occupation.  In some circumstances, the decision to do so will be made by officers, and in others by the Regulatory & Licensing Sub-Committee.  Other sanctions may apply depending on the type of licence.

Simple caution.  A simple caution is a means by which the Council can deal quickly and simply with less serious offences, both reducing the burden on His Majesty’s Courts & Tribunals Service and reducing the likelihood of repeat offences. A simple caution is an admission of guilt, but is not a form of sentence, nor is it a criminal conviction, though a record may be made of the simple caution.  The Ministry of Justice Guidance on Simple Cautions for Adult Offenders contains more information about simple cautions.  For a simple caution to be administered a number of criteria must be satisfied:

• Sufficient evidence must be available to prove the case
• The person must admit the offence
• It must be in the public interest to use a simple caution
• The person must be 18 years or older
• A simple caution should not have been received for a like offence in the previous 3 years

Prosecution.  In deciding whether to take a prosecution, the Council will consider all relevant circumstances, having regard to the public interest criteria.  This may include:

• The gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the suspect
• There has been a reckless disregard for regulatory requirements
• There have been repeated breaches giving rise to significant risk, or persistent and significant poor compliance
• The level of culpability of the suspect
• There has been a failure to honour voluntary undertakings or comply with statutory notices
• There has been a repetition of an offence that was subject to a simple caution
• False information has been supplied wilfully or negligently, or there has been an intent to deceive
• Officers have been obstructed in the lawful execution of their duties.

This is not an exhaustive list. Where officers consider that formal enforcement action is necessary each case will be considered on its own merits.

Injunctive relief application.  In some circumstances, the Council may pursue a civil or criminal injunction.  Examples of where this may be applicable are in cases involving repeat offenders, or to prevent serious harm where the Council’s powers are otherwise limited.

First-tier tribunal application.  Certain housing related offences may be dealt with via management and rent repayment orders, banning orders and rogue landlord database entries.