4. Our approach to dealing with non-compliance
The Council recognise that most businesses and individuals strive to follow the law, however, firm action will be taken against those who flout the law or act irresponsibly. Particular focus will be given to circumstances where the public’s safety is compromised.
1. Those that deliberately or persistently fail to comply will be dealt with by the Council.
2. Those regulated by the Council are able to request advice on non-compliance without directly triggering enforcement action. where they show a willingness to resolve the non-compliance, unless the matter is so serious that enforcement action is deemed necessary. This is in accordance with Section 5.4 of the Regulators' Code.
3. The Council will review all notifications/complaints of non-compliance and will investigate if necessary. Necessity to investigate and the promptness of the response will be dependent on the resources available as well as identification of risk.
4. Where appropriate The Council will carry out check visits or re-visit to assess compliance where prior advice or guidance has been given, before considering further action.
5. Council officers and decision makers will carry out all our enforcement duties, including taking formal enforcement action, in a fair, and consistent manner. Whilst officers exercise judgement in individual cases, the Council will have arrangements in place to promote consistency including liaison with other agencies and authorities.
ADVICE & GUIDANCE
- The Council recognises that prevention is better than a cure. We will actively work with business and residents to provide advice on and help with compliance with the law. In doing this it will be ensured that:
- Any information provided will be in clear, concise and accessible language. It will be confirmed in writing where necessary.
- Legal requirements and good practice/guidance aimed at improvements above minimum standards will be clearly distinguished
- Provide advice to support compliance that can be relied upon
- Work collaboratively with other regulators where those regulated by more than one regulator are affected, and where there is disagreement over advice given, regulators will reach agreement.
- The Council’s Scheme of Delegation, can be provided in electronic or paper format upon request. This includes details of who handles managing investigations.
FEEDBACK & INFLUENCING
- The Council will ensure that mechanisms are in place to allow those regulated, and the public, to express views, provide feedback. They can also contribute to the development of regulatory policies and service standards.
- The Council will consider the impact on business, before changing policies and service standards.
FAIRNESS
- Officers will be courteous, fair and efficient at all times, and will identify themselves by name.
- The Council will give consideration to fairness, individual’s human rights and natural justice. This is in all aspects of our enforcement work.
- The Council believes in openness and equality in the way services are provided. Every individual is entitled to dignity and respect.
- The council will aim to ensure that there will be no discrimination against any individual when making enforcement decisions. This is regardless of culture, ethnic or national origins, gender, disability, age, sexual orientation, political or religious beliefs, socio-economic status,. This includes previous criminal convictions or caution which is not relevant to the current issue.
CONFIDENTIALITY
- It is normal practice to maintain the confidentiality of a complainant. Unless they agree to act as a witness in formal action taken by the Council, or the Council are required by law to disclose the identity of a complainant. Anonymous complaints will be acted upon and investigated appropriately.
- Where any officer or member of the Council becomes aware of any concern in enforcement practice or compliance requirements. In the first instance, it should be escalated to their line manager. If this approach is not seen to be appropriate the issue should be raised with another manager. Legal notices will clearly set out the means by which the notice can be appealed, including timescales and relevant bodies to which the appeal can be lodged.
- If complaints of treatment or officer conduct cannot be informally resolved between stakeholders, officers and line managers, the customer will be directed to the Council’s formal complaints process.
- The Council does operate a “whistleblowing policy”; the “Confidential Reporting Code”. This ensures serious concerns can proceed confidentially.
CHARGING FOR ENFORCEMENT
- The Council will recover costs for taking enforcement action against the responsible persons, where legislation allows. These costs will be associated with administrative costs associated with preparation and serving of any notice.
- The responsible person will be advised of the potential of being charged for formal enforcement notices before any charge is incurred, unless the situation is an emergency. In emergency situations officers will make reasonable efforts to contact the responsible person. If the responsible person cannot be contacted or cannot respond quickly enough, formal action will be initiated and a charge made.
NECESSARY AND PROPORTIONATE
- The Council will choose proportionate approaches based on relevant factors.
- In assessing what enforcement action is necessary and proportionate, consideration will be given to, amongst other things:
- Public protection and "risk to the public”
- The seriousness of the compliance failure.
- The past and current performance of any business and/or individual concerned.
- Any obstruction on the part of the offender.
- The risks being controlled.
- Statutory guidance.
- Codes of Practice.
- Any legal advice.
- Policies and priorities of Government and the Council.
- A persons circumstances
- The existence of a Primary Authority agreement
COUNCIL INTERESTS
- The Council will enforce under legislation, procedures, and guidance, where the council has enforcement and regulatory responsibility in relation to its own premises. This will be consistent across all premises regardless of ownership. If any council employees are investigated, the investigation will be conducted in accordance with procedures developed to ensure that conflict of interest is minimised. The investigation will be conducted in an open, honest and accountable manner. All individuals and business will be dealt with consistently, regardless of whether they have an interest in the Council
PUBLICITY OF ENFORCEMENT
- Where the Council;
- is successful in prosecution and a conviction of an individual or business, or
- has made an enforcement decision relating to licensed premises, vehicles, drivers and/or operators
may, upon legal advice, publish details of the offence, perpetrators and convictions in both electronic and paper publications. This would be done to have a deterrent effect and to make the public aware that the Council is taking effective enforcement action where it is necessary.
PRIMARY AUTHORITY & OTHER AGENCY ARRANGEMENTS
- Where a Primary Authority exists, the Council will consult on responses to breaches.
- The council will liaise with the relevant agency if the Council is aware of likely non-compliance where the enforcement powers are shared or with another agency.
- The Council has an Information Sharing Protocol in place through the Safer Rotherham Partnership. This allows the sharing of information with partners where allowed and appropriate.