General Enforcement Policy

4. Our approach to dealing with non-compliance

  1. The Council recognise that most businesses and individuals strive to comply with 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.
  2. Those that deliberately or persistently fail to comply will be dealt with firmly by the Council.
  3. 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.
  4. The Council will review all notifications/complaints of non-compliance and if necessary will investigate the matter. Necessity to investigate and the promptness of the response will be proportionate to the resources available as well as identification of risk.
  5. 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.
  6. Council officers and decision makers will carry out all of our enforcement duties, including taking formal enforcement action, in a fair, equitable 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

  1. The Council recognises that prevention is better than a cure and will actively work with business and residents to provide advice on and assistance with compliance with the law. In doing this it will be ensured that:
    • Any communications/information provided will be in clear, concise and accessible language and 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.
  2. The Council’s Scheme of Delegation, which includes details of who is responsible for managing investigations and making decisions on enforcement action, can be provided in electronic or paper format upon request.

Feedback & Influencing

  1. The Council will ensure that mechanisms are in place to allow those regulated, and the public, to express views, provide feedback and contribute to the development of regulatory policies and service standards.
  2. The Council will consider the impact on business, and engage with businesses, before changing policies and service standards.

Fairness

  1. Officers will be courteous, fair and efficient at all times, and will identify themselves by name.
  2. The Council will give consideration to fairness, individual’s human rights and natural justice, in all aspects of our enforcement work.
  3. The Council believes in openness and equality in the way services are provided and that every individual is entitled to dignity and respect.
  4. When making enforcement decisions the Council and its officers will aim to ensure that there will be no discrimination against any individual regardless of culture, ethnic or national origins, gender, disability, age, sexual orientation, political or religious beliefs, socio-economic status, or previous criminal conviction or caution which is not relevant to the current issue.

Confidentiality

  1. 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.
  2. Where any officer or member of the Council becomes aware of any concern in enforcement practice or compliance requirements the matter shall, in the first instance, 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 which can be appealed 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.
  3. Where 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.
  4. The Council does operate a “whistleblowing policy”; the “Confidential Reporting Code”, which provides for serious concerns to proceed confidentially.

Charging for Enforcement

  1.  Where legislation allows, the Council will recover costs for taking enforcement action against the responsible persons. These costs will be associated with administrative costs associated with preparation and serving of any notice.
  2.  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

  1. The Council will choose proportionate approaches based on relevant factors.
  2. In assessing what enforcement action is necessary and proportionate, consideration will be given to, amongst other things:
    1. Public protection and "risk to the public”
    2. The seriousness of the compliance failure.
    3. The past and current performance of any business and/or individual concerned.
    4. Any obstruction on the part of the offender.
    5. The risks being controlled.
    6. Statutory guidance.
    7. Codes of Practice.
    8. Any legal advice.
    9. Policies and priorities of Government and the Council.
    10. A persons circumstances
    11. The existence of a Primary Authority agreement

Council Interests

  1. Where the Council has enforcement and regulatory responsibility in relation to its own premises, the Council will enforce and legislate in accordance with legislation, procedures, and guidance. This will be consistent across all premises regardless of ownership. Where individuals are investigated who are also Council employees, or where they have known connections to the Council in any capacity, the investigation will be conducted in accordance with procedures developed to ensure that conflict of interest is minimised, and that the investigation is conducted in an open, honest and accountable manner. All individuals and business will be dealt with consistently, regardless of whether or not they have an interest in the Council

Publicity of Enforcement

  1. 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

  1.  Where a Primary Authority exists, the Council will consult on responses to breaches.
  2.  Where the Council is aware of likely non-compliance where the enforcement powers are shared or with another agency, the Council will liaise with the relevant agency.
  3.  The Council has an Information Sharing Protocol in place through the Safer Rotherham Partnership which allows the sharing of information with partners where allowed and appropriate.