Regulatory Services Enforcement Policy

6.1 There are two issues to determine in deciding what action to take. The first is what level of enforcement action to take. The second is that, if the first decision is to take formal enforcement action, is that action viable and appropriate. These are each discussed in detail below.

6.2 The level of enforcement action taken will be proportionate to the risk or detriment involved to the public, the environment and other affected groups, taking into account, amongst other things, the individual circumstances of the case, the seriousness of the compliance failure, the attitude, age and previous history of the offender, the policies and priorities of Stockton-on-Tees Borough Council and any statutory guidance, codes of practice or legal advice.

6.3 There are a range of potential enforcement options available. The level of action taken varies from no action through to proceedings in court. Examples of the main types of action that may be considered are shown below:

• no action
• informal action and advice
• formal notice
• fixed penalty notice
• penalty charge notice
• administrative penalty
• civil or financial penalty notice
• seizure of goods, equipment or documentation
• forfeiture proceedings
• injunctive action and other civil sanctions
• refusal, review, suspension or revocation of a licence
• simple caution
• prosecution
• post-conviction court order
• proceeds of crime application

• public space protection order (PSPO)

6.4 The order in which the enforcement actions are listed is not necessarily in absolute order of escalating seriousness relative to each other. Stockton-on-Tees Borough Council reserves the right to escalate its level of enforcement action, having regard to the requirements of this Policy. An explanation of the main enforcement actions available is given below:

6.5 No Action

6.5.1 In certain circumstances, contraventions of the law may not warrant any action. This can be where the cost of compliance to the offender outweighs the detrimental impact of the contravention, or the cost of the required enforcement action to Stockton-on-Tees Borough Council outweighs the detrimental impact of the contravention on the community. A decision of no action may also be taken where formal enforcement is inappropriate in the circumstances, such as where the offender is elderly and frail or is suffering from mental health issues or serious ill health and formal action would seriously damage their wellbeing. In such cases Stockton-on-Tees Borough Council will advise the offender of the reasons for taking no action.

6.6 Informal Action and Advice

6.6.1 For minor breaches of the law, verbal or written advice and warnings may be given. These will clearly identify any contraventions of the law and, where appropriate, give advice on how to put them right and include a deadline by which this must be done. The time allowed will be reasonable and take into the account the seriousness of the contravention and the implications of non-compliance. In providing advice, officers will ensure that legal requirements are clearly distinguished from best practice guidelines. Failure to comply could result in an escalation of enforcement action and may be referred to in any subsequent proceedings.

6.7 Formal Notice

6.7.1 Certain legislation allows notices to be served requiring offenders to take specific actions or cease certain activities. Notices may require contravening activities to cease immediately where the circumstances relating to health, safety, environmental damage or nuisance demand. In other circumstances, the time allowed to rectify a contravention will be reasonable, taking into account the seriousness of the contravention, the implications of the non-compliance and the appeal period for that notice. In certain circumstances Stockton-on-Tees Borough Council may charge the person/business involved for the service of a notice.

6.7.2 Certain types of notice allow for works to be carried out in default. This means that if a notice is not complied with, Stockton-on-Tees Borough Council may carry out the necessary works to satisfy the requirements of the notice. Where the law allows, Stockton-on-Tees Borough Council may then charge the person/business served with the notice, for any cost incurred in carrying out the work.

6.7.3 A prohibition order under the Housing Act 2004 can be used to prohibit the use of residential premises, whether for all purposes or for any particular purpose. Generally, the order becomes operative 28 days after it is made. It is an offence to fail to comply with a prohibition order without reasonable excuse. SBC will revoke the order, or part of it, when it is satisfied that the hazard(s) in respect of which the order was made no longer exist. If applicable an emergency prohibition order can be used and this has the effect of immediately prohibiting the use of all, or part, of the premises.

6.7.4 A community protection notice issued under the Anti-social Behaviour, Crime and Policing Act 2014 can be used to deal with unreasonable, ongoing problems or nuisances which negatively affect the community's quality of life, by targeting the person or organisation responsible. The notice can direct any person, business or organisation responsible to stop causing the problem and if needed, to take reasonable steps to ensure that it does not occur again. In advance of serving the notice, Stockton-on-Tees Borough Council will issue a written warning to the perpetrator, allowing them a reasonable time in which to remedy the matter. The breach of any requirement of a notice is a criminal offence subject to a fixed penalty notice (see paragraph 6.8).

6.8 Fixed Penalty Notice

6.8.1 Certain offences, prescribed by legislation are subject to fixed penalty notices. They enable an offender to avoid a criminal record and discharge their liability to a prosecution for the original offence. Where legislation permits an offence to be dealt with by way of a fixed penalty notice, Stockton-on-Tees Borough Council may choose to administer such a notice on a first occasion without issuing a warning.

6.8.2 If the alleged offender fails to accept or pay the fixed penalty notice within the required timescale, consideration may be given for the prosecution of the original offence under the primary legislation.

6.9 Penalty Charge Notice

6.9.1 Penalty charge notices are prescribed by certain legislation as a method of enforcement by which the offender pays an amount of money to the enforcer in recognition of the breach. A penalty charge notice does not create a criminal record and Stockton-on-Tees Borough Council may choose to issue such a notice without first issuing a warning. The alleged offender may challenge the notice at the time of issue or later may appeal to an independent adjudicator.

6.9.2 In circumstances where a person or business fails to successfully challenge or pay a penalty charge notice, then Stockton-on-Tees Borough Council will consider instituting civil action to recover the debt.

6.9.3 If a vehicle is considered to be in breach of any Stockton-on-Tees Borough Council traffic related provision an officer may issue a Penalty Charge Notice. The person ultimately responsible in law is routinely the registered vehicle keeper. The notice may be fixed to the vehicle, handed to the driver or posted to the registered vehicle keeper. If, after the consideration of any challenge, that challenge is dismissed and the offender still fails to pay the penalty charge, Stockton-on-Tees Borough Council reserves the right to institute civil proceedings to recover the debt. This can include a debt referral to the Council's bailiff for collection purposes.

6.10 Administrative Penalty

6.10.1 An administrative penalty may be offered as an alternative to prosecution in suitable cases of benefit or council tax fraud. It is a type of fine, the rate of which is laid down by legislation, which the offender is required to repay on top of the monies already overpaid to them. If the offender refuses to accept the administrative penalty, Stockton-on-Tees Borough Council retains the right to take the matter forward for prosecution.

6.10.2 Whilst an administrative penalty is an alternative to prosecution, Stockton-on-Tees Borough Council can still take civil recovery action in a court of law if there is a failure to repay the debt and the administrative penalty.

6.11 Civil or Financial Penalty Notice

6.11.1 Stockton-on-Tees Borough Council has, in certain circumstances, the power to issue civil or financial penalties in relation to particular offences. These powers are set out in law and Stockton-on-Tees Borough Council will follow the relevant legislation, guidance and policy when deciding on whether to make a civil or financial penalty and on what the amount of the penalty will be. The details of appealing these penalties will be set out in any notices served. In some cases, this will include the right to make representations before a final penalty notice is issued.

6.11.2 The Enforcement and Regulatory Policy for Private Sector Housing refers to information on the fees and penalties chargeable in relation to breaches of the Housing Act 2004 and other housing related legislation.

6.12 Seizure

6.12.1 Certain legislation enables authorised officers to seize goods, equipment or documents, for example, unsafe food, sound equipment that is being used to cause a statutory nuisance, counterfeit goods or any goods that may be required as evidence for possible future court proceedings. When officers seize such items, they will give the person from whom the items are taken an appropriate receipt.

6.12.2 If officers seize unfit food, they will produce it before a Magistrate as soon as possible for them to confirm the seizure and consider if the food is unfit. If the Magistrate does not condemn the food, the officers will return it to the owner, who will then be entitled to compensation for any loss suffered.

6.13 Forfeiture Proceedings

6.13.1 This procedure may be used in conjunction with seizure and/or prosecution where there is a need to dispose of goods in order to prevent them for re-entering the marketplace or being used to cause a further problem.

6.13.2 If it is unlikely that the offender will agree to sign over the goods for appropriate disposal or if officers are unable to identify the owner of the goods, then a forfeiture application may be made to the court. The court can make a forfeiture order if it is satisfied that an offence has taken place, whether or not the owner of the goods is prosecuted for that offence.

6.14 Injunctive Actions and Other Civil Sanctions

6.14.1 In dealing with repeat offenders, social disorder, dangerous circumstances and significant consumer, environmental, housing and public health detriment, injunctive action, closure orders and/or banning orders may be considered to be the most appropriate form of enforcement activity. Where applicable, this can be done in addition to any other course of action outlined in the Policy.

6.14.2 Action under the Enterprise Act 2002 may be brought where an individual or business has acted in breach of community or domestic legislation with the effect of harming the collective interests of consumers. In most circumstances action will be considered where there have been persistent breaches or where there is, or could potentially be, significant consumer detriment. Action to stop the breach can range from obtaining an informal assurance or a formal undertaking as to future conduct, through to applying to a court for an interim order, a court order or finally for contempt proceedings.

6.14.3 Stockton-on-Tees Borough Council may apply to a court for a civil injunction when an individual has engaged in, or threatens to engage in, conduct capable of causing nuisance and annoyance.

6.14.4 The use of closure notices and orders under the Anti-social Behaviour, Crime and Policing Act 2014 can be used to protect victims and communities by quickly closing premises that are causing, or are likely to cause, nuisance or disorder. A closure notice can be issued by Stockton-on-Tees Borough Council to close a premises for 48 hours when satisfied on reasonable grounds, that the use of the particular premises has resulted in, or (if the notice is not issued) is likely to result in, nuisance to members of the public, or that there has been, or (if the notice is not issued) is likely to be, disorder near those premises associated with the use of those premises. Stockton-on-Tees Borough Council must also be satisfied that the notice is necessary to prevent the nuisance or disorder from occurring, continuing or recurring.

6.14.5 Before issuing a closure notice, Stockton-on-Tees Borough Council must make reasonable efforts to inform people who live on the premises and any person with control of, or responsibility for, the premises, or who has an interest in them, that the notice is going to be issued. Stockton-on-Tees Borough Council must also ensure that all appropriate bodies, such as the police, have also been consulted.

6.14.6 Whenever a closure notice is issued an application can be made to a Magistrates Court for a closure order. This must be heard by the Court not later than 48 hours after service of the closure notice; however the court may adjourn the hearing of the application for a period of not more than 14 days. A closure order can be made for up to 3 months, with the possibility of seeing extension to six months.

6.14.7 Other powers can include the use of hygiene emergency prohibition notices / orders in accordance with regulations made under the Food Safety Act 1990. A hygiene emergency prohibition notice (HEPN) can be used to address food hygiene concerns that pose an imminent risk to public health. The service of a HEPN will lead to a food business operator being prohibited from using the premises or equipment for the purposes of any food business. This normally means that there will be a closure of the premises. Whenever a HEPN is issued an application shall be made to a Magistrates Court for a hygiene emergency prohibition order. This must be heard by the Court not later than 72 hours after service of the HEPN. Such a notice or order can be lifted when officers are satisfied that the operator has taken sufficient steps to mitigate against the health risk.

6.15 Refusal, Review, Suspension or Revocation of a Licence, Permit or Registration

6.15.1 Stockton-on-Tees Borough Council has the power to refuse, review, suspend or revoke a range of licences, permits or registrations, subject to the applicable legislation. Some of these powers rest with officers but in other cases the law demands that decisions are made by a Committee of Elected Councillors. Applicants and/or licensees have the right to attend Committee Hearings and may have a statutory right to appeal to the courts against the decision made, depending on the applicable legislation.

6.16 Simple Caution

6.16.1 In appropriate circumstances, where a prosecution would otherwise be justified, a simple caution may be administered with the consent of the offender.

6.16.2 A simple caution is an admission of guilt, but it is not a form of sentence, nor is it a criminal conviction.

6.16.3 Where appropriate, Stockton-on-Tees Borough Council will use simple cautions to:

• deal quickly and simply with low level offences
• divert offenders from appearing in the criminal courts
• record an individual's criminal conduct for future reference in possible criminal proceedings
• reduce the likelihood of re-offending

6.16.4 For a simple caution to be issued a number of criteria must be satisfied:

• sufficient evidence is available to prove the case
• the offender has not been previously cautioned for the offence within the last 2 years
• the offender admits the offence
• the offender agrees to be cautioned and understands the significance of it
• the offender is aged 18 years or over
• It is in the public interest to use a simple caution.

6.16.5 A record of the caution will be kept on Stockton-on-Tees Borough Council databases and, where appropriate, recorded on any national databases. If the offender is subsequently prosecuted for another offence, the caution may be cited in court and may influence the severity of the sentence that the court imposes.

6.16.6 If the offender refuses to accept the offer of a simple caution, then this will be a material consideration in deciding what further action to take. In these circumstances it is likely that a prosecution will follow.

6.17 Prosecution

6.17.1 Where circumstances warrant it and alternative enforcement actions are considered inappropriate, a prosecution will be considered and may ensue.

6.17.2 In order to take a prosecution forward, the offender must meet one or more of the following criteria:

• engaging in fraudulent activity
• deliberately or persistently contravening legal obligations
• deliberately or persistently ignoring written warnings or formal notices
• endangering or posing a risk to the health, safety or wellbeing of people, animals or the environment
• obstructing an enforcement officer during the course of his or her duties
• causing, or having the potential to cause, significant consumer or trade detriment

6.18 Post-Conviction Court Order

Where a person is convicted of a relevant offence in the criminal courts, Stockton-on-Tees Borough Council may apply for an appropriate ancillary order or remind the court of its power to make such an order. These orders include, for example, a criminal behaviour order, which prohibits the offender from doing anything described in the order or requires the offender to do anything described in the order. Other ancillary post-conviction orders can include a compensation order, a dog destruction order, a remedial order following the breach of a community protection notice and a disqualification order to prevent a person from being the director of a company or otherwise concerned with a company's affairs.

6.19 Proceeds of Crime Application

6.19.1 Stockton-on-Tees Borough Council either through its own enforcement officers or in cooperation with the Police or other enforcement agencies, may make an application under the Proceeds of Crime Act 2002 to restrain and/or confiscate the assets of an offender.

6.19.2 This will be used in conjunction with a criminal prosecution where the law and circumstances allow it. The purpose of any such application is to recover the financial benefit that the offender has obtained from their criminal conduct. Proceedings are conducted according to a civil standard of proof.

6.20 Public Space Protection Order (PSPO)

6.20.1 A PSPO can be introduced, following consultation, to prohibit certain activities within identified public places, or to require specified things to be done by persons carrying on specified activities in that area. These orders can be introduced if:

(i) activities carried on in a public place within the authority's area have had a detrimental effect on the quality of life of those in the locality; and

(ii) it is likely that activities will be carried on in a public place within that area and that they will have such an effect

A PSPO provides for restrictions to be placed on behaviour that apply to everyone in that locality (with the possible use of exemptions). Breach of a PSPO without a reasonable excuse is an offence.

6.20.2 In dealing with breaches of a PSPO, Stockton-on-Tees Borough Council will operate a tiered approach:

• PSPO Instruction 
• PSPO Warning 
• PSPO Fixed Penalty Notice