ALLERDALE BOROUGH COUNCIL SECTION. FOOD HYGIENE POLICY & PROCEDURES PAGE Food Safety Enforcement Policy Revision No: 0 Date: January 2002 Authorised Signature: FHP... 1. Purpose This document establishes the Food Safety Enforcement Policy and Procedures of Allerdale Borough Council. 2. Application This policy and procedure will be implemented by the Environmental Health Unit Manager with the support and co-operation of the Food and Occupational Health Team. 3. References Enforcement Concordat Food Standards Agency Framework Agreement on Local Authority Food Law Enforcement Food Safety Act 1990 Codes of Practice 4. Documentation 5. Policy The Borough of Allerdale will ensure that food and drink intended for sale for human consumption which is produced, stored, distributed, handled or consumed within the Borough is without risk to the health or safety of the consumer. This will be achieved through the provision of education, advice and the use of statutory powers of enforcement. 6. Procedures Enforcement action will be based upon non-compliance with food safety legislation and an assessment of the risk to public health. -1-
The purpose of enforcement is to: - Protect public health and prevent food related incidences of ill health; Deal immediately with serious risk; Promote and achieve sustained compliance with the law; Put flagrant breaches and serious or repeat offenders before the Courts; and Enable the Courts to uphold the law by punishing offenders and deterring others The term enforcement has a wide meaning and applies to all dealings between the Council and those on whom food safety legislation places duties, and includes employers, the self-employed, employees and others. Enforcement of criminal law is distinct from civil claims for compensation. Although enforcement action may not be taken, civil claims may be appropriate. Enforcement is not intended to assist claims for compensation. Inspectors will seek to secure compliance with the law informally by providing information, advice and support, both face to face and in writing. Where appropriate inspectors will issue written warnings, serve Improvement and Emergency Prohibition Notices, take evidence for prosecution, recommend prohibition of food handlers, issue formal cautions and prosecute. Inspectors when judging compliance with the law take into account relevant codes of practice, industry guides and other guidance, use sensible judgement about the extent of the risks and the effort that has been applied to counter them. THE PRINCIPLES OF ENFORCEMENT The Council has a published Enforcement Policy. The Council has signed up to the Enforcement Concordat. As a signature to the Cabinet Office Enforcement Concordant the Council believes in firm but fair enforcement of food safety legislation. We shall follow the principle of proportionality in applying the law, securing compliance, and will be consistent in approach and targeting of enforcement action. We operate in a transparent manner and are accountable for our actions. -2-
Proportionality Proportionality means relating enforcement action to the risks. We will minimise the costs of compliance for business by ensuring that any action we require is proportionate to the risk. As far as the law allows, we will take account of the circumstances of the case and the attitude of the operator when considering action. Targeting We will ensure resources are targeted primarily on those whose activities give rise to the most serious risks or where the hazards are least well controlled; and that action is focused on the duty holders who are responsible for the risk and who are best placed to control it whether employers, manufacturers, suppliers or others. The Council follows a national risk rating system for inspections. Separate procedures are available for inspections, sampling, food complaint investigations, premise condition complaints and investigation of food poisoning and food borne notifications. Consistency We will carry out our duties in a fair and equitable manner, by taking a similar approach in similar circumstances to achieve similar ends. The Council has arrangements in place to promote consistency in the exercise of discretion, including effective arrangements for liaison with other enforcing authorities. Transparency We will be open and transparent by helping duty holders to understand what is expected of them and what they should expect from inspectors, including distinguishing between statutory requirements which are compulsory and advice or guidance which is desirable but not compulsory. Accountability Inspectors are accountable to members, citizens and Parliament for their actions. The Council has policies and procedures against which it can be judged, and an effective accessible mechanism for dealing with comments and complaints. Decision Making Current legislation, Approved Codes of Practice and technical guidance will be available for reference. -3-
The Council authorises inspectors to carry out the duties it has decided they are competent to do. Separate procedures (FOH GX) cover the Authorisation and Training of Inspectors. Complaints The council has a publicised complaint procedure. Complainants are encouraged to contact the relevant inspector s or their line manager in the first instance. In cases where disputes cannot be resolved, any right of further complaint or appeal will be explained, with details of the process and the likely timescales involved. Prosecution The decision to prosecute should have regard to the evidential and public interest tests set down in England and Wales by the Director of Public Prosecutions in the Code for Crown Prosecutors, and Code of Practice No: 2: Legal Matters Prosecutions will only be considered when there is sufficient evidence and that it is in the public interest. Subject to these two tests The Borough of Allerdale will consider and normally prosecute where one or more of the following apply: - The alleged offence was extremely serious. This will take into account the seriousness of any actual or potential harm, and the general record and approach of the offender. There has been reckless disregard of food safety requirements. There have been repeated breaches or persistent poor compliance. Work has been carried out without, or in serious breach of, an appropriate licence. There has been a failure to comply with an Improvement Notice. Inspectors have been intentionally obstructed in the lawful course of their duties. The prosecution is a way to draw general attention to the need for compliance with the law and the maintenance of standards required by law, and conviction may deter others from similar failures to comply with the law. The are placed in order of priority for action. Publicity The Council will normally issue a press statement following prosecution and serving of an Emergency Prohibition Notice. -4-
Encouraging Action by the Courts The Council when appropriate during a prosecution will draw the court s attention to the Court of Appeals guidance on the factors which should inform sentencing in food safety cases. To ensure that fines reflect the seriousness of the offence (R v F Howe and Son (Engineers) Ltd [1999] 2 AU ER). Where the case is of sufficient seriousness, the Council will indicate to the magistrates that the offence is so serious that they may refer it to be heard or sentenced in the higher court where higher penalties can be imposed. See Appendix A for penalties. Working with Others Discussion and liaison may be necessary with the following in implementing the enforcement policy. Home /Originating Authority Principle If the premises are linked to, a Home or Originating authority, Inspectors when considering formal action will liaise with the identified authority. In situations where imminent risk to health is identified, the required immediate action will be taken and the authority notified at the earliest possible opportunity. Food Standards Agency The FSA will be notified of all approvals or any variations issued under product specific legislation. Under the Food Hazard Warning System the FSA will be notified of any food complaints of a wider concern. Health authority Infection Control and Epidemiological advice Consumer and Business Interests This policy and subsequent revisions will take account of the views of our stakeholders. The need for the protection of consumer health whilst taking account of the concerns and requirements of businesses are recognised. Enforcement action will be in accordance with the enforcement concordat. -5-
Consumer and Business interests are currently formally consulted with at quarterly meetings with a user consultation group representing business, public and Councillors. Public Health Laboratory Service Infection control, sampling and testing County Food Liaison group Co-ordination and promotion of consistency within Cumbria, which involves direct links with Cumbria County Trading Standards. Liaison with Expert Bodies Other specialist organisations and governing bodies will be consulted where appropriate. FOOD SAFETY ENFORCEMENT ACTIONS Authorised Officers will consider the most appropriate course of action including enforcement action during inspections or following incidents or complaints. All relevant information and evidence will be taken into account. The choices of action are: No action To give verbal and written warnings Serve improvement or prohibition notices Serve a formal caution To prosecute To seize an article or substance Any combination of the above Officers will contact the home or originating authority when there are shortcomings in a company s centrally agreed policies or procedures. Where formal enforcement action is considered this will be discussed with the home authority unless the action is immediate then the home authority will be contacted afterwards. Verbal and Written Warnings The circumstances when it is appropriate to use verbal and written warnings are: - The act or omission is not serious enough to warrant formal action -6-
From the individuals/business compliance it can be reasonably expected that the warning will achieve compliance There is no deliberate economic advantage being sought Confidence in the management is high The consequence of non-compliance will not pose a significant risk to food safety Even where some of the above criteria are not met, there may be circumstances in which a warning will be more effective than a formal approach Inspection reports will be issued following all programmed inspections and revisits. The inspection category and minimum inspection frequency will be confirmed and if required a date for a revisit will be set. When an informal approach is used to secure compliance with food safety legislation, any written documentation issued or sent to proprietors will: Contain all the information necessary to understand what work is required and why it is necessary Indicate the regulations contravened and the measures which will enable compliance with the legal requirement Clearly distinguish between matters which are necessary to meet statutory requirements and those which are recommended practice Copies of letters and reports of inspection will be sent to the registered or head office where this is not the premise visited The inspector will tell the duty holder what to do to comply with the law, explain why and distinguish legal requirements from best practice. Inspectors will, on request, confirm any advice in writing detailing the above. Improvement Notice Improvement notices will be served by authorised officers based on their opinion that there is a contravention of the law at the time of the visit or that there had been a contravention and that it is likely that the contravention will continue or be repeated. -7-
An inspector will consider: - The significance and seriousness of the legal contravention. Lack of confidence in the proprietor or enterprise to respond to an informal approach. History of non-compliance with informal action. Generally poor standards with little management awareness of statutory requirements. Consequences of non-compliance could be potentially serious to public health. Whether the employer appears deliberately unwilling to recognise their responsibilities and those who may be affected by their actions. Whether the duty holder has a history of non-compliance with verbal and written warnings. Whether deliberate economic advantage has been sought. The inspector will discuss the notice and if possible, resolve points of difference before serving it. The notice will say what needs to be done, why and by when. Timescales will be realistic. Failure to comply with the notice will generally result in court proceedings. Emergency Prohibition Notices Served only where the authorised officer has identified an imminent risk of injury to health. The use of an Emergency Prohibition Notice will only be considered if the Food Safety Act 1990 code of Practice: 6 Prohibition Procedures criteria outlined below are fulfilled: Premises contravene food safety legislation and have been or are involved with an outbreak of food poisoning or present an imminent risk of one. -8-
Serious infestation by rats, mice, cockroaches or other vermin (including birds) or a combination of these infestations resulting in actual food contamination or an imminent risk of food contamination. Poor structural condition and poor equipment and/or poor maintenance of routine cleaning and/or serious accumulations of refuse, filth for other extraneous matter resulting in actual food contamination or an imminent risk of food contamination. Serious drainage defects or flooding of the premises leading to actual food contamination or an imminent risk of food contamination. Any combination of above or the cumulative effect of contravention which together represent an imminent risk of injury to health. And in addition: There is no confidence in the integrity of an unprompted offer made by the proprietor to voluntarily close the premises or cease the use of any equipment, process or treatment associated with the imminent risk Unwillingness by the proprietor to confirm in writing the unprompted offer of voluntary closure The consequences of not taking immediate and decisive action to protect public health would be unacceptable Where Emergency Prohibition action involving chemical contamination is being considered medical or other expert advice may be sought before a final enforcement decision. An application for an Emergency Prohibition Order will be made to the magistrates Court within three days of issuing an Emergency Prohibition Notice. In circumstances when an Emergency Prohibition Notice would be necessary but the person in control of the activity has assured the inspector that he will remove the risk, and the inspector is confident that this will be achieved, the authorised inspector will require this in writing. The inspector will, where practicable, discuss why the notice is being served. The legal implications of non-compliance will be explained. Where the notice is issued the inspector will provide a written explanation of the reasons for the action. Appeals Every notice will be accompanied by written information on how to appeal and will contain: -9-
An explanation on how, where and within what period an appeal may be brought Action on an improvement notice is suspended while an appeal is pending Public Register A public register will be kept and maintained by the Council of notices served which affect the public who are not employees of that workplace in accordance with the Environment and Safety Information Act 1988. Entries will be made 14 days after the time limit for appeal of the notice has passed providing no appeals have been made or 14 days after an appeal that has determined that the notice should not be cancelled. The register is kept in the Food and Occupational Health Office of Allerdale Borough Council. The Food Standards Agency will be notified of all formal action taken. Seizure and Detention of Foodstuffs Authorised officers will provide an appropriate receipt to the person from whom the foodstuffs are taken. Full details of our actions will be provided and discussed. Detention Foodstuffs may be detained if an authorised officer has good reason to suspect that food does not satisfy food safety requirements. This will ensure that food is not used for human consumption and is either held where it is or not moved except to a specified place pending further information, for example, results of tests on samples. Seizure If an authorised officer is in possession of evidence or adverse information concerning the foodstuffs may be seized and notice that condemnation by a Justice of the peace will be applied for. This will ensure that food is not used for human consumption and is either held where it is or not moved except to a specified place. Food will where possible will be brought before a Justice of Peace within 2 days and perishable foods as soon as possible. If the Justice of the Peace does not condemn the food, we will return it to the owner who will be entitled to compensation for any loss suffered. -10-
Formal Caution If there is sufficient evidence to prosecute, regard will be had to the Home Office Circular to determine if a formal caution will be more appropriate. 18/1994 states that the purpose of the formal caution is: - to deal quickly and simply with less serious offences to divert less serious offences away from the courts to reduce the chances of repeat offences To safeguard the suspected offender s interests, the following conditions must be fulfilled before a caution is administered: - There must be evidence of the suspected offender s guilt sufficient to give a realistic prospect of conviction. The suspected offender must admit the offence. The suspected offender must understand the significance of a formal caution and give an informed consent to being cautioned. If there is insufficient evidence to consider taking a prosecution, then the conditions for the use of a formal caution are not satisfied. There is no legal obligation for any person to accept the offer of a formal caution and no pressure will be applied to accept a formal caution. If a Formal Caution is refused, alternative enforcement action will be considered. The Cautioning Officer will be authorised by The Director of Community Services and will meet the qualifications and experiences stated in FOH GXX Authorisation and Training Procedure. The Office of Fair Trading will be notified of all formal cautions are issued and accepted. foodsafetyenforcementprocedures.01.05.pad.ip -11-