Preparing for Primary Authority

1
Preparing for Primary Authority Session 5 the
determination process
2
PA.5 the determination process

• Objectives for this session
• Outline the determination process
• Define key concepts
• Demonstrate the scheme in action
• Identify sources of more information

3
PA.5 the determination process

• Key facts
• Process for breaking deadlock between a primary
  authority or its business partner and an
  enforcing authority. Used only exceptionally
• Referrals can be made by enforcing authority (if
  disagrees with primary authority), primary
  authority (if it disagrees with the enforcing
  authority) or the business
• Referrals for determination can only be made with
  LBRO's consent

4
PA.5 the determination process

• Key facts
• Application for determination must contain
• details of the proposed enforcement action
• details of the direction against taking that
  action
• evidence for the need for determination
• justification from a referring primary authority
  as to why LBRO should make the determination
• details of the advice given to a referring
  business

5
PA.5 the determination process

• Key facts
• Once consent is granted, determination process
  must be complete within 28 days
• LBRO can only consider whether
• primary authority's previous advice was correct
• primary authority's previous advice was properly
  given
• the proposed enforcement action is inconsistent
  with the primary authority's previous advice

6
PA.5 the determination process

• Key facts
• Determination will lead to one of three outcomes
• LBRO consents to the proposed enforcement action
  being taken. Enforcing authority may proceed
• LBRO does not consent to the proposed enforcement
  action being taken. Enforcing authority must
  desist
• LBRO directs the enforcing authority to take
  alternative action

7
PA.5 the determination process

• Bigg City council proposes to take enforcement
  action against Grocery for breaches of health and
  safety law. It notifies Grocery's primary
  authority, Anytown council, of its plans on
  Monday. On Friday the same week, Anytown contacts
  Bigg City to say the action is inconsistent with
  previously given and properly made advice, and
  objects to it.

8
PA.5 the determination process

• What is Bigg City's best next step?
• Further discussions with Anytown to clarify the
  issues and resolve their differences
• Informal discussion with LBRO account manager
• What if the differences cannot be resolved?
• Request a determination from LBRO
• Provide necessary information
• Subject to acceptance, await outcome

9
PA.5 the determination process

• LBRO consents to accept the determination and
  Anytown and Bigg City provide their respective
  evidence. The determination process begins. Bigg
  City's newspaper, The Bugle, reports a serious
  incident at one of the Grocery stores.
  Councillors find out and are demanding immediate
  action be taken against the store.

10
PA.5 the determination process

• What can Bigg City inspectors do?
• Investigate any new complaints arising from the
  media coverage
• Take enforcement action if there is immediate
  risk of harm
• Advise Anytown of any new intelligence
• Brief councillors on legal constraints
• Await the outcome of the initial determination
  process may take up to 28 days

11
PA.5 the determination process

• After consultation with HSE, LBRO rules that the
  initial enforcement action proposed by Bigg City
  is inconsistent with advice previously given by
  Anytown. However, LBRO also rules that although
  the advice was properly given in recorded in
  writing it was not correct, having failed to
  take account of changes in the legislation.

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PA.5 the determination process

• What happens next?
• LBRO has only one option consent to the
  enforcement action proceeding
• Bigg City should take the (proportionate and
  targeted) enforcement action it proposed
• Anytown inspectors should review the advice
  provided to ensure it is properly given and
  correct
• LBRO will discuss issues raised with Anytown

13
PA.5 the determination process

• Key concepts
• Application for Referral occurs when a business,
  enforcing authority or a primary authority wants
  LBRO to rule whether enforcement action may
  proceed
• Consent given by LBRO to accept a determination
• Direction LBRO's legally binding order to an
  enforcing authority about the course of action it
  should take

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PA.5 the determination process

• For further information see
• BERR's Guide to the Regulatory Enforcement and
  Sanctions Act 2008
• Regulatory Enforcement and Sanctions Act 2008,
  Part 2 and Schedule 4
• Secondary legislation
• LBRO operational guidance
• LBRO determinations policy and procedures
• Visit www.lbro.org.uk