AGENDA ITEM:
MIDDLESBROUGH COUNCIL
EXECUTIVE REPORT
Community Protection Service Fixed Penalty Strategy
Executive Member for Community Protection: Julia Rostron
Director of Environment: Mike Robinson
Date: 20 July 2010
PURPOSE OF THE REPORT
1.
To seek Executive approval for the Community Protection Service Fixed Penalty
Enforcement Strategy which has been revised in accordance with recent guidance
issued by the Mayor. If approved the strategy will introduce new guidance to
enforcement staff on issuing warnings prior to considering legal action. The
document consolidates two existing fixed penalty enforcement strategies and
includes new provisions relating to energy performance certificates.
SUMMARY OF RECOMMENDATIONS
2.
That the strategy, which is attached as Appendix 1, is approved by the Executive.
IF THIS IS A KEY DECISION WHICH KEY DECISION TEST APPLIES?
3.
It is over the financial threshold (£75,000)
It has a significant impact on 2 or more wards
Non Key
X
DECISION IMPLEMENTATION DEADLINE
4.
For the purposes of the scrutiny call in procedure this report is
Non-urgent
Urgent report
X
If urgent please give full reasons
BACKGROUND AND EXTERNAL CONSULTATION
5.
The Clean Neighbourhoods and Environment Act 2005 (CNEA) extended the
number of offences that can be dealt with by fixed penalty notice from 2 to 13,
including litter and waste offences, noise offences, and breaches of dog control
orders. With this power came a requirement to produce a strategy for the use of
fixed penalty notices to enable consistency of operation, openness, and fairness.
The existing fixed penalty strategy was written in line with Government guidance
issued at the time. The current strategy identifies the fixed penalty as an
opportunity for those who agree they committed the offence to discharge their
responsibility by paying a fee, and avoiding a court appearance and a criminal
record. It is a one-time offer given in appropriate, non-serious cases. It does not
include a general provision to give warnings prior to issuing fixed penalty notices.
6.
The Health Act 2006 brought about new requirements for substantially enclosed
spaces that are open to the public, and workplaces including vehicles, to be smoke
free. The Act introduces four new offences, two of which can be dealt with by fixed
penalty notice namely;


Failing to display a conforming “no smoking“ sign in smoke-free
premises
Smoking in a smoke-free place
7.
A fixed penalty strategy was written, based on Government guidance, which
includes sending a written warning for a first offence. Fixed penalty notices for
these offences are normally issued if warnings have not been heeded.
8.
From October 2008 the Directive on the Energy Performance of Buildings has
required all rented properties to have an Energy Performance Certificate giving
information on the energy rating of the building and recommendations for
improvements. The Housing Protection and Trading Standards Services are
responsible for enforcing this Directive. Under the current proposals, legal
enforcement will only be carried out after a failure to heed a request to provide a
certificate and a written reminder.
9.
Civil parking enforcement is carried out under the provisions of the Traffic
Management Act 2004. This includes asking the drivers of attended vehicles that
are parked illegally to move without issuing a penalty notice.
10.
The two existing fixed penalty strategies identified above, together with the new
Energy Performance Certificate requirements, have been consolidated to produce
one fixed penalty strategy covering the operation of the Environment Department.
The new strategy includes guidance to all enforcement staff on the given course of
action for a particular circumstance. Examples are given that illustrate the
requirements across a range of enforcement areas. The principal difference is that
the offences previously covered by the CNEA 2005 now include guidance about
giving warnings in appropriate cases rather than a fixed penalty notice, making the
guidance on warnings consistent across the entire range of offences enforced by
the Environment Department.
11.
The government have set a 75% payment target for the waste offences covered in
the previous strategy. The number of these fixed penalty notices issued and paid in
the Tees Valley in the 12 months to January 2010 is shown in the table below:
Local Authority
Middlesbrough
Hartlepool
Redcar and Cleveland
Darlington
Stockton-on-Tees
Number
issued
29
904
232
33
80
Number paid
27
393
91
17
23
Payment rate
%
93
43
39
51
28
Table 1: Waste Fixed Penalty Notice benchmarking data for Tees Valley
Authorities.
12.
Middlesbrough has been operating to the guidelines contained in the revised
strategy since October 2009. In this time 90 warnings have been given that
previously would have been dealt with by fixed penalty notice. Two repeat
offenders have been given fixed penalties for the second offence. Both were for
breach of a dog control order. The increase in numbers recorded is due to greater
street warden involvement and the introduction of the Albert Park Dog Control
Order.
13.
Hartlepool Council report their high numbers of fixed penalty notices to be mainly
as a result of their support for their wheeled bin waste collection system (no-sidewaste and mandatory recycling policies) i.e. for breach of a notice specifying
domestic waste collection requirements under section 46 of the Environmental
Protection Act 1990. Redcar and Cleveland Council use litter fixed penalty notices
for domestic waste and fly-tipping offences unless a section 46 notice has
previously been served and have 54 staff working from 7am till 10pm every day.
None of the Tees Valley Councils have served any energy performance certificate
penalty notices since the powers came into force. Smoking fixed penalty notices
have been issued on 24 occasions in Middlesbrough against a North East total of
55 (Tees Valley data is not available).
14.
The following have been consulted on the changes to the strategy as follows:


Middlesbrough Council Community Protection Service Enforcement Staff
Middlesbrough Council Service Managers including Legal Services,
Streetscene Services, Community Protection Service, Transport and Design
Services and the Street Warden Service.
EQUALITY IMPACT ASSESSMENT
15.
The existing Equality Impact Assessment has been reviewed in light of the new
guidance and has been attached to this report as Appendix 2.
OPTION APPRAISAL/RISK ASSESSMENT
16.
Option 1 – Do Nothing
This option would leave a strategy that, for Clean Neighbourhood and Environment
Act offences, meets the Government Guidance but does not accord with the
Mayor’s strategy of educating and advising through engaging with “offenders” prior
to the issue of a fixed penalty notice. There would remain a difference in
enforcement policies across the range of offences enforced by enforcement staff
potentially leading to complaints about dual standards and lack of consistency.
17.
Option 2 – Adopt the amended Strategy identified in Appendix 1.
This is the recommended option. It provides consistency of enforcement across the
full range of the fixed penalty notices enforced by staff in the Environment
Department. This approach meets the Mayor’s enforcement strategy to provide
warnings in straightforward cases such as litter and dog fouling, to give people an
opportunity to redress their offence prior to the issue of a fixed penalty notice.
FINANCIAL, LEGAL AND WARD IMPLICATIONS
18.
Financial – There is a minimal income from fixed penalty notices issued for
offences contained in the strategy, typically £2,000 - £3,000 per year that could
reduce as a result of this policy change. The operation of this policy to date
indicates that close to 100% of people comply with warnings and most will not be
caught a second time, so we could lose almost all of our fixed penalty income. Any
income received from fixed penalty notices is used for additional activities to
improve the local environment.
19.
Ward Implications – The offences covered by this policy are enforced in all wards
in the Town.
20.
Councillor Rostron has been consulted.
21.
Legal Implications – there are no legal implications in providing a warning to a
person rather than a fixed penalty.
RECOMMENDATIONS
22.
That the amended fixed penalty strategy in Appendix 1 is approved by the
Executive.
REASONS
23.
The amended strategy would provide a consistent approach to the enforcement of
offences across the Community Protection Service. It complies with the request
from the Mayor that warnings are given as a first course of action in straightforward
cases before considering issuing a fixed penalty notice.
BACKGROUND PAPERS
24.
Middlesbrough Parking Strategy.
AUTHOR: Paul Robertson
TEL NO: 728212
______________________________________________________
Address: [email protected]
Website: http://www.middlesbrough.gov.uk