Statutory guidance

[Withdrawn] Local authority powers to impose restrictions: Health Protection (Coronavirus, Restrictions) (England) (No 3) Regulations 2020

Updated 28 September 2021

This statutory guidance was withdrawn on 28 February 2022

The regulations that this guidance refers to expired on 24 February 2022. See The Health Protection (Coronavirus, Restrictions) (Self-Isolation etc.) (Revocation) (England) Regulations 2022.

Applies to England

This guidance applies to: England.

This document supports the Health Protection (Coronavirus, Restrictions) (England) (No.3) Regulations 2020 (‘the regulations’) that came into force on 18 July 2020. It provides guidance for local authorities in England on:

• what the regulations allow them to do
• how they should exercise those powers
• how those powers should be enforced

It also provides guidance for those impacted by local authority directions.

These powers may be exercised by upper-tier local authorities in England. As set out in Regulation 1(4), this includes:

• in 2-tier areas, county councils
• in single-tier areas, the unitary county (or district council as referred to in the regulations)
• London borough councils
• the Common Council of the City of London
• the Council of the Isles of Scilly

Examples of how the powers under the regulations may be used after the move to step 4 on 19 July are also set out below.

Introduction

The regulations grant powers to local authorities to make directions which respond to a serious and imminent threat to public health. Any direction must be necessary and proportionate in order to manage the transmission of coronavirus in the local authority’s area. The regulations contain powers for local authorities to give directions which:

• restrict access to, or close, individual premises
• prohibit or restrict certain events (or types of event)
• restrict access to, or close, public outdoor places (or types of outdoor public places)

following procedural requirements set out in the regulations and covered below.

This guidance seeks to provide clarity to local authorities on how to exercise the powers in the regulations and to support those impacted by any direction made under them.

Making a direction under the regulations

Justification

Satisfying the 3 legal conditions

To give a direction under these regulations, a local authority needs to be satisfied that the following 3 legal conditions are met:

1. That giving the direction responds to a serious and imminent threat to public health.
2. The direction is necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection by coronavirus in the local authority’s area.
3. The prohibitions, requirements or restrictions imposed by the direction are a proportionate means of achieving that purpose.

The requirement in the first legal condition above is that giving the direction responds to a serious and imminent threat to public health. The requirement is not that the individual premises, event or public outdoor place must pose a serious and imminent threat to public health. This requirement is also not confined to the local authority’s area alone – it can be based on a wider serious and imminent threat posed by coronavirus to people living in or visiting the local authority’s area or elsewhere.

On 10 May 2021, the UK Chief Medical Officers moved the COVID-19 alert level to level 3. The COVID-19 epidemic is still in general circulation with people catching and spreading the virus every day. It remains important for everyone to continue to follow guidance closely.

It is recommended that local authorities ask their director of public health (DPH) for advice to ensure that there is sufficient evidence for the imposition of any measures. Local authorities must consider any advice that their DPH gives. It is important that the 3 legal conditions are met before a direction is issued. It is for individual local authorities to assess this on a case-by-case basis.

Evidence to support a direction relating to premises, events and public outdoor places

Before making a direction, local authorities should gather sufficient evidence to demonstrate that all the above requirements are met.

This evidence may come from a range of sources, and relate to general local, regional and national data trends, as well as evidence relating to the specific individual premises, event or public outdoor place that is to be subject to the restrictions in the direction.

This could include:

• information provided to the local authority by local experts, including its DPH and the local resilience forum, about disease prevalence and transmission rates in the area
• information from NHS Test and Trace, including the Joint Biosecurity Centre (JBC)
• information from the UK Health Security Agency (UKHSA)
• information from Public Health England (PHE)
• information relating to the COVID-19 transmission levels on a regional or national basis, or both, as appropriate
• information from environmental health officials
• the documentation provided by the organiser, including their arrangements for risk mitigations in light of the latest government guidance
• information about whether business owners or event organisers are following the working safely guidance, or any other relevant guidance applicable to the business or event in question
• information from any other sources deemed relevant by the local authority
• reflections on previous directions issued and ongoing informal interactions with relevant stakeholders, business owners and event organisers
• regional and local epidemiological data on case rates, vaccination rates, hospitalisations and deaths as a result of COVID-19 infections
• local contextual information and insight on hospital capacity
• local outbreaks of variants of concern (VOCs) of COVID-19, particularly any with vaccine-escape properties
• whether the direction relates to any activities that contravene existing legislation or guidance in place to protect against the spread of COVID-19

In determining whether to make (or revoke) a direction under the regulations, a local authority must consider any advice given to it by its DPH, its interim or acting DPH, or a registered public health consultant who is approved by its DPH. It is important to note:

• this requirement does not prevent a local authority from issuing a direction where there has been no such advice given
• if DPH advice has been given, then a local authority must consider it, and this consideration will form part of the local authority’s overall decision-making. However, a local authority is not bound to follow the advice and could decide to depart from it
• a local authority is also not prevented from obtaining advice from other sources (as suggested above) which can be considered and fed into the local authority’s decision
• the DPH may provide the local authority with a list of registered public health consultants whom the DPH has approved, who may also be consulted

In some local authorities the DPH works alongside the team issuing directions and will be involved routinely. In other local authorities there may be more separation, and specific engagement will be required for consultation. Local authorities should clarify the process within their area prior to the need to issue a direction.

We recommend that DPHs are given an opportunity to advise on all proposed directions.

Statutory and other duties

In exercising their public functions, local authorities must have due regard to the public sector equality duty (PSED) as set out in section 149 of the Equality Act 2010.

Local authorities could consider carrying out an equalities impact assessment to determine whether the measure may disproportionately affect people with protected characteristics.

Local authority powers under the regulations

Local authorities can use the optional templates if they wish when issuing directions under regulations 4(1), 5(1) and 6(1) of the regulations. It remains the responsibility of the local authority to ensure that there is sufficient evidence to support the direction being made.

Individual premises

Regulation 4(1) provides a power for local authorities to give directions imposing prohibitions, requirements or restrictions regarding the entry into, departure from or location of people in individual premises. Directions must be for the purpose of either closing the premises, restricting entry to the premises, or securing restrictions in relation to the location or people or in premises.

Directions may include restrictions or requirements on the number of people in premises, the reasons for being there and the facilities in the premises.

Examples could include:

• capacity restriction
• restricting the use of business premises for work purposes rather than for holding social events
• requiring businesses to restrict entry to those not wearing face coverings
• requiring businesses to ensure people gather on the premises in socially distanced groups.

The 3 legal conditions (above) must still be met before making a direction. This includes ensuring any directions are a proportionate means of achieving the public health response to the spread of COVID-19.

Directions may only be issued against the owner, occupier or other manager of the premises. Notice of the directions must be given to these people in writing. Local authorities must also take reasonable steps to give advance notice of the direction.

Directions

Directions must include the following:

• the powers under which the direction is being made
• the reason for making, or revoking, the direction
• the date and time on which the prohibition, requirement or restriction comes into effect and the date and time on which they will end
• the processes for appealing or making representations to the Secretary of State
• the direction should also state if the direction has been issued (or revoked) on the direction of the Secretary of State (under regulation 3)

Essential infrastructure and public transport

Local authorities must not give directions relating to any premises which are essential infrastructure. In addition, before giving a direction under regulation 4(1) a local authority must have regard to the need to ensure that members of the public have access to essential public services and goods.

A local authority may not give a direction in relation to vehicles, trains, vessels or aircraft used for public transport or the carriage or haulage of goods. Public transport is given its ordinary meaning. Local authorities should use their judgement as to whether premises could be considered public transport.

When considering whether to shut down transport services that are not public transport, local authorities should be mindful of their duty under the Education Act 1996 to facilitate home to school transport for eligible children. Directions cannot be issued in relation to vessels which could prevent a change-over of crew.

Public transport is also included in the list of what is likely to be considered essential infrastructure. It is unlikely that taxis or private hire vehicles are included. In these cases, directions must be issued against the owner, occupier or manager of either:

• the premises from which the taxi or private hire vehicle company operates from
• the vehicles

Premises includes any vehicle, train, vessel, or aircraft but not if they are used for public transport or the carriage or haulage of goods.

The list is not exhaustive and local authorities should use their judgement to consider whether premises could be considered essential local or national infrastructure before using the power.

Examples of premises which are likely to form part of essential infrastructure include:

• buildings owned or occupied by central or local government bodies, or part of the building owned or occupied by such bodies, including Parliament, to the extent that they are so occupied. Entertainment venues, such as government-owned theatres, sports centres or other leisure facilities do not form part of essential infrastructure
• border infrastructure – including border and inland facilities to support the checking of goods (border control points)
• buildings that are occupied by agencies that are responsible for maintaining national security
• premises from which a healthcare professional operates, as defined in regulation 8 of the Human Medicines Regulations 2012
• premises of a registered childcare provider (as defined in paragraph 2(9) of Schedule 16 of the Coronavirus Act 2020)
• premises of an educational institution (as defined in paragraph 1(11) of schedule 16 of the Coronavirus Act 2020)
• children’s homes within the meaning of section 1 of the Care Standards Act 2000
• premises of a water undertaker, sewerage undertaker, water supply licensee or sewerage licensee, and any other facility, premises or setting which are used in connection with the provision of water supplies or sewerage services, such as for the management, treatment, testing and distribution of water, and management, treatment, testing and disposal of sewage
• premises owned or occupied by a risk management authority in connection with its flood and coastal erosion risk management functions (as defined in sections 4 to 6 of the Flood and Water Management Act 2010)
• any facility or setting which produces, manufactures, distributes or sells food other than food retailers smaller than 280 square meters and individual hospitality settings. Where safe and feasible, delivery takeaway options should be allowed to continue operating. In smaller towns and villages, local authorities should ensure the exercise of this power does not prevent residents from accessing core food supplies
• commercial energy generation, distribution or importation infrastructure, including with respect to electricity, gas, oil, other heat sources (for example, wood), petrol and recharging stations and similar fuel sources, and district and communal heating or electricity
• nuclear sites, which have been granted a nuclear site licence as defined in section 1 of the Nuclear Installations Act 1965
• sites or locations where command and control of a space launch vehicle or spacecraft for nominal operations, collision avoidance or anomalies are conducted, or where space situational awareness activities are conducted
• commercial passenger and freight airports, and airfields used for emergency service operations
• commercial ports or ports used for emergency service operations
• sites or locations that support the safe and secure operation of ‘offshore installations’ as defined in section 44 of the Petroleum Act 1998, or ‘upstream petroleum infrastructure’ as defined in section 9H of the Petroleum Act 1998, or ‘wells’ as defined in section 45A(10) of the Petroleum Act 1998
• premises connected with the provision of emergency services
• waste facilities, including waste collections and management facilities used for the management, sorting, treatment, recovery, transport, storage, or disposal of waste (including energy from waste)
• a facility used for the manufacture, distribution and so on of medicine (including veterinary) and surgeries
• a downstream oil facility that has a capacity in excess of 10 tonnes
• a site or location operated by or on behalf of a postal operator, as defined in section 27(3) of the Postal Services Act 2011
• a site or location involved in the continued production, supply, movement, manufacture, storage or preservation of essential goods, including ports and/or sites associated with the movement of freight
• buildings used for the detention, management or supervision of offenders and the supply of equipment to enable such
• data centres, information technology, cybersecurity centres and telecommunications facilities
• all national, regional and local heavy rail – this includes the entire High Speed 1 rail link from the Channel Tunnel to St Pancras station, together with its maintenance facilities and train depots – and light rail networks, heavy rail and light rail stations, heavy rail and light rail maintenance depots and rail freight terminals and interchanges
• the Channel Tunnel infrastructure system, consisting of the tunnel rail link, together with its associated terminal area, service and maintenance area, clearance depot and associated road and rail links with the wider UK transport network
• Dollands Moor Freight Yard (Channel Tunnel Storage Facility)

If local authorities are unsure whether a particular premises falls within the scope of the essential infrastructure exemption, they should direct queries to the relevant government department, or to NHS Test and Trace regional partnership teams or email directionnotification@dhsc.gov.uk.

Events

Regulation 5(1) provides a power for local authorities to prohibit or place restrictions or requirements on the holding of an event (or type of event) where the local authority considers the 3 legal conditions (above) are met.

For example, a direction could be given where a local authority is aware of a planned event at which the numbers of people expected to attend, or the nature of a particular event, would make it unsafe due to the risk of coronavirus transmission at the event.

Directions may include restrictions or requirements on the number of people attending the event. A direction may also impose requirements to inform people who may be planning to attend an event of any restrictions being imposed.

When considering making a direction relating to events, local authorities should refer to the guidance about making a direction under the regulations (see above), and in addition consider:

• the location of the event
• the risks associated with the event, including, for example, the anticipated level of attendance and the activities that are due to take place
• the likelihood of attendees travelling from national or international locations which may have higher transmission rates
• the documentation provided by the organiser, including their arrangements for risk mitigations in light of the latest government guidance

A direction under this regulation may only impose prohibitions, requirements or restrictions on:

• the owner or occupier of premises for an event to which the direction relates
• the organiser of such an event
• any other person involved in holding such an event

The direction does not apply to people planning to attend the event who are not involved in its organisation. Those individuals do not commit an offence under the regulations if they fail to comply with the direction.

Notification of directions concerning events

A local authority must take reasonable steps^{[footnote 1]} to give advance notice of any direction it issues under regulation 5(1) to:

1. the organiser of the event
2. if different, any person who owns or occupies the premises for the event

Notification of directions concerning events must be issued by a local authority in writing (letter, email or both) to either:

• the organiser of the event
• the owner or occupier of the premises where the event is being held
• any other person involved in holding such an event

It should clearly state:

• the powers under which the direction is being made
• the reason for making, or revoking, the direction
• the date and time on which the prohibition, requirement or restriction comes into effect and the date and time on which they will end (a legal requirement)
• the processes for appealing or making representations to the Secretary of State (a legal requirement)
• the direction should also state if it has been issued (or revoked) on the direction of the Secretary of State (under regulation 3)

Find out more about event safety during coronavirus.

Public outdoor places

Regulation 6(1) provides a power for local authorities to make directions imposing prohibitions, requirements or restrictions on the access to a public outdoor place. This includes a place where the public have access, whether on payment or otherwise (regulation 1(4) The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020).

Directions could include the closure of, or the restriction of access to, a public outdoor place (or public outdoor places of a specified description) where local authorities are satisfied that a direction meets the 3 legal conditions.

This could, for example, be utilised when a local authority is aware of a planned event at a public outdoor place, or when evidence indicates that the numbers of people expected to seek to use a space would meet the legal criteria for giving a direction, for example, a large number of people attending a popular beach or an enclosed square in an urban area.

Directions may include restrictions or requirements on the number of people attending the event, or the public outdoor place. A direction could also prohibit access at specified times.

When considering making a direction relating to public outdoor places, local authorities should refer to the guidance about making a direction under the Regulations (see above), and in addition consider:

• the geographical boundary of the space
• whether the direction would close, or otherwise impact upon, any part of the:
  • Strategic Road Network (SRN)
  • the Transport for London Road Network (TLRN)

If so, the local authority should:

• consult with Highways England (with respect to the SRN) or Transport for London (with respect to the TRLN), and should have regard to any advice received, regarding impacts on the SRN or TRLN, before making its direction
• use best endeavours to consult as early possible, and as soon as is reasonably practicable, before a direction under Regulation 6 is made

Crown lands

Where a restriction, prohibition or requirement relates to Crown land under regulation 8(1), the local authority is required to have an agreement with an appropriate authority before a direction can be made. The ‘appropriate authority’ will usually be someone with authority to give consent on behalf of the owner, for example the Crown Estate Commissioners. The full list is given in Regulation 8(2).

The local authority may not make a direction in relation to Crown land without this agreement. However, NHS Test and Trace will aim to support the local authority in putting in place an agreement quickly. Local authorities should liaise with the relevant NHS Test and Trace regional partnership team in the first instance. If this is not possible email directionnotification@dhsc.gov.uk with the relevant details.

Notification of directions concerning public outdoor places^{[footnote 2]}

Before giving a direction under regulation 6(1), the local authority must take reasonable steps to give advance notice of the direction to a person carrying on a business from premises within the public outdoor place to which the direction relates. It must also take reasonable steps to ensure that the direction is brought to the attention of anyone who owns, occupies or is responsible for any land or premises in a public outdoor place to which the direction relates.

Directions concerning public outdoor places must be issued by a local authority in the form of a written letter or email communication or both to any named person in the direction, clearly stating:

• the powers under which the direction is being made
• the reason for making, or revoking, the direction
• the date and time on which the prohibition, requirement or restriction comes into effect and the date and time on which they will end (a legal requirement)
• the appeals and representations process (a legal requirement)
• sufficient detail on the public outdoor place or places to enable the boundaries of the place to be determined (a legal requirement)

The direction should also state if it has been made on the direction of the Secretary of State.

The local authority must specify or describe the public outdoor place or places to which the direction relates in sufficient detail to enable the boundaries of the place to be determined.

Local authorities should undertake wider notification, as they consider appropriate, to bring any directions to the attention of those who may be affected by the direction or its revocation. The format of such publication will depend on the scale and impact of any prohibition, requirement or restriction. It could include emails, social media posts, press notice or notices on arterial roads, where reasonable and proportionate.

Access to a public outdoor place once a direction has been issued

If a local authority gives a direction under regulation 6(1), it must take reasonable steps to prevent or restrict public access to the public outdoor place or places to which the direction relates in accordance with the direction.

People (other than the local authority) who own, occupy or are responsible for part of the public outdoor place subject to the direction must also take reasonable steps to prevent or restrict public access to that land in accordance with the direction.

Once a direction is made, people will not be allowed to enter or remain in the area, subject to the terms of the direction, without a reasonable excuse. The regulations provide a non-exhaustive list of reasonable excuses, which include:

• where a person needs to enter a public outdoor place to obtain access to or leave the place where they are living
• where it is reasonably necessary for a person to enter or remain in a public outdoor place:
  • for work purposes
  • to facilitate a house move
  • to provide care or assistance to a vulnerable person
  • to provide emergency assistance
• where the person needs to enter or remain in a public outdoor place to:
  • avoid injury or illness or escape a risk of harm
  • continue existing arrangements for access to, and contact between, parents and children where the children do not live in the same household as their parents or one of their parents
  • fulfil a legal obligation or to participate in legal proceedings
• access for utility companies carrying out essential maintenance and repair works
• highway authorities carrying out road works

While all possible uses of the power cannot be exhaustively detailed, directions made under Regulation 6 would not usually be exercised:

• to restrict social interaction between people living within or outside the defined area
• to prevent people from travelling through the defined area if the start and end of their journeys are outside it, for example long distance motorway journeys that pass through the area
• as a means to indirectly control premises, if the closure of a public outdoor place also restricts access to premises in the vicinity

Separate consideration should be given to the restriction of access to premises that may be an indirect consequence of such action, or regulation 4(1) should be used to close or restrict individual premises.

The owner, occupier or person responsible for land or premises in a public outdoor place to which a direction under regulation 6(1) relates may challenge the direction following the guidance on challenging a direction (see below).

Giving notice of a direction under regulation 4(1), 5(1) or 6(1)

Notification and communication with the business owner or event organiser

Where a local authority gives a direction, it must take reasonable steps to give advance notice of the direction.

Local authorities should take a proportionate and common-sense approach to giving advance notice. It is a duty to take reasonable steps, not an absolute duty to provide advance notice, and should be approached in a proportionate manner. What constitutes ‘reasonable steps’ of advance notice in relation to a highly urgent direction will not be the same as a direction given a week before it takes effect.

Notice of the direction must be issued by a local authority in writing (letter, email or both) to the person impacted by the direction. Advance notice could also constitute a phone call, particularly in a more urgent situation.

The regulations specify the publication requirements for directions. Where a direction imposes a prohibition, requirement or restriction on a person specified by name, the direction or notice of revocation:

• must be given to that person in writing
• may be published in such other manner as the local authority considers appropriate to bring it to the attention of persons who may be affected by the direction or the revocation

In all other cases a direction given (or notice of revocation):

• must be published on the website of the local authority
• may be published in such other manner as the local authority considers appropriate to bring it to the attention of persons who may be affected by the direction or the revocation

Specific notice requirements on giving advance notice for each type of direction under the regulations are set out in the relevant sections above.

The direction must include details of the right of appeal to a magistrates’ court or to make representations about the direction to the Secretary of State (or both) and provide an address for service of any summons (including the Secretary of State where it is based on his direction). For more information see the challenging a direction section below.

Cooperation with other local authorities and agencies

Where a local authority (‘the initiating authority’) gives a direction under regulation 4(1), 5(1) or 6(1) it must notify:

• any local authority whose area is adjacent to the initiating authority’s area
• where the initiating authority is a London borough council, every other London borough council
• where the initiating authority is a county council for an area where there is a district council, the district council
• where the initiating authority’s area is adjacent to the area of a council in Scotland or a county or county borough council in Wales, it should notify that council

The notification could be provided by emailing the neighbouring authorities with a summary of the direction and rationale for making it if it relates to the closure of a small single premise, but may require much greater detail and coordination across local authorities if the direction applies to a large public outdoor place.

To avoid an unnecessary ripple effect, there is no obligation on the part of the local authority who receives the notification to in turn notify its own neighbouring authorities, unless there is a large outbreak across multiple areas, where such a response may be appropriate.

However, where a local authority has been notified it must consider, as soon as reasonably practicable, whether to exercise its own powers under the regulations and must notify the initiating local authority of what it has decided to do. If a county council receives notice in respect of an area for which there is also a district council, it must notify the district council of the direction and its own decision.

Where this is the case, it may be necessary for the local authority to coordinate action at a regional level and engage with neighbouring authorities through the local resilience forum, or through other channels as appropriate.

Following a direction being issued, local authorities should ensure a multi-agency approach, to limit the need to enforce using policing powers alone.

If it is considered that police enforcement powers may be needed to safely manage the risk to public health, then prior to issuing a direction (or, where the threat is imminent, as soon as is reasonably practicable), a local authority should consult the police. Where appropriate, directions should be notified to the police to enable effective enforcement. Local authorities should also consult neighbouring police forces if the direction prohibits, requires or restricts access to a premise, event or public outdoor place situated next to a local resilience forum boundary.

A local authority should engage with partners through the local safety advisory group and local resilience forum, where relevant, to ensure emergency services are aware of directions and manage risk, including the risk that people may travel to other local spaces.

Notification of directions to Secretary of State

When a local authority issues a direction, it must notify the Secretary of State as soon as reasonably practicable after the direction is given. This should be done no longer than 24 hours after issuing the direction and notification should be provided via NHS Test and Trace by emailing directionnotification@dhsc.gov.uk.

The email should include:

• the direction(s) (ideally as a PDF with redacted personal details but including business names)
• the reason for issuing the direction
• the location or area the direction relates to
• the organisations and groups of people expected to be directly and indirectly affected by the direction
• the stakeholders consulted on the decision on the direction (including NHS Test and Trace regional partnership teams, government departments and PHE as appropriate)
• the date and time on which the restriction comes into effect
• the date and time on which it will end

Some of the above information will be contained in the direction itself. This information helps to ensure the Secretary of State has the relevant information explaining why the direction was given.

If further advice on the procedure to follow before giving a direction, local authorities can contact directionnotification@dhsc.gov.uk. If the local authority requires legal guidance and advice, it must consult its own legal department.

Reviewing a direction

A local authority must review a direction it has issued under the regulations at least once every 7 days and determine whether the 3 legal conditions for making the direction continue to be met.

If at any stage any of the 3 conditions is no longer met (that is, there is no longer a serious and imminent threat to public health, or the measures are not deemed to be necessary and proportionate to prevent or control the incidence or spread of infection in the local authority’s area), the local authority must either:

• revoke the direction without a replacement
• revoke the direction and replace it with a further direction that does meet the legal threshold and 3 conditions for making a direction

The local authority must notify all required persons of its decision.

The Secretary of State’s own powers under the regulations

Regulation 3 gives the Secretary of State the power to direct a local authority to issue a direction under regulation 4(1), 5(1) or 6(1) where the Secretary of State considers the 3 conditions above are met, and the Secretary of State can also direct a local authority to revoke an existing direction (with or without a replacement direction) where the Secretary of State considers the above conditions are no longer met. Before doing so the Secretary of State must consult the Chief Medical Officer or one of the Deputy Chief Medical Officers.

Challenging a direction

Where a direction is made, the person subject to the direction (for example, the owner or occupier of an individual premises) must fulfil the requirements of the direction until the direction is revoked or expires (whichever is the sooner).

Those directly impacted by any direction under the regulations may raise concerns with the local authority to try to reach a suitable resolution. In addition, an appeal against a direction may be made in either or both of the following ways.

1. Appealing to the magistrates’ court

The recipient of a direction has the right of appeal through the magistrates’ courts. A complaint must be lodged as soon as possible within the period during which the direction has effect. All appeals must be lodged within 28 days of the issue of the direction. Where a local authority has reviewed a direction and decided to uphold it (a ‘review determination’), the 28-day time limit will start from the date the review determination was made.

The appellant will need to provide arguments and evidence as to why:

• the direction should not have been made
• the local authority’s reasons for taking action did not or does not meet the conditions as they are set out in Regulation 2(1)

Where the direction was made on the direction of the Secretary of State, the appeal must be brought against both the Secretary of State and the local authority and the magistrates’ court must issue summonses against both of them.

2. Making representations to the Secretary of State

The recipient of a direction may make representations to the Secretary of State about the direction. In all cases, representations regarding a direction, or a review decision to continue a direction, should be submitted as soon as possible and within 28 days of the issue of the direction. Where a local authority has reviewed a direction and decided to uphold it (a ‘review determination’), the 28-day time limit will start from the date the review determination was made. Any representations should be emailed to directionnotification@dhsc.gov.uk.

To help ensure representations are considered effectively, this email should include:

• details about the recipient of the direction and any impacts of the direction
• details of why the direction should not have been made or was not necessary or proportionate (or both), based on the conditions set out in regulation 2(1)
• any supporting evidence
• what action should be taken

To be effective, it is recommended that any representations to the Secretary of State are made as soon as possible and before the direction has expired.

The Secretary of State must consider the representations as soon as is reasonably practicable and decide whether it would be appropriate to allow the direction to remain or direct the local authority to revoke the direction or revoke it and replace it with a direction that meets the 3 legal conditions). The Secretary of State must provide written reasons for his decision to the person who made the representations and the local authority which gave the direction.

If the Secretary of State considers that one or more of the 3 legal conditions for issuing a direction are no longer met, he must direct the local authority to either:

• revoke the direction without replacement
• revoke the direction and replace it with a further direction that would satisfy the conditions

Enforcement

Enforcement actions by the local authority

Where a local authority designated officer, police officer or police community support officer (PCSO) reasonably believes that a person is or has failed to comply with a prohibition, requirement or restriction as set out in the regulations, they may take such action as is necessary and proportionate to enforce the direction.

A local authority designated officer may issue a prohibition notice to a person who contravenes a direction, for example by failing to close a premise that a direction requires to be closed.

Where the police consider that an event is being held in contravention of a direction, they may direct the event organiser to stop it, direct a person to leave the event, or, in the case of a constable, remove a person from the event.

Where the police consider that a person is, without reasonable excuse, in a public outdoor place that has been closed or where access has been restricted under a direction, they may direct that person to leave the place immediately or, in the case of a constable, remove the person from the place.

Offences

Where it is reasonably believed that a person has committed an offence under the regulations, an authorised person may issue a fixed penalty notice (FPN).

An authorised person is:

• a local authority designated officer, in respect of a breach relating to:
  • premises under regulation 4(1)
  • events under regulations 5(1)
  • the failure of an owner or occupier of land in a public outdoor space to which a direction under regulation 6(1) applies to take reasonable steps to restrict access to that land
  • obstruction of a local authority officer or constable carrying out functions under the regulations
  • contravening a direction under regulation 12 or failing to comply with a reasonable instruction or prohibition
• a police officer or PCSO in respect of:
  • the obstruction of a local authority officer or constable carrying out functions under the regulations
  • contravening a direction under regulation 12 or failing to comply with a reasonable instruction or prohibition
  • entering or remaining in a public outdoor place without reasonable excuse in contravention of a direction under 6(1)

If the FPN is paid within 28 days beginning from the day after the date of the notice no proceedings may be taken in respect of the offence.

The amount of the FPN will be £200 for a first offence (reduced to £100 if paid within 14 days) doubling upon further offences up to a maximum of £6,400.

When calculating the amount of the FPN, previous offences under these regulations as well as under other relevant coronavirus legislation (such as the Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) Regulations 2020 or the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, or both) will be taken into account (regulation 14(8) Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020).

Best practice advice to local authorities and examples of directions

Current regulations

Local authorities should inform themselves of the current COVID-19 restrictions and guidance in place when considering applying the 3 legal conditions required to issue a direction. They should also keep themselves informed of any changes to the restrictions or guidance.

Examples of further evidence which local authorities may wish to consider are set out in the section on evidence above.

If the 3 legal conditions are met, a direction could be used to impose requirements that help to control the spread of COVID-19.

The number and type of requirements in a direction would be a matter for the local authority to assess on a case-by-case basis depending on the evidence.

A direction could include a single requirement or a number of requirements if the appropriate tests were met, including that the direction is proportionate.

In an appropriate case, provided the 3 legal conditions are met and it is necessary and proportionate to do so, local authorities can issue a direction to close the premises, or to prohibit an event taking place.

Local authorities should consider carefully if this is necessary, and consider if there are any other alternative options, such as imposing requirements or restrictions.

To ensure effective directions can be given at short notice, local authorities are advised to:

• ensure links to relevant organisations that a local authority may want to consult when issuing a direction are in place for quick access when required
• ensure effective governance processes are in place before the need to use powers arises
• prepare appropriate direction templates and ensure they are up to date to reflect any changes in the regulations
• prepare letters and public communication templates before the need to give notification of a direction
• maintain a ‘lessons learned’ log from previous directions
• where appropriate, consider use of alternative options or powers available to the local authority, such as through direct engagement with a business
• consider using positive reinforcement schemes and informal measures to promote compliance with guidance to ensure that businesses follow the working safely guidance.

Best practice examples of use of the regulations from the move to step 4 on 19 July 2021

A restriction, requirement or prohibition must be necessary and proportionate, and the 3 legal conditions must be met. It is recommended that DPHs are also given the opportunity to advise on all proposed directions.

Example 1: premises

Prior to issuing a direction, the local authority should check any relevant guidance in place for the sector.

For example, step 4 guidance has been issued for hospitality businesses. The guidance states that, although face coverings are no longer required by law, the government recommends that people continue to wear them in crowded and enclosed areas.

As part of their investigations, local authorities may wish to check that the business is complying with the recommendations where they would reasonably be expected to.

Where the evidence suggests that there is a serious and imminent threat to public health in their area, local authorities may consider implementing measures to control the spread of the virus. For example, a local authority could issue a direction requiring a business to restrict access to those not wearing a face covering, set capacity or group limits, or require the business to prevent mixing.

Local authorities should be mindful of the implications of directions on those with disabilities and allow businesses the discretion to authorise entry to those who requirements have previously not applied to, such as children and those who cannot wear face coverings for health reasons.

Example 2: events

As with example 1, a restriction, requirement or prohibition must be necessary and proportionate, and the 3 legal conditions must be met.

A large, outdoor event, which includes indoor covered spaces such as marquees or temporary structures, is planned in an area with high COVID-19 case rates. Local services are under significant pressure (for example, high hospitalisations) and there are a number of outbreaks in the area, which have been linked to international travel.

The local authority and DPH had previously been content with the original planning and risk assessments carried out for the event, a number of months ago when COVID-19 case rates were significantly lower.

However, the spread of COVID-19 infections has since exceeded planned margins and the risks are now much greater, so the local authority must consider whether to allow the event to continue in its current format, or to cancel the event.

The local authority must now consider if their proposed action meets the 3 legal conditions and whether there is a serious and imminent threat to public health.

In such a situation, local authorities are to engage with organisers at the earliest opportunity to identify what further risk mitigation action could be taken to allow the event to continue.

Options may include:

• a reduction of numbers entering the event
• increased ventilation in enclosed areas, such as marquees or temporary structures
• a requirement to wear face coverings during the event in enclosed areas, such as marquees or temporary structures

If appropriate, deferring the event to an alternative date can be a considered.

The local authority should also consult the latest events guidance.

If the 3 legal conditions are met, the local authority may issue a direction on the owner or occupier of the premises on which the event is planned, the organiser, or any other person involved in holding such an event.

1. See also Giving notice of a direction under regulation 4(1), 5(1) or 6(1) ↩

2. Also see broader guidance in Giving notice of a direction under regulation 4(1), 5(1) or 6(1) ↩