Guidance

Primary Authority: Determination summaries

Updated 19 January 2024

Summary 13: Regulation 852/2004 Chapter 1 paragraph 2(c)

• Date of determination: 6 December 2023
• Applicant (enforcing authority): Cannock Chase District Council (‘Cannock Chase’)
• Primary Authority: Rushcliffe Borough Council (‘Rushcliffe’)
• Business: Boots UK Limited (‘Boots’)

Cannock Chase notified Rushcliffe of its intention to bring enforcement action against Boots in relation to allegations that Boots had not followed its own procedures to ensure pest activity was controlled and gnawed food was not on sale for the public to purchase.

Rushcliffe blocked the proposed enforcement action on the basis that it considered it to be inconsistent with its assured advice.

Cannock Chase disagreed with Rushcliffe’s assertion and subsequently made an application to the Office for Product Safety and Standards for consent to reference for a determination by the Secretary of State (SoS).

Rushcliffe had issued Primary Authority Advice to Boots Pest Management in Stores issued March 2015.  

The proposed enforcement action here is in relation to ‘the layout, design, construction, siting and size of food premises that they should permit good food hygiene practices including protection against contamination and in particular pest control’. These issues are not covered in the Primary Authority Advice given to Boots; therefore, the proposed enforcement action is not inconsistent with Rushcliffe’s Advice to Boots. 

The reference was granted. The SoS determined that the proposed enforcement action was not inconsistent with Rushcliffe’s Advice to Boots. Rushcliffe’s earlier direction to Cannock Chase not to take enforcement action is therefore revoked.

Summary 12: Health and Safety at Work Act 1974

• Date of determination: 3 January 2023
• Applicant (enforcing authority): Leeds City Council (‘Leeds’)
• Primary Authority: Woking Borough Council (‘Woking’)
• Business: Bannatyne Fitness Ltd (‘Bannatyne’)

Leeds notified Woking of its intention to serve an Improvement Notice under section 21 of the Health and Safety at Work etc Act 1974, in relation to Bannatyne.

Woking blocked the proposed enforcement action on the basis that it considered it to be inconsistent with its assured advice.

Leeds disagreed with Woking’s assertion and subsequently made an application to the Office for Product Safety and Standards for consent to reference for a determination by the Secretary of State (SoS).

Woking had issued Primary Authority Advice to Bannatyne relating to the Bannatyne Pool Supervision Risk Assessment (RA1) and the Bannatyne Non-Lifeguarded Pool Risk Assessment (RA 2). Leeds notified Woking that they were proposing enforcement action following a site visit.

Woking blocked the proposed enforcement action by Leeds: ‘We are of the opinion that a suitable and sufficient risk assessment has been carried out and is specific to the swimming pool facility and activities at Bannatyne Leeds. Adequate control measures have also been identified and implemented which are proportionate to mitigate risks’.

The proposed enforcement action is an Improvement Notice proposed to be issued on the grounds that the risk assessments are not suitable and sufficient. The Primary Authority advice requires Bannatyne to complete RA1 and RA2 at each site. As such, the Primary Authority Advice is a description of the documentation which needs to be completed as part of undertaking a suitable and sufficient assessment of the risks at each site. However, the advice does not confirm that the risk assessments actually completed are suitable and sufficient.

The reference was granted. The SoS determined that the proposed enforcement action was not inconsistent with Woking’s Advice to Bannatyne. Woking’s earlier direction to Leeds not to take enforcement action is therefore revoked.

Summary 11: Food Safety and Hygiene (England) Regulations 2013

• Date of determination: 6 September 2022
• Applicant (enforcing authority): Derby City Council (‘Derby’)
• Primary Authority: Wakefield Council (West Yorkshire Trading Standards (‘WYTS’) for food standard matters)
• Business: Asda Stores Limited (‘Asda’)

Derby proposed enforcement action for prosecution for an offence under Regulation 19(1) of the Food Safety and Hygiene (England) Regulations 2013 by virtue of Article 14(1) of Regulation (EC) No 178/2002 food shall not be placed on the market if it is unsafe.

WYTS blocked the proposed enforcement action on the basis that it considered it to be inconsistent with its assured advice.

Derby disagreed with WYTS’s assertion and subsequently made an application to the Office for Product Safety and Standards for consent to reference for a determination by the Secretary of State (SoS).

WYTS had issued Primary Authority Advice to Asda Stores Limited relating to date coding. Derby notified WYTS that they were proposing enforcement action following an inspection where various items of food were found exposed for sale past their used by date.

WYTS blocked the proposed enforcement action by Derby. “The assured advice in regard to food past the use by date has been adhered to and therefore this appears to be a local issue not a corporate failing.”

The proposed enforcement action was in relation to allegations of foods past their “use by” dates being sold contrary to Article 14 of Regulation (EC) No 178/2002. The issue of whether Asda’s systems were appropriately implemented, whether the necessary data code checks were carried out, recorded, and reported upon and whether any corrective actions were implemented appropriately is a question of fact to be established by evidence.

The reference was granted. The SoS determined that the proposed enforcement action was, not inconsistent with WYTS Advice to Asda. WYTS earlier direction to Derby not to take enforcement action is therefore revoked.

Summary 10: Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013

• Date of determination: 22 June 2020
• Applicant (enforcing authority): Tewkesbury Borough Council (Tewkesbury)
• Primary Authority: Wakefield Council (Wakefield)
• Business: WM Morrison Supermarkets Plc (Morrisons)

Tewkesbury proposed enforcement action against Morrisons in relation to an alleged failure to report an employee’s fall as a work-related accident, contrary to Regulation 4(1)(g) RIDDOR and s.33(1)(c) of the Health and Safety at Work etc Act 1974.

Wakefield blocked the enforcement action on the basis that it considered it to be inconsistent with Primary Authority Advice (PAA) provided to Morrisons.

Tewkesbury disagreed with the direction from Wakefield not to take the proposed enforcement action, and subsequently made an application to the Secretary of State (SoS) for consent to reference for a determination by the SoS.

The SoS granted the reference and determined on 22 June 2020 that the proposed enforcement action was not inconsistent with the PAA. The SoS revoked Wakefield’s direction for Tewkesbury not to take the enforcement action.

Background

Wakefield issued PAA to Morrisons on reporting accidents under RIDDOR. The PAA issued did not address the broad range of actual factual circumstances in which the RIDDOR reporting requirement would be considered. The PAA did not provide for how the law and guidance would be applied to determine whether the incident was a work-related accident in these circumstances.

Decision

The SoS found that the proposed enforcement action was not inconsistent with the PAA, as:

• The PAA states that work-related accidents are to be reported under RIDDOR, but the PAA does not provide a process to determine whether the incident was a work-related accident. As such, the proposed enforcement action is not inconsistent with the PAA.

Tewkesbury’s application was therefore allowed and the direction of Wakefield not to enforce was revoked in accordance with RESA section 25C(4).

Summary 09: Regulation (EC) 852/2004

• Date of determination: 20 September 2021
• Applicant (enforcing authority): London Borough of Waltham Forest (LBWF)
• Primary Authority: South Cambridgeshire District Council (SCDC)
• Business: Aldi Stores Ltd

SCDC issued Primary Authority Advice (PAA) to Aldi Stores Ltd on the business’ Pest Control Policies and Procedures. The PAA states that the Pest Control Policy and Procedures demonstrate compliance ‘where it is properly implemented’. LBWF does not challenge whether that advice is correct but argues that the policies and procedures were not being implemented at a local level and therefore the PAA was not followed.

LBWF proposed enforcement action against Aldi Stores Ltd in relation to an offence under Annex II, Chapter IX, paragraph 4 of Regulation (EC) 852/2004 on the hygiene of foodstuffs which relates to pest control.

SCDC blocked the enforcement action on the basis that it considered it to be inconsistent with PAA provided to Aldi Stores Ltd.

LBWF disagreed with the direction from SCDC not to take the proposed enforcement action and subsequently made an application to the Secretary of State (SoS) for consent to reference for a determination by the SoS.

The SoS granted the reference and determined on 20 September 2021 that the proposed enforcement action was not inconsistent with the PAA.

LBWF’s application was therefore allowed and the direction of SCDC not to enforce was revoked in accordance with the Regulatory Enforcement and Sanctions Act section 25C(4).

Summary 08: Regulation (EC) 852/2004

• Date of determination: 20 September 2021
• Applicant (enforcing authority): London Borough of Waltham Forest (LBWF)
• Primary Authority: South Cambridgeshire District Council (SCDC)
• Business: Aldi Stores Ltd

SCDC issued Primary Authority Advice (PAA) to Aldi Stores Ltd on the business’ Pest Control Policies and Procedures.

LBWF proposed enforcement action against Aldi Stores Ltd in relation to an offence under Annex II, Chapter 1, Paragraph 1 of Regulation (EC) 852/2004 on the hygiene of foodstuffs which relates to cleaning.

SCDC blocked the enforcement action on the basis that it considered it to be inconsistent with PAA provided to Aldi Stores Ltd.

LBWF disagreed with the direction from SCDC not to take the proposed enforcement action as they disputed that PAA had been issued in relation to cleaning. They subsequently made an application to the Secretary of State (SoS) for consent to reference for a determination by the SoS.

The SoS granted the reference and determined on 20 September 2021 that the proposed enforcement action was not inconsistent with the PAA. The PAA did not relate to Annex II, Chapter 1, Paragraph 1 of Regulation (EC) 852/2004.

LBWF’s application was therefore allowed and the direction of SCDC not to enforce was revoked in accordance with the Regulatory Enforcement and Sanctions Act section 25C(4).

Summary 07: Consumer Protection from Unfair Trading Regulations 2008

• Date of determination: 23 March 2020
• Applicant (enforcing authority): Wiltshire Council (Wiltshire)
• Primary Authority: Cambridgeshire and Peterborough Trading Standards (Cambridgeshire)
• Business: Westland Horticulture Limited (Westland)

Wiltshire proposed enforcement action against Westland in relation to misleading volume labelling on its multipurpose compost contrary to the Consumer Protection from Unfair Trading Regulations 2008 (“CPUTR”).

Cambridgeshire blocked the enforcement action on the basis that it considered it to be inconsistent with Primary Authority Advice provided to Westland.

Wiltshire disagreed with the direction from Cambridgeshire not to take the proposed enforcement action and subsequently made an application to the Secretary of State (SoS) for consent to reference for a determination by the SoS.

The SoS granted the reference and determined on 23 March 2020 that the proposed enforcement action was not inconsistent with the Primary Authority Advice. The SoS revoked Cambridgeshire’s direction for Wiltshire not to take the enforcement action.

Background

Cambridgeshire issued Primary Authority Advice to Westland which concerned Westland’s compliance with the Weights and Measures Act 1985 (“WMA”) and was directed to the declared volume at the point of packing. The Primary Authority Advice does not address compliance with volume statements on packaging in relation to volume at outturn, which is the subject of Wiltshire’s proposed enforcement action.

Decision

The SoS found that the proposed enforcement action was not inconsistent with the Primary Authority Advice, as:

• The proposed enforcement action concerns non-compliance with the CPUTR in relation to misleading statements as to volume at outturn. There is no Primary Authority Advice relating to such statements as the Primary Authority Advice was directed to the accuracy of the volume declaration at the point of packing. The proposed enforcement action concerns non-compliance with the CPUTR in relation to misleading statements as to the volume at outturn and not at the point of packing.

Wiltshire’s application was therefore allowed and the direction of the Primary Authority not to enforce was revoked in accordance with RESA section 25C(4).

Summary 06: Food Imitations (Safety) Regulations 1989

• Date of determination: 13 December 2019
• Applicant (enforcing authority): London Borough of Lambeth Council (Lambeth)
• Primary Authority: Portsmouth City Council (Portsmouth)
• Business: TY UK Ltd (TY)

Lambeth proposed enforcement action for alleged breaches of the Food Imitations (Safety) Regulations 1989 in relation to Iwako branded ‘donuts & pastry’ erasers imported by TY.

Portsmouth blocked the enforcement action on the basis that it considered it to be inconsistent with its assured advice provided to TY.

Lambeth disagreed with the assertion and subsequently made an application to the Office for Product Safety and Standards for consent to reference for determination by the Secretary of State (SoS).

The reference was granted and the SoS determined on 13 December 2019 that the Primary Authority advice was incorrect and Portsmouth’s direction to Lambeth not to enforce was therefore revoked.

Background

Portsmouth had issued assured advice to TY stating that “It is established that suitable documents have been provided by TY UK limited to show compliance with The Food Imitations (Safety) Regulations 1989.” TY believed the assured advice from Portsmouth was correct.

Lambeth was of the view the documentation supplied did not show compliance with The Food Imitations (Safety) Regulations 1989.

The National Regulator was consulted and expressed the view that the assured advice from Portsmouth was not correct.

Decision

The SoS found that Portsmouth’s Primary Authority Advice was not correct The PA Advice given does not state that the products complied with the Food Imitations (Safety) Regulations 1989 nor that TY actually had a due diligence defence under the Consumer Protection Act 1987.

Lambeth’s application was therefore allowed and the direction of the Primary Authority not to enforce was revoked in accordance with RESA section 25C(4).

Summary 05: Food Safety and Hygiene (England) Regulations 2013

• Date of determination: 04 January 2019
• Applicant (enforcing authority): Dudley Metropolitan Borough Council (Dudley)
• Primary Authority: Reading Borough Council (Reading)
• Business: Stonegate Pub Company Ltd (Stonegate)

Dudley proposed enforcement action against Stonegate under The Food Safety and Hygiene (England) Regulations 2013 in relation to inadequate procedures to control pests.

Reading blocked the enforcement action on the basis that it considered it to be inconsistent with its Primary Authority advice provided to Stonegate.

Dudley disagreed with the direction from Reading not to take the proposed enforcement action and subsequently made an application to the Secretary of State (SoS) for consent to reference for a determination by the Secretary of State.

The SoS granted the reference and determined on 4 January 2019 that the proposed enforcement action was inconsistent with the Primary Authority advice provided and that the Primary Authority advice was correct. The SoS confirmed Reading’s direction for Dudley not to take the enforcement action.

Background

Reading had issued Primary Authority Advice to Stonegate that included advice that its pest control policies and procedures are adequate.

Dudley’s application relates to whether the Primary Authority Advice or guidance issued by Reading was correct. Dudley argue that Stonegate’s pest control procedures are not adequate, and that Reading’s “approval” of Stonegate’s policy on pest control was incorrect.

The National Regulator was consulted and expressed the view that the Primary Authority advice issued to Stonegate in relation to pest control policies and procedures was correct.

Decision

The SoS found that the proposed enforcement action was inconsistent with the Primary Authority Advice which was correct and properly given. The SoS confirmed the direction of the Primary Authority in accordance with paragraph 2(2)(a) of Schedule 4A to the Regulatory Enforcement and Sanctions Act 2008.

Summary 04: Food Safety and Hygiene (England) Regulations 2013

• Date of determination: 18 June 2018
• Applicant (enforcing authority): Birmingham City Council
• Primary Authority: Hertfordshire County Council
• Business: Tesco Stores Ltd.

Birmingham City Council (BCC) proposed enforcement action for alleged date marking offences under Regulation 19 of the Food Safety and Hygiene (England) Regulations 2013.

Hertfordshire County Council (HCC) blocked the proposed enforcement action on the basis that it considered it to be inconsistent with its assured advice.

BCC disagreed with HCC’s assertion and subsequently made an application to the Office for Product Safety and Standards for consent to reference for a determination by the Secretary of State (SoS).

The reference was granted and the SoS determined on 18 June 2018 that the proposed enforcement action was not inconsistent with the assured advice and HCC’s direction to BCC was therefore revoked.

Background

HCC had issued assured advice to Tesco Stores covering both its date marking and auditing procedures, and advised that both procedures, taken together, constituted ‘due diligence’ as defined in Regulation 12 of the Food Safety and Hygiene (England) Regulations 2013.

HCC argued that if BCC were to prosecute the alleged offences it would, by necessity, be challenging the due diligence assured advice and asserting that Tesco Stores should have done more, or something different, to that specified. For this reason, HCC argued that the proposed enforcement action was inconsistent with the assured advice they had issued.

Decision

The SoS formed the view that the assured advice did not constitute a due diligence defence because:

• the assured advice did not state that the audit process was sufficient on its own to meet the Regulation 12 statutory ‘due diligence’ requirement
• the advice stated that the audit process was sufficiently comprehensive to give ‘an accurate reflection of the general level of compliance’ at each audited store, and
• Tesco Stores documentation asserted that the audits only formed part of a wider series of checks and controls to ensure store compliance with a range of regulatory requirements

For these reasons the SoS determined that the proposed enforcement action was consistent with the assured advice and revoked the earlier direction, effectively allowing BCC to continue with its proposed enforcement action.

Summary 03: Health and Safety at Work Act 1974

• Date of determination: 29 May 2018
• Applicant (enforcing authority): London Borough of Tower Hamlets
• Primary authority: Royal Borough of Greenwich
• Business: Greenwich Leisure Ltd

Following the death of a swimmer at a Greenwich Leisure Ltd. (GLL) leisure facility in the London Borough of Tower Hamlets (LBTH), the incident was investigated and enforcement action proposed by LBTH for alleged offences under the Health and Safety at Work Act 1974.

Royal Borough of Greenwich (RBG), blocked the proposed enforcement action because they considered it to be inconsistent with the assured advice it had issued to GLL.

LBTH applied to the Office for Product Safety and Standards for consent to reference for a determination by the Secretary of State (SoS) who made a determination on the 29 May 2018. The SoS determined that the proposed enforcement action was not inconsistent with the Primary Authority assured advice and the direction to LBTH by RBG was consequently revoked.

Background

RBG had issued assured advice to GLL that included its Normal Operating Procedure, Health and Safety Policy and specific advice on the Reporting of Injuries, Diseases and Dangerous Occurrence Regulations 2013 (RIDDOR).

LBTH’s proposed enforcement action included alleged offences for general health and safety management, investigation of the incident and failure to formally report the incident.

RBG took the view that the proposed enforcement action was inconsistent with its assured advice and directed LBTH not to take it. LBTH consequently decided to apply for consent to reference for a determination.

Decision

For the proposed enforcement action regarding general health and safety management and RIDDOR, the SoS found that the proposed enforcement action was consistent with the assured advice that had been issued.

The SoS found that no Primary Authority Advice had been issued relating to the investigation of incidents and therefore the proposed enforcement action, by default, was consistent with assured advice.

The SoS therefore determined that the proposed enforcement action was consistent with assured advice issued and revoked the direction made by RGB. LBTH was therefore allowed to proceed with its proposed enforcement actions.

Summary 02: Health and Safety at Work Act 1974

• Date of determination: 2 August 2016
• Applicant (business): McDonald’s Restaurants Ltd.
• Enforcing authority: Thurrock Council
• Primary authority: London Borough of Barnet

McDonalds Restaurants Ltd. made an application for reference to determination following proposed enforcement action from Thurrock Council that was allowed by their Primary Authority, London Borough of Barnet (LBB). The proposed enforcement action concerned the safe movement of people and vehicles at a drive through restaurant.

LBB did not block the proposed enforcement action because it believed that it had not issued any relevant Primary Authority assured advice. However, McDonalds Restaurants Ltd. held a different view and regarded itself as in receipt of relevant Primary Authority assured advice.

The application for reference was granted and the Secretary of State determined that relevant Primary Authority assured advice had not been issued and therefore confirmed the decision of LBB to allow the proposed enforcement action.

Background

Prior to the formation of a Primary Authority partnership, McDonalds Restaurants Ltd. had shared and discussed their health and safety risk assessments with LBB. Following the formation of the partnership assured advice was issued to McDonalds Restaurants Ltd. but none specifically relating to the activity that was the subject of the proposed enforcement action and subsequent determination.

Decision

The Secretary of State found that no relevant assured advice had been issued by LBB to McDonalds Restaurants Ltd. and therefore determined that the proposed enforcement action should be allowed.

Summary 01: Local Government (Miscellaneous Provisions) Act 1976

• Date of determination: 10 February 2015
• Applicant (enforcing authority): Kingston upon Hull City Council
• Primary authority: Newcastle City Council
• Business: Greggs plc

Kingston upon Hull City Council made an application to BRDO for consent to a reference for determination in connection with advice issued by Newcastle City Council.

Section 20 of the Local Government (Miscellaneous Provisions) Act 1976 (the ‘1976 Act’) focuses on the provision of sanitary appliances in certain establishments. The key question in this case was the correct interpretation of section 20 of the 1976 Act, in particular the definition of ‘relevant place’ in section 20(9).

The Secretary of State was satisfied that the Primary Authority Advice issued by Newcastle City Council was ‘correct’ for the purposes of Schedule 4, Paragraph 1(3) of the Regulatory Enforcement and Sanctions Act 2008) because:

• the advice was soundly based upon the purpose and content of the disputed provision, and represented an informed and professional view of the law
• it was consistent with relevant case-law, and
• evidence demonstrated that since June 2011 the advice issued by Newcastle City Council has been accepted by other local authorities as reflecting a reasonable and proportionate interpretation of section 20 of the 1976 Act

The direction of the Primary Authority was therefore confirmed.

Update following Judicial Review

The decision by the Secretary of State to confirm the direction of the primary authority was overturned by the High Court following an application for a judicial review by Kingston upon Hull.

The court ruled that a Gregg’s ‘on the go’ premises with fewer than 10 customer seats would class as a ‘relevant place’ for the purposes of the Local Government Miscellaneous Provisions Act 1976 and, as such, enforcing authorities have the discretionary power to serve a notice under s.20 of the act requiring the provision of WC facilities.

However, the court also stated that a primary authority may give guidance to enforcing local authorities on the exercise of their power under s.20 of the act and that the advice should be followed unless the enforcing local authority has good reason not to.

Furthermore, the court stated that if the Primary Authority Advice is not followed by an enforcing local authority, the primary authority may exercise its powers under part 2 of RESA and block the proposed enforcement action.

Newcastle City Council has amended its Primary Authority Advice to Greggs accordingly.