Extended producer responsibility for packaging: fit and proper person status
How regulators determine fit and proper person status when you apply for approval as a compliance scheme or accreditation as a reprocessor or exporter.
Under the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024 (the regulations), UK regulators will determine your status as a fit and proper person when you apply for:
- approval as a packaging compliance scheme
- accreditation as a reprocessor or exporter
UK regulators are:
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The Environment Agency (EA) in England
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Natural Resources Wales (NRW)
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Northern Ireland Environment Agency (NIEA)
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Scottish Environment Protection Agency (SEPA)
Who can be a fit and proper person
Fit and proper person status applies to any of the following as a whole, rather than to individuals:
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a company
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a partnership
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a limited liability partnership (LLP)
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a sole trader
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an unincorporated association
How regulators determine fit and proper person status
Regulators will use the information and plans you submit as part of your application to determine your fit and proper person status. They’ll also use their discretion to consider other relevant factors relating to you and:
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employees or members of your company or partnership
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directors and managers, or those involved in day-to-day decisions
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existing and former partners
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other relevant associates
Factors may include, but are not limited to:
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compliance history
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behaviour
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relevant offences
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the nature and seriousness of non-compliance or an offence
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financial competence
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technical competence
Compliance history
Regulators will consider your compliance with:
- approval conditions or accreditation conditions under the regulations
- approval conditions or accreditation conditions under the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2007
- approval conditions or accreditation conditions under the 2007 (Northern Ireland) Regulations
- any other regulatory requirements that may apply
Unacceptable behaviour
Regulators will also look at examples of unacceptable behaviour. This could include:
- any physical act or language (written, verbal or online) that causes staff to feel intimidated, afraid, offended, threatened or abused
- failure to provide required reports, documents and information
- providing reports, documents and information that are false and misleading
- obstructive behaviour such as preventing access to a site, relevant records or operational information - either by refusing access, being absent or unable to provide the information
Relevant offences
Regulators will consider any relevant offences committed by you or someone associated with you when determining fit and proper person status.
Regulators will consider offences under the Producer Responsibility regulations and under other regulations, legislation and common law. For example:
- fraud
- theft
- abusive behaviour
- violence
- dishonesty
- offences that have caused environmental harm
If an individual has been convicted of an offence, regulators must consider the terms of the Rehabilitation of Offenders Act 1974 (ROA 1974).
Regulators may also consider other available evidence, and will use their discretion to determine fit and proper person status.
The nature and seriousness of a non-compliance or offence
Regulators will consider the nature and seriousness of any previous breaches of regulation or relevant offences as well as any mitigations.
For example:
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Regulators discover that an accredited ‘person’ has committed fraud and has provided false information in their records- this shows a lack of intent to comply with the conditions of accreditation and indicates dishonesty. Regulators would view this as a serious concern.
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Regulators are concerned about a ‘person’s’ ability to comply with conditions of accreditation. The ‘person’ takes steps to rectify their behaviour and improve operational procedures. This shows a willingness to come back into compliance and could be a mitigating factor.
Financial competence
Regulators will consider if you can meet your financial obligations as a compliance scheme or reprocessor or exporter when determining fit and proper person status. Regulators may use your operational plan to do this.
You may not be approved or accredited if you cannot show financial competence.
Technical competence
You must demonstrate you are technically competent. This will include showing you understand how to comply with the conditions of approval or accreditation. There is no legal requirement to hold a qualification, but recognised industry qualifications could be used to evidence technical competence.
Technical competence will be assessed during the application process, correspondence and compliance monitoring activities. Examples where regulators may determine you are not technically competent include:
- an application submitted for accreditation shows a fundamental misunderstanding of what constitutes packaging waste for the purpose of issuing a packaging waste recycling note (PRN)
- an exporter applies to export a material to an overseas site which would constitute an illegal export
Maintaining fit and proper person status
You must maintain fit and proper person status once you are approved or accredited.
Regulators can reassess fit and proper status at any time and may take enforcement action if you are no longer fit and proper. This may include:
- withdrawing approval
- suspending or cancelling an accreditation
Appeals
Regulators will write to you if they:
- refuse your application for approval or accreditation, or
- are taking enforcement action as you are no longer a fit and proper person
They will give reasons for their decision.
How to appeal
To appeal against a decision, contact the:
- General Regulatory Chamber of the First Tier Tribunal in England and Wales
- Scottish Government’s Planning and Environmental Appeals Division (DPEA) in Scotland
- Planning Appeals Commission in Northern Ireland