London Local Authorities Bill
OPPOSED BILL COMMITTEE
London Local Authorities Bill
Tuesday 29th March 2011
PANEL:
Brandon Lewis MP (Chair)
Tracy Crouch MP
Nic Dakin MP
Ian Mearns MP
Annette Toft (Clerk of the Committee)
IN ATTENDANCE:
Promoters of the Bill
Nathalie Lieven QC (Counsel)
Alastair Lewis (Agent for the Bill)
Emyr Thomas (Sharpe Pritchard)
Craig Wilson (Former Director of Transportation & Highways, Royal Borough of Kensington & Chelsea)
David Princep (Former Housing Officer, Environmental Health Consultant)
Kevin Thompson (Interim Head of Service, Residential Operations, Royal Borough of Kensington & Chelsea)
Patrick Rigabe (Operations Manager, Westminster City Council)
David Tolley (Environmental Health Commercial Service Manager, London Borough Tower Hamlets)
Jennifer Morris (Principal Policy Officer, Chartered Institute of Environmental Health)
Rodger Berry (Managing Director Healthmatic Ltd)
Gary Blackwell (Head of Litigation, Westminster City Council)
Petitioner 1: The British Hospitality Association
Martin Couchman (Agent for the British Hospitality Association)
John Dyson (Witness)
Petitioner 2: The British Beer & Pub Association
Dr Martin Rawlings (Agent for the British Beer & Pub Association)
John Dyson (Witness)
Additional Attendees:
Sally Randall (Deputy Director for Private Housing Management, Condition and Adaption, Department for Communities and Local Government)
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Transcribed from the Official Tape Recording
Ubiqus
Clifford’s Inn, Fetter Lane, London EC4A 1LD
Tel: +44 (0)20 7269 0370
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ORAL EVIDENCE VOLUME I
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CLERK: London Local Authorities Bill. We have two outstanding petitions from the British Hospitality Association, and from the British Beer & Pub Association.
CHAIR: Good Morning. If you bear with us just for one moment. I am Brandon Lewis, and I will be Chairing the Committee for the next couple of days. I think first of all if we just introduce ourselves.
TRACY CROUCH MP: Tracy Crouch, Conservative MP.
NIC DAKIN MP: Nick Dakin, Labour MP.
IAN MEARNS MP: Ian Mearns, Labour MP for Gateshead.
CHAIR: There are no, as far as I know, fire alarm tests today. If a fire alarm goes off, somebody looking very authoritative will point us in the right direction as quickly as we possibly can. If there are any division bells, then we will suspend the sitting for 10 minutes or so to allow for us four to go and vote, then we will reconvene. Other than that, our plan at the moment is that we will sit until 12.00; we will adjourn at 12.00 for 45 minutes for a lunch break. Then we will go from 12.45 through till 14.25. We will have a short break at 14.25, reconvening at 15.15 and we will go through 17.00. The plan for tomorrow is it will sit from 09.30 to 10.30 and then from 11.15, certainly through to at least 13.00. Then we will assess in the morning what we need to do beyond that. Okay. What I would say is if anybody is speaking during the course of the day please make sure, as you have, you have got your nameplates, and also before speaking please clearly identify yourselves for the benefit of Hansard to make sure we get the names correct. With that, I think we have covered all the housekeeping. So I will ask Counsel Promoters to give an introduction. I think we have an agreed order.
NATHALIE LIEVEN QC: Yes.
CHAIR: So over to you.
NATHALIE LIEVEN QC: Thank you Sir. My name is Nathalie Lieven QC As you say, I am Counsel for the Promoters. What I was planning to do, Sir, which I think accords with the agenda you have got, was to make a very short general opening about the Bill and our role here, then to turn to the clauses 9 and 10, which are about the food hygiene display, which are the matters that the Petitioners are here for, and then move through the rest of the agenda. So if I start with a very short general opening. I should say, I am going to do it that way because the Bill covers a variety of issues pertinent to local authorities in London, and to try to open on them all together at the start I suspect will just be very confusing.
On the generics of the Bill: this Bill is promoted by Westminster City Council but acting on behalf of all 33 London local authorities. In accordance with standing orders, each local authority has passed the appropriate resolution, so the niceties, the formalities have been complied with. As the Committee may know, this type of Bill is now fairly standard. I am told this is the 10th such Bill relating to London local authority powers since the demise of the GLC. It covers a number of issues which are particularly germane to London, and obviously the scope of the Bill is only London, but of course those issues do also arise outside London, but the powers only extend to London. It may be useful for the Committee to know that, quite often in the past with these Bills, clauses which have been promoted through London Local Authority Bills have then been picked up in national Bills later; so the Promoters view themselves as a bit of a pathfinder in certain respects. The important point at this stage is for the Committee to appreciate there is nothing unusual or odd about having London-specific powers such as are contained in the Bill.
The sequence we are going to follow is to deal first with the opposed clauses. That is where there are still petitions outstanding, and that is clauses 9 and 10 on food hygiene displays. Then to deal with the two parts of the Bill where the Government has reported against, that is parts 4 and 5, and in respect of both the opposed clauses and the clauses that the Government has reported against we have witnesses ready to give evidence. And then to deal lastly with unopposed clauses, because my understanding is that the convention in this House is that this Committee deals with opposed and unopposed clauses. We will come, if we may, to the unopposed clauses later, and we may seek some guidance from the Committee as to how you want us to deal with that.
I should just say to those of the Committee who have looked at their bundle of exhibits, until about 6.30 last night, clause 8 was also opposed. So we have got exhibits in the bundle that relate to clause 8, but the theatres withdrew their petition late last night, so that is now an unopposed clause. Unless any members of the Committee have any questions about the generalities at this stage, I was going to move on to clauses 9 and 10. Happy to move on?
CHAIR: Carry on, thank you.
NATHALIE LIEVEN QC: Thank you, Sir. Now clauses 9 and 10, the Committee should have before you what is called the Filled Bill, which has all the relevant provisions in it. I do not intend to be intensely legalistic about this and take the Committee through the details of the provisions at this stage. What I intend to do is to explain what the clauses are doing and then the witnesses can explain why.
Clauses 9 and 10 are about the display of food hygiene documents, and the provision is all about placing food hygiene ratings at the entrances to premises which sell food. It is important to establish at the start that it is not just restaurants, it is also takeaways or shops selling food. The Committee members may have become familiar with this type of scheme because a lot of local authorities around the country, including in London, are running food hygiene schemes where the ratings or the scores appear near the entrance to the doors – many in London, many elsewhere, but often with different names in different areas. The aim is to provide customers and consumers with information about food hygiene conditions before they go into the relevant premises.
If I can encapsulate the benefits of this clause in two thoughts, the first one is it gives consumers information about the place they are going to go and buy food in before they go in, so they can make informed choices. Secondly, it helps to raise food hygiene standards in those premises, because if restaurateurs, shops, shopkeepers, whatever, have to display their food hygiene ratings, then the evidence suggests that that will encourage them to improve their food hygiene standards. This is all about encouraging higher standards but in a very light-touch way. It is not about heavy-handed local authority regulation, closing down premises, and serving notices. It is about helping to use, as it were, the market to encourage higher standards, and it is all about allowing customers to easily know about hygiene standards. Not many of us are going to go on the web, find the relevant reports, do that kind of investigation before you go into a restaurant. This is about very quick and easy information before customers make choices.
As I have said, a number of local authorities around the country, including in London, already have these kind of schemes operating. The difficulty at the moment is that they are all non-statutory, which means that it is not mandatory to display the ratings. What that means, as the witnesses will tell you, is that the premises which are doing well put up their ratings because they want everybody to know, but the premises that have done badly simply do not display, so the customers never know. The point of this clause is that unless you make the schemes mandatory, the schemes are only achieving a small amount of what they could achieve. Now it is relevant for the Committee to know, because it is relevant to the points made by the Petitioners, that this clause was amended in the House of Lords because at the moment, as I have said, different local authorities have different schemes, and the House of Lords Committee were very concerned that the mandatory clause should only apply to one scheme and that should be the scheme that, at the time when we were in the House of Lords, which was quite a long time ago, was the scheme being brought forward by the Food Standards Agency, which I am going to call the FSA, which I know may be confusing for some members, but in this context FSA means Food Standards Agency. The Food Standards Agency have now brought forward their scheme, and the effect of the clause is that it can – the mandatory provision in the clause can only apply to those local authorities who have adopted the FSA scheme. We agreed to that amendment in the House of Lords, and that is what is being brought forward now. The position that this Committee has to consider is mandatory provisions only for those London local authorities who adopt the FSA scheme.
It is absolutely right to say, as the witnesses will explain to you, that at the moment many London local authorities have not adopted the FSA scheme. It is very new, it has only been in effect for a couple of months, and there is a London scheme that many local authorities in London have been using and at the moment lots have not transferred over. The Promoters firmly believe that once these clauses become law and the benefits of the mandatory provisions are clear, then what you will have is many other London local authorities transferring over to the FSA scheme so they can take the benefits of the mandatory provisions.
The final thing I should just touch on is: why London? In essence there are two reasons. The first is that London is, self-evidently, the capital city. It has the most food premises by a very long way, and it is the Promoters’ view that this is an area where it is appropriate for London to lead the way. I think we and the FSA hope that eventually there will be a mandatory scheme across the country, but it is quite appropriate for London to start. The second driving force here is the Olympics. There is a very strong expectation that there will be a strong influx of tourists next year, and the Promoters think it is particularly important that in the light of the Olympics everything possible is done to raise food hygiene standards.
The last thing I just want to say is we are going to call two witnesses on these clauses. The first is Ms Jenny Morris, who is the Principal Policy Officer on Food Matters at the Chartered Institute of Environmental Health. She is going to give evidence about the benefits of compulsory display for food hygiene, and she can talk about examples in other countries where mandatory display has been adopted and the evidence of how much that has improved standards. Secondly, Mr David Tolley from the London Borough of Tower Hamlets, who is the Environmental Health Commercial Services Manager, who can talk more specifically about the scheme and about how it works in environmental health terms in Tower Hamlets. I am going to call Ms Morris first.
So If I stop there and ask if the Committee has got any questions for me at this stage, otherwise I will call Ms Morris.
CHAIR: No questions yet, so please go ahead with Ms Morris.
NATHALIE LIEVEN QC: Great, thank you, Sir. Ms Morris do you want – I think you go there. Yes, you have to trail – do not trip all over anything.
CHAIR: Health and safety would not be…
JENNIFER MORRIS: Good Morning.
NATHALIE LIEVEN QC: Ms Morris, can I start by introducing you. You are a Charted Environmental Health Practitioner and a fellow of the Charted Institute of Environmental Health. Is that right?
JENNIFER MORRIS: That is correct.
NATHALIE LIEVEN QC: And you have got a number of years of working in the public sector in food-related issues, and your position now is the Principal Policy Officer leading on Food Matters at the Charted Institute of Environmental Health.
JENNIFER MORRIS: That is correct.
NATHALIE LIEVEN QC: Can you just explain to the Committee what the Charted Institute of Environmental Health is?
JENNIFER MORRIS: The Chartered Institute of Health is quite a complicated body, but in essence we are set up as a charity with the aim of improving effective public health and environmental health.
NATHALIE LIEVEN QC: Thank you.
JENNIFER MORRIS: We are also a professional body and we have something in excess of 10,000 members, many of whom work in the public sector for local authorities.
NATHALIE LIEVEN QC: Can you just explain why the Institute is giving evidence today?
JENNIFER MORRIS: The Institute is giving evidence because of its intention to improve effective environmental health.
NATHALIE LIEVEN QC: Now, do you want to just explain a little bit about compulsory display of food hygiene information and why you are supporting compulsory display?
JENNIFER MORRIS: The CIEH – if you excuse me, I will call it that because Chartered Institute of Environmental Health is a rather complicated term – has believed that a food hygiene rating scheme has a significant potential to inform consumers, to allow them to make an informed choice about the hygiene standards of a business that they are entering, because for most consumers you have no idea what the hygiene standards are, and how can you decide without knowing that? So the inspectors have that information. We believe it is right that consumers should have that information and be able to make choices based on that information. As a consequence of that, what then happens is that businesses improve their standards. Not only is that good in public health terms but it is also good for business because it provides a level playing field. It recognises the good businesses and identifies the bad businesses.
NATHALIE LIEVEN QC: And why mandatory?
JENNIFER MORRIS: If you do not have compulsory display, the evidence shows that only the good will display. I think that is a common sense view anyway. But that disadvantages consumers because they won't know where the problems are, and it disadvantages business. So to be fair to both consumers and business, we need a compulsory display system.
NATHALIE LIEVEN QC: This is touching on things I touched on in the opening, but how relevant, as far as the Institute is concerned, is the fact that London is hosting the Olympics next year?
JENNIFER MORRIS: The Olympics is the opportunity for the whole country to show itself at its best. London will be the main focus because that is where the venues are. It will be hugely damaging to the reputation of the food industry and to the reputation of this country if things go wrong. If we are open and transparent about what is good and we seek to drive standards up in advance, that is seeking to be the best that we can.
NATHALIE LIEVEN QC: Thank you. Now I know Mr Tolley is going to talk more about the specifics of the scheme, but can you just give a very short overview of how the scheme works with the mandatory provision?
JENNIFER MORRIS: The scheme is based on the information that the inspectors collect during their hygiene visits. There is a rating system that results in a rating between zero and five, and there is explanation about that for consumers to tell them whether it is good or bad. In effect, what the display seeks to do is to take the complicated information that the inspectors gather during inspection and to make it in a style that consumers will understand. So for instance a zero is it has big problems. It is fair to say, of course, that the inspectors will be dealing with that and if there is an absolute public health risk, that business will be closed. Five of course is the top, which means that the business is good, and you will have the range in between.
NATHALIE LIEVEN QC: Thank you. Now can we turn to your experience of schemes elsewhere in the world and try to give the Committee some sense of how other schemes work? You might want to point to some of your exhibits at this point.
JENNIFER MORRIS: Thank you.
NATHALIE LIEVEN QC: I think we have got a Danish exhibit as the first one of yours.
JENNIFER MORRIS: The Charted Institute of Environmental Health is interested in schemes that improve environmental health standards. We have seen for a number of years schemes operating in other countries, where the evidence of improvement of standards has been very good. So going back a number of years, we have lobbied in this country for a national scheme so that we can also benefit from these standards. As part of doing that, we have looked at the operation of schemes in other counties. In the evidence that I have provided you will see a number quoted.
Probably the nearest to home is the one that operates in Denmark, and you should have a picture of the smiley, which is the symbol that the Danish food authority have chosen to inform consumers. It follows the same system that we have in this country, which is that the inspectors visit the premises; they had detailed information which is then made simpler for consumers through the display of a smiley. They, like the UK, have a graded scheme. They have smileys; the one that you have here is a happy smiley, and that means that the inspector was very happy with the standards in the business. If the inspector is not happy, you then get a very sad smiley. So again we have this range. Denmark started out with the view that compulsory display was essential if consumers were to fully understand the standards of hygiene, the good businesses were to be recognised and the bad businesses were to be pointed out. They started their scheme in 2001.
In 2008 they changed the display because what they found was that, although they had always required mandatory display, some businesses were bending the rules and hiding the smileys so the consumer could not see. All the evaluation that they had done over time had said from consumers, "We need to know what that information is," and businesses said, "It needs to be clear to give us the level playing field." So in 2008 the Danish changed their scheme to make it not only mandatory display but to make it essential that it was on the front of the business. They also, because they have internet display – as we have – as a back up system, required every business who had a website to make a link from their home page to their smiley score.
The evaluation shows, even from 2008, that now 100% of consumers are fully aware of the scheme and that a large percentage of those will not chose a business that has a poor smiley. So the Danish scheme is the closest to us. It is fair to say that a number of other European states are also considering these schemes because they also see the benefits. Currently Germany is considering a scheme, Finland is piloting a scheme, and Norway and Belgium are also trialling. So they have been convinced by the evidence that these schemes work. They also are convinced that compulsory display makes the difference.
NATHALIE LIEVEN QC: Do they have mandatory schemes in North America as well?
JENNIFER MORRIS: When we go to North America, yes they do. North America has different arrangements. Certainly, America, the United States, is on a state system, so there are different arrangements and not every state will be the same. But there are a number there that have mandatory display. The ones that I have quoted in the evidence are particularly Los Angeles, because not only have they done evaluation that shows that standards improved but they actually managed to also show that through this they have reduced foodborne illness. If we go to Canada, in Toronto, we have another hygiene rating scheme which also requires mandatory display. They have found that the public are very keen on this; the majority of businesses, you would say the good businesses, are very keen on this, and that mandatory display has really made this scheme transparent and people know about it. Therefore it works in the best way that it can.
NATHALIE LIEVEN QC: And Ms Morris, is there also any evidence, say from the Toronto scheme, that it improves food hygiene standards? So it is not just good for consumers in the sense that they have more information.
JENNIFER MORRIS: Indeed there is. If you look at the scheme when it was being considered, which was in the year 2000 – the scheme was launched in 2001 –one of the drivers for launching it was that only 50% of businesses were compliant with the legislation, which as a responsible food authority it was believed this was not good enough and it was not protecting public health adequately. Even so, the scheme, after being introduced in 2001/2002, when compliance was measured in 2010 that level had gone up to 90%, so that is a 40% improvement in compliance, which I think is very good evidence that the scheme works.
NATHALIE LIEVEN QC: Thank you. Now turning to London, can you just explain what the Institute’s perception is of what is happening in London at the moment under the purely voluntary scheme?
JENNIFER MORRIS: Under the voluntary scheme what we see at the moment is the good businesses do display, which you would expect them to do. However, there is very good evidence that the bad businesses are not displaying and that disadvantages businesses and disadvantages consumers. What we have also seen from the London scheme is that, over the period of time it has been operating, hygiene standards have improved. They have certainly improved in the top levels and the top scores. Where there is not so much improvement is at the bottom, and actually it is the bottom that we are really concerned about. The inspectors will be focusing on them, but we also need consumers to be aware of those bad businesses. If we do not have that display, then they are not easily going to be able to do so, because although the information is available on the internet, it is dependant on that consumer having access to the internet, planning carefully where they are going to eat, and in fact I would say that many of us do not make that degree of planning before we go out to eat – it is often impulsive. Even more, when we start thinking about the Olympics and visitors, they are not going to know about those schemes or where to go to find the internet information. They really need to display on the front of the business so they can see what the standards of hygiene are and consequently make informed decisions.
NATHALIE LIEVEN QC: Thank you. I think that explains the position very clearly. Just finally, in terms of the UK, is there any evidence of benefits of this kind of scheme and what the consumer response to it is?
JENNIFER MORRIS: There has recently been a report issued in Wales. You may well know that in 2005 Wales had a large out break of E. coli 0157 which affected school children, and tragically one boy died. Now the consumer organisations have been watching the improvements that have been made since, because they want to make sure that consumers are adequately protected. They very recently issued an update on their views of improvement. They recognised that food hygiene rating schemes are a great tool to drive up standards, and they welcome the fact that Wales is adopting the FSA scheme. But, and they have a caveat to this, they do not believe that it will achieve the greatest effectiveness unless display is compulsory. One of the key recommendations from their report is that the Welsh Assembly/Government enacts legislation to make display compulsory in Wales.
NATHALIE LIEVEN QC: Thank you. Is there anything else you wanted to cover at this stage, Ms Morris?
JENNIFER MORRIS: I think I have covered the main points of the evidence that I wished to give.
NATHALIE LIEVEN QC: So, Sir, I will sit down and leave either the Committee or the Petitioners to question.
CHAIR: I think the next stage is any Petitioners have any desire to question? Mr Couchman.
MARTIN COUCHMAN: Thank you, Sir. Perhaps I should introduce myself first.
CHAIR: Please.
MARTIN COUCHMAN: My name is Martin Couchman; I am Deputy Chief Executive of the British Hospitality Association, and as our petition notes, we are the representative body for the hotel, restaurant, and catering industry in Great Britain. Our members range from large hotels and restaurants through to very small operations and micro-businesses, and almost without exception they serve food and are therefore subject to food hygiene inspections. As an Association we would very much agree with everything that has been said already about wanting to support good hygiene and to make sure that law and good practice is drawn to everyone’s attention, and these who do not perform well if necessary are closed. So let us be clear about that particular point.
Ms Morris, perhaps I could begin by referring you to the bundle of papers we put in. I do not know if there is a set of those in front of you. I am sorry that I am speaking to your back, but I do not think there is any way of logistically avoiding that.
JENNIFER MORRIS: I do not know that I have the papers, I am afraid.
CHAIR: Have we got a spare set we can pass over to Ms Morris?
MARTIN COUCHMAN: Can I say that I think you will be very familiar with most of the papers; they are just really trying to reinforce the position. If I might start off by referring you to page 18 in the document, which is the very last page. It just happens to be an extract from what is called the red book, which is the budget last week, and it just makes the point, and I have marked it – I have marked two things – that the Government’s intention is to implement the proposals of Lord Young’s review of health and safety. I think you will be familiar with that. Is that correct?
JENNIFER MORRIS: That is correct.
MARTIN COUCHMAN: And if I refer you to page four of the papers, and you will see that page four is simply the cover page to Lord Young’s report to the Prime Minister from last October, and then the second page, marked as five, which is an extract from within the document, it gives Lord Young’s recommendations, which, as I have just said, have been accepted Government. I wonder if I might just read that and then get your understanding of that. It says, "To encourage the voluntary display of ratings, review this after 12 months, and if necessary make display compulsory" – that would be display, I imagine, across the UK or certainly across England – "particularly for those businesses that fail to achieve a generally satisfactory rating." Is that your understanding of the position with Lord Young’s report?
JENNIFER MORRIS: That is my understanding of the position of Lord Young’s report.
MARTIN COUCHMAN: And if we turn to page one. I am sorry to be leaping about; it is just a question of getting this in the right order. You will see that there is a letter from the Food Standards Agency to our Association, and there is an identical letter which I think Mr Lewis for the Promoters received at the same time, dated 24th March. The first main paragraph from the Food Standards Agency, which of course is the public body responsible for this area, says about halfway down, if I may read: "In essence the FSA is responsible of implementing the recommendations on the FHRS." To clarify, that is the Food Hygiene Rating Scheme. Is that correct?
JENNIFER MORRIS: That is correct.
MARTIN COUCHMAN: There is reference, and I will come back to that, to Scores on the Doors, but for the moment we are talking about the Food Hygiene Rating Scheme, which is the national scheme approved by the Food Standards Agency. Is that correct?
JENNIFER MORRIS: That is correct
MARTIN COUCHMAN: Thank you. So it refers to "the FHRS recommendations made by Lord Young in his report and is pursing a programme of work to implement these. The recommendations include: mandatory local authority participation in the FHRS and a review of the voluntary approach to the display of ratings at premises in April 2012, with a view to introducing mandatory display if necessary." It then goes on to say, "It is worth noticing, however, that the clauses in the London Local Authorities Bill as currently drafted are different to those envisaged by the Agency for implementing Lord Young’s recommendations." Can I just clarify with you that your organisation, the Institute, supports compulsory grading, even though it has not yet been looked at by the Food Standards Agency?
JENNIFER MORRIS: That is correct, we do, and I have given evidence as to why we do. I would also like to say that, as Counsel has commented, there is a special case for London to seek this change at this period of time.
MARTIN COUCHMAN: Now you said earlier that businesses were displaying the marks, the grading, in London. Is that correct?
JENNIFER MORRIS: Some businesses are displaying; that is correct.
MARTIN COUCHMAN: Yes. Do you have any idea what percentage it would be from the different Boroughs?
JENNIFER MORRIS: It is difficult to say that. I do not have that information. What I can tell you is that it does vary and it is linked to the standards within the Borough.
MARTIN COUCHMAN: Thank you. How many of the London Boroughs are operating the scheme that we are talking about, which is the Food Hygiene Rating Scheme approved by the Food Standards Agency?
JENNIFER MORRIS: As Counsel has said, the Food Standards Agency only launched its schemes in November last year, so we are in very early days. Mr Tolley, who will give evidence to you after me, will tell you about Tower Hamlets’ preparations. I am led to understand that, by June, the Food Standards Agency believes seven London Boroughs will be operating the scheme. It is the view of the Promoters that we are in the early days – that if there is compulsory display then this will incentivise more London Boroughs to move to the national scheme. As has already been pointed out by Counsel, that is a requirement within the Bill if mandatory display is to be used.
MARTIN COUCHMAN: So the position at the moment, just to clarify – please correct me if this is wrong – is that most London Boroughs have got schemes, and most of them, all but the four – and indeed they are mentioned in the Food Standards Agency report page two, down at the bottom of the section, one paragraph up from the bottom: "The local authorities already committed to the scheme include the London Boroughs of Sutton, Croydon, Barking and Dagenham, and Tower Hamlets." We have evidence from Tower Hamlets, so no doubt we can check that point. But does that mean that the other boroughs are not operating this scheme, they are operating a different scheme?
JENNIFER MORRIS: At this point in time, the other Boroughs are operating a range of different schemes. Some the London scheme, but there are some that operate different schemes. Where they are, as I understand it, is they are considering the position. As I said earlier, the FSA scheme launched nationally only in November, so it is yet early days. It is our belief that compulsory display will provide an incentive for more to change.
MARTIN COUCHMAN: Counsel said earlier that it was the Promoters belief that local authorities in London not currently operating the Food Hygiene Rating Scheme but currently operating what we have traditionally called Scores on the Doors schemes with star ratings would switch across. Is that your belief also – that they will switch across?
JENNIFER MORRIS: It is my hope. As I have said, we believe that compulsory display will be a significant incentive to do so.
MARTIN COUCHMAN: I wonder then if I might refer to, and I think this will be final point before I ask if the Committee is willing for Mr Rawlings to also speak, to turn to page 13. Perhaps I should send you to page 11, which is the beginning of the relevant document. This is a document issued – it is an organisation called ALEHM and it is the Association of London Environmental Health Managers. Would I be correct in saying that those are the Chief Environmental Health Officers for the 33 London Boroughs who make up that organisation?
JENNIFER MORRIS: I cannot tell you whether all the London Boroughs are involved. You are right to say that it is at a senior level of environmental health.
MARTIN COUCHMAN: Thank you very much. Page 11 is just a cover note to the documents that were produced for an event just over a year ago, January 2010, but then this has been a rather slow moving business altogether. Can I refer you to page 13, which was a resolution passed, as I understand it and no doubt this can be picked up on, on the 19th January 2010? If we start, it says that "ALEHM believes in the principle of a single national scheme for Scores on the Doors". Well we know that the name has changed, but putting that to one side, that would be your belief as well – that a single national scheme is appropriate?
JENNIFER MORRIS: I believe there is significant benefit in a single national scheme.
MARTIN COUCHMAN: Thank you. The second paragraph starts, "The Association is disappointed with the decisions taken by the FSA executive." We can refer to those later, but I believe those were the board decisions taken in December 2008, if I remember correctly, in relation to how many points there were to be in the scheme. Is that correct?
JENNIFER MORRIS: I believe it is more complicated than that. The board took a strategy decision; the officers worked with businesses, local authorities and consumers to come to a consensus view about what the scheme should be.
MARTIN COUCHMAN: It then goes on at the end, in the final paragraph, and I would just like to read that out and then perhaps get your views on that. "These concerns lead us to believe that it would be disadvantageous to transfer from the existing London scheme" – let’s call that Scores on the Doors – "to the proposed FSA scheme, Food Hygiene Rating Scheme, at this time. We believe it is important for consumers and businesses that a consistent scheme is in operation across London and resolve that the existing London schemes will continue to operate until the FSA scheme has been launched and evaluated. ALEHM will reconsider a transfer to the national scheme in the light of such evaluation." Does that not suggest that, at the moment, subject to further evaluation, that most of the Boroughs, or most of the Boroughs represented on this scheme, are not willing to change to the national scheme and therefore this Committee is being asked to agree to a compulsory scheme that will only apply to a limited number of Boroughs, and not to the whole of London?
JENNIFER MORRIS: It is fair to say that this is a resolution that has been supported by a number of London Boroughs. As I have said to the Committee before, it is my understanding that the FSA believe at least seven Boroughs will be transferring by June. What this scheme is about is about considering what is best for the London Borough in terms of public protection and use of money. It is very much our view that compulsory display is one of the mechanisms to move beyond this resolution. This resolution is not set in stone. It is up for each London Borough to make its own decision. As you can see even from the evidence here, a number of London Boroughs are already moving against this resolution.
MARTIN COUCHMAN: Thank you.
CHAIR: Yes, Dr Rawlings.
DR MARTIN RAWLINGS: Martin Rawlings from the British Beer & Pub Association. If I could just ask follow-up questions, if I may. I think the witness has made it clear that they – so I will use the abbreviation the CIEH – support an approach that has been developed by the FSA, but I am not quite clear where they come from at the moment. So I would just like to ask them, would you agree that the FSA scheme has been developed after extensive consultation with all the shareholders in this, including the industry, the consumers and the EHO, and indeed I think the Institute has been involved in that, and Roy Mason, who gave evidence to this Committee in the Lords some years ago, was also a member of that examining body, and that that presents a consensus and should be encouraged, surely?
JENNIFER MORRIS: I would agree with that. I would also say that I am a member of the UK National Steering Group for Food Hygiene Rating Schemes representing the CIEH.
DR MARTIN RAWLINGS: It seems to me that you are arguing here for compulsion and a national scheme, but do not really make out the case for London. I may put it to you that the idea of the Olympics is somewhat post-justification, because I do not think we had actually won the Olympics when this proposal originally came before. I stand to be corrected on that, but it is certainly a long time ago.
JENNIFER MORRIS: I am sorry; I am not quite clear what the question is there.
DR MARTIN RAWLINGS: Well one of the reasons you put forward for justifying a compulsion on London Boroughs alone is the London Olympics, but that is not a justification that was brought forward when this Bill was first proposed. Is that not the case?
JENNIFER MORRIS: I really cannot comment on that. I am not in a position to do so. I think what you have, the evidence that I have given, is a reason why this should go forward and make London a special case.
DR MARTIN RAWLINGS: Could I just move on? You talked earlier about whether companies display their scores and clearly the evidence is not there yet. The scheme, the national scheme, only started in October. But my understanding is the difference between the London scheme of Scores on the Doors and the national scheme is generally that you will score higher under the FSA scheme than the Scores on the Doors. So therefore won't the experience of those companies that actually display scores be different once the national scheme rolls out properly? Given that it has only been running four/five months now, isn’t it a little premature to judge the national scheme?
JENNIFER MORRIS: The evidence from London shows that the businesses that are not displaying are those at the bottom where there is the greatest potential problem for public health. It is right to say that the FSA will upgrade, but the FSA scheme could not and would not accept upgrading businesses that are performing badly. So what we are really about here is making sure that the good businesses are fully recognised and the bad businesses are exposed.
DR MARTIN RAWLINGS: Perhaps just one last question, I think. Given the position of the London Boroughs, would you not agree it is better for them to argue the case with the FSA, given that it will be reviewed for compulsion in that scheme, rather than introduce a scheme in London, which you have already identified will actually only apply to a few London Boroughs in any event.
JENNIFER MORRIS: I think it is premature to say it will only apply to a few London Boroughs. The point has been made, this scheme has not been operating for long and already we see a transfer. It is also worth saying that the London scheme has been operating for a long time and so a number of issues have been identified, and display has been identified as a problem. You might say that using the Olympics in opportunistic, but I think the whole country is very clear that the Olympics puts the spotlight of the world on this country and we should be doing the best that we can to be the best that we can.
CHAIR: Okay, thank you. I will just see if any of the Committee members have any questions.
IAN MEARNS MP: I have got a number of questions. In her opening submission, Ms Lieven pointed out that all the local authorities in London have passed the pertinent Resolution in regards to supporting this Bill. So is there a difference of opinion between the Local Authority Health Managers and their own Councils in terms of supporting the Bill?
JENNIFER MORRIS: I am afraid I really cannot answer that, but I think the support resolution shows that the London local authorities believe that this is a benefit and that they would wish to take advantage of it.
IAN MEARNS MP: I mean, being an ex-local authority Councillor in the North-East of England, I have a particular view of how the world works, and I would have thought that a Resolution passed by the whole local authority would take precedence over the view of one individual manager.
JENNIFER MORRIS: You would think so, but I really cannot comment on behalf of all the London local authorities.
NATHALIE LIEVEN QC: It may be that I am in a better position to answer that question, but I do not want to intervene. It is entirely up to you, Chair, as to whether you want me to answer it.
CHAIR: I am quite happy for that if Mr Mearns is happy. Yes, please do.
NATHALIE LIEVEN QC: The position is that the resolutions to promote the Bill are passed when the Bill was first put in.
IAN MEARNS MP: Right.
NATHALIE LIEVEN QC: When the Bill was first put in, the FSA scheme, I think it would be fair to say, was well away, and it was the original clauses in the Bill that would have given compulsory powers to whatever scheme the individual London local authority wanted to adopt. So to some degree the issue, to be fair, that the Petitioners are now raising about the relationship between the FSA scheme and different London local authorities was not one that I think would have been in the contemplation of the members when they passed that original resolution. I think it is only fair to explain that because the Bill has taken a long time to get through Parliament, Sir, so things have changed as time has progressed.
CHAIR: Thank you very much.
IAN MEARNS MP: The ALEHM resolution would favour a national scheme, but a national scheme does not currently exist apart from the voluntary scheme that the FSA promotes. Is that correct?
JENNIFER MORRIS: That is correct.
IAN MEARNS MP: Now in terms of current levels of compliance in London, I think you mentioned a statistic of in 2000 only 50% of outlets were compliant but by 2010 90% were complaint. Was that correct?
JENNIFER MORRIS: No, I am afraid it was not. It was in relation to the Canadian scheme.
IAN MEARNS MP: Oh, it was the Canadian scheme. I beg your pardon. I suppose it is crucial in terms of the number of premises that we believe not to be complaint at the moment. I mean, is it fairly widespread in terms of that lack of compliance with the voluntary schemes?
JENNIFER MORRIS: I suppose it is fair to say that the majority of food businesses behave well. I would not wish to give any other impression. However, there are a number that can damage the whole industry. With regard to your question, I think it will vary across the Boroughs. Probably where businesses are struggling more, then there is greater likelihood of trying to cut corners. That will vary depending on the economic situations in the different areas.
IAN MEARNS MP: Can I take you back to the opening part of your submission in terms of how the rating systems works? We are talking about a nought to five rating system; five is good and nil is the business is rotten and should be closed down, I think were the words that you used. In terms of coming to a view on that, is there any sort of level of subjectivity on the behalf of the inspector involved in the inspection?
JENNIFER MORRIS: It has been mentioned that there is a consensus view – between the inspectors, business and the consumers – reached. This took a very long time, because on the one hand what you need to be careful of is that you are adequately protecting consumers, but on the other hand you must not be disadvantaging businesses who are performing well. So a large number of safeguards have been built in and consistency of inspection is a key element. There are significant instructions to the inspectors about how to score, and the Food Standards Agency has recently rolled out a training scheme across the whole country for inspectors to encourage and improve consistency.
IAN MEARNS MP: One last question, if you do not mind, Chair. In your role with the Chartered Institute for Health, have you any access to information across London about how many cases of food poisoning are reported to health service authorities across the piece?
JENNIFER MORRIS: It is possible to access that. It is complicated because it is not always broken down in the way that you want. The biggest problem with the food poisoning data is it is almost impossible to know where that person got the illness from. So what we do not even know is whether it was from a commercial business or unfortunately it happened in the home or with family and friends.
IAN MEARNS MP: Thank you very much for that.
CHAIR: Tracy Crouch.
TRACY CROUCH MP: Thank you very much, Mr Chairman. Could you start by saying how would you rate environmental health standards across the UK and specifically in London at the moment in general terms?
JENNIFER MORRIS: For all of environmental health?
TRACY CROUCH MP: Yes, absolutely. You know, from the Chartered Institute’s perspective are we good, fair, satisfactory?
JENNIFER MORRIS: As a professional body, we are all about educating people to be competent to perform in environmental health terms. They have to go through a university degree, they have to go through professional exams, they have to be registered by us, and we have a CPD scheme. What we are all about is making sure that the professionals are competent for the job they do. On that basis I would expect that you would have a pretty even picture of environmental health practice across the country.
TRACY CROUCH MP: I wondered if you could just explain to me what sort of documentation is a restaurant already required to display within the restaurant, not necessarily on the door.
JENNIFER MORRIS: There is no requirement with regard to display on food hygiene rating schemes. It is voluntary.
TRACY CROUCH MP: As somebody who regularly eats in restaurants, and you might not believe that from my svelte figure, there is a lot of clutter on doors as you walk through a restaurant, into a restaurant. What evidence do you have that actually something that is displayed on a door affects a consumer’s decision on whether they continue to walk through that door?
JENNIFER MORRIS: I would refer to the Danish scheme. I actually mentioned to the Committee that from the outset Denmark required the display but it did find that it was not always visible to consumers, so they required it to be made visible to consumers, not hidden away under things.
TRACY CROUCH MP: If I may, what else in Denmark is required to be on the front of a door, because actually in the UK there is already quite a lot that is required to be on the front of a restaurant door? So, you know, if nothing else is required in Denmark and the only thing that you see as you walk through a door is a smiley or a sad face, then I could see that it would have a great impact. In the UK, with everything else that is already required to be on the front of a door, how would it actually make an impact? How would a consumer notice?
JENNIFER MORRIS: The only way I can answer that is based on my visits to Denmark as a visitor and a consumer. I would say that on the restaurants that I have been to there are a number of things displayed. What I cannot tell you is how it compares to the UK system. I think it is a key point here that it must be made obvious to consumers and it must be made visible to consumers, because you are quite right – if it is lost in a whole clutter, then its effectiveness is compromised.
TRACY CROUCH MP: Just sticking with the Danish scheme, how often do the inspections take place? How often does a restaurant get to reassess its smiley or non-smiley?
JENNIFER MORRIS: Denmark is risk based, as is the UK. However, the way that the risk is assessed and the resource that is put into the Danish system is different to the UK. I cannot give you exact details, but I would say that my understanding is Danish restaurants are probably visited more frequently than British restaurants.
TRACY CROUCH MP: Could you give any timeline as to what that turnaround would be? Would it be a year, 18 months, two years?
JENNIFER MORRIS: I am afraid I cannot give you that information.
TRACY CROUCH MP: And my final question for the moment, Mr Chairman, do you know how many major cities across the world have compulsory schemes already? I know you mentioned obviously Toronto and LA, two cities I know well and have eaten in, and again I have to say I did not particularly notice their particular display schemes. But what about New York City, or Hamburg, closer to home?
JENNIFER MORRIS: New York does have a requirement for display, and it is quite interesting that London is of course twinned with New York. So there is a direct analogy between size of city, type of city. Germany is considering. Germany also operates under a state system, therefore getting a consensus across all the states is probably going to take a while. What I can tell you is that it is the intention of Berlin to begin a display scheme, I believe, in the summer of this year.
TRACY CROUCH MP: Thank you.
CHAIR: Nick Dakin.
NIC DAKIN MP: Thank you Chair. Just pursing a little bit further the question that was raised earlier. If a business gets a poor rating, how quickly can it have that rating revisited?
JENNIFER MORRIS: This was subject of significant debate in the operation, or the design, of the Food Standards Agency’s scheme. There were two problems around this. One, a business must not be able to buy a good score. In other words, a business should not be able to perform badly until the inspector comes along and then say, "Oh, I am very sorry, I want to improve." That is unfair to consumers and it is unfair to other businesses. However, it is also worth recognising that, if a business has been trying and has invested a lot of time and effort in improving standards, which is what we all want, that should be recognised. Therefore, there is with the Food Standards Agency’s scheme a requirement for a revisit. In order to avoid this "buy your score" there are terms around that which would mean that a business could wait for up to six months before it is revisited and rescored. So again the intention has been to build in the checks and balances around protecting public health and being fair to businesses that are good and businesses that are trying to be better.
NIC DAKIN MP: And if a business gets a judgment that it feels is not a reasonable judgment, is there any recourse to some sort of appeal process?
JENNIFER MORRIS: There is an appeal process built into it, yes.
NIC DAKIN MP: What you seem to be describing is a scheme that is compulsory if the London Boroughs choose to join it, but in a sense if it was agreed to be mandatory it would remain optional for London Boroughs to either choose to stick with the current voluntary arrangements they have got or to opt in to the compulsory Food Standards Agency’s scheme within this Bill. Am I understanding that correctly?
JENNIFER MORRIS: In the short term you are correct. The longer term, coming out of Lord Young’s report, is that there should be a mandatory food hygiene rating scheme for the country. For a very great number of reasons, the Food Standards Agency does not want to force people to go, because I think it will take a long time and it is much better if there are incentives to nudge local authorities to move to the FSA scheme. And as an organisation, the CIEH believe that if there is compulsory display offered to London, that will incentivise Boroughs to move across.
NIC DAKIN MP: And in essence – picking up the slight area of different opinion between some health professionals and councils – if this was agreed, it would still allow councils to make their own judgment as to whether to enable the voluntary scheme or whether to enter this more compulsory scheme.
JENNIFER MORRIS: It will be a local authority decision.
NIC DAKIN MP: You have talked about consumer views. How have consumer views been sought in relation to this direction of travel?
JENNIFER MORRIS: When the Food Standards Agency scheme was set up, it was seen that this is a scheme primarily for consumer benefit, so consumers have been included from the outset. The way the scheme looks, for instance – the display – has come about as a result of detailed consumer research, so I think it is fair to say that consumers have been involved in the development of the Food Standards Agency scheme from the outset, but it is also worth saying that going back to probably when we as an organisation were looking at promoting a food hygiene rating scheme, which would have been early 2000s, the consumers were alongside us saying, "This is an absolutely key tool for consumers; we want it."
NIC DAKIN MP: And how do we know what consumers want at the moment in terms of a compulsory display or not a compulsory display?
JENNIFER MORRIS: There have been a number of reports done. I have made reference to Consumer Focus in Wales; there have been various reports done by consumer organisations in the rest of the country and various surveys done. I think one of the difficulties, of course, is how on Earth do you get to every consumer? You can only take a sample.
NIC DAKIN MP: Thank you very much.
CHAIR: Thank you, Nick. I do have a couple of questions. What are the current powers that the London or any authorities have to enforce on food standards and environmental health in the restaurants?
JENNIFER MORRIS: We have the whole panoply of the legislation and it is all about risk and about proportionality. So if a business is doing well, then they are allowed to get on with it; if a business is ultimately bad – and I think we talked about my comments about zero rating – at that stage you are going to have enforcement taking place without a doubt; the only question would be to what level. If it is posing a serious or imminent risk to public health, that business will be closed. From the enforcement perspective, the number one objective is to protect public health, but there is also a recognition that successful businesses are really important. And what you will find is although environmental health practitioners actually have very tough powers – which closure of a business is – their first objective is to help a business to improve and they spend a lot of time. So there is a wide range of powers, but actually, the really heavy, heavy powers are not used that often. There is always an effort to try and support and incentivise businesses to improve.
CHAIR: And with a scheme like this, would it be fair to say that it can be at its most successful if there is enough publicity about it and education about it that customers understand what they are looking at, so we cover the issue then of people not spotting it as they walk in or something like that; so it is about that people understand that the scheme actually exists and what it means? JENNIFER MORRIS: That is absolutely fair. It is about consumer empowerment and choice, which can drive up standards, but what it also does is it then releases some of the resource at the local authority level to focus on those really bad ones to get them sorted out.
CHAIR: So if a scheme like this needs publicity so that people understand it, then is there not equally an argument to say that if people understand what it is, a restaurant not taking part in it – not displaying – in itself is the information that a customer needs?
JENNIFER MORRIS: To some extent yes. However, it is open to interpretation, because there will be some businesses that won't have been rated and therefore won’t have a scheme in place. They could be disadvantaged, and I think it is clearer and fairer if it is displayed, rather than it is left to consumers’ conjecture about the standard of a business.
CHAIR: Okay. And in terms of the breadth of the scheme, if this was to go ahead on a mandatory basis, how wide would it go? So for example, would it apply in London to staff canteens in companies or, for example, here at the Palace or anywhere else? Bearing in mind they are paidfor restaurants.
JENNIFER MORRIS: As a policy person rather than an operational person, I am not entirely clear about that. Mr Tolley may be able to give you that information better.
CHAIR: No, that is fair enough. And just the last couple of questions – the last issue – you have mentioned 2012 a number of times, but I think it has been pointed out fairly this country did not know it was getting the 2012 Olympics at the time this Bill started.
JENNIFER MORRIS: Yes.
CHAIR: So that would not have been a reason for putting this in in the first place. So in that case, if we take 2012 aside from it, what would be the case in your opinion for London having preferential treatment or being treated differently to the rest of the country?
JENNIFER MORRIS: Right. I think the thing about the Olympics is it will bring a surge of overseas visitors.
CHAIR: Can I just pause you there for a moment?
JENNIFER MORRIS: Yes, but –
CHAIR: Let’s put 2012 to one side. If it was not for 2012, what, at the time of this Bill being started, would have been the preferential case for London?
JENNIFER MORRIS: London has a lot of overseas visitors anyway. And so those are the people who will have the least opportunity to understand where to get this information. And it is not just about overseas visitors; we have a lot of incountry visitors. If you are a resident in London, you probably know about this, and if you are good at planning, you can go and find the information. If you are a visitor from wherever, then it is more of an issue. I believe in my evidence, actually, I have got some information about the number of visitors that London has. In 2009, according to this, there were over 14 million overseas visitors and over 10 million domestic visitors. For visitors, from wherever they are, that is a significant number and if we can provide that information to them, then the whole of the number of people visiting our food businesses can know what is good and what is less good.
CHAIR: Okay. And my last question might actually be again one for Mr Tolley – and if it is, just say so and we can pause until he is here – but as far as you can answer it – bringing 2012 back into it as well and mixed with the point I made earlier about the breadth of this – would you foresee this covering things like – well, we have all over London and the boroughs of London now; certainly we seem to have a lot more of the temporary burger vans and things like that. And if so, what sort of estimated cost of that have the authorities allowed for in terms of actually administering that on temporary licences or however you would see it working?
JENNIFER MORRIS: I think I would really have to pass that to Mr Tolley.
CHAIR: Okay, no problem. I do not have any more – does anybody have any other? Back to Ms Lieven.
NATHALIE LIEVEN QC: Thank you, Sir. Ms Morris, I think you have covered everything, so I have just got one or two factual questions, which if you do not know the answer to, please just say. First of all, in relation to Ms Crouch’s question about confusion if there are lots of other signs that have to be on the door, are you aware as to whether, apart from signs saying "no smoking" on the doors of restaurants, there are any other mandatory signs that have to be on restaurant doors?
JENNIFER MORRIS: I am afraid I cannot answer that question.
NATHALIE LIEVEN QC: Thank you. In relation to the Olympics – I hope, Sir, it is alright if I lead on this – London was awarded the Olympics in July 2005 and this Bill was deposited in November 2007. Now it is quite right to say the Bill had been in people’s contemplation for some time before that, but I think it is important just to get the dates straight. And then just finally, in relation to a question from the Chair, if it is suggested that you do not need mandatory display because if a restaurant or a food operator does not display then that will immediately indicate to an informed member of the public that there is probably something wrong with their hygiene standards, what would the position be in relation of new startup businesses if that was the approach that was taken?
JENNIFER MORRIS: There are some difficulties about how quickly new startup business are visited, and therefore you might have the situation where a new business, when it absolutely needs to be getting trade, is disadvantaged because it cannot display.
NATHALIE LIEVEN QC: Thank you very much. Those were the only additional questions I have got.
CHAIR: I have a question which might better be put to yourself – or it might be Ms Morris – just in terms of that question. How is that different to whether there is a scheme or not? If a company is a new startup, even if there is a scheme, there will be a period before which it could be assessed in the first place, so I am not quite – maybe you could explain to me what is the difference between a new startup business whether there is a scheme in place or there is not. I do not follow.
NATHALIE LIEVEN QC: Well the answer I think, Sir – and Ms Morris will tell me if I have got this wrong – is that if there is mandatory display, then every premises which has been inspected has to put up its display. So the informed customer comes in, immediately sees whether you’ve done well or badly. If you are a startup business who has not been inspected, then you do not have an obligation to put anything up at all, so the customers who become used to this process will see there that what’s happened is you have not got a display; they won't assume from the non-display that you have done very badly, which is what happens with a wellinformed customer with voluntary display only.
CHAIR: Okay.
NATHALIE LIEVEN QC: Sir, I think that’s all the evidence for Ms Morris.
CHAIR: Thank you very much.
NATHALIE LIEVEN QC: While Ms Morris is moving, Sir, can I just say in respect of your question about the nature of the establishments that would be covered, the clause applies to what are called "relevant establishments" and by clause 9.19, that is "any unit of a food business under the control of a food business operator that carries out any of the stages of production, processing and distribution of food". Now Mr Lewis – who drafted most of this – and I think that probably covers staff canteens; we are not sure whether it would cover the canteens in the Houses of Parliament because they are subject to such particular rules that we would not speculate on that.
CHAIR: I was using that as an example rather than as a specific thing, yes.
NATHALIE LIEVEN QC: Generically, we think staff canteens would be covered. Can I proceed to call Mr Tolley?
CHAIR: Yes, thank you.
NATHALIE LIEVEN QC: Your name is David Tolley and you are an environmental health practitioner with an honours degree in environmental health and an MSc and an MBA. Is that right?
DAVID TOLLEY: I am, yes.
NATHALIE LIEVEN QC: And you are employed by the London Borough of Tower Hamlets as the Environmental Health Commercial Services Manager. Is that right?
DAVID TOLLEY: I am, yes.
NATHALIE LIEVEN QC: And you have been in that position since 2005?
DAVID TOLLEY: Yes.
NATHALIE LIEVEN QC: And just explain to the Committee what your responsibilities cover, would you?
DAVID TOLLEY: Right. At Tower Hamlets I manage the Environmental Health commercial side of work; that is regulation of commercial premises in relation to food safety, health and safety, massage and special treatment licensing, the smoke free legislation and infectious disease control.
NATHALIE LIEVEN QC: And do you want to just give the Committee a general sense as to what environmental health practitioners do?
DAVID TOLLEY: Yes, as a general sense, on the commercial side we regulate and support businesses, whether they are food or nonfood businesses, to actually help them comply with the legislation and to help them have more effective and efficient businesses. We do this by inspections, by newsletters, by having safety health awareness days, and carry out training and advice for businesses. And unfortunately we also do have to carry out enforcement work as well sometimes, and that would be prosecutions of businesses for either injuring someone through a food poisoning outbreak, through an accident at work, or actually stopping a dangerous process by using health and safety prohibition notices or emergency prohibition notices served under the Food Safety Act and the food hygiene regulations.
NATHALIE LIEVEN QC: Thank you. And then in relation to food safety specifically, give us some sense of the role of EHPs – environmental health practitioners – in London and the kind of quantity of premises you are having to deal with in a borough like Tower Hamlets.
DAVID TOLLEY: In Tower Hamlets we have about 2,500 food premises that we are responsible for inspecting on, and we also have in addition about 10,500 nonfood premises, so we have got quite a large commercial stock in Tower Hamlets. And we spend our time inspecting, working with businesses, dealing with complaints from members of the public, taking samples of food to make sure it is safe and wholesome, and, as I said before, working with businesses and encouraging them to comply with legislation and also detailing to them other services that the council provides, so that we can actually provide a one-stop shop during our inspection of businesses to actually point them in the right direction of other services within the local authority.
NATHALIE LIEVEN QC: And just picking up a question that a member of the Committee asked, in your view, how consistent is the approach of environmental health practitioners and do you find wild variations between different officers?
DAVID TOLLEY: In Tower Hamlets we do not. We have a management regime in place where officers are peer audited by their colleagues to make sure they are consistent with each other. Those peer audits and joint inspections come for myself to review. We have also sent a number of staff on update training courses like the one referred to today already by the Food Standards Agency, in regards to consistent scoring of food premises. So I like to feel, out of the officers we have dealing with food safety, we do spend a lot of time to ensure that consistency between inspections.
NATHALIE LIEVEN QC: And can you just say a bit more about inspections? First of all just cover what you do on inspections and then what choices you have after an inspection.
DAVID TOLLEY: Right. At an inspection, typical process is we will introduce ourselves to the food business operator or the manager; we would explain what our inspection is about. They are normally unannounced inspections, so we appreciate we have caught people on a surprise, but we try to go when businesses are either setting up for the day or in the afternoon lull; we do not try to attend at busy times for the business. We then carry out our inspection, have a little look round the premises. We are checking for things like temperature control, maintenance of equipment, pest control, staff training, that the business has a documented food safety management scheme in place.
And then the choices we have afterwards is we can leave a verbal report and a handwritten inspection form as to issues that need to be addressed for next time, and we leave that with the intention that there is probably no real risk there and we do not need to do any other followup. Then we may send a letter out, again detailing some of the issues of concern, and from that letter there would be more information and more in-depth information and that is likely to prompt a followup inspection if we are not happy with the situation that is left on site.
That then can be escalated up to a food hygiene improvement notice to get a certain element of the business to comply with a certain piece of legislation that presents risk to consumers. If there is an immediate risk on the premises, then we can undertake two options. One is to actually ask the business to close down voluntarily; the other one is to commence a formal closure of the food business. Other powers that we have, in particular in relation to food standards and composition of food if we have concerns, is seizure and detention of food, and then depending on how the food business operator got hold of that food – whether or not it can be traced back to suppliers – we may look at detaining and destroying that food through a court order.
NATHALIE LIEVEN QC: And in terms of the very heavy end of the scale – the prosecution, the immediate closure – how frequently would you do that and how easy would that be to do? Is that something you handle often?
DAVID TOLLEY: Yes, prosecutions do occur, unfortunately. I do not know the exact number we have done in the last couple of years, but all our reports are written – offence reports are written – and they go through our legal team, who then actually sanction the prosecution. So we see ourselves as providing the evidence and referring a report over. With regards to food closures, in the last two years we have carried out 18 food closures in Tower Hamlets, whether that is formal closures or voluntary closures.
NATHALIE LIEVEN QC: And before we turn to the detail of the rating scheme, how do you see the benefits of these clauses as opposed to the very heavyhanded mandatory orders that you can make – the prosecutions?
DAVID TOLLEY: I see these clauses actually incentivising businesses to try to get things right themselves. For us as a local authority to go down a formal route of notices or prosecution, we destroy our working relationship with that business and it is very hard for us to rebuild that and get the trust back with the business. By having the business realising that they are going to get a score that the public are going to see, it is hopefully incentivising them to work harder to put systems in place and for them to actually improve themselves rather than waiting for local authority inspectors to come round and find and point out what the issues are.
NATHALIE LIEVEN QC: Thank you. Can we then turn to some of the detail of the FSA Food Hygiene Rating Scheme? Can you just explain how it works, please?
DAVID TOLLEY: Yes. The Food Hygiene Rating Scheme is a score – it is a rating score that is given looking at three key elements during the inspection. And that is in issues relating around hygiene, structure and confidence in management. And a score is given for each of those individual items and then the combined score overall gives the rating for the particular premises.
NATHALIE LIEVEN QC: If I just stop you there for a moment, I hope that in the Committee’s bundle of exhibits you have a page – which is at the end of my tab three; I am not sure if the Committee’s tabs are actually the same – which has got the photocopies of the stickers of the Food Hygiene Rating Scheme going from one to five. Is that right? Green stickers.
CHAIR: It is in tab one for us.
NATHALIE LIEVEN QC: Sorry, it is entirely my fault; I am using the wrong bundle.
CHAIR: Page 15 onwards.
NATHALIE LIEVEN QC: There we are. Page 15 onwards. Is that right, Mr Tolley? Those are the stickers you use?
DAVID TOLLEY: That is right, yes. We are not using them at the moment. Tower Hamlets has not launched a scheme yet – we plan to launch in mid-April – but we are getting our businesses ready to go with it, so those stickers hopefully will be seen within the borough.
NATHALIE LIEVEN QC: We know that consumers will see the stickers under the scheme at the entrance to the premises. Are there any other ways that they can gain information about the rating?
DAVID TOLLEY: Yes. Businesses and consumers can gain access to the rating on the Food Standards Agency website, which is looking at coordinating all the scores across the country on a particular website, and very wellinformed consumers write to us under the Freedom of Information Act requesting the score and the rating scheme for the particular premises they are interested in.
NATHALIE LIEVEN QC: One of the issues that I think was raised in the House of Lords and that there may be continuing concern about is whether consumers will be confused by these stickers into thinking they relate to food quality or not understanding what they are about. Have you got any view on that?
DAVID TOLLEY: Yes. I think we have been carrying out – or we are in the process of carrying out – some publicity within Tower Hamlets. I would say that is my concern and that is my domain where I work. And we will be promoting this through local members, through the Tower Hamlets senior management, on what the scheme looks like, what the feel of the scheme is, and we have publicity going out in the local papers as well to the local public.
NATHALIE LIEVEN QC: And then in terms of consistency, does the Food Standards Agency have any guidance that local authorities can use when applying the scheme?
DAVID TOLLEY: Yes, there is a document on the branding structure of the scheme, and once we have signed up to following the National Food Hygiene Rating Scheme, we then have to follow the guidance. It sets the rules and the criteria for us in implementing the scheme, the style of the stickers and the certificates that we issue, and the whole operation of the scheme is very closely controlled through the consistency documents that the FSA have got.
NATHALIE LIEVEN QC: And has the FSA done any training, again, to reinforce consistency of approach?
DAVID TOLLEY: Yes they have. They have trained our staff in consistent scoring. We have also internally had several meetings and training sessions on how to actually apply the scheme, so staff are very aware of how it should be applied to businesses in the borough.
NATHALIE LIEVEN QC: And then just touching on something Ms Morris also touched on in answers to questions, the approach of the FSA scheme from businesses who want to be reinspected or who are not happy with the rating they are given, can you just explain to the Committee what powers of redress the businesses have?
DAVID TOLLEY: Yes. There are three powers of redress that a business has got if it is unsatisfied with its rating. The first is it has a right to request re-inspection and under the scheme we have to provide that reinspection. The request for re-inspection can be made within three months from the original intervention, and then we then have to carry out that re-inspection within a further three months. So within six months, a reinspection of that premises should and must be carried out under the criteria laid down by the Food Standards Agency.
The second redress for the business is they have a right to reply on the website. So if they have made improvements to their business or they have put new systems in place, they can write to us on a form or email and we then transfer that onto the website to say what the business has done. And thirdly, the business can issue an appeal against the officer’s rating. The officer will then have to transfer that appeal through the council, through myself, and we will then adjudicate on that appeal to see whether or not the business has been fairly treated, and we have the options to actually upgrade the score, regrade it – move it downwards – or keep the score the same.
NATHALIE LIEVEN QC: And I suppose – and this is very much a worst-case scenario – if somebody was really deeply aggrieved that the local authority had gone completely badly wrong and had treated them very unfairly, there would ultimately be the possibility of judicial review of the council’s decision. Is that right?
DAVID TOLLEY: That is right. That is correct.
NATHALIE LIEVEN QC: Now can you take us briefly through what the different rating scores mean? Perhaps you do not need to do all of them.
DAVID TOLLEY: Yes, if you look at the stickers again, what you can see is the bottom of the rating scheme – a zero – comes up with the terminology "urgent improvement necessary". And this would be a premises that we would have very grave concern over; we would have considered maybe there is an imminent risk to public health. It may be subject to enforcement action – to closure – but it would be something we would be very concerned about.
NATHALIE LIEVEN QC: Now the Committee may not like us very much for this, but at page eight onwards of the exhibits we have got some photographs of premises that might fall within a zero rating – leg of lamb gnawed by mouse or rat; cockroaches; truly filthy premises. This is what would be a nought or worse, is that right?
DAVID TOLLEY: That is right, yes.
NATHALIE LIEVEN QC: Okay. And then take us through the happier situations, if you would.
DAVID TOLLEY: The happier situations are premises that move into the three branding – rating of three – where they are generally satisfactory, we feel that the risks are being controlled and we are happy for that business to carry on. And what we are actually doing is we are giving advice to that business, and that would be a business that we would not want to go back to and look at with regards to any public health issues. But however, under the scheme, if the business wanted to increase its score, it has a right to request a reinspection and then we would go back and rejudge that score within the timeframe that I have spoken about. And then you move up to a five-rated premises, which would be very good; something we would not have any issues with at all. And obviously our intention is to move as many businesses as we can do into a rating of five.
NATHALIE LIEVEN QC: And then at the moment, minus mandatory provisions, what happens after the inspection?
DAVID TOLLEY: After the inspection, depending on what rating the business has got, they either get a handwritten sheet left with them at the time or they get a more detailed followup letter explaining things that they need to do to put right.
NATHALIE LIEVEN QC: Thank you. And then can you explain, from your authority’s point of view, why you think mandatory display is important?
DAVID TOLLEY: Yes. We want to give the consumers a level playing field, and the business provides information to the consumer about the independent inspection that has been carried out, and the consumers can actually see the rating for that particular premises. It gives, I think, clear information to visitors to the borough. Tower Hamlets does have a high footfall of visitors; there are quite a lot of interesting areas to Tower Hamlets and we like to encourage regeneration and visitors to the borough, and we feel this will be an open way of promoting that. We feel that it would drive up standards in food businesses and food premises as well, with the business aspiring to climb up the rating scheme. And with those elements of a right for reinspection, a right to reply and a right for an appeal, we feel that the businesses will feel that they have ownership over the scheme as well; it is not a scheme that is being dictated to them, it is something they can work within and they see it as a promotional activity for their business and they can actually aspire to climb up ratings. And we would also hope that it would reduce regulatory burden. As the higher performing businesses – the five-rating businesses – would probably have less inspections from ourselves because they are the ones under better control, it would release resources to concentrate on the lower rated businesses.
NATHALIE LIEVEN QC: Thank you. And to what degree do you think this clause reflects current independent reports on this area of local authority work?
DAVID TOLLEY: I think there are two main reports. One is the Lord Young report, which you have heard about earlier on this morning – Common Sense, Common Safety – where it talks about mandating local authorities to carry out a scheme like this. And also the purpose behind the report – Lord Young also considered about mandating the display of the ratings as well and I think that is one area that we can pull on to actually support our choice of this scheme. I think the other area is the Cabinet Office report that was entitled Applying Behavioural Insight to Health, where it talks about how we as individuals and consumers choose the sorts of premises we would go in to actually have a meal and to purchase food in. And they are saying that 68% of people look at the appearance of the premises; 44% look at the appearance of the staff; 33% look at the cleanliness of the toilet to see whether or not they would go into the premises and purchase food; and 22% go in on the word of mouth from other people that have eaten in the restaurant or the canteen. But I think the report concludes that really information should be given to the consumers at the right time; when they are hungry and when they are hot for that information, it should be provided to them so that they can actually make a more informed choice, rather than relying on those other indicators that they have come up with.
NATHALIE LIEVEN QC: Thank you. And then you have probably covered this to a significant degree, but are there any points specifically about Tower Hamlets from your Tower Hamlets experience which you would just like to highlight to the Committee?
DAVID TOLLEY: Well I think we have had the debate about the Olympics. Tower Hamlets is a host authority – host borough. We do have part of the Olympic Park in the borough and we are expecting an influx of people within the borough during that period of time. I think also if the scores aren’t mandatory, yes they are going on a website, but not everyone has access to iPhones and websites when they are out on an evening out. They need that information to them – salient information at the right time and the right point. I think we start to look at the dynamics of Tower Hamlets and it is a very busy borough. It has a 24/7-type economy, there is a lot of activity going on and I think by having these ratings on doors of food premises it gives the right information at the right time.
NATHALIE LIEVEN QC: And I think the final thing I just want to cover with you is the position of London local authorities and the point being made by the petitioners that at the current time only a relatively small number of London local authorities have signed up to the FSA scheme. Do you want to just explain to the Committee your perception of that?
DAVID TOLLEY: Yes. The scheme is very new. You have heard about the London Scores on the Doors scheme; that was historically a pilot scheme that was set up by the Food Standards Agency but has continued to be run by those authorities involved in it. Tower Hamlets, Barking and Dagenham, Croydon and Sutton have currently all agreed to move over and sign up to the Food Standards Agency national scheme. It is my understanding by June there will be another three or four London authorities that are saying that they will come across onto the national scheme. I think the way the clauses are written, it only makes a national scheme mandatory. If you have mandatory display, I think there would be better understanding from consumers, a better uptake from businesses in wanting to drive up standards, because it does increase a slight bit of competition for them, and also hopefully it will reduce the number of poorer businesses that are around. So it is that issue of driving standards up.
NATHALIE LIEVEN QC: Thank you very much Mr Tolley. Those were all my questions, unless there is anything else that we have not covered that you want to cover. I think we are done. Thank you very much.
MARTIN COUCHMAN: I do not want to go through everything to do with Lord Young and what the Food Standards Agency have said again, but I wonder if I might just refer you to page three of our bundle, which is the final page of the papers that the Food Standards Agency sent in. I say sent in because they have not appeared today even though it will be part of our submission that actually what they are proposing as the national body is contrary to what is being proposed by the boroughs. But if I could draw your attention to the bottom of page three – the bottom section – which says, "Will business be required to display ratings of their premises?" And it says – and this is dated this month – "Lord Young’s recommendation on this is in line with the FSA’s decision to test the voluntary approach to display of ratings at premises first, rather than making it mandatory at this stage. A review of this in April 2012 provides a reasonable timescale for assessing the effectiveness of the voluntary approach." Mr Tolley, don’t you think you are jumping the gun a bit? You have got a scheme – you have not yet introduced a scheme which you say five out of 33 – I think five; I apologise if I have got that wrong – boroughs say they are going to introduce. Take my word, if you go through the FSA website, you can only find any ratings from one of those, which happens to be the Borough of Croydon. Aren’t you rather jumping the gun when the FSA has got a timetable for a national review which could well lead to a national mandatory scheme in relation to display? There is also an issue of whether local authorities would be compelled, but I think that is a separate issue for today. Don’t you think you are jumping the gun on this?
DAVID TOLLEY: No, I do not. I think the evidence provided by my colleague from the Chartered Institute of Environmental Health has persuaded us that a mandatory display is a way forward of giving consumers information and also to driving up standards within food businesses.
MARTIN COUCHMAN: And can I ask – you talked about the gradings already given, but you say you are only introducing a scheme in April. Can I ask, do you have an existing scheme and if so, how many are at grade three or three stars or three points and above? Because you have referred to that as the okay standard, shall we say?
DAVID TOLLEY: Yes. We do not have an existing scheme at the moment; we did not join in with the London pilot scheme and so no ratings have gone public yet. We are in the process and we have written to businesses to advise them of what their ratings are currently, in preparation for them to request stickers from us and also to inform them that that will be the score that will be going on the website.
MARTIN COUCHMAN: Sorry, I am now confused. You are saying you have carried out rating scores?
DAVID TOLLEY: The rating is already – can be deduced from the general food rating system that is in annex five of the Food Law Code of Practice, which covers more generic issues. From that you can then pull out the National Food Hygiene Rating Scheme, and it is those scores that businesses have been written to to advise them that Tower Hamlets is going forward with the National Food Hygiene Rating Scheme, and we will be publicising those scores on the website, but it has not been done yet.
MARTIN COUCHMAN: Okay. The final point. I understand – and you will know more about this – that in January, the FSA board decided to carry out a general review of official controls and issued various options at the time, which could include bringing everything inhouse in fact to the FSA – under their control – just as the Meat Hygiene Service is currently controlled by them. If that was to happen, could you explain, given the current cutbacks in local authority expenditure that I think we all can take as noted, what impact that would have on the number of inspections you might be able to carry out – number of health and safety inspections, number of food hygiene inspections – and what the impact would be on the point which Ms Lieven raised earlier about the frequency of inspections?
DAVID TOLLEY: I do not think I can comment on that, really, because I think it is something that is new; I do not think the terms of reference have yet been set. The review was going to take between one to two years to carry out, and the results of that review obviously are not there. So I cannot really comment on your question, I am afraid.
MARTIN COUCHMAN: I did also ask – but sorry; it was probably hidden elsewhere – about how many of the properties of the 2,200 I believe in Tower Hamlets have reached the three points standard that you would regard as broadly satisfactory.
DAVID TOLLEY: We have about 80% of our businesses that are broadly compliant or rated three and above.
MARTIN COUCHMAN: Thank you.
CHAIR: Dr Rawlings.
DR MARTIN RAWLINGS: Thank you. Mr Tolley, would – morning, I should say.
DAVID TOLLEY: Morning.
DR MARTIN RAWLINGS: Do you understand that industry in general, and in particular as represented by Martin and myself, actually support the scheme? The FSA scheme, that is.
DAVID TOLLEY: I believe so, yes, because I believe you had members on the FSA steering group.
DR MARTIN RAWLINGS: And since Tower Hamlets are going to introduce it, you presumably do support a national scheme, but you would also agree that it is important for companies, particularly those that operate across local authority boundaries, that there is a consistent national scheme?
DAVID TOLLEY: Yes.
DR MARTIN RAWLINGS: Right. But would you also agree that the scheme itself is what is commonly known as gold plating?
DAVID TOLLEY: I do not agree with that, no.
DR MARTIN RAWLINGS: Why not, since we have food hygiene regulations that exist? They come actually from a European directive; that is where they derive from. But the scheme itself, were it to be mandatory, would be gold plating to that directive, would it not?
DAVID TOLLEY: No, I do not believe it would be gold plating. I believe what would give you the highest rating gives you general compliance with the legislation. A rating three on the Food Hygiene Rating Scheme is broadly compliant; it does not say you are fully compliant.
DR MARTIN RAWLINGS: I understand that, but the scheme itself is not required by the European directive nor by the regulations; it is merely a way firstly of assessing that – it is a risk management tool, if you like, in the first place – and we do not disagree that it is an incentive for business, but it is nevertheless going beyond what is the legal requirement.
DAVID TOLLEY: Right, okay. I understand what you are saying now. Yes, it is a tool that incentivises businesses to improve their standards and to maintain their standards.
DR MARTIN RAWLINGS: Thank you. So in a sense, then, you agree that we are gold plating, but with, if you like, a voluntary agreement by industry.
DAVID TOLLEY: I would not use the word gold plating because I think there are other issues here with consumer information that is given out as well. I do not necessarily see that as gold plating.
DR MARTIN RAWLINGS: I will just turn to what I call the sequence of inspection and targeting that you do in Tower Hamlets. I understand that is an incentive to improve, but in a sense that has a risk management tool, as I think you said towards the end of your evidence; that if you score five then you would not revisit or at least it would be some time and it is a low risk premises. At what sort of score would you say that you would actually step up the enforcement activity?
DAVID TOLLEY: I think we would be looking at a score of zero when you would be taking enforcement activity.
DR MARTIN RAWLINGS: But if I was to score one or two would you just leave me to founder or would you actually go back and –
DAVID TOLLEY: No, we would be going back to advise you and help you to comply. It is very hard unless you have got a real live example to actually describe what enforcement action you would take.
DR MARTIN RAWLINGS: Well if I could help you out here. If you score five, let us assume that you would say in an enforcement regime you would not revisit that premises for another three years.
DAVID TOLLEY: A rating of five on the –
DR MARTIN RAWLINGS: Yes.
DAVID TOLLEY: Yes, no.
DR MARTIN RAWLINGS: But if I had a rating of one or two, I might get a visit in 12 months’ time?
DAVID TOLLEY: Yes, probably more frequently than that.
DR MARTIN RAWLINGS: Right, okay. So that system would exist actually with or without scores on the doors anyway, wouldn’t it, in a sense?
DAVID TOLLEY: Yes, I presume it would do.
DR MARTIN RAWLINGS: Risk management is how food authorities look at what risk there is in their premises, so it is not new in that sense.
DAVID TOLLEY: No.
DR MARTIN RAWLINGS: So what I am trying to get at here is – and I will ask you the question – there is a question about whether people put the score up voluntarily or not. I think in our estimation, anybody that scores probably three or over will do it anyway. Is there not an incentive, though, if you have not got three or more, to actually improve to put a score up? It may be that you do not put two up, but you would very much like to get a three and move to put that up. If I may, with your indulgence, explain: a pub that I know very well and happens to be run by my daughter was rescored under the national scheme shortly and put the score up straight away, because it was a good score and had it not been a good score it is different. Under the old scheme, the scores were quite – well, they were lower, let’s put it that way. So, as I say, would you not agree, just as an incentive itself to get on to be able to put up a notice is a good thing?
DAVID TOLLEY: I think what I –
DR MARTIN RAWLINGS: Have I lost you?
DAVID TOLLEY: Yes, I am afraid you have.
CHAIR: Dr Rawlings, are you asking the question of Mr Tolley that it would be in the interest of a business to put up a score if you had a good score anyway, regardless of whether it was mandatory? Is that the question?
DR MARTIN RAWLINGS: Yes. What I am saying is if you have a bad score, it is in your interest to improve it so that you can put the score up. Not necessarily that you need to put up the bad score; that you would actually work to get the good score and then put that up.
DAVID TOLLEY: You would hope that would be the case, but it is not always the case. Some businesses are satisfied of being the bottom.
DR MARTIN RAWLINGS: Okay. Could I just move on to the cost of enforcement here, because there undoubtedly is cost for business in any regulation and surely there will be a cost to Tower Hamlets if there was an enforcement on the notice itself or the score to be displayed, because you would have to check round whether it was being displayed. Have you estimated what the cost of that enforcement is and how that would be paid for?
DAVID TOLLEY: No I have not.
DR MARTIN RAWLINGS: Do you not think in these times where money is very tight that the council would have a duty to look where those costs are and whether it should spend it on this scheme?
DAVID TOLLEY: I think, where we are, we feel that we would be able to do less inspections of food businesses at the higher band because public information is there and it is going to keep those business at that higher level, rather than being cyclic, where we go along, we have an intervention, we work with a business, we get it to a level, we then go away for two years and during that period of time the business then starts to fall down.
DR MARTIN RAWLINGS: Can I just press you on that, because you make that point but, as I think we have just established, the food hygiene inspection regime does not necessarily change under this scheme. The risk assessment is still there; if it is – and this has been going on for years – a low risk, it is not inspected that often; if it is a high risk, it is inspected more. The Food Standards scheme will not change that in any particular way, but it will end up with a burden of inspecting as to whether the display has been put up or not.
DAVID TOLLEY: We would not see that as a particular burden. The higher rated premises – the fives and the rest of it – would have a different form of intervention; they would not necessarily need to have a physical inspection.
DR MARTIN RAWLINGS: Perhaps the last question, then – and maybe it is for the Committee in a sense – if you hear what the Government is saying about the current moratorium on regulation to last for three years, how does this fit with that? Because it is undoubtedly a regulation and mostly on small businesses; it seems to be where most small businesses are.
DAVID TOLLEY: I’m sorry; I’m not sure if that was targeted at myself or the Committee.
DR MARTIN RAWLINGS: Well no, sorry. It is a question for you, but it comes back to regulatory burdens that cost money, and surely you would support not having regulatory burdens and that expense, would you not?
DAVID TOLLEY: I think I’m not in a position to make any comment on that.
DR MARTIN RAWLINGS: Okay. Thank you.
CHAIR: Thank you, Martin. Looking at the time, I think this is probably a logical point to pause and suspend the sitting. We’ll return at 12.45.
(End of Session)
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OPPOSED BILL COMMITTEE
London Local Authorities Bill
Tuesday 29th March 2011
PANEL:
Brandon Lewis MP (Chair)
Tracy Crouch MP
Nic Dakin MP
Ian Mearns MP
Annette Toft (Clerk of the Committee)
IN ATTENDANCE:
Promoters of the Bill
Nathalie Lieven QC (Counsel)
Alastair Lewis (Agent for the Bill)
David Princep (Former Housing Officer, Environmental Health Consultant)
Kevin Thompson (Interim Head of Service, Residential Operations, Royal Borough of Kensington & Chelsea)
Additional Attendees:
Sally Randall (Deputy Director for Private Housing Management, Condition and Adaption, Department for Communities and Local Government)
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Transcribed from the Official Tape Recording
Ubiqus
Clifford’s Inn, Fetter Lane, London EC4A 1LD
Tel: +44 (0)20 7269 0370
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ORAL EVIDENCE VOLUME II
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CHAIR: The Committee have some questions; Tracy Crouch.
TRACY CROUCH MP: Thank you very much, Mr Chairman. Mr Tolley, can you just explain to me now how many of the just over 2,000 restaurants currently sit within the voluntary scheme that you’re introducing at the moment?
DAVID TOLLEY: Out of the 2,500 restaurants?
TRACY CROUCH MP: Sorry, 2,500.
DAVID TOLLEY: Yes, we’ve got about 2,100 food businesses at the London scheme.
TRACY CROUCH MP: Thank you. When you go into a restaurant and you rate the restaurant, whatever you do, you fine the restaurant, do you press release so that it – I quite often see in my local papers restaurants that have been inspected and have been closed down and, therefore, that obviously gives them a bad reputation. I presume that Tower Hamlets does something very similar.
DAVID TOLLEY: On some occasions, yes.
TRACY CROUCH MP: Right.
DAVID TOLLEY: Not on every occasion.
TRACY CROUCH MP: Do you think that probably has a greater impact on consumer behaviour than perhaps a sticker on the door?
DAVID TOLLEY: Unfortunately, the prosecution is normally concluded at some point after the offence, so the offence occurs, then it takes nine months to a year to get the case into court, so we’ve worked with the business to get them up to standard and then the publicity for the fine and whatever comes out later.
TRACY CROUCH MP: And what are your current levels of fines, if I may ask?
DAVID TOLLEY: They do vary.
TRACY CROUCH MP: Such as? Can you give me a range?
DAVID TOLLEY: For food hygiene offences where there is a dirty premises or pest infestations, they range from £100 up to £1,000. It is very much not an exact science.
TRACY CROUCH MP: Right. So, this Bill will introduce, if it goes through these clauses under clause 9, sub-section 16, a conviction to a fine not exceeding level three on the standard scale. I presume that’s a person guilty of an offence for not displaying the mandatory sticker. Level three is, I am reliably informed, a £1,000 fine. Do you think that that will act in any way as a deterrent, given the fact that that is probably a week’s takings or even a day’s takings in profit for some businesses?
DAVID TOLLEY: I don’t know to be honest. I presume it would do. In relation to signage, the way they’re fixed up, if I looked back at the other work we do of a similar sort of nature with regards to smoking signs – and there’s elements of fixed publicity notices in there – and we try not to take any action along signage, you know. It’s about persuasion of the business to actually put the signs up, so working with businesses through it.
TRACY CROUCH MP: But if I can just press you on that. It’s about enforcement, as you were pressed earlier by one of the Petitioners about the numbers of people that are employed within the department.
DAVID TOLLEY: Yes.
TRACY CROUCH MP: 2,500 establishments to go round and check whether or not they’re displaying a sign is going to be a very costly exercise. Why would somebody not just not display the sign and deal with the £1,000 fine?
DAVID TOLLEY: I think with regards to checking, it would be part of the routine food hygiene inspection that we’d be looking for the sticker on the shop front.
TRACY CROUCH MP: And how often do you do that then?
DAVID TOLLEY: It depends on the risk of the business, so some businesses would get an inspection every six months. Some very good businesses, it would be up to three years before we’d even come round and look at them, so it varies on the risk the business presents to the public.
TRACY CROUCH MP: But if that is a standard inspection timetable, and if I was an establishment that had been rated one or two, knowing that you were going to come round in six months’ time, would I not just whack my sticker up in six months’ time?
DAVID TOLLEY: You’re taking a gamble when we’re going to come along, because we don’t make an appointment and it’s not exactly six months from one point to another point. It depends on other issues such as workloads and other things that we’ve got coming on.
TRACY CROUCH MP: Okay. Can I just press you on something else that you said earlier about, again in response to a question from a Petitioner, I think, a rating three is broadly compliant.
DAVID TOLLEY: Yes.
TRACY CROUCH MP: Do you think the consumer understands the difference between broadly compliant and fully compliant, and, as a supplementary to that, what is the difference between a three and a four?
DAVID TOLLEY: Right, okay. I don’t know if consumers do understand the difference between a three and a five; I haven’t done any research on that. I’m not aware of any evidential work that’s been done on that basis.
With regards to a difference between a three and a five, it varies on the different criteria that the inspection’s being undertaken, so those three criteria that are views – that’s competence in management; that’s compliance with structural requirements; and hygiene requirements – they could fall down in either one of those areas and not achieve a higher score in that area, so it’s very hard to give an example when a premises may be a three and not a five without actually having a set up of a business, because a lot of things are interrelated and it’s how the business is running and the procedures the business has in place; the training it may or not have given to its staff; its monitoring of its critical control points and actually operating its business.
TRACY CROUCH MP: But the confidence in the management, therefore, doesn’t necessarily relate to the food hygiene, so you could have no confidence in the management, but their foods standards are incredibly high; therefore, they could be rated a three, where actually the food hygiene, which is presumably what the food hygiene rating system is there to test, could be a five.
DAVID TOLLEY: The food hygiene rating scheme looks at confidence in management as one of those areas that it looks at, and if the business is very good in hygiene, we’d expect that to be a sustained issue of good in hygiene, and you would need to have that underpinned with the management processes and procedures in place for that business, so you would be expecting to have a sustained compliance of that, which is demonstrated through procedures that are operated in that organisation.
TRACY CROUCH MP: If I may, Mr Chairman, my final question; just talking about the Olympics, obviously you have said that you were host authority, as is Greenwich.
DAVID TOLLEY: Yes.
TRACY CROUCH MP: Greenwich is not one of the, as far as I can tell, boroughs to introduce the scheme thus far. How would you say that you would compare to Greenwich?
DAVID TOLLEY: I don’t know the statistics in Greenwich, I’m afraid. I don’t know their ratings.
TRACY CROUCH MP: Thank you.
CHAIR: Ian Mearns.
IAN MEARNS MP: I’ve got a number of questions for Mr Tolley. You mentioned 2,500 food premises and 10,500 non-food premises which are eligible for inspection within the borough.
DAVID TOLLEY: Yes.
IAN MEARNS MP: So, you’ve got 13,000 premises in total and you mentioned 2,100 premises which are inspected for food compliance.
DAVID TOLLEY: The 2,100 premises are those that fall within the scope of the National Food Hygiene Rating Scheme.
IAN MEARNS MP: Right.
DAVID TOLLEY: So, out of the 2,500, we’ve got food premises per se, 2,100 of those fall within the scheme. 400 fall without it.
IAN MEARNS MP: So, are those premises that dispense food directly to the consumer?
DAVID TOLLEY: That’s right.
IAN MEARNS MP: Okay. And, you’ve mentioned about inspections, anything from six months up to three years, and obviously, if you’re really concerned about a property, I would guess it would be more often than that.
DAVID TOLLEY: Yes.
IAN MEARNS MP: Roughly on an annual basis, given the fact that you’ve got these 2,100 properties to inspect, how many follow up inspections do you carry out?
DAVID TOLLEY: I don’t know the exact number.
IAN MEARNS MP: Is it dozens or 100s?
DAVID TOLLEY: No, it’s 100s. It’s in the 100s.
IAN MEARNS MP: 100s. Okay. And given the number of food premises which interact directly with the public, would you say that Tower Hamlets is fairly typical of London boroughs?
DAVID TOLLEY: I would say our mix is particularly, slightly different because we have a huge area of Canary Wharf, free generation area, and then we have other areas that are under a bit of pressure that we’re hoping to regenerate as time goes on, so we do have a split in our commercial stock.
IAN MEARNS MP: Now, earlier on you said that in terms of the grading structure, in terms of those who are satisfactory, I think you said that 80 percent were compliant, so out of 2,100, that means you’ve got about 400 or so who are non-compliant at the moment.
DAVID TOLLEY: Yes.
IAN MEARNS MP: And would you say that’s a fairly typical picture across London?
DAVID TOLLEY: I would say in parts of northeast London, which I’m familiar with. I don’t know the rest of London that well.
IAN MEARNS MP: Okay. Now, in terms of the businesses which are very good, right, and you say you would revisit them within about three years, have you got any trigger mechanisms in mind which would elicit an additional visit, say, for instance, change of management or change of ownership?
DAVID TOLLEY: Yes. If we had complaints from members of the public, that automatically triggers an interest in that premises, and depending on the nature of that complaint, we may go down and inspect. If we get notified of a change of ownership that would become an unrated premises, because obviously the new business can’t take on the old rating, and then we would then carry out a programmed inspection on that.
IAN MEARNS MP: So, even if they’re trading under the same name, you regard it as a different business.
DAVID TOLLEY: It would be – if the personnel have changed, food business operator has changed, that’s when we would have an interest in it.
IAN MEARNS MP: Now, going back to earlier and how typical Tower Hamlets is, would it be fair to say that potentially many 1,000s of businesses across London are non-compliant with the satisfactory grading level three?
DAVID TOLLEY: I couldn’t comment on that.
IAN MEARNS MP: Right, okay. And in terms of enforcement, where there is non-compliance and a conviction is sought and gained, do you think there are any additional disincentives for businesses to carry on non-compliant, because you would seek a re-conviction, I would guess, if they didn’t comply after a conviction.
DAVID TOLLEY: Yes. We would seek a re-conviction and, in one or two occasions, we’ve had to do that.
IAN MEARNS MP: Right.
DAVID TOLLEY: So, the conviction hasn’t solved the problem that we’ve been after.
IAN MEARNS MP: And from your experience, do Magistrates take a dim view of that?
DAVID TOLLEY: They do, yes, if we’re going back for a second time.
IAN MEARNS MP: Okay. Would you react to a complaint about non-compliance from a member of the public or from a competitor business?
DAVID TOLLEY: Non-compliance with –
IAN MEARNS MP: Well with –
DAVID TOLLEY: Mandatory signs or –
IAN MEARNS MP: Well, with the signage, yes.
DAVID TOLLEY: We would deal with them equally, but we wouldn’t rush down there to deal with it. If we’re passing, if we’ve got work activity in that area, we would have a look. I suppose, not operating the scheme yet, talking to you about it, we’ll probably put extra weighting on a complaint from a member of the public than we would for a competitive business.
IAN MEARNS MP: But I mean, it would be true to say that from your perspective, in terms of enforcement, the eyes and ears of the public are a big tool –
DAVID TOLLEY: Very much so, yes.
IAN MEARNS MP: – at your disposal. One last question; it’s more of a technicality, and you’ve mentioned concern for visitors from overseas and from other parts of Britain who would be visiting London with the Olympics and for tourism generally, but what about the concern for the population who work and live here, many of whom consume food which is delivered and they never go anywhere near the premises? How would you get the scheme to work for them?
DAVID TOLLEY: Well, the scheme is on the website, so they would have to rely on either going to the website to actually have a look, or, if they’re picking up a takeaway menu from the premises, seeing it on the premises at that time. There wouldn’t be any carriage responsibility.
IAN MEARNS MP: But given the fact that someone who walks up, their business, it would be displayed on the window.
DAVID TOLLEY: Yes.
IAN MEARNS MP: I mean, for someone who’s buying via the internet or from a leaflet, the window is the leaflet or the internet. Have you had any thoughts to putting the symbols on that and advertising –
DAVID TOLLEY: We haven’t as yet, no. The law that we’re seeking is to have a mandatory display on the shop front at present.
IAN MEARNS MP: Right. Thank you.
CHAIR: Nick Dakin.
NIC DAKIN MP: Thanks. You talked about 400 non-compliant businesses. Do you believe that number would reduce if this scheme came into operation?
DAVID TOLLEY: I believe it would do because it would incentivise businesses to bring up their standards, and it would probably need little involvement from ourselves.
NIC DAKIN MP: Aren’t businesses already incentivised to bring up their standards, so they’d have less time with yourselves?
DAVID TOLLEY: That is one incentive, yes, but I think the display of a rating on their premises that members of the public can directly see would create competition along the High Street, and I think that is something that will be very beneficial from the scheme.
NIC DAKIN MP: And have you got any evidence to support that?
DAVID TOLLEY: Only the evidence that’s been provided before.
NIC DAKIN MP: That’s fine. What number of complaints do you get at the moment from inspected premises about your inspections?
DAVID TOLLEY: About our inspections? I can’t think of one in the last 18 months to two years.
NIC DAKIN MP: And what level of complaints do you get from the public about –
DAVID TOLLEY: We get about 1,500 to 2,000 a year.
NIC DAKIN MP: Right, and that’s fairly regular over a period of time.
DAVID TOLLEY: Yes.
NIC DAKIN MP: Thank you. You talked about the right to reply on the website as one of the areas of redress or reproach that a business could have.
DAVID TOLLEY: Yes.
NIC DAKIN MP: Would they also have the right to have that information placed alongside the score, as it were, on the door?
DAVID TOLLEY: Not on the door, no, but I’m sure the branding scheme is as it is, that we’ve brought into from the Food Standard Agency, so it would only be on the website.
NIC DAKIN MP: And finally from me, you talked about businesses improving the way in which they do things. Do you provide training and support for businesses to do that?
DAVID TOLLEY: Yes. There have been many different initiatives that we’ve carried out to assist businesses to comply with legislation. We currently send out a general newsletter to everyone. We give training on documented hygiene systems. We do quite a bit with businesses on non-enforcement side of things, on the softer side.
NIC DAKIN MP: There’s no reason why a business in Tower Hamlets shouldn’t know what the standard looks like and how to achieve that standard.
DAVID TOLLEY: No.
NIC DAKIN MP: And the supports available to assist them in getting to that standard.
DAVID TOLLEY: Yes.
NIC DAKIN MP: Thank you.
CHAIR: You said that you’ve already gone out to businesses with their rating for the scheme to start in June. How many responses have you had from the businesses to that initial letter?
DAVID TOLLEY: Right. We sent out two letters. We sent out a letter before Christmas to say that Tower Hamlets is signing up for the scheme and we’re going ahead with it and to make sure you get your address details right for our database, and I suppose we’ve had about 35 to 40 phone-ups confirming their addresses and a couple of people wanted to know a bit more about the scheme. Then we sent out a second letter, and we’re just halfway through the expected volume of phone calls at the moment, giving businesses their rating scheme, and at the moment, we’ve received about 65 phone calls where we’ve had people requesting their sticker because they’ve got good scores, and we’ve also had people querying why they’ve got a poor score – what they need to do to put that right.
CHAIR: And as you said, if I follow, you’re basing that on the information you already use as part of your general health and safety assessment.
DAVID TOLLEY: That’s right.
CHAIR: So, from your point of view, in that sense, the practical difference of the scheme isn’t the quality, it’s the advertising of that quality.
DAVID TOLLEY: It is, yes.
CHAIR: Okay. And you also made a comment; I think you said that when you have a case, a legal case, that can really damage the relationship between you and a business, particularly if you’re trying to work with them. How different do you think that will be to giving a business a zero or one, which in theory, if the scheme works, would substantially damage their business.
DAVID TOLLEY: It is, but it gives an immediate impact for that business to work with us to increase its standards. If there’s a public health risk issue that we’re not happy with, we’re not going to not go back to that business for six months. We’ll be working with that business and the scheme, then, enables us to re-risk rate it as they move up the standard.
CHAIR: And the 2,100 establishments, does that include things like the staff canteens you’ve already spoken about?
DAVID TOLLEY: It does, yes.
CHAIR: And who does the cost fall on in terms of the actual stickers or signage and implementation? Is it a cost to the council or cost to the businesses or is it shared?
DAVID TOLLEY: The cost of the stickers is currently with the Food Standards Agency as they fund those, and the local authority get them for nothing. The business doesn’t have to pay for anything.
CHAIR: Okay. And with regard to the 2012 question, if at the moment you’ve got what seems to be by far the majority of the London boroughs not partaking in the scheme, as far as you know, from either talking to colleagues around London or whatever, how many are likely to take it on in time for 2012 because at the moment, you’re the only borough – I mean, if Greenwich isn’t – then the argument around it being in place for 2012 is kind of nullified. So what belief have you got in the take up to have this in place by 2012 if it goes forward?
DAVID TOLLEY: I believe if it goes forward, the drive to have a mandatory requirement to have the sign-up is a very strong driver for local authorities.
CHAIR: Okay. Has anybody else got any?
NATALIE LIEVEN QC: Thank you, Sir. I haven’t got very many questions, Mr Tolley.
Just going back to some questions from Mr Couchman about Lord Young’s report, and the point Lord Young makes about waiting to test out the FSA voluntary scheme before decisions are made about whether a scheme should be mandatory, that’s obviously a national comment rather than a London comment. As far as London’s concerned, we know Tower Hamlets weren’t involved in the voluntary scheme, but has there been quite significant testing of the voluntary scheme in London?
DAVID TOLLEY: I believe so, yes, and other colleagues and other local authorities.
NATALIE LIEVEN QC: And in terms of waiting for a review of the FSA scheme in April 2012 and then waiting for what would have to be primary legislation to make the FSA scheme mandatory nationally, have you got any view on whether that would be in the least bit possible before the Olympics in London?
DAVID TOLLEY: I doubt it very much.
NATALIE LIEVEN QC: And then, just in terms of the cost of enforcement, as far as the cost to the local authority is concerned, would you think there would be any material increase in enforcement costs from the local authority enforcing people putting the stickers in the doors and windows? Is that likely to be a material cost?
DAVID TOLLEY: No. I don’t believe it would be.
NATALIE LIEVEN QC: Is that kind of enforcement what you would pick up on your inspection visits in any event?
DAVID TOLLEY: Yes, it would be something we’d pick up as we go around the businesses with complaints from members of the public. We would then contact the business. We have contact details. We’d be able to speak to them over the phone. We have other ways of interventions with businesses which don’t involve crossing the threshold to carry out an inspection, training packages, things like that, that we could actually encourage the display of the sign and make sure that businesses were aware that it’s mandatory to put up.
NATALIE LIEVEN QC: And so far as the other side of cost is concerned, I think Mr Couchman and Doctor Rawlings put to you that this was an increased burden on business, this provision. Can you see any financial cost to business from having to comply with this provision?
DAVID TOLLEY: No, because the materials are provided by ourselves.
NATALIE LIEVEN QC: And then the only other thing I wanted just to ask you about was the degree to which – I think it was Miss Crouch’s question – the fine in clause 9-16 was actually likely to be a disincentive. I just wanted to take you back to the precedent of the non-smoking ban, and people putting up non-smoking signs in restaurant premises, pubs and so on. To what degree has Tower Hamlets found it actually has to prosecute premises for not complying with that or has it introduced a behavioural change?
DAVID TOLLEY: It’s introduced a behavioural change. There has been one formal action that’s been taken as part of a generic prosecution for other issues.
NATALIE LIEVEN QC: Thank you. Those are all my questions.
CHAIR: Just pause there for a moment, please.
NATALIE LIEVEN QC: I’m so sorry.
CHAIR: Tracy Crouch has just got a question.
TRACY CROUCH MP: Could I just press you on that point, however, which is that would it not be the case that the no smoking ban sign ties in with national no smoking legislation, and therefore, the fact that, nationally, no smoking can happen inside any establishment means that there has been a behavioural change, rather than the fact that there is a sign up saying that there is no smoking. Would that not be a fair –
NATALIE LIEVEN QC: Yes. Madam, I completely accept that; perhaps it ties in quite closely to the questions from the Chair as well. Because of the national publicity around the no smoking ban, it’s likely that the behavioural change has been very clear and very extreme, but I think the point that we would want to get across as Promoters is that it’s not particularly likely that the criminal prosecution elements would ever be relied on in a clause like this. It’s the incentivisation that there is a criminal mandate standing behind the requirement which is likely to be critical here, so of course, there might be a handful of prosecutions, perhaps tagged on to prosecutions that were going to happen anyway in respect of food hygiene, but I think from the Promoter’s point of view, we don’t think local authorities are going to go around prosecuting under clause nine specifically. It’s more that the power is there.
TRACY CROUCH MP: But just on the fines for no smoking legislation, would you know whether or not they are of the same levels? Would a level three fine be applicable for somebody who’s not –
NATALIE LIEVEN QC: I’m looking rather desperately at Mr Lewis, who’s far more cognisant of these kind of things than I am, and he’s muttering he thinks so, but we’ll check for tomorrow morning, Madam, because I don’t pretend to know off the top of my head. We’ll check. Thank you.
CHAIR: Thank you. Okay. Mr Couchman, the way proceedings work here, you have an option of opening remarks or closing remarks. Have you any view on which you’d rather?
NATALIE LIEVEN QC: Can I get Mr Tolley out of the chair, Sir?
CHAIR: Oh, sorry, yes, Mr Tolley, thank you very much.
NATALIE LIEVEN QC: Otherwise he’s stranded.
CHAIR: You’re welcome to sit there. Thank you.
DAVID TOLLEY: I’ll sit at the back.
MARTIN COUCHMAN: Thank you, Sir. I think it might be useful if we moved straight on to our witness, and then I’ll take the option of saying a few words at the end, if I may. Mr John Dyson.
MARTIN COUCHMAN: Mr Dyson, could you tell us who you are, please, and what you do for a living and your background?
JOHN DYSON: Okay. My name is John Dyson. I am the Food and Technical Affairs adviser to the British Hospitality Association. I’m a qualified Environmental Health officer. I’m a corporate member of the Chartered Institute of Environmental Health. I’m a Fellow of the Royal Society of Public Health.
I have been an Environmental Health officer actually in local authorities and in the private sector, the private sector for a number of years, and I’ve operated with a team of Environmental Health officers nationally in a large company, so I’m familiar with the issues surrounding audits and inspections.
MARTIN COUCHMAN: Thank you. Mr Dyson, the explanatory memorandum to the Bill talks about Scores on Doors, and we haven’t heard the word or the phrase Scores on the Doors from counsel or witnesses for the Promoters today. Could you explain the background to this, to the name change, if you like; whether we’re talking about one scheme or two or many, and indeed, your own involvement with the Food Standards Agency in trying to sort this out?
JOHN DYSON: Okay. Well, it started out as Scores on the Doors because that’s the generic name that was given to the scheme that many local authorities have taken on. There have been variations, although there is one particular scheme that has a star rating attached to it, which is run by many of the local authorities through the United Kingdom. The Food Standards Agency decided to change from scores on the doors to Food Hygiene Rating Scheme to actually differentiate themselves from Scores on the Doors, which was clearly important because the Food Hygiene Rating Scheme is a different scheme.
I sat on the UK steering group for the Food Hygiene Rating Scheme, and I’ve also been involved in the delivery group for the Food Hygiene Information Scheme up in Scotland. During the development of the Food Hygiene Rating Scheme, it became clear that the current Scores on the Doors schemes that are out there contained elements of gold plating within them, so that the various levels were gold plated from the existing regulations. In order to resolve that issue, gold plating was removed from the Food Hygiene Rating Scheme, so it is actually without gold plating of the regulations at the various levels.
MARTIN COUCHMAN: Thank you for that. Across the UK as a whole, do you have any indication of the number of local authorities that have already taken up the FHRS, Food Hygiene Rating Scheme, which is the approved FSA scheme, and how many have done so in London?
JOHN DYSON: Yes. Across the United Kingdom, in England, about 40% of local authorities, 130 local authorities, anticipate having the scheme out in operation by June of this year. 100 percent, all 22 local authorities in Wales, have actually taken it on board, and around 70 percent of the local authorities in Northern Ireland will have the scheme implemented by June this year, so there is a significant number of local authorities across the UK outside London who have started to implement the scheme, whereas there are only four local authorities, a small percentage in London, and it is important to realise that the Food Standards Agency have provided grants, financial assistance, to local authorities to take on the Food Hygiene Rating Scheme, so there has been two tranches of grants given to local authorities to take on the Food Hygiene Rating Scheme.
CHAIR: Ian Mearns.
IAN MEARNS MP: I’d just like to clarify that information, in as much that 40% of local authorities, there are about 400 or so local authorities in England. Some of them are small districts. Some of them are much bigger, metropolitan or unitary authorities. Now, in simple numbers, if you’ve got, say, 200 district councils, you wouldn’t have half the population or 40% of the population because they’re relatively small, so I’m just wondering if you can quantify how many of the upper tier authorities have actually taken this on board?
JOHN DYSON: I’m only taking this from what the Food Standards Agency have provided in their information that’s actually in the papers that have been provided. The Food Standards Agency statement – let me see if I can find it.
CHAIR: It’s page one, about how the scheme has developed and what progress has been made in rolling it out. Third bullet point under that.
JOHN DYSON: They’re saying it’s 170 authorities will be operating the scheme, and it’s true to say some of the local authorities who will be operating the scheme from June have actually migrated from some of the schemes that are out there now called Scores on the Doors, so there has been some migration across, and some local authorities, like London Borough of Tower Hamlets, who don’t have the scheme have started to implement the new scheme.
MARTIN COUCHMAN: But it’s true to say that some local authorities probably don’t have the same number of food premises and they’re slightly less interested.
IAN MEARNS MP: I’m sorry, Chairman. I just think that that can be 40% of local authorities, but it may not represent anything like 40% of the population depending on who they are. That’s the problem I’ve got with that.
CHAIR: Okay. Mr Couchman.
MARTIN COUCHMAN: Thank you. If you look one page on in the bundle of papers at page three, under the phrase or the question, "When will all local authorities be running the scheme?" The penultimate sentence says, "The FSA recognises the pivotal role of the London boroughs and is committed to working with them so that easiest way to make the necessary transition can be worked out."
Now, that to me, with respect, looks like Whitehall speak for, "We have a problem," and now, if you look at the ALEHM motion or resolution that we also talked about earlier this morning, would that suggest to you that it’s actually going to be very difficult to get all the London boroughs on side without there being national legislation to make it mandatory for them to offer the FHRS scheme and, if that were to happen, what would the consequences be? In other words, what would the consequences be if we ended up with a mandatory scheme for FHRS in four boroughs, others offering, as they do now, Scores on the Doors – we will come on to that particular point, perhaps, in a little while? What’s going to be the position? Are the public going to be confused or are the public going to be satisfied with that?
JOHN DYSON: Well, I think it’s unlikely that the consumers will find it easy to equate between the various schemes. If you’ve got schemes across London that are run with stars and then you’ve got the Food Hygiene Rating Scheme which doesn’t have stars, a different sticker, and yet you’ve perhaps got the same business and I could say a multi-site business with a different range of stickers, then consumers are going to wonder exactly what is going on because reality says that, if you walk into a national chain restaurant in one London borough and find one sticker, and two days later walk into another one of the same chain restaurant with a different sticker, you really are going to be quite confused, so it’s not going to help the situation by any stretch of the imagination.
As far as ALEHM is concerned, what strikes me about their resolution is that they’re saying they were disappointed by the national scheme. They were disappointed in the way that the banding was put together, and they say that it fails to give recognition to businesses that achieve full compliance, which strikes me as strange, so the reality is they’re not happy with the Food Hygiene Rating Scheme, so I think the reality is, unless there is national legislation that says all local authorities will take it on, there will be a problem in London.
MARTIN COUCHMAN: Can I move on now to just a point about the Bill itself? I think it is understood and recognised that changes were made to the original Bill in the House of Lords, so that first of all, any scheme that was introduced had to be the same scheme across London in terms of mandatory display, and secondly, that the only scheme that could be introduced on that basis was the scheme approved or recommended by the Food Standards Agency. Now, at the time, I am correct in saying, I think, that the Food Standards Agency did not have a scheme, and this was understood by all involved in the previous proceedings, that at some point there would be a scheme, and if the Promoters wanted to go ahead, it would have to be on the basis of that particular scheme, and if I refer to clause 10(2) or 10(1), I should perhaps start with by saying the form of the documents, and I think we’ve seen the documents today with the 0, 1, 2, 3, 4, 5 – I think we’re all happy about that – should be prescribed by a joint Committee, and it goes on to say in 7, that is 10(7) that the joint Committee is one established under section 101(5) of the Local Government Act 1972 and comprising at least one member from each borough council. So my understanding is that 33 – I presume the City of London is included in this – representatives would come together in a Committee and would have to vote whether or not the FHRS was the scheme to be introduced and that’s the only scheme that could be introduced. They’d have to have a vote on it.
JOHN DYSON: Yes.
MARTIN COUCHMAN: And at the moment, four or five boroughs are in favour, and 28 or 29 are doing something else. Now, we cannot obviously anticipate what conclusion they would reach, but there is another hurdle that they would have to go through before making display mandatory.
JOHN DYSON: Yes, and clearly the ALEHM motion makes that probably less likely.
MARTIN COUCHMAN: Okay. Can I conclude then with just two points for Mr Dyson? First of all, just to clarify, could you just briefly state what the position of the British Hospitality Association is on the FHRS scheme as a whole, as a national scheme now being rolled out, and whether we support it and so on?
JOHN DYSON: Yes. We fully support the Food Hygiene Rating Scheme. We’ve always wanted and, throughout the discussions and when the consultation took place by the Food Standards Agency before they actually decided to go for a national scheme, we said in writing that we wanted a national scheme because we felt that that way consumers would not be confused; the local authorities would find it easier to take it on because everybody’s doing the same thing, and there would be a lot of advantage to everyone having a national scheme. What we didn’t want was a series of different schemes with different displays, with stars in particular, and I notice that Lord Young was quite keen that stars disappeared so there was a complete level playing field with a consistent approach right across the local authorities, and enforcement, so we support it.
MARTIN COUCHMAN: And my final question, then, if I may, a request. I wonder if you would kindly turn to page 17 of the bundle. This is a press release and you will see from the small print just below the headline that it’s dated from last week, 22nd March, and it’s from Westminster Council saying that, as you will see from the second paragraph, "Premises owners were disappointed by their Scores on the Doors grading," so there’s still talk about scores on the doors grading, "Can work harder and pay for a review earlier than the next scheduled inspection."
Two paragraphs on, it says, "Businesses with excellent standards of food hygiene are awarded five stars," so we know that Westminster is operating the Scores on the Doors star-rated scheme, and not, even though I might want help with the other Promoters of this Bill, operating the scheme that you’re being asked to make mandatory. And down at the bottom, right at the very end, it says, "As part of the scheme, businesses are given a window sticker and certificate which shows how many stars have been achieved," so of course, I take it, Mr Dyson, that would be a different sticker from the one that has been talked about today.
JOHN DYSON: Yes.
MARTIN COUCHMAN: "Display of these is voluntary at the moment, but the council is hoping that this can be made a legal requirement in London in the future." So we have the position in which the borough of the Promoters put out a press release last week saying they want it made compulsory, something which the Bill as drafted would not allow to be compulsory. Is that your understanding?
JOHN DYSON: That is absolutely my understanding of the situation from this press release, and what’s quite interesting is they’re offering to pay for a revisit when the Food Standards Agency’s legal advice is that enforcement cannot be paid for. European legislation actually prevents charges for enforcement, so there is an issue there.
MARTIN COUCHMAN: Thank you. May I ask if it’s possible for Doctor Rawlings to speak?
CHAIR: Yes.
DR MARTIN RAWLINGS: I won’t detain you long. Just a couple of quick questions for John. John, in your experience, would you say there’s any significant difference in the standards of food hygiene between London and the rest of the country? Are London businesses less careful and more motivated than those in Manchester or Leeds?
JOHN DYSON: There are many businesses who operate both in London, Manchester and Leeds and operate to the same standard, so there seems to be no reason why London businesses will be any different in any way.
DR MARTIN RAWLINGS: So, we heard earlier that the number of visitors to London – I forget the figure; I think 14 million from outside. I mean, do you think there’s any justification in the thought that food hygiene is the driver of visitors and tourist traffic into London.
JOHN DYSON: Well, it doesn’t seem to be a disincentive if they’re coming to London in those numbers that they’re worried about the food hygiene standards in London, and in fact, many of the visitors to London actually go round the rest of the United Kingdom as well, so it doesn’t seem to be an issue.
DR MARTIN RAWLINGS: Thank you. I’ll leave it there.
CHAIR: Miss Lieven.
NATALIE LIEVEN QC: Thank you, Sir. Just a few questions, Mr Dyson. First of all, as far as the Westminster press release is concerned, you know, don’t you, that the only scheme that could be made mandatory by this clause is the FSA scheme?
JOHN DYSON: That’s absolutely correct, which is why I’m very surprised to see the press release being put out.
NATALIE LIEVEN QC: And the only other thing I want to ask you about is this issue that you raise about people will be confused if there’s more than one scheme in London. Now, first of all, with or without the clauses in this Bill, there may be more than one scheme operating in different local authorities in London, may there not?
JOHN DYSON: Currently, there may well be, yes.
NATALIE LIEVEN QC: Yes. And even if every clause in this Bill were to fall, there could still be different schemes operating in different boroughs in London.
JOHN DYSON: That would be the case, unless, of course, there becomes legislation to make every local authority follow the Food Hygiene Rating Scheme.
NATALIE LIEVEN QC: Yes. If there was national legislation, that position would change.
JOHN DYSON: Yes.
NATALIE LIEVEN QC: But there’s no national legislation that’s even been drafted at this stage, is there?
JOHN DYSON: No, because it is a voluntary scheme and currently we remain a voluntary scheme, and also display will remain voluntary until it’s evaluated, and then even that may still remain voluntary.
NATALIE LIEVEN QC: And then just in terms of how likely are people to be confused, whether one is looking at the Food Hygiene Rating Scheme, the FSA scheme, or the Scores on the Doors scheme, they both involve a number of stickers, stars, blobs, whatever, indicating how far up the scale you go. That’s right, isn’t it?
JOHN DYSON: Er – yes.
NATALIE LIEVEN QC: So, a reasonably sensible member of the public is going to be able to tell that a premises in Camden with a blob in the middle and a premises in Tower Hamlets with a star in the middle are coming out roughly similarly in food hygiene terms. You don’t have to get into the detail of the scheme for the consumer to get the relevant information.
JOHN DYSON: It might be different if you only have three levels in one local authority and five levels in another, which is quite conceivable.
NATALIE LIEVEN QC: And so far as people in London struggling with the concept of different local authorities having somewhat different rules, there are other aspects of life in London where we all become very familiar with that situation; the most obvious one is car parking, where people who live in London are completely familiar with the fact that the car parking rules in Westminster are very different from those in Kensington and Chelsea or Camden. That’s something we’re all used to, isn’t it?
JOHN DYSON: I imagine so.
NATALIE LIEVEN QC: Thank you. Those are all my questions, Sir.
CHAIR: Thank you. Ian Mearns.
IAN MEARNS MP: Mr Dyson, at the outset you referred to gold plating of different schemes. Could you just explain to me what you meant by that?
JOHN DYSON: Yes. Within the five levels or five star scheme, between each level, there are different requirements to get higher or lower down as the case may be, and when the steering group looked at those schemes, they discovered that some of the requirements to move from one level to another actually were above what was required by the regulations, so, therefore, that meant there was gold plating in the regulations. It didn’t actually make it a legal requirement. It was above a legal requirement.
IAN MEARNS MP: Okay. And towards the end, you mentioned there enforcement cannot be charged for under European legislation.
JOHN DYSON: That’s right.
IAN MEARNS MP: Is that specifically to food hygiene regulatory enforcement or is it a general thing across the board?
JOHN DYSON: It’s official food controls.
IAN MEARNS MP: Alright, okay. That’s all.
CHAIR: Tracy Crouch.
TRACY CROUCH MP: I’m clearly having a post lunch moment of madness, but can we just go back to the basics, please, and can you explain to me what is the fundamental difference between Scores on the Doors and the Food Hygiene Rating Scheme?
JOHN DYSON: Yes. I’ll try. The Scores on the Doors was actually a pilot scheme that was part of a series of pilots. There were about seven of them, right across the United Kingdom. Scores on the doors was one which actually had stars as part of the display and it was one star up to five, effectively, and that scheme – to a certain extent – how that was put together in terms of the actual differences between the levels was decided in many cases by the individual local authorities, so there was no consistent approach between them, and so you could have one local authority that could have a five star scheme that would be different from another five star scheme, because the various requirements between the levels would be different.
TRACY CROUCH MP: And the Food Hygiene Rating Scheme?
JOHN DYSON: That is consistent, so you have one scheme that goes across the United Kingdom and all local authorities will know and businesses will know what the difference is between getting between nought and one, one and two, three and four and five and so forth.
TRACY CROUCH MP: But a witness earlier, I think, suggested that the FHRS has seen an upgrading of ratings as a consequence of the introduction of the new scheme. Would that be a fair interpretation?
JOHN DYSON: Well, the Food Hygiene Rating Scheme, the FSA scheme, was only introduced in November, so I don’t imagine that, given most businesses are probably only inspected every 12 to 18 months, there’s been a massive change with the Food Hygiene Rating Scheme.
TRACY CROUCH MP: If the FSA scheme in its current voluntary promotion doesn’t work, would you object to it becoming compulsory as per Lord Young’s suggestion in his report?
JOHN DYSON: Well, Lord Young suggests that it should be compulsory for all local authorities. That’s the compulsion he’s talking about; for all local authorities to take it on. He’s saying that then, on evaluation, if he feels that that’s got to be the case, it should become compulsory display. Well, that would be it, because that would also require legislation, and if legislation is approved in this House, then we’re not in a position to object. That’s it.
TRACY CROUCH MP: Thank you.
CHAIR: Nick Dakin.
NIC DAKIN MP: Thank you. Is that what you would prefer to happen?
JOHN DYSON: What? Compulsory display?
NIC DAKIN MP: Compulsory display within the overall scheme set down through the Lord Young FSA route which you just described.
JOHN DYSON: I would prefer to see a requirement for all local authorities to follow the Food Hygiene Rating Scheme. On the issue of compulsory display, because I’m sitting on the steering group, it’s fair to say that I’ll be interested to see the evaluation study that’s going to be carried out to see exactly how that works, what that really means as to whether compulsory display will be the right thing to do or not, and until that evaluation takes place, I don’t think anybody could say whether they thought it was a good idea or not.
NIC DAKIN MP: We heard evidence earlier of evaluation of similar schemes in similar cities. Is that not good enough evaluation to make a judgment of?
JOHN DYSON: Evaluation that takes place in Denmark with 3 million people is considerably different from an evaluation taking place in the United Kingdom with 60 million people, and the vast array of businesses and the different inspection regimes, and I think the evaluation will require some quite sophisticated review, both from a social science point of view, looking at how consumers react to the display of the scheme, how businesses are involved in actually displaying the scheme and also what effect it has on public health. Will it have an effect on food poisoning or not?
NIC DAKIN MP: So, if there is a scheme, it’s better that it’s a national scheme and gone through after careful evaluation. That’s your position.
JOHN DYSON: A national scheme for all local authorities to take on, and then an evaluation as to whether there should be compulsory display or not.
NIC DAKIN MP: Why are you sceptical about compulsory display? What’s the possible down side?
JOHN DYSON: I wasn’t giving any scepticism. I was actually suggesting that it needed a scientific evaluation to decide whether it was the right thing to do or not – whether it would make a difference. If you’re going to end up in a situation where you’ve got compulsory display, and we’ve heard that local authorities will be responsible for enforcement of that, businesses will also be required to do it and be involved in it, and this works as a partnership and everybody’s with it, then there are costs inevitably, so there has to be a cross benefit that meets everybody’s requirements.
NIC DAKIN MP: The evidence we heard earlier suggested that costs were immaterial. I’m just trying to feel what’s the problem. I’m not really understanding quite what the problem is.
JOHN DYSON: I think the issue on compulsory display does come down to whether it’s worth doing or not, whether it actually makes a difference or not, and I’m not absolutely convinced one way or the other.
NIC DAKIN MP: Okay. Thank you.
CHAIR: Just for clarity then, can I just ask you therefore, if I’ve understood correctly, you’re differentiating between whether there is a scheme, which I think you’re saying, a national scheme that’s compulsory for local authorities, the right scheme you’d be in favour of –
JOHN DYSON: Yes.
CHAIR: – and differentiating that from then the display issue.
JOHN DYSON: Yes.
CHAIR: And would it be fair to say the query of costing for display is a bit misleading, because somebody, somewhere, there is a cost, whether it’s local authorities’ officer time, businesses complying, which arguably they should be in order to be of good quality anyway, or the FSA; somewhere is getting the money to produce the materials in the first place, so there is a cost.
JOHN DYSON: There is a cost.
CHAIR: Okay. And one of the comments that’s been made is round London being ready for 2012. Do you see that as a good reason for London to move forward, bearing in mind not all the authorities will be on board, and Manchester didn’t feel the need for that when it had the Commonwealth Games. I appreciate they’re a different scale, but they’ve still got the world’s eye on them.
JOHN DYSON: Yes. I mean, the difference, of course, is that there is now a Food Hygiene Rating Scheme out there. It would be certainly beneficial for everybody to show that London is actually working well and if there’s a national scheme, then London should take that on. That’s what I actually believe, and I think that’s the right thing for London to do.
I don’t think it’s good enough to have local authorities with different schemes, certainly within the Olympic boroughs. I do, right across the piece, believe there should be a national scheme, and we’ve supported the national scheme, as I’ve said, and I see no reason why, given that the Food Standards Agency have put money in to actually help local authorities take on board the national scheme, London authorities aren’t doing it.
CHAIR: So, why do you think there are London boroughs that aren’t doing it? Is there any particular reason that you know of?
JOHN DYSON: No, I can’t answer that question.
CHAIR: Okay. Mr Couchman, have you got any questions? It’s your re-examination.
MARTIN COUCHMAN: No, thank you.
CHAIR: Thank you very much, Mr Dyson. Mr Couchman, you have a right to make a closing submission if you –
MARTIN COUCHMAN: Thank you, Sir. I don’t want to take up too much time because I think the basic point that we’ve tried to make is that there is a national scheme. It’s making good progress outside London, but not such good progress inside London.
The FSA have said, and I perhaps refer you to – I think it’s – excuse me – page nine of our notes, which is a meeting that the Food Standards Agency Chief Executive had with consumer stakeholders, so they would obviously be people interested in this issue, and that was held on 17th November last year, and it’s got at agenda item six, and if you look at para 29, it starts with CS – that’s Catriona Stewart, who’s an official at the agency who was asked to provide an update on the scheme, and she said, "The FSA is committed to providing the information technology for publishing ratings and arrange of support to local authorities operating the Food Hygiene Rating Scheme so that the impact, including costs of participation, whether on a voluntary or mandatory basis, will be minimised. On mandatory display of ratings at premises, Lord Young’s recommendation is in line with what our board, the FSA board, agreed in 2008; we should test the voluntary approach first. A review in April 2012 provides a reasonable time scale for assessing the effectiveness of this."
So here we have the national body responsible for the Food Hygiene Rating Scheme – they’re not here today, but they’ve put in a paper – saying that April 2012 is the date for assessing this whole issue, and here we have four, or maybe five – it’s not very clear – London boroughs asking for special treatment a few months in advance, and we think that’s simply jumping the gun. We believe it would be much better to implement Lord Young’s review of Health and Safety. There is an issue, I think, about cost here, because for larger companies, for groups, they have to spend a lot of money on internally assessing all the time whether they’re conforming to different laws. They will have to send people round to check whether their individual premises in boroughs are conforming to the scheme, so I think there is a cost, even for some of the businesses. It’s not just a case of peeling off a sticker.
And finally, I might just, if I may, draw your attention to the very last page of our papers, page 18, where we’ve marked, I said at the beginning, from the budget Red Book, the implementation of Lord Young’s review of Health and Safety, but also the Government’s intention to have a moratorium exempting micro-businesses and start-ups from new domestic regulation for three years from April 2011. I would submit that the proposals before you now come into this category, because they will specifically affect micro-businesses because that’s those with under 10 employees, and restaurants and similar premises generally have that small number of employees, and you get a lot of restaurant start-ups. I’m sure it’s not part of the procedure to take that point into account, but it is a point that Government has said it doesn’t want to see regulations affecting small businesses from domestic regulation, which I submit this is, for the coming period.
I think with that, I’ll leave it, Sir.
CHAIR: Thank you. Doctor Rawlings. Do you wish to make any submission on the BPA’s position?
DR MARTIN RAWLINGS: Thank you. I will be brief, and essentially I support what Martin Couchman’s just said.
It’s the hospital industry of which the BPA is a major part. We have something like 50,000 plus pubs around the country, serving food every day, and the biggest concentration of those pubs is in London, and probably with inner London, the biggest concentration is in Westminster; Westminster, of course, we’ve heard earlier, is not actually funding the food standard scheme.
We do, as an association, our members, support the Food Hygiene Rating Scheme as an information system which would be available to the public, but currently display is voluntary. We’ve entered into discussions with the FSA on that basis. To support that, I think it’s very important to distinguish between the food hygiene regulations, which is the legal part of all this, which are good regulations in the main in this country, and supported by industry, and the FSA’s scheme, which is about information, which is also supported by the industry.
What is not supported is what’s in this Bill today, and we’re certainly completely unpersuaded that London needs compulsion ahead of any general agreement around the country to make it so. London has no particular position apart from the rest of the country.
The Olympics, the Para-Olympics are a distraction, I would submit, from the main argument, and even if this Bill gets passed, and we’ve all got older waiting for this Bill to go through, it’s probably not actually going to make it until the Olympics come through anyway. Maybe you’ll get on faster in Parliament than normal, but as I say, I think that’s a distraction.
There are costs in any regulation. I completely support what Martin said; particularly the larger companies do spend money on compliance, and it’s the cumulative effect of all the regulations that these businesses have to comply to. We made reference earlier to notices in a pub. I could list off actually about 50 notices that have to go into a pub; not all of them, granted, mandatory, but quite a few of them are quasi-mandatory, because Government wants them or local councils want them.
There is a plethora of information in pubs anyway these days. That’s not an argument about giving it to people, but it is an argument about compulsion. I’m just about to finish and urge the Committee to reconsider the Promoters’ position on this Bill. Thank you.
CHAIR: Thank you. Ms Lieven, if you would like to make submissions on clauses nine and 10.
NATALIE LIEVEN QC: Yes. Very briefly, Sir. Can I start just by dealing with a legal point that Mr Dyson raised about clause 10(7) and the joint Committee. The critical point to understand is that the joint Committee which has to have representatives of all the London authorities has to come together to approve the form of the documentation. That doesn’t mean that all the London local authorities have to have adopted the scheme in order for this clause to come in, so there’s a critical point there.
Sir, just briefly, as I understand it, the petitioners accept the benefit of the scheme. The issue is only whether it should be mandatory, but it is, in my submission, very difficult to understand the logic of that position. If the premises have been rated, then I would suggest very strongly that consumers have the right to be informed about that rating in the most easily accessible way possible before they enter the premises. What possible justification can there be to say, "No, don’t let’s tell consumers if a place has had a poor rating," and so, in my submission, there’s a very, very strong argument there for mandatory display. The benefits I mentioned in opening: they improve consumer information, which necessarily improves consumer choice; the more you inform somebody, the more information you give them, the better the choices can be; and they also provide incentives to drive up standards without incurring expensive regulation by local authorities and without incurring expensive interventions, which are difficult for business and difficult for the local authorities. So this is a scheme which has real benefits to everybody at what I would suggest would be a very low cost.
Of course, there will be lines to tick. Of course, somebody has to pay for the cost of the sticker, but in terms of the benefits, Ms Morris talked about how standards have improved in countries overseas, without having to have prosecutions, without having to have extra inspections; really significant benefits in terms of consumer knowledge and standards with very little – very, very little – cost I would suggest and I would also suggest no increase actually in regulation, because the inspections happen anyway and the premises have to comply with the Food Standard regulations in any event, so there is no regulatory burden evidence here.
Probably the real issue boils down to whether there is justification for London first, and I would put three points to the Committee that have come out of the evidence. Firstly, in terms of Lord Young saying, "Trial the voluntary scheme before we go mandatory," the Committee’s heard the evidence; in London to a great extent a voluntary scheme has already been trialled – that’s the Scores on the Doors scheme – and the benefits of going mandatory have already come out, which is Ms Morris’ evidence that what seems to be happening, unsurprisingly, is that poor scoring premises don’t put their scores up. So we’ve already got over that hurdle that Lord Young quite properly sets to a national scheme.
The second point is that there is a very real reason why London is different. Firstly, it’s London, it’s the capital city, it has millions of tourists every year, far more than any other location in the UK, and that is enhanced greatly by the fact that we are having the Olympics here next year.
The third reason is it’s all very well for the Petitioners to say, "Well, Lord Young says review in April 2012." There is absolutely no way that a mandatory national scheme would come in for at least a year after that, given that there would have to be primary legislation. So we’re talking about a very long wait potentially and possibly an indefinite wait for any national mandatory scheme, so in my submission there are very clear reasons why it is appropriate here for London to come first. Can I just say in terms of the position in London, what we’ve seen is that even since the FSA scheme came in, double the number of London local authorities have said they will use that scheme, so it has gone from about four to about eight, but the critical point to understand is that until this clause comes in, there is no incentive on London authorities to move to the FSA scheme. Once this clause comes in and therefore London authorities can take the benefit of the mandatory provisions, they will have a huge incentive to shift over and we’re confident that a very large number of them – not necessarily all – will move over. And so I just end by saying: what’s the problem? What’s the disadvantage of our provision? And in my submission it comes down to one more line on a tick box is the sum total of the disadvantage, and the benefits are far, far greater.
So unless there is anything else I can help the Committee with?
CHAIR: One question. You raised it again around the Joint Committee issue. To introduce a scheme to law, the Committee of all authorities have to agree it, but then, just for clarification, it is right, once they adopt it, it is still a matter for individual authority after that anyway?
NATHALIE LIEVEN QC: Yes, that’s right; they have to come together to bring in the power, but then they have a choice as to whether each individual authority adopts the power in its area.
CHAIR: Anybody got any other questions? Thank you very much. Just as a matter of procedure, we are now going to move on to part four, the Management Notice and we’ll deliberate on everything in one go right at the very end, so people here with regard to clauses nine and 10 may wish to leave, but that’s entirely up to you. Thank you.
Would you like to make some remarks with regard to part four?
NATHALIE LIEVEN QC: Yes, certainly, Sir. As the Committee knows, part four is dealing with houses in multiple occupation, the power to serve Management Notices. Now in respect of this clause, there are no Petitioners, but the Department for Communities and Local Government have reported against this part of the Bill. So I will deal with the issues that they raise, briefly.
Now as I am sure the members of the Committee are extremely well aware, houses in multiple occupation are an important source of relatively cheap and affordable accommodation, particularly – but again not exclusively – in London, and they are a form of accommodation, as Mr Thompson our witness will explain, which does suffer – and this is well known – from poor landlords often – again, not always – and often from high levels of poor maintenance. So there are very specific problems, long, long recognised by Parliament in respect of HMOs. Those problems can lead to very real issues of safety for tenants. Now the provisions in the Bill are about allowing London local authorities to serve Management Notices where there are breaches of the HMO Management regulations. The historical position in respect of that is that it used to be the case under the 1985 Housing Act that Management Notices could be served where there were such breaches. That power was withdrawn by the Housing Act 2004, which introduced a system called the Housing Health and Safety Rating System; the acronym this time is HHSRS, but I think I’ll again just call it the rating system.
Now, what that involves is a Council officer carrying out quite a complex and time-consuming analysis of the problems at the property – and again Mr Thompson can take you through this – in order to assess the impact on the health and safety of the tenants, and only once that survey has been carried out and the assessment carried out can an Improvement Notice be served or can the local authority take action. Now, the Promoters’ position is that that rating scheme works well in most cases, but there are some cases where there is an obvious problem with the management of the property and it would be much easier, much more straightforward for the local authority to be able to serve a Management Notice. The way it has been described to me is where there are small, quick hits that could be met by Management Notice, that’s much better, from everybody’s point of view, than going through the rating scheme system.
HMOs are subject to the HMO Management regulations which place obligations on landlords to keep the premises in repair and so on, and that’s what the notices would apply to. The difficulty at the moment is that the only way, post the 2004 Act, that breaches of the Management regulations can be dealt with is by way of criminal prosecution. So the local authority can go down a rating scheme system, or if it thinks there is a specific breach of the management regulations, it’s got no choice but to prosecute; and Mr Thompson will explain prosecution is really not a good option here, obviously it’s very heavy-handed, again destroys relationships – as you’ve heard in the previous evidence – it’s very expensive and time-consuming for the local authority, but also, perhaps most importantly, it doesn’t actually resolve the issue, because you can prosecute but you haven’t made the premises any better. So there is an incentive, but is a very poor way of proceeding in this particular area. Now what part four of the Bill would do is allow the local authority to serve a management notice, which would say that if the work wasn’t carried out, the local authority would do the work itself.
Now the evidence of the Promoters is that in practice in local authorities’ universal experience, landlords don’t want the local authorities to do the work, both because it would involve the landlord losing control of the property for a period, but also because local authorities doing the work is more expensive, because the local authority will charge an administration fee. So, the effect of serving a Management Notice – in our experience – is that invariably it persuades the landlord to do the work him or herself, so it is an effective way where there is a straightforward breach which is better dealt with under the management regs than under the rating scheme. I’ll ask Mr Thompson to go through the DCLG report in a bit more detail, but to paraphrase fairly their objection, it’s that the rating scheme has been brought in – it was brought in in 2004 – Parliament chose not to keep Management Notices in the 2004 Act, and therefore the rating scheme alone should be used. The Promoters’ position, as I have said, is that, in the main, local authorities are happy to use the rating scheme, but there is a category of case where it is not the most efficient or time-saving way to deal with a problem. Mr Thompson will talk about specific examples, for example, round poor gas or electrical installations, where a Management Notice could require the production of a gas or electricity installation certificate; that very simply persuades the landlord to get the premises properly checked and certified – a very simple solution to the problem, and it can be a very significant problem of course. The Committee will understand things like electrical installations can be a real safety problem in HMOs. So rather like the previous clauses, this is not about increasing regulation; this is actually about trying to streamline regulation, both for the benefit of the local authority, but also ultimately for the benefit of the landlords.
So that is a brief introduction. If I can proceed – unless the Committee has got any questions for me – to call Mr Thompson?
CHAIR: Just before you do, I will just – for the purposes of everybody in the room – introduce Sally Randall, who has joined us, who is the Deputy Director for Private Housing Management, Condition and Adaptations, Department for Communities and Local Government. Ms Randall is here to put the case for DCLG, but won’t be doing questions and cross examination, etc, so it is a slightly different role to the Petitioners earlier; with that, yes please, Mr Thompson.
NATHALIE LIEVEN QC: Thank you sir, Mr Thompson.
KEVIN THOMPSON: Thank you, good afternoon.
CHAIR: Good afternoon.
NATHALIE LIEVEN QC: Mr Thompson, I am in the wrong file at the moment; I’ll try and find the right file. Now, Mr Thompson, I think you’ve been an Environmental Health Officer for about 29 years, is that right?
KEVIN THOMPSON: That’s correct.
NATHALIE LIEVEN QC: Mainly in private-sector housing?
KEVIN THOMPSON: Yes.
NATHALIE LIEVEN QC: And your current position is that you are the interim Head of Service for Residential Operations at the Royal Borough of Kensington and Chelsea?
KEVIN THOMPSON: That’s right.
NATHALIE LIEVEN QC: Is that right? Now, I think I’ve explained what we’re seeking to do in this part four, so can I take you on to the question: just to explain what are houses in multiple occupation, HMOs, can you give the Committee a sense as to what the phrase covers?
KEVIN THOMPSON: Yes. Houses in multiple occupation are defined in the Housing Act 2004 and essentially they are premises used for housing – domestic premises – which are shared by more than a single household. It’s a complicated definition, but in essence there are three main strands to it: houses which are occupied by more than a single household and which share amenities, so it may be a shared kitchen, WC, bathroom, that kind of thing; they are individual converted units within a property which do not have their amenities behind one single front door, so, if you like, you would have your own dwelling on the first floor, another dwelling on the second and another on the third, but your kitchen – although it’s your own exclusive use – will be in a different part of the premises, so not fully self-contained; and thirdly, fully self-contained converted flats within buildings which were not converted to current Building Regulations standards – they are generally termed poorly converted and they are essentially rented. So there are three categories, so basically premises which were originally constructed as a single unit and are now converted for multiple occupancy use with often some element of sharing.
NATHALIE LIEVEN QC: And are there any particular issues that you’ve found over the years with HMOs?
KEVIN THOMPSON: There are a range of issues with HMOs; basic provision of amenities needs to be adequate – adequate bathrooms, kitchen facilities, that kind of thing – obviously, the state of repair; the levels of occupancy – overcrowding is often a problem – fire safety standards are an issue once you have multiple occupancy in a building, and perhaps lastly, the management of the building, because it doesn’t matter how many amenities or facilities you install in a building, if there is poor maintenance, they will eventually deteriorate to a situation which becomes hazardous.
NATHALIE LIEVEN QC: And just pulling a couple of points out of that, in terms of tenant empowerment, if I can put it like that, as a wild generalisation, what kind of people are you likely to find in HMOs?
KEVIN THOMPSON: Well, HMOs present a range of different situations, but essentially they are very low cost; they are the most affordable type of accommodation which we have in London, and they generally attract those tenants who are on very low incomes, or on benefits, or are vulnerable – they attract single people in many ways who do not have access to larger accommodation – so there are high levels of vulnerability in HMOs.
NATHALIE LIEVEN QC: Thank you. And then the other thing about the nature of HMOs I just wanted to pick up is are there any particular issues around disrepair and wear and tear of property that occur in HMOs more than they do in other forms of rented accommodation?
KEVIN THOMPSON: Yes, that is the case. Once you have multiple households in a property, it stands to reason that the wear and tear will be greater, depending on the number of households. We have some HMOs in central London that I personally know of in South Kensington that have up to 45 separate lettings – that’s one case in particular in a place called Cranley Place in South Kensington. So 45 different households, all living independently in one premises, which was originally constructed and designed for a single use, clearly has far greater levels of wear and tear, so disrepair and maintenance becomes a much greater issue, as do other kinds of risks such as fire safety, hygiene, sanitation.
NATHALIE LIEVEN QC: Thank you. Now, can we move to the legal regime for HMOs at the moment? First of all can you explain the difference between licensable HMOs and non-licensable – I’m not sure it’s really critical for today’s purposes, but the House of Lords were interested in it, so perhaps we ought to just explain briefly.
KEVIN THOMPSON: Certainly. I explained briefly what the definition of HMO is, and within that definition there is a narrower range of properties which are still HMOs requiring a licence – the mandatory licensable HMOs, HMOs which local authorities must licence. Essentially those properties which have more than five occupiers and are occupied by more than two households, and the property comprises three or more storeys. So two or more households with more than five people in a three storey or bigger property. These must have a licence.
NATHALIE LIEVEN QC: Thank you. And then moving on to the Housing Act 2004 and the Housing Health and Safety Ratings System, can you explain to the Committee how that works?
KEVIN THOMPSON: Yes, Chairman, I will try; it’s rather complex to explain in a nutshell. Essentially what the rating system does, the Housing Health and Safety Ratings System, is attempt to rate a property in terms of the effect any hazards within that property would have on the health of the persons living in that property, or persons visiting it. It’s a two-stage assessment. First of all I should perhaps say that there are 29 individual hazards which are listed under the Guidance for the system; they range from everything from radon gas, through to excess cold, fire hazards and there are 29 of them.
In order to carry out a HHSRS assessment on a property, we need to first of all consider how many of those 29 hazards actually exist in the property to start with. We then need to rate that property against each of those hazards we’ve identified. Now it’s very rare – it’s unheard of – that we would find 29 hazards in a HMO in London, but it’s very common to find five or six of the top five, such as excess cold, fire, falls – dangerous staircases, etc – overcrowding, lack of cooking facilities, those kinds of things, damp and mould growth; these are common hazards which we find in a property and there may be four of those in one property which we need to rate.
In order to rate a hazard, it is a two-stage process. First of all, we need to consider against guidance – which is based on firm evidence – on what the likelihood is of the hazard in that property causing a health outcome to the person living there within the next twelve months, and we need to consider the vulnerable group which relates to the person living there. So, we know for each of the hazards which group of people are the most vulnerable and that’s specified. So to give you an example, a property that is very cold, the vulnerable group would be the elderly. So, first of all we need to work out what the likelihood is of that elderly person suffering a negative health outcome over the next 12 months because of that property’s cold. We can score that based on national research. Once we have worked out the likelihood, we then have to assess or predict the severity of the harm outcome that would occur to that elderly person. I won’t go into the details, but there are four classes of harm, ranging from mild depression or a visit to a GP, right up to permanent disablement or death. So we have to assess that health outcome.
From those assessments, we then make a numerical calculation which calculates a hazard score based on those researched assessments. Scores of up to 1,000 are deemed to be category two hazards. Where there’s a category two hazard, the local authority has the power to take action to require that hazard to be removed; it has a discretionary power. For hazard scores of more than 1,000, they are termed category one hazards. The local authority has a statutory duty to deal with those hazards in some way. The system then goes on to give a range of interventions that the local authority might take to deal with that hazard, and that could be prohibiting the property for residential use; it could be an improvement notice which requires the responsible person, the landlord, to remedy the defect; it could be a simple Hazard Awareness Notice, which notifies the landlord of the existence of the hazard, but doesn’t actually legally require him or her to do anything. It notifies them and gives them the information. And that is essentially as quick a way as I can outline what the hazard rating system is. It rates the severity of the health outcome of 29 potential hazards on the residents that live in the house.
NATHALIE LIEVEN QC: Now, we haven’t burdened the Committee with this, but in the Committee exhibits, there are some case studies and for one – you don’t need to turn it up – of the case studies, I’ve got the papers of the rating assessment – not the correspondence with the landlord, but just the assessment – and it runs to 21 pages; is that fairly standard in your experience?
KEVIN THOMPSON: In an HMO it is, yes.
NATHALIE LIEVEN QC: So that’s the rating scheme. Can you explain to the Committee why the promoting local authorities are asking for the power to serve Management Notices back?
KEVIN THOMPSON: Yes. What this proposal offers us is a simple means of dealing with deficiencies in houses in multiple occupation, which, although maybe relatively simple in nature and relatively simple to remedy, are actually in multiple locations maybe, and have potentially very serious outcomes. If I could perhaps bring that to life. The property I mentioned earlier in South Kensington, that would present a very high risk of fire safety; we have 44 households living in one property, all with their own cooking facilities, etc, high fire risk. So what the HSSRS rating suggests we would have in there, and also the provisions of HMO licensing, is a comprehensive fire alarm system, and we would deal with that normally under the rating system and we’re very happy with that system. But what happens if six months later or a year later there is a defect in that fire alarm system? A very simple defect: it may be a fault on the panel requiring a quick engineer visit; it could be another simple defect which means that that alarm is not working. 44 households are relying on that alarm for their safety, and research shows us that if you have a fire alarm in a property that doesn’t work, that property presents a higher fire risk than if there were no alarm in the property in the first place because people are relying on it; it’s a seatbelt that fails.
So we’ve got a very simple defect there which requires a quick visit by an alarm engineer, who is normally on-call under a contract and could probably remedy that defect in less than half an hour if it’s a simple case of re-setting the panel. What we currently have to do is it’s a breach of one of the Management regulations, and we have the option of prosecuting the landlord in the Magistrates’ Court and bringing the force of criminal law upon him or her – clearly inappropriate for such a minor matter. Our alternative is to use part one of the Housing Act, which is the rating system and, as we’ve heard, it’s very time-consuming in terms of the local authorities’ interventions and there is quite a time-line in order to implement that.
What we’re suggesting here and what these proposals offer is a very simple, quick, non-bureaucratic notice that notifies the landlord your fire alarms are not working, you need to get it fixed within this reasonable period of time, otherwise the local authority will have to sanction coming in and doing it in your default and charging you with the costs – very simple, very quick, very targeted with a big outcome and that’s what this proposal offers. It’s a light-touch approach, instead of a heavy-handed approach; it’s a quicker approach; it doesn’t criminalise the landlord; it lightens up resources in the local authority, which can be re-directed to more serious hazards and greater outcomes.
NATHALIE LIEVEN QC: And to some degree, just looking at this historically, is this reverting back to the position you would have been in before the 2004 Act?
KEVIN THOMPSON: Yes, exactly. It mirrors the provisions we had under the 1985 Housing Act, which I think were section 372 – to bore people with details – and as I have 29 years of experience in this area, I remember using these notices very well, to great effect. And I really do see great benefits in bringing such a simple measure back for that targeted area of work that warrants it. We’re not suggesting that this would replace any of the existing legislation which is far better for purpose in areas of greater hazard and greater risk.
NATHALIE LIEVEN QC: It may be obvious, but just in terms of breaches of the Management Notices at the moment, you’ve already said that the only method of enforcement is by a criminal prosecution. Can you just quickly state the obvious: what are the problems with criminal prosecution?
KEVIN THOMPSON: The problems with criminal prosecutions: first of all they are hugely resource-intensive in terms of local authority input; they are very detailed; very procedural; the timeline they follow is quite long – this is a criminal prosecution in the Magistrates’ Court. So it takes quite a long time to get in into, obviously it takes up the Magistrates’ Court’s time, which could be better devoted to more serious criminal matters; it’s expensive for the landlord because they need to defend this action, and its expensive in their time and in their money if they need representation. We would rather the landlords are spending the money on repairing the defects and making their property safe than spending money defending criminal court actions for relatively simple remedies.
It also criminalises the landlord, which is unnecessary, and we find that once we’ve taken prosecutions against the landlord that really is the end of the road of any partnership working in terms of areas such as landlord accreditation. We’re very keen to promote landlord accreditation schemes; we have a very active one in London, whereby we actually work with landlords to develop their skills and raise their management knowledge to avoid these sort of situations, and of course – it was already said I think – a prosecution doesn’t actually fix the defect that we’re in Court arguing about. In the example I gave of a defective fire alarm, we can go through this hugely expensive and quite negative procedure, at the end of which the fire alarm still isn’t working.
NATHALIE LIEVEN QC: Can I then move on to the effect of a Management Notice? As I said in opening, if it’s not complied with, then the Council have the power to do the works in default. In your experience what actually happens in that situation if a notice such as this is served?
KEVIN THOMPSON: Yes, my experience is that once we serve a notice, in the majority of cases the work is carried out by the landlord. The Notice isn’t served in isolation; information is sent with the notice and there will always have been some correspondence verbally, in person or in writing with the landlord before we’ve even got to the stage of serving the notice, which may nip the problem in the bud. But once a notice is served, and the issue of works in default is raised into conversation, this is a really powerful sanction. That’s my personal experience; it’s the experience of my colleagues and peers, and if you need anything further, it’s an old report, but in 1991, the Audit Commission published a report termed Healthy Housing – the Role of Environmental Health Services, and that report stated that works in default were the most effective way of maintaining and improving housing standards in local authority areas. Now that’s a 1991 report, but I think the findings there stand.
NATHALIE LIEVEN QC: And then if the landlord doesn’t agree with the Notice, would they have the power to appeal it?
KEVIN THOMPSON: They certainly do, yes; part four includes a comprehensive right of appeal, which is more or less in line with the powers in part one of the rating system; they have appeal to the Residential Property Tribunal on a range of counts which are specified in the bill, and they have that right of appeal for 21 days from the date of service of the Notice. There is a further appeal, at a higher level, to the Lands Tribunal following that.
NATHALIE LIEVEN QC: But I suspect that’s just on a point of law, is that right?
KEVIN THOMPSON: Yes.
NATHALIE LIEVEN QC: No offence. Okay. I think we’ve probably covered why local authorities need to intervene in this type of situation. Is there anything else you want to say on that? I think we’ve covered the nature of the tenants. Do you want to say anything about the nature of the landlords that you come across, managing HMOs?
KEVIN THOMPSON: Yes, that’s probably a final piece of that picture.
HMO landlords come in different guises and its always very difficult to generalise, but the research that’s been carried out shows – and my experience also shows – that HMO landlords – and when I say HMO landlords here, I am thinking of the bedsit type traditional HMO that we’ve described in London – tend to be the lowest quality of landlord with the least dedication to providing a quality business, and that was also shown in the report by DCLG, which I have here somewhere. But basically, in London there is a huge demand for this type of HMO property due to high rents and due to the actual nature of housing demand in the capital city. As there is such a high demand, there is a very low market incentive to provide high-quality accommodation, because even the lower quality accommodation can be let very quickly at a high rent, and some of the poor quality landlords will exploit that. We find that they will not devote very much of their income into routine pro-active planned maintenance, will only fire-fight in terms of repairs and will often fail even in that. It’s an entirely different scenario to the landlord sector of standard rental properties – individual flats, houses that kind of thing – or indeed social housing. So we are dealing really with the lower end of the rental market in a lot of cases. Now that is not every case; there are some excellent landlords out there providing good accommodation, we don’t need to discuss them, we don’t need to use any of this legislation for them; they self-regulate and we’re looking at accreditation to accredit them. But these landlords I am describing, the only route really is regulation and we want to make that as easy and as quick as possible.
NATHALIE LIEVEN QC: And to what degree is London different from the rest of the country?
KEVIN THOMPSON: There are a lot of parallels across the country, but London is a difficult case, a different case. We have the highest proportion of HMOs amongst our housing stock than any other region of England or Wales. 37% of the housing stock in London is actually within the HMO definition – 37% – so well over a third. That’s the highest proportion in England anywhere. Also, just by the nature of the stock, certainly in the central boroughs – Westminster, Kensington, Chelsea, Camden, some others – the HMOs are the largest, and the size of the property in many ways dictates the risk these properties present. I gave the fire alarm example in South Kensington. The more people you crowd into a property, the higher the risk and the greater range of hazards these properties present. So we have got the most HMOs in terms of proportion of stock and we have the largest, and the highest demand and the highest rents, so you put that all into a mix and it’s a heady mix.
NATHALIE LIEVEN QC: Thank you. Can we then turn finally to DCLG’s concerns? I think the primary concern in the DCLG report is that the HHSRS scheme already deals with the problem and I think you’ve covered that.
KEVIN THOMPSON: Yes.
NATHALIE LIEVEN QC: I think another concern is why should it just be London – again I think you’ve covered that. To the degree that it’s being suggested, I think it might be that some of these problems could be dealt with by the licensing regime, can you just explain why licensing doesn’t solve this issue?
KEVIN THOMPSON: Licensing doesn’t solve this particular issue because of the reasons that we touched on in relation to prosecutions. When a licence is granted for an HMO, a local authority has to include some licence conditions and has the discretion to include additional licensing conditions, based on its own local need, so there are additions attached. But failing to comply with the licensing conditions, the sanction is once again prosecution, so it’s similar to dealing with these matters under the prosecution for Management Regulations; there isn’t a quick-fix notice for small scale but serious defects.
NATHALIE LIEVEN QC: And I think you made this clear earlier, but are all HMOs licensable in any event?
KEVIN THOMPSON: No, the majority of HMOs are not licensable and the definition, if you remember, is three storeys or more, so these are the larger properties, more than two households and more than five people, so the bigger properties. They may be the majority of HMOs in certain small areas of the capital, but in the outlying areas many HMOs are less than three storeys and may have less than five people, but actually do present very serious risks and very poor conditions.
NATHALIE LIEVEN QC: Thank you. And then another concern raised by DCLG was that, by introducing this provision, there would be a shift in the balance of rights and obligations between landlord and tenant; I think a kind of sense that we were moving the goalposts against landlords. Is that how you understand these clauses to work?
KEVIN THOMPSON: I don’t see it that way; in fact, on the contrary. I think it redresses the balance in that for the small defects that are serious and need dealing with, we will deal with the landlords under these provisions in a light-touch way, rather than a heavy-handed way, and I think it actually redresses the balance in favour of sensible appropriate regulation for these defects.
NATHALIE LIEVEN QC: And finally do you think, to any degree, bringing these clauses in undermines the system in the 2004 Act?
KEVIN THOMPSON: No. The new power, were it to be adopted, would actually enhance the system. If we are to use the rating system for every defect in a house of multiple occupation, we will deal with very few houses in multiple occupation, because the process will be so resource-intensive. So in that way dealing with it under HHSRS would in fact undermine the regulatory system, because we wouldn’t have the resources to do much of that regulation. Using this simpler light-touch method for greater outcomes would free up resources for us to devote to more serious and wider ranging housing conditions.
NATHALIE LIEVEN QC: I think that’s everything, Mr Thompson. We haven’t taken it in quite the order we rehearsed, but I think we’ve covered all of the key points. I am conscious of the time, and I know you wanted to break at 14.25.
CHAIR: Yes, I think that’s probably a sensible place to suspend, and we’ll reconvene at 15.15. Thank you.
(End of session)
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OPPOSED BILL COMMITTEE
London Local Authorities Bill
Tuesday 29th March 2011
PANEL:
Brandon Lewis MP (Chair)
Tracy Crouch MP
Nic Dakin MP
Ian Mearns MP
Annette Toft (Clerk of the Committee)
IN ATTENDANCE:
Promoters of the Bill
Nathalie Lieven QC (Counsel)
Alastair Lewis (Agent for the Bill)
David Princep (Former Housing Officer, Environmental Health Consultant)
Kevin Thompson (Interim Head of Service, Residential Operations, Royal Borough of Kensington & Chelsea)
Additional Attendees:
Sally Randall (Deputy Director for Private Housing Management, Condition and Adaption, Department for Communities and Local Government)
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Transcribed from the Official Tape Recording
Ubiqus
Clifford’s Inn, Fetter Lane, London EC4A 1LD
Tel: +44 (0)20 7269 0370
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ORAL EVIDENCE VOLUME III
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CHAIR: We will start back with questions from Committee members; Tracy Crouch?
TRACY CROUCH MP: Thank you very much. You touched on it in the earlier questioning, but obviously HMOs exist across the country and in all major towns and cities across the UK, particularly in deprived areas. I have, I think, lots of HMOs in Chatham. So why should these regulations just apply to London authorities?
KEVIN THOMPSON: Well I think we need them in London for the reasons we did touch on earlier: we have more HMOs as part of our stock, and they are bigger, in higher demand, and do present a high risk. These proposals, I think, would benefit the whole of the country, and I think London would be a good testing ground for them, because if it could work for the highest risk, and most difficult to deal with HMOs, then clearly it would work for the others equally well.
TRACY CROUCH MP: But out of all the HMOs that you have, what percentage would you say are the highest risk?
KEVIN THOMPSON: Speaking for the borough that I’m currently in, in Kensington and Chelsea, virtually all of our HMOs are mandatory licensable HMOs, the large ones. They are four and five storeys generally, and are considered high risk. So in Kensington and Chelsea potentially more than 90% I would say.
TRACY CROUCH MP: Right, okay. Can I just ask you about a process thing, which is, you were saying earlier that, instead of criminal prosecutions, these regulations would allow local authorities to effectively pay for the repairs. Is that right?
KEVIN THOMPSON: I’m sorry; I didn’t understand that question.
TRACY CROUCH MP: The process that will be brought in under the new legislation will mean that instead of going to criminal prosecution, you will effectively bring in a management notice, which will basically ask the landlord to sort out the repairs, otherwise local authorities will pay for the repairs?
KEVIN THOMPSON: Yes.
TRACY CROUCH MP: If they don’t pay the bill, they will then go to prosecution?
KEVIN THOMPSON: Not necessarily, no.
TRACY CROUCH MP: Right.
KEVIN THOMPSON: The works in default would be carried out in their default, following service of a notice which specified that it was to be carried out. The cost for that would be registered as a local land charge alongside with an administrative fee from the local authority, and that would remain as a charge against the property title. The authority can issue a demand for payment, and if payment is not forthcoming there are powers for them to enforce that debt, to reclaim that debt, right up to powers of sale of the actual property. Generally for small debts that would not be pursued, but for large debts it has been.
TRACY CROUCH MP: So the cost would effectively therefore be on the local authority?
KEVIN THOMPSON: The cost would be registered to charge against the property, and would accrue interest until such time as the property was disposed of or the debt was settled.
TRACY CROUCH MP: But the initial cost would still be borne by the local authority?
KEVIN THOMPSON: Yes.
TRACY CROUCH MP: And at a time where local authorities are facing financial difficulties, will local authorities be able to actually afford to pay these upfront costs until they are actually paid back in whatever process they would be paid back?
KEVIN THOMPSON: I can only speak for my own authority. We do have budget provision for works in default. It never historically has been fully used in any year that I’m aware of. The actual potential carrying out of works in default tends to be enough to get the works carried out by the landlord. As with prosecution, it’s only in very rare cases, extreme cases that we actually have to carry out large-scale works in defaults. We do so for emergency works that require a really quick remedy, such as a broken drain or a dangerous gas appliance, that kind of thing, but for expensive larger scale works in default it’s quite rare.
TRACY CROUCH MP: I’m failing to really fully understand what it is that this legislation would give you that you don’t already have. So, for example, if I can just give a hypothetical example, if there’s an HMO in my constituency – there obviously isn’t in London, but for the purpose of the example – that, for example, doesn’t have its emergency lighting, for example. At the moment are you saying that the local authority has no power to ensure that that emergency lighting is fixed by the management company?
KEVIN THOMPSON: The management regulations would require the emergency lighting to be fixed; therefore, if were to use the management regulations, the only sanction we currently have is prosecution, which is inappropriate.
TRACY CROUCH MP: Why would it be inappropriate?
KEVIN THOMPSON: It would be inappropriate in that it is such a heavy-handed sanction to require what is quite a simple remedy. If we don’t have management regulations then we have to rely on HHSRS or licensing conditions. Licensing conditions, again, are prosecution – it has a rating system. We can use that, but it is very bureaucratic, very time consuming, and we would like a simpler resolution to what is a very simple problem: i.e. get the engineer to fix the lighting.
TRACY CROUCH MP: But presumably a prosecution is perhaps more of a deterrent than a fine or cost, because the prosecution will, as you said earlier in your evidence, mean that there is then a criminal record.
KEVIN THOMPSON: Yes.
TRACY CROUCH MP: Whereas, at the moment, if we go down this route there won’t be a criminal record until much further down the route. Therefore, it is more of an incentive under the current regulations for a management company to sort out the problem.
KEVIN THOMPSON: Well what we’re saying is defects in properties will occur, and where they are easily remedied, quickly remedied, we would rather have a simple way of achieving that aim, rather than going down the full-blown prosecution route, and some of the reasons for that I did touch on earlier. Firstly, it’s very time consuming and resource intensive for local authorities. The timescale that you have to go through to get to the end point for a prosecution is lengthy. It’s burdensome on the landlord, it takes up court time, it criminalises a landlord when really this wouldn’t warrant a criminal record for a simple defect, and lastly, it doesn’t remedy the defect. At the end of the process, the emergency lighting still may not be working, and we’re back to square one, having devoted all those resources to the question.
CHAIR: Can I just ask, just following on the same question, at the moment you have to go through a legal process, and you’re saying it’s bureaucratic and obviously it’s longwinded, but if you were going through the processes under this Bill, the very people who are in breach in the first place, particularly if it’s a serious breach, are likely to be the ones who are least likely to then pay the bill once the authorities fix it, and take on that upfront cost. And therefore you would be back into the bureaucratic process of having to go through the court proceedings to recoup that money, or put a charge on the property, which you might then get back some way along way down the line. How is that less bureaucratic? And also, in the same point, at a time where there is pressure on budgets, I would have thought the authority would not be looking to want to keep a huge reserve for that kind of upfront payment, and therefore there is going to be a potential long-term cost there before that money is recouped.
KEVIN THOMPSON: Yes. I don’t think local authorities do keep a huge reserve for these upfront payments. Works in default is very rare. Usually for small scale works the demand is settled by the landlord, should it get that far down the line; for larger costs, authorities do have quite robust debt recovery processes. Certainly in my borough we have been very efficient in that we have a very low level of debt. I couldn’t tell you what the exact figure is, but it’s very low.
CHAIR: Okay. And you made a comment, and obviously this is around making this provisionally for London – and I have a constituency with a number of HMOs as well – is your case for London being different pretty much based on it’s got more of them than anywhere else?
KEVIN THOMPSON: That’s one of the criteria; if we have more of them then in order to deal with them we need more resources, and if our resources are tied up in a bureaucratic process that doesn’t necessarily achieve the end result, that can’t be a satisfactory situation. If we can have a simpler, lighter touch, effective means of regulation, then we can devote those resources to the wider range of HMOs that require a heavier intervention. If I may say so, what we’re not saying here is that we shy away from prosecution or discard it as an effective regulatory tool; for persistent offenders, wilful offenders, we will take prosecutions, and we do. That is not an issue. What we are saying here is that this sector of private-sector housing is a high-risk sector that has vulnerable tenants; it does not have, in the main, a higher proportion of professional, well-intentioned landlords, in all cases, and we have a high regulatory demand. So we want some really simple, light-touch, effective regulation to remedy deficiencies without going down a bureaucratic or criminal route.
CHAIR: I understand that. The problem is I’m sure there are a lot more authorities around the country that would have the same view of the HMOs they’ve got, and this is the issue between this just being for London. My last thing, and I just want to ask some questions as well, if this is important is there any reason why this has not come forward as an amendment in the Localism Bill, and particularly the London Partner Housing part of that that’s been going through the House over the last few months?
KEVIN THOMPSON: I couldn’t comment on that, Chairman. I’ve not been involved.
CHAIR: Mr Dakin.
NIC DAKIN MP: Thank you. How often would you have used this power that you’re seeking in this Bill if you’d got it during the last year?
KEVIN THOMPSON: If we go back a number of years, when we did have this power it was routine. It was mainstream and routine; prosecution was the exception.
NIC DAKIN MP: Right, so how often would you be likely to have used it in a year, for example? I understand routine, but it doesn’t give me a sense of volume.
KEVIN THOMPSON: No, okay. Well, if I can speak for my borough, we’re a small geographical borough, but very densely populated. We think we have 309, currently, HMOs that should be licensed. We’ve licensed 190. We’re working through the others; it’s a resource-intensive process, but of the 190 licences that we’ve issued, a majority of those would have had management regulation notices attached to those licences had we had them available. What we are tending to do is try to remedy the management defects in an informal way, which would, in effect, mirror the management notice if we had it. Obviously it isn’t in existence; it’s an informal process. If that doesn’t work we then have to work back to the more bureaucratic process.
NIC DAKIN MP: That’s what I thought in a sense: why can’t you just send them a letter saying, "This is what you need to do otherwise we’ll take you to the courts."
KEVIN THOMPSON: We do, Sir, we do.
NIC DAKIN MP: So you’re informally following this sort of structure without statutory framework?
KEVIN THOMPSON: Yes we do.
NIC DAKIN MP: So why do you need a statutory framework? What will the difference be?
KEVIN THOMPSON: Following an informal notification process on management defects is pretty much the same process we would follow in serving a management notice were it on the statute books. The process is the same, the resource implications are the same, there are a few front-end references that we would need to do, like robust ownership checks, if we would serve a statutory notice, but the process is the same. What it would do if this was a formal notice procedure would strengthen up our current procedures and put them on a statutory footing. If the management defects were not then remedied, we have the sanction that we’ve talked about – works in default. The current informal process that we’re following has no sanction; at the end of the day it operates on goodwill, and advice. And if those defects are not remedied in the informal process, then we have to go back right to square one, and we would then have to either consider a prosecution, which in most cases might be heavy handed, or a hazard-rating process, which is, again, bureaucratic.
Some management defects can’t be dealt with under the hazard rating system – things such as basic cleaning of common facilities. We commonly come across shared amenities – and these are toilets, bathrooms, quite personal areas of people’s home life – which are simply not cleaned, and these areas are shared with other households, up to five if they’re in compliance, often households who these people don’t know. So you’re sharing your toilet, your bathroom, or possibly your kitchen with strangers in a property. If the landlord or his or her managing agent do not comply with the management regulations and keep those facilities effectively cleaned, they quickly descend into quite a disgusting state. Unless they go completely to the far end of the spectrum, it’s very difficult to pin that down to a category one, or even a high category two health outcome, under the hazard rating system. I mean, they are awful to live with, disgusting to look at, and I wouldn’t expect anybody in this room to want to use facilities like that on a day-to-day basis, shared with strangers in their own home. But it’s difficult for us to deal with it under HHSRS, because the clear health outcome isn’t always able to be demonstrated unless it’s an extreme case.
A management notice is what it is: it’s basic management to ensure decent living conditions for a landlord’s tenants, so if properties are not effectively cleaned, the toilets, facilities, kitchens descend into a disgusting state, this notice could quickly remedy that.
NIC DAKIN MP: So you’ve got about 190 properties that would probably be operating under that notice at the moment if you had that power?
KEVIN THOMPSON: Yes.
NIC DAKIN MP: Towards that, 150, 190.
KEVIN THOMKPSON: That’s just the licensable HMOs. Then there are the non-licensable ones too.
NIC DAKIN MP: But for the majority of those, the process you are doing would sort it out before you had to actually interfere. Is that what you’re saying?
KEVIN THOMPSON: I’m sorry; I’m not following you.
NIC DAKIN MP: I’m just trying to get the difference between how the formalisation of it helps, but I think I’ve probably said enough on that. Mainly your argument is to assist vulnerable people by acting quickly – that’s the main reason you want this power?
KEVIN THOMPSON: Yes, and to enable us to redirect our decreasing resources to areas of greater risk, and to achieve a greater number of outcomes, rather than to devote expensive staff to a bureaucratic and longwinded procedure, which often doesn’t achieve the outcome in terms of prosecutions.
NIC DAKIN MP: Thank you.
CHAIR: Ian Mearns.
IAN MEARNS MP: A number of questions, Chair, so apologies. Earlier on Mr Thompson you said that 37% of the stock in London, which is the highest proportion of anywhere in the country, were an HMO of one sort or another.
KEVIN THOMPSON: Yes.
IAN MEARNS MP: But you’ve got quite clear criteria in terms of the five occupiers, the two households, three storeys or more, about which ones need to be licensed?
KEVIN THOMPSON: Yes.
IAN MEARNS MP: So what proportion of properties across London would come within that definition – the tighter definition that would require licensing?
KEVIN THOMPSON: I haven’t got those statistics for you, I’m afraid. It gets even more complicated in that some boroughs have what is called additional licensing, where they have a large number of HMOs that are not within the mandatory definition for licensing, but they know they present a risk, so they have adopted an additional scheme, and they are also licensed. So the numbers of licensable HMOs is a bit of a grey area. I’m sure the figures are out there somewhere, and perhaps colleagues at the DCLG could help us with that, because they do collect that data in some form, and I think future inquiries could get hold of that data.
IAN MEARNS MP: I’m similar to other Members; I live in and represent a constituency which has quite a number of HMOs, but more in the town centre, urban setting, than coastal of that nature. I’ve got a lot of experience of dealing with the problems of HMOs. You’ve been quite scathing in the generality about HMO landlords. There will be exceptions, but by and large they don’t seem to be a particularly loveable bunch. Would that be right?
KEVIN THOMPSON: I wouldn’t like to couch it in those terms. There’s a wide spectrum of private-sector landlords. We know that. The properties that we’re looking at here, high-risk HMOs, tend to be at the lower end of the scale. There are some very good ones, and I could take you to some not far from here that are very well managed, and we don’t need to consider those, because these provisions won’t be aimed at them. They’re licensed, they’re well managed, and that’s fine. What we’re trying to do is home in on the bottom end of that market, which really does provide high-risk accommodation to vulnerable tenants who have no other real recourse, by the nature of who they are.
IAN MEARNS MP: Would I be right in my assertion that Members of Parliament should have a particular interest in the management of HMOs, because it is Parliament and the Exchequer which pays the rent for an awful lot of them through the housing benefit system? Would that be correct?
KEVIN THOMPSON: I couldn’t disagree with that.
IAN MEARNS MP: What’s the typical rent for a bedsit in a typical HMO in your borough?
KEVIN THOMPSON: With your permission I’ve got that somewhere buried in the paperwork – bear with me. I have it somewhere.
IAN MEARNS MP: Do you want to come back to that, if you can find that later, Mr Thompson?
NATHALIE LIEVEN QC: It’s paragraph 9.3 in Mr Thompson’s notes.
KEVIN THOMPSON: Thank you. Yes, the JLA did a survey across London. The median rent for bedsit accommodation is £92 per week; for studio flats £150 per week.
IAN MEARNS MP: Right. You mentioned earlier on one with 44 or 45 separate lettings?
KEVIN THOMPSON: Yes.
IAN MEARNS MP: And would that be a typical rent for those 45 or 44 separate lettings?
KEVIN THOMPSON: That wouldn’t, Sir, because this is a Greater London median. I just happen to be working the borough in the country which has the highest rents and highest property values in the UK, the Royal Borough of Kensington and Chelsea, and I could say that you could double those figures and it wouldn’t be too far wrong.
IAN MEARNS MP: I mean, if I said that that property was getting about half a million pounds per year from housing benefit, that wouldn’t be an exaggeration?
KEVIN THOMPSON: Well, those figures on the Greater London median, grossed up, bring in £95,680 per year, so if we were to double that for Kensington and Chelsea and some other central areas, I’m not good at maths, but it’s a lot of money.
IAN MEARNS MP: £200,000 – okay. Now, would I be right in suggesting that the sort of mechanism that you’re trying to establish through these provisions would be similar to the provisions that are available through the Town and Country Planning Act section 215, section 216, where a property is having a detrimental impact on the amenity of properties adjoining, and so you serve a notice on it to improve, and if they don’t improve you can take a whole range of other powers against the defaulter. Is that right? Is it similar to that?
KEVIN THOMPSON: Yes, broadly similar. We’re not asking for a broad range of further powers, simply the power to remedy the defect and recharge the cost under this notice, so just a single sanction.
IAN MEARNS MP: In answer to my honourable friend from Scunthorpe’s questions about trying to remedy the problems in an informal way, in your experience, is it that landlords comply, but after a prolonged period of metaphorically kicking and screaming? Would you say it like that?
KEVIN THOMPSON: Some do; again, it’s a broad spectrum. Sometimes, and very often, we simply need to write a letter to a landlord and the problem is dealt with; that’s the ideal scenario. Again, we don’t need to consider any of this, but the picture you paint is also very common, and some simply don’t respond at all to the informal action, so we have to resort to formal action.
IAN MEARNS MP: Okay. Thank you very much indeed.
CHAIR: I’d like just to follow up with a question from comments by colleagues. From what you’re saying, if I understand correctly, the landlords who are most likely to transgress, and have properties that you would want to deal with, because they’re in the poorest state, they are likely to be the ones that aren’t conforming to requirements, would ignore informal letters, and carry on doing their own thing. If you had the management powers, is it not fair to assume that they are potentially the same people who you would end up having to do the work for, charge them, but they would then not pay it anyway, so you wouldn’t be any further on in dealing with them other than now the council has got the upfront cost of fixing the problem, because they are least likely to play their part of the game, as it were?
KEVIN THOMPSON: They are the most likely not to comply. We would carry out the works and register the charge, and it would accrue interest, and we would pursue that debt in accordance with the council’s procedures; they vary from authority to authority. If they persistently and wilfully transgress following an action such as we’re proposing, then we still have the right to prosecution, and we would pursue it. This quick, light-touch regulation we’re proposing is not going to be appropriate for the very bottom rung of the landlord ladder, those who basically are seeking to avoid regulation and circumvent the law. We have a hardcore of those, and, if they are persistent and wilful offenders, we will prosecute, and we do, and we will continue to. This is for the middle ground.
CHAIR: Okay. Mr Thompson, thank you.
IAN MEARNS MP: Just for the record, in terms of the figures I was asking about before, the typical rent in the 45-unit property, if Kensington and Chelsea is twice the London average –
KEVIN THOMPSON: In some cases more.
IAN MEARNS MP: – would come to about £450,000 a year. I think that’s of interest, Sir.
CHAIR: Absolutely. Okay. I think we are going to ask Sally Randall if you can swap places.
NATHALIE LIEVEN QC: Just before Ms Randall speaks, Sir, it just might be helpful, because I haven’t taken you to this, to refer you to Schedule 2 of the Act, which is where the power to take action arises, and part three of that schedule deals with recovery of certain expenses, and that’s where the power to put on a local land charge arises. So that’s the enforcement provisions that Mr Thompson was referring to. And if I can just say, the process for putting on a local land charge is a pretty straightforward one, and then I suspect the genuine financial effect is that it makes it very difficult for the landlord to raise a mortgage on the property, so that is the enforcement route in there.
CHAIR: Thank you Mr Thompson. As a matter of procedure – Ms Randall, if you stay there, unless you want to carry on sitting there, but no one has taken that option yet today – just as a matter of procedure for members of Committee and everybody else as well, Ms Randall is a civil servant at the Department for Communities and Local Government, and therefore is here to explain the Government’s position, but is not here to defend it or quiz on its behalf either. So it’s slightly different in that sense, and hence she’s not in the inquisitional chair. Ms Randall if you’d like to make a submission on behalf of DCLG.
SALLY RANDALL: Thank you. Before talking about specifically management notices, it might be helpful if I set out the Government’s overall approach, which is also relevant to consideration of what we’re coming on to in part five. The Government at the moment has an overall objective to minimise new regulatory burdens, sanctions, or powers of entry, particularly as those apply to smaller businesses, and the vast majority of landlords are smaller businesses, and would meet the definition of micro-businesses under the current guidelines. Also looking specifically at the private rented sector, the Government has taken an overall view that the current framework, including the Housing Act 2004, which is a significant part of the current regulatory landscape, strikes basically the right balance between the rights and responsibilities of landlords and those of tenants.
Taking that context, Ministers set a very high bar in considering proposals for new regulations or regulatory powers, or sanctions, or powers of entry that have an impact on private landlords. In particular, in considering those, they would look for evidence of significant and widespread failings in the current system, and I think that call for evidence of significant and widespread failings is an important context for considering the proposals that we’re looking at today.
Turning to management notices, as Mr Thompson has already explained, the Housing Act 2004 introduced a range of measures that sought to improve management standards and the condition of privately rented accommodation, including, but not exclusively relating to, HMOs, houses of multiple occupation, and introduced the mandatory licensing of the larger, higher risk HMOs. As Mr Thompson explained, that risk is a combination of the nature of the property, the shared facilities, the large number of people in an individual building, but also, in some cases, the vulnerability of the people within it, and it was the risk attached to those people that’s also part of the risk. They are complex dwellings with complex risks attached to them, and that’s certainly not in dispute.
The Act also provided local authorities with the discretion to extend licensing to other, smaller HMOs, to address particular management problems where they exist in smaller properties, and this is the power to introduce an additional licensing scheme, which Mr Thompson also referred to. So where problems go beyond those larger, conventionally higher risk HMOs, local authorities can take a power to licence smaller HMOs, although very few have so far done so. HMO licensing, as has been discussed, works alongside the Housing Health and Safety Rating System, which was also introduced by the 2004 Act. Under that system local authorities can make a risk assessment of the likely impact of a property condition on the occupants of a privately rented accommodation, so it’s a risk-based system.
Where a hazard that they’ve identified presents an immediate risk – that’s a category one hazard – the local authority has a duty to take action to address that hazard, and they have a range of powers available to them to support that duty. I think most relevant to this discussion is that one of those powers is an improvement notice, which requires the landlord to make specific improvements, and if they don’t make those improvements they can carry out works in default and charge those costs on to the landlord. So it’s a very similar process, but, as has been explained, in order to access that process they have to go through making an assessment under the housing health and safety rating system – the HHSRS as we tend to call it, because it’s quite a mouthful.
Those powers, in the Government’s view, are very strong powers. They require a private property owner to make changes to their property, and potentially come with the sanction that if those changes aren’t made, then the local authority could step in, make those changes through entering private property, and charge the cost to the owner. The Government’s view is that it’s right for such a strong power to be supported by rigorous evidence, and for that evidence to be related, as it is through the HHSRS, to a risk to the occupant. It’s an important part of HHSRS that the powers are related to a risk to an occupant, not just to a problem with the property.
We’d be concerned, therefore, that the reintroduction of the old management notice regime, which related to the predecessor to HHSRS, would undermine the system that’s currently in place. It would introduce similar powers to those available under HHSRS, but without the same expectations of that risk-based evidence. One of the things I said at the outset was that the Department would look for evidence of widespread concern that the current system was failing, and one of our concerns with these proposals is that, in our regular contact with landlords and local authorities, and with groups like Local Government Regulation, who are the LGA’s experts of local authority regulatory powers, these issues haven’t been raised. There has been quite a lot of discussion over the last year or so, through various exercises, particularly those run by the new Government, of how regulatory processes carried out by local authorities could be streamlined. And there have been quite a lot of discussions, particularly around HMO licensing, in fact, and the Government is considering at the moment the HMO relicensing process as a result of those discussions with landlords and local authorities, but this issue is not one that has been raised with us except through this very specific vehicle.
Taking that all into account, the Government is therefore satisfied that the current legislation does get that right balance between the rights and obligations of landlords and tenants, and doesn’t therefore plan to make significant changes to the HMO licensing or HHSRS system, with the one rider to that that we are considering at the moment the HMO relicensing process, which kicks off very shortly, because the original HMO licenses, as those in the room will know, were issued five years ago, they’re five-year licences, and they’re about to come up for renewal. So that’s one area of work where we are considering changes to the system, because it’s something that’s been consistently raised around the country, by both landlords and local authorities, as an excessively burdensome process.
CHAIR: Thank you, any questions? Ian Mearns.
IAN MEARNS MP: Thank you very much Chairman. I’m a little taken aback that there isn’t any evidence that’s been collected by DCLG about the level of problems which exist in HMOs around the country, and I’m just wondering how rigorous the collection of advice from local authorities themselves has been. I know that, certainly when I’ve had discussions with officers of the LGA, and LACORS, there has been a very different picture in different parts of the country.
SALLY RANDALL: I think in DCLG we are certainly aware of a wide range of problems in the management of HMOs around the country, and through our contacts with LACORS, or LGR as they are now called, and direct with various local authorities around the country, we certainly wouldn’t say there aren’t problems with HMO licensing or with HMO management itself. What I was saying was that we haven’t been asked to make this particular change by anybody else, and it’s not been raised as an issue by any other local authorities who’ve talked to us; they’ve focused on HMO relicensing, where, in particular, they want to reduce the burden that they have to go through to deal with the good landlords, so that they can focus their efforts on the bad landlords, which is who they are all concerned with.
IAN MEARNS MP: So there is an acceptance at DCLG that there is a problem with bad landlords out there?
SALLY RANDALL: I think we certainly acknowledge that there are bad landlords out there; there’s no doubt about that.
IAN MEARNS MP: Okay, thank you for that. That’s all.
CHAIR: Nic, thank you.
NIC DAKIN MP: Thank you. Was I picking up that you are recognising that there is some need to streamline the HHSRS?
SALLY RANDALL: No, what we’re talking about streamlining is the HMO relicensing system, which is the process by which those HMO landlords who already have a license, come this year, will have to start applying for a new licence. Ministers don’t have any plans to make changes to the HHSRS as it stands.
NIC DAKIN MP: And will that approach assist in the problem that was being described to us earlier?
SALLY RANDALL: It’s not directly relevant to the problem described today, except in two slightly indirect ways: the first is that it will free up officer time, because it means that if we can minimise the bureaucratic burden of dealing with people who are already complying and simply need their licence reissued, then that frees up more officer time to deal with difficult problems. And the other thing is, simply the reason I mentioned it is it’s an illustration that that is how Government has responded to something where consistently several local authorities, and those representing landlords as well, have said that this is an excessively bureaucratic system, and therefore the Department is doing work to see what can be done to streamline it down. We haven’t had those concerns raised about those issues today.
CHAIR: Tracy Crouch.
TRACY CROUCH MP: Do you have any idea what percentage of properties in Manchester would be HMOs?
SALLY RANDALL: I don’t believe that we have comprehensive data on the number of licensable HMOs by district. It may be better if we can send you a note on this to explain the statistical background. Some of this is picked up through the survey of English housing, but that’s a survey, not a census, so it’s not comprehensive; it will give you an estimate, and there has been some attempt to create a register of licensable HMOs, but it’s not been terribly successful. I think we have to admit that the evidence base of the number of HMOs, particularly by district, is quite poor at a national level. Obviously local authorities are the people that we do go for the detailed information on the number of HMOs in their area.
TRACY CROUCH MP: But we’ve heard this afternoon that London has a high percentage; I think it was 37% of HMOs in London. With your knowledge of HMOs across the country, would you therefore see that as a special case? I mean, clearly that’s what’s been argued this afternoon.
SALLY RANDALL: I would certainly say that London has a high proportion of HMOs; partly it’s the nature of some of the housing stock in central London, areas like Kensington and Chelsea – very large historical properties that have been split up – and also the nature of the housing market that means that people tend to share for longer, so you get also a very large number of those smaller, not licensable HMOs, which might be single occupants, properties in other towns. So I would certainly agree that there are a lot of HMOs in London, but there are also specific areas outside London, particularly in coastal towns, where there are also concentrations of HMOs, and in some other city centres. So, London certainly has a lot of HMOs, but I don’t know if I’d say it was unique in having a large caseload, and some coastal areas would probably say that they also had a very large caseload to deal with.
CHAIR: Before we move to submissions, yes? Ian Mearns. Are we going to talk about coastal towns again, because I can chip in on that?
IAN MEARNS MP: The one thing that strikes me about this part of the proposal within the Bill is that it’s come to us through the different sort of hoops that it’s jumped through largely unaltered. We had some contention before from petitioners that the Bill, as it was presented to us now, was different from that which the London Local Government originally agreed to. Now, the fact that London Local Government was fairly unanimous in its feeling about this at the time of submission, and that it is largely unaltered, does that not at all affect DCLG’s view of the way in which this should be taken? In other words, this is the view that was put in at the time of the submission that the Bill was drafted, and is largely unaltered through its passage so far, so therefore the view of those local authorities would be unaffected by that?
SALLY RANDALL: The view of Ministers partly is that they take an overview of the regulatory burden and don’t see a case here, but also that we’ve not had submissions direct to the Department other than this. This is not an issue that comes up in casework – it’s not something that people are aware of when we are being made aware of other problems in terms of the bureaucratic burdens, so it’s just something that isn’t cropping up as regularly as we might expect if this was sort of the number one issue to be tackled in terms of streamlining the system.
IAN MEARNS MP: But would you accept, as well, we haven’t actually been killed in the rush of petitioners against these proposals?
SALLY RANDALL: No, I can’t comment upon that, but I’m not aware of the industry’s view on them.
IAN MEARNS MP: Thank you.
CHAIR: I would just say, to be fair, I think the last couple of questions probably weren’t appropriate to be –
SALLY RANDALL: We don’t mind.
CHAIR: But thank you anyway. Ms Lieven, if you want to move to close off issues that’s fine, but if you want to ask any questions technically through me of Ms Randall then please do.
NATHALIE LIEVEN QC: I think there’s only one, Sir, because it’s not appropriate for me to, through you, try and cross examine Ms Randall. It’s only that my instructions are that during the process of the 2004 Bill going through Parliament, local authorities generally, not just London local authorities, did raise issues around the HRS scheme, and concerns about maintaining the Management Notice regime. I think that the suggestion that everybody was completely happy and that this Bill is the only place where concern’s been raised is not my instructions. Perhaps I can put that to you; I don’t know whether Ms Randall knows anything about that at all.
SALLY RANDALL: I can comment on that briefly. I’d say that certainly, through the transition process from the old system to HHSRS, there were a number of local authorities who were rather attached to the old system in its entirety, and that were not keen on the introduction of HHSRS at the time. What I would say is that we’ve not seen general objections to HHSRS or to the burden of its management in recent years; that seems to us to be a relatively historical view, but that’s probably just a personal perspective on the views that we’ve seen.
CHAIR: Okay. Thank you. We’ll move to closing submissions, Ms Lieven.
NATHALIE LIEVEN QC: I’ll just be brief, again, Sir, because the Committee knows the pros and cons of this. In my submission there seem to be two arguments being made against what we’re proposing. One is it increases the regulatory burden, and secondly, why London? Now, as far as the regulatory burden is concerned, I would suggest that the situation is rather that DCLG are hanging on to their scheme, rather than looking at the merits genuinely of what we’re proposing. They’re just looking at it and saying, "Ah, you’re bringing in a new provision, therefore that’s new regulation." In fact what this is about is decreasing regulatory burden, making it easier for local authorities to take what I think Mr Thompson described as light-touch regulation away from the very bureaucratic HRS scheme, in appropriate cases. So one just has to be a little bit more imaginative – see the situation where local authorities are hard pressed to be using their resources in the most effective way possible. This isn’t increasing any burden on landlords, because the regulations already stand, they already have these obligations; it’s a way of making those regulations work in the most effective way. So this is about streamlining and making efficient regulation; it’s not at all about increasing the burden on anyone.
So far as why London and is there really a problem: well, London local authorities have spoken in the clearest way they possibly can in respect of this issue by promoting these clauses in the Bill, and obviously they had to do so unanimously to pass their resolutions. There is a strong perception in London that there is a problem here, and the way they’ve decided to deal with that is by bringing forward these provisions. They haven’t been lobbying DCLG separately, because they see the problem as being dealt with through this Bill. And there are specific issues; of course there are HMOs across the country, coastal towns, strange places like Milton Keynes have a lot of HMOs, because of the commuter issues, but London has a very high percentage proportion. It also has a lot of the bigger HMOs, for reasons Ms Randall mentioned, to do with the nature of the properties, but also because of the property market in London is a place where people are being squeezed into HMOs, and where standards can be at their lowest, because the demand for property so far outstrips the supply. So there are very specific issues around London which the local authorities have sought to deal with through this provision.
And just finally on issues raised by the Committee, particularly you Mr Chairman, in respect of the costs of enforcement: two points to be made, first of all, it’s the Promoters’ position from long experience that the power to do works in default very, very rarely actually has to be called on. Even the worst landlords don’t want the local authorities going into their properties and doing work. So what you find is that the works in default is the threat that gets the landlord to do the work, but in those few cases where the local authority actually does have to do the work, there is no more effective way of recovering for a local authority than being able to put a local land charge on, because you don’t have to effectively pursue anybody through the courts. You put a local land charge on the property and the owner can’t sell the property and can’t mortgage it. So, in fact, it’s a very simple way of getting your money back, much simpler than having to pursue any kind of civil debt.
So, Sir, in my submission there is a case about why London and the provisions are justified. I don’t think there’s anything else unless the Committee have any other questions for me?
CHAIR: Okay. Thank you. I think with that we move on to part five, housing powers of entry.
NATHALIE LIEVEN QC: Give me a moment, Sir, while we find the note. Yes. Part five, powers of entry. If I introduce it and then I’ll call Mr Princep.
CHAIR: Yes.
NATHALIE LIEVEN QC: Part five, like part four, is a provision which there were no petitions against, but which is reported against by DCLG. Part five is a bit more complicated than part four, because the reasons for part five come from the legal provisions and decisions of the residential property tribunal. I will do my best to explain these to the Committee. We do have the relevant statutory provisions if the Committee wants them, and if it becomes too complicated to understand with me just explaining it. Part five is all about the powers of entry of local authorities where they wish to carry out works or carry out surveys, whatever, under the Housing Act.
Now, the local authority, as the Committee will understand, needs to have a power of entry into a property, because otherwise, when the relevant officer goes on to the property, he or she would be trespassing. Officers can enter premises when invited by tenants, because the invitation, as long as the tenant has an interest in the property, would itself mean the officer wasn’t trespassing. But the difficulty arises, because by section 239 of the Housing Act, for any statutory function, before an officer enters the premises, he must give 24 hours’ notice.
Now, what had been the practice had been – if I take a typical scenario – tenant rings up the local authority and says, "My property is in a terrible state of repair and I can’t make my landlord do anything." The officer would then go round and visit the premises pursuant to that informal request, wouldn’t be a trespasser, because the tenant had invited them on to the premises, and the officer would then produce the relevant survey and serve the relevant notice. But the Residential Property Tribunal has found, in a series of cases, that before the local authority officer exercises any statutory power, and the critical one is to carry out a survey of the premises, he or she must have served the relevant notice under section 239 and given 24 hours’ notice. And if that isn’t done, the Residential Property Tribunal has said that any subsequent enforcement action is invalid. So any notice the local authority serves is invalid, any works done in default are invalid, and any costs can’t be recovered, because there was no statutory basis for them. So we have the situation where the local authorities now can’t safely go in pursuant to an invitation, carry out a survey, and then serve the relevant notices, because there is a severe danger that the RPT, the tribunal, will find those notices to be invalid, and then that will have cost consequences and expenses on the local authority.
Now the first point to deal with is that DCLG, as I understand it, say, "Don’t worry about that, because you can use your emergency powers under section 40." But the concern is that even those emergency powers under section 40 of the Act themselves rely on a survey having been carried out, and so they fall into the same problem: if it hasn’t been done pursuant to a power of entry notice, then the survey will be invalid. So section 40 doesn’t get us past the problem. The Committee may be thinking to itself: well what’s the difficulty with serving 24 hours’ notice? In the majority – well, I am not sure it is the majority of cases – but in many cases that is fine, that is what local authorities do. But the difficulty – and Mr Princep will go through this – is that in quite a number of cases with HMOs, certainly in London, the tenant doesn’t know the name and address of the landlord, may only have a telephone number, perhaps bank details, perhaps an agent picks up an envelope once a week. So it’s actually very difficult for the local authority to find the identity of the landlord. But the other obvious problem is quite often the landlords are companies registered outside the UK, and serving notice is a very complicated procedure. It’s not to say it isn’t possible, it’s not to say that one can’t get to the end result, but it can be a very lengthy and complex procedure.
So what we are seeking in part four is a power to enter in specific circumstances, without having served a notice – part five I should say, sorry, not part four. If I deal with the two issues together, because the other issue under part five is the authorisation of the relevant officer to allow the entry to take place, and that’s important, because it’s an important part of the protection that exists in this area. Under the Housing Act 2004, section 243, these powers can only be authorised by either a director of the relevant service or a deputy director, and those of the Committee who have any knowledge of local Government will know that those are very senior officers who have an awful lot of other responsibilities, and it may be very difficult to get that authorisation. So what we are proposing in clause 22 is simply that the next tier down of officer, so the person under the deputy director, can also authorise the action.
There are two points to make about that: that remains a very senior officer within local Government terms, and it remains an officer well divorced in hierarchical terms from the person who’s actually carrying out the survey and on the ground, so you get the kind of independence which is important. But the reason I’m doing these two clauses together is to emphasise the fact that clause 21, the power of entry, will still be subject to a high degree of control by senior officers in the local authority, so this is not an open invitation for junior local authority officers to just waltz into premises willy-nilly.
The final point to make, which Mr Princep will go through in more detail, is that DCLG, as we understand it, are taking the view that in fact an officer can be given a general authorisation to go into any premises, and therefore you don’t need to have a provision about a less senior officer being able to authorise, because the very senior officer can simply authorise the junior officer to go into any premises. That is not our reading of the relevant statute, because the relevant provision in the Housing Act section 239(1)(a) is that it has to be notice to "the premises", and Mr Princep will explain it’s always been Camden’s view that that means the authorisation has to relate to the specific premises, and not the generality of all premises.
Now, obviously the Committee can’t decide that – you’re not a court of law – but given that there is this real concern in local authorities, and that’s the way, certainly Camden, and many other local authorities have interpreted this provision, we don’t think it is at all safe to rely on an argument that the senior officer can give a one-off authorisation for the junior officer to enter any premises.
The final thing I should mention before I sit down is, I think it has been suggested by DCLG that the solution to the problem in respect of powers of entry was simply to appeal the Residential Property Tribunal decisions and say that they were wrongly decided. My instructions are that leave to appeal was actually refused in respect of the leading decision, and so the law appears to be fixed as we understand it to be at the present time. I appreciate that’s all quite complicated, because it relates back to different statutes, and we do have the legislation if the Committee wants it. But if I leave it there, and turn to Mr Princep. First of all can you explain to the Committee your experience in this area and your last relevant post, please?
DAVID PRINCEP: Yes. I’m currently an Independent Environment Health Officer working part time for a local authority and also for a landlords’ association, which operates across the country. I’ve got an Honours Degree in Environmental Health, an LLB. I’m a member of the Chartered Institute of Environmental Health. I’ve been qualified since 1976, and for over 20 years I’ve worked at improving the housing standards, both in this country and also abroad. But I’m very keen on also doing things, not just necessarily enforcement-wise, but also voluntary, and both myself and Kevin Thompson, who was on earlier, were instrumental in establishing the London Landlord Accreditation Scheme, of which I’m currently the chair, which is the largest landlord accreditation scheme in the country.
NATHALIE LIEVEN QC: You’re dealing with powers of entry. Can you just explain first of all why local authorities need powers of entry?
DAVID PRINCEP: Well, powers of entry traditionally have been basically to protect local authority staff from risk of being accused of trespass, and historically they’ve only been used in exceptional circumstances where access has been refused, or if the property is empty.
NATHALIE LIEVEN QC: So let’s go through the process: how does a council first of all become aware that there might be a serious problem at a premises, which includes an imminent risk of serious harm?
DAVID PRINCEP: Well, there are several ways that the local authority can become aware that there’s a problem, obviously the most common is through complaints, but there’s also compliance checks that a local authority may have to do around HMO licensing. There’s also, if you get a complaint of nuisance from one property to another, you may discover an imminent risk, and also occasionally a local authority may be taking some area action, around an improvement or other sort of action in the area, which would require periodic inspections.
NATHALIE LIEVEN QC: And in respect of complaints: just tell us something about the kind of complainants you’ve come across?
DAVID PRINCEP: Certainly the local authority I think tend to deal with the lower sector of the private rented market. Certainly a lot of the complainants are vulnerable, and it’s interesting the English Housing Survey say that the most likely people to make complaints to the local authority are actually single parents; they tend to have more problems with their property. But it’s generally people who are have problems with their landlord, who have tried to get the landlord to do the works, but without success.
NATHALIE LIEVEN QC: And what’s the normal procedure that a local authority follows when it gets a complaint?
DAVID PRINCEP: Most local authorities now, certainly in the London area, and talking to colleagues across the country, will actually have a general requirement that before they will investigate a complaint they make sure that the tenant has already contacted the landlord. If that is the case, then they will deal with it at that point; if not, they will suggest to the complainant that they contact their landlord and give their landlord the opportunity to do it. If they say that they’ve contacted the landlord, then a lot of authorities in London do what they call a triage approach, whereby they will send an officer out to have a look and investigate, and initially to see what the problem is, because it is sometimes very difficult to tell from the description from the tenant whether the problem is a serious problem or whether it’s a minor problem. So they approach it whereby an officer goes round, enters at the invitation of the tenant and makes an assessment. Once they have done that assessment, what they find will actually decide what action, if any, the local authority may make.
NATHALIE LIEVEN QC: Now, the powers that we’re seeking in clause 21 only relate, as you’ve already made clear, to conditions which are likely to give rise to unnecessary and imminent risks to safety or health of the occupiers of the premises. DCLG has said, quite rightly, that there’s a power to carry out emergency measures, where there’s an imminent risk, under section 40 of the Housing Act 2004. How does that relate to the powers of entry you’re seeking?
DAVID PRINCEP: Certainly, we agree that there are powers to carry out emergency works and also emergency prohibition of a property under section 40. Emergency works can be taken forward using section 40 powers, but before any of the emergency provisions can be actioned, the local authority must be satisfied that a category one hazard exists at the property. The only way that they can do an assessment is obviously to survey, to make a decision whether it is a serious issue. That then brings in section 239 requirements to give the 24 hours’ notice.
So, certainly, the view of the London authorities is that you have to give 24 hours’ notice before you can take emergency, remedial action, otherwise all the action will be invalid.
NATHALIE LIEVEN QC: And just explain – I tried to do it in opening, but I’m sure you’ll do it much better – how has that changed? Why has that become a problem recently that needs to be addressed?
DAVID PRINCEP: Well, basically, it all started with an RPT case, Residential Property Tribunal case, which I was actually involved in when I worked in Camden: Evans v Camden, whereby the RPT decided that before any enforcement action could be taken, 24 hours’ notice had to be given under section 239.
Now, I think this particular case caught a lot of the environmental health profession off key, because until this case, people had assumed that there was no need to give notice unless you weren’t invited in. But the key issue is that you’ve got a problem whereby you have to give 24 hours’ notice if you are going to visit a property – you have to give notice to the owner and to the occupier – and if the purpose of that visit is to ascertain whether there is going to be any enforcement action taken in connection with any part of the Housing Act. So, there is a subtle but significant change to the wording of the legislation and certainly the RPT cases say that subsections one to five have to be read as a whole.
If I can just read here: "Subsection five states that before entering a premises in exercise of the powers in subsection three, the authorised officer must give at least 24 hours’ notice. Subsection one states that subsection three applies where a local housing authority considers that a survey or inspection is necessary to determine any function under part one to three needs to be actioned." Then, subsection three states that "where this subsection applies, an authorised officer may enter the premises".
So, basically, what it requires is, before any survey can be carried out, the officer needs to give 24 hours’ notice, otherwise any subsequent action is invalid. This is certainly what has happened in nine of the 10 RPT cases that have actually considered these powers of entry.
NATHALIE LIEVEN QC: And would that apply just as much to the power to take urgent works under section 40 as to any other power?
DAVID PRINCEP: Yes, exactly the same power, because you have to assess whether a category one hazard exists at the property, and obviously section 40 is a power within the Housing Act, therefore you should, according to the wording of the legislation, give 24 hours’ notice.
NATHALIE LIEVEN QC: Now, in those cases, which fall within our clause, that is "where the conditions are likely to give rise to unnecessary and imminent risk to health or safety", perhaps it is obvious, but are the kinds of implications of delaying taking action?
DAVID PRINCEP: Well, the problem is obviously it is an imminent risk to the health of the occupier or visitor, so to discover that there is an issue there and then to have to leave it at least 24 hours before the local authority can take any action is unacceptable in a lot of cases. It leaves the enforcing officer with a horrible dilemma: whether they need to follow what the law says, or whether they need to act logically and expeditiously and deal with it ultra vires and risk some sort of penalty at some time in the future.
Obviously a lot of the people that we get involved with are vulnerable, and really do need to have assistance from the local authority. Some of the issues that are dealt with can be rectified relatively simply, or cheaply. Some of them might be a little bit more involved.
NATHALIE LIEVEN QC: And can you move on then to a different question, which is, what are the problems with giving 24 hours’ notice, in your experience?
DAVID PRINCEP: Well, apart from the problem of leaving the tenant technically at risk of injury, and possibly even death in some cases, there’s also the problem, even when if you decide you are going to give the 24 hours’ notice, that you then have to give notice to the occupier and the owner, if known. That can cause problems because sometimes all the local authority will have is a telephone number, and if the landlord happens to answer the phone, that’s fine, because there is no requirement for the notice to be in writing – a verbal notification is okay. Sometimes you will just have the name; you will have no address. Sometimes, you will have a foreign registered company, which makes it very difficult to be able to serve notice in those cases, and as far as I’m aware, no test cases has been taken on what you’re supposed to do in those circumstances for this.
There’s also the issue with the tenant as well. The tenant often will complain to us about an urgent issue, and then for the officer to have to tell the tenant that before they can do anything, they’ve got to leave the premises, contact, find the owner and then come back in 24 hours.
The other issue is, actually, the 24 hours’ notice doesn’t give the owner any right to go into the property anyway; they must, if they wish to go into the property, give 24 hours’ notice themselves, so they can’t go in with the officer. So, it’s distressing for the tenant, it’s distressing for the enforcing officer, which is a minor issue, but there is the problem of actually identifying the owner.
NATHALIE LIEVEN QC: Thank you. Now, is there anything else on clause 21, or shall we move on to clause 22? Clause 22?
DAVID PRINCEP: Yes.
NATHALIE LIEVEN QC: Now, this is the one about authorising the person below the Director or the Deputy Director. Just explain what the position is at the moment under section 243 if you would?
DAVID PRINCEP: Under section 243, the view is that you need to be authorised for each individual premises, and most authorities have a provision whereby before they will go to inspect upon premises believing that they’re going to take enforcement action, they have to be authorised for that particular premises from the Director or Assistant Director.
NATHALIE LIEVEN QC: And is that approach one that, as far as you’re aware, the Residential Property Tribunal was supporting?
DAVID PRINCEP: That’s certainly the case. There’s only one case that I’m aware of which has mentioned this particular point, and that was Williams v Monmouth County Council. In that, it made it quite explicit that the authorisation was not a general authorisation; it was a specific authorisation for the premises. That’s certainly the view that a lot of authorities have taken and it’s resulted in quite a complex procedure having to be set up in the authorities.
NATHALIE LIEVEN QC: And just explain in practical terms how much problem does that cause – that the authorisation can only be given by the Director or the Deputy Director?
DAVID PRINCEP: Well, clearly the Directors and the Assistant Directors are very busy and very senior members of the authority and are dealing with strategic issues, often in conjunction with other authorities. It can be a problem actually chasing them. Certainly, if one of the officers is off, if the Director is off and the Deputy is acting up in his place, normally there would be nobody covering that place, so there will be only one officer in the whole Council who, under the current provisions, as an officer, can get authorisation.
This applies to complaints generally, but obviously in a situation where you suddenly become aware that there’s an imminent risk, to actually then have to try and find the Director or Assistant Director before you can even start giving 24 hours’ notice can cause quite severe delays and problems.
NATHALIE LIEVEN QC: And we’ve produced lots of charts of individuals and how it works at Camden in the exhibits. We probably don’t need to go through that, but if we’ve got the powers in clause 22, how many additional officers would there be who could authorise the works?
DAVID PRINCEP: There would just be one additional officer. This additional officer would be still normally two tiers above the officers who would actually go out, but whereas the Director and Assistant Director are much more strategic and much more distant from the actual operation of the field staff, the officer that we’re suggesting is given delegated authority would be able to have a better idea of what is actually going on in the field.
NATHALIE LIEVEN QC: And a point that came up on part four, just do deal with it in respect of part five powers. To what degree within London local authorities do you understand the issues being dealt with under part five of this Bill to be real ones that people are genuinely concerned about and are spoken about widely?
DAVID PRINCEP: Well, certainly there is widespread support; we have found no authority which doesn’t support this, and of the 33 London authorities, we’ve managed to contact 28 authorities and every one of those is in support of these amendments.
NATHALIE LIEVEN QC: Thank you. Those are all my questions.
CHAIR: Thank you. Ian Mearns?
IAN MEARNS MP: Thank you very much, Chairman. The problem we’ve got with definitions about the levels of officers is that I think counsel has mentioned Deputy Director, Director and Deputy Director, and you yourself Mr Princep have mentioned Directors and Assistant Directors. In different London boroughs, necessarily, because of the different management structures, those definitions could be a bit cloudy. Is there a proposal or a note that goes with the Bill which sort of that opens that –
NATHALIE LIEVEN QC: If I can answer that, Sir? The relevant provision is in clause 22(2), and it’s an appropriate officer and that "(a) he’s an officer of the authority, his duties of his post consist of or include duties relating to the exercise of the authorities in connection with the authorisation given", so that’s the housing function; "(b) he’s been designated as an appropriate person by a person who fulfils the requirements of subsection 3(a) and (b), and remains so designated," so he has to be designated by the Director of Deputy Director.
IAN MEARNS MP: Right.
NATHALIE LIEVEN QC: And "(c) he reports directly to or is accountable to a person who fulfils those requirements as respects duties so relating." So, he’s got to be the next tier down, because he’s got to directly report to the Director or the Deputy Director. So, for exactly the reasons that you have said, Sir, which is that local authorities constantly reorganise themselves and rename people and no two have quite the same names, we’ve done it in that functional term, so that the person is very clearly defined.
IAN MEARNS MP: Obviously with the way in which local authority finances are being dealt with at the moment, a lot of organisations, when they look at it, flatten management structures, etc. I’m just wondering in those new structures which are happening around the country – it will be in London the same as everywhere else – will the designation of one additional individual make all that difference, because it’s quite possible that that one individual could be as unavailable as a Director or Deputy Director in an emergency situation?
DAVID PRINCEP: Certainly, obviously, we are only asking for one additional officer, but that’s a 50% increase in what we’ve got. Also, the Directors and Assistant or Deputy Directors, depending on which definition an authority uses, tend not to sit within the division; they tend to be on a different floor or somewhat remote from the field staff, whereas the field staff will often have an idea of where the location of this third officer would be, and also he may well sit in the same division and so they would be able to ascertain their availability much easier.
IAN MEARNS MP: In your experience, where there is a particular situation, a particular property, where there is a danger identified by a tenant or a resident, would there be any sort of automatic recourse to, say, the Health and Safety Executive?
DAVID PRINCEP: The Health and Safety Executive do have some control over the housing field, but they tend not to have much impact. Gas safety is an area where they may, technically, enforce certain provisions of it. But certainly the health and safety rating system does allow the local authority to take powers which also the Health and Safety Executive would do in connection with at work. Certainly the at work aspect tends to only cover houses of multiple occupation, blocks of flats, where technically they may have service staff going in to deal with the common parts, clean them.
IAN MEARNS MP: Where, for instance, they do have jurisdiction, the Health and Safety Executive, how responsive have they been, in your experience?
DAVID PRINCEP: They tend to risk rate everything, and certainly they can be of assistance, but not in an emergency situation where you want to deal with it immediately, as soon as possible. They’re unlikely to be that responsive to any issues. Also, their areas of control in the housing field are very limited: there are 29 hazards under the rating system, and the Health and Safety Executive would only deal with a couple of those areas.
IAN MEARNS MP: And apart from police officers acting under warrants of entry, can you think of anybody else who has right of entry to a property?
DAVID PRINCEP: Well, fire authority, the water authority, I think the electric authority can in certain circumstances, and the gas board in an emergency can go in without a warrant.
IAN MEARNS MP: Thank you, thank you very much indeed. It’s not unique to local authorities?
DAVID PRINCEP: No.
IAN MEARNS MP: Thank you very much indeed.
CHAIR: Tracy Crouch?
TRACY CROUCH MP: Could you just describe to me what a category one hazard is?
DAVID PRINCEP: I’m trying to explain the rating system. As Kevin explained, the process of rating the health and safety rating system, basically you look at the likelihood of an incident occurring and then you multiply it by the outcome. The outcome is risk of death, risk of injury, broken limb. It’s complicated tables that are used.
But basically, it says, legally, it’s any score above 1,000. That doesn’t mean much to the layperson, but it’s a very serious hazard which means that there’s a high probability of an injury happening in the next 12 months. But certainly, for this clause to be used, certainly for imminent risk of serious injury or health impact, it would be well above 1,000 in most cases. It would be quite significant. So, it would be the situation where there’s a risk that a child is going to get electrocuted or the family are going to fall through a floor which has got dry rot or that there’s water streaming in through the ceiling. These would be very serious, and I think a layperson in most cases would also accept that these are serious issues.
TRACY CROUCH MP: And so does this clause only apply to category one hazards?
DAVID PRINCEP: The access without the need for 24 hours, yes.
TRACY CROUCH MP: Right, okay. Could I just ask as well: are we talking only about HMOs here, or are we talking about all properties?
DAVID PRINCEP: No, certainly not. It applies to all properties. Interestingly, 24 hours is a long time in environmental health. It also applies to owneroccupiers, and in one north London area I’m working with, they’re actually looking at having to take enforcement action under the rating system against an owneroccupier, because this owneroccupier is so vulnerable and does need the local authority to actually assist them to make their property safe. Very unusual situation for that to happen, but it applies to all rented accommodation and all owner-occupied properties. But the local authority isn’t going to start rushing into owneroccupier properties – only if there’s a very vulnerable client who needs assistance.
TRACY CROUCH MP: So that leads me to my final question: why only London?
DAVID PRINCEP: That possibly is a question you need to put for the DCLG. Certainly, there does seem to be a problem with the legislation, and having spoken to officers outside London, they are concerned about it as well. But certainly, the London authorities are aware of it and have brought forward this Bill. Whether some time in the future the Government will say, "Possibly we need to look at the rest of the legislation."
CHAIR: I don’t have any questions either, so Mr Princep, thank you.
NATHALIE LIEVEN QC: Can I just clarify one point, Sir?
CHAIR: Absolutely. Mr Princep, you talked about owneroccupier properties, but this only relates to rented accommodation, doesn’t it? It’s not to privately owned, freehold accommodation?
DAVID PRINCEP: It’s very, very unlikely that we would ever use it in that situation, except where there is somebody who is tremendously vulnerable, but it is very unlikely we would ever use it.
CHAIR: That has just led to a question, because there’s a difference between what you’re saying and what counsel is saying. Because counsel is inferring, or asking the question to clarify, that it is only rented accommodation, and you’re saying it’s not?
DAVID PRINCEP: Well, the rating system applies to all properties; it applies to owneroccupiers, but the local authority rarely gets involved in owneroccupier properties, rarely –
CHAIR: But in theory, this legislation, as drafted, would allow for that?
DAVID PRINCEP: In theory yes, possibly.
NATHALIE LIEVEN QC: I’ll check that overnight, Sir.
CHAIR: Yes, I think it would be helpful if you –
NATHALIE LIEVEN QC: Be entirely clear tomorrow, and quite right that you picked up that I didn’t get the answer I expected.
CHAIR: Yes.
NATHALIE LIEVEN QC: Thank you, Mr Princep.
DAVID PRINCEP: Thank you.
CHAIR: As per the same procedure we had for part four, I’ll ask Sally Randall. We’ll try this time not to push you down the line of giving an opinion on behalf of Government Ministers.
SALLY RANDALL: That’s alright. Before I get into the general points, could I just put our view on the last question that just came up, which is that our view is the same as Mr Princep’s: that the Housing Health and Safety Rating System and the associate enforcement powers apply to all residential property. It is right that it is very rare for them to be used against the owneroccupier, because the relationship is different, but in terms of some vulnerable people, it is. Our understanding is that any changes made would apply as to the rest of the system, to all residential property; it’s a housing-wide system.
There’s probably two main points that I should cover. The first is the general policy position, and then there are quite a lot of technical points. Government’s overall policy position as you might know, is that Ministers believe there are at present too many powers of entry, not too few, and they would like to see powers of entry scaled back wherever possible. The view is that powers to enter private property should be given and exercised sparingly.
Having said that, actually I think most of the areas where we disagree with the promoters on these provisions are actually, as you will have gathered from what’s already been said, more technical in nature and about, actually, what the current legislation allows. In many ways, Ms Lieven has already made most of the points that I would’ve made, because we’ve discussed them in meetings and in correspondence already. But I will just go through a couple of points.
I think we have a different understanding of section 40 of the 2004 Housing Act, which relates to emergency remedial action and how that can be used. We recognise that the power of entry under section 40 doesn’t relate to the initial inspection of property to determine whether a category one hazard exists. But our opinion is that a local authority doesn’t need to give 24 hours’ notice to an owner of property where they have been invited in by the occupier, as they are not using their formal power of entry under section 239 of the Act. So, our understanding is that when, if invited in by a tenant, for example, a local authority could then take emergency remedial action under section 40 and it would be safe to do so. There was also some discussion about contacting landlords and that that was very difficult to do. Again, our reading of section 40, where we are talking about emergency situations, which is an imminent risk to the occupier, is that section 40 modifies other parts of the Act, so that the notice that you have to give to the owner is to be regarded as so served if a copy of it is fixed to some conspicuous part of the premises or building. So, the need in an emergency to track down the occupier and either talk to them or give them a letter is different in an emergency situation.
So, again, I think really our differences are around the interpretation of the Act as opposed to the intention. The Department agrees that in an emergency situation, where there is a risk to an occupant or visitor to the property, that the local authority should have powers to enter property and take appropriate action. The difference in this case is around what we believe the current legislation always gives powers to do.
There’s been some discussion of Residential Property Tribunal cases. I would just make a couple of comments on those. Particular reference was made to Evans v Camden in 2007, which concluded that an improvement notice served by the Council was invalid as the original power of entry had been exercised unlawfully. My understanding – I defer to lawyers on this, and I’m not a lawyer – is that the Residential Property Tribunal don’t set legal precedent, so when it was said earlier that the law was fixed by that case, that’s not our understanding, and although there have been other subsequent cases that have come to similar views, there have also been other cases that have taken the other view. There was a case in Gloucester in 2008 that found that 24 hours’ notice need not be given if emergency action is required. One feature of the Camden case in 2007 was that the view of the Tribunal was that the hazard found at the property was not a category one hazard and could therefore have been dealt with through a hazard awareness notice. So, our view is that the law and the legislation is not as clear cut as the Promoters would suggest. So, that covers the 24 hours’ notice.
In terms of the senior officer availability, I think we probably return more to the principled view that powers of entry are rare and should be exercised sparingly, where we do not see a case for needing to identify more officers who can carry out that function, because that seems to us to detract from that position; the power of entry should be used sparingly.
Again, there is a technical difference as well as that, whereas our interpretation of the Act is that an authorisation could be issued by the Deputy chief officer to individual officer to any relevant premises, but again, I’m not sure how far we will get today in terms of our different interpretations of whether the Act relates to premises or the premises or specific premises. There is a difference of opinion there. But that is against a general policy context that Ministers at the moment are not looking to extend powers of entry; they see that local authorities already have quite wide-ranging powers of entry and are able to do the job with them.
CHAIR: Okay, thank you. Nic Dakin?
NIC DAKIN MP: There does appear to be a different legal view on how the powers operate. Has the Department got any desire to clarify that legal view, so that we don’t have these problems, not only in London but elsewhere in the country?
SALLY RANDALL: I think we’ve been involved in discussions with our lawyers, with the promoters to go through that. I think because we are all involved in this process at the moment, that is the preoccupation in terms of clarifying it going forwards. Depending on the success or otherwise of this Bill, we would then look to see whether we thought any clarification was needed.
NIC DAKIN MP: So would the Department’s clarification in relation to this Bill, if these provisions in the Bill didn’t happen, assist in a court of law, in terms of allowing the Department’s interpretation to triumph over the other interpretations?
SALLY RANDALL: I don’t know; I’m not a lawyer, I wouldn’t want to comment in detail on that. I would say it is for the courts to interpret legislation rather than the Department, and all we can really do is set out our understanding of the legislation, which is that it is sufficient and gives sufficient powers. Whether it needs to be clarified in future, which may perhaps be by amendment to clarify the original purpose rather than to give greater power of entry, would be a question for Ministers in future.
NIC DAKIN MP: Okay.
IAN MEARNS MP: I’m fine, in as much that one significant thing that Ms Randall said is that Ministers are not looking to extend powers of entry, and I don’t want to crossexamine her about what Ministers have –
CHAIR: Very wise. Ms Lieven, is there anything through myself that you wanted to –
NATHALIE LIEVEN QC: No, I haven’t got any questions, Sir.
CHAIR: Okay, thank you Ms Randall. Have you got anything you want to sum up on four and five?
NATHALIE LIEVEN QC: Yes, just very briefly. As I understand what Ms Randall is saying, there is actually no principled objection to either of these clauses. The difference between us is that DCLG think that we already have these powers, and we think on the basis of RPT decisions that it’s highly questionable. The critical point is that if it is highly questionable and we’re right, and we haven’t got the powers, then any local authority that tries to rely on the permission as it stands at the moment is seriously at risk in relation to costs, either the costs of the actions or the cost of remedial works.
So, just dealing with each one in turn. In terms of the power of entry, I think there might be a slight misunderstanding between DCLG’s position and ours. Under section 40(1) of the 2004 Act, the local authority can only undertake emergency remedial action if it is satisfied that a category one hazard exists. Now, in order to get to the stage of being satisfied that a category one hazard exists, the local authority has to have undertaken a survey. What the RPT has said is that that survey, in order to be a valid survey, has to be undertaken pursuant to a power of entry. So, the power that Ms Randall referred to in section 40 about dispensing with the need for notice is the notice of actually doing the remedial works; it isn’t the notice of the survey. So, on the basis of the RPT decisions, we would still fall foul of those decisions because the original survey would’ve been invalid, and that vitiates – sorry, legal word – or undermines the whole legal process that is undertaken. So, Sir, the critical point is that Ms Randall is saying that, "Well, you can already do all this"; we’re saying, "We don’t think we can." On Ms Randall’s interpretation, all we are seeking is clarification to make the law entirely clear in London, that the position is as DCLG says it should be. That is all we seek, so that there is no confusion.
She is right to say – and I tried to explain this, although probably not very well in opening – the RPT doesn’t strictly set a legal precedent, but because Camden were refused permission to appeal the RPT decision there, effectively the law is fixed, because nobody has been able to take this matter to a higher court, because the Lands Tribunal didn’t give permission to appeal. The only basis on which they could’ve done that is that they must’ve taken the view that the law is clear. So, we are in a slightly odd situation where the DCLG says the law is one thing, and it appears that the courts have said the law is different.
The position, I would suggest, is even clearer and if not glaringly odd in respect of senior officer authorisation, because the position of DCLG is that officers can be authorised to enter any premises. Now, of course, if that was right, we would be more than happy; we would be skipping away from this committee perfectly cheerfully. The difficulty is that we just do not think, on advice, that that accords with the words of the 2004 Act, which refer to "the premises", not "any premises", under section 239. But again, all we are asking for is clarification in this Bill that makes the position entirely clear. So, we are not asking for any extension to the powers of entry at all over what DCLG say; in fact, we are saying, if we are right, the powers of entry will still be very much narrower than DCLG. So, I hope I have made that relatively clear.
Thank you Sir, that deals with all the opposed clauses.
CHAIR: Does anybody want to ask Ms Liven anything on that point? Okay, well, that leaves us just with the unopposed clauses. Looking at the time, rather than start something – we’ve got just over 10 minutes or so. It seems to be probably logical that we pause there and we do unopposed clauses in the morning. On that basis, then, we will adjourn until 09.30 tomorrow morning.
NATHALIE LIEVEN QC: Can I – sorry.
CHAIR: Yes.
NATHALIE LIEVEN QC: As far as the unopposed clauses are concerned, what we are intending to do is call Mr Wilson on clause 8, which is the tables and chairs clauses. We are not at the moment intending to call any witnesses on any of the other clauses, but if the Committee want us to call witnesses then we will try to arrange to do so tomorrow. But I’m not going to ask the fallback witnesses to be here tomorrow morning at this stage.
CHAIR: I think that for most people, I’m sure that will be fine. But we will adjourn until 09.30 tomorrow morning.
(End of Session)
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