RANs - Food Standards Agency

Post-implementation study of the introduction of Remedial Action Notices (RANs) for non-approved businesses in Scotland, Wales, and Northern Ireland

Julien Etienne & Michael Munnik with Jelena Dzakula & Hiten Shah

2015

Post-implementation RANs study

FS514108 Study FS514108 Final report

Post-implementation study of the introduction of Remedial Action Notices (RANs) for non-approved businesses in Scotland, Wales, and Northern Ireland

Dr Julien Etienne (London School of Economics and Political Science & Food Standards Agency) and Dr Michael Munnik (University of Cardiff) with Jelena Dzakula (University of Westminster) and Hiten Shah (FSA)

Contents Executive summary........................................................................................ 3 2. Introduction ............................................................................................. 7 2.1. Background ...................................................................................................................... 7 2.2. Aims of this study ............................................................................................................. 9 2.3. Research design and methodology ................................................................................ 10 3. Making sense of the use/non-use of RANs in the devolved nations .......................... 11 3.1. Who is (not) using RANs? .............................................................................................. 11 3.2. How can we explain the use / non-use of RANs? ........................................................... 11 3.2.1. Training, understanding, and confidence ................................................................. 12 3.2.2. Attitudes within the food team .................................................................................. 13 3.2.3. Resources ............................................................................................................... 17 3.2.4. Political preferences in the council ........................................................................... 18 3.3. Conclusions ................................................................................................................... 18 4. RANs in practice ....................................................................................... 20 4.1. Overview ........................................................................................................................ 20 4.2. Uncertainties and contradictions .................................................................................... 22 4.3. RANs and confidence in management ........................................................................... 23 4.4. RANs as escalation of response to non-compliance....................................................... 26 4.5. RAN as an alternative to other tools ............................................................................... 27 4.6. RANs in combination with other tools ............................................................................. 30 4.6.1. RANs and other formal tools .................................................................................... 30 4.6.2. RANs and informal actions (revisits and education) ................................................. 32 1


FS514108

4.7. RANs and regulatory reasonableness ............................................................................ 34 4.8. RANs and prescriptive enforcement ............................................................................... 34 4.9. Conclusions ................................................................................................................... 36 5. Are RANs effective? ................................................................................... 37 5.1. Solving problems with and without RANs: a tale of two small kitchens ........................... 38 5.2. RAN breaches................................................................................................................ 40 5.3. Why may RANs be effective? ......................................................................................... 41 5.3.1. RANs are immediate................................................................................................ 42 5.3.2. RANs push (most) businesses to comply................................................................. 42 5.3.3. RANs do not alienate businesses ............................................................................ 44 5.3.4. RANs have ‘closed the opportunity and the excuse for [the officer] walking away’ ... 45 5.4. Conclusions ................................................................................................................... 46 6. General conclusions and recommendations ...................................................... 48 6.1. Generalities .................................................................................................................... 48 6.2. Implications for England ................................................................................................. 52 7. References .............................................................................................. 53 Annex 1. Methodology ................................................................................... 54 Annex 2 – In-depth comparison of paired cases ..................................................... 59 Pair 1: LA4 and LA5 .............................................................................................................. 59 Pair 2: LA2 and LA7 .............................................................................................................. 64 Pair 3: LA1 and LA9 .............................................................................................................. 69 Annex 3 – Food Law Practice Guidance (Wales), April 2014, Chapter 3.5: REMEDIAL ACTION NOTICES..................................................................................................... 74 Annex 4: The pyramid of enforcement for violations of food hygiene regulations .......... 80 Index ........................................................................................................ 81

Acknowledgments: Julien Etienne wishes to thank the Economic and Social Research Council (ESRC) for funding support. Julien wishes to thank Peter Mascini for comments and suggestions on an earlier version of this report. All remaining errors and shortcomings are the authors’ sole responsibility.

2


FS514108

Executive summary -

-

-

-

-

-

-

-

-

-

Remedial Action Notices (RANs) that may be served to non-approved premises became available to Environmental Health Officers (EHOs) in Wales, Scotland, and Northern Ireland in 2012. At the beginning of 2015 this study has aimed to assess whether RANs have been used, why, how, and to what effect. The methodology consisted in a preliminary analysis of aggregate enforcement data stored in the Local Authority Enforcement Monitoring System (LAEMS) database, followed by collection of qualitative data from a sample of selected Local Authorities (LAs) from Wales, Scotland, Northern Ireland, and England, completed by comparative analyses of pairs of LAs within that sample. The selection of LAs and the selection of Food Business Owner (FBO) cases within LAs strived to achieve a controlled balance between different LA profiles and different patterns of RAN use. 11 LAs were visited, 2 of which were in Northern Ireland, 3 in Wales, 4 in Scotland, and 2 in England Since they became available to officers in Scottish, Welsh and Northern Irish LAs, RANs have been increasingly used, as revealed by the LAEMS data. That overall increase corresponds to wide variation between LAs: according to the latest LAEMS returns, about half of all LAs in the Devolved Nations (DNs) (for the period 2013/2014) had not served any RAN to a non-approved food business. The evolving picture of RAN use since their introduction suggests there has been a progressive take up of the tool, with early and late adopters. Furthermore, officers have had varying views about the tool (enthusiastic, tentative, hesitant, or reluctant), which influenced whether and how quickly they adopted RANs. There is an ongoing learning process with RANs, hence future LAEMS returns will likely show that the use of RANs has been spreading further within the DNs. The way RANs have impacted on practices vary from no use at all, to very few RANs served for a narrow set of issues (i.e. dual use of complex equipment), to moderate use, and relatively frequent use. More frequent users of RANs were not using them more frequently than they used other tools, and particularly Hygiene Improvement Notices (HINs). Several potential explanations for variations in RAN use were raised by interviewees and were independently reviewed by the research team. Resources did not seem to make a difference to RAN use/non-use, nor did political preferences in the council. Training played only a partial role: it was experienced as helpful and enabling by a number of LAs visited, but it was not in itself enough to explain why some LAs were serving RANs, and others were not. There was evidence that preferences on how non-compliances should be addressed – and particularly the way those preferences were upheld by managers and communicated down to officers – had a significant influence on observed patterns of RAN (non-)use. This

3


-

-

-

-

-

-

-

FS514108

emerged more clearly from comparisons between LAs that were highly similar in many respects but differed in their ‘enforcement style’. For the LAs more reluctant to serve formal enforcement notices in general, and RANs in particular, the E.coli guidance and its background of a major food poisoning incident that had put officers ‘on the spot’, appeared to have influenced their decision to serve a RAN. There, RANs were served for a restricted range of issues, and chiefly the dual use of slicers and vacuum packers. This was in contrast with other issues (e.g. the lack of hot water), which would not trigger a formal enforcement response in those LAs. The E.coli guidance was also influencing officers to serve RANs in LAs that were not as reluctant to serve formal notices. There was widespread support for RANs in all the LAs visited, including those that had not served any RAN yet, or very few. Consistently across the sample, RANs were seen as a welcome addition to the toolkit of enforcement officers, one that ‘filled a gap’. Views differed on the extent of that gap, however. These different views were reflected in the practices observable across the LAs. RANs have been served for a wide variety of issues, and chiefly for cleanliness, crosscontamination issues, and equipment problems. Less frequently, RANs have been also served for problems in temperature controls, Hazard Analysis and Critical Control Point (HACCP) and Food Safety Management Systems (FSMS), personal hygiene, pest control, structure, lack of hot water. Anecdotally, RANs have been served for training / lack of awareness of staff, maintenance issues, non-registration, drainage issues, and noncompliance with a HIN The variety of issues for which RANs have been served reflected a degree of inconsistency in the views held across LAs, and anecdotally across EHOs within a given LA, on when RANs were the appropriate response and when they were not. Discussions with FSA staff strived to ascertain the Agency’s understanding of the range of circumstances when a RAN would be appropriate, and its boundaries. On that basis, it appeared that a minority of LAs/EHOs in the study held a more restrictive view of when RANs could be served than the FSA. Another minority of LAs/EHOs held a more extensive view of when RANs could be served than the FSA. The majority of cases of RANs reviewed for this study, however, appeared compliant with the FSA’s perspective, as far as could be ascertained on the basis of the information provided. A primary reason for serving a RAN was, besides the relative seriousness of the issue, the officer’s assessment of the level of confidence that could be given to management at the premises. However, that did not preclude the serving of RANs based on the perception of an urgent risk to the public, even when confidence in management was high, or when the business was a new business (and confidence in management might be more difficult to assess). Those were, however, exceptions to the rule. In cases where no urgent action would be required, RANs were also used as a step up in a process of escalation, when previous attempts, either informal, or informal and then formal (i.e. one or several HINs) to address a continuing offence had failed. RANs may thus have introduced further leeway for officers to follow a process of escalation when dealing with persistent non-compliance. Such graduated approach is in line with guidance. However, 4


-

-

-

-

-

-

-

FS514108

when a RAN would follow from a non-complied HIN, it would be used in a way that has been explicitly discouraged in training courses. The study found suggestive evidence that RANs might sometimes be used instead of HINs or Hygiene Emergency Prohibition Notices (HEPNs). RANs would be easier to serve and/or require a quicker response from businesses than HEPNs or HINs. Guidance issued by the Food Standards Agency explicitly rules out some of these substitutions, and training courses specify how these notices may apply to distinctly different issues and circumstances. There was only partial evidence, either quantitative (LAEMS) or qualitative showing that RANs had been frequently used instead of HINs or HEPNs, however. There was extensive evidence that RANs have been used in conjunction with other tools, both informal and formal. Revisits and education efforts were often abundant before and/or after a RAN was served. The comparative evidence between LAs having served RANs and LAs not having served any (or very few) did not support the argument that RANs were a means for resource-strapped and less business friendly LAs of doing away with the job of helping (via education/advice) non-compliant business to improve. RANs were sometimes used in a prescriptive way. They appeared to either manifest a prescriptive orientation stemming from elsewhere (e.g. the E.coli guidance on dual use of complex equipment), or to enable officers to back up prescriptive requests to FBOs with a formal notice. As officers have been learning to use RANs, they also reflected on the circumstances when it might be appropriate to prescribe the means of achieving compliance, and when it might be appropriate to let the FBOs identify those means by themselves instead. The effectiveness of RANs is a difficult question to assess at this stage. The data available, both the quantitative data recorded in LAEMS and the qualitative data collected during fieldwork, have significant limits. A more fundamental obstacle lies in the contextual and incremental nature of enforcement work. The study documents how ‘similar’ issues may be resolved with different means, sometimes with RANs, and sometimes without. This shows that enforcement work is a kind of craft (Tata 2002), whereby officers deal with peculiar cases in a trial and error fashion. Hence, it is inherently difficult to generalize on the particular added value of a single tool like RANs, across a large number of cases. In lieu of firm evidence, the study documented the view of interviewees having used RANs: overwhelmingly, they reported that RANs were effective. This was corroborated by the fact that only a very small number of RANs served by participating LAs had been breached, and none had been formally appealed or challenged in court. RANs were perceived to be effective for a number of reasons, and chiefly because they were immediate, operating as a ‘stop notice’; because they seemed to push most businesses to compliance; and because they appeared not to alienate businesses and rather offered a more business friendly response to non-compliances than HEPNs. Anecdotally, more active users of RANs argued that RANs had closed an ‘opportunity’ for officers to walk away from a problematic business without having resolved a problem: arguably, officers might have done so before and justified their decision to their peers or

5


FS514108

manager on the ground that they missed the necessary tools to tackle the problems encountered. -

-

One of the more striking findings of this study is the progressive and contrasted take up of RANs across the DNs. This contrast reflects different LAs’ attitudes to uncertainty that many interviewees reported when considering which uses of RANs would be appropriate and which ones would not. Variations in the take up of RANs appeared to reflect also different attitudes to formal enforcement more generally (including but not limited to RANs). It is likely that an hypothetical introduction of RANs for establishments not subject to approval in England could likewise lead to a wide variation of responses between LAs. Revised training and guidance might contribute to reducing the extent of such variations. Another striking finding is a degree of inconsistency between LAs on when a RAN could be served and when it could not, and an ongoing debate between officers and LAs on this topic. This suggests that guidance and, to a lesser extent, training pertaining to RANs specifically might have to be updated to reduce the scope of inconsistency and address this debate.

6


FS514108

2. Introduction 2.1. Background In the UK the Food Standards Agency (FSA) is the competent authority for the implementation of a number of European Union regulations dealing with matters of food safety. Official controls under these regulations are undertaken, for a part, by the FSA directly, while most other controls are undertaken by Local Authorities (LAs), on behalf of the FSA. Officers in Local Authorities delivering official controls in the area of food hygiene regulations are Environmental Health Officers (EHOs). EHOs have at their disposal a number of tools, some informal and others formal, and are encouraged (by the FSA, via guidance and training) to use them in a proportionate, graduated, reasonable, effective, and risk-based manner. Across the UK in 2006, the FSA introduced Remedial Action Notices (RANs) into domestic legislation that gives effect to EU food hygiene regulations. RANs may be used to address breaches of the EU hygiene regulations, or where inspection under the hygiene regulations is being hampered. A RAN may be served to: -

prohibit the use of any equipment or any part of the establishment impose conditions upon or prohibit the carrying out of any process; or require the rate of operation to be reduced or to be stopped completely.

At the time RANs could only be served to premises approved under EC Regulation 853/2004.1 This enabled the use of RANs in approved meat premises, dairy, fishery and other approved premises handling Products of Animal Origin (POAO), including non-retail cold stores. While RANs were part of the toolkit of officers dealing with approved premises, it was not available to officers who dealt with premises not requiring approval. In 2012, amendments to the domestic hygiene legislation in Scotland, Wales and Northern Ireland extended the scope of RANs into premises that are registered under Regulation 852/2004: premises that do not require approval. This means that enforcing bodies (mainly local authorities, FSA and the Northern Irish Department of Agriculture and Rural Development (DARD)) everywhere except England can serve RANs in any food premises that are either registered (i.e. not approved) under Regulation 852/2004 or approved under Regulation 853/2004, for failure to comply with requirements of food hygiene regulations. In England however, it has not been possible to extend the scope of RANs to registered / non approved premises. In the past, FSA has unsuccessfully sought agreement from the Regulatory Committees for such extension for England.2 1

RANs had a precedent before 2006, in the form of ‘Regulation 10 notices’ available under the domestic meat hygiene legislation, which could be served to licensed premises. 2 Background documents can be found at these addresses: http://tna.europarchive.org/20141204090942/http:/www.food.gov.uk/sites/default/files/multimedia/pdfs/con sultation/extenremedialactionnoticeeng.pdf (last accessed 06/07/2015) and http://www.food.gov.uk/sites/default/files/multimedia/pdfs/board/fsa110906.pdf (last accessed 06/07/2015).

7


FS514108

As argued in FSA papers produced in 20113 to support the introduction of RANs in the toolkit of officers dealing with non-approved premises, RANs could help address a gap in enforcement powers, as they could apply to circumstances where other types of notices, such as Hygiene Improvement Notices (HINs) and Hygiene Emergency Improvement Notices (HEPNs) would not be appropriate: ‘There is currently a gap in the enforcement powers available to the competent authorities that are delivering official controls in food establishments. The gap occurs where: - there is a singular breach or ongoing non-compliance with the food hygiene legislation in an establishment not subject to approval; - the food business operator (FBO) is not prepared to voluntarily take corrective action; - the breach is significant enough to require immediate corrective action, but an ―imminent risk of injury cannot be readily demonstrated, meaning that a Hygiene Emergency Prohibition Notice (HEPN) cannot be applied (for example, where there are serious cleaning deficiencies or serious structural defects)’ In a ‘pyramid of enforcement’ tools, the RAN has been presented as a tool of intermediary force and seriousness between the HIN, which according to the Code of Practice is the first port of call for officers in terms of formal enforcement, and the HEPN, which is for imminent risk circumstances (see Annex 4). In those papers, examples of circumstances where a RAN could be served included: -

A lack of proper cook or chill temperature control which may place consumers at risk; Cleaning issues - use of a HIN with delayed implementation may be inadequate in certain circumstances; Proportionate remedy for cross-contamination problems; A lack of hot water supply; Pest infestation and drainage defect issues.4

Scotland

England

Wales

Northern Ireland

2013-2014

128

63

49

12

2012-2013

94

57

48

14

2011-2012

19

62

1

3

2010-2011

10

62

4

1

Table 1: Number of remedial action and detention notices served, 2010/11 to 2013/2014 (source: LAEMS data). It should be noted that LAEMS does not have distinct entries for RANs and detention notices, hence these figures include both. However, it is reasonable to assume that most of the increase since 2012 corresponds to RANs, rather than detention notices. 3

http://tna.europarchive.org/20141204090942/http:/www.food.gov.uk/sites/default/files/multimedia/pdfs/co nsultation/extenremedialactionnoticeeng.pdf (last accessed 06/07/2015) 4 Note that such examples were not listed in the relevant sections of official guidance after RANs were introduced for the non-approved sector in 2012.

8


FS514108

Available data for the period before and after the extension of RANs in the Devolved Nations is indicating a steep rise in the use of RANs in Scotland (S), Northern Ireland (NI), and Wales (W), while the number of RANs served in England has remained more or less stable (Table 1).

2.2. Aims of this study The introduction of extended RANs was aimed at optimizing the enforcement toolkit of Authorised Officers (AOs) in order to improve enforcement outputs. Since it was not introduced in England, but was introduced in Scotland, Wales and NI, this has created a ‘control’ against which to assess the impact of such a change in the toolkit of AOs. Preparatory work in this area indicated that a statistical measure of RANs’ effect on compliance levels was not feasible, however. This is due to the many other confounding factors and processes that might affect compliance levels at the same time, limitations in the enforcement data collected into LAEMS (e.g., the fact that enforcement and compliance data is not dated), and the limited period of time since RANs for non-approved premises were introduced (which means that too few cases were recorded in the database to make any statistical analysis). As a result, it was not possible to effectively assess the impact of RANs through a controlled comparison between the Devolved Nations and England (the various reasons why an assessment of RANs’ impact is inherently difficult to achieve are discussed at greater length in section 5). Rather, an overview of the data revealed extensive variations with regard to whether LAs in the DNs had actually used RANs or not. According to data submitted by LAs to the FSA in 2014, about half of all the LAs in the DNs had not served any RAN to a non-approved establishment two years after they were given that power. This contrast within the DNs has created conditions for comparing users and non-users in a controlled manner. Hence, in order to shed light on how introducing RANs has been translated into practice (or not), the research has focused principally on assessing how the introduction of RANs has affected enforcement practices in Local Authorities (LAs). It has therefore strived to explore various hypotheses on why and under which circumstances LAs would use or not use RANs. In that respect, the project has considered the relative efficiency of RANs compared with other enforcement tools, and whether that could explain the way they have been used (or not) by Authorised Officers. Broader considerations, such as personal preferences, LA resources or understanding of the tool, have also been explored. The study has also strived to provide rich and nuanced evidence on how RANs have been used. In that process, it has also strived to understand how issues that were dealt with using RANs in some LAs were dealt with otherwise in other LAs. Besides, while firm quantitative evidence could not be gathered, the study tried to gather other elements indicating how effective RANs might have been. This included the number of RANs in the sample that had been breached or challenged in court, and their perceived effectiveness, relying for that matter on the views of officers interviewed for the study. While doing so, it also 9


FS514108

gathered quotes on the reasons why officers thought RANs were effective, or, conversely, why other options than RANs might be also effective.

2.3. Research design and methodology The project began with a review of the LAEMS data for LAs located in the DNs. This review intended to explore, among other issues, the distribution of RANs across local authorities. This was then relied on to select cases for a more in-depth qualitative inquiry into regulatory decisions by officers. Local Authorities which had been serving RANs since the Spring of 2012 and LAs which had not would both be approached. In total 11 LAs were visited: 2 in Northern Ireland, 3 in Wales, 4 in Scotland, and 2 in England. Within each sub-group, selection was a function of two sets of parameters: the first set of parameters corresponded to the history of enforcement practices at the LA. LAs were distinguished in terms of their ‘enforcement style’ (May and Winter 2011): preferences towards the use of a formal vs informal, coercive vs facilitative approach in their interactions with regulated businesses. The second set of parameters corresponded to the general profile of the LA in terms or relative urbanness/ruralness. The aim was to approach LAs that would present both rural, mixed, and urban profiles. The final sample includes 2 LAs situated in Northern Ireland, 3 in Wales, and 4 in Scotland. Two additional LAs located in England were also visited. Those were selected based on similarities with some LAs located in the Devolved Nations that had served no RANs or very few. Within each LA the officers reviewed and discussed with staff a limited number of cases of nonapproved FBOs, some of which had received a RAN and some of which had not received any. Besides analysis of FBO and LA cases, the study undertook also controlled comparative studies across FBO cases and LAs. Further details on the sample of LAs and the methodology used are provided in Annex 1.

10


FS514108

3. Making sense of the use/non-use of RANs in the devolved nations In this section we explore whether and why LAs have used RANs for registered / non-approved FBOs since their introduction in the DNs in 2012.

3.1. Who is (not) using RANs? Not all LAs in the DNs have served RANs to non-approved businesses since they became available. According to LAEMS returns – which includes a single measure for RANs and detention notices – for the first financial year when LAs in DNs were able to serve RANs, only a maximum of5 28 (out of a total of 80) actually used the tool. That number went up to 43 in 20132014. That was slightly more than 50 per cent of all the LAs in Wales, Scotland and Northern Ireland. However, among those 43, 24 appeared to have actually served only one or two RANs.6 Among the LAs that have used RANs in the period from Spring 2012 until now, heaviest users (in absolute numbers) have been urban LAs or mixed profile LAs with a significant urban element. However, when considering this issue looking at ratios (number of RANs and detention notices served per FBO), the outlook is more mixed, with a few rural LAs in the leading pack. Among LAs that have not used RANs (or detention notices), one finds also urban, mixed, and rural LAs, including the majority of Northern Irish LAs. These figures suggest that there could be further progression towards greater use of RANs in DNs. The contrast between early-, late-, and non-adopters of RANs may point towards factors that could delay or block altogether the adoption of RANs in DNs, including possible flaws in the tool.

3.2. How can we explain the use / non-use of RANs? There are a number of potential explanations for the relative use or non-use of RANs in LAs. These explanations are not necessarily alternatives: the evidence suggests that both the use(s) and non-use of RANs are linked with a combination of factors. Some explanations can be ruled out based on both the interview data and LAEMS data, others are more hypothetical and might be further confirmed or rejected by additional data. We explore below the role of training, understanding and confidence (3.2.1), attitudes within the food team (3.2.2), resources (3.2.3) and political influences (3.2.4). 5

LAEMS records RANs in the same category as detention notices. Hence, the figures represent the highest likely number of RANs served and recorded, but not necessarily the actual number. Queries at LA level suggested that this figure corresponds overwhelmingly to RANs rather than detention notices, however. 6 From a statistical perspective, such low figures prevent any assessment of the contribution of RANs to compliance levels in a given LA, or in the DNs more generally.

11


FS514108

3.2.1. Training, understanding, and confidence The evidence on the influence of training, and the role of understanding and confidence is mixed. RANs were servable only to premises subject to approval until mid-2012. One might thus assume that not every officer had experience of dealing with such premises. Therefore, their habitual ways of working would not necessarily include RANs. Training could compensate for that lack of familiarity, and indeed the overwhelming majority of LAs in DNs received some training on RANs for the non-approved sector since 2012. Nonetheless, some officers still showed a lack of confidence when queried about the possibility of serving RANs. For instance, two EHOs in LA6, interviewed jointly, indicated that it is not a tool they often consider when on an inspection - the first officer to mention this had previously worked in England, where this power was not available for non-approved premises: EHO2: To be 100 per cent honest with you, if I’m out and I find problems somewhere, it doesn’t really come into my head. Maybe it’s because it’s new and… EHO3: There’s maybe a reluctance to use it. EHO2: It’s only when maybe you come back to the office and [you start] discussing it with somebody, ‘You know, that is criteria for serving a RAN.’ EHO3: It’s having the confidence probably in yourself and knowing that’s the right option.

Both officers demonstrated a good general awareness of the possible applications of RANs, but when they were out at work, they relied on tools they knew and trusted. Other EHOs in LA2 and LA8 also indicated they tended to use other tools they were more familiar and confident with. This could be linked with the view from some interviewees, who were not satisfied with the training they received on RANs for non-approved businesses. How RANs should be worded, and what issues they should be served for remained unclear afterwards, they said. Examples given in training were for process flow and rate, characteristic of approved premises but less so of non-approved ones. Notions of when RANs could be used in non-approved premises arose from examples actually shared by attendees to the training course who had experimented with RANs (e.g., to address temperature issues with fridges), rather than from those provided by the trainer. ‘And then as we went on the training course where people had used it for fridges not at the right temperature, we were thinking would that be the right scenario? So I think the more you became informed then you could see that you could use it in that scenario, but it wasn’t until you were faced with that scenario you were thinking is it the most appropriate tool?’ (LA6 EHO4)

Similarly, examples were shared between officers from different LAs when they met in regional meetings. Yet, other respondents rather were quite positive about the training course, which they found enabling. The limited - but not insignificant - role played by training received by interviewees is made clearer from the contrast emerging from two LAs (LA4 and LA6) from the same DN which received the same training from the FSA, including information about RANs. LA4 has shown 12


FS514108

relatively vigorous use of RANs. Both the manager and officers interviewed described it as an important part of the tools at their disposal. They referred to the training as an enabling experience, which gave them more confidence to use the tool. LA6, however, has served only one third the number of RANs compared with LA4, despite having three times the number of food businesses in its borders. Staff there mentioned that more training might be beneficial for gaining confidence in administering this notice. That may suggest that, at least in the form it was communicated to participating LAs, training was not a sufficient condition for participating LAs to bring officers the level of confidence to begin using this tool.

3.2.2. Attitudes within the food team Interviews showed a complex picture when it comes to officer/management attitudes towards RANs. On the one hand, positive statements on RANs could be found across the board, both in LAs that have served large numbers of RANs, and in those that have not. Interviewees generally considered it was good to have RANs within the officer’s toolkit, and considered that it filled a gap7 (3.2.2.1). On the other hand, there were indications of variations in ‘cultural’ inclinations, notably against serving them, which coincided with a significantly lower or even inexistent use of RANs in those LAs (3.2.2.2). In such cases, use or non-use was not necessarily, or at all, a matter of ‘confidence’ about RANs. It was sometimes a matter of officers having confidence in other ways of resolving issues than through the use of RANs, however. The E.Coli guidance was a special case, in that it appeared to motivate the use of RANs even in those LAs most reluctant to use formal notices (3.2.2.3). 3.2.2.1. Shared positive views on RANs Across LAs, whether they served RANs or not, interviewees appeared to have a clear, shared understanding of why RANs were of interest, relative to other tools available. In particular, the view was shared across that RANs ‘filled a gap’ between HINs and HEPNs. ‘Well you were stuck, but I said…cause if you couldn’t prove imminent risk, that then there was nothing else you could do, unless you were going to serve a Hygiene Improvement Notice, which sometimes isn’t…well you don’t get an immediate effect with that do you? You’ve got your 14 days, so it wasn’t…there was a gap’. (LA7 Mangr) ‘Officers (...) for many years had a kind of nuclear option and then nothing other than persistent harassment to get a business to comply’ (LA1 Mangr)

RANs could, for instance, be served for cleanliness, which has been a change since

7

The detailed understanding of the nature and extent of that gap is discussed in section 4., and more particularly in sub-section 4.4.

13


FS514108

‘you don’t tend to serve notices on things that are ongoing. We’ve always had that problem with HINs. You can’t serve them on cleanliness really because it’s…I think really it’s, you advise and if they don’t do it it’s prosecution.’ (LA8 EHO1) ‘I went to the premises and the standard of cleanliness was not adequate, so we felt that the person, the food business operator might be living at the premises and we were concerned about the cleanliness and how things were stored. So I served a Remedial Action Notice because I felt that there was no justification to shut the premises, because there wasn’t an imminent risk from that premises. I could see that it wasn’t cleanliness that would necessitate closing the premises, but what I needed to do was take action, serving an Improvement Notice wasn’t appropriate because of the length of time to achieve compliance, so a Remedial Action Notice was served to achieve compliance within a short timeframe and to give the food business operator a very clear understanding of what needed to be done that day, there and then.’ (LA8 EHO2)

Seldom did any officer indicate displeasure with RANs. The worst we heard was a grudging, ambivalent statement of its purpose. One other comment suggested that the problems RANs were designed to solve were not the greatest problems facing EHOs on their rounds, and mentioned registration as a more pressing issue. Despite such rare cases of open scepticism, the general view across LAs and officers was overwhelmingly positive. This was, however, not reflected in actual practices, which differed widely between some of the LAs visited and others.

3.2.2.2. Different LA cultures, occasionally discouraging the use of RANs There were significant variations between EHOs in their approach to the tool. Some had used the RANs as an outcome of reflective consideration: they saw the gaps that the tool filled and thought of ways to apply it. Some had used the RANs because they were encouraged by others to consider it - most significantly, managers, although the encouragement of trainers or the example of colleagues was also reported to have an impact. Once they had served a RAN, they were comfortable with it. Others still had not used RANs, and there had been no explicit encouragement to do so. Among these, some said, in tandem with the prevailing management ethos, that they had sufficient tools to do the work without it. And some said it was just because the right case had not presented itself yet. This last type deserves more scrutiny, which we can see in the case of the ‘almost RAN’. Three of the selected cases included instances of officers considering issuing a RAN but ultimately not serving it. One, from LA6, involved the dual use of a vacuum packer for raw and ready-to-eat (r-t-e) foods; another, from LA9, concerned unsatisfactory cleaning and disinfection of the surfaces and food contact items. In both cases, the EHOs threatened to serve a RAN, and they said that they had confidence in the management to comply without binding them to the actual legal notice. The first case concerned a high-end restaurant, and the FBO was eager to defend the FHRS rating; the second concerned an ethnic restaurant and takeaway, and the EHO felt that language barriers were hindering the FBO’s understanding but that he genuinely wanted to comply and felt the EHO was there to help him. The third ‘almost RAN’ concerned the 14


FS514108

delivery of bread rolls to a fish and chip takeaway in LA9. The rolls were stored in a lock-up box exterior to the premises that was not properly secured against weather and pests. ‘When I witnessed this I said to them, “This needs to stop: the rolls could be contaminated by faecal matter of birds, rodents, whatever.” We took the rolls away, actually, so they didn’t go into the food chain, but I had drafted out a Remedial Action Notice to prevent this, to stop that process occurring. Not to limit it or reduce it but to prevent it. And I said to them, “The way around this is you can get your rolls at a supermarket. You don’t need to get 24 rolls delivered at half past five in the morning. Just nip over to a supermarket and get them.”’ (LA9 EHO4)

The EHO had drafted the RAN and was on his way to deliver it when he received text messages from two different staff at the business, including the FBO, saying they would follow his advice. In all three cases, the officers were satisfied that owners would comply with the agreement without the need for a formal notice. It is unclear why they would take a chance - especially in the third case, in which the FBO has a history of poor compliance. The EHO trusted in his consistent scrutiny, making repeated visits, to uphold hygiene standards. None of these officers expressed a concern that issuing a formal notice would change their relationship with the FBO. We suspect that the ‘enforcement style’ as a prevailing cultural attitude set by management influenced these decisions. Thus, the manager of LA6, who had a more cautious and conservative style, noted: ‘We don't issue a lot of notices’ and stated his confidence in the effectiveness of other, informal ways of resolving issues: ‘You know, if something works - i.e., an informal approach - I’d far prefer that’; and the manager of LA9 indicated with pride that ‘we think we are doing the job properly (…) we think our results show that, but we’re doing it a bit different from… from the way other people do it.’

Conversely, it was also managers who contributed to the use of RANs in other LAs. For instance, the manager of LA4 was energetic and creative, and he frequently expressed an independent attitude from other bodies – such as, the council, other LAs, or the FSA. Though he made self-deprecating comments about needing to learn how to write RANs properly, he was confident in his use of them and his approval when officers told him they were considering issuing one. He was, in fact, the first of the environmental health staff in LA4 to serve a RAN. When asked, he said he was not ‘looking for a case to try’ RANs on - it was a risk-based assessment of the situation which included an evaluation of his confidence in the management and the past history of the FBO (for more details on LA4, see section 6.1). Staff at LA4 attribute both the training they received and its first use as factors which gave them confidence to consider the notice as part of their toolkit and make use of it: ‘At the time [RANs were introduced for non-approved premises] we didn’t think too much about it. But once one was done here, we started to push a bit harder because we realised it was fairly straightforward. And then we did a course here on how to write them.’ (LA4 EHO1)

Their manager issued the first and second RANs, indicating to officers that this is a tool management approve of using.

15


FS514108

Detailed focused comparisons within three pairs of Local Authorities are presented at greater length in Annex 2. These comparisons provide ample evidence that established ways of working of Local Authorities shed decisive light on the way different LAs have used RANs or not. Thus, it is reasonable to suspect that some of this comes down to organisational culture, which Marvin Bower (1966) summarised as ‘the way we do things around here’. This culture, upheld notably by management, conditions the attitudes of individual officers and their ‘enforcement style’. In the case of non-users, even when a notice is drafted and ready to serve, the preference is always to find other means. Crucially, such preferences may reflect tested ways of doing things. For instance, interviewees in LA9 signalled their satisfaction with an approach to non-compliances that did not involve the use of many formal sanctions, yet delivered the results they aimed for. Conversely, embedded organizational ‘cultures’ might drift from considerations of effectiveness, and rather be rooted in other considerations, such as beliefs and routines.

3.2.2.3. The special case of the E.coli guidance In 2011, the FSA published a document on E.coli O157 and cross-contamination. This guidance was meant to address poor handling practices, which might lead to cross-contamination and food poisoning. It was a response to outbreaks of E.coli O157, in Scotland in 1996 and in Wales in 2005.8 The E.coli guidance seems to have partially counteracted the influence of organisational ‘cultures’ discouraging the use of formal enforcement powers. A good example is LA7, an authority where officers have an informal approach to solving issues and where, accordingly, very few formal notices have been served over the years. But, when it comes to issues of crosscontamination and dual use of complex equipment, EHOs have gone against their habitual way of ensuring compliance and resorted to RANs (a longer discussion of LA7’s case can be found in Annex 2, Pair 2). ‘They were using the vacuum packer for both raw and ready-to-eat foods. It seemed the right thing to do, because again he went and spoke to the staff and said from now on the vacuum packer is not to be used for raw meat. But I think it just formalises it with the RAN, so if anything does happen down the road and there’s a food poisoning breakout, you have made it clear that that is a risk and they are not to do it. (…) That’s what it is, rather than just an agreement. (…) With the E.coli guidance and the investigation in the Wales E.coli breakout there, that was crosscontamination from the dual-use of a vacuum packer. So it is a big issue, and worry’. (EHO2 LA7) ‘I mean that has changed, because prior to that outbreak and the guidance, we would’ve just gone down the route of as long as we think you’re cleaning it properly and can describe it and the person’s been trying to, then you…you take that. But following the E.coli outbreak and the guidance that came from that, then that is no longer the case’ (LA7 Mngr1).

8

Further information about the E.coli guidance can be found at: https://www.food.gov.uk/businessindustry/guidancenotes/hygguid/ecoliguide (accessed 8 July 2015).

16


FS514108

Thus, even in LAs where normally no notices would be served, RANs have been very occasionally served to address key problems emphasized by previous major incidents with E.coli and the E.coli guidance. This signals that prescriptive regulation may have the effect of counteracting otherwise embedded reluctance to serve notices. The prescriptive influence of the E.coli guidance was also felt in LAs less reluctant to serve formal notices, or RANs more generally, such as in LA4: ‘Maybe in the years past we wouldn’t have been that rigid. We may not have served those types of notices but because of the E.coli, that has driven some of the decisions to serve for remedial action’ (LA4 Mngr1)

One LA (LA9) has resisted serving RANs even for issues such as dual use of vacuum packer or slicer, however. The environmental health team at LA9 was committed instead to an attentive policy of informal visits and revisits. The manager said he believed his office is adequately resourced, has the enduring political support of councillors, and has all the tools necessary to ensure compliance.9 Officers monitored compliance through brief, repeated visits, and these were opportunities both to investigate practices, such as the maintenance of temperature records, and to answer questions if FBOs had queries or concerns. Making visit results public was another way to encourage businesses to comply. By these means, the environmental health team in LA9 upheld standards concerning cross-contamination and the E.coli guidance without the binding legal force of RANs.

3.2.3. Resources It could be argued that the use of enforcement tools might be conditioned by the resources available in a given LA. That argument has been made in the interviews, and in other research, particularly in relation to the cost effectiveness of prosecution, and the use of tools such as HEPNs, which require substantial work to implement. More generally, one could assume that less well-resourced LAs would be also more frequent users of RANs: it is not so difficult to use, as it does not involve going to a magistrate/sheriff/procurator fiscal; and may be a less resourceconsuming response than an informal response, which may require many and frequent revisits to a problematic FBO and /or coaching. However, the data available from LAEMS does not show a strong correlation between the level of use of RANs and the ratio of businesses subject to official controls per officer in post.10 Arguably, much depends on the particular strategy adopted by officers and the Local Authority 9

This comment was made in the context of an interview on RANs - these have been a tool for use with non-approved food businesses for three years, but they have not been employed; at certain points in the interview, this manager indicated RANs had their place and that EHOs in his team might make use of them in the future, but the overwhelming gist of the interview indicated a preference to uphold standards by other means. Whether this means that RANs are included in the sufficient collection of tools he feels he has at his disposal is unclear, but it is clear that officers under his management are not using them. 10 Including all observations, the Pearson correlation coefficient is -0.03, p-value 0.79. Considering only those that actually served RANs the Pearson correlation coefficient is 0.06, p-value 0.69.

17


FS514108

to address non-compliance, which may involve intensive work whether or not it would include the use of formal notices. The third case study detailed in Annex 2, which compares LA1 and LA9, illustrates the difficulty in making resources a determining factor in an LA’s choice of strategy for food safety enforcement. Though one LA considers itself poorly resourced and the other well resourced, nonetheless both adopt resource-intensive practices of education and revisits to rectify concerns with problem premises. One has served a significant number of RANs, and the other none at all. Besides, LA6, which has served very few RANs, considers itself under-resourced and has aimed at reducing the number of revisits to businesses. ‘Well I know we just would not have the time for the officers to sit with the business and spend a lot of time. We actually have – one of our performance indicators is to reduce the number of revisits because we really don’t – there’s always pressure on us to complete the programme, and it would be a luxury for us to spend a lot of time with the business’ (LA6 Mngr1)

Hence, the matter of resources appears to matter more for maintaining a programme of revisits and educating FBOs, and for maintaining a full programme of inspections (as opposed to a riskbased approach prioritizing higher risk businesses), than for deciding on the use of RANs.

3.2.4. Political preferences in the council The study found no conclusive evidence that the pattern of use of RANs in any given LA was determined by the preferences of councillors.

3.3. Conclusions This section has strived to shed light on the pattern of use / non-use of RANs that was observable across the sample of visited LAs, itself a reflection of the pattern observable in the LAEMS database. General statements on RANs were overwhelmingly positive and as such did not provide any insights. Such a unanimity of responses could be the result of a desirability bias. The study found that officers felt more or less confident to use RANs. Revised training courses, including more examples of RANs served to non-approved premises, might help address that issue. Managerial support for officers to actually link training with daily practice also played a role. The evidence shows there is a link between RAN use and more general attitudes towards enforcement held by officers within food teams. General attitudes appeared to reflect organisational cultures, which likely operated as filters when RANs were introduced and training courses were attended. In particular, non-users expressed a reluctance to use formal tools to achieve compliance. Some expressed also their confidence in a quasi-exclusively informal strategy (see in particular the case of LA9, discussed at length in Annex 2). That does not mean 18


FS514108

that adopters were opposed to adopting an informal strategy to resolving non-compliances. Rather, among more frequent users, there were LAs strongly committed to an informal approach as a matter of preference, but that also embraced RANs as a useful element for implementing a ‘graduated approach’ to enforcement (see the cases of LA4 and LA5 in Annex 2). Prescriptive guidance such as the E.coli guidance might lead most LAs, including LAs having a deep-seated reluctance to serve notices, to serve RANs for particular issues (see also section 4.7.) Meanwhile, factors such as the level of resources available, or the political preferences of councillors did not appear to have any influence on the use / non-use of RANs.

19


FS514108

4. RANs in practice In this section we explore how RANs have been used. We provide both a descriptive account of the range of businesses and issues targeted with a RAN, and unpack the decision-making processes that officers have followed when serving a RAN. After a descriptive overview of the issues for which RANs have been served and the FBOs they have been served to (4.1), we outline the uncertainties and contradictions that some of the RANs served reveal (4.2). We then discuss how RAN use has been linked with confidence in management (4.3), how RANs have been used to escalate response to non-compliances (4.4), how they have been used as alternatives to other tools (4.5), and how they have been combined with formal and informal actions (4.6). We also discuss whether the frequency with which they have been used has been measured or excessive (4.7), and whether it has led to more prescriptive enforcement (4.8).

4.1. Overview The information provided by LAs listing all their RANs served since the Spring of 2012 (n=147) provided a glimpse of the businesses and issues for which RANs were served. The range of premises that have had RANs served to them include restaurants, takeaways, bakeries, cafes, butchers, deli shops, grocers and supermarkets. However, the overwhelming majority of RANs have been served to restaurants and takeaways. When compared with other formal enforcement actions taken also in the devolved nations, and particularly for restaurants and caterers as those were the main recipients of RANs, RANs have been served only to a very small percentage of the overall population of restaurant and caterer FBOs, and remained less frequent than either voluntary closures or HINs (see Table 2).

RANs

Improvement notices

Voluntary closures

Simple cautions

EPNs

Seizure, detention & surrender of food

Restaurants and caterers

1.6

6.8

2.5

0.3

0.2

0.6

0.3

Retailers

0.4

1.8

0.2

0.1

0.0

0.8

0.1

Prosecutions concluded

Table 2: Enforcement actions per 1,000 establishments in Wales, Scotland and NI in 2013/2014 (Source: LAEMS; based on all LAs in Wales, Scotland and Northern Ireland)

The most frequent issues addressed with a RAN were cross contamination issues, a number of them raised in relation to the use of equipment (e.g. slicer, vacuum packer, fridge, scales, microwave). Cleanliness was a major reason for serving RANs, more frequent than problems of structure, which appeared much less frequently.

20


FS514108

Among less frequent occurrences, one finds RANs served for temperature control issues, personal hygiene, lack of procedures (HACCP and FSMS; both documentation and evidence of practice), pest infestation , structure, lack of hot water, and handling practices. There were very few cases where RANs appeared to have been served for training issues / lack of awareness among staff, drainage defects, maintenance, non-registration, and noncompliance with a HIN. (see Table 3) Cross contamination

49

Cleanliness

29

Equipment

16

Personal hygiene

8 FSMS

Fridge

4

Vac Pac

6

Procedures

8

HACCP

4

No hot water

6

Handling practices

4

2.7 Training

Sous vide 0.7 Drainage

2 1.3

Scales

0.7

Temp. controls

8

Maintenance

0.7

Microwave

0.7

Pest

8

Registration

0.7

Slicer

0.7

Structure

6

Non-complied HIN

0.7

Table 3: Reasons for serving a RAN, as could be drawn from summary information on all the RANs served (n=149), shared by each LA that participated in the study. The figures are percentages. Please note that in a minority of cases more than one reason was recorded, hence the sum of percentages is higher than 100. Note also that it was not always clear whether these reasons were also identified as issues that needed to be resolved for the RAN to be lifted.

In interviews, respondents emphasized the ability to apply RANs only to a piece of equipment, a part of the premises, or a certain process. In this way, RANs can be used in a very focused way and allow for the remainder of the premises to operate. For instance, the RANs served in the participating LAs included RANs to stop an FBO using a broken Bain Marie, to stop a process of mixing cold and hot food, to prevent serving a raw beef dish due to lack of appropriate procedures for preparing the meat, to prevent a slicer from being used for both raw and cooked meat, to stop the sale of unwrapped food, to prevent the use of a malfunctioning fridge, or to prevent the use of a microwave with a deteriorating interior surface. However, a RAN could also effectively prevent an FBO from operating at all. Thus, in LA8, a RAN has been served for the lack of hot water to prevent handling and preparation of food. Since these activities are core to the FBO, it was in essence prevented from operating. Similarly, an officer issuing a RAN in LA1 said the stipulation that the FBO cease to prepare or handle r-t21


FS514108

e foods until the premises were deep-cleaned and disinfected functionally shut the business down.

4.2. Uncertainties and contradictions This overview suggests that RANs may be a versatile tool, as it is meant to be. However, there was inconsistency in respondents’ answers to whether RANs ought to be applied to certain issues. There were also apparent contradictions between a few cases of RANs and either the Code of Practice, guidance (see Annex 3) or training. This includes notably the general rule that: ‘Authorised officers should seek to remedy non-compliance in establishments by a graduated approach to enforcement (…). When necessary the Hygiene Improvement Notice provisions in regulation 6 should be used (…). Authorised officers should consider these options before commencing any other enforcement action’. (Code of Practice, chapter 3.5, paragraph 3.5.2)

A case in point was processes and a lack of documentation concerning practices. A RAN has sometimes been served to address such issues, for example, after the EHO had addressed more urgent matters such as cleanliness. Other respondents would underline how a HIN would be the appropriate tool for such issues. ‘So maybe in a situation where we’ve done an inspection and we find conditions that need an immediate intervention. (...) When we go back out they don’t bother doing food hygiene training. They don’t bother demonstrating they’ve got a food safety management system in place. W e then need to be asking the question: do we serve another remedial action notice? To completely enclose this? Because training’s going to take a month. Food safety management systems could take a few days to dig out all the documentation in place. We need to be thinking about… can we keep serving these RANs, deal with that continuity issue?’ (LA1 EHO1)

EHO1 from LA1 had included reference to establishing FSMS procedures in the conditions of a RAN, but in practice he would lift the notice once the cleaning and disinfection had been completed and then ensure compliance with the more long-term concerns (developing documentation, training staff) through revisits and occasionally HINs. This is arguably compliant with guidance, even though the insertion of reference to procedures in the RAN (rather than in a separate letter or a HIN) might be a source of confusion. A senior EHO in LA5, who has served three RANs on non-approved premises said, ‘there are some instances where I just wouldn’t use a Remedial Action Notice. I mean, if you’re looking at a business which simply doesn’t have a [Food Safety Management System] in place, they’ve been told to get a Food Safety Management System in place, that when you’ve helped them and they’ve still not done it - then they need an Improvement Notice to get it done.’ (LA5 EHO2)

The latter quote contrasts with another case from the same LA in which officers gave an FBO several opportunities to produce a coherent FSMS document and the business failed to do so; the AO served a RAN requiring the FBO to identify hazards and critical control points and 22


FS514108

establish procedures to safeguard hygiene and safety, and these had to be documented before the RAN would be lifted. This was part of a graduated approach with the business, including threats of formal action in previous letters. The AO was not clear in the interview on why a RAN was served in this case as opposed to a HIN. Two other officers from LA5 served RANs for cleaning, disinfection, procedures and documentation, and they also reasoned this use by describing the failures of previous steps in a graduated approach. There are other occurrences that would appear to contradict either the Code of Practice, guidance, or training, although a more detailed account of the circumstances in which those RANs were served might qualify that judgement. These should not be overstated, as the large majority of RANs appeared to have been served in appropriate circumstances. Nonetheless, those cases indicate that, in spite of guidance, and training, uncertainties remain and have sometimes not been adequately addressed. That is reflected in debates between officers and LAs, that the following quote refers to: ‘it was possibly a mind-set that Remedial Action Notices would have to be for something really serious, almost like a Prohibition Version Two. You know, it’s only going to cover a very close and very narrow grey area. The reality of which is that no, it’s not. And no, it’s not for trivial matters.’ (LA1 Manager)

Such uncertainties could be clarified further, for example if RANs were being challenged in court, as court decisions could then provide officers with a better idea of where the goal-posts are. ‘we need them to be challenged. (...) somebody’s gonna have to take that jump and see if the courts support us and make sure that we’re using them in the right way (...) I’ve served a lot of these things so if I’m going to put my name to something I’ve got to make sure that I’m satisfied that I’m on the right side of the law with these things, you know. But again, it’s all about testing. Testing them in court and someone’s going to have to do that, right?’ (LA1 EHO1)

This statement is one of many recorded during this research, which draw a picture of RAN use as an incremental process of trial and error, officers considering RANs as one of various options they might use in circumstances that are always peculiar.

4.3. RANs and confidence in management The officer’s level of ‘confidence in the management’ (CIM)11 at the FBO was said to be a decisive factor leading to RAN use, besides the relative seriousness of the issue. As EHO2 in LA2 said:

11

Confidence in Management (CIM) is one of the components of the risk rating scheme, that officers are supposed to use when inspecting food businesses. The rating scheme is used to determine frequencies of inspections. The lower the inspector’s confidence in management, the higher the score the inspector will give to the FBO.

23


FS514108

‘If you went to a business and they were a good business and you could recognise…. like you do, you go in businesses quite often and their fridge may be a little bit warm but you can show that it’s because their doors have been open and their temperature records are okay and you believe that their temperature records are a true reflection. In those situations, no you wouldn’t. I wouldn’t serve a RAN. But in this, poor history of compliance with the food business operator, shall we say dubious temperature records and food that wasn’t…. it wasn’t just a little bit above 8°. There was food in there, I think it was like 15° or something degrees. Maybe even higher, I can’t remember. So in that situation, formal enforcement action was the most appropriate’.

In these cases, a RAN is often used to formalise the process and send a clear message to an FBO that is seen as otherwise unresponsive. As EHO1 in LA8 says, ‘it’s just a way of formalising what you’re asking them to do really. But often if you know they’re going to do it then you just leave it with them in a letter’. (LA8 EHO1) ‘It wouldn’t have been appropriate for me to walk away from that premises and just say, “oh tidy up”, I wanted to reinforce and use my enforcement options to get the work done and to make sure it was done. What I didn’t want to do is walk away from there and just say “make sure you clean it”, go back on a Monday morning, find that they’d been trading all weekend and it hadn’t been done’. (LA2 EHO3)

LA4’s manager went further and actually offered an even firmer link between CIM scores and the use of RANs: ‘if you’re serving a RAN with a hygiene rating if you look that up, and the confidence in management is 5 or 10 I don’t think you’re in the right… I don’t think that’s the right tool for you.’

Thus, whether a RAN is served would to a large extent be a function of the officer’s assessment of confidence in management. However, this is not to say that RANs have not been served to premises with high ratings and high confidence in management, but these were exceptions within our sample. Thus, for the purposes of illustration, in LA2, a RAN has been served for lack of documentation and processes for sous vide in a highly rated restaurant, and a RAN has been used in LA3 to stop the preparation and sale of raw beef dish due to lack of appropriate processes although there was confidence in and co-operation by management. An analysis of the data available in LAEMS, relying on a sample of 26 RANs, also finds that RANs were 8.7 times more likely to be served to businesses with a CIM score above 10, and 21 times more likely to be served to businesses that combined a CIM score above 10 and a structure score above 10. Similarly, the overwhelming majority of RANs served by the LAs visited were served to businesses in categories A, B, and C.12 In that regard, their use appeared to be clearly targeted at businesses with a record of past non-compliance.

12

Following the FSA’s risks rating scheme (outlined in the Annex 5 of the Code of Practice), businesses are rated into five different categories, with ‘E’ category corresponding to the lowest risk/lowest frequency of revisit, and the ‘A’ category corresponding to the highest risk/highest frequency of revisits.

24


FS514108

A comparison between two cases from the same LA (LA6) demonstrates the key role of confidence in management in the outcomes. These two cases presented similar problems - the dual use of a vacuum packer for raw and ready-to-eat foods, but they were dealt with differently by different officers: one used a RAN, and the other did not. Both of these cases involved high-end or fine dining restaurants, and more innovative methods of cooking. One case involved the preparation of steak tartare, the other a salmon and chicken carpaccio. The FBO in the first case was known to officers: they had received warnings and, eventually, HINs to prohibit the preparation of undercooked hamburgers without it being specifically addressed in the HACCP. More recently, there had been some structural concerns, but the EHO’s assessment was that the business had experienced staff but poor documentation procedures. For them to keep preparing the food they wanted, they needed to be able to demonstrate that they were doing it safely and, moreover, that they had documentation to help ensure all staff complied with the safe practices. On a scheduled inspection in 2014, the officer (not authorised to write formal notices) noted the preparation of steak tartare and the use of the vacuum packer to prepare both it and raw foods which would later be cooked. He identified this as a concern, and in his risk rating, he added 30 points for the preparation of open risk food and 20 points for the method of processing. Due to the variety of practices and conditions in place when the officer made his inspection, the business dropped from Category C to B and from a FHRS rating 5 to 2. The officer returned five days later with EHO4, who issued the RAN prohibiting the dual use of the vacuum packer. In our interview, she said she did not feel it appropriate to serve a RAN that was too specific on practices: ‘I think you need to be careful because there’s so many caveats with that: say for o example, if we told a business to cook [hamburgers] at 75 , they’d probably come back with a lot of scientific data saying [trails off] and then it would weaken any RAN that you served.’ (LA6 EHO4) Where she trailed off, she was implying that it was possible to find evidence that undercooked meat or any other food practice concerning low temperatures was safe. She treated the use of the equipment as a separate issue from the procedure for serving steak tartare: in the first instance, she was comfortable issuing a RAN (in fact, she indicated that dual use of a vacuum packer was one of the FSA’s template circumstances for using such a notice), whereas in the second, she worked with the owners to ensure an adequate HACCP was in place, which was eventually agreed. The second, comparable case also concerned the dual use of a vacuum packer for an undercooked r-t-e food: a salmon and chicken carpaccio. This business had retained a high rating for hygiene and safety, but when EHO1 inspected in 2014, she became concerned about temperature checks on deliveries, cooking and reheating temperatures, and cooling procedures. She then singled out three food practices: undercooked duck liver parfait, undercooked beef burgers, and the carpaccio. For the first, she indicated how the business’s procedures varied from FSA recommendations and what would be required to satisfy her; for the second, she instructed the business simply not to do it; and for the third, she wanted a HACCP to demonstrate awareness of acidity and requirements for curing the food. Her final note, connected to the carpaccio, was the dual use of the vacuum packer. The business used this to prepare raw meats for storage and also to prepare the carpaccio. Since this food item would not be cooked subsequently, it was r-t-e, and the business was therefore mixing use. She threatened the FBO with a RAN if this practice was continued. Her revisit two months later showed improvement on almost all points. Carpaccio was off the menu and a HACCP was in place for the parfait. The FBO said the kitchen was no longer preparing undercooked burgers, but a commis chef told EHO1 that in fact, if a customer insisted on medium or rare burgers after

25


FS514108

being advised of the risk, the business would provide it. She reiterated her requirement that the practice stop, but she took no formal action. The most effective action here seemed to be the precipitous drop in FHRS rating - from a 5 to a 1 because of the hazardous foods and methods. Due to the business’s reputation, this was a matter of significant concern for them, but when they were eligible for a rescore, they returned to their former rank. Both officers cited a confusion about raw and ready-to-eat foods as the core of the problem. Because these foods were not to be cooked after their preparation, the vacuum packer was the final bit of processing they would receive. If this machine were also to be used for raw foods which would later be cooked, as it was in both cases, it would be exposing the steak tartare and the carpaccio to contamination. The salient difference between the cases seems to be the history of the FBO and confidence in management: in the second example, EHO1 believed that the threat of a RAN in tandem with the reduced score was sufficient to ensure compliance from the business.

4.4. RANs as escalation of response to non-compliance RANs allow for urgent action in a context when there might not be an ‘imminent risk’ of injury to health. Hence, serving them may be a risk-based judgment that is not necessarily dependent on the officer’s assessment of confidence in management. That would notably be the case when a RAN would be served for dual use of complex equipment in LAs where no escalation process to formal enforcement would take place. In other LAs, interviewees would justify the RAN due to ‘accumulating risk’ at the FBO, which may not be necessarily tied in with the history of the FBOLA relationship. In fact, a RAN may be served to a new business with no previous history of poor compliance or poor interactions with the LA. However, RANs have also been used as a step up in an escalation process, whereby the determinant feature to choose a RAN is its relative severity compared to previous interventions that did not achieve satisfactory outcomes. Thus, in a number of cases officers would have tried an informal approach before serving a RAN. The example below details a particular case when a RAN was served after informal attempts and then two HINs. LA5 was among those that described using RANs in a graduated approach to upholding food standards. The case of a butcher and delicatessen illustrates this. The business had a clear physical separation of raw and ready-to-eat areas of the business. It had a FSMS in place to control hygiene risks; the problem was that these procedures were not being followed. Visits late in 2011 and early in 2012 revealed unsatisfactory samples of r-t-e foods, on top of concerns about stock control and adequate cleaning. The EHO indicated via letters that formal action was possible, but it was not until the summer of 2012 that such action was taken: her letter cites a history of non-compliance and a lack of commitment to achieving satisfactory standards of hygiene and safety, and she served two HINs - one to develop proper HACCP for the premises and one to supervise and train food handlers. The business had two months to comply. When the EHO returned at the end of that period to verify that the notices had been complied with, she found a document prepared and ready. But when she asked questions of the manager, he could not adequately explain the practices that were written in the document. She therefore issued a RAN, requiring

26


FS514108

the business to cease trading in r-t-e foods until it complied with the two issues previously prescribed in the HINs. This RAN was not lifted for three weeks. This had significant financial consequences for the business, because ‘that side of the business [the delicatessen] was the best side of the business’ (LA5 EHO1) But this action was taken at the end of a series of informal actions, including letters and verbal warnings, and formal actions in the form of HINs. This is a hierarchical continuum, which is consistent with the profile LA5 preferred to uphold standards (see case study below, section 6.1). It should be noted, however, that in that particular instance the officer did not choose to pursue the route of prosecuting the FBO for failing to comply with the HINs.

RANs may have increased the leeway to effectively implement an escalation strategy for enforcing food safety (in a context where there has not been much leeway before to escalate on food safety breaches; Macrory 2006:19). However, there are circumstances where RANs might be used as alternatives to HINs or HEPNs, and some of these uses might be at odds with the principles that the competent authority (the FSA) has defined for RANs, in the Code of Practice, Guidance (see Annex 3) or training. That would notably be the case when a HIN has not been complied with, which according to guidance should lead to prosecution. We discuss this matter further in the next section.

4.5. RAN as an alternative to other tools The relationship of RANs to other tools is a matter that previous guidance has insisted on, and interviewees consistently described the distinction of the boundary between them (particularly between HEPNs and RANs) in similar terms. For example: It’s not a substitute for prohibition. If there genuinely is an imminent risk, it needs to be dealt with properly. But also, you need to consider your options and your powers, and the Remedial Action Notices give you more scope to deal with the premises you’re not happy with, that you don’t want to walk away (from). If the equipment was dirty then it should be clean. If the equipment wasn’t in good working order then it shouldn’t be used, so deal with it.’ (LA1 Manager1)

However, there were indications in the data that the distinction between these notices sometimes became blurred. Thus, there were indications that RANs were sometimes used instead of HEPNs. Suggestive evidence (including numerous quotes) indicated that officers would consider RANs as an alternative to HEPNs. For example, in LA1, LAEMS indicated HEPN usage in the mid-single digits in the two years preceding the introduction of RANs for non-approved premises; no RANs were used at all in those same years. In the following two years, HEPNs drop as RANs rise. However, RANs rose to much higher figures than HEPNs had reached. At this, the manager at LA1 demurred: officers had a clear understanding of when to issue a HEPN, which included a risk-based assessment of the premises and the identification of imminent risk to public health. ‘It’s a case of which of these [RAN cases] may well have been an Emergency Prohibition Notice previously and which are genuinely within that realm of, you know, “Yeah, they’re very close, but they wouldn’t have quite hit that mark.” It’s a difficult call. I think statistics can go up or down either way, and I think, year on year, [the use of] Emergency Prohibition has kind of gone up and

27


FS514108

down just depending on circumstance. So it’s very difficult to draw [a trend] and, again, there were very small numbers, so when you dipped, it’s really going to be very noticeable.’(LA1 Manager1)

This manager was strongly of the opinion that RANs filled a gap that was hitherto absent from officers’ toolkits rather than duplicating or improving on existing tools. He spoke of the case one had to walk away from because it did not meet the threshold for imminent risk yet was not enforceable through HINs. The best option was a sternly worded letter, which lacks legal sting and can therefore be ignored, and the resolve to watch for these issues at the next inspection and remain alert to any public complaints in the interim. Because RANs provide a means to deal with such cases, he said, there would be occasions on which an officer or manager might evaluate the circumstances as being on the margins. ‘Remedial Action Notes can be used for an immediate, first-identified problem, but it can also be used for accumulating or ongoing [problems] and therefore that’s where I think it gets a little bit blurred.’ (LA1 Manager1)

This was, for him, not a deficiency in the legal tools but a realistic example of the contingency of situations on the ground. Language in the inspector’s notes, for example, can contain different meanings - ‘dirty’ can cover a multitude of levels - but photographic evidence helps everyone to assess and evaluate the appropriateness of the action taken. At LA1 there was continued review of new cases as they were taken, which would help the LA navigating across these blurred lines. As the manager at LA1 said, there were ample opportunities for information-sharing, both within his office and amongst Environmental Health staff in other LAs, via local liaison groups: ‘The Officers are starting to get that confidence and that understanding, and again that’s created a number of debates within here [the office], and we’re learning from each other’s experience and officers will pass their ideas past me. They’ll pass them past their colleagues.’ (LA1 Manager1)

The proximity – and, possibly, confusion – between RANs and HEPNs emerged also in terms of the quality of evidence an officer was able to collect: that is to say, what constituted ‘imminent risk’ was determined by what the officers felt they could certify was a practice or the conditions of food that they had witnessed. ‘It has all to do with the evidential value in it. If you can speak to it, it is an HEPN. If you cannot speak to it, but from the information that they are giving you, (...) you cannot walk away and leave them, (…) this condition then is a RAN’ (LA3 EHO1)

In a case the officer described, the RAN was presented as a second best option because the officer had failed to witness the evidence that could justify an HEPN: ‘We use RANs for procedures. There’s one which I wrote and I then had a panic the next day going, “Oh, maybe I should have done an HEPN.” But the reason I didn’t do an HEPN was, one officer (…) had seen all the lunchtime stuff and he hadn’t got round to taking any enforcement action, and he phoned up and he said, I’m going to have to go, you’re going to have to come out. I went out. I didn’t see anything. (...) So I couldn’t sign a Hygiene Emergency Prohibition Notice to say, “Yeah, they were doing this and this.” So, the best I could do at that point was serve a RAN

28


FS514108

(...) to effectively close the business (...). So, with the best will in the world and two officers, you’re still going, “Oh-oh.”’ (LA3 EHO1)

The manager in LA4 described the evaluation of notice in terms of where the risk was identified: ‘[It depends on] where the proof lies – and it was one of those things that came out of the training which clarified that you know, if you see a cockroach walking across the floor and somebody is making salads so you’ve got coleslaws there, how would you prove that that thing there [gestures to imagined cockroach] is on that [gestures elsewhere, to imagined salad]? You know, RAN. Take it for a RAN. Seeing that in the food? Hygiene Emergency Prohibition Notice.’ (LA4 Manager1)

The balance there is not between evidence witnessed versus evidence discussed but rather where the witnessed evidence is in relation to the food that is putatively at risk. It is also the case that the choice of RANs over HEPNs may have to do with the onerous process involved in issuing such a notice and following it through. Frequently in interviews, officers and managers would describe a clear, textbook risk-based assessment for imminent risk, but later in the conversation they would talk of the difficulties of taking these severe notices through their required process: ‘RAN frees up a lot of the time to give the advice and the education as to how to comply rather than having to come back to the office to prepare for Court. So it gives back to the business in a sense which sounds really strange when you’re serving them with a formal notice. But to say “here’s a notice, and I can spend the next three days doing X, Y, Z to make sure that you get it prepared that I can remove that notice” rather than “here’s an HEPN. I’m going to spend the next two days in the office now making sure that the Notice of Intention to go to court for the Order is completed and out to you within 24 hours before the court date, preparing the court, preparing the Witness Statement.” So that time doing that is spent with the business ensuring their compliance instead which I think is more beneficial to the business as well.’ (LA2 Manager1) ‘You’ve got more time to focus on dealing with the food business operators and proprietor to try and resolve issues’ (LA2 EHO1)

These statements frame the decision to avoid the courts as a positive one for businesses and for the objectives of the council, the FSA, and the office of Environmental Health. Others, however, described the intimidation of making a case for prosecution and the personal capital invested in doing so. Thus, as far as HEPNs are concerned, Environmental Health staff did not agree with the idea that RANs were served because they were an easier option than issuing a HEPN and seeing it through to a court order. But their depiction of the onerous quality to the latter process certainly contrasted the appealing sleekness of the RAN. Participants, however, were more likely to talk about the benefit to FBOs of using a RAN over a HEPN (see section 5.5) rather than the benefit to themselves or the Local Authority.

29


FS514108

Number of establishments recieving the type of enforcement per 1000

25

20

15

10

Improvement notices - Wales Improvement notices - Scotland RANs - Wales

5

0 2009/10

RANs - Scotland 2010/11

2011/12

2012/13

2013/14

Fig 1: RANs and improvement notices per 1,000 restaurants and caterers in Wales and Scotland, 2009/2010 to 2013/2014 (source: LAEMS; basis: 16 out of 22 LAs in Wales; 28 out of 32 LAs in Scotland)

Besides HEPNs, an overview of the LAEMS data might suggest that a reduction in the number of HINs served occurred in the period when RANs began to be served to non-approved premises (Figure 1). There again, there were suggestive indications in the interviews and the documentation reviewed that these two might be considered as alternatives. The qualitative evidence pointing in that direction was limited, however. The assumption that RANs might be served instead of HINs was not supported by the aggregate quantitative data either. Looking at the changes in the numbers of HINs and the numbers of RANs per 1000 restaurants/caterers for individual local authorities between 2011/12 and 2013/14 there was not sufficient evidence of any correlation.

4.6. RANs in combination with other tools Although RANs might be seen sometimes as alternatives to other tools, they have also been frequently used in combination with other formal and informal tools. These combinations show how officers have understood and implemented the varying qualities of the options at their disposal to obtain compliance and enforce non-compliance.

4.6.1. RANs and other formal tools RANs were sometimes combined with HINs: the latter would address structural or procedural issues, while the former would address instead more immediate, and rapidly resolvable issues. 30


FS514108

For instance, in LA2, a RAN has been served for issues with cleanliness to prevent the sale of ice cream and sandwiches while at the same time a HIN has been used for HACCP. Another example from the same LA include a RAN being served for the dual use of a vacuum packer and two HINs served for HACCP and training. LA4 similarly used a RAN to stop a particular process - a garlic sauce using raw eggs - and served a HIN at the same time to require the development of a HACCP for that product before the business could resume making the product. In this final case, the preparation of HACCP was also specified in the RAN among the conditions for lifting it. Experience may be a factor here, in that this was the first RAN served by this EHO and only the third served by the LA. LA1 combined RANs and HINs in sequence. In an early case, from late in 2012, officers issued a RAN to cease the handling and preparation of ready-to-eat foods until they had deep-cleaned and disinfected the premises and food contact items. The RAN was lifted the day after it was served, and that same day, the EHO issued two HINs - one for developing an FSMS and one for training staff - for which the FBO had two months to comply. The strategy here was to use the RAN to ensure compliance with the immediate concern, which was the unacceptable state of cleanliness, and use the HINs afterwards to bind the FBO to tasks that could not be accomplished as quickly. RANs were also combined with seizures of food. This was essentially justified by LA1’s manager as a logical and necessary accompaniment to the formal recognition by the officer serving the RAN that there was a risk to the public and the food prepared at that premises was therefore unsafe. ‘The transition on that side of things is making sure that Officers not just deal with equipment and premises but deal with the product as well. (...) that’s something we need to keep plugging away at, reminding officers that once you serve a notice there’s other things you need to consider. You have now certified there’s a risk here. You’ve risk certified there’s a danger here at whatever level. What are you going to do with the product that’s been produced in that situation?’ (LA1 Manager1)

But seizures of food were also seen at LA4 as a means, during revisits, to enforce the RAN in case it was not being complied with. This more creative use of seizure, which is essentially justified on the same ground as the former, reflects the high costs of prosecution and the very small fines a magistrate might order the FBO to pay in such a context, which could be considered an insufficient deterrent. ‘Say somebody breaches a RAN. (...) we can go in there and seize all the food in the premises. Once you’ve served that RAN, bang you can then say “I’ll seize everything in this. If I closed you through the RAN because I can, then all the food in this place is deemed to be unfit for the conditions.” (...) I don’t know whether it was ever designed for that there, but the youngers think “Why do you want to keep abusing this by going to court? Every time I go in I just left with thousands of pounds worth of stuff”. So there is a mechanism to actually, without courts, to ensure compliance for RANs as well. It’s a huge tool.’ (LA4 Manager1)

Finally RANs were also used in combination with voluntary closures. Thus, an EHO in LA3 used a RAN in combination with a voluntary closure, which both management and officers in this local 31


FS514108

authority (as well as other LAs) had placed at the same level of severity as a HEPN. The problem was rodent activity, and although the problem was concentrated in the basement of the premises, the FBO’s inability to control the problem meant that the entire premises was in a state of immediate risk. The officer said that the FBO agreed that the business was in an unacceptable state and voluntarily closed for a day to do a deep-clean.

4.6.2. RANs and informal actions (revisits and education) RANs were also combined with informal actions. The most prevalent of these is the use of letters, which is widespread as a practice; many LAs insist on letters issued to accompany or follow formal actions such as notices alongside using such letters as informal actions in their own right. An informal action that is easily missed amidst other actions is the simple act of a revisit. Among LAs that used RANs, many did complete frequent revisits before and/or after serving the RAN. Below is a detailed example of how both types of action were combined on the ground. AO1 in LA5 described a case in which he issued a RAN prohibiting a particular practice - in this case, slicing meats for ready-to-eat meals. The business in question was a grocer which served an ethnic clientele. The officer knew the business but did not know it to prepare and serve ready-to-eat meals. However, when he visited a family in a nearby town which was suffering from enteric disease, he inquired about what they had eaten, and they indicated getting sliced meats at the grocer. This did not fit his profile of the business, so he visited and saw a cutting board, a knife, and an open package of a wrapped sausage which the grocer sells. The business had no infrastructure to accommodate this practice - no wash hand basin, no disinfectants, no proper sink - nor had it developed HACCP procedures to ensure safe handling. The officer issued a verbal warning and the owner agreed to stop. He followed this with a letter, in which he indicated he would undertake a schedule of monitoring and surveillance. On his subsequent visit, two weeks later, he saw more evidence of preparing ready-to-eat meals, with a meat slicer in the back in addition to another open package of meat. This time, he seized the stock and the equipment and issued a RAN prohibiting the practice until the proper equipment and procedures were in place. He did not rest with that, however, and made three more unscheduled visits, each about five weeks apart, as well as a scheduled inspection eight months after the initial RAN was served to ensure compliance and to demonstrate that he was serious about upholding his notice. One year after the RAN was first served, he was contacted by the FBO to see if her premises was now compliant with the requirements. He said he was surprised to hear from her, as he expected she would let go of the sale of sliced meats and focus on the grocery goods. She had provided a wash hand basin and a separate chill store, but there were still outstanding requirements, including appropriate sanitizer, paper towels, probe wipes, and minor repairs, as well as training and the documentation of an FSMS. He returned two months later to find the FBO fully compliant, and so the RAN was lifted.

Officers in LAs which used RANs described a policy of continuing visits to ensure compliance with RANs and other formal notices, and this was corroborated by the documentary records. The RAN would be lifted as soon as the minimum of compliance was observed - especially if the

32


FS514108

RAN prevented such practices as preparing and handling raw or ready-to-eat foods - but officers were aware that more work was often needed to ensure enduring standards. ‘We’ve got to lift the notice and let them continue with their business but we’ve got to keep maybe some close contact to make sure that they’re maintaining an acceptable level of compliance thereafter. And that’s maybe why there’s various revisits carried out after that to make sure.’ (LA1 EHO1)

Even when the RAN is not lifted directly, revisits are a way of nurturing the FBO towards acceptable standards. In one case from LA3, a RAN was served for cleanliness, staff hygiene, and separation of raw and r-t-e prep areas: this RAN was not lifted for two and a half weeks, during which time the EHO made three visits. She indicated that the FBO had a poor understanding of English, which made achieving compliance a challenge, but she saw some signs of improvement with each visit, including when she brought along a swab pen for checking bacteria count on surfaces and utensils to demonstrate best cleaning practices. Her revisits, then, were not merely chances to verify compliance but to educate. Education can be considered another informal tool that officers have at their disposal. Of course, we heard consistent statements at a general level about a preference for educating FBOs, such as: ‘I don’t think anybody in the department really is a person to just lay down the law and everybody seems to try to be educators as well.’ (LA3 EHO3)

However, as the case referenced above demonstrates, RANs as a formal intervention provide also an opportunity for informal intervention by way of a demonstration of acceptable standards and practices. This was emphasised in LA1 from management and reiterated by the officers interviewed. The manager spoke of the demonstration value that comes at the moment a RAN is withdrawn, after the FBO has shown compliance. ‘It has a more immediate impact on what’s acceptable for the business (...) and hopefully it sets a reminder (...) and certainly what I did as an officer was to say “Look, as you see it now? This is the condition which it has to remain. This is acceptable.” That’s the last thing they notice: this is acceptable. (...) So it’s very much - I know this sounds strange: it’s [RANs are] a strange educational tool in that sense as well, is that, “Now you see it, this is what you keep it at.”’ (LA1 Manager1)

Officers, though they were willing to serve RANs, also highlighted the issuing of the notice as a chance to educate. For EHO1, it had a practical effect: Our job is easier if you explain and explain and explain at that point until they understand what it’s all about. (...) We make a point of going over it again and again and repeating ourselves: what it’s about and the implications of it. (LA1, EHO1)

Within the sample of LAs approached, this observed combination of RANs with revisits and education contradicts the perception, expressed by some of the non-users of RANs, that serving notices was generally correlated with resource scarcity and a lack of effort from the LA to support and educate businesses. 33


FS514108

‘And I think a lot of the city authorities, they will tend to use a little bit more formal approach where basically, you, you’ll go in and you serve a notice and off you go.’ (LA10, Manager1)

However, the data showed instead that LAs using RANs were also investing heavily in revisits and education, sometimes by applying a risk based approach to the allocation of their resources, and effectively not focusing on their better-rated FBOs. More generally the data shows that education is both a general informal tool for upholding standards but can also work in combination with the formal action of the RAN to achieve and, in the statements from some participants, maintain compliance.

4.7. RANs and regulatory reasonableness Concerns with RANs were expressed both by participants in this study and by industry voices in the FSA’s consultations on this change.13 The very features which make it appealing – its immediate application, the lack of need for involvement from sheriffs / procurator fiscal in Scotland / courts, its wide range of applicable situations and solutions – are also features which require caution. What defences are there to ensure the power will not be abused? Staff from LAs which make use of RANs diminished this concern. They referred to the inspection rating scores, the low use of the notices relative to the number of inspections they conduct, and the absence of legal challenges to served RANs as indicators that FBOs were still protected and that officers were on the right track. The manager of LA4 said that, despite his comfort with RANs and his willingness to use formal actions if necessary, he always considers other approaches and encourages his officers to do the same: ‘I think that there’s the one that ... industry don’t get. They think that we’re going to be riding roughshod and going, “Bang, we’re going to close all these businesses.” I don’t think – and I’m sort of thinking, well if you’re a reasonable business, this shouldn’t impinge on you.’ (LA4 Manager1)

The LAEMS data also suggests that RAN use has not been excessive, even among the more intensive users of the tool. Thus, looking at the returns for 2013/14, which include the highest number of RANs served since their introduction in 2012, the absolute number of RANs served for each LA in the DNs were always significantly inferior to the absolute number of HINs served in that same LA, except in one case.

4.8. RANs and prescriptive enforcement One last characteristic of the use of RANs, as it emerges from the data collected for this study, is how it crystallises tensions between a prescriptive, means-based, and a non-prescriptive, goals-based approach, tensions that pervade much of the activity of officers in the field. 13

http://www.food.gov.uk/sites/default/files/multimedia/pdfs/board/fsa110906.pdf at para 4.9.

34


FS514108

On the one hand, interviewees mentioned the influence of guidance on food safety management systems (and the scoring consequences of the absence of documentation for them) and E.coli contamination risks as prescriptive messages that had initially shaped inspector behaviour, including the way they used RANs. For instance: ‘The E.coli [guidance] kicked in, which scared the hell out of officers because of the criticism probably and the Welsh case of “Why did the officers not do this?” (...) So the E.coli guidance came out, and initially it was very draconian, as in very black and white: “You will not…”, so officers went back into this sort of black and white mode. You know, you were given no choice, you must enforce this. (...) Now that we’ve had some sort of change there’s a sort of way of maybe going back to trying to think a little bit broadly again (...). But there are still some aspects of that ethos, again, that are very rigid. (...) and that that sort of has carried through to why some of the RANs were served (...). (LA4 Manager1)

Separately from the prescriptive signals communicated to LAs through guidance, RANs appear to have enabled inspectors to take a more prescriptive stance autonomously and on a number of issues, because their demands on these issues, for which notices could not be served, or did not seem worth serving before Spring 2012, could now be backed up with a formal notice. ‘We really needed someone to say “Come on, this is work enough. These conditions are standard. It’s whatever. It’s not acceptable. It’s clearly not compliant at this stage. Whether it’s an immediate danger or not, it’s really not acceptable. It’s not how the business should be operated. You need to stop doing this. Just get this fixed. Get this sorted.”’ (LA1 Manager1)

To some extent, the data shows that RANs have been used to prescribe specific ways of doing things, occasionally in a way reminiscent of what a licence could prescribe (e.g. the case of a ‘permanent’ RAN prescribing a particular process, such as time separation). The serving of RANs for dual use of vacuum packers and slicers is itself a clearly prescriptive use of RANs. As already mentioned, it was the exceptional case in which some LAs otherwise negatively disposed towards formal enforcement have actually served RANs. On the other hand, some officers have also emphasised that, in their use of RANs, they have strived to be goal-based rather than means-based. ‘You know, instead of saying “do this, this, and this”, let us say “go in and put procedures in place to control” (...). Make it more essentially kind of HACCP-based risk assessment based and let them come up with procedures and controls that you can then go in and audit. And then you can say “No that does not control that. It is not acceptable”. So we were probably being too prescriptive at the start. When I think that was actually how it was actually sold to us at the start. You had to be this prescriptive, but it was causing a lot of problems because if they come up with a different alternative, that was acceptable, then you were like “Oh, how I am now going to remove this RAN? Because I did not give them that option to do that.”’ (LA3 EHO1)

EHO4 in LA6 also noted the risk of weakening RANs as a tool by making them too prescriptive: should the FBO be able to provide alternatives or evidence that the prescribed requirement was incorrect or not evidence-based, it would make the tool vulnerable to a legal challenge.

35


FS514108

For prescriptiveness as well as for other dimensions of RANs, officers thus appeared to operate a balancing act, demonstrating further how the rolling out of RANs in the DNs has been a trial and error process.

4.9. Conclusions There are a number of dimensions to the decision making processes of officers who have been serving RANs to non-approved premises. The dimensions were in practice found to be constantly intermingled in the context-bound practices of officers, and included both subjective (officer confidence in management at the FBO) and objective elements (guidance, legislation, visual evidence during visits). Confidence in management has been a key variable to decide on whether to serve a RAN or not. However, situations where there is a need for an immediate intervention because of the risks the public might be exposed to also motivated the serving of a RAN, even if confidence in management was high, or the business was a new business and there was no history of poor compliance to build upon. RANs were served in conjunction with other tools, both informal and formal, and may sometimes have been used as alternatives to existing tools, particularly HEPNs. They were sometimes used in a purely escalating fashion, as a follow up to the failure of previous informal or formal (HINs) tools to achieve compliance. Both types of uses illustrate the versatile nature of the tool and the way officers would apply it to deal with the contingencies of particular cases. They illustrate also a range of uncertainties, and the confusion that might ensue, on when a given notice (rather than another) might be appropriate. Some of the evidence points to uses of RANs that appear to contradict guidance, the Code of Practice, or training. This would suggest that the effectiveness of the latter in clarifying the boundaries of the tool is limited. Overall the evidence did not support the view that RANs might have been served in excessive numbers since they were introduced. There was also some evidence that RANs may be used to harden the tone of delivery on certain issues by making it more prescriptive, although officers expressed awareness of that possibility and voiced concerns about some risks of writing overly prescriptive RANs.

36


FS514108

5. Are RANs effective? The question of whether RANs are effective is difficult to answer with a simple ‘yes’ or ‘no’. As already mentioned, LAEMS does not contain sufficient data and data of satisfactory quality on RANs and corresponding compliance levels to undertake a statistical analysis. That is not the only obstacle, however. The empirical evidence emerging from the review of documentation at each LA visited has found also substantial variation between RANs, depending on whether they have been served to address issues as diverse as cleanliness, dual use of complex equipment, training, or lack of a food safety management system. This makes an assessment of their impact more difficult, as effectiveness for one would obviously mean a very different kind of outcome (and a different time frame to measure it) than for others. A more fundamental obstacle lies in the contextual and incremental nature of enforcement work. Among other things, this translates into ‘similar’ issues being resolved with different means. This is illustrated below through a comparison of two relatively similar FBO cases and the way different officers from two different LAs addressed the issue they encountered there: one served a RAN while the other did not (5.1). This shows that enforcement work is a kind of craft (Tata 2002), whereby officers deal with peculiar cases in a trial and error fashion. As a consequence, it is inherently difficult to generalize on the particular added value of a single tool like RANs, across a large number of cases. Such findings would not agree well with the assumptions underlying a statistical analysis. The above does not mean that alternative strategies to non-compliance resolution cannot be compared, and somehow this study has strived to achieve that via rich descriptions of individual cases and small-N comparisons. Yet the study has obviously not captured all dimensions that would contribute to the effectiveness of different strategies. For instance, it did not assess inspectors’ commitment and relational/communication skills. This also suggests that the valueadded of the RAN may have to be assessed in relation to particular Local Authority contexts, including their style of working, and the range of issues they are dealing with. This might require a more in-depth review of more individual cases of FBOs inspected than could be achieved in this study. These conditions put heavy constraints on what might be said about the effectiveness of RANs. Nonetheless, there are indications in the data on how effective RANs might be. Firstly, there is data on how many of the RANs served in the participating LAs were breached, which may be relied on as a partial indicator of effectiveness (5.2). Whether some RANs should have been challenged but were not is another matter that this study could not explore. As already underlined, a minority of the cases reviewed appeared to be at odds with the FSA’s Code of Practice, guidance, or training. A detailed analysis of the cases from a legal point of view would have to be undertaken to ascertain that this could have justified a challenge in court. Secondly, there are elements in the interviews on what might make RANs effective, including their capacity to motivate businesses without alienating them. Some of the data suggests that RANs could be closing another gap in the sense that it would make an officer’s decision to walk 37


FS514108

away from a problematic business less easy to justify to their manager or their peers (5.3). These other elements provide an idea of effectiveness as perceived by enforcement officers themselves, hence it is not free from bias.

5.1. Solving problems with and without RANs: a tale of two small kitchens The study strived to identify pairs of comparable cases of inspected FBOs, one for which a RAN was deemed the appropriate response and one for which it was not. Such controlled comparisons illustrate different ways of resolving a given problem, and as such they invite readers to carefully consider what the value-added of RANs might be. From the cases selected, we identified a similar problem in two different LAs, one of which resolved the problem using a RAN and the other which found other means. It is worth noting that the LA from which the officer found alternate means of resolving the problem (LA9) has not served any RANs and in general preferred informal methods of upholding food standards with food businesses. Correspondingly, the LA from which the officer used the RAN to resolve the problem (LA1) was among the more vigorous in using RANs and including them in a range of options, both formal and informal, to achieve compliance. The cases in question both concerned preparation of raw chicken in kitchens which the EHOs both determined was too small to adequately handle the process. These businesses prepared both raw and ready-to-eat foods, and officers felt there was insufficient space to separate areas for raw and for r-t-e, thereby complying with the requirements for cross contamina-tion. In the first instance, the EHO arrived at the premises for an inspection and found it to be in unsatisfactory condition: surfaces and food contact items were visibly soiled, raw meats were being prepared in cramped conditions whilst the business was open for trade, food storage containers were in disrepair, and raw food, r-t-e food, and soap powder were all stored together, openly. The EHO issued a RAN indicating that the processes were exposing r-t-e foods to unacceptable risk of cross contamination; it required the business to cease handling and preparing r-t-e foods; and in order for the RAN to be lifted, they had to finish preparing the raw food on premises, deep clean and disinfect the premises, and maintain procedures to guard against cross contamination. This RAN was withdrawn the next day, as the kitchen conditions were much improved after a revisit. However, the EHO was concerned about the ability of the FBO to comply with the third point, about maintaining proper procedures. The officer indicated that many ethnic restaurants use a batch preparation method to prepare their food: ‘On those two quiet days, when the delivery comes in, they batch prepare that meat, get it out of the way. Clean and disinfect down. And then at four o’clock when the doors open for customers, they’ll have all their chicken chopped and ready to go. (...) It’s all about speed, which is probably the main purpose of it.’ (LA1 EHO1)

38


FS514108

This business was not preparing its raw meat this way, and he had concerns going forward. The business had a high customer base that had increased recently when a neighbouring ethnic restaurant closed. The officer asked himself, ‘How can I make sure that I’m protecting the public, helping the business operator to comply, and not getting myself into a difficult situation when the proverbial hits the fan? So that’s why I’m thinking, “What other way can I use the Remedial Action Notice?”’ (LA1 EHO1)

He determined to use the RAN as a ‘running’ notice that would not lift, legally binding the owner to the set of practices described above. He said he sat down with the owner and explained the purpose behind the notice, ‘And did he understand - not just that we’re taking legal action against him but that we’re trying to [pause] put a process in place here that will reduce the risk to an acceptable level. And he got it, like, he understood it alright.’ (LA1 EHO1)

The EHO indicated that the FBO had previous experiences with formal notices, so he was aware of the severity of such notices. The second, comparable case concerned a kebab shop that had opened in a newly subdivided premises. The EHO had dealings with the property owner, who had a food business already operating in that location, and he had been consulted by the LA’s planning department about the planned subdivision when it was still subject to approval. He had expressed concerns then about the size of the kitchen and the FBO’s ability to comply with cross contamination guidelines, but he was not able to prohibit the proposed plans, so he merely warned of the risks and indicated he would monitor the food business closely when it opened. On his first inspection, he found several contraventions of food regulations and issued a letter listing what he saw, subdivided into legal requirements and recommendations. The letter also indicated practices that he recommended for the limited space, the first of which was to buy pre-diced raw chicken as opposed to whole raw chicken breasts which would then be diced on premises. This EHO in fact determined that time separation, akin to the process described in the first case, was not sufficient. His solution - to buy pre-diced meat - did not completely obviate the need for processing raw meat in the kitchen, as the food handlers would still marinade the chicken before cooking it, but he considered this an acceptable risk. The FBO agreed to this, and his subsequent visits indicated compliance. The business retained its Category B status at its next scheduled inspection. It was over a year from that when the EHO observed staff processing raw meat in contravention of their agreement, during a scheduled inspection. The FBO said he had been unable to get diced chicken from the supplier for two weeks and had been processing this food as a temporary measure. The EHO also witnessed that staff had moved r-t-e food (specifically, cooked rice) to a different area of the kitchen to offset the risk. He said this demonstrated that staff took the cross contamination risk seriously and had taken measures on their own to handle this change in their procedures. He said he spoke to the FBO at this inspection and told him that if he had seen a different situation - the cooked rice next to the raw chicken being prepared - he would have stopped the processing of r-t-e foods with a RAN. Their own steps meant he was not concerned 39


FS514108

about any immediate action, and the fact that they took those steps independently of his advice suggested that his informal process - writing letters, educating the FBO, making brief and repeated visits - was achieving compliance. This comparison shows two different ways of dealing with an unusual situation - a commercial kitchen too small to enact physical separation of raw and r-t-e preparation. In both cases, the EHOs had clear ideas of what compliance ought to look like; one secured this through the formal means of a RAN, the other through a verbal agreement followed up with a written letter. The case of the letter was opened before RANs were available for non-approved premises; however, the LA in question has not issued any RANs and has a stated preference for informal means of upholding standards. This case involved a new FBO, and although the EHO did not use such language in the interview, it is possible he gave the new owner the benefit of the doubt. The LA’s policy of brief, repeated visits meant he could also check on compliance with the agreement. His approach was validated by a successful visit on the following scheduled inspection - he saw no signs of contravention of the agreement. When he did see a breach in the most recent scheduled inspection, he also saw an awareness from the FBO that this was a problem and some steps taken to mitigate the risk. The other case, by contrast, involved an FBO with a past history of poor compliance and conditions of cleanliness, cross contamination control, and hygiene severe enough to warrant a RAN prior to the specific, unlifted RAN. The officer also indicated an advanced risk from an increasing customer base. He wanted the security that a legally binding process was in place, with the threat of severe consequences should he find the owner in breach. This comparison shows the complex nature of any given case. It shows also that the reasons why a given strategy might work would depend on many more factors than whether it used a particular tool or not: the inspector’s own relational or pedagogical skills, and the business people’s own dispositions and capabilities are also important. In other words, what makes a strategy effective is very much anchored in the circumstances of the case and the face to face interaction between officer and business owner. Without a measure of control for these other variables – and in the absence of a dataset of sufficient size and quality – an assessment of a given strategy’s effectiveness is difficult to make. It is not necessarily obvious either that the evidence to decide on a given strategy’s effectiveness would necessarily undermine an alternative strategy. There might be several routes to the same outcome. Both could be effective in terms of compliance outcomes, but might differ in the resources they require or the time they take to achieve the outcomes.

5.2. RAN breaches Many interviewees who had served RANs found them to be effective, and indeed many RANs that had been served were then lifted as the officers considered that the FBO had then become compliant enough. None of them have been challenged in court. Only very few breaches have been observed by officers. Of all the 147 RANs that were served in the LAs visited for this study, only 3 were breached. 40


FS514108

In one case, from LA2, the breach was prosecuted, with a £400 fine issued; the business later closed. Another premises, in LA5, was issued two separate RANs by two different officers for two different reasons. The first followed an escalating process of enforcement including four HINs and a voluntary closure; the RAN was in fact served the day after the voluntary closure was agreed. When the EHO returned to the business to issue the formal closure notice and have the FBO sign it, she was told by staff that the owner had instructed them to reopen after she left. She returned the following day and served the RAN. She revisited the business a month later and found them in contravention of the RAN, preparing and handling the food items that the RAN had proscribed. Her letter to the FBO following this revisit mentioned that steps might be taken towards a prosecution of the FBO. This did not happen, however, and the RAN was withdrawn about four weeks later. The second RAN served on the business came six months after the first was withdrawn, and it concerned the storage of cooked food and food contact items in a shed behind the premises. This RAN was not part of an escalation of enforcement, then, but an imme-diate, risk-based prohibition on a specific practice. The officer revisited a month later and saw that the shed was not in use. However, at an inspection nine months later, the EHO found rice cooling in the shed. This breach was noted but not acted upon, except as an entry along with other food hygiene concerns witnessed at the inspection. When asked during the interview why things had been allowed to go on so long with this FBO, the EHO said at first he was unaware of the second breach. Upon reinspecting the notes in the file, he said the only thing left was to start working on prosecuting the business: ‘there’s only so many warnings you can give a business at the end of the day.’ (LA5 EHO2) He also indicated that the onerous process of going to prosecution made him reluctant to take this route. I think it’s one of the things that kind of puts you off going ahead and doing it. I’ve never ... gone ahead for prosecution for anything before, so I think that the fear of it, although I’m actually going with one just now. It’s really quite time- it takes a lot of time, especially when you’re- because we’re not specialist food officers just doing this. We’ve got all of the complaints going on from the environmental side of things and the travellers and all that kind of thing. So we’re really- it takes away from the time that should have been spent going ahead and prosecuting [the FBO in this case]. I think that’s the only thing that will stop him and make him stand up and take notice. (LA5 EHO2)

The number of RAN breaches is an indicator of effectiveness. The number of RANs challenged is more difficult to interpret that way, and it is also difficult to deduce from it that RANs served were all valid: the absence of challenges does not mean that some of them might not have been successfully overturned if they had been challenged.

5.3. Why may RANs be effective? Officers gave numerous arguments to explain why a RAN might be effective: it is immediate (5.3.1), it pushes most businesses to comply (5.3.2), it does not alienate businesses (5.3.3) and, 41


FS514108

more anecdotally, it has taken away from non-enforcing inspectors the excuse of powerlessness (5.3.4).

5.3.1. RANs are immediate Officers frequently cited the immediacy of RANs as its most attractive feature. For problems which could not wait 14 days to be resolved (the minimum time frame to achieve compliance with a HIN) but which did not present evidence of imminent risk, this tool allowed them to take action. ‘You would not be seeing it [imminent risk] but the information that they are giving you is just, “I cannot walk away and allow this premises to continue to trade like this. But I do not have enough to close them, but I do have enough to restrict them.” And that is pretty much how we use it. And it is not safe to continue what you are doing. (...) I think if we have got immediate concerns about it.’ (LA3 EHO1) ‘I call it a stop notice. It’s stopping you doing what you’re doing until you get the conditions right and you comply with legislation in order to do that.’ (LA5 AO1)

The immediacy of the circumstances can also be wedded to confidence in management, making RANs a tool to use when nothing else is deemed to be effective. The manager of LA4 described a RAN he served on a food business for lack of hot water. He mentioned that he recalled the FBO, who had owned a different premises some time earlier and sold it on when he ran into trouble with environmental health. The officer conducting the inspection was not authorised to issue formal notices, but when he observed that the hot water was not working, he confronted the FBO about it, who ‘blatantly just said "I have no money, I can't fix it.” (...) When you hit that wall then you go “You’ve just limited the choices of what I can do here.” (LA4 Mngr1) The officer turned to his manager, who issued the RAN.’ Several factors guided his decision: the history of non-compliance from the FBO, including the fact that the new premises had not been registered before opening; the intransigence of the FBO in the particular case of the lack of hot water, which gave him no confidence that informal methods would work; the immediacy of the problem, which was that without hot water the FBO had no way of washing hands and thereby placing the public at risk. The manager did not describe this as a situation of imminent risk, which would necessitate a HEPN, but he did say that it was ‘a black-and-white issue’ that could not wait 14 days for rectification. (LA4 Manager1)

5.3.2. RANs push (most) businesses to comply With such immediate effects, we can imagine that FBOs might react strongly to their implementtation. We noted what was described as a ‘stooshie’ from one case in LA5, in which the owner of a takeaway was issued a RAN stopping the preparation and handling of various raw foods until a proper FSMS was put in place. A letter from the FBO dated three days after the RAN apologised for ignoring the previous correspondence and attempts by the AO to get this documentation in place; however, a second letter dated from the following day read that the 42


FS514108

FBO felt ‘that the RAN was inconsiderate at this time.’ He noted that the FSMS was on the premises when the AO and his colleague arrived, and he suggested that staff felt ‘intimidated’ by the AO’s questions and were unable to answer for fear of giving the wrong answer. AO2 indicated that it followed many opportunities through informal means to achieve compliance: ‘When you have exhausted that [informal measures], it’s a case you have to serve, because you have written to them, you have spoken to them. They just don’t seem to get anywhere else.’ (LA5 AO2)

He also noted that, however inconsiderate the FBO may have felt the RAN to be, he complied and produced a more effective document, and this has contributed to improved practices since. More often, though, participants indicated that RANs fit inside the model of how FBOs expect officers to deal with severe problems. Moreover, for a minority of ‘problem’ cases, it is seen as the only way to get through when other means have failed. One FBO in LA4 presented such a profile - his attitude, according to Mngr1, was ‘unique’ and presented a real challenge for EHO2, who had many unsatisfactory encounters with him. ‘We might have still been in every six months, but it would have kept on top of him rather than him just slipping away and just improving’ (LA4 EHO2)

Her emphasis was on just - that he did the minimum to keep himself compliant and treated their efforts to instil good practices with at best indifference and at worst contempt. She first served a RAN on a specific process, and she subsequently served two RANs for more general problems of cross contamination and personal hygiene. She said she has noticed a difference in terms of compliance since using the RANs: ‘it just concentrates the mind. They actually go: “Ok, they’re going to do something now” and it’s immediate. (...) you’re dealing with them straight away and they sit up and notice and they actually do something.’ (LA4 EHO2)

Other participants noted the concentration of the mind that comes with the serving of a RAN. The manager in LA4 noted another case, concerning provision of hot water, in which the enforced stoppage from the RAN led to a quick response. ‘Sometimes it can be just a point-blank refusal of “I am not going to do that.” What do you do? An Improvement Notice? It would have probably resolved it [the problem of a lack of hot water, in this case] but sometimes the tool has to – If you’re getting that there, then you say, “Well, there’s going to now be a consequence of this. For instance, your business cannot operate until that’s been addressed.” Suddenly that becomes different, then. (...) If somebody says, “No, I’m not doing it,” or, “I don’t have the money.” It’s funny how it ended up that, you know, the money was got and a new boiler [was purchased].’ (LA4 Mngr1)

EHO1 in LA1 described one case in which a RAN was issued for cleaning, including a dishwasher which had broken down. ‘The deep clean in my opinion would have taken a couple of days. And the commercial dishwasher part would have taken x amount of – who knows – where that was in the supply chain [to source for repair or replacement]? We come back the next day: the commercial dishwasher had

43


FS514108

been replaced. So it’s amazing how quickly the response was to that. ‘Cause you’re talking about a £5000 piece of kit. And they’d identified someone online and someone to come down and install it. The next morning. So I was surprised by how quickly they were able to react to that. Tick all the boxes.’ (LA1 EHO1)

A team leader in LA3 referred to a bakery with an absentee owner: he was typically abroad, flying in and out to take care of the business but not attentive, not supervising staff well, and always ‘skimming along the edge’ but never actually showing the conditions for imminent risk. An EHO identified infestation of pests - moths and flies, not mice - and served a RAN, which led to a sharper demonstration of compliance. ‘So a RAN was quite useful for that type of business that... Before that, you'd have to think, possibly prosecuting them but there just never was quite enough. They never got the seriousness of what we were trying to do. He would jet in, jet out and thinking that was him for another year. So, to be able to take some form of enforcement action. To say, “Look, we're here, we've now got this power.”’ (LA3 Manager2)

In cases like these, we heard descriptions of a subset of businesses that need an extra push; there is also a subset of that subset who will not care even with that extra push: for those, prosecution is the only option.

5.3.3. RANs do not alienate businesses Consistently across the Local Authorities visited, whether they served more or less notices, the view was that FBOs knew inspectors could ‘shut down’ the business, but there was no clear view of the different tools through which that might be done, or the conditions that would have to be satisfied for each of these tools to be employed. Besides, except for those FBOs that would have been served a RAN, FBOs would generally not know about RANs at all. One officer optimistically indicated the impact of education: ‘Our job is easier if you explain and explain and explain at that point [of serving the notice] until they understand what it’s all about.’ (LA1 EHO1)

Several participants across the LAs argued that RANs are a more business-friendly strategy than the alternatives. Depending on the terms of the RAN, the business can continue to operate partially, rather than closing completely. Also, there is a reduced impact on the reputation of the business, as no notice is put in the window. ‘The old system - and I’m saying it’s a different level of risk you apply a hygiene emergency prohibittion notice to - but the notice goes in the window for all the customers and delivery people and everybody they interact with to see why that business is shut. Food business operators don’t like that – it’s damaging to business. (...) So when they hear that you’re effectively closing their business – formally because it’s a statutory notice and if they don’t comply with the notice you can take criminal action against them – but you’re not putting the notice in the window, they seem somewhat relieved. [Laughs]’ (LA1 EHO1)

44


FS514108

‘This here [i.e. the RAN] has the other option of you resolve it but nobody knows and it doesn’t have a detrimental effect to the business in the public perception. It’s not in the public arena. And to me, in some way it’s the best of both worlds. The officer solves the problem, and the business doesn’t have that reputation that comes out in the open. (...) So it’s a sort of win-win in a sense.’ (LA4 Mngr1)

Not all businesses are equally concerned with their public risk rating, however, and officers noted that certain applications of the RAN - for example, a prohibition from preparing and handling raw meat or ready-to-eat meals - can have the effect of closing down an operation despite their targeted flexibility. One of the officers at LA5 added that RANs enabled achieving a good balance between business interests and the protection of public health: ‘At least the RAN was there and it was in place to stop that practice from the time you served it and that was dealing with the issues and still allows the business to continue trading as well because it was a new business as well, so you’re trying to work with them, take the risk out and still allow them to trade’ (LA5 EHO1)

There seems to be consensus among those interviewed that serving a RAN did not impact their relationship with the business. As EHO3 in LA7 has noted, ‘because you’re working really as a go between, between the Foods Standards Agency and them, so it didn’t really affect the relationship at all because I think they appreciated where we were coming from as well. Because I think sometimes if they’re in the wrong, they need to acknowledge that and move on. But to be fair, they understand where I’m coming from and- and it shouldn’t have been like that, and they accept it, and they’re absolutely fine: we still have a good relationship with them’.

5.3.4. RANs have ‘closed the opportunity and the excuse for [the officer] walking away’ More anecdotally, some users of RANs underlined that, in their view, one of the benefits of RANs was the way it empowered officers to tackle situations that were obviously unsatisfactory yet could not be addressed well with other tools. Before RANs became available in the nonapproved sector, there was thus a space in which non-compliance could be left unaddressed and not tackled, one that officers might have become used to live with. RANs, however, changed that situation and therefore allowed and possibly invited officers to respond to issues they might not have addressed head on before: seen in that light, it is a cure to underenforcement (Natapoff 2006). ‘You now have no excuses for not dealing with something. You can’t get away now with just writing a letter saying your premises was pretty dirty, and there were a number of practices of concern. They didn’t close you because it wasn’t that bad. What did you do about it? “But I had no powers to deal with it.” But you do now. So why did you walk away if you were concerned?’ (LA1 Manager1)

45


FS514108

The argument here refers to situations where officers would be challenged to address noncompliances by colleagues, and notably by their manager. But when officers would not be challenged in such a way, justifications for not serving any notice would consist in other kinds of arguments. For instance, officers might argue that issues they encountered during inspections were probably exceptional, ‘on that day’, but did not reflect the normal situation in the business. ‘I think there were more legal requirements there, but for me that was sorted and had hammered that home, and it was just about his practices for that day.’ (LA7 EHO1)

Officers might argue that it was possible to resolve most problems informally, at the time of inspection, implying that they would then be resolved for good, which made RANs unnecessary. ‘So what I often do is send them out to get something, and then it’s resolved then and there, and show them the way they should be using it. Then you leave happy that they’re doing that.’ (LA7 EHO1) ‘It’s nice to know you’ve got [RANs], but I don’t think you need to use it, just because you can use it, doesn’t mean you should use it, because you can get compliance in different ways and if somebody’s actually, by the end of your visit stopped what they were doing, and made changes, you know, for example if they’ve actually been and, I don’t know, they’re not going to use that bit of equipment anymore, you believe that’s the case, then do you actually need to serve a Remedial Action Notice for that?’ (LA7 Manager1)

Key to the above claims is the level of confidence an officer may place in the FBO’s management and staff to act as they declare they will. By contrast, the more active users of RANs in the LAs visited argued that staff turnover in FBOs might nullify efforts obtained through education and face to face interactions during visits. Solving problems at the moment of the inspection would therefore not necessarily imply that practices would not deteriorate again afterwards. A RAN that remained in place, especially for processes and handling practices, was seen as an efficient response to this problem. ‘If they take a decision to stop doing something then that doesn’t, in my view, nullify the RAN. So it might have the same effect but the RAN should still be in place in case the second commis chef comes along the next day and decides to do it the way they were doing it before’ (LA3 EHO1)

5.4. Conclusions Effectiveness is difficult to assess, particularly on the basis of a small sample of RANs served since 2012. It is also difficult to assess because of the ‘craft-like’ nature of enforcement work: when officers enforce problems on the ground they behave incrementally, adjusting to contexts, and they might adopt different strategies, involving different tools. As a result, apparently similar situations may be resolved by one officer with formal tools (including RANs) and by another without. This makes the assessment of RANs’ impact a difficult endeavour. Some of the answers provided above are also partial as they are based on the subjective judgments of inspectors, and do not include the perspective of businesses. Then again, however, only a small number of those have ‘experienced’ RANs, and most would not be able to reflect on RANs 46


FS514108

versus other notices unless they had a long experience of having the full spectrum of notices served to them. Nevertheless, the evidence collected in this study points to them being generally effective. This general assessment, which should ideally be qualified by further research, is strengthened by the views of officers that RANs ‘work’ because they are immediate, they push FBOs towards compliance, they do not alienate FBOs, and they are giving officers the means to resolve issues they might not have cared to resolve before because they lacked the formal tools to do so.

47


FS514108

6. General conclusions and recommendations This study has strived to bring together evidence on the impact of introducing RANs for the nonapproved sectors in Wales, Northern Ireland, and Scotland. Three years have passed since this new element appeared in the toolkit of officers, during which RANs has been increasingly used in the non-approved sector in the DNs. This study has aimed to understand who had used them or not, why, how, and to what effect. To answer those questions, this project has collected and analysed quantitative data and qualitative data on RANs served in the Devolved Nations. All findings are obviously of relevance to the Devolved Nations. Their implications for England in the hypothetical scenario that RANs became available there will also be examined at the end of this section.

6.1. Generalities The introduction of RANs for the non-approved sector in the Devolved Nations has translated into varied responses from officers and Local Authorities. Indeed, a large proportion of LAs appear to have served very few RANs or no RANs at all since those became available to officers in 2012. A number of interviews have shown that officers were engaged in a process of ‘learning by doing’ about RANs. Not all officers / LAs have engaged into this process at the same time or with the same speed. Numerous signals gathered during the study lead us to expect that this process of learning by doing continues. Assuming nothing fundamental changes in the next few years, we therefore expect future LAEMS returns to show that the use of RANs will have been spreading further across the DNs since the last returns this study could rely on. Variations in the way LAs have responded to the introduction of RANs reflect the influence of several factors. Thus, interviewees had different levels of self-confidence using a tool that many had no previous experience of. Gaining confidence appeared very much a product of experimenting with the tool, and obtaining directions and support from colleagues or managers. Confidence, or a lack of it, was not the only factor that mattered to these variations. Uncertainty about the circumstances when RANs would apply was another. Indeed, many users and nonusers expressed doubts about the boundaries of RANs and when they would be appropriate to use or not. While there was a clear idea of the theoretical ‘gap’ that other formal notices would leave unaddressed, shared consistently by all interviewees, views differed on what that gap looked like on the ground and how much of it could be filled with RANs. As a result, RANs appeared to be used sometimes as alternatives to other tools / in circumstances where other tools could be used, or in other ways that might not all agree with FSA’s Code of practice, guidance, or training on RANs. However, there is also evidence that this tool has enabled issues that could not be addressed before to be tackled, which is something that the general public may ultimately benefit from.

48


FS514108

Variations in RAN use between LAs were also linked with the more general attitudes about enforcement that officers and managers expressed. In particular, non-users expressed a reluctance to use formal tools to achieve compliance. Some expressed also their confidence in a quasi-exclusively informal strategy (that could involve revisits, or naming and shaming) to tackle non-compliances. These general attitudes appeared to reflect organisational cultures (upheld principally by managers), which likely ‘filtered’ the introduction of RANs and the training that came with it, leading to some of the more striking variations that could be observed between users and non-users of RANs. Crucially, these cultures – understandable as ‘the way we do things around here’ – might reflect tested ways of addressing problems that have been found to work well, but they might also be rooted in other considerations than regulatory effectiveness. This might work either way for LAs favourably disposed towards formal tools of enforcement, and for LAs unfavourably disposed towards formal tools of enforcement. Without the evidence that would enable us to discriminate between cultures upholding effective practices and cultures upholding ineffective ones, it is difficult to make a judgment on whether their role in filtering the impact of RANs on practices should be welcome or not. This is also why this study could only come to partial conclusions on RANs’ effectiveness. Considered in isolation, almost all the RANs that had been served by the LAs visited appeared to have been effective. They appeared to have brought swift resolution to problems, to have effectively pushed sometimes particularly difficult non-compliers to comply, while not imposing an undue cost on businesses. However, an assessment of RANs’ effectiveness became more challenging and subtle when one compared across cases where RANs were served and others where RANs were not served. The evidence there is partial, because only few pairs of comparable cases could be identified through this study, where one case involved serving a RAN and the other did not. Besides, compliance could not be assessed independently. These comparisons suggest that confidence in management, itself a construction of repeated interactions between the business and the Local Authority over time, might be the crucial difference that, in certain circumstances, would make the use of a RAN necessary, but not in others. In other words, the effectiveness of a given strategy over another would depend on factors such as the inspector’s own relational skills, and the business people’s own dispositions and capabilities. Similar cases resolved once with a RAN and another without reflect also the contextual and incremental nature of enforcement work. When officers enforce problems on the ground they behave incrementally, adjusting to contexts, and they might adopt different strategies, involving different tools to resolve apparently ‘similar’ issues. In other words, enforcement work is a kind of ‘craft’ (Tata 2002). Incidentally, this character of enforcement work makes it very difficult to produce generalizable statements about the impact of RANs, or of any other enforcement tool. Such factors would have to be carefully considered if more evidence was collected in the future. Micro-level evidence would enable assessing whether different ways of doing things are indeed equivalent in terms of outcomes, or whether they differ. That evidence could then enlighten the debate around RANs. It might lead to the conclusion that measuring the impact of RANs on 49


FS514108

compliance is ultimately impossible, and that the benefit of having RANs might lie elsewhere (e.g. in more rapid and less resource intensive resolution of non-compliance). It might also contribute to the broader discussion in policy and academia about the relative value of formal and informal means of achieving compliance.14 In any case, this study has shown that RANs have been served in reasonable numbers since they were introduced. They were also targeted at problematic, high risk businesses rather than distributed to any kind of business. This answers the concerns of critics of RANs (at the time when their introduction for the non-approved sector was being debated and evaluated), who had suggested that RANs might be used excessively. Finally, these findings shed some light on the notion, core to the FSA’s enforcement and compliance strategy, that the response to non-compliances should be graduated. It has been noted before, in academic works, that enforcement officers should be ideally ‘responsive’ to businesses and to business non-compliances, by having the ability to move up or down a ‘pyramid of enforcement’ (Ayres and Braithwaite 1992). At the bottom of the pyramid, informal approaches would be used and a supportive, accommodative style would characterize officer interactions with the business. However, an incapacity to resolve issues in this manner should then command a process of escalation, that could include at first a more pressing, informal tone of interaction, warning letters, then a range of formal tools that would be graduated and increasingly deterrent, and finally prosecution as the last resort. Tools currently available to authorised officers in England and elsewhere in the UK before 2012 have been discussed alongside the goal of enabling a graduated approach and escalation to compliance and enforcement. However, as far as formal tools are concerned, there has not been much leeway for escalation in that pyramid, since HINs and HEPNs could be served only for distinct sets of problems / distinct levels of risk. The perception of a gap in that regard is supported by previous FSA research (Creative Research 2010) and the Macrory review (Macrory 2006). This study has shown that RANs were welcome by LAs committed to a graduated approach to enforcement (see notably Pair 1 in Annex 2). As such RANs may be considered to have increased officers’ ability to escalate and de-escalate.

Recommendations The FSA in the Devolved Nations and Food Standards Scotland might consider improving the material on RANs that is available to officers, including guidance, and training.

14

Starting with Bardach and Kagan (1982), there has been much talk of the harmful impacts of ‘unreasonable’ formal enforcement. That literature has been reviewed critically by Short (2012), who shows that much of it is not rooted in objective evidence on regulation’s effectiveness or costs, but rather in a deep seated anxiety about state power to coerce. Empirical studies have showed over the years that ‘regulatory enforcement works’ (Gray and Scholz 1993), and that it may in fact have a beneficial impact on businesses and the economy, rather than the opposite (for a recent update on that topic, see Levine et al. 2012). But the literature has also argued that informal means were sometimes effective (e.g. Eckert 2004; Hawkins 1984; 2002). Hence the need to assess one and the other with shared standards of objectivity.

50


FS514108

In terms of guidance, in its current state, guidance could be leaving scope for interpretations that go beyond the intent of the legislation, due to a lack of detail, or the absence of clearer statements on RANs’ purpose. In comparison training material appears to be clearer. To ensure that practices are compliant with the ‘intent’ of the legislation on RANs it might be worth considering whether the ‘letter’ of Guidance could be revised to ensure that it is clear and as unambiguous as possible to officers. While making this recommendation we are acutely aware that it is not possible to transform guidance into a laundry list of situations when a RAN can be served, and it is not the meaning of this recommendation. Rather we are suggesting rewording. For that matter, it might be worth looking for inspiration into other pieces of guidance for enforcement officers, whether at the FSA or elsewhere. More examples of circumstances when serving a RAN would be appropriate and when it would not could be communicated to officers via training. This might prove helpful for less confident LAs and individual officers, who might then begin to use the tool when they encounter circumstances that would justify its use. It could also help prevent inappropriate uses of RANs. To ensure that it does not lead to excessively prescriptive, automatic decisions to serve RANs, training should at the same time promote a reflective use of RANs. The elaboration of a richer set of scenarios when RANs would (not) be appropriate should rely more on coordinating the know-how of the FSA (particularly in terms of legality) about RANs as they have been used within the context of meat controls, and the already rich experience of the more active users of RANs for the non-approved sector in the devolved nations. This study’s findings on different ‘organisational cultures’ in LAs influencing the take up and use of RANs substantiates what many working in this area already know: management orientations play a significant role in shaping implementation practices in LAs. In that regard, these orientations contribute to experimentation and a variety of ‘enforcement styles’ on the ground, which may be a positive development if it contributes to regulatory effectiveness. Yet, it may also be a less positive one if it leads to inconsistencies in the way similar problems in different businesses are dealt with. For that matter, authorities in the DNs might wish to consider addressing these managerial orientations head-on, to ensure that ways of dealing with noncompliances did not vary too greatly, and that risks witnessed were addressed within a reasonable time frame. This study was a rare attempt to assess the implementation of a new enforcement tool. Future evaluations, of RANs or other tools, would be strengthened if they built on this first study. For that matter, an in-depth examination of FBO cases more extensive than what this study has achieved would likely prove fruitful. Thus, a more extensive set of controlled comparisons at the level of the inspected business could be put together. Such qualitative data of sufficiently detailed quality would help in ascertaining the value of RANs as a means of resolving specific problems, while acknowledging the ‘craft-like’ nature of enforcement work.

51


FS514108

6.2. Implications for England This study has shown a range of responses to the introduction of RANs in the Devolved Nations. Similarly, one should expect that an hypothetical introduction of RANs in England would also elicit a range of LA responses, from enthusiastic to sceptical, from proactive to defensive, from active to passive. Hence, the actual outcome of introducing RANs in England, at least in the first years, might be a use of RANs in only certain parts of England, with progress observable year on year. This would not be surprising considering that there has been a similarly graduated take up of other initiatives in England (e.g. the Primary Authority Scheme). Hence, any future exercise assessing what RANs might mean for England, such as an impact assessment, should draw as much as possible from the contrasted picture emerging from the Devolved Nations, as presented in this study, rather than on a baseline assumption that all LAs might use it in equal proportion, which is not supported by the current data. That said, if changes were to be made to guidance and training to address some of the issues identified in this study, an introduction of RANs in England after such changes were implemented could then be better accompanied, and might lead to a quicker and more evenly distributed take up of RANs across LAs, and perhaps also a more controlled and consistent use, than could be observed in the Devolved Nations for this study.

52


FS514108

7. References Ayres I, Braithwaite J (1992) Responsive regulation: transcending the deregulation debate. Oxford: Oxford University Press. Bardach E, Kagan RA (1982) Going by the book: the problem of regulatory unreasonableness. Philadelphia: Temple University Press. Bower M. (1966) The Will to Manage. New York: McGraw-Hill. Creative Research (2010) Adequacy of the legal powers within current Food Hygiene Legislation. Report to the Food Standards Agency, London. George AL, Bennett A. (2005) Case studies and theory development in the social sciences. MIT Press. Gray WB, Scholz JT (1993) Does Regulatory Enforcement Work? A Panel Analysis of OSHA Enforcement. Law & Society Review 27:177-213. Eckert H (2004) Inspections, warnings, and compliance: the case of petroleum storage regulation. Journal of Environmental Economics and Management 47:232-259. Faure AM (1994) Some methodological problems in comparative politics. Journal of Theoretical Politics 6(3):307-322. Hawkins K (1984) Environment and enforcement: Regulation and the social definition of pollution. Oxford: Clarendon Press. Hawkins K (2002) Law as Last Resort. Prosecution Decision-Making in a Regulatory Agency. Oxford University Press, Oxford. Hutter BM (1988) The reasonable arm of the law? The law enforcement procedures of environmental health officers, Oxford: Clarendon Press. Levine DI, Toffel MW, and Johnson MS (2012) Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss. Science 336:907-911. Macrory R (2006) Regulatory justice: making sanctions effective. Cabinet Office, London. May, PJ and Winter S (2011) Regulatory enforcement styles and compliance. In Parker C and Nielsen V (eds) Explaining compliance. Edward Elgar. Pp. 222-44. Natapoff A (2006) Underenforcement Fordham Law Review 75:1715-76. Short, JL (2012) The paranoid style in regulatory reform. Hastings Law Journal 63:633. Skocpol T, Somers M (1980) The uses of comparative history in macrosocial inquiry. Comparative Studies in Society and History 22(2):174-197. Tata C (2002) Sentencing as craftwork and the binary epistemologies of the discretionary decision process. Social & Legal Studies 16(3):425-447.

53


FS514108

Annex 1. Methodology General design and case selection The project began with a review of the LAEMS data for the Local Authorities in the Devolved Nations. This review intended to explore, among other issues, the distribution of RANs across Local Authorities (LAs). This was then relied on to select cases for a more in-depth qualitative inquiry into regulatory decisions by officers. LAs which had been serving RANs since the Spring of 2012 and LAs which had not would both be approached. Within each sub-group, selection was a function of two sets of parameters: the first set of parameters corresponded to the history of enforcement practices at the LA, as it could be documented from LAEMS returns for 2010-2012. This was relied on to distinguish between LAs in terms of their ‘enforcement style’ (May and Winter 2011): preferences towards the use of a formal vs informal, coercive vs facilitative approach in their interactions with regulated businesses. This distinction was operationalized by measuring the average ratio of formal notice (particularly, HIN) per FBO over 4 periods of LAEMS returns (i.e. from 2010 to 2014), and assessing each LA’s deviation from that average, whether it was above (in which case it was deemed to have a ‘formal’ enforcement style) or below (deemed to have an ‘informal’ enforcement style). In practice, there is limited variation between LAs in the sense that there are no true ‘trigger-happy’ LAs (namely, LAs with an enforcement style akin to what scholars call a ‘legalistic sanctioning approach’; Hutter 1988:156). Rather LAs differ in the degree to which they have implemented what might otherwise be called a ‘flexible, accommodative approach’ to noncompliances (Hutter 1988: 156). It was that difference in degree that we strived to factor in under the terms ‘formal enforcement style’ and ‘informal enforcement style’. The second set of parameters corresponded to the general profile of the LA in terms or relative urbanness/ruralness. The aim was to approach LAs that would present both rural, mixed, and urban profiles. In practice, it was not possible to approach LAs that fitted all these criteria. In the end, 11 LAs out of the 12 hoped for were visited. Eventually, the LAs that agreed to participate in the study presented the following profiles: LAs that have served RANs

LAs that have served no RANs or very few

LA1: mixed, formal enforcement style

LA6: urban, informal enforcement style

LA2: mixed, formal enforcement style

LA7: mixed, informal enforcement style

LA3: urban, formal enforcement style

LA8: rural, formal enforcement style

LA4: urban, informal enforcement style

LA9: mixed, informal enforcement style

LA5: rural, informal enforcement style

Among these 9 LAs, 2 were situated in Northern Ireland, 3 in Wales, and 4 in Scotland. Two additional LAs located in England (one rural and one urban) were also visited. Those were selected based on similarities with some LAs located in the Devolved Nations that had not served RANs. 54


FS514108

LA10: rural, informal enforcement style LA11: urban, formal enforcement style

Data gathering protocol The protocol used for each LA was as follows: LAs having served RANs were approached first. They were asked to send by email information on the RANs they had served, which included the issues for which the RAN was served. LAs were also asked to provide additional information on the type of business, its Annex 5 risk rating, and a reference that could identify the officer who had served the RAN (the latter was useful to maximize variety of officer perspectives). The project began with LAs that had served a good number of RANs, which enabled the team to make a selection that strived to explore the variety of issues on which RANs have been served. A choice of 4 (sometimes 5) cases was made and the LA asked to prepare access to the related documentation (inspection reports, letters, other notices), and to have the officers who had served those RANs available for interview. When LAs who had not served any RAN or very few RANs were approached later, they were asked for information on about 30 cases of inspections that fitted features encountered while reviewing the RANs served in other LAs, such as cross-contamination or pest control issues in catering businesses rated A, B, C.15 Similarly, 4 or 5 cases were then selected and access to the relevant documentation and the officers in charge was requested. In general, LAs found it difficult to provide qualitative information on issues encountered for 30 cases. Indeed, that often required extracting information from letters and inspection reports, which was time consuming. In practice, the team had to accommodate the resource constraints of LAs, while striving to ensure comparability between the cases. That means that the team was able to select cases from between 10 and 20 cases. The fieldwork was undertaken between January and March 2015. A visit to an LA usually took about one and a half day, and began with an interview with the head of the food team / principal officer. This was to document the team’s organisation and procedures, the general context of the LA (FBO population, staffing levels, political context, etc.), and the view from managers on delivery of food controls in general, and on enforcement in particular, with some discussion specifically on RANs. Then the rest of the day was spent reviewing documentation on the cases selected as per the above. On the second day, the cases were discussed with the officers who had attended to each case. When there was an opportunity to do so, the team leader was sometimes seen again for a debrief and clarifications at the end. 15

FBOs are risk-rated by inspectors using for that purpose a risk rating system outline in Annex 5 of the Code of Practice. Following the code businesses are rated in 5 different categories: A, B, C, D, E. A corresponds to the higher risk category, and is linked to the highest frequency of inspections. Since most RANs documented in the first group of LAs were served to A, B, or C rated businesses, the selection of cases in the second group of LAs was also focused on A, B, and C rated businesses.

55


FS514108

All interviews were semi-structured. They were all recorded and transcribed afterwards. All LAs and individuals were promised anonymity.

Limits inherent to the qualitative, small-N approach, and role of controlled comparisons There are significant limits to any quantitative, large scale (or ‘large-N’) assessment of RANs at this stage. The qualitative, case study (or ‘small-N’) approach followed is therefore not only a way of painting a rich picture, it is also the only one that could bring any evidence to bear on the question of RANs’ impact at this stage. However, whenever some usable information could be drawn from LAEMS, it has been added to the discussion, in order to help assessing the strength of the qualitative data. There is an inherent trade off in such a qualitative approach, between generalizability and depth. Collecting significant detail on cases via documentary analysis and interviews makes cases richer but also less easy to compare with each other, and limits the overall number of cases that can be studied as this is a resource-intensive method. In this study, these limits are partially overcome by a careful selection of cases, which aims to balance key features and observations within the sample. This gives the sample internal variation that reflects (imperfectly) the variation one could find in a bigger sample. Limits to the qualitative methodology are also partially overcome by pairing interviews with documentary analysis, which provides a reference against which the statements of interviewees could be assessed. Besides, the choice of cases enables selective one-to-one comparisons, for instance between two LAs that have similar profiles yet distinct patterns of RAN use. Such partially ‘controlled’ comparisons provide the conditions for causal inferences to be made, and ‘contingent generalizations’ to be attempted (George and Bennett 2005). This is illustrated in Annex 2 with three such controlled comparisons, each one involving two LAs from the sample. For these three pairs, the choice of which LAs to compare with one another was done ex post, after the data collection had been completed, and on the basis of salient characteristics that had been identified in that phase. Other characteristics (historical use of enforcement tools, urban/rural character, size) had been considered ex ante, when choosing which LAs would be approached for the study. The comparative analysis of LAs in pairs follows well established principles of comparative methodology, whereby the causal role of a given factor may be appraised by controlling for similarity or dissimilarity of all (or most) other factors across two (or slightly more) cases. These principles were set out in the logical writings of John Stuart Mill, and have diffused extensively into comparative social science research, notably comparative politics (e.g. Skocpol and Somers 1980; Faure 1994). There are two types of comparative design applicable here: the most similar systems design (MSSD) and the most dissimilar system design (MDSD).

56


FS514108

MSSD relies on a comparison of two (or more) highly similar cases, which may differ only with respect to one possible causal factor taking different values in one case and the other, and in the outcome one is interested in explaining, also taking different values in one case and the other (see Figure 2). MDSD relies rather on a comparison of two (or more) highly dissimilar cases, which may resemble one another only with respect to one possible causal factor, taking the same value in both cases, and the outcome of interest, also taking the same value in both cases (see Figure 3). Case 1

Case 2

a b c x

a b c not x

overall similarities

crucial difference y

not y

Key: x = causal factor ; y = phenomenon to be explained Fig.2: Most similar systems design (from Skocpol and Somers 1980:184)

Case 1

Case 2

a b c x

d e f x

y

y

overall differences

crucial similarity

Fig.3: Most dissimilar systems design (from Skocpol and Somers 1980:184)

Such designs have the main virtue of enabling the analyst to discriminate between multiple factors that can be documented in a qualitative study, and effectively emphasize the particular influence of one of them by virtue of its non-variation as opposed to the variation of all other factors, or vice versa. In the three compared pairs presented in Annex 2 of the report, both designs are used. The first pair is an MDSD, and the two other pairs to follow are MSSDs. There are various learnings to take from these comparisons, and they have been, for most of them, already mentioned in the body of the report earlier. These longer sections provide a more extensive (and controlled) body of the evidence, and a fuller, more detailed (and nuanced) picture of LA work with or without RANs.

57


FS514108

When it comes to causal claims, these pairs have mostly something to say on established ‘enforcement styles’ and how they appear to have determined the relative take-up of RANs by Local Authorities.

58


FS514108

Annex 2 – In-depth comparison of paired cases The research design that was adopted for this study, which involved a limited number of carefully chosen Local Authorities, enables further analysis in the form of focused, structured comparisons of LAs in pairs. This follows well established principles of comparative methodology, whereby the causal role of a given factor may be appraised by controlling for similarity or dissimilarity of all (or most) other factors across two (or slightly more) cases. When it comes to causal claims, these pairs have mostly something to say on established ‘enforcement styles’ and how they appear to have shaped the relative take-up of RANs by Local Authorities. Hutter’s 1988 book on the law enforcement procedures of Environmental Health Officers identifies two ideal-typical ‘strategies’ she found in British LAs. She called them the ‘persuasive strategy’ and the ‘insistent strategy’, one more patient and lenient with noncompliers than the other. As she argues, these are variations from a particular enforcement style that might be called ‘accommodative’ rather than opposite enforcement styles (where one would be formal and coercive, and the other informal and facilitative). As the pairs below will show, the evidence collected for this study also shows more a difference of degree rather than one of nature between the strategies officers from different LAs would use to address non-compliances. Yet, these differences of degree appeared significant enough to explain variations in the take-up of RANs within the sample of LAs studied.

Pair 1: LA4 and LA5 Two local authorities involved in our study showed comparable features in terms of their relatively ready use of Remedial Action Notices despite a general profile of a reluctance to use formal notices and what officers and managers in both councils described as an approach that escalates, a ‘graduated’ approach. This is not to say these LAs are necessarily or even broadly similar. They are in different devolved nations and therefore have distinctive legislative abilities and limitations, and they have established their traditions of upholding food standards in distinct cultures. Moreover, LA4 is a mixed authority, comprising both a dense urban (or suburban) population and wider, loosely populated areas; LA5 is a rural authority with a large territory and a spread-out population. They share a proximity to large urban centres, and, for the purposes of this study, they have comparable enforcement cultures, though these have developed for different reasons. LA4 The team of EHOs at LA4 is dynamic and energetic, led by a manager who has been in the LA and in food health for nearly 20 years. Though he described the priority of the department as to protect public health first and foremost, he emphasised the prevailing will of the council to support businesses and not interfere with them unduly, and this has largely been taken on board by the department. There is an emphasis on education, with a hands-on approach that begins with an advisory visit.

59


FS514108

One of the EHOs interviewed indicated the appeal of the advisory visit: she found it generally worked for compliance – the unannounced inspection within six weeks or so of the advisory visit usually turned up satisfactory results. She also said it was fairer on FBOs, especially when new requirements for cross contamination/E.coli came in. The advisory visit was a way of explaining what was now expected under the legislation. Another stated advantage of the advisory visit was to bolster their case should they need to take legal action: in the face of magistrates, the manager said, the evidence of the advisory visit would allow them to argue that they had told the FBO what was expected. The manager indicated that the idea of an advisory visit was at odds with the regional FSA body, but in this policy they had the support of the council, which favoured it as friendlier for businesses. Excessive notices and a hard, punitive take on upholding food standards would not be welcome: the manager spoke of the difficulty in convincing magistrates of the worth of prosecuting or issuing a HEPN. The political and jurisdictional context, therefore, favours a lighter hand with business owners. The advisory visit was described as the first step in a graduated approach to achieving compliance, and this was tightly connected to confidence in management – the officers’ belief that the FBO would do what was asked of them to keep compliant with food safety legislation. The manager described stages to engagement with a business that had concerning issues: a letter explaining the problems, a period of perhaps four to six weeks to improve, a revisit to examine the results. If at that stage the situation is not satisfactory, they might issue another warning letter indicating a move to formal action if there is no compliance. He said, ‘there is nothing hard and fast that will say I’ll do a visit and I’ll send a letter and I’ll revisit them. It’s not done on – it is up to us to say “How do you feel? Do you think it’s going to work?”’ (LA4 Manager1)

Even after making use of RANs and seeing the ways that they can be applied, he said he would still encourage officers to think of other options – would a verbal agreement work? Because this LA’s preference is to take the informal route when possible, RANs are an appealing formal tool to go to when the informal route has reached its limits. They are immediate and specific, so their clarity is one beneficial aspect. They are sharp, with steps that must be followed whilst the RAN is in place and in order to have it lifted, and severe penalties if they are breached; this suits their expression of the graduated approach – they will have tried informal methods first, and this becomes the strong hand when the soft hand hasn’t worked. As one EHO interviewed put it, ‘It just concentrates the mind [of the FBO] – they actually go, “Oh, they’re going to do something now,” and it’s immediate.’ (LA4 EHO2).

Finally, RANs have a reduced public impact on the business: there is no notice on the window telling people what’s wrong. As the manager said when describing his interaction with an FBO for a RAN that he served for pest control,

60


FS514108

‘“You can tell them you’re closed for maintenance if you want – that’s not up to me. I will not be sticking some sticker saying, ‘This is closed because there’s a rat running around the business.’ This is between you and me.” […] They used to fear the Hygiene Emergency Prohibition Notice because they knew that there would be a thing stuck on their window telling everybody.’ (LA4 Manager1)

One EHO said she used similar advice regarding her case: ‘“You can say whatever you want: there’s a problem with the gas, there’s been a water leak, whatever.” But it sort of minimised it to the extent that they could continue with a bit of lunch and then do teas and coffees in the afternoon.’ (LA4 EHO1)

LA5 Though the outcomes for LA5 are similar, the profile of the food safety team is different. This rural LA has a large and loosely connected geography. Officers are guided in their decisions by a pragmatic common sense, which filters down from their manager. As with the manager in the previous case, he has many years of experience in food safety and in the region, and he is improvisational and informal in his approach to FBOs. He articulated his preference for informality in distinct ways, though: he was less swayed by the economic argument concerning the viability of businesses and, through them, the council; rather, he respected the autonomy and expertise of the staff at food businesses – chefs, for example, who have been cooking for twenty or thirty years, or owners who know how their business ought to be run. In perhaps a typical rural profile, he preferred to interfere as lightly as possible and conduct his work through relationships. This rural sensibility also animated his concern when premises contravened legislation: ‘I hate this thought – and I’ve come across a few of them – of anybody sort of making a fool of the community, making a fool of me and my officers. They don’t deserve- If they’re going to come here and operate a food business, they’ll do it correctly.’ (LA5 Manager1)

Alternately, he said he prefers to promote good practice when he sees it, such as an awards scheme, rather than force good practice on a business: ‘If I have to take anybody to court, I’m not doing my job right.’ (LA5 Manager1)

This is not to indicate he is misusing or ignoring the available tools and powers at his disposal but to reflect the manner by which he prefers to achieve compliance. He described the graduated approach thus: ‘So, you’re talking in terms of somewhere in the region of about 18 months to two years, and there’s got to be absolutely no improvement whatsoever; before you determine you serve notices, you go back.’ (LA5 Manager1)

No one interviewed from this LA described a policy of starting engagements with an advisory visit, but they uniformly talked of a preference to educate over enforcing regulations formally. One senior EHO said, 61


FS514108

‘our policy is, we’d obviously give them the guidance advice first, informally. But depending on how that’s done, if you’ve come back and find it’s reoccurring, then obviously that informal route hasn’t worked, so we need to look into something else.’ (LA5 EHO1)

Another senior EHO said he tries to make business owners think the food law practices (e.g., writing HACCP or developing an FSMS) are their idea: ‘I’ve always been of the attitude of a bit more of a “softly-softly” and try and coax someone. One of the things I’ve always believed is that if you make someone do something they don’t feel is in their interests, it’s not their decision to do it to do it – [it is done] under duress. Whereas if you can explain to them and actually make it their idea to make the change, that’s going to have […] a much greater impact on their attitude towards these business, certainly from a food side, anyway. So I’ve always given them perhaps that extra chance to do something [which] perhaps they shouldn’t have done.’ (LA5 EHO2)

This last comment suggested some of the failures in the graduated approach: for a chronic noncompliant business, the reticence to take formal measures may delay the rectification of significant problems, as was the case for the business we discussed. This case, however, was not lacking in formal notices: HINs and RANs had been served on the business over several years, and both RANs had in fact been breached. The officer in this case acknowledged that the last resort was, in fact, prosecution and that this route ought to have been taken. The manager, in a general reference rather than specific to this case, explained that he wants to leave space for options even with formal notices: ‘if you do a letter and nothing’s done about it, you’ve still got to make the judgement whether to give him a second warning letter or, and it’s dependent on- But everything I use, failure to comply with this notice always says “may result,” and a report (…) “recommend prosecution,” “recommend.”’ (LA5 Manager1)

He stressed the contingent element with these phrases – may and recommend. As with LA4, RANs here were seen as a tool consistent with the graduated approach. The manager defended RANs on account of their briskness: starting a prosecution and going to court involve time and expense. He was less concerned with magistrates than in LA4 but more concerned about the legal team defending the food business: lawyers would try to overturn a case by focusing on the fine points of process, e.g., by what procedures did the EHO determine to take a food sample, regardless of whether the sample was unsatisfactory or not? The RAN is quick, specific, flexible (i.e., officers don’t need to close the entire premises down), and it does not require convincing another authority (magistrate, sheriff, or procurator fiscal). Discussion Officers in these two LAs therefore interpret RANs in much the same way. They see the notice as a tool consonant with the prevailing policy of achieving compliance through informal methods whenever possible, and although they use RANs, they see their typical application as a quick, sharp notice when a series of visits, revisits, letters, and verbal warnings has failed. One AO described ‘a hierarchy of enforcement’ (LA5 AO1); another AO called RANs ‘a tool that I think is good, but it’s always a last resort.’ (LA5 AO2) An EHO said it was about ‘making them 62


FS514108

understand we’re not a bunch of people with a big stick. We have a big stick, but we don’t like to use it very often, so we’re simply there to try and help them.’ (LA5 EHO2) This is not to say that food safety staff only used RANs after several visits and warnings had been tried. Officers in both LAs suggested they understood the boundaries for RANs well and knew their place in relation to other tools. Formal actions, though, were seen to be the exception. The manager in LA4 said his shorthand advice to young officers on when to consider serving RANs or HEPNs was as follows: ‘It’s when you stand there and just think “My God! Look at the state of this place.” Because it’s something that is more out of the ordinary. You will stand there for a little while thinking “What am I going to do here?” And as soon as that comes into your head, then that’s the way it should be, [laughs] because it’s not run of the mill.’ (LA4 Manager1)

Officers, therefore, are encouraged to do risk-based assessment on their inspections. Both sets of cases that we examined in detail included at least one example of RANs served without prior engagement on that issue. One case in LA4 concerned rodent droppings found on the first inspection of a new food business; another was a café inside a retail shop, the kitchen of which was at an unacceptable level of cleanliness. In this case, the EHO said she might have taken a different course of action, but the café was starting to get busy with customers lining up in the late morning. She couldn’t imagine how staff could clean it whilst serving meals to customers, so she served a RAN to prohibit the preparation of food from the kitchen. She articulated the impending rush of customers as an element in assessing the level of risk. A case in LA5 concerned a food business that had already had a RAN, as well as several other formal and informal actions, served on it. However, the event in question was a tip from the public about staff storing food at a vacant premises across the street (it was owned by the same people who owned the food business in question, but it had not been opened, registered, and fitted for use). The RAN was immediate and prohibited the use of the unfinished premises until it was made compliant. Risk-based assessment was therefore demonstrated to be an element of both LAs’ use of RANs, though they favoured a graduated approach. A final note to make in comparing these two cases is their dislike of the formal tools of assessment. The manager in LA4 made pejorative mention of the form that bound officers to a long inspection regardless of what was happening on the premises, and his counterpart in LA5 caricatured trainee EHOs who hold their clipboards in hand, open their eyes wide, ‘and they stand in the middle and then do a 360 degrees [turn and survey the premises from a fixed point].’ His preferred method is relational and conversational, and he urges trainees to speak more with the food business staff when he is accompanying them on trial inspections. The manager of LA4 had more processual solutions in mind: his example was to have the power to replace 18 month inspections that take a long time to work through the requisite form with more frequent visits that are shorter, spending perhaps 25 minutes but appearing every six months. For staff in both LAs, RANs are a good tool – one that they see the sense in and that has a place in their toolkit. They have made use of them – not excessive but, according to our analysis of the LAEMS data, more than would be predicted by their historical use of other formal actions. 63


FS514108

The manager of LA4 stated that RANs are not a tool he would want to lose, even though he prefers to uphold food standards by less formal means: ‘It is certainly by no means [something] we want to see disappear, because we have been left in limbo down the years on a lot of scenarios that this sort of thing can [accomplish, filling in gaps between other formal notices].’ (LA4 Manager1)

This pair shows how RANs would be fully compatible with a graduated approach that would certainly put more emphasis on education and be more tolerant of delays in correcting noncompliances than can be found in other LAs. However, that approach was not incompatible with risk-based judgments and the sometimes immediate responses it called for.

Pair 2: LA2 and LA7 Authorities LA2 and LA7 are contrasted in their response to the introduction of RANs. However they are in many ways similar: they belong to the same devolved nation. They have not suffered many cutbacks and described themselves as well resourced. Indeed, they had very similar ratios of FBOs per EHO. There are approved premises in both authorities and training has been provided for the use of RANs, thus lack of confidence and familiarity with the tool could not account fully for variations in the use of RANs between the two LAs. However, they differ in two important respects: their enforcement styles and the level of control their management is exerting over individual decisions. These appear to have a significant influence on the extent to which they have served / not served RANs. LA7 Speaking of LA7, where 2 RANs have been served for non-approved premises, both LAEMS data and the interviews conducted show an inclination towards an informal style of enforcement. This was presented in familiar terms as an educative approach, with formal enforcement responses kept only as a last resort. ‘we’ve always had a very educative approach as to how we conduct inspections. So very much want to try and get people compliant, but then not have to go down enforcement routes unless we really have to’. (LA7, Manager1)

The manager further explained that ‘most people want to comply, they just need to be shown the way through sometimes. It’s the people that don’t want to comply and you know they’ll continue with that activity when you’ve left that are the ones that need the enforcement’ (LA7 Manager1).

EHOs also preferred to resolve issues on the spot, at the time of inspection if possible, rather than serve a notice: ‘At the time of the inspection there was no disinfectant, or some Dettol was bought during the course…So what I often do is send them out to get something, and then it’s resolved then and

64


FS514108

there, and show them the way they should be using it. Then you leave happy that they’re doing that’ (LA7 EHO2). ‘I try to…I try to get compliance straight away, so if something’s like a disinfectant, if they haven’t got on we’ll say shop nearby, go and get it now for me. I’ll tell them roughly which ones, give them the choice, leave it to them. So they usually come back and they’ve got it and got an issue dealing with any food which they may have prepared. So say if there’s a small amount of salad that they’ve prepared and I’m not happy that it’s been prepared on the correct board, they will throw that away, so that’s gone. So they know then and I’ll educate them, I’ll say look you must make sure because people get food poisoning and I’ll make sure they’ve got all the different tools then’ (LA7 EHO3). ‘I did think about using RAN once, I discussed the RAN with and a HIN, I discussed both with an FBO and he sorted the problem “like that”.’ (LA7 EHO1).

Talking specifically about RANs, the manager saw the benefits of RANs as filling a gap between HINs and HEPNs, but there was doubt as to what extent they should be used: ‘Well you were stuck, but I said…cause if you couldn’t prove imminent risk, that then there was nothing else you could do, unless you were going to serve a Hygiene Improvement Notice, which sometimes isn’t…well you don’t get an immediate effect with that do you, you’ve got your 14 day, so it wasn’t…there was a gap and I very…I still think there was a gap on that, but I don’t think the answer was then to serve a lot of Remedial Action Notices just cause you could.

The manager further elaborated that: ‘It’s nice to know you’ve got it, but I don’t think you need to use it, just because you can use it, doesn’t mean you should use it, because you can get compliance in different ways and if somebody’s actually, by the end of your visit stopped what they were doing, and made changes, you know, for example if they’ve actually been and, I don’t know, they’re not going to use that bit of equipment anymore, you believe that’s the case, then do you actually need to serve a Remedial Action Notice for that?

The reasons behind this incline of the management towards a more informal style might lie in their background, which could account for the weight they gave to the economic impact of their actions on businesses. The manager had worked in the food industry for about 11 years both in manufacturing and in retail, and the LA has been praised during an FSA audit for their support for businesses. ‘in our section we’re business focused and we’re trying to help. A few of us in our section and our manager have all worked in the private food sector, so I think compared to some other councils we have more experience and I think they’re very communicative with businesses and know what their challenges are’. (LA7 EHO1)

This management attitude towards enforcement in general and RANs in particular was combined with heightened restrictions on EHO discretion (relative to what could be seen in other LAs), since EHOs needed to seek approval before any formal notice was served:

65


FS514108

‘When I heard RANs were first going to be used in businesses I was open-minded and had no thoughts, because I was never going to carry them in my bag or anything. It’s written in our procedures that before any formal… you have to discuss it with the next in line before you can take any action anyway’. (LA7 EHO1)

The manager justified this restriction: ‘But to serve a notice, it has to come through me, as in if I agree with it, because obviously it’s…if there’s going to be appeals on something, then it’s…I’ve got to protect the authority, if I don’t think that something is proportionate, then I’ve got to say that I think that, because I can’t leave the Council open to challenge, you know, that someone might win on. And I, actually as an officer, I’d agree with them’.

A case that illustrated the interplay of these factors has been discussed with EHO1. It was about a rat infestation in a small supermarket that had a small front store and ‘boarded lean-to for storing food in’ where the actual infestation had occurred. As EHO1 explained, there was no evidence of rats contaminating food but there were a couple of dead bodies and other evidence. The business had been employing a pest control company but the contract was not being fulfilled. The officer further explained: ‘I discussed it with the managers and said ‘I can serve a remedial action notice which will stop you using this at all.’ That was putting pressure on them because they needed the space, they were looking to keep non-perishable things in there but my argument was that rats would use that for nesting material, so I said ‘I can serve this to stop you using this at all, and it will be an offence then to use this area.’ That put on a big strain because it was Christmas time and they needed all the stock. They got a contractor out to do all the works the pest control person wanted them to do, but if they hadn’t done that then I would have asked my boss if I could serve a RAN’.

Overall, only few RANs were served to non-approved premises in LA7 between April 2012 and March 2015. They were served for dual use of complex equipment (slicer, vacuum packer). Resorting to formal enforcement and RANs in these cases seems to have been heavily influenced by the E.coli guidance, which somehow was perceived as prescriptive enough to overcome the LA’s reluctance to serve notices. In such circumstances, the rationale for making decisions appeared to be fundamentally framed by the guidance, and a prescriptive approach. The manager called the guidance one of the biggest changes in the way they worked, especially because it was so explicit about the use of complex equipment: ‘I mean that has changed, because prior to that outbreak and the guidance, we would’ve just gone down the route of as long as we think you’re cleaning it properly and can describe it and the person’s been trying to, then you…you take that. But following the E.coli outbreak and the guidance that came from that, then that is no longer the case. It’s Remedial Action Notices being served for that’

The manager further claimed that this had had a big impact on the way officers thought and approached enforcement:

66


FS514108

‘Officers are bothered that their file is going to get pulled to pieces in a public inquiry situation. Yeah, that Pennington could be wheeled down to criticise something, the decision that they’ve made’.

LA2 LA2 showed a greater inclination to use formal enforcement tools, which could be drawn from interviews and the historical use of notices recorded in LAEMS. This was reflected in the number of RANs served to non-approved premises, which was a double digit figure. Besides, RANs served in LA2 were for wider range of issues than dual use of equipment, including also cleanliness, other equipment such as malfunctioning fridges, and handling practices. Both manager and officers emphasised the risks to the public of not responding appropriately to problematic situations, emphasizing the role of risk assessments in their decisions: ‘As much as we’re trying to encourage businesses as well and educate them and advise them, we have to be mindful that we’re here to protect public health. And if they’re putting the public at risk we have our enforcement powers to use’. (LA2 Manager1) ‘It wouldn’t have been appropriate for me to walk away from that premises and just say, oh tidy up, I wanted to reinforce and use my enforcement options to get the work done and to make sure it was done. What I didn’t want to do is walk away from there and just say ‘make sure you clean it’, go back on a Monday morning, find that they’d been trading all weekend and it hadn’t been done’ (LA2 EHO3).

The balance of addressing risks versus keeping businesses unburdened was struck differently at LA2 than at LA7, by putting greater emphasis on risks to public health. When asked to what extent financial considerations came into play when enforcement actions were considered, the manager said ‘the finance doesn’t come into it. As awful as that sounds, whether they’re a business that is struggling or whether they’re one of the multinationals, if they are causing a significant risk that puts the public at risk we would use our enforcement powers appropriately. It doesn’t matter what type of business they are.’ (LA2 Manager1)

EHO3 was of the same opinion: ‘No, no. When…when I was training, it’s…it’s obviously not black and white, there’s always shades of grey, but when you go into a food business, you do your job to protect public health, that’s what you’re there for’.

An interesting quote helps characterise further the style at LA2 by associating reluctance to just rely on the business’s ‘word’ and regard to the formal dimensions of an inspection, notably underpinning legislation and official guidance: ‘So for example, I had a food business that I went to yesterday where the structure wasn’t great, so they’re worried about their rating going down, the rating scheme, and I spoke to the owner today and he said ‘oh we’re going to have it all done next week’, and it’s really difficult cause whilst you appreciate that, when you go and do an inspection, you have to deal with what you find

67


FS514108

on the inspection and you can’t allow, you know, anything else to alter your opinion, or what action you take and you obviously have to comply with the legislation and the Code of Practice. You take appropriate action, yeah’. (LA2 EHO3)

This echoes previous studies that differentiate between enforcement styles based on a general inclination towards formalism / non-formalism (e.g. May and Winter 2011), including reliance on official documents such as legislation and guidance. In the quote above that inclination towards formalism was linked to a distinct reluctance to walk away with only verbal assurances from the business. For instance, when a business would lack hot water, while officers in LA7 would accept provisional arrangements such as water boiling in a kettle or on the stove that would not involve closing the business, officers in LA2 would rather obtain that they close: ‘yeah, we’d close them if they didn’t have water. Yeah, imminent risk to health, no hot water. They’d be shut down’. (LA2 EHO2)

In contrast with officers at LA7, officers in LA2 were left sufficient discretion to serve a notice without having to obtain management approval: ‘No, no. They tend to phone me just to say that they’ve served it and they tend to phone me for HEPNs so that I can go down and start getting the legal process of getting to court within, or getting it listed in court within three days (...) They’re pretty much, they know what they’re doing, they know what they can serve. They’re authorised to serve it so they serve it and then they come back and just as a general passing they’ll let me know so that I know what’s coming up, I know what could potentially come up as a prosecution etc., etc.’ (LA2 Manager1) ‘I’ve been lucky, both the authorities that I’ve worked in have both been quite proactive in enforcements. So if we need to serve notices we’ve been allowed to just go and do it, and likewise if we just need to take things through to prosecution both authorities have been happy for that.’ (LA2 EHO2)

As a result, individual officers would speak of enforcement decisions as their own: ‘From what I can remember, what I do is if it justifies enforcement action, I take enforcement action.’ (LA2 EHO1)

Discussion This comparison suggests that manager preferences on enforcement and on officer discretion might have shaped the use of RANs in LAs after 2012. The relatively well-controlled nature of this particular pair, with significant similarities across and a few significant differences, gives us some confidence that, indeed, enforcement style – understood as an observable preference for a more formal / informal approach to resolving non-compliances – has likely been a determinant factor shaping the way LAs in Devolved Nations have used RANs in the non-approved sector. A secondary factor has been the E.coli guidance, which appears to have motivated the very marginal use of RANs in LA7.

68


FS514108

Pair 3: LA1 and LA9 Another fruitful comparison for closer study is the contrast of LA1 and LA9. As with the previous example, these cases are from the same devolved nation and they have a similar mixed profile. LA9 is larger, with about half again as many food businesses as LA1, but they are broadly comparable. There are extreme differences, however, between their preferred method of upholding food standards, with accompanying differences in the style of management. LA1 is highly favourable to formal notices, including early and robust use of RANs. LA9 by contrast has not served any. LA9’s manager did not indicate outright opposition to the tool, and he said that his staff were ‘generally open minded about it’ and had received training in RANs, which they ‘might well do … again in the future’; later in the interview, he said the team was ‘very much in support of the legal powers’ and ‘probably will go ahead and serve RANs at some point’. (LA9 Manager1) These statements notwithstanding, he felt his team achieved good compliance without using them. He preferred informal methods with an emphasis on education combined with public accountability measures (publishing post-inspection letters online). ‘So we think that, even at the moment, there are sufficient legal powers for us to do our job and we wouldn’t agree if someone was saying there’s not enough (…) legal powers there. We think we can do the job properly and (…) we think we are doing the job properly. (…) We think our results show that, but we’re doing it a bit different from the way other people do it.’ (LA9 Manager1)

This view was supported by EHOs interviewed: ‘I think we’ve got them [the tools needed to bring about compliance].’ (LA9 EHO3) ‘I think the tools that we’ve got available to us are very good, I know they’re not always used, but I do think food hygiene information scheme- I think Environmental Health Officers just going in to inspect places have a huge importance in food businesses.’ (LA9 EHO5)

There were, however, some staff who were more favourably disposed to formal actions and RANs in particular. ‘You can help with implementation of HACCP systems. If that doesn’t work, you then have to go down an enforcement route and everything we do is risk based, so the risk is then converted over into their action. If I go in and there’s no hot water, therefore basic cleanliness hasn’t been maintained; that’s considered an imminent risk, and the premises will be closed.’ (LA9 EHO2)

This officer had experience with RANs in approved premises from previous work he had done in a different LA, and he could see it applied to non-approved food business: ‘Definitely for it. They can be used in a targeted way and remove risk very quickly.’ (LA9 EHO2)

A colleague of his, EHO4, had even drafted a RAN for another business which had unsatisfactory processes concerning its delivery of fresh rolls. As he was on his way to serve it, he received a text message from the FBO indicating the business would follow his advice and

69


FS514108

purchase rolls from the nearby supermarket. He was satisfied with this arrangement and did not issue the notice, but ‘it was ready to rumble. Quite happy to serve it.’ (LA9 EHO4). The vigour he displayed at possibly serving a RAN is contrasted by the quotidian ease with which these notices have been served in LA1. At the time of fieldwork for the study, LA1 had issued quite a high number of RANs for a range of reasons. Often, they were served to enforce a deep clean and disinfection of a premises in an unacceptable state of cleanliness, but they also covered structure, hot water, personal hygiene, practices, and equipment. Many of these issues were tied to a poor implementation of cross contamination guidelines, and the officers interviewed showed creativity and thoughtfulness in determining how RANs might be used for specific problems (for example, the inappropriately sized kitchen for preparing raw meat during opening hours; see above, section 5.1) Management style is a key factor in this contrast. The manager in LA9 said he was satisfied with the results his team achieved through less formal means; the manager in LA1 was staid in his temperament and a keen supporter of process. This was illustrated first in the means by which selected cases were provided for this study: the documents were almost all electronic and delivered in a series of well-organised files, with the case reference number serving as the filename in combination with a numeric tag, escalating chronologically (e.g., -01.pdf would be typically a scan of the initial inspection form, followed by -02.pdf, which would contain the handwritten notes of the second officer present, and so on). In each file was a report that listed every action taken in regards to the case, providing a summary of all the documents contained and a reasonable picture of what the case was about. The manager also placed a greater weight in our interview on guarding public safety, which may relate to his greater comfort in taking formal actions. He spoke little about the economic viability of the council and the impact on business owners. However, he combined a willingness to apply formal measures to a strong emphasis on respect for business owners and education about appropriate standards. ‘We’re willing to enforce when we need to do that and explain that even to the extent that I’ve been with an Officer a number of years ago who actually having taken action to close a food establishment, sat down with the business operator and said “Look, this was a good inspection and I know you don’t realise that at the moment in time, but if I hadn’t come tonight there’s a good chance you could have poisoned one of your customers, and that’s something you don’t really want to live with. So a mistake’s been made. We’ll get it sorted. This doesn’t mean to say that this can’t be resolved. So just so you understand that.”’ (LA1 Manager1)

He insists that formal actions are followed up with letters which explain what happened, why it happened, and what the FBO needs to do. He expressed this in terms of a policy of staying with a business until problems have been solved, even if it complicates the EHOs’ schedules of inspections. In this regard, the two LAs are similar. LA9 took pride in its policy of nurturing problem premises to compliance, which instructs EHOs to continue to visit businesses that are exhibiting problems until those problems are resolved: 70


FS514108

‘If they find something wrong, they stick with the premises until it’s fixed. What that means in a lot of cases is that they end up doing a lot more interactions with the food business operator than perhaps happens elsewhere. Whether that be phone calls or e-mails, it certainly will be visits as well until such time they have fixed what the problem is. In some cases, the effects might be [a formal enforcement response] but obviously most cases it’s resolving what the problems are (…). That’s the aim for the officers. The officers know that the responsibility’s on them, and that’s the clear message that they’ve got from management.’ (LA9 Manager1)

Staff were favourable to the approach: ‘[The policy] means that we probably in essence have more of an understanding of what goes on in our premises than some of the authorities that are maybe more city based, like [mentions two urban LAs]. Fundamentally I’m able to go in of a day to three or four places. I might have a programmed inspection in maybe two places, but if in that locality there are another two premises, I would pop in, get my face known in the door, make sure there are no changes in their business (…) and so on and so forth. In that way they always know I’m not far away, and we’ll chew the fat over anything that comes up, anything they want to ask or I can ask of them. That, I think, forms a slight bond that maybe some authorities that don’t see a premises for maybe one year to the next, probably finds it harder to do the job.’ (LA9 EHO4)

A colleague reiterated this, saying that business owners in her area of supervision will proactively contact her for advice or to notify her if they are making changes. It means many visits and interventions, but she said it creates a good bond with FBOs and leads to effective upholding of standards. Both LAs, then, have a policy of staying with problem premises and seeing them through to acceptable standards. LA1 achieves this with the use of formal notices, such as RANs and HINs, whereas LA9 prefers not to. The manager of LA9 stressed that he believed resources were essential for making such a programme work, which is why it would be harder to implement in urban LAs. However, the manager of LA1 said he was not so well resourced as he would like, especially in terms of experienced EHOs; his team managed to make these frequent visits and interventions in spite of a perceived lack of resources. In connection with the question of resources, the manager of LA1 felt that food safety was less urgent as a priority for local councillors and that his budget was suffering as a result. By contrast, the manager of LA9 said he had strong support from council. Despite this variation in political support, staff at both LAs were able to ‘stick with’ businesses to rectify problems. The example earlier in the report, concerning two premises with kitchens inappropriate to the task of processing raw meat, shows how that attentiveness can work in practice. A final contrast here is a clear distinction between the two on the gap that RANs fill. The manager at LA9 said he was clear on the boundaries of a RAN but had been focused on other priorities and was achieving satisfactory compliance with other tools. Aside from EHO2, none of the interviewed officers gave a robust summary of how RANs work in relation to other tools and what circumstances they would be ideal for. By contrast, the manager at LA1 emphasised that RANs filled ‘a huge gap’ in the officer’s toolkit. He described HEPNs as ‘the nuclear option’ which required an identification of imminent risk in 71


FS514108

order to proceed; on the other side was ‘nothing other than persistent harassment to get the business to comply.’ In the middle was only the HIN, which took a minimum of 14 days to enforce: ‘In the meantime you still have issues that you’re concerned about, and we still have to investigate. We still have to inspect. We still have to protect public health. And therefore the Remedial Action Notice was how that gap could be filled and say “Look, there are issues here. They are reasonably serious. Whether we could say there’s an imminent risk of endangering health or [not], you’re not entirely sure. But you basically have chosen to not comply, and the more you choose to not comply you are raising the risk that might lead to something going wrong here.”’ (LA1 Manager1)

The immediacy of the tool gives it an edge he said officers were missing: ‘So that ability to stop whatever’s happening and resolve the matter, I think was really what was important, because there were many premises that you were uncomfortable working at, and I think a number of us have often said that starting to take enforcement action, to shut a premises is really quite easy. The hardest decision an officer has to make is to walk away from a business and therefore I think that is really why we were really making a strong case to say, “This is a power that needs to be extended.”’ (LA1 Manager1)

Describing one of the selected cases, an EHO in LA1 echoed this concern: EHO1: They just fell under the radar of the criteria that in my opinion justifies serving hygiene emergency prohibition orders – which is an imminent risk. So it’s not imminent risk [Pause] but they always were there, those businesses, which give you a sleepless night when you’re home at night. Because the business was still operating – there was risks, associated with that – but you haven’t closed them. Int: The RAN seems to be the immediate step. EHO1: Yeah, the word I would use is “immediate.” It needs an immediate intervention.

Despite this officer’s comfort in using the tool and his support in doing so from management, he did not exhibit any inclination to flagrant use of the tool; on the contrary, he remained cautious about the extent of RANs’ application: ‘We need them to be challenged. We need them to be exercised, from the food business operator maybe saying, “Do you know what? I’m going to appeal against this.” So until we’re in that area, we’ll know whether we’re legally doing the right thing or not. No one’s done that with me and I don’t know if that’s happening with any other authorities or not. But I think we’re gonna have tosomeone’s gonna have to take that jump and see if the courts support us and make sure that we’re using them in the right way or else our institutions [(citing the FSA)] need to know it’s a good tool. Have they [RANs] contributed towards making a positive contribution to businesses compliance? I think so. I think positive.’ (LA1 EHO1)

These two LAs show a clear contrast in terms of the application of formal notices to uphold standards in their region. Yet they shared a philosophy of staying with problem premises until they were brought up to standard. Resources and political support do not account for this similarity, as the process of nurturing these premises into compliance is resource-intensive, and 72


FS514108

yet both were achieving it. The difference was a willingness to use formal actions, which LA1 exhibited and LA9 did not. This is attributed primarily to the disposition of management and the habits of the staff.

73


FS514108

Annex 3 – Food Law Practice Guidance (Wales), April 2014, Chapter 3.5: REMEDIAL ACTION NOTICES 3.5.1

Introduction

This Chapter deals with the use of Remedial Action Notices under paragraphs (1) to (4) and (7) of regulation 9 of the Food Hygiene Regulations (NI) 2006[1]. All the relevant information on Detention Notices served under paragraphs (5) and (6) of regulation 9 is contained in the Code of Practice. 3.5.2

When to Use Remedial Action Notices

Regulation 9 provides for authorised officers to serve a Remedial Action Notice if any of the requirements of the “Hygiene Regulations”, as defined by regulation 2 of the Food Hygiene Regulations (NI) 2006, are being breached or an inspection under the Hygiene Regulations is being hampered. Circumstances which may lead to the issue of a Remedial Action Notice in respect of an establishment include:



the failure of any equipment or part of an establishment to comply with the requirements of the Hygiene Regulations;



the need to prohibit or impose conditions upon the carrying on of any process or practice breaching the requirements of the Regulations or hampering adequate health inspection in accordance with the Regulations; and



where the rate of an operation of the business is detrimental to its ability to comply with the Regulations and requiring the operation to slow down or stop is necessary.

Remedial Action Notices place a legal requirement on a food business operator to take immediate action to achieve compliance with the Hygiene Regulations. They can be used in relation to both hygiene and structural/maintenance deficiencies requiring immediate action but must not be used for non-hygiene related matters, for example, food standards issues. Remedial Action Notices are likely, but not exclusively, to be served in situations where the food business operator can achieve compliance in a short time frame. They also allow an authorised officer to impose conditions on activities to ensure safety without necessarily prohibiting them outright.

[1]

As amended by S.R. 2012 No.130

74


FS514108

In the case of maintenance/structural problems that can be rectified as a non-urgent matter without posing a threat to health, a Remedial Action Notice should not be served: in this case, a Hygiene Improvement Notice can be served under Regulation 6 of The Food Hygiene Regulations (NI) 2006, which allows for a minimum of 14 days to achieve compliance. Remedial Action Notices may be issued to prohibit the use of any equipment or any part of an establishment where any of the requirements of the Hygiene Regulations are being breached. They would not be used to prohibit the operation of an entire establishment, in the same way a Hygiene Emergency Prohibition Notice can be used. A Remedial Action Notice should not be served where the officer is satisfied that there is an imminent risk of injury to health: in this case a Hygiene Emergency Prohibition Notice should be served. A Remedial Action Notice should not be served as an alternative to suspending an approval on an establishment approved under Regulation 853/2004. Suspension of approval must be actioned in accordance with Article 31 of Regulation 882/2004. Examples of when a Remedial Action Notice might be served:



To prohibit the use of a particular machine used exclusively for slicing ready to eat food at a delicatessen counter until it is cleaned to an acceptable standard, but without shutting the counter or store



To prohibit certain processes/or to impose conditions on processes, such as the production of high risk foods where there is a potential risk of cross contamination, for example, a lack of hot water, inappropriate storage etc.



To prohibit the use of a room/area/item of equipment until cleaning issues are remedied to an acceptable standard which would otherwise pose a potential risk of cross contamination of food for human consumption and which require immediate attention. For example, where an area (a clean area) used solely for preparing ready to eat foods has been contaminated by raw foods. A Remedial Action Notice may be served to prohibit the use of the clean area until it has been adequately cleaned and disinfected to prevent cross contamination.

These are illustrated as examples only and officers will need to consider each set of circumstances on a case by case basis. It is essential to gather all necessary evidence at the time the breach of the Hygiene Regulations is noted, or impediment to inspection encountered, in order to justify the service of the notice. This will assist in cases were an appeal is lodged or where a Remedial Action Notice is not complied with and subsequent court proceedings ensue.

75

Post-implementation RANs study 3.5.3

FS514108

Drafting of Remedial Action Notices

Regulation 9(2) of the Food Hygiene Regulations (NI) 2006, require that a Remedial Action Notice should state why it is being served. Where the notice is served due to any requirement of the Hygiene Regulations being breached, is should also specify the breach and the action needed to remedy it. It should be clear from the Remedial Action Notice exactly what the recipient is required to do, and why. The notice should therefore be clearly drafted and easily understood. Where different breaches have been identified, it is more appropriate to serve a separate notice for each contravention. This will prevent situations where one or a number of non-compliances detailed on the notice have been complied with, but other contraventions still remain to be remedied. Failure to comply with each and every item of such a notice would be a failure to comply with the whole notice and constitute a single offence. Separate notices may also be easier to handle. For example, where a single notice has been issued for a number of contraventions, the notice will not be able to be withdrawn until all contraventions have been remedied. The Food Law Code of Practice requires that, Remedial Action Notices should be signed only by Environmental Health Officers who:



Are properly trained, competent and duly authorised; and



Have two years’ post qualification experience in food safety matters; and



Are currently involved in food law enforcement

3.5.4

Methods of Serving Remedial Action Notices

The Food Hygiene Regulations (NI) 2006 requires a Remedial Action Notice to be served on the relevant food business operator or his duly authorised representative. A duly authorised representative will be a responsible person with authority to act on behalf of the food business operator. Remedial Action Notices should normally be served either by delivery to the food business operator or their duly authorised representative (where it is clear who this person is) in person at the establishment, or at their usual or last known residence. Where the notice is handed to the food business operator or duly authorised representative by hand the authorised officer should record in writing the time, date, place of service and the name of the food business operator or duly authorised representative on whom the notice was served. The authorised officer should sign this record so that service can be proved in court. 76


FS514108

If it is not possible to serve the document by hand, then the authorised officer should serve the document by a postal or courier service that includes proof of posting or despatch and, ideally, proof of delivery. The authorised officer should also record details of the time and date of posting/delivery to the courier so that service can be proved in court In the case of an incorporated body, such as a limited company, the notice can be served on the food business operator by delivering it to the Company Secretary at the registered or principal office of the company, or by a postal or courier service that includes proof of posting or despatch and, ideally, proof of delivery. Officers should also record details of the time and date of posting /delivery to the courier so that service can be proved in court. It is not always possible to identify the food business operator and Section 24 of The Interpretation Act (NI) 1954 therefore allows the notice to be addressed to the “Owner” or “occupier” and left at the premises. The notice may then, either be handed to someone else at the establishment who appears to be in charge, or by attaching the notice or a copy of it to some conspicuous part of the establishment. The authorised officer should record in writing the time, date, place of service and where applicable, the name of the person on whom the notice was served. The authorised officer should sign this record so that service can be proved in court. The document may be faxed or emailed to the food business operator/duly authorised representative of the business for information in advance of its formal service, but a hard copy must follow for it to be properly served. The officer serving the notice should ensure, wherever possible, that the person who is responsible for taking the necessary remedial action also receives a copy, especially where the person in charge of the business, such as the local manager, is not the food business operator or the duly authorised representative. 3.5.5

Affixing the Notice for Information Purposes

There will be circumstances when a Remedial Action Notice is served to prohibit the use of any equipment, part of an establishment or the carrying out of any process. It must be noted that there is no legal provision within the Food Hygiene Regulations (NI) 2006, for a Remedial Action Notice to be affixed in a conspicuous position so that personnel at the establishment are aware of it, as is required with a Hygiene Emergency Prohibition Notice or Order. Apart from initial service in some circumstances, as discussed in 3.5.4 above, the only time a copy of the notice can be affixed in a conspicuous position is where consent has been given by the food business operator. An officer may wish to request consent to affix a notice to inform anyone who may use the premises, for example staff, that equipment, part of an establishment or a process has been prohibited, however, there is no requirement to do so.

77


FS514108

Where a food business operator refuses a request to affix a Remedial Action Notice, or where a notice is removed or defaced where consent had previously been given for it to be affixed, it is unlikely that any person could be charged with obstruction. 3.5.6

Lifting the Remedial Action Notice

The officer who served the Remedial Action Notice should liaise with the food business and encourage the food business operator/duly authorised representative to notify them when the work has been completed. Another authorised officer should monitor the work if the officer who served the notice is unable to do so. Once notification has been received that the work has been completed, it should be checked as soon as possible. This need not necessarily be undertaken by the Environmental Health Officer who served the Remedial Action Notice. Once the authorised officer is satisfied that all necessary action has been taken he or she must withdraw the notice by a further notice in writing which should be issued to the food business operator or their duly authorised representative. 3.5.7

Breach of a Remedial Action Notice

Failure to comply with a Remedial Action Notice is an offence under regulation 9(7) of the Food Hygiene Regulations (NI) 2006. Where a notice is breached, any subsequent prosecution would relate to the breach of the notice and any substantive offence that led to the notice being served in the first place. 3.5.8

Appeals

The food business operator/duly authorised representative has the right of appeal against the notice. In the event of an appeal, the provisions of the Remedial Action Notice remain in force until such time as the appeal is upheld. It should be clear to the recipient of a Remedial Action Notice that there is a right of appeal against the notice. The notice should therefore include details of the right of appeal and the recipient provided with the name and address of the relevant local Magistrates Court. The food business operator/duly authorised representative should also be asked to notify the officer if an appeal is lodged. The time limit for such an appeal is one month from the date when the district council served the notice. 3.5.9

Compensation

Regulation 21(4) of the Food Hygiene Regulations (NI) 2006 (as amended) provide for the District Council to compensate the food business operator, where on appeal against a Remedial Action Notice, the notice is cancelled. 78


FS514108

Compensation shall be paid by the District Council in respect of any loss suffered by the food business operator’s compliance with the notice. Where any dispute arises as to the right to or amount of any compensation payable, it shall be determined by arbitration.

79


FS514108

Annex 4: The pyramid of enforcement for violations of food hygiene regulations

Risk HEPN

Imminent risk

RAN Past history of compliance HIN

Broad compliance

ADVICE

NO ACTION

This figure replicates one that has been used for training EHOs on enforcement.

80


FS514108

Index cleanliness, 4, 8, 14, 22, 31, 33, 38, 41, 64, 68, 70, 71 confidence in management, 4, 23, 24, 25, 26, 36, 43, 61 cross contamination, 20, 39, 40, 41, 44, 61, 71 cross-contamination, 4, 8 culture, 16, 50 drainage, 4, 8, 21 E.coli guidance, 4, 5, 16, 17, 35, 61, 67 education, 5, 18, 29, 32, 34, 45, 47, 60, 65, 70, 71 enforcement style, 10, 15, 16, 55, 56, 60, 69 equipment, 4, 20 escalation, 5, 26, 27, 42, 51 FHRS, 7 fridge, 20 FSMS, 4, 21, 22, 23, 26, 31, 33, 44, 63 graduated, 23, 26, 51, 60, 61, 62, 63, 64, 65 HACCP, 4, 21, 25, 26, 27, 31, 32, 36, 63, 70 handling practices, 21 HEPN, 5, 28, 29, 30, 32, 43, 61 HIN, 4, 5, 22, 23, 26, 28, 30, 31, 55, 66, 73

hot water, 4, 8, 21, 22, 43, 44, 69, 70, 71 LAEMS, 3, 5, 8, 9, 10, 11, 18, 24, 28, 30, 35, 38, 49, 55, 57, 65, 68 microwave, 20 personal hygiene, 4, 21, 44, 71 pest control, 4, 8, 21, 56, 61, 67 prosecution, 14, 17, 32, 42, 45, 51, 63, 69 pyramid of enforcement, 8, 51, 81 registration, 4, 21 revisit, 5, 17, 18, 22, 26, 32, 33, 39, 42, 61, 63 r-t-e, 14, 25, 26, 27, 33, 39, 40, 41 scales, 20 seizure, 32 slicer, 17, 20, 21, 33, 67 structure, 4, 21 temperature control, 4, 8, 21 time separation, 36, 40 training, 3, 4, 6, 12, 13, 15, 18, 21, 22, 29, 31, 33, 38, 65, 68, 70 vacuum packer, 14, 16, 17, 20, 25, 26, 31, 67 voluntary closure, 20, 32, 42

81