Business Proposal Environmental Health Commercial Service. The Implementation of Charges for Food Safety Advice to Businesses

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1 Business Proposal Environmental Health Commercial Service The Implementation of Charges for Food Safety Advice to Businesses March 2015 Author and contact: Sam Lauder 1

2 Contents Chapter Contents Page Number 1.0 Summary Introduction Advice to businesses The implementation of charges for food safety advice Legal matters Public and business perception Specific details of the charging scheme Implementation 12 2

3 1.0 Summary The provision of food safety advice continues to make an important contribution to the successful operation of the Environmental Health Commercial Service. Businesses appreciate and value the advice and assistance provided by the service outside the normal confines of an official control inspection. The demand for professional food safety advice has increased in recent years, with the Commercial Service carrying out 163 advisory visits between April 2014 and February As the pressure on council budgets increases, service areas are having to re-examine the functions offered, and identify those that must be undertaken; the statutory functions, and those that are discretionary, and of those that are discretionary, decide whether they can be operated in a way that does not present a cost to the authority. The provisions of the Local Government Act 2003 make it possible for local authorities to charge for discretionary services to cover the cost of delivery. A significant proportion of the food safety advice provided by the Commercial Service goes over and above that which the authority is mandated to provide, and as such could be defined as being discretionary, opening up the possibility for introducing a charge. Feedback from members of the public in Powys, and from businesses in other local authority areas shows a positive attitude towards the introduction of charges for food safety advice. 3

4 2.0 Introduction The Environmental Health Commercial Services primary function is to regulate businesses for the protection of the public. However, the Commercial Service also encourages compliant businesses to grow through proportionate regulation and the provision of professional and reliable advice. As public sector spending is being reduced, discretionary council services are threatened. Food Safety advice contributes to the Powys One Plan priority Stronger, Safer and Economically Viable Communities, and needs to become self-sufficient. This proposal outlines a new way of working for the Commercial Service, whereby food businesses are charged for the food safety advice they receive. The charges made to businesses will cover the cost incurred by the service. 3.0 Advice to Businesses The provision of advice, education and training tailored to individual businesses specific needs is a key part of the Environmental Health Commercial Services strategy to change behaviour and increase compliance rates in food businesses. There is recognition across the service that timely advice, offered in a professional manner can have a greater impact on securing compliance over enforcement action. Through education and changing mindsets, businesses are mobilised to implement sustainable solutions, solutions they have identified as being practical and realistic for their own business, instead of having solutions enforced upon them for fear of legal action. Food safety advice is provided at many different stages in the life of a business. Most businesses contact the Commercial Service before starting and are provided with advice on a range of food safety issues either over the phone on an , or in person during an advisory visit. These visits are usually followed up with some form of written report outlining matters for attention. The advice given covers a range of topics including: Food hygiene and safety procedures Structural standards and the layout of the premises Specific food processing matters (depending on the complexity of the business) including pasteurisation, cook-chill, sous vide etc. Microbiology and food sampling 4

5 Food safety management systems, documentation and record keeping Food hygiene training Current relevant guidance The Food Hygiene Rating Scheme. In addition to core food safety topics, the business may also be provided with advice or be signposted to other services to deal with such matters as: Health and Safety in the workplace Water sampling Refuse and waste management Planning consent Licensing issues Trading Standards (allergens, labelling and weights and measures) Funding, grants and business support Businesses also seek advice from the Commercial Service when they are considering a change in their business; a new product, a new layout, an extension or a new premises. Again this can trigger a visit to assist the business. Since the implementation of the Food Hygiene Rating Scheme in Wales, the Commercial Service has seen an increase in the numbers of requests for advice from businesses that want to improve the ratings that they have been given. This advice is tailored to the specific business and focusses on the areas where improvements are necessary in order to uplift the poor rating. The provision of advice benefits both businesses and the Commercial Service. The businesses develop a good working relationship with the Commercial Service and receive free expert advice from professional officers who have an in-depth knowledge of legislation, advice and guidance. The advice given can often prevent costly mistakes from being made, particularly as the inspecting officers are familiar with most of the food premises within the county. The Commercial Service in turn gets to see improved standards of compliance without having to resort to time consuming and costly enforcement action. 5

6 In recent years, the number of requests for advice has increased, to date in 2014/2015 the Commercial Service has carried out 163 advisory visits. Several factors are likely to have contributed to this including: The introduction of the Food Hygiene Rating Scheme. There is significant public interest in hygiene standards now that ratings have to be displayed, which has motivated businesses to strive for improved ratings. The economy. The Commercial Service has seen an increase in the number of new businesses being set up from home, often by individuals who have little or no experience of working in the food industry. The businesses that operate from home can also include specific high-risk processes requiring significant officer guidance. Many of these new businesses are not viable and do not succeed, however the advisory visits are provided at a cost to the authority. Also, as businesses look at where savings can be made, especially the large manufacturers, costly food safety consultants can be reduced in favour of obtaining free expert advice from the Commercial Service. Current trends. Food trends can cause surges in new businesses. The cupcake and home baking market has seen considerable growth in recent years, which has caused a rise in the number of domestic caterers producing these products, each requiring advice and a routine inspection. New advice and guidance. Food safety is a dynamic subject area in the UK and EU, with new legislation and guidance being produced on a regular basis. Whilst new information is always available on the internet, many businesses prefer to receive information directly from the Commercial Service, as Officers are able to explain how any new developments will affect the business. Recent examples of new guidance/legislation include: the Control of Cross Contamination guidance, the Food Hygiene Rating Scheme legislation and new legislation on Food Allergens. Much of the work carried out by the Commercial Service is of a statutory nature and forms part of the Official Controls that councils must perform to verify compliance with food hygiene legislation. To a certain degree, the provision of advice could be deemed as a statutory function. Businesses should be given sufficient information or advice so that they are clear as to the legal obligations placed upon them. It would be unfair to withhold information from a business or to fail to signpost to a suitable alternate resource. Failing to give basic information also flies in the face of common 6

7 sense; failing to advise businesses would only increase the amount of enforcement work carried out, which could potentially lead to increased legal costs. There is however a point where the provision of advice by the Commercial Service goes over and above what is deemed statutory. Whilst it is recognised that a high quality, professional service is being provided, the discretionary work that it being carried out over and above the basic statutory function may present an unnecessary cost for the authority. This cost has not gone unnoticed, and considerable efforts have been made within the service every year to secure external funding to ensure that businesses have access to relevant advice. In for example, the Commercial Service was awarded in grant money from the Food Standards Agency to assist 150 poor performing business in Powys with their documented food safety management systems. This is just one example of a specific area that businesses need further advice and assistance on, and without the funding, this discretionary work could not have taken place. 4.0 The Implementation of Charges for Food Safety Advice In light of the clear benefits that exist from providing food hygiene advice to businesses, the Environmental Health Commercial Service proposes the introduction of charges for certain aspects of the advisory work currently undertaken. Even with the introduction of charges, it is important to note that all food businesses would continue to have access to free advice from the Commercial Service, for example during routine inspections and on the telephone. The Commercial Service would also continue to produce advice leaflets, newsletters and publish up-to-date guidance on the council s website. However, certain advisory work that goes above outlining legal obligations to businesses would incur a fee to cover the cost of the Officers time. Examples include, advisory visits When a new business is setting up or when an existing business is planning a new layout or an extension etc. To help produce and implement a food safety management system, To advise on areas of improvement so as to uplift a poor food hygiene rating, To help train food handlers in a specific area, for example handwashing. 7

8 5.0 Legal Matters Discretionary services are those services that an authority has the power, but is not obliged, to provide. A prime example of a discretionary service is the provision of food safety advice. Authorities have the power under various statutes (Food Safety Act 1990, Regulation EC (No s) 178/2002, 852/2004, and the Food Hygiene (Wales) Regulations 2006) to provide food safety advice, but these do not contain a clear power to charge. The Local Government Act 2000 (s.2(1)) gave authorities a general power to promote the economic, social and environmental well-being of local communities. This power gives authorities very broad discretion to provide additional services, however, this broad power came with a limit, (s.3(2)) specifies that the power in s.2(1) does not enable a local authority to raise money. The Local Government Act 2003, gave authorities a general power to charge for discretionary services. Charges made under the power to charge at section 93 of the 2003 Act are limited to cost recovery only. Section 97 (3)(c) of the 2003 Act has the effect of releasing the prohibition on charging for the provision of a service that was implemented by the 2000 Act. The general power to charge for discretionary services in the 2003 Act has a number of key features that are of relevance to this proposal: To be able to charge, an authority must already have the power to provide the service. (Authorised by an enactment, but not required to provide the service) The power to charge does not apply to services which an authority is mandated or has a duty to provide. The recipient of the discretionary service must have agreed to its provision and to pay for it. The 2003 Act does not override any provisions in primary or secondary legislation which; expressly prohibits an authority from charging for a discretionary service; or confers a power to charge for a discretionary service. Authorities are under a duty to secure that, taking one year with another, the income from charges do not exceed the cost of provision. Charges may be set differently, so that different people are charged different amounts. Authorities are not required to charge for discretionary services. They may provide them for free if they so decide. 8

9 Services that an authority is mandated or has a duty to provide are not discretionary service and will not benefit from the power to charge specified in Section 93 of the 2003 Act. However, additions or enhancements to such mandatory services above the level or standard that an authority has a duty to provide may be discretionary services. The Commercial Service has a duty to carry out official controls in food premises, the authority is mandated to carry out this task, and as such would not be able to charge a food business for its routine inspection. However, the provision of food safety advice could be classed as an enhancement or an addition over and above the mandatory duty, and therefore should be defined as a discretionary service. It is clear that the intention of Section 93 of the 2003 Act is not for authorities to make a profit. By providing a power to charge for discretionary services, the government s aim is to encourage authorities to provide the sorts of services they would otherwise decide not to provide (or improve), because they cannot justify or afford to provide them for free. The 2003 Act provides that for each discretionary service for which a charge is made using the new power, authorities should be under a duty to secure that, taking one year with another, the income from charges for that service does not exceed the costs of provision. In accordance with central government guidance on the Local Government Act 2003 and charging for discretionary services, before introducing a system of charges for existing discretionary services, authorities are advised to make appropriate administrative arrangements; these might include the following matters: Terms and conditions for the provision of the service, Information about charges, Billing and payment arrangements. Authorities are also advised to consider their professional liability insurance, to ensure that the provision of an advisory service does not extend outside the limits of current insurance coverage. 6.0 Public and Business Perception In the feedback report on the 2014/15 budget proposal discussion and engagement with the public, researchers found that 80% of the sample group were in favour of introducing charges for food 9

10 safety advice and specifically, for advice that went beyond the limit of a straightforward enquiry (874 (80%) Yes, 217 (20%) No). In Monmouthshire County Council, prior to the introduction of a scheme for charging businesses for advice, a research report was commissioned by the Council in partnership with the Better Regulation Delivery Office (BRDO). In preparing the report, 274 interviews were conducted with food businesses regulated by Monmouthshire County Council. The survey aimed to understand businesses perceptions of the service they receive from Monmouthshire County Council Environmental Health Officers. Some of the findings from the research report that are of relevance to this proposal are as follows: For the vast majority of all businesses (96%), complying with food safety regulation was important to their business. The most frequently mentioned source of information used to help businesses comply with food safety regulations was from direct contact with Environmental Health Officers (73%) 96% of those who are in contact with Environmental Health Officers for advice and information reported a good or very good relationship with them. Most businesses feel they can seek advice from regulators on all regulatory matters and that this can be done without triggering enforcement action. However, there remains about a tenth of businesses who believe that contacting regulators may risk enforcement action. Over half of businesses do not think there is anything else that Environmental Health Officers could do to support businesses to comply with food safety regulation, over and above that which they already provide. The main suggestion made was more informal meetings between inspections. When prompted with a list of different areas and asked which of these should be the role of Environmental Health Officers, the vast majority of businesses believed that they should be involved in lots of different activities aimed at providing advice/support, enforcing rules, assisting business and providing access to support. During a project in 2013/14 and 2014/15 which had been funded by the Food Standards Agency, Officers from the Commercial Service in Powys visited food business to provide bespoke advice and assistance on the implementation of robust Food Safety Management Systems. During this project, businesses commented on the value of receiving advice and assistance from officers during a nonenforcement visit. 10

11 7.0 Specific Details of the Charging Scheme Whilst the finite details of the scheme are yet to be established, the main principles of the scheme have been outlined below. The scheme will be publicised to all food business in Powys through a mail shot, alerts, social media, Powys website and in person during routine inspections. The information delivered during the initial campaign will make it clear to businesses the level of advice that will still be available without charge from the authority, and the types of advice that will be subject to a charge. Any business making contact with the service will be made aware in advance if the advice they are seeking, for example and advisory visit to check a new premises, will be subject to a charge. The advisory scheme must be seen by businesses as being worth the fee or charge. To ensure that the advice businesses receive is up-to-date and specific to their needs, there will be different officers within the service who are given areas of specialism. These specialist areas will focus on the more technical areas of food safety, for example, specialist cheese making, dairy products, brewing and drinks production, meat products etc. Advisory visits will always (when possible) be made at a time that is selected by the business. On certain occasions this will entail advisory visits being made outside of normal working hours, including in evenings and at weekends. To help reduce the perception that advisory visits are likely to trigger enforcement action, different officers to those carrying out official control visits will undertake advice visits. For example, if an officer visited a premises to carry out a routine food hygiene inspection and gave a low rating, the same officer could not return to the premises to offer advice on how to up-lift the rating. Having a different officer would potentially overcome any tensions that may exist as a result of the poor rating being given, and encourage open dialogue about the measures necessary to improve standards. Separating the officers that inspect from those that provide advice will promote impartiality and transparency in the advice service being provided. No advisory visits (chargeable visits) will be made unless a business agrees to the charge and accepts the terms and conditions of the service. 11

12 The charge that is applied to the advisory visit will be calculated on the actual cost entailed by the service in carrying out the advisory visit. Regard will be had to central government guidance in establishing an appropriate charge. The Councils usual methods for accepting payment for services will apply. Businesses will be able to make payments for advice visits with credit or debit cards or by cheque. Monitoring the effectiveness of the advisory visits will be straightforward via improvements in food hygiene ratings. 12