COVID-19 Compliance and Enforcement Webinar, 3 December 2020: video transcript

Moderator:  This has included discussions on issues related to pavement licensing, COVID-secure guidance, the full suite of ever-changing COVID regulations, the capacity challenges that you're experiencing and the tools you need to do your jobs most effectively. That's involved discussions with MHCLG, the Home Office, BEIS, Office for Product Safety and Standards, HSE, the FSA, any number or trade bodies and others. We've also been working with a group of officers who've kindly been providing informal advice to us on these issues. We're hugely grateful to everyone who's assisting both us and the government on this. More recently we've been involved in a MHCLG compliance working group, providing input directly to the government on these issues. Last month we worked with councils to submit a list of proposals for how some of the pressures on enforcement capacity could be reduced, and we'll be continuing to push the government to address the list, particularly with the potential impact of the end of the EU transition period kicking in from next year. We have aimed to provide guidance where there hasn't been any from the government. We're very pleased to see ops back involved, providing guidance and templates to councils, which is one of the things that we had proposed to the government. We were conscious of a gap around some of the good practice case-studies that we know you found most useful. That's what today's session is intended to provide. We've got an excellent selection of speakers from several different councils, as well as from the government's joint bio-security centre. I'm grateful to all of them, as well as to all of your, for taking time out of what are incredibly busy days to participate in this.



We'll hear firstly from Graham Farrant, who's the chief exec of Bournemouth, Christchurch and Poole, and has an environmental health background, and then from Fiona Sharkey and Paul Lancaster about the approaches that Manchester and Birmingham Councils have taken. About 3:00 we'll joined by Lynnee Henderson, who head up the JBC's escalation and response unit, and has been leading their work on direction powers. We'll then hear from Fiona Inston and Roma Birtles, (inaudible 02.41) and Lancashire. Both tiers have been using the tiers. Although we will try to take a few questions in response to each slot, we're going to finish with a question and answer slot and the chance for you to offer your own reflections. If you'd like to ask a question, raise your hand and keep questions short and sweet, just recognising we don't have an awful lot of time for those. Use the chat function to post questions and answers. If we don't get to respond to these today, we will try and follow them up afterwards and share further information with you all by email. This is the first of these sessions we've run and we'd welcome your feedback, either in the chat or via email, as to whether it's the right format. Subject to that feedback, we are intending to run a follow-up session in early November and we'd welcome your thoughts on other issues to cover. Suggestions that we're looking at include hearing about a direction that's been challenged, joint working with the police, enforcing the new regulations around self-isolation, and some early experiences from the tier 3 areas. We want to tailor these, these events or other guidance, to the things that you most need, whether it's this or other formats or other subjects, please let us know. I'm not going to hand over to Graham, who's one of the chief executive leads on the MHCLG compliance working group, for his perspective.

 

G:  What I'm going to try and do is give a council-wise, chief exec perspective, and try and put enforcement and compliance into that context within the COVID picture. This morning I was talking to the board of the Electoral Commission about the elections and the future direction of local government. It's nice to get back to my roots, talking about enforcement. I started out as an environmental health student at the HSO in Westminster, spent some time in Birmingham, got into regeneration in Birmingham, became Director of Housing in Birmingham. I then became Chief Exec at Barking and Dagenham Council in 2000. Since then, I've been Chief Exec at Barking and Dagenham, Thurrock Council, Thurrock and Barking and Dagenham together, Thurrock and Brentwood for a short time. I then went into the Land Registry to digitise and modernise the Land Registry. Then, 18 months ago, came to BCP Council, which was the bringing together or 2 unitaries, Bournemouth and Poole, a district in Christchurch and that part of Dorset Council that covered Christchurch, the amalgam of 4 different councils. It's quite an interesting point for us because we were about 15 months into that process of merging when the COVID pandemic hit. What has been most fascinating for me is watching the way that Environmental Health and enforcement and compliance has come up the agenda really rapidly over the last few months. In local government, we have, traditionally, got too hung up on the concept of us being the deliverers of service. We talked about service delivery. We've spent decades talking about customer services, customer care. We've largely forgotten the G-word, the 'government' word. Local government is about helping to shape people's lives and shaping communities through governmental activities, not just service delivery.



Compliance is a key part of that and has really been brought to the fore in the COVID-19 pandemic and our response to that. It should be important to us anyway. It's one of the core services that we provide, going back to Chadwick and the Public Health Acts, there are some real issues for us to deal with as local government. On infectious disease control, historically, we haven't played a prominent role in the public's mind. We've played a leading role in controlling infectious disease but if you think about 5 or 6 years ago with the Ebola outbreaks, the local authority enforcement role wasn't prominent. We had relatively minor roles. If you think about the way that we deal with a food poisoning outbreak or a Legionella outbreak, that local publicity is very strong but it soon falls away from the public's mind. I think COVID is different. It's brought enforcement and compliance into a much sharper focus. To be frank, nearly every national discussion I take part in is talking about the fact that we need more EHOs and we need more enforcement people and more compliance people because local enforcement is needed to ensure compliance. I'm not sure that I act as I do just in order to avoid enforcement. I don't drive at 60 miles an hour around residential streets, not because there might be a policeman waiting to catch me, but because I think it's dangerous and because I've got some moral and ethical standards. If there's a speed limit, I tend to stick to it. I don't think that enforcement is the sole answer but it is absolutely critical. Alongside our other roles of place-shaping and place-leading, providing support and working with volunteers and getting information and advice and reassurance to the communities, enforcement is an absolutely critical role for our (inaudible 08.01). This current enforcement is different because it's very political, it's very new, it's very controlling on what would otherwise be perfectly acceptable and normal behaviours.



If you think about social distancing and the requirements for social distancing, if you sit down in the evening and watch anything that was filmed pre-January 2020, it feels quite uncomfortable because you see people behaving in ways that you can't currently behave, people are close to each other. My question is, when will that feeling return, and what do we do in the meantime? How long is this role of local authority or the expectation of local authority going to cover? Some industries are not predicting recovery until 2025. The airline industry thinking international travel might well take 4 or 5 years to recover, and that's assuming that the world gets back to more normality in terms of infection control in the next 6 to 12 months. I think we are in for the long haul and we need to think about enforcement and compliance as being a long-term issue. At the moment, my worry is that it's being seen as a short-term expedient in order to show that something's happening. As councils, we have to think more clearly about what resources we need, how we're going to galvanise those resources and use them to best effect, how can we work with neighbouring councils, and how we're going to make sure there's a consistent set of standards that people can understand. I'll throw out there the Essex example. You have London in Tier 2, going out to Barking and Dagenham and out the Havering, then the M25, then Essex County Council is in Tier 2. Thurrock Council, which sits right on the cusp of London and Essex, is Tier 1. You've then got a bit of Essex at Tier 2, going east, and then you've got Southend, which is Tier 1. Those messages are really confusing for local people. A heavy-handed enforcement (TC 00:10:00) approach to people that read it wrong, either side of the border, would be quite difficult. I do think there's an issue for us about working across councils, working with regional colleagues and making sure that we've got a clear set of expectations that we can articulate to our communities.



At the moment, I'm certainly seeing more and more cases being raised with local councillors because people don't know who else to turn to, 'My neighbour is doing this. Is it right? I've seen people in this pub, staying there until gone 10:00. Is that right? Who's going to enforce this?' That's putting more focus on the local authority's role in enforcing standards and compliance. At the moment, I would say we've got a much higher profile on enforcement. Everybody's watching what everybody does, and then they're turning to people to expect somebody to enforce that. The police are not going to enforce everything because of lack of resources. We've got to think about what can we do, as local government, working with the police as well. We know that enforcement is desperately needed but our enforcement people have all got a full agenda. They've got the BAU enforcement. I've been talking to the Food Standards Agency about their requirements. Is there any room to give on some of those requirements if that would release some resources? You've got the 'business as usual' enforcement. You've got issues around EU transition. In Poole, we've got to set up new port health functions. We're revisiting our 1990s arrangements, and looking at what we have to provide by way of port health functions. That's a call on the same people that we're talking about here. COVID, we've got health and safety and business requirements within the premises, and then we've got all those issues around societal norms and behaviour and social distancing and neighbours reporting on neighbours. We saw, in April, a peak of complaints about bonfires between neighbours because the household waste recycling were closed, so people were burning more rubbish, causing more smoke concern. It's the same group of enforcement people that get called in to deal with that as well.



I think we have to start thinking about where our thresholds are, what the real priorities are. We need to start involved in deciding where those priorities need to sit because we don't enough resource to deal with all of those issues that are facing us at the moment. A couple of examples from Bournemouth, Christchurch and Poole, in early April, everywhere was in lockdown. The sun was beginning to shine. We had a question, 'Do we open the car-parks or close the beach car-parks?' By opening the car-parks, you're encouraging people to travel to the beach. By keeping them closed, people will travel to the beach anyway, they'll look for somewhere to park. If they can't get in the car-park, they'll clog up neighbours' drives and the neighbours' roads. We had a balance. We opened the car-parks all along Bournemouth and Poole beach-front. In Dorset, the closed the car-parks. On balance, our judgement was probably the right one. In the middle of June, you will have seen us on the front page of the newspapers around the world because we had beach overcrowding. The estimate was, when we would normally get 200,000 people maximum, we had up to 500,000 visitors at that time. The real problem was that they had nowhere else to go because everywhere else was shut. The pubs were shut. The restaurants were shut. Only the beach was open. People went to the takeaway, the brought lunch, they brought drinks and they went on the beach and sat on the beach in the hot sunshine. We could not find any traces of any transmission of COVID between people that were on the beach. What we did experience were some pretty poor behaviours. We collected over 100 tonnes of waste from the beach-front to the parks over a 2-day period. We would normally expect to get between 5 and 10 tonnes of waste during that time.



I experienced a phase of fly-parking, where people drove down, saw a double yellow line and parked on it because the £35 fine was quite cheap for a day out on the beach. At that point, we didn't have tow-away service in place. We very quickly got tow-away service in place, but the traffic congestion at that time caused some real issues. We had stories of emergency services not being able to travel across the town because the roads were too congested. Interesting set of behaviours that we saw at that point, which is the behaviours that we normally export at that time of summer, and we saw them within the UK. As I understand it, we even had reports of the police having drawn batons in Falmouth, not the sort of area where you'd normally get that activity, but some really interesting behaviours coming out, as people were slowly released from lockdown and they took advantage of every opportunity. More recently, town centre reopening, giving advice, providing signage and then trying to enforce that, we've now got issues around bars. Are they staying open past 10:00? When happens when they all close at 10:00 and people are congregating on the streets? We've seen some examples of interesting behaviours, and people turning to the council with an expectation of dealing with that. The role of local authorities is wide-ranging and various. What we have to do is look at that whole range of activities, and at the moment, we're focussing on the enforcement and compliance activity. That does put pressure on all those people running those services. What we've got to do is give you the right framework to make a series of judgements about what's critical and what's important and what isn't. It's vital that we keep lobbying. It's vital that we work with the LGA, that we work with the MHCLG, and that we see the value of these services. They key question at the moment is, how can we most quickly increase the resource what we've got to deliver the compliance and enforcement that we need to do and that we're expected to provide by our communities.



My challenge to everybody listening to this is, what suggestions have you got to really increase that resource? Is it about stripping out the bits that don't need to be done by the professionally-qualified staff, so that we can get more people in to do some of those activities? Is it be generating some quicker qualification routes, by getting retired people back? What would your suggestions be to increase that capacity?

 

Moderator:  Could I just ask 1 question, it's that point about thresholds and expectations, and whether there are any challenges around that in terms of member expectations?

 

G:  I think that's a really good point. Expectations vary depending on how worried people are. My own experience in BCP has been that we've had quite low case numbers. As a result of that, there's been this real issue about other people, people from outside the area, bringing the disease into the area. The expectations around trying to get some sort of social separation has been unreasonably high because you can't achieve that. We've tried to get over that as best we can by talking to people but I think expectations are probably too high about what can be enforced. I come back to that point, most of us don't comply because of the fear of having enforcement against us, we comply because we have that set of social norms. I think we're seeing those social norms changing, and changing rapidly, too rapidly for the enforcement activity to keep up.

 

Moderator:  That's, within the LGA, something we've been starting to look at in the context of antisocial behaviour, and where that's beginning to fuel issues around hate crime and confusion issues. I'm going to hand over to Fiona Sharkey, who is from Manchester Council, the Head of Compliance, Enforcement and Community Safety.

 

F:  I'm Fiona Sharkey, I'm the Head of Compliance, Enforcement and Community Safety at Manchester City Council. I've been asked to talk to you today about our approach to enforcement in Manchester, and to take you through a few case-studies of how we've used the new powers. In Manchester, we've always worked on the basis that most people and businesses want to do thing, the four Es of engaging, explaining and educating before moving to enforcement was the approach that we were already taking. We also realised, long ago, that the council alone can't achieve compliance. Over the years, we've developed a really strong multi-agency, integrated neighbourhood management approach, which has put us in a good place for managing the compliance response to COVID, with strong multi-agency operations planned and delivered from the start. We already had really strong relationships in place and regular forums, such as our night-time economy partnership, our student strategy group, our multi-agency licensing group, which made coming together to tackle COVID much easier than it would have been if we were having to build those relationships from scratch. (TC 00:20:00) In Manchester, we've also invested really heavily in our compliance and enforcement services over the last few years. They've often been the poor relation in the past. Over the last few years, we've been able to make a really good case for why we need compliance and enforcement staff, and that has been really invaluable because we're now able to respond effectively to those issues that are outside of normal working hours, which we're seeing a lot of at the moment. We provide a service that operates from 8:00 in the morning until 4:30 the following morning and covers a whole range of compliance issues, including licensing and noise issues.



The beauty of having this resource has meant that we are able to be very proactive, and through our multi-agency working, we gather intelligence as we plan together, so that we're able to anticipate many of the issues before they become huge problems and we're able to take effective interventions. Our 'on the ground' partnership working is absolutely key, particular with our police colleagues, who regularly do joint patrols with our frontline staff. Having staff working so closely together really helps them to understand the overall priorities for the city and where each agency can use their powers most effectively. Having this multi-agency approach has enabled to take effective enforcement action. The case-studies I'm going to talk through now will show how this works in practice. My first case-study's about a night-club that refused to accept that they could no longer operate as a night-club. As night-clubs were not allowed to reopen at the beginning of July when the rest of the hospitality sector reopened, we did a lot of work with them on how they could safely operate as bars. Many have done this quite successfully but unfortunately not all of them. 1 particular night-club had no intention of operating as a bar. Despite all the work we'd done with them prior to reopening, we did have concerns that they would not be compliant. We proactively visited them to check if they were doing what they needed to do. On the first visit on 11th July, there were concerns that they were not following the risk assessment, particularly in respect of social distancing measures, and they were playing music far too loud and allowing customers to dance.



They were given a warning for operating as a night-club, advised on the steps they needed to take to comply, and warned that the next step would be a prohibition notice. As the premises was only operating at the weekends, we revisited the following weekend, and they were still allowing dancing and loud music. We did serve a prohibition notice, requiring them to stop operating as a night-club. Officers visited the venue the next day and they were still operating as a night-club. The police issued them with a Section 19 closure notice under the Licensing Act for breach of licence conditions. They rectified those issues, were able to reopen and initially complied by operating as bar, but on another visit on 1st August, they were operating as a night-club and simply to stop. A repeat visit with the police later that same night found the front door locked but it was clear that there was still activity going on behind it. By this stage, it was very clear that they were never going to operate as just a bar. The police submitted a summary review. Their licence was suspended on 7th August, pending full hearing. Council and police officers put together a really good case based on significant breaches of their licence. We were using licensing legislation, that's what we needed to work on. On 1st September, the premises' licence was revoked. Although this was a great result for the city and testament to the brilliant work done by the compliance team and the police, it was also disappointing that the venue wouldn't work with us, not just to ensure the safety of their customers, but also to safeguard the jobs of all their staff.



My next case-study relates to a banqueting suite. We identified in late July that there was an issue with some banqueting suites trying to circumvent the regulations, to enable them to hold large weddings and other events. We worked with colleague authorities who had similar venues and developed guidance for banqueting suites around the measures that they would need to put in place to operate safely. Did lots of work to educate the venues in Manchester, so that they could continue to operate in a COVID-secure way. With this particular venue, despite trying to work with them, they failed to put in place the necessary measures to keep their staff and customers safe. Concerns had been raised with the council about this venue. When we visited them on 27th August, there was no COVID-secure risk assessment in place. Detailed advice on the measures they need to put in place was given to them, and we told them we would be back to check that they'd implemented them. (inaudible 24.27) risk-assessment in place and not contact tracing system in place either. In the spirit of time to help businesses, we issued a warning making it clear what they needed to do, and if they didn't comply, we would have to take formal enforcement action. We revisited them on 9th September, still no risk assessment or contact tracing in place, and concerns regarding the lack of social distancing, cross-contamination, poor cleaning regime. An improvement notice was served. On 24th September a complaint was received about an event that was due to take place that day. We'd also been given intelligence that further events were planned for that weekend. The police and council went down, visited, and we found a large wedding in progress with over 70 guests present.



The manager initially tried to deny that it was 1 event, said that it was 2 separate events, and refused to stop it even when the police advised that there was clear evidence that it was 1 event. They were issued with a £10,000 fine. The council officers who attended also found evidence of further events booked for the weekend, which the manager was adamant were going to go ahead, despite having been issued with a £10,000 fine. From what we found, it was clear that the criteria for issuing a direction were met. There was a serious and imminent threat to public health. A direction was necessary for the purposes of preventing, protecting against, controlling or providing a public health response to the spread of infection by coronavirus. The closure of the premises was a proportionate means of achieving that purpose. (Audio breaking up 25.59-26.28) what's really clear from this particular case-study is, had this taken the advice they were given when we met with them on 27th August, they would have avoided a £10,000 and 3 days of lost business, as well as safeguarding very many more members of the public who potentially got ill during the period that they were operating. My third case-study is our most recent direction, and it was issued on a convenience store for failure to implement appropriate social distancing controls and other aspects of its risk assessment. Although a risk assessment for COVID-19 was in place, it failed to control the risks within the premises, specifically controlling customer movement within the premises, a clear cleaning regime for equipment such as the self-service coffee machine and microwave, ensuring customers were wearing appropriate face-coverings and staff awareness of the risks of COVID-19. There was also a failure to manage the behaviour of staff and customers on-site.



This convenience store is situated on Piccadilly in Manchester city centre, which has a lot of issues with antisocial behaviour, street-drinking and crime, and concerns had been raised by the police regarding the inadequate management of COVID-secure measures at the shop, including a lack of social distancing, no signage and staff and customers not wearing face coverings. A council officer visited on 9th October with the police. In addition to the poor practices observed at the time of the visit, he also viewed their CCTV footage, and that showed customers entering the premises, not following the 1-way system put in place, wandering randomly in an out of the premises multiple times without being challenged by the door staff, posing a risk of transmission to both staff and other customers. Customers were also seen sitting on equipment within the shop, and they were allowed to be in close proximity with other customers and staff. Staff were not wearing their face-coverings, or if they were wearing them, they were lowered when they were talking to customers. There were times when staff were physically touching customers. There were no attempts made for them to ask people to use the sanitiser station that was there and customers were not being asked to put on face-coverings at all. It was clear that there was criteria for issuing the direction in that premises. We were able to quickly consult with the Director of Public Health and the police, who were supportive of the direction being issued. We had thought about giving a further warning to this particular premises to due to the clear lack of appropriate controls, a direction order to close was the most appropriate response. That was issued on the premises that same night. Hopefully that's given you a flavour of the range of enforcement actions that we've used and the type of circumstances in which we've used directions in Manchester, which we have found to be a useful tool.



In terms of the learning that we've taken from our experiences of compliance with COVID restrictions, there are 3 key things that have been important to our approach. Firstly, working really closely with the police, and being clear what powers each of us have and how we will use them. I'll give you an example, although fining people for not wearing face-coverings in retail is a police power, it's not the most effective use of police time. We've found that a more effective approach with large retail is to engage via the primary authority route, to get greater ownership by the companies .so that they're actually (TC 00:30:00) doing something themselves. We found, working with Asda, that way was a really effective way of getting them to change the approach in their stores in Manchester. Secondly, meeting regularly to action plan non-compliant premises is really helpful. We've got daily tasking meetings to make sure that we track the actions needed, and that actions that have agreed by various different partners have actually been taken. Thirdly, speed is of the essence, developing key contacts in health and police to streamline the process when direction orders are required has been critical. We're very lucky in that we already were working very closely with our public health team. We had those relationships in place already, and I've noticed, from some of the discussions I've had up and down the country, some people have found that getting the contact with the Director of Public Health as being something which has been a delaying factor in terms of issuing direction orders. That hasn't been the case at all in Manchester.



There have been many challenges but one of the key ones has been the pace of change in regulations and guidance, which has been very challenging for both businesses and regulatory staff. Just that sheer volume of things which the same small group of people are being expected to do, on top of all your 'business as usual' activity. Response to the question about managing expectation, in the early days of dealing with the COVID response, the expectation management was much better than it is now. I think we're now expected to get absolutely everything done, on top of the additional COVID work. I think some of the powers are clunky and don't allow quick enough improvement. I still feel that a COVID-specific improvement notice requiring immediate improvement, and has closure powers if improvements are not made, is something that's still required. I hope that's been useful, has given you some insight into how we've approached compliance and enforcement of COVID restrictions in Manchester.

 

Moderator:  Thanks, Fiona. I'm going to start with a few questions that have been posted in the chat. Simon Wilkes has asked whether you have delegated the power to issue directions to anyone other than the DPH. Another question from Emma Norman, if the direction orders have been complied with, could you explain how this process worked in practice, and how continuing compliance is secured?

 

F:  In relation to the issue about the DPH, it's not actually the DPH's decision, it's a local authority's decision. In terms of the consultation that we've had with the public health team, when the Director of Public Health isn't available, we've made arrangements that there are 2 consultants in public health who work within the public health team who we would consult with in relation to agreeing, with the Director of Public Health, the actions that we're going to take. It is the local authority's decision, not the Director of Public Health.

 

S:  It's Simon, I just wondered if there'd been a formal delegation to you to issue direction? It's the power of the local authority, and therefore needs to be delegated to its officers. Has it been delegated to you to issue directions? Effectively, you're just checking with the DPH that they're happy, or does the DPH have to sign off on every single one and it's their name that goes on the bit of paper?

 

F:  It's (inaudible 33.57) but we do consult on every single one and we do get a written response from the Director of Public Health, that they're in agreement with the action that we're taking. We've not had any difficulties in terms of any of the directions that we've issued, where the Director of Public Health has had a different view.

 

S:  It was just how the council had done its delegation, it's delegated it to you to do.

 

F:  The other question around compliance, we've worked really closely with the premises. That's why I think closure is such an effective power, because people don't want their businesses to be closed. When the business is closed, they're really willing to put in place the measures that they should have put in place in the first place. That's why it's quite a frustrating process for us, because we want to work with businesses. We want to support businesses through this really difficult time. I always see our role as being enablers. I don't see us as being the people that stop things from happening. I see compliance and enforcement as being the services that enable people to do things safely and securely. What we've found is that where we have had to issue directions, generally speaking, what we've done is, when we've revoked the original direction, we've put in place another direction order, which sets out the conditions that we need them to comply with, which are basically just the conditions that they should have in their COVID risk assessments in the first place. I think we've had 1 premises in Manchester, we've considered them closing them again but we have been able to get them to put in place sufficient measures but we have to keep checking. We do do regular checks, to make sure that the directions that we've put in place have been complied with.

 

Moderator:  I've got a question about how big are big are your tasking meetings in regard to enforcement agencies, and whether that's a police meeting or a council-led meeting.

 

F:  It's a combination, because we are such a big authority, we have a number of different meetings. We have a tasking meeting which is particularly focussed on the student areas. We have a licensing tasking meeting. That's led by the local authority. The student one is led a combination of the police and the local authority. We have another general meeting that is led by myself, with feed-ins from the other groups, just to make sure that all the actions that we've said will be taken are being taken. We've got different groups for different issues.

 

Moderator:  Alan Priestley, did you want to come in with a question?

 

A:  I understand you're having some quite serious compliance there, those case studies, but from a fire service point of view, was that intelligence shared with them at all?

 

F:  The fire service tend to be part of our compliance groups. We've often found the fire service to be a really useful partner in terms of the compliance we do. If there are fire safety issues, they've often got the best powers to be able to stop things from happening straight away. I don't think any of the cases we were talking about here-, yes, we did, we definitely involved the fire service in the first one because they'd locked the doors, which was a serious issue from a fire safety perspective. The fire service are a really key partner for us.

 

A:  That would have been the thing that flagged up for me, the night-club being locked from the inside when it was occupied. Thanks for clarifying that.

 

Moderator:  Did you find that having a lot of directions in progress places a significant administrative burden on officers, with reviews etc.?

 

F:  Yes, it does place a significant administrative burden. That's one of the things that we've said, it would be useful to have additional powers that don't require having to do the consultation with the various different parties. We're lucky in that we've got good, streamlined processes set up but having to review every 7 days, it's not something which we feel should be necessary. There should be a greater degree of trust, is what my officers would like to see. We know what we're doing and we should be trusted to get on and do it. Yes, that's one of the biggest drawbacks of the direction orders. We have been able to use them successfully but they are an administrative drain. We would prefer to have something which didn't require that to happen.

 

Moderator:  That's a message that the LGA and other councils have been (TC 00:40:00) giving back to government. I'm going to hand over to Paul Lankester, interim Assistant Director at Birmingham City Council, to talk about the work they've been doing.

 

P:  I'll go through, from Birmingham's perspective, some slides and specific cases that we've got. Generally, Birmingham's had quite a high level of enforcement for many years. That's one of its trademarks. We try to be fair. We try to be proportionate, focussed, consistent and reasonable. We do seem to have far more cases than most authorities, and it probably is true of a city context, that that tends to happen. But as we all know, we need the right tools for the job as enforcers, and I think that initially, we were finding that trying to deal with COVID and all of the different cases that we got, we were finding there to be a significant issue. We've tried to use a mixture of education enforcement, giving warnings. Normally, we give them one, possibly more if there's been a genuine misunderstanding or something else of that, but where obvious offences are taking place, they're not warned. For Instonce, bars meant to be closed at 1 o'clock. It's still open at 1:30, 37 people in there. Police issue 36 fixed penalty notices. We issue a fixed penalty notice for a landlord and a direction to close, because it's just plainly obvious that people are not taking any notice of the initial action we do, where we try to educate as well, where we're trying to people that the way it impacts on them as the legislation changes, and obviously we've found that more and more difficult when legislation is introduced after it comes into force, and one of the most embarrassing things around the COVID has been the number of times about the legislation by members of the public or members of the business sector before we actually see it. I think that's something the MHCLG are recognising that that's been an issue, and their latest engagement, I have to say, has been some of the best I've experienced of late, so that really is good, in terms of what's going on.



Proportionately. One of the things we thought in regards to COVID. We need to look at proportionality in a different way to what we normally deal with. I think that we always wanted, and when we set out, it was about reducing the spread of COVID, protecting our residents, and then also trying to ensure that we protect businesses from further lockdown, and to reassure the public. I think one of the things we did quite early on was open both an email and a telephone line for people to be able to report issues. It's something our council were most insistent on, because we were getting so many Instonces of people becoming concerned. We have simply hundreds and hundreds of calls that have come through, and we've dealt with all of those. We're quite proud of the fact that we've tried to do that and take that forward.



So, if I go through some cases, Stone Road is an asylum operated by Serco on behalf of the Home Office. They had shared rooms with dormitories and facilities. 8 people in a room. We had 240 residents, and we had a first symptomatic case confirmed on 19 August. The infection management team that we put in place started with Public Health England chairing. By 23 August, positive cases, and we could see quite clearly that there was no social distancing indoors. People were known to be leaving the site. There was no control of people going through. By 25 August, we had 26 confirmed cases. Public Health England then went in and were conducing on-site testing. Serco and the Home Office started dispersing residents to HMOs in other local authority areas. We were just simply not happy with that. We couldn't keep any track of the individuals. As an aside, I know it's being recorded, but it was quite clear that the manager of the site was very close to a former prime minister, and that was something, they were married to them. It was something that we had to deal with as well. There were a lot of things going on behind the scenes politically that were causing a number of issues. 28 August, we had the first reports of residents using cafes within a mile of the centre, and there started to be cases at cafes, positive cases at these cafes and cases on the rise, mostly asymptomatic. As an environmental health service, we tried the education. We tried to be encouraging everything that was going on, so we proposed a direction. Public Health England were in support. Chief executive was supportive. Serco was supportive. Home Office were neutral, because this created a bit of problem in terms of what we were doing. We issued a direction to close residents moved to hotels in Birmingham and London with individuals rooms and bathrooms. 2 positive cases went to London. 55 cases were now in the Birmingham hotel intermixing, and residents were still leaving the site.



On 4 September, a Part 2A order was obtained. This enabling legislation required the isolation and required them to remain on-site and undergo testing, and we found that Serco would not secure the site. On 6 September, we had photographing people leaving and Environmental Health started to take evidence for breaches. On that date, Serco locked doors for the first time. There were approximately 70 positive cases on the site. It actually, in government terms, was counted as 1 cluster, so it didn't come out as 70 cases. It came out as 1, in terms of what was there. By late September, we agreed that recovered cases could be dispersed and the infection rate was down to 2 positives. 80 persons were negative following tests. 6 October, we found 1 positive case. We agreed with Public Health England that the outbreak was over. Everyone was to be dispersed, and any future dealt with in a housing multiplication of 8-12 people, rather than a hotel setting. I have to say that the work involved for my staff in trying to deal with this was absolutely phenomenal, and it caused some major implications, certainly politically, certainly both issues between government and ourselves. It was something that we were trying to do in a way that satisfied all, but with the overriding risk of what we thought was proportionate, i.e. to try to stop the number of cases that were emerging.



We also had, like Fiona's mentioned before, banqueting venues. Something I really first came across in a few cities, but certainly in Birmingham. We have some banqueting venues. They can hold upwards of 1,000 -1,500 people that can be there in normal times. You can imagine when directions came about 6 or numbers of 6 that could be in there, whether they operated a restaurant, it is not like anything you normally experience in most towns in our communities. During the Eat Out to Help Out, this was a really important aspect of the economy. It was very successful. Restaurants, very popular, and it was at a wedding venue as well. The risk assessments were prepared. We advised how they could prepare the risk assessments, and everything they put out was absolutely spot on. Complied with social distancing. They decided the wedding party should be no more than 30, as was indicated in guidance, but the operations when we started to look, and when the complaints came in, did not reflect risk assessments. (inaudible 49.17 - 49.23). We were giving advice, but it's important to note that, why do we think wedding venues are so important? Why can't they be at restaurants? Why can't you have lots of tables of 6, 10, 15, whatever it might be? Because in a normal restaurant, tables don't tend to go across to each other. In a wedding, they do. In fact, normally the bride and groom will be going around to every table, so if they happen to be asymptomatic, you've got the potential for an awful lot of cases going forward.



There were visits by ourselves and West Midlands Police. I should say that West Midlands Police have worked with us so well, and we've sought to find the best (TC 00:50:00) way forward. We agree actions. We have weekly, at the very most, it's weekly. It's often more frequently than that. We go through all their webcam, camera footage to show us what's actually happened at individual sites. We ensure the compliance advice has gone out. We found that it was ignored in this case, and the owners claimed people were attending weddings were in restaurants separately. We knew it was completely made up and it was just trying to resurrect some of the monies that they'd lost. These large venues didn't get any business rates support or relief in the early stages of the lockdown, because they were too large. We served the direction. We made weddings have separate sanitation. We restricted numbers to areas of premises, so we tried to treat them almost like units within premises, and then we required queues to be managed and socially distanced. The premises advised non-compliance would lead to closure direction. The numbers at weddings were reduced. Mobile numbers were taken by the management, and people instead of queueing outside the restaurant actually queued in their own cars. The venue complied with numbers in specified areas, and our partners, West Midlands Police, conducted out of hours checks. Residents complaints fell to zero. In this particular Instonce, we think that the action we took was actionably proportionate, worked well, secured compliance, and has reduced the risk of infection. Summary reviews, I think that we've had more summary reviews since the lockdown restrictions were lifted and the hospitality sector reopened than probably in the previous 5-6 years put together. It has been that many. Possibly a bit of an exaggeration. Might be a couple of years, but it is that sort of number that's coming in on a very regular basis.



On the first pub, we had the circumstance who just opened in direct contradiction to the closure regulations. The overall license holder was very cooperative, became very worried about the implications for this. After we gained the necessary evidence, and again the police body cam footage was very useful in this, it went back for a review. A decision was taken by our licensing committee that the license by suspended for 3 months and the designated person was removed. They were no longer to be removed the licensee on site. It is really interesting that the license holder in this particular Instonce was cooperative from the outset, and indicated to the committee that their intention would be to evict the tenant landlord and seek a new tenant, and actually, I think there'd been other issues, but our actions in this case in working with them would help them achieve that outcome. This is another bar. Again, the circumstances were contravention of COVID guidance, no social distancing. They had a risk assessment, but it was wholly unsatisfactory, and there were several breaches of license conditions. They had multiple advice visits which were ignored. The license holder was uncooperative. We did a review, license was revoked, and again, the designated person was taken off the license itself. 2 bars here. Both were trading beyond the 10pm curfew, so this is relatively recent. Contravening the COVID regulations, and we took the interim step decision where we suspended both licenses and again, the designated person was removed from both premises. These are still pending the full license review, but both premises made representations through a barrister against the interim steps. This was only this week, and actually both of those have been unsuccessful in that. There's all sorts of claims. This is what I'll pull out in the next slide, where the summary review process, and the barrister who was representing these bars were trying to claim that we should never entertained the police's certificate that stated that they wanted a summary review. That was the bulk of their complaint. They actually felt that it was an offence of public nuisance that was being created as per the Queen v. Rimmington & Goldstein, and where it says a person is guilty of a public nuisance who does an act not warranted by law or omits to discharge a legal duty if the effect of the act or omission is to endanger the life, health, property or comfort of the public. We have no choice as a licensing authority to challenge that certificate. It has to go through the process of the summary review. That was something that barrister was trying to actually challenge, and we took that forward and dealt with that in the way that we could to try to make sure that we could achieve compliance.



A couple of things I would just mention about some of the learning and elements there. We've come across a number of things that are outside the regulations generally, and I know that we've worked with Westminster, Manchester and other areas to look at the whole question of shisha bars. These are one things that we actually do feel that are causing us amazing problems in trying to seek compliance, and drawing together people in excessive numbers. We've already been thinking about, what happens if Birmingham goes into Tier 3? It's quite possible. We've got 8 universities within the city. We know that there's always that. We're preparing for those regulations, and trying to define what we would ask. We're asking things like, if you get a large gathering with buskers, do we need to control the whole issue of street busking in this current environment? Do we ban shisha bars during that time? Do we effect closure of them? There's no control there necessarily It is about getting that little bit of breathing space while we're in a lower level. We're only Tier 2, but Tier 3 could come to any of us at any time, so do prepare for what you might want, and actually take that forward in any of those negotiations. I'd also make a plea that we make sure that, as Fiona has said, have excellent relationships with police, public health, those sorts of parties, but also that in the spirit that the MHCLG have given us a grant, a ringfest (ph 57.17) grant, the most unusual things I think we've probably experienced in the enforcement for an awful long time, and I would certainly recommend that everyone makes sure that they complete any data requests and saying how we're using the money, because actually future monies will depend on our sector's ability to tell MHCLG the impact of the monies that they've given us. Thank you. That's the end of my presentation. Any questions, I'm happy to take now or afterwards.

 

Moderator:  Okay, thanks Paul. Could I just ask 1 question? How are you planning in Birmingham on using the grant that you've received? I suspect you and Manchester may have possibly had some of the biggest grants in the country, so how do you expect to use that?

 

P:  Yes. I think the 3 biggest are ourselves, Manchester and Leeds are the ones there. We're actually trying to look at what the government has wanted. Whatever you call them, we're going to split our monies between enforcement. We're going to go and make sure we've got proper enforcement out with police when they're going out, so there's a joint enforcement side, and I think that that's one of the things that we want to get in there. We're going to use guidance and compliance officers, whether you call them wardens or anything else, but we're going to go out to the premises we know there's been issues. Barbershops, some of the bars, some of those places, and just try to get people to comply. We're going to support our shopping centres who sometimes have problems within areas there, and we're trying to work with our bids. We have 12 of them in Birmingham, and we're trying to get them to some of that. Actually, getting the management to actually manage all of these extra resources is phenomenal, and trying to set a system up where my head of service and the ops managers don't all suffer from stress because of the amount of things that are being thrown at them is something that we're really trying to do. We're going to seek an awful lot of both written guidance and training. We're looking that we want to train the sector. If you look, if the 4 E's are being taken on on there, education being one of them, let's offer our business the ability to have training sessions with us online and taking matters forward. We've got a number of different ways. We've identified all bar 10,000, and we are also getting the organisation to completely change their recruitment procedures to ensure that we can get people in quickly (TC 01:00:00). Enough people have lost their jobs who are of a suitable calibre to be able to do this work for the next 4 months.

 

Moderator:  Thanks, Paul. That's really interesting and definitely something we'd like to pick up further. I know you have another meeting to go to, so I will leave it there for questions, but hopefully we might to be able to hear from you later, or we will pick up some of those issues, because that sounds like some really interesting things. Thank you for that. Lynne, are you okay to take over and share your screen for your presentation now?

 

L:  Yes. Thank you for inviting me to this webinar today and for sending an overview of what we affectionately call the #3 regulations. I'm Lynne Henderson. I'm one of the joint unit heads in the escalating and response unit in the Joint Biosecurity Centre. Part of the role of the team is to discharge the functions of secretary state that sit within this statutory instrument. When you email [email protected], it's my team that you are contacting. We, own's the wrong word, but we're responsible for the policy that sits around these powers for local authorities to really drive up in compliance, and also to enforce behaviours in respect to venues, events and public outdoor places in your areas. I wanted to just walk through the actual statutory instrument and the regime that sits behind giving directions, and then just highlight some other aspects that we've picked up from the communications that we've had with areas since these powers came into force on 18 July and just give you a bit of an update in what we're working on at the moment. As statutory instruments go, I think these are actually some of the best drafted and more straightforward to get your head around in the panoply of COVID regulations hat we are contending with on a day-to-day basis. Really, regulation 2 within these regs is the one that I'm going to focus on. That's, I think, where some of the practical challenges arise, so far as engaging these tools and being able to use them effectively in practice. Regulation 2 sets out what I call the mandatory criteria, and these are the distinctions that have to be met every time you want to issue a direction. The first is that the direction has to respond to a serious and imminent threat to public health. The second is what we call the necessity test, and the third is the proportionately test. Just to spend a little bit of time on each of those. This statutory instrument, in fact, anything that begins health protection, coronavirus, all of these statutory instruments are secondary legislation, and they're the children of the parent act, which is the Public Health Control of Disease Act. The serious and imminent threat to public health is not an obstacle that's been put in there to make your lives difficult. It is the test that is derived from the parent act, but the important thing to remember here is that the serious and imminent threat to public health isn't with the context of the particular setting that you're looking at. It isn't even within the context of your area. This is the context, effectively, of a global pandemic, and so it's certainly the justification for all of the local interventions that have been imposed in recent months.



We are responding to a serious and imminent threat to public health. We are in the midst of a global pandemic. We don't think that that is a particularity challenging threshold to get over. The necessity and proportionality requirements, again, those aren't there to make your lives difficult. They are standard public law requirements for any local or central government department that is exercising its powers. Necessity is linked to what's going on in your area, and proportionality isn't about what's fair or what you think is balanced. It's about human rights and your disrupting the human rights of individuals by imposing these requirements with restrictions, requirements or prohibitions. Again, we don't think those are particularly challenging obstacles to get over within the context of the duties and functions that you're discharging at a local government level. Equally, the proportionality in terms of your response to what is a global pandemic that has had a dramatic impact on public health already. The policy around those, they're there to ensure that there's no abuse of these powers. They're there to ensure that the use of these powers is properly thought-through and is justified, but in the current context, we think that the justifications for satisfying each of those criteria should be relatively straightforward. The caveat to what I'm advising is that you are obviously all independent of central government, and it is for your individual local authority legal teams to interpret those provisions and to determine whether they're satisfied that those criteria are met on individual cases. Within Regulation 2, it's also stipulated that you need to have regard to any advice that's provided by your directors of public health. In fact, if that's not in Regulation 2, which I'm now just checking, it's in each of the Regulations 4, 5, and 6, which we'll come onto. Again, the way this is phrased is quite interesting. The phrasing isn't that you must get advice from your director of public health. The phrase is that you have must have regard to any advice that your DPH may or may not have given. It isn't that you must follow the advice of your DPH. It's just that you have to have regard to it.



This is about best practice. These are public health responses, and so who best to consult but your public health expert, your director of public health? However, there may well be situation, and you may well have justifications, for not being able to do that, or for being able to make an assessment on the basis of advice that has previously been given by your DPH, rather than any specific advice to the situation that you're actually assessing. We think there's a wide margin of discretion around how that provision is phrased within the legislation. These aren't DPH powers. These are local authority powers, but local authority's working with the benefit of having consultation with their public health experts. Equally, it's not just the DPH. We have recognised that DPHs are working extensively at the moment. You have the discretion to go to acting DPHs or interim DPHs as well, so there is some scope there. If you can't get in contact with your DPH for practical reasons, there's nothing to stop you getting any other public advice. It's just if you have got that advice from your DPH, or have got the opportunity to consult best practice, you should be doing so. Once the direction has been given, you have to notify the Secretary of State as soon as reasonably practicable that that's what's happened. Just a little bit of feedback for us there. It's really helpful if that is done whilst the direction is still valid, because of some of the other functions that fall at the feet of the Secretary of State. There have been occasions where we've had the direction served weeks later, once it's actually expired, which makes it challenging for us to discharge the Secretary of State's functions. You are also obliged to review the direction once every 7 days, and if any of those conditions are no longer met, then the direction should be revoked or replaced with a new direction that does meet all 3 of those mandatory criteria set out at the top of that slide. Section Regulation 3 provides more information about the role of the Secretary of State under this regime. He has a responsibility to review the directions that are issued by local authorities, and where he is satisfied that the criteria are no longer met, he must direct the local authority to revoke the direction without replacement (TC 01:10:0), or to revoke the direction and to replace with a new direction that does meet that criteria. That's again why I come back to the point of serving a copy of your direction on Secretary of State as soon as is reasonably practical once that direction's been given, so that there is that opportunity for review. The Secretary of State also has the power to direct you to give a direction where you haven't done so. If he is aware that there might be a situation or a circumstance where the criteria are met and the local authority hasn't stepped in, there is that opportunity for the Secretary of State to direct you to do so. Secretary of State, and again, I tease this nuancing on the wording out. Rather than him having regard to any advice from CMO, he must consult CMO before he does that. I think you can draw a distinction between the wording that is used in Regulation 3 on the consultation that the Secretary of State has to undertake, and the wording is is in Regulation 2. I don't know why I doubted myself, about local authorities having regard to any advice that the direction of public may have given them. There is, from a legal construction point of view, different terminology used, which I think is significant.



Regulation 4, 5, and 6 largely mirror themselves in terms of the process, but just related to premises in Regulation 4, events in Regulation 5, and outdoor public spaces in respect of Regulation 6. On Regulation 4, it's really important that you're area of which premises constitute essential infrastructure. Essential infrastructure is deliberately not defined within the act, within the statutory instrument, but is defined in guidance. That gives us flexibility to revise the venues that are considered to be essential infrastructure from time to time. Please always refer to the .gov.uk guidance that accompanies these regulations. Tehre's a link in the slides to where you can find that guidance. For example, the definition of food production sites, which falls within essential infrastructure as being clarified that it doesn't relate to hospitality venues that may be serving food. That's a recent revision that has been updated on the .gov.uk website. The essential infrastructure presmises don't mean to say that nothing can be done. They just mean that neither Secretary of State nor local authorities can give directions under the #3 regs, but the coronavirus act does include powers that may or may not be appropriate to use if there is a situation in a venue that is classified as essential infrastructure. Before giving directions, this is another provision which we understand can be challenging for local authorities. There is a requirement to take reasonable steps to give advance notice of the direction. Again, I think the devil's in the detail with the way that's phrased. Whilst it says you must, and that mandatory word, that word is used, the next bit only take reasonable steps, not that you must give advance notice, but that you must take reasonable steps to give advance notice. There may well be situations where it is just not practical or feasible to give advance notice. You may be reacting at speed, in which case you don't have to delay the direction having effect so that you can give so many hours advance notice. You need to do what you need to do to respond to the public health situation. However, where you've got an event that might be due to take place in 2-3 weeks' time, you would be expected to make that decision as soon as you can so that the event organisers have got advance notice and can respond accordingly.



Regulation 5, events, largely mirrors Regulation 4. I think on outdoor public places on Regulation 6, the only additional provisions I'd draw your attention to are the provisions that relate to crown property. If the land in question is owned by the Crown Commissioners, for example, beaches, there are some additional requirements and regulations, 7 and 8, but please get in contact with my team using that direction notification email. We've been in contact with the Crown Commissioners and have a set of templates that can be used in those circumstances, and a process agreed to how you can get the consent of the Crown Commissions. Helpfully, the Duchy of Lancaster and the Duchy of Cornwall have agreed the same process as the Crown Commissioners, so there's no deviations there. It's just 1 process that we need to follow. Once the direction is given, the document that you serve has to stipulate a start time and date and an end time and date. It also needs to provide details about how challenges can be brought against the direction. There's 2 routes to challenge a direction. Firstly, the challenge can be taken to a magistrate, and there's a 6-month period in which to do that. Alternatively, challenges can be made by way of representations to Secretary of State, and this is under Regulation 9. Again, this is my team that pick up these representations. We've had, I think it was 5 directions so far where representations have been made to Secretary of State. 3 are being reviewed. 2, Secretary of State concluded that he did not need to exercise any of his powers. His powers are either to direct the revocation of the direction, or to direction its revocation and replacement with another direction. Effectively, when he decides not to exercise any of his powers, he is allowing the direction to continue, and upholding's the wrong word, because it's not an appeal, but effectively agreeing that the decision of the local authority was the correct decision, and that the mandatory criteria were met when the direction was given.



Just moving quickly through the remaining parts of the regulation, Regulation 10, public notice of directions. This is important, because you have to not only let the person who is affected, so the owner or the manager of the premises or the event, know about the direction, but you also need to bring it to the attention of other people who might be affected by it. If it is an event, you need to give though to how you're going to let all those people who were due to come to that event know that it's not happening, or that in fact the way it's going to be organised will be different. You will have to publish the directions on your website, and you also have to notify any of your neighbouring local authorities that you've issued a direction. Neighbouring authorities, when they get that notice through, have to consider whether the criteria are met, so far as their circumstances are concerned, and whether they need to issue a direction as well. That's under Regulation 11. Enforcement is by way of designated officers, local authority officers issuing prohibition notices or fixed penalty notices. Police also have powers to intervene, and ultimately, there can be a prosecution for breaching a direction. I think the statutory regime is relatively straightforward. The guidance on .gov.uk is extensive, but we have undertaken a really thorough review of that guidance. I just wanted to thank Local Government Association and those local authorities who have assisted us with that review. We're trying to collate all the feedback that we've received to make that guidance more accessible, and to provide a clearer steer on the policy intent behind these regulations for you, particularly some of the points that I've highlighted already. As I say, it's also important to check that guidance whenever you're issuing a direction, because particularly the essential infrastructure list could be revised and republished without you other knowing that's the case. We've created direction templates that we can provide to you. You need those, please just email our email address, which will appear on later slides. The templates have been created, again, with feedback from how local authorities have been using these powers, and will be revised and updated and refreshed as and when we need to do so, building on that feedback process and developing our understanding of how you are using these directions in practice.



Let me move onto (TC 01:20:00) the next slide. The use of directions has increased over time. I think there was a slow uptake in the beginning weeks. However, you'll see, this table was drawn up last week. We had 151 directions in total at 14 October. I've just checked today. I think we're at about 160 directions now being issued across the country, and for a really wide variety of different circumstances, although only 1 #6 direction so far, which was a street in a city centre where there were a number of restaurants and bars, and people were congregating in the street. Really useful example of how creatively these tools can be used to regulate people's conduct and their behaviour in open public places, in addition to the bars, the pubs, the venues, the restaurants, or the businesses, etc. We've had quite a few events that have been affected by directions, and as you can see, primarily they've been used as a tool to enforce compliance with COVID-secure practices in hospitality settings. Interestingly, not always a closure that results. More often than not, it's about ensuring compliance, and so it's about imposing requirements or restrictions, rather than ultimately closing a venue. The email address that I've mentioned is highlighted on this next slide. Hopefully, it just repeats some of the points that I've already outlined. The last thing I wanted to pick up before we do a Q&A is that we are circulating out to local authorities and other government departments a newsletter. It's not an academic paper. It's a very, we hope, easy, accessible newsletter that shares with you some of the data. It shares with you some examples that we're getting back from local authorities providing some case studies for you to have a look at. It shares with you some best practice. I think in the third edition of the newsletter, we highlighted a practice in Lancaster, where restaurants are able to sign up to an accreditation scheme, how COVID-secure they are, so a bit like getting a food hygiene rating, they're given a COVID-secure rating. We've also got articles from other government departments, and we're going out to DPHs, for example, to get some articles as well. It's not meant to be a very highbrow academic newsletter. It's meant to be easily digestible, quick wins, and to share with you some really good examples of how you can use directions as part of your response on the ground to keeping control on the risks of people being out and about and mixing without transmitting COVID. On departmental management, we work very closely with the other government departments, and feed into a lot of the guidance that they're developing. For example, we've worked with DEFRA around managing outbreaks in workplace settings where there's food production. We also work with the Department for Culture, Media and Sport around who you can manage outdoor events, and there's some revised guidance that they have published on that topic as well. If there are other areas where you have concerns, we welcome that feedback from you, and we can then pick up with the relevant departments and have these conversations where hopefully we can strike the right balance, well, it's not a balance. We would say public health takes priority, but equally, it's about getting the right mitigations in place to make sure that competing interests are recognised and are taken into consideration where possible. I think that's a very quick run through of 3 Regs. More than happy to take any questions in the last few minutes.

 

Moderator:  Thank you very much, Lynne. Does anybody have any questions? There's been a few comments in the chats. Do you have time to stay on for Fiona and Roma's presentation and take any questions after that, or do you need to get away now/

 

F:  That's a very good question. I'm just double-checking what's in the diary this afternoon. I need to drop out at half past three. I've got another meeting. Again, if there are any questions, please feed those back through after the meeting, and I'm more than happy to pick those up in due course. I've just seen something about fixed penalty notices. The fixed penality notice scheme under the #3 Regs is out of kilter with everything else. We're still on the old rates, so it's £100 for a first fixed penalty notice, reduced to £50 if paid within 14 days, and we don't have a separate ladder for business fixed penalty notices, but we are reviewing the policy around all of that, and in all likelihood, we will fall in line with the doubling of the fixed penalty values that you've seen across other enforcement regimes, and we will probably introduce the business fines ladder of fixed penalty notices in the #3 regs as well.

 

Moderator:  Thanks, Lynne. I think David has just put his hand up for a question.

 

D:  Yes, thank you. Just before you disappear, Lynne. You talked about there not really being necessarily a need to satisfy the serious and imminence of a threat because we are in a global pandemic, but that really isn't reflected in the guidance that we're using. Certainly, I'm in a lower tier authority, and our upper tier authority has set really quite a high bar for us to get over to establish the serious and imminence of the threat, so it really would be helpful if we can almost take it as read that we are in a situation where there's a serious and imminent threat to public health, and that each local authority doesn't have to go about proving that every time that they want to issue a direction. It may be different in unitaries, but it's certainly complex in particular areas.

 

L:  As I said, everything that I've said comes with the health warning that it's your legal teams in your respective local authorities who you have to defer to. From a policy point of view, a global pandemic, the increasing rates of transmission across the whole of England at the moment, is justification from our point of view when we passed statutory instruments where we also have to satisfy that serious and imminent threat. It's about how those arguments are shaped, but I wanted to just clarify is that you don't have to look at it in the context of just your local authority area. We have seen examples of where there were very low transmission rates and directions were given, but again, it was about the nature of the directions. In one Instonce, it wasn't to stop an event, but it was to impose requirements on how that event actually took place. In another Instonce, it was more the risk of a large influx of visitors coming from outside the local authority's area, where there were very, very low rates, and what impact that would have on the public health and the transmission rates for the local authority's residents. People were likely to attend from far and wide, and probably areas where there were higher incident rates. It's really about how the justification, how you work through those criteria, and evidence or make your arguments, if you like.

 

D:  I suppose that's what worries me, authorities deferring to their own legal teams, because it's not really that clear. Certainly, as I say, in Tier 2 areas, it becomes very complex when the people on the ground aren't employed by the same organisation that's making the decision.

 

L:  Yes. I'm aware it's challenging for environmental health officers in particular where you're in that Tier 2 structure. Thank you.

 

Moderator:  Lynne, do you think the new guidance on the #3 Regs will help to address this to some extent?

 

L:  That's our ambition. That is our ambition. Again, we can only provide that policy sphere. It will be down to the legal teams and the chief executives, I suppose, as to (inaudible 01.29.34) sit within individual local authority areas. We will certainly try in the new guidance to reflect where we think the policy focus should be, and how we think from a policy perspective the regulations should be interpreted.

 

Moderator:  Great. Thank you. Am I right in thinking that that should be out the end of this week or early next?

 

L:  Yes. We're aiming for Friday (TC 01:30:00). We've got a lot of clearances to go through. All of this goes through triple-lock (ph 01.30.05) clearances. It's a whole new process I've had to learn. We're also trying to make sure we get as much feedback, and we're still getting responses from local authorities on the drafts at the moment, which is really rich information for us to try to reflect. We're also trying to incorporate some best practice guidance and some case studies as well, where we can, to give a bit more confidence to local authorities around how they can use these powers. What I will do is once we've republished, if I let you know, would you then be able to forward onto local authorities more widely?

 

Moderator:  Absolutely.

 

L:  I'll also push that through MHCLG as well.

 

Moderator:  Absolutely. I can absolutely do that. We really appreciate you coming along today. Thank you.

 

L:  Thank you very much everybody. Thank you. Bye.

 

Moderator:  Okay. We now have Fiona Inston, who is the head of public protection at Lancaster City Council, and Roma Burtells, who's a senior solicitor from Lancaster County Council to talk about their experience of using directions in a 2-tier context. Over to you guys. Thanks very much.

 

F:  Brilliant. Thank you very much. I don't know if it's the advantage or disadvantage of being later on that we've already discussed some of the examples, and Lynne has just talked about the legal process. I know quite a few of you are really interested around the 2-tier approach. It's a double act from myself, from the City Council, but also from our Lancashire County Council. Most of you will be aware that obviously Lancashire is in the spotlight. We're now in a Tier 3, and we recognised some of the challenges that people have been talking about today. We are competing with a director of public health that's working across 12 very busy districts, and we have had a number of direction orders. What we see is an element of the carrot and stick approach, something that we were told by the others as well, about, how do we try to get businesses to comply, but also recognising that at times, we have to accept that they're not compliant and we've got to take a slightly different route? The case study I'm going to talk about is a fairly standard one that we've found. I'm afraid it's not as exciting as Birmingham and Manchester's, but it's something that probably others will be able to associate some of their own premises. Similar to everybody else, we've been taking the 4 Es approach. We've been working with businesses, providing support, one-to-one visits, 2-hour briefings, We've been working around with our pub watch, etc, and trade, finding guidance, all the things that everyone else has been doing to work so hard with COVID and trying to help support businesses. Alongside of this, what we have is a tactical group, where we work with the police. We've got fire, NHS, the university and other statutory partners, around premises where we've been visiting and not getting compliance, and then about the next stages that we've been taking. In a minute I'm going to run through the case study that we've got. It's really interesting just hearing about the local epidemiology and the stats that Lynne was talking about around the test it meets for 

the direction. At the time we issued our first direction, we had the same issues. At the time, our rates in the district were 8.3 per 100,000. At the moment, it's 350. We're in a very different place. What we found, we didn't have the clarity either around actually, we were 8.6 and other parts of the county were significantly higher, and how do we make that prove that we had to close the premises? We were really lucky that we have some local stats around cases and around the premises around this pub, there was actually a clustering of cases. They were not a direct link, but we were able to show that there is something going on within this particular ward that was significantly higher in that area, in the age range of the people that were visiting the pub.



I'll just give you a quick overview around some of the history why we try to comply. This premise is a really interesting one, because some premises have had really awful conditions and it's been straightforward direction order. With this one, there was a real mixture of compliance, improvement, and then non-compliance. We started off having no issues. Then we had a visit. We found some issues of social distancing, mixing of groups. The next night, we went back and we found improvements. At that point, they got put on our amber list where we were monitoring them closely with the police and others, and we decided to serve an improvement notice. We served around 9 improvement notices at that point to a number of premises under the Health and Safety at Work Act. We followed that up with an advice visit. Early in August, we had some more concerns on a visit around the management controls, and that led to a voluntary closure that evening. Again, it was on a Friday night. We had limited powers at the time, but the business volunteered to close. The next evening, they carried on remaining closed, which was great. The (inaudible 01.36.04) music, issues of social distancing and spacing, and then again, that was followed up with a support visit. The next evening, we found some improvements. We had these patchy improvement or not improvements, and then our next visit the following week, which just on the bank holiday weekend, there was no track and tracing system, no social distancing, and the pub was run effectively as what we call as pre-COVID. At that point, we made a decision that actually, this premise, we've supported them so many times. We've seen inconsistent levels of compliance. What we did is we pulled together a template, and this is a bit of an abstract of the template to demonstrate the concerns we have around the running of that business. We put that forward to the county council. In a minute, Roma will talk about the county council process. We put that forward in a template, also with an Equalities Impact Assessment, and within 24 hours, we managed to have the direction order turned around. Some of the learning really was around heads up to the county council beforehand. We keep putting them in on a Thursday afternoon wanting them for Friday morning, and liaising with the police, because they were also consulted. In terms of our aspect around the proportionate and necessary test, from our point of view, we weren't confident we were going to get any level of compliance, With other aspects that we considered, there's a licensing review. Again, it would have taken far too long. It wouldn’t have resolved the imminent issues at that time. Because of the inconsistent control measures and the lack of confidence, we went for a direction order.



I know the legislation has changed slightly, but back when we did the order in the beginning of September, there was still quite a lot of guidance, and some of the measures on the direction order here weren't in place, but one of the added benefits we hadn't thought about. Obviously, we're concerned about closing the business and removing that imminent risk, but the direction order, the reopening of the premises has been a really good tool for us. In terms of the pub, it remains closed for 2 weeks while we had ongoing discussions with the DPS regarding safe opening, and we've pinpointed that there were issues on weekends where the DPS wasn't on site, where she had temporary members of staff. They hadn't been trained. They hadn't been briefed. There was often too many people in the premises. Table service hasn't been in place. We put together around about 10 strong conditions around, yes, you can reopen, but to reopen, this is what we require you to be doing. For us, although we addressed the immediate issue, in terms of ongoing compliance and standards in that premises, the direction order given and the conditions for reopen has been really the most beneficial aspect for us, in terms of that long-term compliance. I suppose it's just that element, for people who are thinking about the closure, that obviously resolves that immediate issue, but in terms of, these are some of the conditions that we hadn't even anticipated, and it's been a real benefit for our businesses to reopen, to make absolutely clear, and again, someone not to be standing and table service, some of those have now changed, but at the time, they were still guidance or were required. We also put in some conditions around outdoor spaces and some other aspects as well. What I was going to do is quickly go over to my colleague in the county council. She's going to talk (TC 01:40:00) a little bit about the issue of the notice and what that means for the county council.

 

R:  Thanks, Fiona. Hi everyone. I don't know a great deal about enforcement. I'm a litigation solicitor, and if I take you back to the middle to the end of July, I had a phone call from a fellow solicitor to say, 'Goodness, Roma. Have you seen these #3 Regs? We seem to have been given all these powers, and we better sort out how we're going to use them.' We were thinking at any time one of our district councils would give us a call and say, 'We would like to issue you a direction.' We were very keen working as lawyers, and also with our colleagues in trading standards, to try to set up a process that work for us and also worked for our district council colleagues. The first question we had to answer was, who on earth is going to be giving the directions? The problem with a 2 tier authority is that where it would generally sit, in relation to public protection or environmental health, we don't really have those services. So, we decided as it said coronavirus in the regulations, we would use our Covid-19 director. We have 3 on a rota but we thought any one of the 3, for emergencies. So, we spoke with them, they were happy, we then spoke to our colleagues in democratic services to make sure that that was reflected in our scheme of delegation and we then knew who we'd be going to when we were asked for direction. So, the next question was, 'What information are we going to give them in a report?' Well, clearly, the first thing we're going to have to give is evidence. At this point, I was greatly assisted by a fellow solicitor at Blackburn with Darwin Borough Council who had (inaudible 01.41.44) an evidence template that she shared with me. I went through that. There were some alterations I had to make because there's obviously a lot of information available to Blackburn with Darwin as a unitary authority that we wouldn't have. The first time we used the template we realised we'd forgotten to ask for some things, even simple things like we hadn't thought to ask for contact details for the advance notice. So, we amended it and the second time we gave direction, we amended it again. Since then, that is the template that we continue to use and all of our district colleagues have a copy of that if they need a direction. As well as the evidence, we then discussed whether or not we would always need to consult with the Director of Public Health. We decided that we would. There was (mw 01.42.31) in the conversation before about what constitutes a serious and imminent threat. Our view was the fact they had the regulations demonstrated that there was a fair degree of threat there, but what we were concerned about is, as Fiona said, at the time that the regulations first came in, Lancashire was a very mixed picture in terms of some districts in the east and Preston were already in additional measures towards the beginning of August, whereas other districts had fairly low rates.



We thought if we send these reports to our Covid-19 director and say to him, 'You need to be satisfied these 3 tests are met,' there is a risk that one of these directors will come back and say, 'Well, I'm going to need something from Public Health about the rates and the area and the direction of travel.' So, on every direction we've given, we have managed to consult with our director of Public Health. We also then saw within the regulations we need to consult with the police. We contacted the constabulary in order to get contact details for the various licensing offices. As it is, every district council that's contacted us has included some information from the police. So, we didn't need to do that, we had all the information there, but we do always consult with the police. Then we thought, 'What on earth does an Equality Impact Assessment look like in these situations?' Our Equalities Manager put together a fairly short list of questions about the type of people that would frequent the premises or go to the event, and any protected characteristics. So, as part of the evidence template, our district colleagues will answer those questions and we can then ask our Equalities Manager to do an Equality Impact Assessment. So, as soon as the evidence arrives from the district, we consult with the director of Public Health, we consult with the police, we ask for an Equality Impact Assessment and while all that is in hand, we'll be drafting the direction. There have been some weird and wonderful things that we've come across there. We've had a pub that, at some point during its life, has changed its front door to its back door so the address given on the license was completely different from the address that the Land Registry (mw 01.44.36). We've had to serve on trustees. So, a few little strange things have come up but it's all in a day's work. Once the direction is given, we then start to bow out a bit in legal. So, we will notify the Secretary of State, our neighbouring authorities and our district councils.



We will then also send the direction, obviously, to the district council and we've also prepared a site notice so they can go out and do the personal service and put up the site notice. At that point, we pretty much pass over to our colleagues in Trading Standards who will make sure that the advance notice is done, and then they will continue to liaise with the district council to inform the 7 day reviews as to what's been going on. As we've gone along, we've also learned a couple of things that we like to also keep in the loop. One is that we also let Corporate Comms know. Initially that was only to get the redacted direction on the website, but in fact, quite often our Corporate Comms people have worked with the Corporate Comms in the districts to agree a press release. This one came after we gave a direction preventing an event, and the organisers of the event and the people attending weren't very happy and all went banging down the door of their local county councillor who actually knew nothing about it. So, what we also do then is ask someone in Democratic Services just to let the local county councillor know that a direction that affects a premises or event in their area has been given, and then you've got some advance notice. So, that's a whistle stop tour of how we go from getting the evidence to giving the direction and I'm now going to hand back to Fiona to talk about a scheme they've got running in Lancaster.

 

F:  Thank you very much, Roma. So, I think it's just really useful to say that although at Lancaster we've had 2 direction orders and we've had some compliance issues, we have done over 2,000 visits. We've got officers, like most (mw 01.46.36) now, working 7 days a week up to midnight and obviously now up to 10 o'clock doing visits. Although we are finding issues, we're also finding a significant amount of excellent practice. So, what we recognised, there was a lot of fear in the public especially with Lancashire being under the hotspot, was we devised this 'Covid safe' award. So, it was really just to talk about it in case anyone else is interested. So, it was working with businesses in a proactive way and providing the confidence to the public that businesses have risk assessments in place, have safe measured systems of work and have training in place, and are doing as much as they can do in a really difficult time to keep the public safe. So, it works on a self assessment, which is completed by the business and who provide evidence and we have an officer that will go out and do an assessment and we do visits, etc, and we've got intel (ph 01.47.40). What you'll see in the corner is there is a QR code. I suppose what the unique selling point really is, is on the QR code, at the point of someone being at the business or if you wish to do it online afterwards, it allows for continual feedback. So, it allows members of the public to say were they asked for Track and Trace details, did they feel safe, the questions that we'd expect all to be asking. What that does allow is for real time continual feedback which provides that reassurance. Other than that, predominantly we're getting positive feedback and where we're getting concerns, we then look into that and determine if visits are needed. So, we've piloted it initially and so far 32 businesses have taken it up. Unfortunately, because we're in Tier 3, some of the businesses we've been working with potentially are closed for a short time, but we're really looking at how we can support businesses.



So, recognising, effectively, the carrot and stick approach but really keen that-, how do we continue and help support businesses? So, we've been doing some really detailed work around cleaning schedules and online training, anything that we can do to try and prevent direction orders being served. So, that was just a bit of an update on that, so if I pass back to you, Ellie, then, in case there are any questions?

 

Moderator:  Brilliant, thanks Fiona. There is a question that's just come in the chat. So, from Stuart Taylor regarding the award, 'In the first part of the presentations you mentioned a business that was okay in some parts but fell apart when the DPS was away. Have you had issues with non-compliance in premises where the award was given?'

 

F:  So far we haven't, no, and I suppose, if we had those issues we'll be picking them up through our intel visits. So, the premises that have had awards have been really high consistently compliance, but if there are non-compliance issues, we'll be obviously removing the award and it remains the property of the city council.

 

Moderator:  Brilliant, thanks Fiona. Does (TC 01:50:00) anybody have any questions? Simon, 'How have you re-prioritised business as usual to achieve your operational coverage to tackle night time economy work? Just interested in what you've stopped doing.'

 

F:  Yes, so obviously there's been a significant push in Lancashire around prevention work, so pretty much food safety inspections have stopped. We pick up complaints and looking at some new businesses, and other parts of our services around (mw 01.50.36) protection, we've been pulling back on. We've also been really lucky that we've had staff redeployed from other parts of the council, so to support the Environmental Health Officers, we've got people from the leisure centre coming out with us in the evenings, etc. What we're actually finding now, we're in a stage because it's actually easier to do a visit, because it's less guidance, it's much more clear that we're effectively being (mw 01.51.01) to be the eyes and the ears. So, we've also got police doing some of our visits and soon we're looking at the fire service also picking up some of those visits as well. So, yes, have we notified the Food Standards Agency? Well, kind of, in that way, I think. I think, because the pressure is in Lancashire, we're in a Tier 3 and I think I mentioned our rate's at 350, we've got outbreaks occurring all over the city, it's the same officer group. We've got also Brexit to plan, we have a port in our area, so yes, it's an ongoing challenge. We're looking soon at our recovery in terms of, how do we catch up with a lot of our statutory service work?

 

E:  Does anybody have any questions for Fiona or for any of the other speakers who are still available today? We've got about 20 minutes of the schedule, but equally I know how busy you are, if people don't have questions and would rather have the 20 minutes back in your diaries, I entirely understand that. Mark Beaseley (ph 01.52.14) has just posted a question on FPNs. 'Has a national mechanism been identified to record FPNs that could be easily inputted and searched by local authorities and the police?' My bet would be no, Mark, if I'm honest. I don't know whether anyone knows anything different. I don't know whether anyone would be inputting that through (mw 01.52.38). Certainly the LGAs' experience in that area of setting up the National Register around taxi license refusals and revocations has been-, that's not an entirely straightforward process to implement, but I would be quite surprised if that exists. Taylor has just asked, 'Do any of the speakers have any general comments on Fixed Penalty Notices?' I don't know if Fiona or Paul, whether you'd like to come in on that? Fiona, thanks.

 

F:  Yes, I can quickly say we've had an incident over the weekend where 23 international students have been served a Fixed Penalty Notice for having a house party. That now is presenting challenges for the local policing team, if they all decide not to pay. So, we work with students to understand what are the implications of a Fixed Penalty Notice and how it might impact when they go for future careers. I'm not sure they're quite understanding the severity of that being on a DBS check, and the disciplinary process that that triggers within the University. So, we have had some Fixed Penalty Notices and we'll understand more about them. Trying to work out at the moment, in Lancashire definitely, around who leads on which Fixed Penalty Notices. Is it ourselves as the district councils or is it the police?

 

Moderator:  Thanks Fiona, that sounds interesting. I don't know if any of the other speakers are still able to come in there?

 

F:  Yes, Ellie, I'll come in here. (Inaudible 01.54.26). I think they have their place but I think particularly with businesses, they don't necessarily achieve compliance. I would much rather have powers to enable us to take more effective action with business premises. I feel the way that we've got the tiered Fixed Penalty Notices at the moment, where it's a first offence, a second offence, a third-, you think, 'It's almost built to expect somebody not to comply, with the fact that we're upping the Fixed Penalty Notice each time they do something wrong.' I really think we should be looking at stronger sanctions rather than a Fixed Penalty Notice. Particularly with businesses, I think the most effective sanction is being able to stop them from carrying on their business. I saw in the chat earlier about the scale of FPNs. I think we've got better FPNs now in terms of the amount, but I do agree that FPNs for businesses definitely need to have a deterrent effect. Otherwise they'll just be built into your business expenses, really. So, as I said, not a huge fan but where you have got to use them, they've got to be an effective deterrent.

 

Moderator:  Thanks Fiona. I suppose, just to say again, we are making the case. As the LGA, we'd support Fiona and others. It's that councils need to have powers to issue improvement notices and closures is actually something that our Chairman has taken up and is engaging with the Secretary of State for Health about quite a lot, so certainly helpful that it's had that political engagement and that's come through from high levels of Manchester Council as well, so that's useful. Just in response to a question in the chat, Philip Kelly, 'Would the councils that have been speaking today be willing to share some of the documents that they referred to?' Yes, I think we've got a sense that they will. We will collect those and we will also share those via email and also on the Knowledge Hub. Conrad Mien (ph 01.56.41), 'The list of restrictions, requirements and the direction for the new in is quite extensive. How did you reconcile this with the narrow scope of regulation for one?' I think that's you, Fiona Inston (ph 01.56.55).

 

R:  It might be me, Fiona, this one. With difficulty, to be honest, we've found that limiting it to the number of people in the premises, why they're there, where they're there, made it a bit difficult but there were certain things that we just wanted to get in. We just tried to get some clever drafting really, in terms of, 'Everyone here will be behind a screen.' Also, I think there was one that we wanted that everyone would be told what the Covid-secure arrangements were when they went. They had to be held at the door, basically, and not allowed to go in until they were told the Covid measures. We spoke to council after we'd done it, just in case by getting it wrong it damaged the whole direction, and council was happy with what we did but we've given new directions with conditions on. We have to be a little bit constructive in how we phrase them to try and bring it within that very narrow band that you're supposed to be putting direct conditions in.

 

Moderator:  Brilliant, thank you Roma. Does anybody have any other questions? I can't see any hands and I think we've covered everything in the chat. So, all that leaves me to say is thank you very, very much to our speakers and thank you to everyone for participating. I think we've had some really, really useful comments in the chat as well. We will make sure we follow this up with the documents that have been referenced. Please do let us know if it would be useful to run another one of these. We've got another session pencilled in in about 3 weeks' time, so if that would be useful please let us know what you would like us to cover, otherwise thank you very much for your time and we will keep in touch. Thank you.