Use of Enforcement Powers

OFFICE OF THE COMPTROLLER AND AUDITOR GENERAL

USE OF ENFORCEMENT POWERS 20 APRIL 2020

R.40/2020

Contents

Summary .................................................................................................................... 1 Introduction ............................................................................................................. 1 Key findings ............................................................................................................ 3 Conclusions ............................................................................................................ 4 Objectives and scope of the review ............................................................................ 5 Detailed findings ......................................................................................................... 6 Engagement with citizens ....................................................................................... 6 Monitoring compliance and deciding on enforcement action .................................. 9 Documented procedures ..................................................................................... 9 Staff training ...................................................................................................... 10 Arrangements for managing conflicts of interest ............................................... 11 Framework for and documentation of decisions ................................................ 12 Managing and monitoring performance ............................................................. 13

Administrative arrangements for challenge of the proposed or actual use of enforcement powers ............................................................................................. 19

Appendix One .......................................................................................................... 21 Audit Approach.................................................................................................. 21 Appendix 2 ............................................................................................................... 23

Summary of recommendations ......................................................................... 23

Summary

Introduction

1. The Government of Jersey operates a number of regulatory functions, predominantly within the Growth, Housing and Environment Department. The applicable legislation gives certain powers to the Government of Jersey to enforce compliance with decisions, legislation and regulation.
2. Regulatory functions are an important area of interaction between the Government of Jersey and citizens. Decisions and the enforcement of decisions can have a significant impact on individuals.
3. Enforcement powers are a necessary component of regulation. However:

• enforcement action is a last resort: it is resource intensive and inherently adversarial. Effective information, engagement and advice are important elements of minimising the need to take enforcement action; and
• public confidence is secured only where enforcement powers are exercised (and seen to be exercised) proportionately, consistently and fairly.

4. There is a wide range of regulatory activities in respect of which enforcement powers may be used. My work however has focussed on the following areas that fall within two different directorates within the Growth, Housing and Environment Department (See Exhibit 1).

Exhibit 1: Regulatory activities considered in this review

5. There has been public criticism of the way in which the Government has used its enforcement powers in relation to planning, including:

• a Complaints Board decision in 2018 that focussed on the action and an alleged conflict of interest of officers working to enforce a planning decision; and
• a Complaints Board decision in 2019 that found, among other things, that there were inadequate arrangements to ensure compliance with planning conditions.

6. In 2018 and 2019 my Office also received correspondence which raised concerns in relation to planning enforcement.
7. Within the former Department of the Environment there was a wide ranging internal review of the use of enforcement powers in relation to planning and building control in 2014 that made recommendations regarding:

• policy and process;
• systems and administration;
• records management;
• enforcement culture and officer behaviour;
• consistency between planning and building control enforcement and other enforcement action;

• management, location and officer support; and
• performance management and reporting.

Key findings

8. The key findings from my review are as follows:

• there is significant information available to citizens about regulatory activities. However, there are some gaps (in relation to enforcement processes) and weaknesses (in relation to overly technical communication). If these gaps were addressed it could help to reduce the incidence of non-compliance with regulatory requirements and therefore the need for enforcement action;
• there is a limited focus on monitoring the effectiveness of communication with citizens about regulatory activities;
• although there have been some initiatives to improve engagement with citizens about regulatory activities, these have not been underpinned by clarity about the desired outcomes;
• in some cases there are no developed arrangements for training of staff involved in enforcement activities;
• for most services reviewed, there are no structured arrangements for identifying and documenting conflicts of interest nor how they should be managed in practice;
• policies on the use of enforcement powers are often informal and are not publicised;
• there is a variety of practice in internal monitoring of compliance with documented enforcement processes;
• there is limited use of Key Performance Indicators for enforcement activities. For planning there is substantial underperformance against target;
• the poor performance in enforcement in planning and building control and a limited focus on improvement may be linked to these functions operating below establishment for an extended period; and

• although some of the enforcement activities reviewed sit within one department, taking the valuable opportunities to work together to secure improvement have been limited. Whilst there has been some training on enforcement across regulatory activities, there is little focus on learning between regulatory activities.

Conclusions

9. There needs to be a stronger and consistent focus on engaging with individuals and organisations about the nature of regulatory activities and the enforcement powers available to the Government of Jersey. Enhancing communication and engagement should reduce the subsequent need to use enforcement powers.
10. Some enforcement activities have well documented procedures supported by adequate training of the staff involved and good systems for documenting and reviewing decisions. This is not however consistent across all areas. The Government of Jersey should focuson ensuring that good practice is shared and operated across all enforcement activities.
11. In order to demonstrate the objectivity of enforcement decisions there need to be more explicit processes to manage conflicts of interest and clear published policies for the exercise of discretion.
12. There has been an inadequate focus on monitoring performance on or implementing structured improvement in enforcement activities. In the case of planning and building control, performance on enforcement has been poor. At the same time, there has been no structured approach to the implementation of previous recommendations relating to enforcement in planning and building control and performance has deteriorated further. Implementing the Target Operating Model may ensure that the team is adequately resourced to improve performance in the short-term and implement longer-term improvement initiatives.

Objectives and scope of the review

13. The review has evaluated:

• the effectiveness of design and operation of arrangements for engagement with citizens through provision of information and advice that might minimise the need for enforcement action;
• the design and operation of the existing arrangements for monitoring compliance and determining whether and what enforcement action is taken, including:

• documentation of procedures;
• training and supervision of staff;
• management of conflicts of interest;
• a clear framework for and good documentation of decisions on enforcement; and
• effective arrangements for monitoring and managing performance; and

• the design and operation of the existing administrative arrangements for challenge of the proposed or actual use of enforcement powers.  

14. In undertaking the work I have considered:

• the extent to which the recommendations of the 2014 internal review by the former Department of the Environment have been implemented; and
• the extent to which there is scope for learning between enforcement activities across the Government of Jersey.

Detailed findings

Engagement with citizens

15. Early, effective engagement with citizens reduces the risk of subsequent enforcement activity. My work focussed on:

• the nature, scope and accessibility of website and written information available to citizens; and
• the nature, scope and accessibility of face to face, telephone and email advice offered to citizens relating to the activities reviewed.

16. Generally the information available to Individuals and organisations is wide ranging and accessible (see Exhibit 2). However, I identified scope for improvement in communicating about enforcement regimes and in communicating consistently in an accessible way.

Exhibit 2: Communication with individuals and organisations

17. Website and written communication is supported by a range of direct proactive and reactive contact with citizens including:
    1. free and confidential advice to customers on trading standards;
    2. regular round table meetings on environmental protection with key players in the farming industry; and
    3. training for contractors on the new highways legislation.

19. The best performing organisations:
    1. seek and respond to customer feedback about the effectiveness of their communication; and
    2. set and monitor performance against standards for their responsiveness to customer enquiries.

19. Such practices have not consistently been adopted in Jersey. There have, however, been some individual initiatives, such as:

• customer satisfaction measurement for trading standards;

• adoption of target response times for responses in trading standards and environmental health. These services both set three day response targets and achieved these in 99% of cases in 2019; and
• mystery shopper' exercises for car parking in 2013 that are due to be reintroduced in 2020.

20. In some of the services reviewed there is evidence of a commitment to continuous improvement in engaging with citizens. For example:

• working with businesses to achieve persuasive compliance' in trading standards;
• development of customer focused monthly Key Performance Indicators (KPIs) by environmental health and trading standards;
• a move to preventative work through a series of campaigns in environmental protection; and
• commissioning and responding to the findings of external reviews of car parking.

21. However, there is no consistent approach to securing continuous improvement across enforcement activities. Where there have been improvement initiatives, the desired outcomes have not explicitly been set out and used to evaluate the success of those initiatives.

Recommendations

R1 Review the content of the Government of Jersey website and written

communications across regulatory functions to ensure that on a consistent basis:

• sufficient information is provided about enforcement regimes; and
• communication is in accessible and non-technical language where possible.

R2 Across all regulatory functions:

• establish mechanisms for capturing feedback from service users;
• set targets for responding to enquiries; and

• monitor and manage performance against those targets.

R3 Across all regulatory functions:

• set clear desired outcomes for engagement with individuals and organisations; and
• monitor and manage the success of improvement initiatives against those desired outcomes.

Monitoring compliance and deciding on enforcement action

22. Monitoring and securing compliance with regulatory provisions, including making decisions on what enforcement action to take and when, requires:

• well documented procedures;
• effective training of staff;
• effective arrangements for managing conflicts of interest;
• a clear framework for and good documentation of decisions on enforcement; and
• effective arrangements for monitoring and managing performance.

Documented procedures

23. For some of the services reviewed, procedures are well documented and are communicated effectively. For example:
    1. a relevant UK manual is used for trading standards and environmental health, supplemented by internal guidance and standard forms; and
    2. there is a detailed procedures manual for Parking Control Officers.

25. However, the picture is not consistent:
    1. procedures for planning and building control are not comprehensively documented. Much of the documentation focusses on how to record action rather than what action to take and in what circumstances. Although a matrix is used within building control to help officers in exercising their discretion on a consistent basis, there is no corresponding document for planning;

• no action was taken on a recommendation from the 2014 internal review that supplementary procedures and forms for planning and building control were consolidated into a single, accessible document; and
• the strategy for highways/ events sets out a staged move towards more formal enforcement activity following the coming into force of new legislation. Detailed documented procedures for officers to follow in implementing the statutory framework will need to be developed.

Recommendations

R4  Prepare comprehensive documented procedures for officers responsible for

decisions on enforcement action for:

• planning;
• building control; and
• highways/events.

R5 Ensure that for all regulatory activities, documented procedures are kept up to

date to reflect changes in legislation and policy.

Staff training

25. Effective implementation of arrangements for enforcement action requires not only clear, accessible documented procedures but also appropriately trained staff. Appropriate training promotes consistency of approach and awareness of relevant changes in procedures and practice.
26. Relevant training has been provided in some cases. For example:

• training on the UK online manual used for trading standards and environmental health has been provided by an external training provider;
• environmental protection staff are being supported by a training initiative from colleagues working in trading standards and environmental health;
• there is structured introductory and refresher training for Parking Control Officers. An external review in 2018 concluded that this training met expectations; and

• in planning and building control, there has been some shared training with Guernsey, for example on interviews under caution.

27. However, there is not a consistent approach to ensuring that relevant training is provided on an appropriate basis. This is particularly important where new staff are engaged.

Recommendation

R6  Across all regulatory functions, ensure that relevant and appropriate training

programmes are in place to ensure that staff making enforcement decisions have a clear and up to date understanding of legislation, policies and procedures relevant to the use of enforcement powers.

Arrangements for managing conflicts of interest

28. It is essential that the exercise of enforcement powers is perceived as fair. That includes ensuring that those making decisions do not have any conflicts of interest.
29. There are structured arrangements and forms for recording and documenting the consideration of conflicts of interest for environmental health and trading standards. Although there is evidence of awareness of the importance of avoiding conflicts of interest and examples of the management of conflicts of interest, there are no equivalent structured arrangements for planning, building control, environmental protection, highways/events and car parking.

Recommendation

R7 For planning, building control, environmental protection, highways/events and

car parking, introduce structured arrangements to:

• identify conflicts of interest;
• agree how such conflicts will be managed; and
• record conflicts of interest and how they are being managed.

Framework for and documentation of decisions

30. Where there is discretion about taking enforcement action, it is important that there is an objective, recorded and defensible decision making process. Different arrangements are in place across different services. For example:

• the Deputy Chief Trading Standards Officer reviews case files and provides feedback to individual members of staff; and
• for environmental protection, there is a quarterly meeting of three officers that reviews cases, including deciding whether more robust enforcement action should be taken.

31. However:

• there is inconsistent practice in the adoption of clear public statements on the policies driving enforcement action, including prosecution. Environmental protection has a published enforcement and prosecution policy. Highways/events published a draft strategy for enforcement in October 2019. However, other services have no corresponding public statements and there appear to be differences in the appetite for enforcement activity, including prosecution, across activities. That appetite can vary for good reasons and over time. For example:

• Trading standards has embraced a policy of persuasive engagement', for example working to educate a major retailer that had a lack of awareness of Jersey Law, rather than prosecute them; and
• Environmental protection has responded to an increase in fly tipping by increasing the use of prosecution: the number of prosecutions rose from none in 2016 to seven in 2018.

Transparency of decision making would however be promoted if the policy framework was, in all cases, publicly available;

• officers believe that the systems for planning and building control are cumbersome. This reduces the ability to review decision making and increases the risk that action taken is not adequately recorded;
• a review of case files undertaken with officers identified weaknesses in record keeping including in relation to planning cases subject to enforcement action. Such weaknesses increase the prospects of successful challenges to decisions; and

• for all the services reviewed, there are no formal processes for capturing the wider learning for review activities, sharing it with relevant staff and influencing procedures and training.

Recommendations

R8 For planning, building control, trading standards, environmental health and car

parking, adopt and publicise clear policies on the circumstances in which enforcement action will be taken.

R9 For all services reviewed, monitor compliance with documented standards

consistently and take remedial action where appropriate.

R10 For all services reviewed, establish effective mechanisms to capture,

disseminate and act on wider learning arising from review activities.

Managing and monitoring performance

32. Key Performance Indicators (KPIs) – quantitative measures to assess service performance – are an important tool of management, including in respect of compliance with established arrangements for enforcement activities.
33. Environmental health and trading standards have a range of KPIs. These are brought together in a monthly dashboard and used to drive continuous service improvement. Whilst these are focused mainly on customer service measures, they do include KPIs for the limited enforcement activity that does take place. For the other regulatory activities reviewed, there is limited use of such KPIs. Where they have been adopted they are not being used as effectively as possible:

• for planning and building control enforcement, a target time for inspection had been set. Performance deteriorated from 100% inspected in target time in 2017 to 30% in 2019 (see Exhibit 3). However, even this measure must be treated with caution as the date of inspection was only recorded in 14% of cases in 2018 and 40% of cases in 2019; and
• for car parking, the Parking Services Manager has access to a range of KPIs to assess performance but these are not brought together in a single management pack.

Exhibit 3: Planning enforcement: compliance with targets

120% 100% 80% 60% 40% 20% 0%

2017 2018 2019 Source: Annual departmental review of business plan targets 2017 - 2019

34. The internal review of the use of enforcement powers in planning and building control undertaken in 2014 identified significant scope for improvement. In response, some work was undertaken on new procedures. However, I believe that an opportunity was missed:

• action in response to the internal review was partial and a number of recommendations were not implemented or only partially implemented (see Exhibit 4); and
• the quantifiable evidence is of a deterioration in performance.

Exhibit 4: Planning and building control: implementation of the recommendations of the internal review undertaken in 2014

35. I am concerned about the lack of focus on improvement in the performance of the enforcement function for planning and building control. The team has been below establishment since September 2019 and this may have impeded its ability to target and to implement the improvements previously identified as required. I understand that the Target Operating Model envisages a strengthening of the team alongside widening its remit to include trees and wildlife enforcement.
36. I have considered the enforcement caseload for planning and building control. The enforcement workload per officer has increased as a result of staff vacancies. However, the overall volume of complaints being handled has fallen over the last three years (see Exhibit 5).

Exhibit 5: Enforcement workload for planning and building control

350 300 250

200 150 100

Number of complaints

50 0

2017 2018 2019 Source: Annual departmental review of business plan targets 2017 - 2019

37. There is no established benchmark for the caseload for planning and building control. However, the Planning Advisory Services has quoted benchmarks of 150 cases per officer for planning and building control (or 100 cases per officer if management and support staff are included). Applying these benchmarks, caseloads per officer for both planning and building control are below benchmark (see Exhibit 6).

Exhibit 6: Caseload for planning and building control

160 140 120 100 80 60

Cases per officer

40 20 0

Benchmark Planning Building control Excluding management and support Including management and support

Source: Average planning and building control applications per annum based on departmental records plus staff in post mid 2019

38. In other regulatory activities reviewed, there is some evidence of embracing a culture of continuous improvement, including looking outwards. For example:

• in trading standards and environmental health there have been a range of improvement initiatives, including a joint enforcement policy, duty rotas and the introduction of the UK manual referred to above; and
• general enforcement training from an outsourced provider, originally provided to trading standards, has been extended to other services, including planning, building control, environmental protection and fisheries as well as to counterparts in Guernsey.

39. However, learning across enforcement functions is limited, with teams more likely to look to the UK than sharing experiences with colleagues in other teams within the Government of Jersey.

Recommendations

R11  For environmental protection, car parking and highways/events:

• identify appropriate KPIs for enforcement where not currently prepared; and

• ensure effective compilation and dissemination of the KPIs adopted.

R12  Review the resources devoted to the enforcement function for planning and

building control in the context of its current performance and capacity to focus on improvement.

R13  Develop forums to share experience and promote effective co-operation

between and learning from teams within the Government of Jersey engaged in enforcement functions.

Administrative arrangements for challenge of the proposed or actual use of enforcement powers

40. The use of enforcement powers is often controversial and emotive. Having effective mechanisms for dealing with challenge to the proposed or actual use of enforcement powers is a key means by which the Government can demonstrate that it is dealing with citizens fairly.
41. The relevant sections of the Government of Jersey website provide information on the statutory appeal mechanisms that are available. Officers recognise that members of the public may also use the States' complaints processes. I am currently undertaking a wider review of the complaints process and intend to report shortly.
42. For many services there are few, if any, appeals against or complaints about enforcement action. However:

• there was a successful appeal against planning enforcement in 2019 and three other appeals are awaiting determination; and
• complaints about planning enforcement action have been upheld by a States' Complaints Board.

43. The volume of appeals in relation to car parking are inevitably higher than for other services. As a result, there are established arrangements for considering them, including:

• a formal policy on cancelling excess charge notices, introduced following a 2018 external review; and
• a target time for responding to appeals received.

44. An on-line appeals system for excess charge notices is under development. Alongside this, work is in hand to develop public guidance, including on the cancellation of excess charge notices.

Recommendation

R14  Evaluate the impact of the implementation of the proposed on-line appeals

system for excess charge notices and the publication of the associated guidance.

Appendix One

Audit Approach

The review included the following key elements:

• review of relevant documentation provided by the Government; and
• interviews with key officers within the Government.

The documentation reviewed included:

• the Government of Jersey website;
• written guidance to the public;
• relevant Business Plans;
• documents recording internal procedures; and
• management information about compliance and enforcement action.

The following officers were interviewed:

• Group Director, Regulation;
• Group Director, Operations and Transport;
• Director, Building Control;
• Director, Development Control;
• Director, Environmental Protection;
• Director, Parking;
• Acting Director, Environmental Health and Trading Standards;
• Head of Driver and Vehicle Standards and Inspector of Motor Traffic;
• Senior Engineer, Transport Planning;
• Parking Control Manager;

• Compliance Manager, Planning and Building Control;
• Two Compliance Officers, Planning and Building Control;
• Principal Planner Business Transformation; and
• Legal Advisor.

I would like to thank all officers who have contributed to this report.

The review was carried out by affiliates working for the Comptroller and Auditor General.

Appendix 2

Summary of recommendations

 R1 Review the content of the Government of Jersey website and written

communications across regulatory functions to ensure that on a consistent basis:

• sufficient information is provided about enforcement regimes; and
• communication is in accessible and non-technical language where possible.

R2 Across all regulatory functions:

• establish mechanisms for capturing feedback from service users;
• set targets for responding to enquiries; and
• monitor and manage performance against those targets.

R3 Across all regulatory functions:

• set clear desired outcomes for engagement with citizens; and
• monitor and manage the success of improvement initiatives against those desired outcomes.

R4  Prepare comprehensive documented procedures for officers responsible for

decisions on enforcement action for:

• planning;
• building control; and
• highways/events.

R5 Ensure that for all regulatory activities, documented procedures are kept up to

date to reflect changes in legislation and policy.

R6  Across all regulatory functions, ensure that relevant and appropriate training

programmes are in place to ensure that staff making enforcement decisions have a clear and up to date understanding of legislation, policies and procedures relevant to the use of enforcement powers.

R7 For planning, building control, environmental health, environmental protection, highways/events and car parking, introduce structured arrangements to:

• identify conflicts of interest;
• agree how such conflicts will be managed; and
• record conflicts of interest and how they are being managed.

R8 For planning, building control, trading standards, environmental health and car

parking, adopt and publicise clear policies on the circumstances in which enforcement action will be taken.

R9 For all services reviewed, monitor compliance with documented standards

consistently and take remedial action where appropriate.

R10 For all services reviewed, establish effective mechanisms to capture,

disseminate and act on wider learning arising from review activities.

R11  For environmental protection, car parking and highways/events:

• identify appropriate KPIs for enforcement where not currently prepared; and
• ensure effective compilation and dissemination of the KPIs adopted.

R12  Review the resources devoted to the enforcement function for planning and

building control in the context of its current performance and capacity to focus on improvement.

R13  Develop forums to share experience and promote effective co-operation

between and learning from between teams within the Government of Jersey engaged in enforcement functions.

R14  Evaluate the impact of the implementation of the proposed on-line appeals

system for excess charge notices and the publication of the associated guidance.

LYNN PAMMENT

COMPTROLLER and AUDITOR GENERAL

JERSEY AUDIT OFFICE, DE CARTERET HOUSE, 7 CASTLE STREET, ST HELIER, JERSEY JE2 3BT T: 00 44 1534 716800 E: enquiries@jerseyauditoffice.je W: www.jerseyauditoffice.je