1. Before serving a notice you should be of the considered opinion, based on reasonable grounds, that the chosen form of notice (improvement or prohibition) is justified. You should also:
- ensure that before issuing a notice you have gathered any evidence which may not be available after issuing it, ie when people may not wish to cooperate with you. You may wish to take photographs of site conditions and possibly statements;
- decide whether the information available is strong enough to support the notice if the duty holder appeals.
2. You must consider whether a notice will survive an appeal. Normally it will be sufficient if:
- you have complied with the requirements for that type of notice, as set out in the Act;
- you have acted reasonably in serving the notice;
- the wording of the notice is sufficiently clear. Any breach of the law, remedial action, and date for compliance, should be clear from the words of the notice;
- the notice is properly served.
3. Tribunals will usually find that you have acted reasonably in serving the notice if:
- you have ensured that you have enough information, at the time of service, to form the opinion required;
- you have had regard to the relevant HSE policies, have followed any Directorate procedures and guidance, and your decision is consistent with the Enforcement Policy Statement.
4. The suggested methods for compliance contained in the notice schedule should be unambiguous but still allow that there may be other methods of compliance. The dutyholder should be able to tell when they have achieved the standard required for compliance rather than the emphasis being placed on the HSE inspector to approve the steps taken.
Certainly, I'll provide a comprehensive breakdown of the concepts mentioned in the article. My expertise in this domain stems from an understanding of regulatory compliance, administrative law, and the principles governing enforcement actions.
1. Basis for Serving a Notice:
Justification:
Before serving any notice, it's imperative to have a well-substantiated belief, supported by evidence, that the action is justified. This ensures that enforcement actions are not arbitrary but are rooted in tangible reasons, often pertaining to public safety, environmental concerns, or other regulatory imperatives.
Gathering Evidence:
Prior to issuing a notice, one should collate all pertinent evidence. This proactive approach safeguards against potential challenges or refusals to cooperate post-notice issuance. Documentation such as photographs, statements, and site conditions serve as crucial evidentiary elements that can validate the necessity of the notice.
Strength for Potential Appeals:
It's pivotal to assess whether the evidence collected is robust enough to withstand scrutiny during an appeal by the duty holder. This means ensuring that the facts, data, and conditions cited in the notice are credible, well-documented, and in alignment with the regulatory standards.
2. Considerations for Notice Survivability:
Compliance with Legal Requirements:
For a notice to remain valid, it must adhere to the specific legal stipulations outlined in the governing Act. This entails following prescribed procedures, ensuring that the notice's content aligns with legal standards, and clearly specifying any breaches, remedial actions, and compliance timelines.
Reasonableness:
The act of serving a notice should reflect reasonableness in its intent, execution, and implications. Demonstrating reasonableness means that enforcement actions are proportionate, justified, and not unduly burdensome on the duty holder.
Clarity of Wording:
The wording of the notice is paramount. It should be lucid, unambiguous, and devoid of any ambiguity. This clarity ensures that duty holders understand their obligations, facilitating compliance and reducing potential disputes.
Proper Service:
Ensuring that the notice is served correctly is essential. This includes adhering to procedural requirements, ensuring timely delivery, and confirming receipt by the intended recipient.
3. Reasonableness in Serving Notice:
Information Sufficiency:
At the time of serving the notice, possessing adequate information to form a justified opinion is crucial. This emphasizes the importance of thoroughness, diligence, and evidence-based decision-making.
Adherence to HSE Policies:
Compliance with relevant Health and Safety Executive (HSE) policies, Directorate procedures, and guidance is essential. Aligning actions with the Enforcement Policy Statement ensures consistency, fairness, and adherence to overarching regulatory frameworks.
4. Methods for Compliance:
Clarity and Ambiguity:
The notice should outline methods for compliance in a clear, unambiguous manner. While specificity is essential, there should be flexibility to accommodate alternative compliance methods, provided they meet the stipulated standards.
Emphasis on Duty Holder:
Rather than placing undue onus on the HSE inspector to approve every step, the emphasis should be on enabling duty holders to ascertain compliance independently. This approach fosters responsibility, autonomy, and proactive adherence to regulatory standards.
In summary, serving notices involves a meticulous, evidence-based approach rooted in legality, reasonableness, clarity, and adherence to established policies and procedures.
