Guidance

Alternative fuels infrastructure regulations and public charge point regulations

Updated 22 April 2024

Guidance on enforcement actions and associated rights

Alternative Fuels Infrastructure Regulations 2017

Public Charge Point Regulations 2023

April 2024

OPSS enforces the above Regulations. This guidance, which sits alongside our Enforcement Policy, explains the enforcement powers that are available to OPSS when addressing non-compliance with the Regulations.

Information and guidance are also available on the requirements of the Regulations and complying with these.

Read about the Alternative Fuels Infrastructure Regulations.

Read about the Public Charge Point Regulations.

1) Introduction

1.1 The Office for Product Safety and Standards (OPSS) is part of the Department for Business and Trade and enforces a range of regulations on behalf of the Secretary of State. Our primary purpose is to protect people and places from product-related harm, ensuring consumers and businesses can buy and sell products with confidence.

Read about our approach to delivering regulation.

1.2 The regulations enforced by OPSS include the following ^{[footnote 1]}:

• the Alternative Fuels Infrastructure Regulations 2017 (‘the 2017 Regulations’)
• the Public Charge Point Regulations 2023 (‘the 2023 Regulations’)

References in this guidance to ‘OPSS’ refer to OPSS acting as the Secretary of State for the purpose of these regulations.

1.3 This enforcement guidance should be read alongside our Enforcement Policy. Our Enforcement Policy explains our approach to addressing non-compliance, providing a framework for our decision-making and helping those affected by our enforcement activities to understand how and why decisions are made, while this guidance explains the specific powers that are available to OPSS when addressing non-compliance under the 2017 and 2023 Regulations.

1.4 The guidance explains the following actions that are available to OPSS:

a) acceptance of an Enforcement Undertaking that is given to OPSS by a business, committing to taking actions in relation to non-compliance in respect of the 2023 Regulations (see section 2)

b) service of a Compliance Notice on a business by OPSS, requiring action to be taken and, in certain circumstances, prohibiting activity until that action is taken (see section 3)

c) imposition of a Civil Penalty Notice on a business by OPSS, requiring payment of a financial penalty (see section 4)

1.5 This guidance also explains the statutory rights that are set out in the 2017 and 2023 Regulations to object to or appeal enforcement action that we have taken.

1.6 Where you do not have statutory rights to object or appeal, you are still entitled to challenge any action that we are taking against you or your business. These rights to challenge are explained in our Challenges and Appeals Guidance.

Read our Challenges and Appeals Guidance.

1.7 If you have a concern about our approach, or the behaviour of our staff, please send us your comments or complaint. Our complaints processes are explained in our Complaints Procedure.

Read our Complaints Procedure.

2) Enforcement Undertakings

2.1 An Enforcement Undertaking is a written agreement through which a business that has failed to meet obligations under the 2023 Regulations commits to undertake specific actions within a specified timeframe and these commitments are accepted by OPSS. An Enforcement Undertaking may be accepted where OPSS has reasonable grounds to suspect that the person offering the Enforcement Undertaking has breached its obligations under the 2023 Regulations. Enforcement Undertakings are not available in relation to any failure to comply with requirements of the 2017 Regulations.

2.2 The actions that are specified in the Enforcement Undertaking must be:

a) actions to ensure that the breach does not continue or recur

b) actions to ensure that the position is, so far as possible, restored to what it would have been if the breach had not taken place, or

c) actions (including the payment of a sum of money) to benefit any person affected by the breach

2.3 Where OPSS accepts an Enforcement Undertaking and all of the actions specified in the Enforcement Undertaking are completed within the specified timeframe(s), no further enforcement action will be taken in respect of the breach(es) to which the Enforcement Undertaking relates.

2.4 OPSS will take any failure to complete the specified actions in an Enforcement Undertaking satisfactorily within the specified timeframe seriously and will consider further enforcement action, which may involve serving a Compliance Notice (see section 3) and/ or imposing a Civil Penalty (see section 4).

2.5 A person who has given inaccurate, misleading, or incomplete information in relation to an Enforcement Undertaking, is considered not to have complied with it.

2.6 OPSS publishes details of any Enforcement Undertaking that we accept, in line with our Enforcement Policy.

View Enforcement Undertakings accepted by OPSS.

The published details are updated to indicate where OPSS has subsequently determined that the requirements of the undertaking have been met and has issued a Completion Certificate (see section 2.16).

Giving an Enforcement Undertaking

2.7 An Enforcement Undertaking may be given to OPSS by a business that brings the relevant non-compliance to our attention, as well as in circumstances where non-compliance has already come to our attention or that of another regulator. In either case, the Enforcement Undertaking will be assessed by OPSS on a case-by-case basis and the decision as to whether to accept the Enforcement Undertaking rests with us.

2.8 We aim to acknowledge receipt of an Enforcement Undertaking within five working days. Please note that expert, technical and/or legal consultation may be required to assess the Enforcement Undertaking and provide a substantive response. While there is no prescribed time frame within which we are required to respond to an Enforcement Undertaking, we will aim to do so within 28 days of receiving the Enforcement Undertaking.

2.9 An Enforcement Undertaking should be sent to OPSS using the following contact details: PCPR@businessandtrade.gov.uk.

2.10 The Enforcement Undertaking must include:

• a statement to the effect that it is given in accordance with the relevant provisions in the 2023 Regulations ^{[footnote 2]}
• the specific actions that are proposed, which must be actions of the type described in section 2.2
• the timeframe within which each action will be completed
• information as to how and when the person giving the undertaking will be considered to have discharged it

2.11 In order for OPSS to make an informed decision on an Enforcement Undertaking, it is important that we are provided with key information about the breach(es) when the Enforcement Undertaking is given, including:

• full details of the breach(es) which have taken place, including relevant dates
• an assessment of the impact of the breach(es)
• any identified failures which have contributed to the breach(es) occurring
• any actions already taken to stop the breach(es) from continuing, and, where applicable, prevent the breach(es) from recurring
• details of any action already taken towards the restoration of the position to what it would have been had the breach(es) not taken place, as well as any actions taken to benefit third parties who may have been affected

2.12 Where an Enforcement Undertaking proposes a donation or the carrying out of works for a third party, it should be communicated to the recipients of the donation or works that the donation or carrying out of works is part of an Enforcement Undertaking which has been given to OPSS in relation to a breach of the 2023 Regulations.

a) Enforcement Undertakings must clearly state that the payment is an unrestricted donation from which the donor derives no benefit.

b) Donations cannot be made to an organisation with whom the donor has a personal or family relationship, or with the trustees or management of that organisation.

2.13 OPSS is more likely to consider it appropriate to accept an Enforcement Undertaking where we are satisfied that the acceptance of the undertaking is a proportionate response to the breach(es), taking account of the nature, seriousness, and circumstances of the breach(es). In making our decision, we will have regard to relevant factors, including the following:

a) whether the Enforcement Undertaking includes sufficient detail – in relation to both the breach(es) and any specified action(s) – to enable us to make an informed decision

b) whether the time period specified in the Enforcement Undertaking is achievable and appropriate, having regard to the nature, seriousness, and circumstances of the breach(es)

c) whether the Enforcement Undertaking has been given as an early and proactive response to non-compliance that has been identified whether by the person giving the undertaking or by another

d) whether there is evidence of a positive commitment to the actions specified in the Enforcement Undertaking and whether this commitment is evident at an appropriate level of the business

e) whether there is evidence of a commitment to transparency to those who may be materially impacted by the non-compliance, where applicable

f) whether we are satisfied, taking account of information provided in the Enforcement Undertaking and from any other source, that the person giving the undertaking is in a position to complete the specified action(s)

g) whether we are satisfied, taking account of information provided in the Enforcement Undertaking and from any other source, that we will be able to ascertain how and when the person giving the undertaking has completed the specified action(s)

h) whether any actions that are specified in the Enforcement Undertaking in order to address continuing non-compliance appear adequate to secure that the non-compliance does not continue

i) whether any actions that are specified in the Enforcement Undertaking in order to prevent future non-compliance appear adequate to secure that the breach does not recur

j) whether any actions that are specified in the Enforcement Undertaking in order to restore the position to what it would have been if the breach had not taken place appear adequate to restore the position in so far as it is possible to do so

k) whether any actions that are specified in the Enforcement Undertaking to benefit any person affected by the breach(es) (including the payment of a sum of money) appear proportionate to the impact of the breach(es)

2.14 OPSS is unlikely to consider it appropriate to accept an Enforcement Undertaking:

a) in respect of an obligation which it considers can be quickly and easily met

b) when there is insufficient detail as to how and/ or when non-compliance will be resolved

c) if the level of non-compliance is not fully acknowledged by the business

d) in respect of a breach in relation to which we have already given notice of our intention to serve a Compliance Notice (see section 3) or impose a Civil Penalty (see section 4)

e) in respect of conduct in relation to which we are aware that another regulator has relevant concerns

f) in respect of a breach that involved intent or the falsification of information or documentation

g) that includes a clause denying liability

h) that sets up defences for possible non-compliance with the Enforcement Undertaking

i) that purports to restrict our ability to publish details of the Enforcement Undertaking

Variation of an Enforcement Undertaking

2.15 An Enforcement Undertaking that has been accepted by OPSS may be varied, or the period within which the action must be completed may be extended, if OPSS and the business agree the variation in writing. A business can apply for a variation or extension of its Enforcement Undertaking by contacting OPSS, using the contact details provided when the Enforcement Undertaking was accepted.

The following information should be provided:

• a copy of the Enforcement Undertaking
• details of the progress that has been made in delivering the actions(s) specified in the Enforcement Undertaking
• the reasons for proposing a variation or extension
• details of the variation or extension that is proposed

Completion Certificates

2.16 When OPSS is satisfied that all of the actions specified in the Enforcement Undertaking have been completed (referred to in the 2023 Regulations as ‘discharge’ of the undertaking) we will issue a Completion Certificate.

2.17 A Completion Certificate can be applied for at any time. When making the application, we will expect you to provide sufficient information to enable us to determine that the actions have been completed.

2.18 We may require you to provide further information where we consider that this is necessary in order for us to determine whether all of the actions in the Enforcement Undertaking have been completed. Where the actions specified in the Enforcement Undertaking include a commitment to offset detriment caused to a third party, we will require evidence that this commitment has been met, usually by confirmation in writing.

2.19 OPSS must then decide whether or not to issue a Completion Certificate and give you written notice of the decision within 14 days of the application.

2.20 Where OPSS decides not to issue a Completion Certificate you are entitled to appeal against our decision to the First-tier Tribunal (see sections 5.5 to 5.9) on the grounds set out in the paragraph 23(1) of the Schedule to the 2023 Regulations. We will set out your rights when we inform you of our decision.

2.21 OPSS may revoke a Completion Certificate if it was issued on the basis of information that is subsequently established to be inaccurate, incomplete, or misleading. OPSS will send you written notice of any decision to revoke a Completion Certificate and will consider whether further enforcement action is appropriate (see section 2.4).

3) Compliance Notices

3.1 A Compliance Notice is a written notice, served by OPSS, which requires a business to take action within a specified period to remedy a breach of the 2017 or 2023 Regulations. A Compliance Notice served under the 2023 Regulations may, in addition, prohibit the recipient of the notice from installing further public charge points until action has been taken to remedy a breach or breaches set out in the notice.

3.2 OPSS is able to serve a Compliance Notice where it considers that there has been non-compliance with obligations set out in:

a) Regulations 3(1), 4, 5(1), 5(2) or 6 of the 2017 Regulations, or

b) Regulations 5 - 11 of the 2023 Regulations.

3.3 OPSS will take any failure to complete the specified actions in a Compliance Notice satisfactorily within the specified period seriously and will consider imposing a Civil Penalty (see section 4).

3.4 OPSS is likely to serve a Compliance Notice in response to continuing non-compliance, where we consider that advice or guidance alone is not an appropriate response, or as an escalating response where advice or guidance have not delivered the required improvements. OPSS is more likely to make use of a Compliance Notice under the 2023 Regulations to prohibit further installation of public charge points in more serious cases, for example where the non-compliance is having, or is likely to have, a significant negative impact on the experience consumers have when using public charge points.

3.5 Before serving a Compliance Notice under the 2023 Regulations, OPSS will in most circumstances issue you with a notice indicating our intention. Where we issue a Notice of Intent, you are entitled to make written representations and objections to us in relation to the proposed Compliance Notice. You must do this within 28 days beginning on the day on which you received the notice of our intention. This allows you to raise any concerns in relation to the proposed Compliance Notice. Please note that OPSS is not required to give notice of its intention to serve a Compliance Notice under the 2017 Regulations.

3.6 Once the period for making representations and objections has expired, OPSS will consider any written representations or objections and make a decision. Where we decide to proceed with the proposed notice, with or without modifications, we will serve the Compliance Notice. The notice will set out the remedial actions required and the date by which the breach must be remedied.

3.7 OPSS may serve a Compliance Notice under the 2023 Regulations without first issuing a Notice of Intent where we consider that it is appropriate to do so, in order to address a risk of harm to, or disruption of, the electricity system: or a risk to public health or safety.

3.8 Where OPSS decides to serve a Compliance Notice under the 2023 Regulations you are entitled to appeal against our decision to the First-Tier Tribunal (see sections 5.5 to 5.9) on the grounds set out in paragraph 16(2) of the Schedule to the 2023 Regulations. Where you exercise your right to appeal, the notice is suspended until the outcome of the appeal is reached. We will set out your rights when we inform you of our decision.

3.9 OPSS publishes details of any Compliance Notice that we serve, in line with our Enforcement Policy. The published details may be updated to indicate where OPSS has subsequently determined that the requirements of the notice have been met.

4) Civil Penalties

4.1 A Civil Penalty is a financial penalty that may be imposed by OPSS:

a) where there has been a failure to comply with the requirements of a Compliance Notice that OPSS has served (see section 4.2)

b) where there has been a failure to comply with an Enforcement Undertaking

c) where there has been a breach of obligations in respect of the 2023 Regulations

d) where there is a breach of provisions in the 2023 Regulations relating to obstruction of the enforcement authority and the provision of false statements (Schedule, Paragraph 8)

OPSS can impose Civil Penalties without recourse to the criminal courts. Penalties are payable to the Consolidated Fund and are not retained by OPSS.

4.2 In respect of 4.1(b), OPSS may impose a Civil Penalty under the 2023 Regulations without first serving a Compliance Notice where it considers it appropriate to do so. This may include, for example:

• in relation to significant negative impact on the experience consumers have when using public charge points
• where an Enforcement Undertaking was accepted but the business has failed to complete some or all of the actions specified in the undertaking

4.3 OPSS will take any failure to pay a Civil Penalty seriously and can pursue the unpaid penalty as a debt in the relevant civil court.

4.4 OPSS publishes details of any Civil Penalty that we impose, in line with our Enforcement Policy. The published details may be updated to indicate whether the penalty has been paid.

4.5 The provisions relating to Civil Penalties differ in relation to:

• breaches under the 2017 Regulations (see sections 4.6 to 4.10)
• breaches under the 2023 Regulations (see sections 4.11 to 4.16)

The Alternative Fuels Infrastructure Regulations

4.6 The 2017 Regulations specify the maximum civil penalty that may be imposed in relation to non-compliance with particular obligations as set out below. The level of the penalty is determined by OPSS, up to the maximum specified (see Penalty amount), with payment required within 28 days.

4.7 In respect of each breach, by an infrastructure operator, of the minimum technical requirements of the 2017 Regulations (Regulation 3(1)), the maximum penalty is:

a) £500 for each normal power recharging point

b) £4,000 for each high-power recharging point

c) £10,000 for each hydrogen refuelling point

4.8 In respect of each breach, by an infrastructure operator, of the customer experience requirements of the 2017 Regulations, the maximum penalty is:

a) £300 for each recharging point which does not meet the intelligent metering system requirement (Regulation 5(1))

b) £1,000 for each recharging point which does not meet the ad hoc access requirement (Regulation 5(2))

c) £100 for each recharging point which does not meet the geographic location data accessibility requirement (Regulation 6)

4.9 In respect of each breach, by a statutory harbour authority, of the technical requirements of the 2017 Regulations (Regulation 4), the maximum penalty is £300,000 for each shore-side electricity supply installation.

4.10 Where OPSS decides to serve a Civil Penalty Notice under the 2017 Regulations, you are entitled to object to the penalty imposed (see section 5.1 to 5.4). We will set out your rights when we inform you of our decision.

The Public Charge Point Regulations 2023

4.11 Before imposing a Civil Penalty, OPSS will usually issue you with a notice indicating our intention and setting out the grounds for the proposed penalty and the amount to be paid. Where we issue a Notice of Intent, you are entitled to make written representations and objections to us in relation to the proposed Civil Penalty. You must do this within 28 days beginning on the day on which you received the notice of our intention.

4.12 Once the period for making representations and objections has expired, OPSS will take account of any written representations or objections and make a decision. Where we decide not to impose the proposed penalty we will notify you of our decision. Where we decide to vary or confirm the proposed penalty, we will serve a Penalty Notice, requiring payment of the penalty within a specified period. This will usually be 28 days but may be longer where we consider this appropriate.

4.13 The 2023 Regulations specify the maximum civil penalty that may be imposed in relation with particular obligations as set out below. The level of the penalty is determined by OPSS, up to the maximum specified (see Penalty amount). Before imposing a Civil Penalty OPSS may require you to provide us with such information as is reasonable to enable us to determine the appropriate amount of the financial penalty.

4.14 In respect of each breach, by a charge point operator, of the requirements in the 2023 Regulations the maximum penalty is £10,000 for each public charge point, other than in respect of the reliability requirement (Regulation 7), where the maximum penalty is £10,000 for a network of rapid charge points.

4.15 In respect of each breach, by a charge point operator, of provisions in the 2023 Regulations relating to obstruction of the enforcement authority and false statements (Schedule, paragraph 8), the maximum penalty is £250,000.

4.16 Where OPSS decides to impose a Civil Penalty under the 2023 Regulations you are entitled to appeal against our decision to the First-tier Tribunal (see sections 5.5 to 5.9) on the grounds set out in paragraph 16(2) of the Schedule to the 2023 Regulations. We will set out your rights when we inform you of our decision.

Penalty amount

4.17 In line with its Enforcement Policy, OPSS will usually set a starting point for its calculation of the penalty that takes account of the potential or actual harm associated with the breach; culpability factors; and position in the market. It will then take account of any relevant mitigating or aggravating factors that it is aware of, or that are brought to its attention, in order to determine the level of the penalty.

4.18 The mitigating and aggravating factors that OPSS may consider include:

a) prompt and full disclosure in relation to the non-compliance

b) any known practical or technical reasons for continuing non-compliance

c) any early action to remedy the non-compliance or its effects

d) any restorative or restitutional action taken

e) the compliance history of the person

f) the period of the non-compliance

g) a co-operative approach in dealing with OPSS

h) any evidence of general commitment to compliance and to acceptance of responsibility for non-compliance and its effects

l) any financial gain attributable to the non-compliance

5) Statutory rights to object and appeal

Rights to object to OPSS

5.1 Where OPSS decides to impose a Civil Penalty under the 2017 Regulations, you are entitled to object by sending written notice of your objection to OPSS. The Civil Penalty is not payable while any objection is being considered.

5.2 You must send your objection in writing within 28 days after the date of the Civil Penalty Notice. You must set out the reasons for the objection. You should make clear whether you are objecting to the basis on which the Civil Penalty has been imposed and/ or the level at which the penalty has been set and should provide sufficient information and supporting evidence to enable OPSS to make an informed decision in relation to the penalty.

5.3 Following consideration of the objection, OPSS may uphold the penalty, reduce it, or cancel it. You will be notified of our decision, and the reasons for the decision, in writing. Where our decision is to uphold or reduce the penalty, it will be payable within 28 days of the date of the notice.

5.4 Where OPSS has considered an objection to a Civil Penalty Notice and has upheld it or reduced it, you are entitled to appeal against our decision to the First-tier Tribunal (see sections 5.5 to 5.9). We will set out your rights when we inform you of our decision.

Right to appeal to the First Tier Tribunal

5.5 You have a statutory right to appeal to the First-tier Tribunal (General Regulatory Chamber) in relation to the following actions that may be taken by OPSS:

• a decision not to issue a Completion Certificate (also referred to as a certificate of discharge) in relation to an Enforcement Undertaking in respect of the 2023 Regulations (see section 2.20). You must exercise your right to appeal within two months of receiving the notice of the decision.
• service of a Compliance Notice under the 2023 Regulations (see section 3.8). You must exercise your right to appeal within 28 days of receiving the Compliance Notice.
• a Civil Penalty under the 2023 Regulations (see section 4.16). You must exercise your right to appeal within 28 days of receiving the Penalty Notice.
• a decision on an objection to a Civil Penalty under the 2017 Regulations (see section 5.4). You must exercise your right to appeal within 28 days of the date of the notice of the decision.

5.6 The Tribunal may:

• withdraw, confirm or vary a decision in regard to a Completion Certificate or notice under the 2023 Regulations
• take such steps as OPSS could take in relation to the act or omission giving rise to a notice
• defer the decision whether to confirm a decision in regard to a Completion Certificate or notice, or any matter relating to that decision, back to OPSS

5.7 The Tribunal may uphold, reduce, or cancel a Civil Penalty.

5.8 To exercise your right to appeal, use the Notice of Appeal (General Regulatory Chamber) (Form T98).

Access form T98 and guidance on completing it.

Read further information on the General Regulatory Chamber.

6) Footnotes

1. References in this guidance to legislation should be taken to refer, where applicable, to that legislation as amended. ↩

2. The relevant provisions are the Public Charge Point Regulations 2023, Schedule, Part 3. ↩