Guidance

Electric vehicle smart charge points regulations

Updated 22 April 2024

Guidance on enforcement actions and associated rights

Electric Vehicles (Smart Charge Points) Regulations 2021

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 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 Electric Vehicles (Smart Charge Points) Regulations 2021 (‘the Regulations’). ^{[footnote 1]} 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 Regulations.

1.4 The guidance explains the following actions that are available to OPSS under the Regulations. These actions are set out in Schedule 2 to the Regulations and are referred to in the Regulations as ‘civil sanctions’:

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

b) service of a Compliance Notice on a business by OPSS, requiring action to be taken (see section 3)

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

1.5 Use of the various actions that are available to OPSS is determined on the facts of the individual case, in line with our Enforcement Policy. We select proportionate action(s) with the aim of preventing or mitigating the risk of harm and/ or changing business behaviour, including through the use of sanctions.

1.6 This guidance also explains the statutory rights that are set out in Schedule 2 to the Regulations to make representations in respect of enforcement action that we are proposing to take, or to appeal enforcement action that we have taken.

1.7 Where you do not have statutory rights to make representations 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.

1.8 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 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 Regulation 4 of the Regulations (obligations in respect of the sale of charge points).

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 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 5 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 contact details below. There is no legally prescribed form for an Enforcement Undertaking, but OPSS provides a template, available via the link or by emailing EVSCP@businessandtrade.gov.uk.

2.10 Where the OPSS template is not used, the Enforcement Undertaking must include:

• a statement to the effect that it is given in accordance with the relevant provisions ^{[footnote 2]} in the Regulations
• 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 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 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) where there is no commitment to acknowledging the non-compliance in the Statement of Compliance

e) 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)

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

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

h) that includes a clause denying liability

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

j) 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. There is no specific template to use, but 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 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. This would usually include the following:

• the Statement of Compliance provided with the product during the period of the Enforcement Undertaking, and the relevant technical file
• the Statement of Compliance to be provided with the product from completion of the actions specified in the Enforcement Undertaking, and the relevant technical file
• the register of sales for products supplied during the period of the Enforcement Undertaking

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 section 5) on the grounds set out in the paragraph 24(1) of Schedule 2 to the 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 certain action(s) that we consider to be appropriate, within a specified period. This will usually be 28 days from the date of the notice but may be longer. These actions might include, for example:

• taking steps to achieve compliance with the requirements of the Regulations
• taking steps to secure that non-compliant charge points are withdrawn from the market
• taking steps to secure that non-compliant charge points are recalled from end users

3.2 OPSS is able to serve a Compliance Notice where it considers that there has been a breach of the obligations in respect of the sale of charge points (Regulation 4).

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 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.

3.5 OPSS is less likely to serve a Compliance Notice where we consider that this is unlikely to be an effective response to non-compliance. This may include circumstances where OPSS has already accepted an Enforcement Undertaking in relation to the breach(es) and the specified actions have not been completed satisfactorily within the specified timeframe.

3.6 Before serving a Compliance Notice, 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.

3.7 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 (referred to in the Regulations as a Final Notice).

3.8 OPSS may serve a Compliance Notice 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.

3.9 Where OPSS decides to serve a Compliance Notice you are entitled to appeal against our decision to the First-tier Tribunal (see section 5) on the grounds set out in the paragraph 17(2) of Schedule 2 to the Regulations. We will set out your rights when we inform you of our decision.

3.10 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 OPSS may serve a Civil Penalty Notice, requiring payment of a financial penalty, in respect of:

• a breach of the obligations in respect the sale of charge points (Regulation 4)
• a failure to comply with the requirements of a Compliance Notice
• a failure to comply with an Enforcement Undertaking
• a breach of provisions relating to the obstruction of the enforcement authority and the provision of false statements (Schedule 2, 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 OPSS will take any failure to pay a Civil Penalty seriously and can pursue the penalty as a debt in the relevant civil court.

4.3 OPSS may consider it appropriate to impose a Civil Penalty for a breach of the obligations in respect of the sale of charge points without first serving a Compliance Notice, including, for example, where:

• serious harm has occurred
• there is potential for serious harm to occur and OPSS considers that effective remedial action is not possible, including where this is as a result of a failing by the business
• an Enforcement Undertaking was accepted but the business has failed to complete some or all of the actions specified in the undertaking

4.4 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 (see Penalty Amount).

4.5 Before imposing a Civil Penalty, OPSS will 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. This allows you to raise any concerns in relation to the proposed Civil Penalty.

4.6 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 Civil Penalty Notice (referred to in the Regulations as a Final 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.

4.7 Where OPSS decides to impose a Civil Penalty you are entitled to appeal against our decision to the First-tier Tribunal (see section 5) on the grounds set out in the paragraph 17(2) of Schedule 2 to the Regulations. We will set out your rights when we inform you of our decision.

4.8 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.

Penalty amount

4.9 The Regulations specify the maximum penalty that may be imposed in relation to non-compliance with particular obligations:

• a maximum of £10,000 for each relevant charge point in respect of which there has been a breach of the obligations in respect of the sale of charge points (Regulation 4)
• a maximum of £250,000 for a breach of the provisions relating to the obstruction of the enforcement authority or the provision of false statements (Schedule 2, paragraph 8)

4.10 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.

4.11 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

i) any financial gain attributable to the non-compliance

5) Statutory rights to appeal to the First Tier Tribunal

5.1 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 Compliance Notice (see section 3.9)
• a Civil Penalty (see section 4.7)
• a decision not to issue a Completion Certificate (also referred to as a certificate of discharge) in relation to an Enforcement Undertaking (see section 2.20)

5.2 You must exercise your right to appeal:

• within 28 days of receiving the Compliance Notice or Civil Penalty Notice
• within 2 months of receiving a letter advising you of the decision not to issue a Completion Certificate

5.3 Where you exercise your right to appeal in relation to a Compliance Notice, the notice is suspended until the outcome of the appeal is reached.

5.4 The Tribunal may, in relation to a Compliance Notice:

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

5.5 The Tribunal may, in relation to a Civil Penalty:

• cancel or reduce the penalty, or
• dismiss the appeal

5.6 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 Electric Vehicles (Smart Charge Points) Regulations 2021, Schedule 2, Part 3. ↩