Guidance

How to challenge or appeal an OPSS enforcement action

Updated 29 June 2023

June 2023

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

Our Enforcement Policy sets out the approach we take to addressing non-compliance by those that we regulate (hereafter referred to as ‘businesses’) and to potential product safety risks. This document explains your rights to challenge or appeal enforcement actions that we may take in response to non-compliance or a potential product safety risk.

OPSS is committed, as a regulator, to providing you with clear information about your rights to challenge or appeal against our regulatory actions or decisions:

• Where we propose to exercise powers to take enforcement action in relation to your business, or where we have taken enforcement action, you may have a legal right to make representations or to appeal – these rights are explained at ‘Statutory (legal) rights to make representations or appeal’ below.
• Where we have taken enforcement action or made a decision in relation to your business and you do not have a statutory right to appeal, you are still entitled to challenge our advice, actions or decisions if you believe that we are wrong – your rights are explained at ‘Challenge our advice, actions or decisions’ below.

We are committed to providing a high quality, accessible and responsive service. For this reason, we welcome any comments or complaints about our service – if you have a concern about our approach, or the behaviour of our staff, our complaints processes are explained in our Complaints Procedure.

Read about our approach to delivering regulation.

We have appointed an ‘External Reviewer’ to challenge our complaints, challenges and appeals processes, and their operation, and to make recommendations to us on improvements.

Statutory (legal) rights to make representations, object or appeal

Statutory (legal) rights to make representations, object or appeal vary across the different legislation that we work under, and according to the powers that are available to us to take enforcement action. Wherever we take enforcement action which has an associated statutory right to make representations, to object or to appeal, we will inform the person who is subject to the enforcement action of that right at the time we take the action. The information provided will set out the right to make representations, to object or to appeal and the applicable time limit.

The statutory rights that may be available are broadly summarised below.

Proposed enforcement action

• In respect of certain statutory (legal) notices, the legislation requires us to give notice of our intention to serve the notice and provides an associated right to make representations or object to the Secretary of State.
• In respect of certain actions to require the recall of products from end-users, the legislation requires us to give notice of our intention to require a recall and provides for an associated right for the recipient of that notice to require us to seek advice before proceeding with the proposed action.

Enforcement action/ decisions taken

• Some statutory (legal) notices, including product safety notices, have an associated right to appeal to the appropriate court.
• Some actions that we may take have an associated statutory right to object, appeal or make representations to the Secretary of State in relation to action taken.
• Some actions that we may take, including some financial penalties, have an associated right to appeal to the First Tier Tribunal.
• If you are prosecuted by OPSS then you have a right to challenge through the appropriate court. We are required to provide you with certain information in advance to allow you to defend yourself.

Challenging our advice, actions or decisions

Where you have no statutory right to appeal our actions or decisions, it is important to us that you are able to raise any concerns directly with us. This may be the case, for example:

• where we have dealt with non-compliance by issuing a warning letter, written advice or guidance, or
• where we have issued a statutory notice in respect of which there is no statutory right to appeal

Our officers will usually aim, in the first instance, to discuss with you how you can best comply and we would encourage you to raise any disagreement about the advice, guidance or proposed action with the officer at this stage. Alternatively, you may choose to contact the officer’s line manager. To obtain contact details for the relevant line manager please contact the OPSS Operational Support Unit Manager by email to opss.enquiries@businessandtrade.gov.uk.

If you are unable to resolve the matter in this way you are entitled to ask us to review the advice, guidance, action or decision.

We are committed to addressing non-compliance in a manner that is proportionate to the nature, seriousness and circumstances of the breach and our approach to doing this is set out in our Enforcement Policy. If you feel that OPSS has failed to follow the policy set out you are entitled to ask us to review our actions or decisions.

How to request a review

We have a two-stage review process. At each stage, it helps us to deal quickly with your request if you can state that you are requesting a review of our advice, guidance, an action or decision, give us as much information as possible, and include any documents or correspondence in support of your request. It is helpful if you can explain at this stage why you think we were wrong.

Stage one

You can make your request by contacting the OPSS Operational Support Unit Manager by email to opss.enquiries@businessandtrade.gov.uk, or in writing to:

Operational Support Unit Manager (Complaints)
Office for Product Safety and Standards
4th Floor Cannon House
18 The Priory Queensway
Birmingham
B4 6BS

On receipt of your request, we will ask an appropriate manager in the relevant department or team to deal with it. It is likely that the manager will want to speak to you directly to confirm their understanding of the issue.

We expect most requests for review to be resolved at this stage.

Stage two

If you are dissatisfied with the response that you receive after we have examined your initial request, you may request a further review.

You can make this request by contacting the Operational Support Unit Manager and giving the reasons why you are not satisfied with the Stage One response. You should provide any reference number that you have been given and should request a review of the Stage One response within 28 days of receiving it.

On receipt of your request, we will ask a senior manager to review your complaint and our initial response. This manager may contact you to speak to you directly.

Our standards for handling challenges

• We will accept requests for review in writing, by email or letter.
• We will treat all requests for review seriously.
• We will treat you fairly and courteously.
• We will ensure, wherever possible, that staff tasked with investigating or dealing with your request for review have not been directly involved in any activities that may affect their objectivity or impartiality in respect of the subject of your request.
• We will deal with your request promptly:

1. We will acknowledge initial receipt of a written request for review within 5 working days of receipt, using the contact details that you provide to us.
2. We will aim to provide a full response within 20 working days of receipt of the request for review. Our response will be in writing.
3. If we cannot respond fully within 20 working days of receipt of the request for review we will tell you, explain why, and give you a date by which you can expect an update.
4. If you ask for our response to be reviewed in line with Stage Two, we will acknowledge this within 5 working days of receipt and aim to respond fully within 20 working days.
5. If we cannot respond fully within 20 working days of receipt of a request to review our response we will tell you, explain why and give you a date by which you can expect an update.

• All requests for review will be logged so that we can monitor the types of requests received and the time taken to respond to them, and identify the best way of dealing with them.
• We will publish information in our annual report about the number and types of challenges we receive, and the percentage upheld.
• Your request for review will be treated with discretion and we will handle your personal information in accordance with the requirements of the Data Protection Act 1998.

Unresolved challenges

If, having followed both the stages of our internal challenges process, you are not satisfied with the way in which we have handled your challenge, you can contact your Member of Parliament and ask for your complaint to be referred to the Parliamentary and Health Service Ombudsman (PHSO). The PHSO can carry out independent investigations into complaints that injustice has been caused by maladministration on the part of UK government departments.

You can find out who your MP is at the UK Parliament website or by calling the House of Commons Information Office on 020 7219 4272.

Further advice is available from the Ombudsman’s office.

Parliamentary and Health Services Ombudsman
Citygate
Mosley Street
Manchester
M2 3HQ

0345 015 4033