Guidance for trading standards, environmental health and fire safety officers regulating businesses which have a Primary Authority partnership or are members of a regulated group.
This guide outlines how Primary Authority affects the way that enforcement officers work with businesses on a day-to-day basis. To get a full understanding of Primary Authority, you should read the statutory guidance.
What is Primary Authority?
Primary Authority is based on ensuring that businesses that seek to comply with the law can access assured and tailored advice on complying with environmental health, trading standards or fire safety regulations. This approach is suited to businesses of all sizes, across the country. All enforcement officers will regularly encounter businesses that have a primary authority and rely on its advice, including large national or multinational companies, single site businesses, mobile traders and start-ups.
To access Primary Authority a business, or a co-ordinator of a group of businesses, forms a legal partnership with a local authority (known as the primary authority). The primary authority provides information about the business to enforcing authorities and helps direct their efforts to improve regulatory efficiencies.
A primary authority can issue:
- Primary Authority Advice to the business or co-ordinator (for communication to its member businesses)
- an inspection plan
- Primary Authority Advice to Local Authorities
As an officer from an enforcing authority you should follow inspection plans and Primary Authority Advice to Local Authorities. The primary authority can ‘block’ any enforcement action from being taken against a business which is following Primary Authority Advice.
The Primary Authority Register
This is a secure online service which:
- shows which businesses and co-ordinators have a primary authority partnership in a Public Register
- shows all businesses that are benefitting from an inspection plan
- gives you access to Primary Authority Advice and inspection plans
- provides you with useful background information about businesses
- enables you to communicate with the primary authority
- provides an audit trail for statutory messaging such as enforcement notifications
As a local authority enforcing officer you will need to access the Primary Authority Register.
Identifying businesses which have Primary Authority partnerships
There are two types of Primary Authority partnership: direct partnerships and co-ordinated partnerships.
A local authority can form a partnership with a single business – this is called a direct partnership.
All businesses in direct partnership are listed in the Public Register.
A local authority can partner with organisations such as trade associations or franchises to provide advice to a group of businesses – this is called a co-ordinated partnership, and the organisation acts as a co-ordinator, managing the partnership on behalf of the members of the group.
All co-ordinated partnerships are listed in the Public Register, along with information about how to find out which businesses are members of the co-ordinated group. Some co-ordinators also publish their list of members on the Register.
Whilst the co-ordinator holds the definitive list of members, in your dealings with businesses it is necessary to ask them whether they have a co-ordinated primary authority.
Further information is available at section 22.8 of the statutory guidance.
Primary Authority Advice
Primary Authority Advice is any advice and guidance from the primary authority to a business or to a co-ordinator (for communication to the businesses in its regulated group).
Primary Authority Advice can help a business understand:
- how the legal requirements apply to them
- how they can achieve compliance
- whether the controls they have in place are acceptable
As an enforcement officer you will need to take Primary Authority Advice into account when approaching and regulating participating businesses.
Primary Authority Advice is assured which means that provided the business has followed the advice it has been given, the primary authority can direct against (block) any enforcement action for the regulatory issues it covers.
You can find out details of the regulatory questions, topics or issues in relation to which Primary Authority Advice has been issued by looking at the entry for the business or co-ordinator on the Primary Authority Register.
Primary Authority Advice to Local Authorities
Some primary authorities issue Primary Authority Advice to Local Authorities which guides them in how they regulate a particular business. You should follow this advice when regulating the business.
Primary Authority Advice to Local Authorities is published in the Primary Authority Register. To check if advice has been issued to local authorities, look at the entry for the business or co-ordinator.
Further information is available in section 7 of the statutory guidance.
An inspection plan can be issued by primary authorities to guide enforcing authorities on carrying out proactive, planned or programmed regulatory interventions such as:
- test purchases
- sampling visits
- other checks on compliance
- advisory visits
As an officer from an enforcing authority you have a duty to follow inspection plans.
How to use inspection plans
Before visiting a business to perform a regulatory intervention you should check the Primary Authority Register to see whether there is a relevant inspection plan. If there is, you should then follow it during the intervention.
Many primary authorities encourage you to send them feedback, both positive and negative, after you have completed your inspection.
Deviating from the plan
If you want to deviate from the inspection plan, contact the primary authority. You’ll need to explain why you want to deviate from the plan.
Further information is available in section 23 of the statutory guidance.
Responding to non-compliance
If you believe that a business is not complying with legislation, you should:
- take reasonable steps to establish whether the business has a primary authority (if you have not done so already)
- log on to the Primary Authority Register to read the information that the primary authority has posted about the business
- contact the primary authority to discuss the possible non-compliance
When you decide to take enforcement action against a business which has a primary authority you should notify the primary authority using the Primary Authority Register.
Upon receipt of an enforcement notification, the primary authority has 5 working days to respond and can block the proposed enforcement action if it is viewed as conflicting with Primary Authority Advice given to the business.
If the primary authority allows the enforcement action or does not respond within this statutory timeframe, you will then need to notify the business of the proposed enforcement action.
Upon receipt of an enforcement notification the business has 10 working days to decide whether to apply to the Secretary of State for a determination. If they do not respond within this timeframe the enforcement action can proceed.
If a primary authority blocks an enforcement action which you believe they should have allowed you can apply to the Secretary of State for a determination.
A determination is where the Secretary of State decides whether the Primary Authority Advice was correct and properly given and whether the enforcement action is consistent with any Primary Authority Advice that has been issued to the business.
The requirement to notify proposed enforcement action does not apply where a compliance issue is identified that requires urgent action in order to avoid a significant risk of harm to human health, the environment, or the financial interests of consumers. This might be the case, for example, where the enforcing authority considers it appropriate to issue an emergency prohibition notice, emergency remedial action notice or emergency prohibition order.
Further information is available in section 24 of the statutory guidance.
Find out more about Primary Authority
For more information about how Primary Authority works, and your obligations under the scheme, read the statutory guidance.
Help and advice for enforcement officers
For information about a business in a Primary Authority partnership, contact the primary authority via the Primary Authority Register.
A helpdesk is available to support users of the Register and answer queries. You can reach the helpdesk by calling 0121 345 1201 or emailing email@example.com.
Primary Authority and coronavirus (COVID-19)
Primary Authority Advice is a useful tool for both businesses and local authorities, especially at times such as these.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 are not listed in Schedule 3 of the Regulatory Enforcement and Sanctions Act 2008 and should not be listed as relevant legislation in any Primary Authority Advice issued. However, the Health and Safety at Work etc. Act 1974 is listed with all other relevant legislation which can be found in Schedule 3 and which can form the basis of practical advice in the current crisis.
The Office for Product Safety and Standards (OPSS) is not seeking to see or review specific pieces of advice but is keen to hear of examples of this taking place in practice. Email firstname.lastname@example.org to share examples.
Some primary authorities have contacted OPSS about regulatory challenges and suggested regulatory easements in light of the current outbreak. Email email@example.com if you need assistance.