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The a-Z of Food Safety

The a-Z of Food Safety

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Published by: ramesh on Oct 06, 2008
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The power under the Food Safety Act to serve Improvement Notices to remedy

breaches of regulations is similar to that under the Health and Safety at Work

etc Act 1974. A person aggrieved may use the appeal provisions under section

30 of the Act.

Procedures covering Improvement Notices are covered in StatutoryCodeof

PracticeNo5:The Use of Improvement Notices. The issue of an Improvement

Notice, however, does not preclude the food authority from pursuing prose-

cution at the same time for the breaches of the regulations which are the subject

of the notice. The Improvement Notice procedure is designed to ensure that

the defects are remedied within a relatively short period of time.

Section 10 states that if an authorised officer of an enforcement authority has

reasonable grounds for believing that the proprietor of a food business is failing

to comply with any regulations to which this section applies, he may, by a notice

served on that proprietor (in this Act referred to as an Improvement Notice):

a)state the officer’s grounds for believing that the proprietor is failing

to comply with the regulations;

b)specify the matters which constitute the proprietor’s failure so to comply;

c)specify the measures which, in the officer’s opinion, the proprietor must

take in order to secure compliance; and

d)require the proprietor to take those measures, or measures which are

at least equivalent to them, within such period (not being less than 14

days) as may be specified in the notice. (Section 10(1))

Section 10(1)(d) makes it clear that works of equivalent effect may be carried

out to comply with the Improvement Notice. Such alternative works must be

agreed between the authorised officer and the proprietor, and the authorised

officer must confirm the agreement in writing. It is the responsibility of the food

authority to make this fact known to a proprietor.

Any person who fails to comply with an Improvement Notice shall be guilty

of an offence. (Section 10(2))

Statutory Code No 5 makes the following points about Improvement Notices.

THEA-ZOFFOODSAFETY

228

Service of an Improvement Notice

An Improvement Notice is only served when the authorised officer is satisfied

that there has been a contravention of one of the relevant food hygiene or food

processing regulations, but that the contravention does not pose an imminent

risk to health.

Where there is a breach of a recommendation of some industryguidelines or

an industrycodeofpracticean improvement notice cannot be issued if there

is no failure to comply with an appropriate regulation.

The notice procedure should be properly used by all authorised officers. The

procedure, and particularly their appeal rights, should be properly understood

by recipients. The notice may need to be accompanied by a covering letter written

in the recipient’s own language suggesting that he seek help if he does not fully

understand the meaning of the notice, or the notice may need to be explained

with the assistance of an interpreter. The issue of a notice should be treated

seriously. The person receiving it should understand that he is obliged to comply

with the notice and that, save in special circumstances, he will be prosecuted

by the authority.

Typical Improvement Notice situations

Guidance is given with the Statutory Code on typical situations where the service

of Improvement Notices would be appropriate, thus:

a)where rodent proofing or the provision of flying insect screening is

necessary to prevent any risk of infestation;

b)where there are deficiencies in the structure or facilities in the food

business, e.g. where structural repairs are required or where additional

equipment is necessary to comply with temperature control

requirements;

c)where there has been a previous history of obstruction or unwillingness

on the part of the food business to conform to legal requirements;

d)where the facilities to wash and prepare food and to wash equipment

and utensils are inadequate;

e)where there is inadequate mechanical ventilation in a kitchen area;

f)where there is inadequate artificial lighting in a food room; and

g)where there is a failure to maintain premises in a satisfactory state of

cleanliness.

Z Y X W V U T S R Q P O N M L K J I

229

Notice details

The wording of the notice should be clear and easily understood. It should contain

detail of the legal provisions contravened and the reason for the opinion of the

authorised officer that there has been a contravention.

An Improvement Notice specifies both the measures to be taken and the period

of time within which the proprietor must implement those measures. The

minimum period which may be specified is 14 days, but specified periods of

time for completion of works must be realistic. In most cases the period of time

would be agreed with the proprietor although an authorised officer can set a

limit without the proprietor’s agreement. The following factors should be taken

into account before a time limit is set:

a)the nature of the problem;

b)the risk to health; and

c)the availability of solutions.

Service of the Notice

The Food Safety Act requires the notice to be served on the proprietor, and

the person responsible for taking action should receive a copy of the notice,

especially in cases where the local manager is not the proprietor. (See both section

50(1) of the Act, which covers the service of documents, and section 50(2) which

deals with situations where it is not possible to ascertain the name and address

of the owner or occupier of the premises.)

An Improvement Notice need not necessarily be served by the authorised officer

who signed it and issued it. It should be served by a competent person who

would be able to take any required action, for example, explaining the purpose

of the notice.

Requests for extension of time

In certain situations a proprietor may request an extension of the time period

for complying with an Improvement Notice. In these situations, authorised offi-

cers must take the following aspects into account:

a)the risk associated with the fault if an extension was granted;

b)the reason for the request;

c)the remedy involved;

d)the past record of co-operation of the proprietor; and

e)any temporary action which the proprietor proposes to take to remedy

the defect.

THEA-ZOFFOODSAFETY

230

An authorised officer, if he considers a request for an extension of time to be

reasonable, may decide not to enforce the notice until a further period of time

has elapsed. Requests for time extensions must be made in writing before the

expiry date of the notice otherwise, technically, an offence will be committed

if there has been failure to comply.

Appeals

The proprietor has a right of appeal against the decision of an authorised officer

to serve an Improvement Notice (Section 37) by way of a complaint to the magis-

trates court. Appeal is made by way of complaint to the Magistrates Court

pursuant to section 51 of the Magistrates Courts Act 1980. Although the form

of complaint is prescribed by the Magistrates Courts (Forms) Rules 1981, Form

98, the complaint need not be made in writing. It can be made by the complainant

personally or by his solicitor or counsel (rule 4 Magistrates Courts Rules 1981).

Once the magistrate has judicially considered the complaint, a summons is issued.

The hearing of the complaint is governed by the rules in sections 53 – 57 of the

Magistrates Courts Act 1980. The procedure in Scotland is to make a summary

application to the sheriff.

The time limit for appeals against an Improvement Notice is:

(a)one month from the date the notice was served; or

(b)the period specified in the Improvement Notice if that is shorter.

The Act sets out the powers of the magistrates on an appeal against an Improve-

ment Notice in section 39(1). The court may cancel, affirm or modify the terms

of the notice, for example, to delete or reduce what it deems to be an over

vigorous requirement or to extend the time in which the proprietor is required

to comply with the notice. However, magistrates must first decide whether or

not a notice is valid before they exercise their powers under section 39(1).

Compliance

The Act does not make any provision for the ‘signing off’ of an Improvement

Notice by the food authority, but the Code does recommend such a procedure.

Authorised officers are encouraged to liaise with proprietors while work is being

undertaken, ensuring notification to the authority when work is completed. The

work should be checked as soon as possible after notification whenever possible

by the officer who served the notice.

Z Y X W V U T S R Q P O N M L K J I

231

Food authorities are also recommended to review the frequency of inspection

of the premises after the works have been carried out bearing in mind the nature

of the risk which led to the issuing of the notice.

Appeals against Notices, etc

Authorised officer

Cleaning, disinfection and housekeeping

Enforcement procedure

Food authority

Food hygiene inspections

Food Hygiene (England) Regulations 2006

Food Safety Act 1990

‘Imminent risk of injury to health’

Liaison with authorised officers

Lighting recommendations

Obstruction etc of an authorised officer

Offences and penalties

Proofing of buildings

Prosecution

Service of documents

Statutory Codes under the Food Safety Act

Structural requirements for food premises

Ventilation requirements

Washing of food and food equipment

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