Hygiene Emergency Prohibition Notices and Orders

1. Hygiene Emergency Prohibition Notices and Orders David Barclay Rhodes Food Safety Team Manager Leicester City Council

2. The Food Hygiene (England) Regulations 2006 Especially relevant: Regulation 7 – hygiene prohibition orders Regulation 8 – hygiene emergency prohibition notices and orders Regulation 28 – service of documents

3. The health risk condition Imminent risk of injury to health Imminent – liable to happen soon; impending Risk – the possibility of incurring misfortune or loss

4. Burden of proof On the balance of probability - “more likely than not” – “51%”

5. R 8 (1) If an authorised officer of an enforcement authority is satisfied that the health risk condition is fulfilled with respect to any food business he may by a notice served on the relevant food business operator (in these Regulations referred to as a “hygiene emergency prohibition notice”) impose the appropriate prohibition.

6. Food Law Code of Practice 2012 Hygiene Emergency Prohibition Notices served under regulation 8 of the Food Hygiene (England) Regulations 2006 or Emergency Prohibition Notices served under section 12 of the Food Safety Act 1990 should be signed only by Environmental Health Officers (see Section 1.2.9.1.4) who: ….

7. Food Law Code of Practice 2012 have two years’ post qualification experience in food safety matters; are currently involved in food law enforcement; and are properly trained, competent and duly authorised; or in relation to primary production, officers who are suitably qualified and experienced (see 1.2.9.1.4) and are properly trained, competent and duly authorised.

8. Appropriate prohibition • The use of the process or treatment for the purpose of the business • The use of the premises or equipment for the purposes of the business or any other business of the same class or description • The use of the premises or equipment for the purposes of any food business [taken from Regulation 7 (3)]

9. Examples of imminent risk …. evidence of rats throughout the rear preparation room and kitchen. [Chilli Tree] poor structural standards, poor cleaning and disinfection, inadequate washing facilities and evidence of mouse activity in the store rooms and yard. [Asli Sweet Centre] extensive evidence of mouse activity and poor standards of cleaning throughout the premises.  [Leicester Wholefood Cooperative]

10. Examples of imminent risk …. evidence of mouse activity throughout all three floors of the storage facility and poor protection of foodstuffs from contamination.[Virpur Millers] evidence of mouse activity, lack of hot water for cleaning and disinfection and a poor level of cleaning. [Kilimanjaro] evidence of cockroach activity, poor structural conditions and poor standards of cleaning. [Doner Master]

11. Examples of imminent risk …. absence of hot water for cleaning and handwashing, inadequate lighting in the washup area, absence of suitable chemicals for disinfection and poor standards of cleaning. [Kams King of The Grill] evidence of rat activity within the business. [Yumchi]

12. Evidence for court Notebook entries Witness statements Plans Photographs Dirt, grime, droppings, bodies …. Copies of notices Draft HEPO or declaration

14. During the HEPN visit Identify FBO Determine language(s) spoken by FBO Get home address on notice [recovery of costs] Ensure valid service of notices Ensure valid date and time of application for an HEPN [if HEPN = day 1, then generally application for HEPO = day 3] Write action sheet and hand to FBO Affix copy of HEPN in a conspicuous position on the premises [and photograph this]

15. Before the application hearing Have 4 evidence files ready Revisit and include written report in files or prepare a verbal report for the court Instruct the lawyer whether application is for an HEPO or for a declaration Pass record of costs incurred to lawyer

16. Ceasing HEPN or HEPO Having Effect • On the issue by the enforcement authority of a certificate to the effect that they are satisfied that the food business operator has taken sufficient measures to secure that the health risk condition is no longer fulfilled with respect to the food business. [taken from Regulation 8 (8)]

17. “Voluntary procedures” Voluntary Procedures to remove a health risk condition may be used, at the instigation of the food business operator, when the food business operator agrees that a health risk condition exists as defined by regulation 7(2)/regulation 8(4) i.e. there is an imminent risk of injury to health. An officer may suggest this option to the food business operator, but only when they are able to use regulation 8. If in doubt, the food business operator should be advised to take legal advice. [Food Law Code of Practice 2012]

18. Criteria For An Undertaking Rather Than an HEPN A person has identified himself as a food business operator or has agreed that he is a food business operator. There is a history of compliance and at the last inspection visit the confidence in management score was 10 or lower OR in the absence of any history of compliance, the officer seeking and securing an undertaking is confident that the food business operator’s knowledge, ability, intention and attitude are all appropriate. The officer seeking and securing the undertaking is confident that it will be honoured and the establishment not re-opened without the officer’s knowledge and/or agreement. No obstruction has been encountered during the visit.