SEPA defends enforcement record against 'maladministration' claims

Failings in the way the Scottish Environment Protection Agency implements its enforcement policy amount to "maladministration", according to a report from the Scottish Public Services Ombudsman.1 SEPA says many of the recommendations, which stem from events two years ago, have been addressed.

The report, published in October, follows a complaint last year by a label manufacturer facing the possibility of prosecution for allegedly failing to comply with the packaging regulations.

The company, whose identity remains confidential, claimed that SEPA failed to follow its enforcement policy and service charter, and also failed to follow its procedures correctly in its dealings with the firm. The exact nature of its complaint - the first to the Ombudsman about the Agency - is sub judice because the Procurator Fiscal is considering whether to pursue a prosecution.

The packaging regulations have applied since 1997 to companies that handle more than 50 tonnes of packaging a year, and have a turnover above £5 million. From 2000, they were extended to companies handling the same amount of packaging but with a turnover of at least £2 million.

Information supplied to SEPA by the label manufacturer in 1999 showed that its turnover was above £2 million and that it handled well above 50 tonnes. However, the information also suggested that the company did not understand the regulations.

SEPA did not contact the company again until August 2002, when it made it clear that labels counted as "packaging" and warned it that it had not registered as an obligated business. Following further exchanges, the Agency told the company in December that it was preparing a report recommending prosecution.

Following a complaint by the company in May 2003, the Agency conducted an internal investigation. Its report the next month concluded that it had acted reasonably and in accordance with its enforcement policy, but conceded that "in an ideal world" it should have written to the company in 1999 when it appeared to have misunderstood the regulations, and advised it of the need to comply when the new thresholds were introduced the following year.

SEPA's enforcement policy states that "where the circumstances warrant it a case may be referred to the Procurator Fiscal without prior warning or recourse to alternative methods of enforcement." But the Agency admitted to the Ombudsman that it had no written procedures for staff to follow when they became aware that a company might have breached the regulations.

Some time before the label manufacturer's case was referred to the Procurator Fiscal, a different area office had chosen to send a final warning letter to a company which had committed several offences under the regulations, rather than refer the matter to the Fiscal. Area teams were "not obliged to reach identical decisions in identical circumstances", said SEPA.

SEPA staff told the inquiry that there was no pressure on them to secure convictions under the packaging regulations but that the Agency had been criticised over its record - just one successful prosecution in 2003 (ENDS Report 339, p 56 ).

SEPA also pointed out that between the two cases the UK had failed to meet the EU recovery target - and that Wastepack, a major compliance scheme for obligated businesses that has registered with SEPA - had failed to fulfil its obligations under the regulations (ENDS Report 327, pp 14-15 ).

While the question of whether SEPA should have decided to refer the case for prosecution fell outside the Ombudsman's remit, the watchdog upheld the company's complaint and decided that the Agency's actions amounted to "maladministration". Its key findings were that:

  • SEPA ought to have made effective use of the information provided by the company in 1999.

  • There was no written guidance for SEPA's staff on how its enforcement policy should be implemented.

  • SEPA had no records on its decision-making process on enforcement action, making it impossible to determine whether SEPA had followed its enforcement policy.

  • SEPA made its decision on what enforcement action to take before it had audited the company and interviewed its staff, thereby failing to take account of "the circumstances of the case and the attitude of the operator" - as required in its enforcement policy.

    The Ombudsman recommended that the Agency should introduce guidelines on how its enforcement policy should be put into practice and ensure staff receive training. It should also record decisions accurately.

    "Welcoming" the recommendations, SEPA said they "complement what SEPA is already doing", but would also "help identify areas for further improvement".

    "This report might have made a lot of impact if it had come out 18 months ago when the complaint was made," said Peter Campbell of SEPA's legal services team. "A lot of it is historical."

    Chief executive Campbell Gemmell said that it stood by all the evidence it submitted to the Ombudsman, and noted that its "effective regulation project" was launched prior to the case.

    While SEPA is "determined to regulate firmly and fairly, supporting business wherever does however remain the responsibility of business to be aware of, and abide by, regulations which affect them."

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