Minutes of the meeting of the Working Group on Scoring/Banding and Safeguards 2 November 2009

Michael Jackson – Food Standards Agency Northern Ireland (Chair)
John Dyson – British Hospitality Association (BHA)
Darryl Thompson – British Beer and Pub Association (BBPA)
Rick Mason – London Food Coordinating Group (London Borough of Barnet)
Geoff Makin – Coventry City Council
Kevin Gosling – Winchester City Council
David Barclay Rhodes – Leicester City Council
Neil Underwood – Directors of Public Protection Wales (Wrexham County Borough Council)
Damien Connolly – Chief Environmental Health Officers’ Group, Northern Ireland (Belfast City Council)
Jim Dixon – Scottish Food Enforcement Liaison Committee (Perth and Kinross Council)
Henry Ashworth – Better Regulation Executive
Catriona Stewart – Food Standards Agency
Rob Wilkins – Food Standards Agency Wales
Pauline Wilkinson – Food Standards Agency Scotland
Sally Hayden – Food Standards Agency
Gwen Aherne – Food Standards Agency

1.1 The Chair welcomed members to the fourth meeting of the group. He thanked them for their contributions to the work so far, particularly the work of local authority representatives on the proposals for a re-visits mechanism and on descriptions of what scores of greater than five for the three elements in Annex 5 of the Code of Practice look like in practice. It was hoped that following discussions today the appeals and also the re-visits guidance would be recommended for the steering group’s endorsement at its next meeting on 26 November 2009. Ideally the scoring/bandings would also be agreed.

1.2 The Chair indicated that he was going to take the agenda items in a slightly different order to allow the re-visits guidance to be considered directly after the appeals paper.

1.3 Apologies for absence had been received from Dawn Welham (Asda, British Retail Consortium (BRC) representative) and from Peter Midgley (FSA Scotland) who was represented at the meeting by Pauline Wilkinson.

2.1 Geoff Makin asked that the minutes emphasize more the strength of local authority concern in relation to the re-visits mechanism and the potential impact on resources. The secretariat undertook to revise para 7.2 to reflect this. The Chair noted that, subject to this amendment, the minutes would be published on the Agency’s website shortly after the meeting.
Action: Working group secretariat

2.2 Members were content that all matters arising had either been dealt with or would be discussed under other agenda items.

3.1 Gwen Aherne updated the group on developments since the 15 September 2009 meeting, noting that the steering group had endorsed the guidance on scope and exemptions and on ‘start up’ issues and this had been issued in draft form to local authorities as part of the October progress update for interested parties. She also mentioned that the update included details of the secondment opportunities being offered by the Agency for one or two environmental health practitioners to support ‘early adopters’ of the national scheme. She also highlighted that the research on consumers and small businesses requirements for the IT platform had now been completed and the full research report would be provided to the steering rroup at the 26 November 2009 meeting. The research had helped the Agency in developing the functional specification for the IT solution and the ‘data standard’ of information that local authorities will use for publishing information on the national website.

4.1 Sally Hayden introduced the paper which included a revised draft of Q&A guidance on an appeals procedure for the national scheme and thanked members for their input. She explained that an update had been provided to the steering group at its 30 September 2009 meeting and that the group’s main concern was that the appeal process should be transparent and fair to both businesses and to local authorities. Industry representatives supported the inclusion of a ‘right to reply’ facility for businesses on the national website.

4.2 The Chair invited comments on the draft Q&A and flowchart, and the following points were discussed and agreed:
Notifying a business of their score (Q&A 1) – Notification of the score should be in writing, whether at the time of inspection or thereafter (within 14 days), and local authorities should communicate the score to the head office of multi-site businesses. A standard form for notification would be helpful for businesses.

• It was noted that David Barclay Rhodes and Dawn Welham are working on developing a list of businesses' nominated email accounts for contact with headquarters.

Information provided to businesses about their score (Q&A 2) – Local authority officers should provide details of why the establishment was scored as it was and what priority actions are needed in order to ‘improve the level of legal compliance’. It would be helpful if this information was broken down into the three elements hygiene, structure and confidence in management/control procedures from Annex 5 of the Code of Practice.
Other information about the scheme provided to businesses with their score (Q&A 2) – Local authorities should provide a minimum amount of information to businesses with their score to avoid overburdening them. Businesses should be provided with a web link to access further information about the scheme, and also contact details (name and telephone number) for the inspecting officer and Lead Officer for Food in order to be able to access hardcopies of any information, guidance or template forms.
Discouraging display of out-of-date stickers (Q&A 6) – Subject to further advice on the legal position, this answer should refer to ‘misleading’ stickers/certificates.
Time period for lodging an appeal (Q&A 7) – Subject to advice on the legal position, it should be clarified that the rule established by section 7 of the Interpretation Act will be applied in respect of businesses lodging an appeal.
Appealing a new score given after a re-visit (Q&A 8) – Text of the answer to be expanded to clarify that the new score would not be published if under appeal
What recourse does a food business operator have if they disagree with the outcome of the appeal? (Q&A 10) – More detailed information should be provided if possible to clarify the answer on this.
Right to reply (Q&A 11) – The text of the answer to be revised to clarify that local authorities will review the reply before it is published. It should be possible to complete the ‘right to reply’ form electronically or in hardcopy. Local authorities will also be able to edit out ‘clearly inaccurate or irrelevant remarks’.
Appeals form – It should be possible to complete this either in hardcopy or online. The section on the form where the food business operator explains why they do not agree with the score could be broken down into the three elements; hygiene, structure and confidence in management/control procedures.

4.3 The secretariat undertook to revise the guidance in light of discussions and to circulate it for members' further comments. If members were content the guidance would be tabled for agreement at the steering group meeting on 26 November 2009.
Action: Working group secretariat

5.1 Catriona Stewart introduced this paper, indicating that the guidance was drafted on the basis of the discussions that took place at the last meeting. There had been insufficient time to fully consider the proposal circulated by local authority members in October or to circulate a working draft in advance of this meeting. The guidance had been developed with colleagues across the Agency under the guiding principal of not undermining public protection. The Chair invited comments on the draft guidance, taking each Q&A in turn. The following points were discussed and agreed:
Information provided to businesses about the re-visits mechanism (Q&A 2) – The changes agreed for the appeals guidance should be reflected here.
Number of requests that can be made (Q&A 4) – Suggested changes to the wording to be made to make this answer clearer.
Can a new score be given if the re-visit was not requested? – This Q&A to be deleted as it is covered by Q&A 13.
What form should the request make? (Q&A 6) – It would be helpful to have a standard form for requesting re-visits divided into the three elements from the Code of Practice, similar to that circulated by local authorities, so that businesses could indicate what actions had been taken (this would not be appropriate in Scotland).
Must a re-inspection/re-visit be made or can documentary evidence be used? (Q&A 8) – A re-inspection/re-visit must be made. A new score should not be given on the basis of documentary evidence.
When should the re-visit take place? (Q&A 9) – Following detailed discussion it was agreed that the re-inspection/re-visit must take place after a minimum period of three months from the date of the inspection and within four weeks from the date of the request. The exact timing within the four week period would be at the local authority’s discretion. Advice would be sought on the legal position.
Can a fee be charged? (Q&A 12) – The steering group made this a longer-term issue within their work programme. The Agency is currently considering the issues around statutory powers.
Displaying scores on the website – The IT solution must make it possible to display a new score following a re-visit even if the intervention-rating has not been changed.

5.2 The secretariat undertook to revise the guidance in light of discussions and to circulate it for members’ further comments. If Members were content the guidance would be tabled for agreement at the steering group meeting on 26 November.
Action: Working group secretariat

5.3 Rick Mason anticipated that London local authorities may accept the re-visits guidance subject to the resolution of their concerns regarding the Agency’s decisions on the banding issues.

6.1 Catriona Stewart introduced this paper, explaining that the descriptions for what scores of greater than five for the three elements in Annex 5 of the Code of Practice used for SotD look like in practice had been developed with the help of environmental health colleagues from across the Agency, and using the approach adopted for describing scores of 0 and 5. She thanked local authority members for their work on the descriptions and highlighted that their proposals had also been circulated. These proposals had been taken into account in drafting the secretariat’s paper.

6.2 The lengthy and detailed debate that followed focussed on what businesses scoring 10 for each of the three elements would look like in practice. From the discussions, the following positions emerged:

Local authority members
Local authority representatives are comfortable with how they are currently scoring 10 as reflected in the proposed descriptions that they put forward and which had been drawn up in consultation with enforcement field officers. They considered that these descriptions are not inconsistent with the flexibility provided for in the Code of Practice and are in line with FSA-funded training on consistency of applying Annex 5.

There was serious concern that if local authorities are required to start scoring according to the FSA descriptions, the profile of establishments in their areas will change significantly with a knock-on effect on their planned intervention programmes with serious consequential resource implications. In view of the above, a three star rating for business scoring 10/10/10 was considered to be wrong.

In Northern Ireland, the Chief Officers’ Executive Committee had recently discussed SotD and were minded at that time not to support the proposal to map scores of 10/10/10 to the three star rating.

There was concern about establishments with major non-compliances being given two stars and the interpretation by the public that these businesses are safe.

There was also concern that having a broad top band would lead to more than 80% of businesses falling within the top two tiers and that this would not provide sufficient differentiation for consumers about the hygiene standards in these businesses.

Industry members
There was support for the descriptions provided in the secretariat’s paper and the format was thought to be helpful to businesses in terms of providing information on what standards are expected at the different scores.

When compared with the guidance at Annex 5 in the Code, these descriptions were consistent and assist public health protection

Having listened to the local authority members arguments, they do not consider that the standards they say are being scored at 10 should be – rather they should be scored at 15.

In view of the above, a three star rating for business scoring 10/10/10 was considered to be correct.

The issue of local authority resources in respect of any change to the way they score, was not considered to be industry’s concern.

6.3 Henry Ashworth highlighted that the Better Regulation Executive also supported the decision to give a three star rating to businesses scoring 10/10/10 on the basis of proportionality. Local authorities may not visit such establishments again for some period so the message is that such establishments are overall satisfactory and non-compliances are not critical, but to give a two star rating with the potential loss of business that may result gives a rather different message.

6.4 The Chair considered that the group had got as far as it could at this stage and highlighted that the issues raised at the meeting would be considered further by the Agency. He also noted that the working group's deliberations would be relayed to the steering group at its 26 November 2009 meeting.

7.1 Members agreed to defer the target dates for mapping of the numerical scores to the six tiers until end December 2009 (with a report on progress to the steering group at the end of November 2009). If the guidance on appeals and on re-visits was agreed by members in time for the November 2009 steering group meeting, the work programme would not need to be updated in relation to these activities. The revised work programme would be published on the FSA website.
Action: Working group secretariat

8.1 The Chair thanked members for their ongoing contributions. It was agreed that the next meeting will take place on Tuesday 8 December.