PART 5Infringements and penalties
Infringements
14. In this Part, “infringement” means a past or continuing failure of a person to fulfil one or more of that person’s obligations under these Regulations, including those arising under the following provisions—
(a)regulation 9(4) (publication of complaint notices);
(b)regulation 9(6) (provision of complaint information);
(c)regulation 9(12) (taking the corrective steps specified in a complaint decision);
(d)regulation 11(8) (provision of additional information);
(e)regulation 11(13) (taking the curative steps specified in an appeal decision);
(f)regulation 13(2)(a) (provision of contravention information);
(g)regulation 13(6) (execution of remedial steps);
(h)regulation 13(7) (service of a remedial report notice);
(i)regulation 13(9) (provision of verification data);
(j)regulation 13(13)(a) (execution of outstanding remedial steps);
(k)regulation 13(13)(b) (service of a second remedial report notice); and
(l)regulation 13(15) (provision of secondary verification data).
Notices of intent and penalty notices
15.—(1) During the period of 90 days beginning with the day on which the enforcement authority becomes aware of an infringement, it may serve a notice (“notice of intent”) on the infringing party—
(a)informing the recipient that the enforcement authority—
(i)intends to impose a penalty on the recipient; and
(ii)may publish details of the penalty and the reasons for imposing it;
(b)specifying the infringement in respect of which the enforcement authority intends to impose a penalty;
(c)specifying the amount of the penalty that the enforcement authority intends to impose in respect of that infringement;
(d)inviting the infringing party to make representations to the enforcement authority concerning the alleged infringement and the amount of the proposed penalty during a period of 30 days beginning with the day on which the enforcement authority serves a notice of intent on the infringing party (“penalty representation period”); and
(e)specifying the methods by which the infringing party must make representations.
(2) During the penalty representation period, the infringing party may make representations to the enforcement authority concerning the infringement referred to in the notice of intent.
(3) During the period of 30 days beginning with the day on which the penalty representation period ends (“consideration period”), the enforcement authority must—
(a)consider representations made by the infringing party during the penalty representation period; and
(b)serve the infringing party with either—
(i)a penalty notice; or
(ii)a penalty withdrawal notice.
(4) A penalty notice must—
(a)specify—
(i)the date of service;
(ii)the infringement in respect of which the enforcement authority has served the penalty notice;
(iii)the enforcement authority’s reasons for imposing the penalty; and
(iv)the amount of the penalty;
(b)require the infringing party to pay the penalty during a period of 30 days beginning with the day on which the enforcement authority serves the penalty notice on the infringing party;
(c)explain the methods by which the penalty must be paid;
(d)explain the infringing party’s right (under regulation 17(1)) to object to the contents of the penalty notice; and
(e)explain the steps that the enforcement authority may take to recover overdue penalties.
(5) A penalty withdrawal notice must inform the infringing party of the enforcement authority’s decision not to serve or publish the proposed penalty referred to in the notice of intent.
(6) If the enforcement authority fails to serve the infringing party with either a penalty notice or a penalty withdrawal notice during the consideration period, it will be deemed to have served a penalty withdrawal notice.
Penalty
16. The amount of a penalty imposed in relation to a single contravention—
(a)must be proportionate to the seriousness of the contravention; but
(b)must not exceed £5,000.
Objections to a penalty notice
17.—(1) During the period of 30 days beginning with the day on which the enforcement authority serves a penalty notice on the infringing party, the infringing party may serve a notice (“penalty objection notice”) on the enforcement authority objecting to—
(a)the enforcement authority’s finding that an infringement has taken place;
(b)the amount of the penalty.
(2) During the period of 90 days beginning with the day on which the infringing party serves a penalty objection notice on the enforcement authority, the enforcement authority must—
(a)consider the penalty objection notice and make a decision to—
(i)cancel the penalty;
(ii)reduce the penalty; or
(iii)leave the penalty unaltered; and
(b)serve on the infringing party either—
(i)a notice informing the infringing party of its decision to cancel the penalty; or
(ii)a notice informing the infringing party of its decision to reduce the penalty or leave it unaltered (“penalty confirmation notice”).
(3) A penalty confirmation notice must—
(a)state—
(i)the amount of the penalty following the enforcement authority’s consideration of the penalty objection notice;
(ii)the enforcement authority’s reasons for reducing the penalty or leaving it unaltered;
(b)require the infringing party to pay the penalty during a period of 30 days beginning with the day on which the enforcement authority serves the penalty confirmation notice on the infringing party;
(c)explain the methods by which the penalty must be paid;
(d)explain the infringing party’s right (under regulation 18(1)) to appeal against the penalty confirmation notice; and
(e)explain the steps that the enforcement authority may take to recover overdue penalties.
Penalty appeals
18.—(1) During a period of 30 days beginning with the day on which the enforcement authority serves a penalty confirmation notice on the infringing party, the infringing party may appeal to the court against the contents of the penalty confirmation notice.
(2) On appeal, the court may—
(a)cancel the penalty;
(b)reduce the penalty; or
(c)confirm the penalty.
(3) So far as is compatible with any rule that applies to proceedings in the court concerned, an appeal—
(a)is to be a re-hearing of the enforcement authority’s decision to impose a penalty; and
(b)may be determined having regard to matters which the enforcement authority was unaware of when serving the penalty notice and the penalty confirmation notice.
(4) In this regulation, “court” means—
(a)in England and Wales, the county court;
(b)in Scotland, a sheriff court; and
(c)in Northern Ireland, a county court.
(5) Proceedings under this regulation may be transferred as follows—
(a)in England and Wales, from the county court to the High Court; and
(b)in Northern Ireland, from a county court to the High Court.
Payment
19. The infringing party must pay the penalty during the period (“penalty payment period”) of 30 days beginning with such of the following days as is appropriate—
(a)where the infringing party does not serve a penalty objection notice under regulation 17(1), the day on which the enforcement authority serves the penalty notice;
(b)where the infringing party—
(i)serves a penalty objection notice under regulation 17(1); and
(ii)is served with a penalty confirmation notice under regulation 17(2)(b)(ii); and
(iii)does not appeal against the penalty confirmation notice under regulation 18(1),
the day on which the enforcement authority serves the penalty confirmation notice;
(c)where the infringing party appeals against a penalty confirmation notice under regulation 18(1) and the court does not cancel the penalty, the day on which the court either—
(i)reduces the penalty; or
(ii)confirms the penalty.
Publication
20. During the period of 90 days beginning on the first day of the penalty payment period, the enforcement authority may publish a notice—
(a)stating that the enforcement authority has served a penalty notice on the infringing party;
(b)identifying—
(i)the enforcement authority; and
(ii)the infringing party; and
(c)specifying—
(i)the date on which the penalty notice was served;
(ii)the infringement in respect of which the penalty notice was served; and
(iii)the amount of the penalty.
Enforcement of payment
21.—(1) In England and Wales, an overdue penalty is recoverable as if it were payable under an order of the county court in England and Wales.
(2) In Scotland, an overdue penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by a sheriff court.
(3) In Northern Ireland, an overdue penalty is recoverable as if it were payable under an order of a county court in Northern Ireland.