Regulatory Enforcement and Sanctions Act 2008

Section 28(7)

SCHEDULE 4 Enforcement action: references to LBRO

Reference by enforcing authority

1 (1) If the primary authority directs the enforcing authority as specified in section 28(2), the enforcing authority may with the consent of LBRO refer the proposed enforcement action to LBRO.

(2) On a reference under this paragraph—

(a) if LBRO is satisfied as to the matters in sub-paragraph (3), it must confirm the direction;

(b) in any other case, it must revoke the direction (and section 28(4)(b) shall accordingly cease to apply in relation to the direction).

(3) The matters referred to in sub-paragraph (2) are that—

(a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically),

(b) the advice or guidance was correct, and

(c) the advice or guidance was properly given by the primary authority.

(4) Where under sub-paragraph (2) LBRO confirms a direction of the primary authority, it may direct the enforcing authority to take some other enforcement action (and section 28(1) to (4) does not apply in relation to that action).

(5) The enforcing authority must comply with any direction under sub-paragraph (4).

Reference by regulated person

2 (1) If the primary authority does not direct the enforcing authority as specified in section 28(2), the regulated person may with the consent of LBRO refer the action to LBRO.

(2) On a reference under this paragraph—

(a) if LBRO is satisfied as to the matters in sub-paragraph (3), it must direct the enforcing authority not to take the proposed enforcement action;

(b) in any other case, it must consent to the action.

(3) The matters referred to in sub-paragraph (2) are that—

(a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically),

(b) the advice or guidance was correct, and

(c) the advice or guidance was properly given by the primary authority.

(4) The enforcing authority may not take the proposed enforcement action if it is directed as specified in sub-paragraph (2)(a).

(5) Where LBRO gives a direction under sub-paragraph (2)(a), it may direct the enforcing authority to take some other enforcement action (and section 28(1) to (4) does not apply in relation to that action).

(6) The enforcing authority must comply with any direction under sub-paragraph (5).

(7) LBRO may require a regulated person who makes a reference under this paragraph to pay such reasonable costs incurred by LBRO as a result of the reference as LBRO may specify.

Reference by primary authority

3 (1) The primary authority may with the consent of LBRO, instead of making a determination under section 28(2) in relation to a proposed enforcement action, refer the action to LBRO.

(2) On a reference under this paragraph—

(a) if LBRO is satisfied as to the matters in sub-paragraph (3), it must direct the enforcing authority not to take the proposed enforcement action;

(b) in any other case, it must consent to the action.

(3) The matters referred to in sub-paragraph (2) are that—

(a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically),

(b) the advice or guidance was correct, and

(c) the advice or guidance was properly given by the primary authority.

(4) The enforcing authority may not take the proposed enforcement action if it is directed as specified in sub-paragraph (2)(a).

(5) Where LBRO gives a direction under sub-paragraph (2)(a), it may direct the enforcing authority to take some other enforcement action (and section 28(1) to (4) does not apply in relation to that action).

(6) The enforcing authority must comply with any direction under sub-paragraph (5).

Effect of reference

4 The enforcing authority may not take the proposed enforcement action—

(a) in any period during which the regulated person may make a reference under paragraph 2;

(b) at any time after the making of a reference under this Schedule and before its determination.

Consultation

5 (1) Before making a determination for the purposes of this Schedule LBRO—

(a) must consult any relevant regulator, where appropriate, and

(b) may consult such other persons as it thinks fit.

(2) In sub-paragraph (1)(a) “relevant regulator” means a person (other than a local authority) with regulatory functions which relate to the matter to which the determination relates.

Procedure: general

6 (1) LBRO must determine any reference under this Schedule within the period of 28 days beginning with the day on which the reference is made.

(2) The Secretary of State may by order make further provision as to the procedure to be followed, for the purposes of this Schedule, by the primary authority, the enforcing authority, the regulated person and LBRO.

Guidance and directions

7 (1) LBRO may give guidance or directions to any one or more local authorities about any enforcement action referred to it.

(2) A local authority must have regard to any guidance, and comply with any direction, given to it under sub-paragraph (1).

(3) LBRO must publish any guidance or directions given under this paragraph in such manner as it considers appropriate.

Information

8 For the purposes of this Schedule LBRO may require the primary authority, the enforcing authority or the regulated person to provide it with such information as it may specify, being information which the authority may lawfully provide to LBRO.