Complaints and Appeals Committee

10 January 2008 Complaints and Appeals Committee

COMPLAINTS AND APPEALS COMMITTEE

A meeting of the Complaints and Appeals Committee was held on 10 January 2008

PRESENT:Councillor Lancaster (Chair),

Councillors Biswas, Clark and Morby

OFFICIALS:M Caveney, C Davies, V Flynn and J Hedgley

**ALSO IN ATTENDANCE: Complainant: Mr R Thompson and Mr T Cope (witness)

**APOLOGIES FOR ABSENCE were received from Councillors McIntyre, N J Walker and Ward

**DECLARATIONS OF INTEREST: No declarations of interest were made at this point of the meeting.

**MINUTES

The Minutes of the meeting of the Complaints and Appeals Committee held 12 September 2007 were taken as read and approved as a correct record, subject to the addition of Councillor Clark to the list of apologies.

INTRODUCTION AND PROCEDURE

The Chair advised all present of the procedure to be followed for the Objection to be heard and introductions were made.

The representative from Legal and Democratic Services summarised Mr Thompson’s complaint, which was based on the assessment made by Community Protection Services of his premises known as Roy’s Coffee Shop. These premises had been inspected by Community Protection Services Officers and given a two-star rating under the Tees Valley Food Hygiene Award. Mr Thompson had complained and was re-inspected and re-assigned with a four-star award. However, Mr Thompson still wished to pursue his complaint, which had progressed through Stages 1 and 2 of the Complaints Procedure. A report of the Stage 2 investigation was included in the papers, and several recommendations had been made, however, Mr Thompson requested that his complaint be progressed to Stage 3, which was the purpose of this committee meeting.

OBJECTOR’S CASE

Mr R Thompson, the operator of Roy’s Coffee Shop in Victoria Road, was present and read out a statement to the committee. He confirmed that his objection was about the scheme itself. He advised Members of his background in the catering business, having over 20 years experience and that none of his one million plus customers over the years had suffered health problems. Nor had there been any criticism of the quality or service his customers had received.

Mr Thompson stated that his objection related to the basics of the Tees Valley Food Hygiene Award scheme and the ‘heavy handed way Middlesbrough’s Community Protection Services had endeavoured to bulldoze its implementation on to the many successful and reliable catering establishments in the Middlesbrough area’.

He stated that he had contacted the Council following receipt of the letter advising him of the Council’s intention to launch the Hygiene Award Scheme and that he would be awarded a certificate based on an inspection made nine months prior. He was awarded a “two star” rating, and so he contacted the department and the reasons for this were explained to him. Mr Thompson claimed that the Environment Health Manager had stated that she had never heard of him and that was a good thing, as it meant that there had been no problems with his establishment, however, he felt it was condescending and disrespectful. Mr Thompson was not happy with this rating and said he did not want to take part in the scheme and returned his certificate on 14 March 2007 as there was no legal requirement for him to keep or display the certificate. He was also unhappy about the number of empty circles left on the

certificate. Mr Thompson also distributed an extract from the Mid Beds Council website which he felt gave a better explanation of the star rating system.

Mr Thompson raised many issues, as summarised below:

• that the system was not fair and consistent over the Tees Valley region;
• that he disputed comments made by Judith Hedgley, Environmental Health Manager, in response to his press article;
• that he never demanded that he should receive the top award of five stars;
• that the disclaimer should be displayed on the certificate, in a prominent position, especially as the Council asked for the award certificate to be displayed;
• that the disclaimer was included on the web site

• that descriptive wording was changed on the national website which was damaging to his business;
• that Council ignored Food Standards Agency guidelines regarding consultation prior to the launch of the scheme;
• that the Council told businesses that “they are the food police and acted like it”;
• Mr Thomson asked for information on officer’s qualifications to grade management and buildings in food premises;
• that two inspectors had arrived at his premises even though an inspection was not due;
• that the Council coerced businesses into displaying the certificate in a prominent position;
• that Council officers wore inappropriate footwear and clothing;
• that the Council altered information on the website to the detriment of businesses
• that the Council did not respond to two letters detailing his objections;
• that the disclaimer was not prominently displayed on the certificate;
• that the scheme was complicated and made no reference to food safety or quality ;
• that a licensing scheme for food businesses should be introduced;
• that there was no consistency of the system across the Tees Valley;
• that there was no logic to the type of premises exempted from the scheme;
• that the Voiceover Panel was not a fair reflection of public opinion of the scheme as less than half responded to the survey;
• that the publicity material and certificate included the logos of the five local authorities involved in the scheme, yet not all participated in the scheme and those that did operated in a different way to Middlesbrough.

Mr Thompson concluded that public support of an eating establishment was of more merit than this scheme and that his business had been in existence for over 20 years.

OFFICERS’ RESPONSE

A report, on behalf of the Director of Environment, to address the complaint by Mr Thompson about Middlesbrough’s Food Hygiene Award Scheme, was presented to the committee. Tees Valley Food Hygiene Award was a scheme that had been approved by the Executive in February 2007 and a copy of the Executive report was attached as Appendix 2 of the report.

Full details of the scheme were included in the report. Members were advised that in 2006/07, 70% of local businesses had failed to comply with legislative requirements regarding food hygiene, to varying degrees of seriousness, and since 2005, seven prosecutions had taken place and five premises closed down, using emergency powers to protect the public. Officers felt that the publication of information on food hygiene standards was a significant method of encouraging an improvement in hygiene standards.

Mr Thompson had objected to the introduction of the scheme and Judith Hedgley had prepared a response to Mr Thompson, attached as Appendix 5. However, this was filed due to an administrative error, and when this was brought to the attention of Judith Hedgley, the letter was hand delivered to Mr Thompson, with a covering letter of apology, on 13 June 2007.

Two Council Officers, the Public Protection Manager and Ms Hedgley had met with Mr Thompson and his business partner, on 13 July 2007, to address their concerns. A letter was sent on 23 July 2007 detailing the findings of the Public Protection Manager’s recommendations, as follows:

• The two star rating awarded to Roy’s Coffee Shop was accurate based on the conditions found.
• There was consultation with 200 businesses across the Tees Valley and an article in Middlesbrough News inviting comments from businesses. The proposed scheme was also discussed with business proprietors during routine inspections.
• A re-rating system referred to in the policy will be implemented within four weeks and the policy states that premises will be eligible for a re-rating inspection after 6 months. Consultation will be carried out with the other Tees Valley authorities before implementing a reduced time period.
• A re-rating inspection of Roy’s Coffee Shop was carried out and a 4 star rating was applied.
• Due to an administrative error Mr Thompson did not receive a timely reply to his letter. The subsequent letter delivered by hand was not adequate in that it was not signed and a page was missing. An apology had been given for this.

• Information was provided on the competency of officers carrying out food hygiene inspections.
• Officers have acted appropriately with allocating star ratings to new businesses.
• Exempted premises are stated as low risk and this, in accordance with Food Standards Agency guidance, included three butchers who handled raw meat only and this was classed as low risk. In Middlesbrough, we did not routinely inspect these premises, as this was discretionary according to the Food Standards Agency’s Code of Practice.
• The leaflet regarding the scheme clearly stated that the star rating was based on the standards found on the day.
• The Tees Valley authorities have used their own local discretion in relation to issues such as branding, in the implementation of the scheme. However, there was consistency in the hygiene star ratings as this was dictated by the national Code of Practice. The use of the word “fair” on the website was accurate.
• The number of five star premises was increasing due to improved standards.
• There was no legal basis for licensing food businesses. Legislation requires food businesses to register with their local authority.

A full copy of the officer’s response was included at Appendix 7 of the report. Following the re-rating, Mr Thompson had advised the service that he did not wish to receive his star rating certificate. The action that was taken as a result of the Public Protection Manager’s report included a review of the Re-score and Appeal System, a review of Exempted Premises and at Benchmarking. For benchmarking, the University of Teesside had been commissioned to carry out an evaluation and benchmarking of Middlesbrough’s scheme against other local authorities and, together with the evaluation being undertaken by the Food Agency, would give a comparison and future direction, based on the proposal for a national scheme. The findings of the University were expected by March 2008.

Reference was made to Stage 2 of the complaint and that the Stage 2 enquiry was undertaken by Mr Ian Busby and a copy of his findings was attached as Appendix 7 of the report and was summarised in paragraphs 23 and 24. Reference was also made to the Food Standards Agency web site which gave further information on schemes such as the Tees Valley Food Hygiene Awards (TVFHA).

The Environmental Health Manager also explained that the Foods Standards Agency was proposing to launch a national scheme and there was considerable evaluation underway to identify the format of a national scheme. A recommendation was to be made to the Foods Standards Agency Board in March 2008, regarding the preferred scheme.

Questions and responses

Discussion, in the form or questions and responses, took place between the complainant, the Environment Health Manager and Members. The officer confirmed that there had been between 8-10 other complaints, from Middlesbrough food businesses, about the ratings awarded under the TVFHA scheme. It was also claimed that they received a lot of queries from businesses on how to improve their rating, however, this was welcomed by Environment Services as it would result in an overall improvement in the hygiene standards of food premises.

It was also confirmed that media coverage was at the discretion of the local press and Environment Services had no control over that, as they also had no control over the scheme operated by Mid Beds Council. Officers stated that no authority should use the word ‘safe’ in relation to food premises, as any Food Hygiene inspection was based on risk assessment and not food safety. Premises would only be certified on a risk basis and this was reflected in the number of stars awarded on the certificate, with a

higher number of stars indicating a lower risk. It was confirmed that exempt premises were where there was no cooked food being either prepared or consumed on the premises. However, anywhere where food was prepared and cooked on the premises was subject to inspection and this included residential care homes, hospitals and schools, as well as private catering businesses.

It was confirmed that the age and condition of the premises inspected was also taken into consideration, as well as cleanliness and hygiene and the management of the premises and food handling. It was also confirmed that the Council had the authority to close down premises that presented a serious risk to public health. Since 2005, seven prosecutions/cautions for food hygiene offences had been taken, and five premises had been closed, using emergency powers to protect the public. Since April 2007, there had been one emergency closure, four voluntary closures, where the owner had 48 hours to clean up the place and also that there were 8 pending formal action/court cases. If there was a serious contravention, which included dirty premises, vermin infestation etc., then immediate action would be taken to ensure that there was no risk to public health.

It was confirmed that premises were not legally required to display their certificates. It was also confirmed that the inspection of food premises concentrated on hygiene standards and not food quality. It was also confirmed that the purpose of the certificate was also to encourage businesses to improve and enable Environment Services to put more of its resources into the lower star premises and get them to improve their hygiene standards. There was an element of enforcement if there were contraventions, but the main purpose of the scheme was to improve hygiene standards in general.

Summary

Both parties were invited to sum up their representations, which they did, and reiterated all the points raised during the course of the meeting. In addition, Mr Thompson states that the term ‘Scores on the Doors’ trivialised the scheme and made it sound like a Saturday night game show.

The officer from Legal and Democratic Services summarised the final position. He stated that, having heard all the representations, the committee had to decide if Mr Thompson’s complaint should be upheld, based on the evidence received from both the complainant and the officer of the council’s Environment Services.

At this point, the Chair requested that the objectors and the officer from Middlesbrough Council should leave the meeting, to enable the Committee to deliberate on the evidence provided and reach a decision. Both parties were advised that they would be advised in writing of the Committee’s decision, within seven days.

DELIBERATIONS

Discussion took place and Members considered what was the basis of Mr Thompson’s complaint and the evidence presented by the Environment Services officer. Reference was made to the word ‘safe; and whether it could ever be used to describe an eating establishment or whether the term ‘risk assessment’ was more appropriate.

It was accepted that Mr Thompson had complained about his original 2-star rating, and that this had not been handled properly regarding the ‘lost’ reply, although a subsequent apology from Environment Services had taken place.

Members also agreed that all Tees Valley authorities should operate the same grading system, and that this could be included in the recommendations. Members were informed that the funding for this scheme was awarded as one payment to cover all five authorities, hence all their logos were included. The scoring system was based on Food Standards Agency guidelines and depended on the premises included in the scheme, however, this did produce consistency as it was a national scheme. It was agreed that all authorities should operate the same system but any changes in operation could be a resources issue.

However, Members were concerned about the amount of publicity given to the Awards scheme, given that not all members of the public had access to or used the internet. It was stated that the posters and other information available should be prominently displayed in public places such as libraries and community centres.

DECISION

Agreed, unanimously, that the objection made by Mr Thompson be dismissed.

The reasons were given as follows:

(a)the committee was satisfied that the scheme was fair and being operated consistently across the town, in terms of the common scoring standards;

(b)the scheme implemented in the Tees Valley followed Food Standards Agency guidelines and was considered by the committee to be good practice;

(c)the committee accepted that there were some inconsistencies in the way the different participating authorities presented the information and the types of businesses that were subjected to an inspection and the award of a certificate;

(d)the committee did not feel that the exempt categories were misleading, nor was the star rating system, including the empty circles, as star ratings were commonly used by a number of organisations and understood by the public;