TS Review August 2016

t h e t r a d i n g s ta n da r d s j o u r na l

August 2016 Issue 7

Local Authorities to benefit from practical online legislation guidance By offering legislative training to your retail business partners, you can now generate additional income.

Working in partnership with Virtual College under the joint ‘TradeSimple’ brand, CTSI has developed a suite of practical online courses which offer traders jargon free, step-by-step guidance to important legislation.

Courses currently available

As a local authority reseller, you will have the benefit of your own branded e-commerce site which can be used to promote the above courses.

This provides a simple way of generating income whilst adding value to your business partnerships.

• • • • • •

Prevention of Underage Sales Consumer Contracts – Distance Sales Consumer Rights Act 2015 Trading Fairly Storing and Selling Fireworks Safely and Legally Consumer Contracts – Off Premises Sales

Coming soon •

Alternative Dispute Resolution

For further details please visit www.tradesimple.org.uk or email productinfo@tsi.org.uk

EDITORIAL BOARD Our guide to who’s who

Leon Livermore Chief executive, CTSI After 25 years in local government, Leon joined the Chartered Trading Standards Institute as its chief executive in 2013.

£1.99 - our cost to the Great British public

sara barry head of safer communities, Lincolnshire CC Sara has promoted risk reduction while guiding Lincolnshire Trading Standards Service through major budget cuts.

Welcome to the August edition of TS Review, in which we reveal the findings of the latest Trading Standards Workforce Survey. It will come as no surprise that funding and staff numbers are down, once again. The average spend on all trading standards activity in Great Britain is now £1.99 per person, per year.

Welcome

Chris Fay // Editor-in-chief

That’s less than the cost of some Sunday newspapers.

As predictable as the findings might be, the workforce survey is no less important as an exercise. Austerity is biting hard on the profession and, following the shock Brexit result, the government has abandoned its fiscal targets, which now look even more unachievable. There is a suggestion that there might be some respite for local government, and we need to measure the impact.

Melissa Dring Director of Policy, cTSI Melissa works with politicians and civil servants to make sure trading standards’ voice is heard in policy development.

In an earlier editorial welcome I opined that, by rolling the trading standards review into the cutting red tape agenda, the government had shifted the focus of its reviews without answering key questions. In our infographic on page 24, we put that in context and accuse the government of sweeping consumer issues under the carpet.

However, post-referendum and with a new Prime Minister and government, we must work to get trading standards and consumer protection back on the agenda. Regardless of whether or not you voted leave or remain, Brexit could present some opportunities for the profession.

Also in this edition: one of trading standards’ former priorities – which has arguably taken a bit of a backseat in recent years – is weights and measures.

David Templeton makes the case for maintaining metrology checks, to ensure

Dr Louise M Hassan reader in managerial studies, bangor business school Louise’s research interests are international in nature and focus on transformative consumer research.

Britain has a thriving economy.

Meanwhile, Tim Day presents his latest research showing why a nationally recognised crime definition for rogue trading needs to be adopted to help identify the extent of this debilitating crime.

Thanks for reading.

3

EDITORIAL BOARD Editorial enquiries: Carina Bailey // Tel. 0345 608 9468 // Email. tsreview@tsi.org.uk

Illustrations. Paddy Mills

Advertising enquiries: Judith Thurston // Tel. 01268 582221 // Email. advertising@tsi.org.uk

chris fay editor-in-chief

Carina Bailey Editor

Christine Heemskerk Independent consultant Christine is a self-employed consultant for the trading standards profession and chair of CTSI Council.

Melissa Dring policy columnist

Mike Sewell Managing director, CPL Mike is MD of award-winning editorial and design agency CPL, which produces both TS Today and TS Review.

matt allwright columnist

Debra nelson ART DIRECTOR

TS Review is part of a family of publications published by the Chartered Trading Standards Institute. It is written, designed and produced by CPL (Cambridge Publishers Ltd).

Tel. 01223 477411 // www.cpl.co.uk // @CPLCambridge ISSN 2058-3656

Adrian Simpson food, safety & TS Manager Waltham Forest Council Adrian is CTSI lead officer without portfolio with an academic background in journalism.

See CTSI’s monthly TS Today magazine online at www.tradingstandards.uk/tstoday Download the app: search TS Today at

About the Chartered Trading Standards Institute: www.tradingstandards.uk // Tel. 01268 582200 1 Sylvan Court, Sylvan Way, Southfields Business Park, Basildon SS15 6TH The opinions expressed in editorial material do not necessarily represent the views of CTSI.

We encourage your feedback. Write to tsreview@tsi.org.uk or comment at CharteredTradingStandardsInstitute

4

@ctsi_uk

Chartered Trading Standards Institute

No, it’s not a printing error... If you are puzzling over the illustration on the spine of your copy of TS Review, let us explain. It’s simply one of a four-part graphic that builds into the full TS Review logo over the course of a year. Stack all four issues together on your bookshelf to create your own library.

/TeamCTSI

Gareth Walters Team Leader, Monmouthshire trading standards service Gareth is trading standards and animal health team leader for Monmouthshire CC. He became a CTSI Fellow in 2013.

Contents 46

26

32

August 2016

26-31

6–10

digest Trading standards in the news

t h e t r a d i n g s ta n da r d s j o u r na l

32-35

11

Interview: Elisabeth Costa The affable Aussie talks about nudging the great British public

abstracts Quotes and stats from TS Today

12-13

predictions Top toys Christmas 2016

14-16

analysis Secondary online ticketing

17

viewpoint Broadcaster Ma Allwright has his say

18-19

viewpoint Policy debate

24-25

infographic Public safety

Academia: rogue trading Making the case for a national definition

August 2016 Issue 7

20 cover story Minimal budgets and skeleton staff are stretching services to the limit

36-38

Metrology Why it’s important that weights and measures comes back in fashion

39-40

business Mentoring Devon and Somerset set new standards in corporate support

41-44

CPPD training Online and alternative dispute resolution

46-49

Legal The product safety legislation conundrum

50

downtime Five of the best... quotes of all time!

August 2016

5

Digest

Lack of regulation tantamount to ‘social murder’ A lack of effective regulation in the UK is tantamount to social murder, according to Professor Steve Tombs.

His research, Be er Regulation: Be er for Whom?, found that – between 2004 and 2013 – there were 34 per cent fewer food standards inspections and 28 per cent fewer prosecutions. He believes this led to around one million cases of food-borne illness each year, resulting in 20,000 hospital admissions and 500 deaths.

A report published by the Centre for Policy Studies has highlighted that new bills are becoming so long that parliament is unable to scrutinise them properly. The 1960 Annual Volume of Public General Acts – the official edition of all acts passed that year – was 1,200 A5 pages long; the 2010 edition was 2,700 A4 pages.

Organised crime groups not a big presence in UK food supply chains

The Food Standards Agency’s National Food Crime Unit published its first assessment of the crime threat to the

GOVERNMENT U-TURN ON ANIMAL WELFARE CODES Controversial plans to repeal statutory farm animal welfare codes and introduce industry-led guidance have been scrapped by the government.

The proposals involved revoking the statutory code for poultry welfare and introducing welfare guidance produced by the British Poultry Council. The U-turn followed a Freedom of Information request

by The Guardian.

UK’s £200bn food and drink industry. The Food Crime Annual Strategic Assessment found little evidence to suggest that organised crime groups had made significant inroads into UK food supply chains.

6

Source: TS Today May 2016 – July 2016 www.tradingstandards.uk/tstoday

Hot topic: trends Citizens Advice January – March 2016

+977% increase in cases

about tumble dryers

Top 5 local Citizens Advice consumer issues

+16%

increase in cases about air travel

-41% decrease in cases about beauty treatments

1 Personal pensions 2 Financial capability 3 Credit reference agencies 4 Water and sewerage 5 Parking and congestion

Monitoring of online hotel sector under way

Digest

Consumer service trends

The online hotel booking sector is being monitored by the Competition and Markets Authority (CMA) as part of a wider EU project, after online travel agents unfairly changed their terms and conditions.

Questionnaires have been sent by the CMA – in partnership with the European Commission and nine other competition agencies in the EU – to hotels across the UK. The

approach across the 10

of this year. It will allow

CMA is aware of concerns

project was launched

countries, will collect

the CMA – which closed

raised by a number of

after online travel agents

information to assess how

an investigation into the

hotels about how this

Expedia and Booking.com

this change – plus other

sector in September 2015

market is operating.

changed their terms and

recent developments,

– and other competition

conditions in July 2015

including several

agencies to determine

our commitment to watch

to remove certain ‘rate

investigations across

whether there is a need for

this market closely, to

parity’ or ‘most-favoured

Europe into a range of

further action in this sector.

ensure consumers are

nation’ requirements.

pricing practices in the

Ann Pope, CMA senior

This prevented competing

online booking sector –

director for antitrust,

competition. We welcome

hotels from offering

have affected the market.

said: ‘Consumers benefit

responses to this survey,

cheaper room rates.

The joint monitoring

from lower prices and

so that we can see how the

work is expected to be

better service in a truly

market is developing in

completed by the end

competitive market. The

light of recent changes.’

The questionnaires, which use a common

‘This project is part of

benefiting from effective

NEW GOVERNMENT

Anna Soubry – former minister with responsibility for trading standards – was sacked from her post in July, as the new Prime Minister, Theresa May, began forming her government after the EU referendum. Her replacement was still to be announced as TS Review went to press.

So far, May has announced Brexiteer Boris Johnson as Foreign Secretary, Philip Hammond as Chancellor, Amber Rudd as Home Secretary and David Davis as ‘Brexit’ Secretary.

August 2016

7

What’s in a name?

When a company insisted it was not a supplier but a service provider, it opened the door for a unique

Digest: Case study

prosecution by Birmingham Trading Standards When is a supplier not

Newemoo had been

Words. Gary Singh Images. Shutterstock

a test purchase of a Cubot

identified similar phone

a supplier – or even a

known to Birmingham

mobile phone kit, which

kits made by the same

‘fulfilment house’? When

Trading Standards for

was sent for safety tests.

manufacturer in China.

it’s a service provider! Not

a number of years as a

The phone charger was

A sample was taken and

the best joke in the world,

medium-sized ‘supplier’

found to have inadequate

sent for tests, which again

but Birmingham Trading

of mainly electrical goods.

levels of protection and to

concluded that the charger

Standards had the last

It had been advised, visited,

pose a serious risk of electric

posed a serious risk of fire

laugh when an importer

spoken and written to on

shock. These results were

and electric shock.

of unsafe electrical goods

several occasions, and had

sent to Birmingham Trading

tried to circumvent the

been prosecuted previously.

Standards, the Home

Newemoo’s premises on

Authority for the defendant

2 April 2015 and seized a

company, Newemoo.

large quantity of the Cubot

Consumer Protection Act

In May 2014, Newemoo

Officers went back to

1987 (CPA) by claiming only

pleaded guilty – again at

to be a ‘fulfilment house’.

Birmingham Magistrates’

In doing so, it inadvertently

Court – to 60 offences

was listed on HM Revenue

randomly selected other

admitted to providing a

under the CPA and the

and Customs’ website as an

electrical items for testing,

The company – which

phone kits. They also

service – so was prosecuted under the General Product Safety Regulations 2005 (GPSRs) instead!

It was the first time GPSRs had been used to secure the conviction of a fulfilment

‘The company’s actions – or lack of – presented a ‘clear and present’ danger. The inability of the company to comprehend the serious safety issues that it ignored on a daily basis put consumers at risk of harm’

house. Here’s how the Electrical Equipment

importer – had been told, in

and found that these, too,

(Safety) Regulations 1994 for

no uncertain terms, that all

posed a risk of fire and

Newemoo Ltd and its

supplying unsafe electrical

of its electrical products had

electric shock. In total,

director, Yi Li, pleaded guilty

equipment. The firm was

to comply with relevant UK

212 items were either seized

at Birmingham Magistrates’

ordered to pay £16,000 in

and European laws, and that

or subject to suspension

Court to three offences

fines and costs. However, the

it had to have the products

because of safety failures.

each of exposing for supply

question of whether or not it

tested to ensure compliance.

(distributing) a quantity of

was a fulfilment house had

mobile phone adapters, plus

never arisen because, at that

referral from Hampshire,

interviewed Li, and his legal

other electrical products, that

time, there was no debate

Birmingham Trading

representative read out a

were dangerous, contrary

around the issue.

legislation came to be used.

On 17 March 2016,

On 5 August 2015, trading standards officers

Standards visited the

pre-prepared statement:

Seven months later, in

company’s premises on

‘Newemoo provide a

GPSRs. Each was fined

December 2014, a referral

9 February 2015, to carry

warehouse and a pick

£2,250 and costs of £5,170

was made from Hampshire

out an inspection of the

and pack facility for other

were awarded against them.

County Council concerning

warehouse, and officers

businesses to use. In essence,

to Regulation 8(1) (a) of the

8

As a result of the

August 2016

consumers at risk of harm.

products with us and we

At no point did Newemoo

then select and dispatch

indicate that it was prepared

goods for our customers to

to ensure future compliance,

their clients. We charge a

as it did not consider itself

fee to the business for the

to be a ‘supplier’. The scale

provision of this service.

of the business, and the fact

Many of our customers

that previous trader advice

sell their products online

had been given, could not be

through websites such as

disregarded when it came

eBay and Amazon.’

to determining the most

From this statement – and associated documents supplied in support of Li’s

Newemoo ignored serious safety issues on a daily basis

appropriate course of action against the company.

Prosecuting the company

assertions – it was clear that

again appeared to be the

Newemoo was importing

only option. However, by

electrical goods directly from

now, fulfilment houses were

China and distributing them

‘flavour of the month’ and

without carrying out any due

a way to tackle the issue of

diligence on their safety. In

supply referred to in the CPA

our view, the company was

and the Electrical Equipment

being entirely negligent in

(Safety) Regulations 1994 had

this duty, and had continued

to be investigated before this

to flout the law since it had

could happen.

been prosecuted on the first

Previously, Newemoo

occasion. Unless immediate

had been summonsed and

preventative action was

prosecuted for supplying

taken by Newemoo, there

unsafe electrical products as

was a distinct likelihood of

an importer. This time, we

serious injury to consumers

believed the company was

and/or damage to property.

likely to argue that:

Concerns were also raised about the defendant company’s continued ability

• It offered only a ‘pick and pack’ service to its customers in China

to supply goods via the

• It was not an importer

internet and directly through

• It was a ‘fulfilment house’

the post. It was our view

– a third-party service

that the company’s actions –

that fulfils client orders on

or lack of them – presented

behalf of business owners

a ‘clear and present’

Digest: Case study

those businesses store their

• It took charge of receiving

danger. The inability of the

products from the supplier

company to comprehend the

(in China), housing the

serious safety issues that it

inventory, receiving orders

ignored on a daily basis put

from the business owner’s

9

Digest: Case study

‘The scale of the business, and the fact that previous trader advice had been given, could not be disregarded when it came to determining the most appropriate course of action against the company’

interview, Li stated that

or in connection with

Newemoo does not sell

the performance of any

or import any electrical

statutory function or

equipment, but merely

(f) giving the goods as a prize

provides a ‘warehouse and

or otherwise making a gift

pick and pack facility for

of the goods

other businesses to use’.

We believed Newemoo and

However, he went on to say

Li would argue that their

that ‘we charge a fee to the

business model – that of a

business for the provision

clients (directly from

fulfilment house – did not

of this service’ – which

China), and packaging

fall within this definition

goes back to Regulation 2

and shipping the orders to

of supply, which would

of the GPSRs, extending

customers. For this it got a

be a requirement for any

the meaning of supply to

flat fee per package.

offence(s) to be made out.

include ‘making a product

• There was no contract

Taking this into account,

available, in the context of

between the fulfilment

we proposed the following:

providing a service, for use

house and the consumer

That there is a distinction

by consumers’.

Birmingham Trading

As a business model,

between the enforcement

‘fulfilment house’ is relatively

provisions under the CPA

Standards decided to test the

new, and doesn’t necessarily

and those contained within

assertions and legal opinion

fit into our current regulatory

the GPSRs. Regulation

in the courts – and, as

and legislative framework.

2 of the GPSRs extends

detailed above, the company

Under the CPA, the definition

the meaning of supply to

and Li pleaded guilty to three

of ‘supply’ is as follows –

include ‘making a product

offences each earlier this

available, in the context of

year.

46 Meaning of ‘supply’

providing a service, for use by consumers’.

We believe that the company, to avoid being

(1) Subject to the following

Accordingly, we made

considered a ‘supplier’ as

provisions of this section,

the case that Regulation 20

defined by the CPA, had

references in this Act to

under the GPSRs should

inadvertently admitted to

supplying goods shall be

be used to prosecute

providing a service. This

construed as references to

the company and its

opened the door to using

doing any of the following,

director, as they would

the provisions under the

whether as principal or

now be considered to

GPSRs ‘making a product

agent, that is to say:

be a distributor that has

available, in the context of

(a) selling, hiring out or

breached its duty of care

providing a service, for use

lending the goods

under Regulation 8 of the

by consumers’.

(b) entering into a hire-

GPSRs. In support of this,

This, together with Kirk’s

purchase agreement to

we referred to legal opinion,

legal opinion – which was

furnish the goods

dated 12 November 2013, by

invaluable – proved to

(c) the performance of any

Jonathan Kirk QC – ‘Product

be very persuasive and

contract for work and

Liability for Goods Imported

‘encouraged’ the defendant

materials to furnish the

from Outside the European

company to plead guilty.

goods

Union’ – opinion on the

(d) providing the goods in exchange for any consideration other than money

10

(e) providing the goods in

product liability of fulfilment house companies.

In his pre-prepared statement during his formal

Gary Singh is a principal trading standards officer at Birmingham Trading Standards.

August 2016

What is absolutely necessary is clarification by doing a test case with existing legislation, or by a change in the law GERRY TAYLOR MOTOR TRADE EXPERT SPEAKING AFTER AN UNDERCOVER INVESTIGATION BY THE SUN INTO THE UK’S CAR CLOCKING ‘EPIDEMIC’

More than £30m of fake goods were seized and 100 arrests made during Operation Salang in the Barras Market area of Glasgow OPERATION SALANG THE RESULTS

Nobody has done inspections to see how prevalent cross-contamination is. Everybody knows it’s there, but to what extent – or how bad it is – we don’t know

In 2015, Google disabled more than 780 million ads for reasons ranging from counterfeiting to phishing

Abstracts NORTH YORKSHIRE TRADING STANDARDS’ ROB BLACKLOCK SPEAKING AFTER THE SENTENCING OF RESTAURATEUR MOHAMMED ZAMAN WHOSE GROSS NEGLIGENCE LED TO THE DEATH OF PAUL WILSON

GOOGLE ANNOUNCEMENT

From TS Today

I consider this an acknowledgement for the work that the whole trading standards profession does in protecting consumers and legitimate businesses, and I am happy to have played a small part in that throughout my career CAROL BRADY CHAIR OF CTSI’S BOARD SPEAKING AFTER BEING MADE MBE FOR SERVICES TO CONSUMERS AND BETTER REGULATION

The job you do is unique; it’s one of the few jobs that balances the public good with business good and looking after our citizens. Whatever happens, whatever Friday morning [the day after the EU referendum] brings, that will still be our job’ CTSI CHIEF EXECUTIVE LEON LIVERMORE SPEAKING AT CTSI CONFERENCE IN JUNE

Sometimes, we are taking a bow and arrow to a gunfight. We are not as clever as some of the best scammers, and what we need is a bloody big tank. All we’re doing is refining our bow and arrow. We need to think differently about how we challenge a new marketplace DAVE HOLLAND HEAD OF SHARED REGULATORY SERVICES SPEAKING AT CTSI CONFERENCE IN JUNE

Source: TS Today May – July 2016 www.tradingstandards.uk/tstoday

About £52bn is lost to scams every year.

The average age of a scam victim is 74 but, according to Action Fraud, 53 per cent of people aged 65 or older have been targeted LAUNCH OF CTSI’S SCAMBASSADOR CAMPAIGN

In a survey by Which?, three-quarters of people said the government needed to take immediate action against Volkswagen – while 94 per cent of the 30,000 respondents believed car manufacturers are not being fair to UK consumers RICHARD LLOYD EXECUTIVE DIRECTOR OF WHICH?

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Predictions

3

Toy story

7

Knowing what’s likely to be the must-have toy this Christmas could help trading standards stay ahead of the game

9

Words. Katie Silvester The influx of unsafe hoverboards to Britain’s ports in the run-up to Christmas last year kept trading standards officers across the country very busy.

But in the fast-moving toy market, hoverboards have already lost their edge and the nation’s children are turning their attention to the ‘next big thing’ to put at the top of their Christmas list this year.

If trading standards is to be proactive in tackling counterfeiters and rogue traders, then knowing what these wishlists might contain would be useful. So what do the UK’s high street toy retailers expect to be under the nation’s trees come 24 December?

Argos has already released its predictions for this year’s top sellers, which include: Lego; a selfie mic; a caterpillar that teaches toddlers to write computer code; Paw Patrol merchandise; robots; and even old-fashioned dolls with a technological twist.

Linzi Walker, chief toy buyer for Argos, says: ‘This year’s list shows just how much toys are evolving… with more sophisticated tech, life-like functions and up-to-date

blasters, games, robots, pre-school playsets, dolls and

pop-culture references.’

collectables are likely to do well this Christmas, adding

Frederique Tutt, global toy industry analyst at business consultancy NPD Group, says building sets,

12

that traditional toys continue to do well. ‘We think there will be more connected toys in the future,’ she says.

August 2016

TS REVIEW’S PREDICTIONS FOR ­ ’S TOP CHRISTMAS TOYS

1 Lego Nexo Knights

This new release from Lego was voted Toy of the Show by editors at the London Toy Fair 2016.

2

2

Sphero’s Force Band for BB-8 robot The BB-8 robot from Star Wars: The Force Awakens can now be controlled by a bluetoothenabled wristband. The wearable technology was huge at this year’s New York Toy Fair.

3 Hasbro’s Pie Face!

This popular game has remained one of the UK’s bestselling toys since its launch in 2014.

A Frozen-themed robot toy that aims to eke yet more life out of Disney’s huge franchise.

5 Fisher-Price Code-a-pillar

‘We’ve progressed from the toy caterpillar that toddlers could pull across the floor to one that starts infants on the road to clever coding,’ says Argos’s Linzi Walker.

Predictions

4 Disney Skate & Sing Elsa

6 Star Wars: The Force Awakens Millennium

Falcon Radio Controlled Flying Drone There was an increased number of drones on show at the 2016 Las Vegas Consumer Electronic Show, leading some commentators to call this ‘the year of the drone’. Add ‘Star Wars’ into the mix and this is likely to be a big seller.

7

Spin Master Paw Patrol Air Patroller Based on the popular Nick Jr television show for youngsters, Paw Patrol Air Patroller generated a lot of interest at the London Toy Fair.

8

5

Mookie 3D Magic 3D Maker Inspired by 3D printers – but much easier to use – children can create masterpieces with this magic gel, which turns into a 3D object when cured.

9 Snuggles My Dream Puppy

Another of Argos’ predictions for success this year, this so toy has a nodding head and tummy that moves when it breathes.

Sources: www.argos.co.uk www.cnet.com www.christmastoysite.com www.cnbc.com www.npdgroup.co.uk www.btha.co.uk

August 2016

10

Kinetic Sand This popular, tactile building material – which sticks to itself, making it easy to mould – is going to remain on many children’s ‘must have’ list this year, according to christmastoysite.com

13

A year a er the Consumer Rights Act’s ticketing provisions came into force, a report assesses their effectiveness

Analysis

One-way ticket In the face of growing

provisions had been a

original draft of the CRA,

tasks over the internet –

online ticket fraud, a

year after they came into

but were added in a House

to buy large numbers of

report on the impact of the

law. Professor Michael

of Lords amendment.

tickets from a primary

ticketing regulation section

Waterson, an academic at

A private member’s bill

website when they first

of the 2015 Consumer

the University of Warwick,

brought by Labour MP

go on sale. One of his

Rights Act (CRA) has

was commissioned by

Sharon Hodgson – aimed

recommendations is for

just been presented to

the government to do

at regulating the secondary

the live event industry to

parliament.

the review, which was

ticket market – failed to

join the Cyber-security

presented to parliament

get though parliament

Information Sharing

in May.

in 2011, so an All Party

Partnership (CiSP). Others

Parliamentary Group

include:

(APPG) on ticket abuse was

• A National Trading Standards investigation

More than £5m was lost to online ticket fraud in the UK in 2015, according to Local Government

The ticketing provisions were not contained in the

Association figures,

established.

The group targeted

– including trying out the

Customers buying fake

the Consumer Rights Bill

CRA provisions – which

tickets lost an average of

with a Lords amendment

may require dedicated

£444 per transaction.

specifying that – when

compared to £3.35m in 2014.

Aside from fraud, some

tickets are resold – the seat

MPs have joined music

number must be divulged,

artists – including Elton

as well as any restrictions

John and Adele – to express

on the ticket and its original

their concern about the

face value.

huge mark-up touts make

Under the final terms of

funding • Fining non-compliant secondary ticketing websites • Secondary sites taking more responsibility for compliance, including working with each other

when they sell tickets on the

the act, secondary websites

secondary market at inflated

are also obliged to report

to share best practice

prices. An extreme example

criminal activity; however,

• Primary ticket sellers taking a more proactive

of this was an Adele ticket – originally bought for £85 – on sale on the Get Me In website for £24,840.

The independent Review of Consumer Protection Measures Concerning Online Secondary Ticketing Facilities was a requirement of the CRA, to understand how effective its ticketing

14

Words. Katie Silvester

MUMFORD & SONS

‘If getting on stage is one of the best things about being a musician, seeing your audience get ripped off is the worst’

free-market concerns meant constraints on the sum that

approach to self-

tickets could be resold for

regulation, including

were not included.

using security to stop bots

In his report, Waterson

buying up tickets

indicates that scams are

The report acknowledges

more of a priority than

that the primary

pricing issues, but he does

enforcers of the CRA’s

tackle the fact that touts

ticketing provisions are

use ‘bots’ – software apps

local authority trading

that perform automated

standards services,

August 2016

Jun 2010

Dec 2013

Mar 2015

May 2015

Oct 2015

May 2016

Labour MP Sharon Hodgson tables an unsuccessful private member’s bill to regulate ticket resales

An All Party Parliamentary Group on ticketing abuse is established

The Consumer Rights Act is passed, including a House of Lords amendment on ticket resales

The act’s secondary ticketing provisions come into force

The government commissions Professor Michael Waterson to write a review on the act’s ticketing provisions

The Waterson Report is presented to parliament

alongside the Competition

too, recognises the key role

Professor Waterson’s

both civil breaches and

and Markets Authority

that trading standards plays

review, and we feel his

criminal offences.’

(CMA). Waterson also

in enforcing the ticketing

recommendations are

recognises that local trading

provisions and echoes

tangible goals that ensure

expert, is pleased that

standards enforcement – in

Waterson’s thoughts about

fans are put first in the

Waterson has put a strong

partnership with the police

the likely need to increase

secondary market,’ she says.

emphasis on the need for

– has been working, even

funding for this.

though both organisations are under a lot of pressure.

Welcome change

‘That is why the APPG

Peter Stonely, civil law

ticketing websites to self-

will be putting pressure on

regulate. ‘The challenge

the government to ensure

that Professor Waterson

‘The APPG strongly

that these recommendations

has thrown down is to

the APPG on ticket abuse,

welcomes the

are achieved, finally to see

the industry itself to have

welcomes the report. She,

recommendations of

fans not being ripped off by

controlled entry to venues,’

ticket touts.’

Stonely says. ‘He’s also

Hodgson, co-chair of

The Waterson report

ticketing operations doing

groups of people who use

more to spot fraudsters.

secondary ticketing sites for

He’s put a lot of onus on the

reselling tickets:

industry. If they get their

• Touts who buy up tickets

house in order, then trading

to sell at higher prices,

standards can really focus

never intending to go to

on the frauds.’

• Attendees who buy more

ROYAL BLOOD

‘We have seen first-hand the problems caused by the unscrupulous actions of professional ticket touts. The ecstatic feeling of announcing and putting a tour on sale is shortlived when we immediately see that these tickets are marked up at a staggering increase and listed on secondary ticketing websites’ August 2016

talked about secondary

finds that there are three

the event

Off limits

tickets than they need to

Stonely recognises that

sell some at a profit

Waterson had quite a

• People who buy their

limited brief, as the ticketing

ticket intending to go to

provisions in the CRA were

the event, but who can no

all he had to work with. He

longer make it

calls the act ‘a compromise’

‘Broadly speaking,’

between the Lords – who

says Waterson in the

wanted control over mark-

report, ‘the necessary

ups on tickets – and the

powers for enforcers

government, which felt the

exist and, theoretically,

free market should prevail.

all the elements are in

Analysis

Timeline

‘When it came to the

place to enable effective

really sensitive issue of

enforcement action for

the mark-up on reselling

15

Analysis

tickets, Professor Waterson

did question why trading

sort of dodged that. But I

standards wasn’t doing

suggested that National

review, but it’s highlighting

think the artists themselves

more and we pointed

Trading Standards take

a problem that trading

are concerned and

out that – in the face of

a lead role, because it is

standards is unable to

probably want the same

ever-decreasing budgets

potentially better placed

resource properly,’ she says.

as consumers – but does

– it comes down to

to deal with a nationally

‘Funding has been cut by

the industry in between

prioritisation. Quite frankly,

significant issue.’

50 per cent in the past three

them feel the same? If you

a lot of local authorities

sell out an event in the first

aren’t going to prioritise

Non-compliance

five minutes, does it matter

someone who’s bought

Andrews is also concerned

area is a priority, but the

where those tickets end up?

a few scam tickets over

about the difficulty of

focus tends to be vulnerable

an old, vulnerable person

taking action against non-

consumers.’

venues, however, was

who’s been conned out

compliant ticketing websites

Like her trading

saying they don’t want touts

of tens of thousands of

based outside the UK. ‘They

standards colleagues

buying up all the tickets

pounds.

‘One of the really big

‘It was great to have a

years, which means we have conflicting priorities. This

tend to be registered in

Stonely and Andrews,

and they felt very strongly

Switzerland, Luxembourg

Baxter has found the fact

about it.’

and places like that,’ he says.

that many secondary

‘They are selling to people in

ticketing websites are

ultimately, the CRA does not

the UK, so the CRA applies,

based abroad can make

help event-goers very much.

but quite how that would

enforcement difficult, and

It makes it easier for venues

work with any potential

there’s a lack of awareness

to uphold a ban on reselling

action remains to be seen.

about how to report fraud.

Stonely believes that,

tickets as a condition of

‘There is a series of

‘More work needs to be

purchase, but – given that

recommendations that

done to provide education

there will always be a

trading standards, the CMA,

in this area,’ she says. ‘The

market for secondary ticket

the police and the industry

Consumer Empowerment

sales – it is the consumer

should do more. For our

Alliance is launching a new

who takes all the risks, as

part, we’ll be carefully

campaign called Friends

considering what Waterson

Against Scams, which

has recommended and how

should help.’

they may be turned away.

‘CTSI’s position is that this piece of legislation does not help consumers. It says to the events organisers: “You have the right to cancel tickets that have been resold, providing you tell consumers.” Then it says to the secondary ticketing sites: “You’ve got to give more information.” If they do that, the organisers can spot the resold tickets and cancel them.’

Mike Andrews, national coordinator for the National Trading Standards e-crime team, gave evidence to Waterson for the review.

‘Professor Waterson

16

‘I think that’s why he has

ELTON JOHN

‘I’d rather have empty seats.

I think it’s extortionate and I think it’s disgraceful. The fact they [fans] are willing to pay that [amount] is fantastic. But I’d rather they’d save their money and not come’

we can resource that.’

(Various media reports, December 2015)

trading standards’ funding

Stonely, Andrews and

Like Stonely, Andrews

Hodgson all agree that

feels that the CRA – and,

the secondary ticketing

consequently, the Waterston

market may not willingly

report – was a bit of a

take the steps towards

missed opportunity in

self-regulation that the

terms of curbing the worst

report calls for. ‘If this is

excesses of the profits that

not achieved voluntarily

touts can make on tickets.

by the resale websites,

Louise Baxter, National Trading Standards’ Scams

then the government must intervene,’ says Hodgson.

Team manager, welcomes the report and thinks its recommendations look largely workable. However, she points out that – while ticket fraud is growing – is dwindling.

References 1. Independent Review of Consumer Protection Measures concerning Online Secondary Ticketing Facilities 2. www.royalblood.com 3. www.bbc.co.uk 4. www.mumfordandsons.com

August 2016

BREXIT! The Musical Let’s face it, BREXIT! The Musical has to be just days

this to ponder is whether EU test cases, which determine

away. The drama over the last few weeks has made the

the way that law is applied, will still work in the UK.

social upheaval depicted in Andrew Lloyd Webber’s Evita

Presumably not.

look like a game of slapsies. I’m already writing the songs

The tricky bit seems to be in the longer term, when

in my head: Gove’s centrepiece dance number, I’m Very

we start to deviate from European law. At the point

Well Equipped Indeed, Corbyn’s quiet lament, It’s My

where we start fashioning consumer rights law for the

Party and I’ll Hide If I Want To. And BoJo’s barnstorming

UK alone, we are going to need two sets of rules: the

finale, What On Earth Am I Going To Do Now? It would

ones we use when we buy things from UK suppliers

be funny if it wasn’t so serious.

and retailers, and those we use when we dealing with

Let me nail MY colours to the mast here. I have

our estranged partners on the continent.

It’s going to be

absolutely no opinion about the outcome

tricky, but if we

of the referendum.

think about how

Of course I do – like

much we currently

anyone else – but

already buy from

I’m not in any way

the US, China and

allowed to express it

elsewhere, it’s not

thanks to the unique

impossible. Take the

way the BBC is

UK (and EU) Distance

funding my life. So

Selling Regulations

what can I actually

– 14 days if you

say in this column?

don’t like it, right or

Well, now that we are Brexiting, it’s my duty to try to work out what it means for the consumers of Britain.

From what I’ve read, in the short- to medium-term it means almost nothing at all. For a start, we’ve got at least

Viewpoint

Words. Ma Allwright // Illustrations. Paddy Mills and Will McPhail

wrong. In five years our government may decide that’s not working. Then, buy a pair of slippers online from Leicester: one set of rights; from Lille, another.

Most consumers don’t fully understand the unified

two years before we actually cast off and leave the EU.

rights they’ve already got, despite me sticking them on

Once we’re adrift, yes, crucial bits of legislation – like my

the screen at every opportunity. So we’ll have to be extra

favourite, the 2008 Consumer Protection Against Unfair

vigilant and watch out for key changes.

Trading Act – did emanate from the mighty bowels of Brussels, but our government has backed up that EU law with UK law, which makes it Brexit-proof. One element of

August 2016

Ma Allwright is a television presenter and journalist. He presents BBC programmes including Watchdog, Rogue Traders, The Housing Enforcers, and Saints and Scroungers.

17

Getting our voice heard as Britain heads for the exit Viewpoint

Words. Melissa Dring // Images. Shutterstock Just over halfway through 2016 and it seems almost

government’s direction, particularly its approach to

certain that this year will prove to be a milestone in

Britain’s exit negotiations.

British – and possibly world – history. On 23 June the

A key question for the trading standards profession

electorate voted by a slim majority to exit the European

will be whether the UK remains within the European

Union – provoking a whirlwind few weeks in British

single market, which would mean retaining the vast

and European politics and huge uncertainties about the

majority of rights and obligations from Europe. Exiting

future, both in the short and long term.

the single market, on the other hand, could mean a

During the pre-referendum campaign, very little

much more fundamental review of consumer protection

attention was paid to consumer protection issues and

legislation. In either case, the UK government will have

the rights that UK consumers have within the EU.

to assess and analyse which laws on the UK statute book

Immigration and – somewhat bizarrely – the technical

are derived from, or influenced by, the EU – including,

subject of sovereignty and ‘taking back our country’

for example, the Consumer Rights Act – and which EU

became the focus of debate. What little was said about

regulations are directly applicable.

regulation was restricted to negative views from the Leave camp.

The views expressed by panellist Bill Good at CTSI Conference, just days before the vote, were typical: the EU is excessively bureaucratic and imposes an unacceptable burden of red tape on businesses, which restricts their potential for growth.

However, Leave campaigners were not able to articulate clearly which rules and regulations in particular they objected to, or which should be removed in the

IT’S CRITICAL THAT CONSUMER PROTECTION IS ON THE AGENDA DURING EXIT NEGOTIATIONS

event of ‘Brexit’.

Equally, no single clear vision of a post-EU Britain

18

The short-term impact of Brexit on the economy, on

has emerged, either in the weeks running up to the vote

the other hand, is clear. Before the referendum, former

or in the immediate aftermath. In recent weeks, this has

Chancellor George Osborne threatened that longer and

been partly because of the leadership vacuum in the

deeper austerity would follow a vote to leave, prompting

wake of David Cameron’s resignation as Prime Minister,

claims of scaremongering and a ‘punishment’ Budget.

triggering a contest within the Conservative Party. The

While still in post, Mr Osborne later withdrew that threat,

election of new leader, Theresa May, who became Prime

and instead dropped his target of a budget surplus by

Minister at the time of writing this column, should

2020 in recognition that the economic shock of Brexit

help to clarify some of the key questions about the new

makes that unlikely to be achievable. However, the next

August 2016

fall from the £213m identified in 2009.

Further insights from the

Budget will have to

workforce survey are

take the downgraded

explored on page 20.

economic outlook into

Unfortunately, although

account and it seems likely

this evidence shows more

that the Budget settlement for

than ever that urgent solutions are

local government will change, with more cuts ahead.

Naturally, this will be hugely disappointing for local

needed for trading standards, political and economic turmoil are likely to delay the conclusion of the

government – less than a year after finally securing

Cutting Red Tape review. While former Prime Minister

indicative four-year settlements (with conditions),

David Cameron announced there will be no change to

which provided some long-awaited financial certainty.

the legislative programme set out in the Queen’s Speech,

It is possible government will return to year-on-year

ministers and civil servants are likely to be preoccupied

settlements reflective of economic turmoil. It is also

with issues surrounding Brexit for a number of years.

likely that public sector funding will be reduced even

Although largely sidelined in the debate before the

further, despite the challenges facing local government

referendum, it’s critical that consumer protection is on

in meeting the demands of an ageing population with

the agenda during exit negotiations and we will continue

increased care needs.

to advocate the need for trading standards’ expertise and

Our newly released workforce survey therefore comes at a key moment for local government. Unsurprisingly, the figures show further decline in financial and human

Viewpoint

£120m – a dramatic

experience and a strong regulatory regime to facilitate economic growth and trade.

We will work with government departments, local

resources for local authority trading standards over the

government associations, consumer protection partners

past two years. Staff numbers have fallen by more than

and others to build a strong coalition voicing these issues

10 per cent since 2014 – a total decline of 53 per cent

during the negotiations. The role of expert professional

since 2009. While, on the whole, budgets continue to fall,

officers advising and supporting business, and protecting

there remains huge variation in money for individual

consumers from those who seek to take advantage of

services; some services have budgets running into the

them during this period of uncertainty, will be more

millions, while five respondents to this year’s survey

important than ever.

have funding of £200,000 or less. The total spend on local authority trading standards in 2016 is approximately

August 2016

Melissa Dring is policy director at CTSI

19

SKELETON

Some local authorities’ trading standards services are

lowest for 2016-17 recorded at £143,789. With complex

now operating on less than £200,000 a year, CTSI’s

prosecutions often costing hundreds of thousands of

latest Workforce Survey has revealed, as funding cuts

pounds, increasingly it is becoming too costly to proceed

bite ever more deeply across the UK. And it will come

with the biggest cases. Seven-figure prosecution costs are

as no surprise to those working in the profession that

not unheard of; the Competition and Markets Authority

staffing levels have fallen by more than half over the

spent £1.4m prosecuting a £21m pyramid scheme in the

past seven years – including a 12 per cent drop since the

Bristol area – a figure that is well beyond the reach of

last Workforce Survey in 2014. Austerity has continued

most local trading standards services.

to intensify, with the total spend on trading standards

Barrister Jonathan Goulding, of London’s Gough

services falling to an estimated £124m – down by more

Square Chambers, works closely with trading standards

than a third – from £213m in 2009.

teams and is all too aware of the impact of the funding

CTSI’s 2016 Workforce Survey makes grim reading;

cuts. ‘Following the severe cuts in public spending,

81 per cent of respondents feel that budget cuts have

including to local government – and, therefore, trading

had an impact on their service’s ability to protect council

standards – and the change from the Trade Descriptions

residents. Trading standards now costs an average of just

Act 1968 to more complex EU-based Consumer

£1.99 per person per year – less than the price of some

Protection from Unfair Trading Regulations 2008, there

Sunday newspapers.

has been a very marked downturn in the number of

Respondents said cuts have forced trading standards

trading standards prosecutions,’ he says.

to go beyond what can be achieved through efficiencies,

‘Sometimes, it is the choice between a substantial

with services being obliged to de-prioritise issues. The

case against a nationwide business or a number of

report also identified the fact that decisions about services

smaller cases against local – including rogue – traders.

being dropped have not been made clear to the residents

In addition, those prosecutions that are started are much

and businesses affected by their disappearance.

more likely to be resolved with, for example, a caution

Five trading standards services reported a budget

than would have been the case 10 years ago.’

of less than £200,000 for this financial year, with the

STAFF August 2016

Workforce Survey

Words. Katie Silvester Images. Shutterstock

It is also clear from the survey that there are national

Employee levels within trading standards have fallen by 12 per cent in the past two years, according to CTSI’s latest Workforce Survey 21

Like Goulding, Cardiffbased barrister Lee Reynolds has found that funding cuts have resulted in local authorities having to put aside small cases to focus their limited resources on the more important ones.

‘In the past, councils would, perhaps, bring one or two large cases a year, but their bread and butter would be the ad hoc inspections,’ Reynolds says.

‘They are undoubtedly bringing fewer cases as the cuts have been imposed. So one case might dominate a department for two, three, four years – but, when it comes to the crunch, they want to make sure it’s done properly.

‘I think there is a fear now, among trading

Workforce Survey

standards teams, of the financial impact that losing one of disparities in funding. Budgets per head for Scotland and

these big cases could have.

Wales are significantly higher than any of the English

‘I’ve had managers of trading standards say to

regional budgets. This appears to be partly because of

me: “Look, if we lose this, we’ve got to lose an officer

geography and partly because of population density,

this year” – which is shocking and very worrying.

plus the fact that Scotland and Wales are composed of

Some councils have undoubtedly taken the decision to

small unitary councils. It is widely accepted that there

massively, massively reduce the number of cases they

are economies of scale for the larger county council

are bringing.’

services in England, while discussions have taken place

Separately from the cuts to trading standards, the

in Scotland and Wales about reducing the number of

loss of funding for other, related, services has also had an

trading standards services to improve efficiency.

indirect impact. ‘There have been court service cuts that

The wide variety of trading standards services – both in terms of the areas they serve and the issues within their remit – means it is too simplistic to set a single

cause problems,’ explains Reynolds, who takes on many of trading standards’ biggest cases nationally.

‘You have now also got the inability of companies

minimum budget figure or staff number. However, Audit

to claim costs out of central funds. So, if they win

Scotland’s 2002 report found that small services, defined

a case, companies are much more likely to try to

as those with fewer than eight employees, did not have

make a claim against the local authority. It can cause

sufficient people to achieve a cost-effective mix of staff –

a bit of nervousness about whether to proceed with

a useful benchmark for CTSI.

a prosecution.’

The CTSI predicts that there will be more challenges ahead – that will put a further strain on funding – as the

81 PER CENT OF RESPONDENTS FEEL THAT BUDGET CUTS HAVE HAD AN IMPACT ON THEIR SERVICE’S ABILITY TO PROTECT COUNCIL RESIDENTS 22

economic impact of the UK’s exit from the European Union points to a continued period of austerity, and further reductions for local government.

Outside the EU, it is arguably more important than ever that the UK is able to demonstrate high standards in regulatory compliance and consumer protection to gain access to key markets.

The Workforce Survey identifies an array of subject

August 2016

that used to describe these services, now demonstrate the diversity with which trading standards is perceived and understood. However, research suggests that there are limits to the efficiencies that can be made by combining trading standards with other regulatory services.

The Primary Authority (PA) initiative has brought mixed results, according to the survey’s respondents, but 90 per cent of those with PAs in place said the agreements generated income.

BUDGETS PER HEAD FOR SCOTLAND AND WALES ARE SIGNIFICANTLY HIGHER THAN ANY OF THE ENGLISH REGIONAL BUDGETS

Workforce Survey

areas bound up with trading standards. Department titles

At present, trading standards services can only charge for their PA work on a cost-recovery basis. CTSI

Looking ahead, there is clear support among the

believes this is problematic as ‘cost recovery’ is defined

survey respondents for consolidation of the existing

differently across authorities. Services should be free to

192 services to create fewer, but larger, services. This

go beyond cost recovery, and charge commercial rates

aligns with CTSI’s vision of trading standards in the

to business for functions such as PA arrangements,

future. However, it does not appear to be happening on

says CTSI. This income could then fund services that

a voluntary basis; 60 per cent of respondents are either

are not suitable for cost recovery, such as protecting

not currently considering shared services or – having

the vulnerable.

considered the option – they have discounted it.

However, the institute is concerned that an increasingly competitive market for PAs among local

The 2016 Workforce Survey is based on responses by 122

authority services will reinforce the current ‘postcode

local authorities across Britain to an emailed questionnaire.

lottery’, as larger services are better able to win contracts with bigger businesses.

August 2016

23

Consumer safety

DECLINE... AND Foot and mouth in Surrey

Independent product recalls review first mooted

First outbreak since the 2001 crisis, which cost Britain’s economy £8bn

Office of Fair Trading publishes first Trading Standards Workforce Survey It warned of an ageing workforce ahead of planned austerity cuts

2007 2009 2015

2010

2011

September

December

January

VW scandal emerges, affecting millions of consumers worldwide

Hoverboards safety crisis – Fires

Car manufacturer Volkswagen reveals ‘defeat’ devices used to mask real diesel emissions.

Cost to motoring giant estimated at £12.7bn

November Publication of government’s trading standards review delayed NAO report on consumer protection landscape delayed Publication of independent product recall review delayed

24

March National Audit Office (NAO) HMRC reveals review sees the it loses £1.2bn in Office of Fair revenue each year Trading and to cheap, illicit January Competition alcohol sales Commission Audit Scotland merge to become report highlights Competition and a lack of action Markets Authority since its 2002 report and warns Trading standards of a postcode services were not lo ery in trading the focus of the standards review services

2012 2016

Horsemeat scandal costs Tesco up to £2m a year and wiped £300m off its value

2013

February

LGA review recommends voluntary shared and exploding services to boards reported. address capacity £26.1m-worth of concerns boards intercepted

The EU Intellectual Property Office says the UK loses more than £174m each year to counterfeit toys and games

December

January National Fraud Intelligence Bureau reveals people lost £27m in dating scams in 2015

Long-awaited product recalls review highlights concerns over capacity, which February the government Tumble dryers says it will scandal address in its forthcoming Mirror investigation review of the reveals 926 fires trading standards caused by dryers profession were reported to emergency services between 2011 and 2013 – equal to 309 a year

August 2016

CREATED FOR

and consumer safety, we look at past and present public threats that the profession has, and is, expected to tackle

March

July

Trading Standards Workforce Survey reveals 45% cuts to staff

Government announces its intention to review trading standards

March

CTSI calls for a statutory HMRC and Border restructure Force reveal £2bn of trading cost to the public standards, with purse of illicit fewer, larger tobacco smuggling more strategic authorities to address dwindling resources

2014

April

Scope: what local authorities want from trading standards

2015 June

August

Fraudsters Britain votes to conned travellers leave the EU out of £11.5m in 2015, reveals National Fraud Intelligence Bureau

March

July

National Fraud Intelligence Bureau reveals online ticket fraud

Cu ing Red Tape review slips off agenda following formation of new government

Cost to UK public of £5.2m in 2015

August 2016

Local Government Association announces services review

2016

March Government trading standards review is believed to be complete, but shelved in favour of the Cu ing Red Tape review, which shi s focus away from key issues

May

Consumer safety

FALL?

As government delays reviews into trading standards

Workforce Survey reveals a further 11% cut in staff, with only 31% of authorities considering shared services. Of the five already created, one has now collapsed.

Meanwhile, consumers have endured three of the biggest market failures in living memory and still there’s no action from government

25

ELEPHANT IN THE Words. Tim Day Images. Shutterstock

26

ROOM

definition of what constitutes rogue trading or a recognised crime code, or ‘flag’ by which to identify offences in police databases, creates a considerable barrier to effective partnership working with police.

In one example alone, (see table, page 28) in the Thames Valley Police area it was necessary to trawl through 3,798 records to identify just 23 rogue-trading

Academic research

For trading standards, the lack of a nationally adopted

crimes, which occurred in one three-month period in 2013. These figures are staggering enough, but compare that with just 21 records being analysed to identify 16 incidents of distraction burglary – which does have a nationally adopted definition – and you can begin to understand why so little hard evidence is held about this psychologically destructive crime.

As we know, rogue traders get everywhere, and often operate under a cloak of invisibility. Posing as legitimate tradespeople and taking advantage of low rates

What the lack of a police crime code means for rogue trader victims and trading standards

of reporting, professional criminals prey on older and more vulnerable members of our communities – often repeatedly.

Rogue traders are known to ply their trade across borders – not just local authority boundaries, but also nationally, and sometimes internationally – sharing information about victims and, in some cases, grooming them for repeated fraud and financial abuse.

The lack of a nationally recognised definition – and the absence of a crime code or flag by which to record incidents – hinders both trading standards and the police in being able to judge the extent of the activity and form a joined-up plan of action.

With the political backdrop of continued austerity, the introduction of the Care Act (2014) – and the increased responsibilities placed upon local authorities this brought about – the need to pool resources and increase effectiveness in this area is paramount.

August 2016

27

Academic research

IN THE THAMES VALLEY POLICE AREA IT WAS NECESSARY TO TRAWL THROUGH 3,798 RECORDS TO IDENTIFY JUST 23 ROGUE TRADING CRIMES, WHICH OCCURRED IN ONE THREE MONTH PERIOD IN 2013

Distraction burglary as a comparator

In 2003, a crime code for incidents of distraction

The Home Office has defined distraction burglary as: ‘Any

burglary as introduced, enabling the police to record it

crime where falsehood, trick or distraction is used on an

separately from ‘traditional’ burglary crimes. This helped

occupant of a dwelling to gain, or try to gain, access to

to increase scrutiny and gave a reliable evidence base

the premises to commit burglary.’

about the scale of the problem, allowing patterns and

It shares many of the characteristics of rogue trading:

perpetrators to be more easily identified. The increased

the offenders are often professional criminals – skilled

awareness of this crime also helped prevention initiatives

in avoiding detection – who target older and vulnerable

to be drawn up. These allowed the police more effectively

people. Indeed, there is an identified overlap between

to present to the courts the harm this crime caused, as

perpetrators of distraction burglary and rogue trading.

well as to push for harsher sentencing for offenders,

As well as sustaining financial loss, victims often feel

providing a meaningful deterrent.

humiliated and can suffer post-traumatic stress disorder,

Despite the ageing population resulting in an increase

sometimes resulting in them feeling too vulnerable and

in potential victims, distraction burglary has decreased

afraid to continue living independently.

each year since 2003, with the latest figures showing a

But rogue trading is believed to be more common and

79.7 per cent drop in recorded crimes, highlighting the

cause greater financial loss than distraction burglary; as

impact that a definition and a means of identifying and

well as the cost of the job carried out, victims often have

retrieving incidents can have.

to pay to get it done again properly – or even done at all –

The table below (first printed in Crime Prevention

or repair damage caused by shoddy work. Moreover, the

and Community Safety) highlights how different are

level and longevity of deception in rogue trading cases

the recording processes for distraction burglary and

often far exceeds that necessary in distraction burglary

rogue trading – and consequently the ease with which

and, as a result, the human cost and psychological harm

the former records can be identified and retrieved. It

may well be greater, too.

shows how useful the crime code, or flag, would be for

Comparison of distraction burglary and rogue trading records from the Thames Valley Police crime recording database (June, July and August 2013) Distraction burglary

Rogue trading

Number of incidents

16

23

Number of a empts

5 unsuccessful distraction burglary a empts

5 potentially unsuccessful rogue trading a empts, (involving the damage of roof tiles and gu ering, recorded as criminal damage)

Number of crime categories necessary to search

2

11

Number of these crime categories in which a empts or incidents occurred

2

6

Number of records that required analysis

21

3,798

Reprinted from Crime Prevention and Community Safety, 2015, vol 17

28

August 2016

enforcement agencies in the fight against the rogues.

The introduction of legislation, such as the Fraud

Having to trawl through so many records and crime code

Act 2006, Consumer Protection from Unfair Trading

categories to identify incidents of rogue trading provides a

Regulations 2008, and Cancellation of Contracts Made in

considerable barrier for trading standards and the police.

a Consumer’s Home or Place of Work, etc 2008 (replaced

Trading standards working with the police

by Consumer Contracts, (Information, Cancellation and Additional Charges) Regulations 2013), designed to target doorstep trading, cold-calling and rogue trading, means

When the code for distraction burglary was introduced,

rogue trader incidents are now officially recognised as

gaps in the legislative framework meant that rogue

criminal acts. However, this has not yet translated into

trading could not be defined as a criminal offence so

more effective enforcement action against perpetrators –

easily, so the responsibility to deal with rogue trading fell

either by the police, or trading standards – as the National

primarily to trading standards by default.

Trading Standards doorstep crime report shows.

The reported use of ‘slaves’, exploited labour and a matter for trading standards alone – police involvement

Preventing and prosecuting rogue traders

is a necessity in many cases. They have access to a

Without an agreed definition, it is unclear what

greater range of forensic analysis than trading standards,

encompasses rogue trading and whether it qualifies as a

including surveillance, automatic number plate

criminal matter. This confusion often frustrates attempts

recognition and finger printing, and it is paramount that

by trading standards to prosecute offenders, and is

the police share responsibility for both the enforcement

still – having first been identified by Brian Steele in 2001

and accurate recording of rogue trading.

– relied upon by rogue traders as a means of avoiding

links to organised crime mean rogue trading is often not

August 2016

Academic research

ROGUE TRADING IS BELIEVED TO BE MORE COMMON AND CAUSE GREATER FINANCIAL LOSS THAN DISTRACTION BURGLARY; AS WELL AS THE COST OF THE ORIGINAL JOB, VICTIMS OFTEN HAVE TO PAY TO GET IT REDONE PROPERLY OR EVEN DONE AT ALL OR REPAIR DAMAGE CAUSED BY SHODDY WORK

29

Academic research

CHARLES CASEY AND THE SCAM By the tender age of 21, Charles Casey had earned almost £1.5m from his activities as a rogue trader. He targeted vulnerable people, conning them out of hundreds of thousands of pounds by overcharging them for non-existent, incomplete or unsatisfactory work.

Casey’s victims included a couple from Reading, aged 88 and 90, who were defrauded out of approximately £360,000.

In June 2010 Casey, using the pseudonym Jeffery Andrews, cold-called a victim and told him that he had a roofing problem, which had led to damp problems.

Casey twice charged the victim £18,000 for the hire of dehumidifying equipment, asking the victim to write each cheque out to different people.

After Casey failed to show up to carry out the work, the victim contacted him to cancel the job and requested a refund. Casey explained that his company ran a scheme whereby refunds were provided on a priority basis and to assess the victim’s eligibility, he would have to know the details of all his investments. The victim was persuaded to admit he held investments worth £325,000.

The victim was contacted by various people over the next few months with requests for further funds to be paid to secure a refund of the initial amount paid.

Finally, in February 2011, the victim arranged to meet Casey. He told the

30

victim that he was on the verge of being able to issue the refund, but he needed the victim to withdraw £13,000 from his account. The victim withdrew the money and met Casey.

The victim refused to hand over the money until he received proof that the funds would be returned. At this point, Casey grabbed the envelope containing the money, causing it to tear and the cash to scatter. Casey managed to gather up approximately £9,500 in cash before running off.

A fingerprint found on the envelope was compared with a fingerprint sample obtained during an earlier police investigation in Exeter, and was matched to Casey.

Early in 2013, Casey was sentenced to four years and eight months in prison. Eight other individuals were arrested and charged with money laundering offences in connection with this case.

If a crime code was given to rogue trading incidents, it would allow trading standards and the police more easily to link rogue traders like Casey, his accomplices and money launderers, with other offences – especially where they have used the same method.

It would also facilitate partnership working where an offender can be demonstrated to be a professional criminal, and provide courts with a clearer picture of a defendant’s previous rogue trading activities, so that appropriate sentencing can be imposed.

Source: www.cps.gov.uk

August 2016

able to provide the court with a true picture of the extent of the perpetrators’ crimes is extremely time consuming and challenging.

If a crime code or flag was given to incidents of rogue trading, the police would be able to recall any such crimes easily – no matter where they occurred – as is the case with distraction burglary. It would then be easier

Academic research

sanction. For the police and trading standards, being

to see if the crime was merely a ‘one-off’ or if it formed a much wider pattern of offending. This could allow a multi-victim case to be built and an alert sent to trading standards in other relevant areas.

There would be more opportunities to improve partnerships between the police and trading standards, to educate people on how to avoid becoming victims of rogue trading, to prosecute offenders for the full extent of their activities and to recoup criminal proceeds from any ‘businesses’ under which they operate.

Legislation is now in place to enable proper classification of rogue trader incidents as crimes, and the College of Policing is encouraging a move towards a more evidence-based way of working. As a result, adopting an agreed definition and crime flag would reinforce understanding that rogue trading is a criminal offence, promote joint-working and ensure that consumers are better placed to protect themselves

IN LIGHT OF THE INTRODUCTION OF THE CARE ACT 2014 AND THE INCREASED RESPONSIBILITIES PLACED UPON LOCAL AUTHORITIES THIS BROUGHT ABOUT THE NEED TO POOL RESOURCES AND INCREASE EFFECTIVENESS IN THIS AREA IS PARAMOUNT August 2016

against such activity.

This is a condensed version of an article, which first appeared in Crime Prevention and Community Safety (2015) 17, 189–204.

References An extensive list of references – too many to include here – was used to compile this feature. To read the full article, including references, see Volume 17 of Crime Prevention and Community Safety.

Tim Day carried out this research at the Institute of Criminal Justice Studies at the University of Portsmouth as part of a professional doctorate in criminal justice studies. He is a trading standards officer in Hertfordshire and CTSI’s lead officer for doorstep crime.

31

SPOTLIGHT ELISABETH COSTA

Mind

GAMES

Spotlight

Words. Katie Silvester Images. Rory Lindsay

Elisabeth Costa explains how behavioural science can help consumers overcome the ‘inertia’ and ‘status quo bias’ that results in them missing out on the best deals

If the idea of a government agency that works behind

‘I’d like to say to your readers that it would be great

the scenes to change citizens’ behaviour sounds like

to have a discussion and we’d love to hear from them –

something from a sci-fi film or a totalitarian regime, think

particularly if they’re interested in testing different ways

again. The Behavioural Insights Team (BIT) – the world’s

of engaging with the community and with consumers,’

first government institution dedicated to the application

says Costa. ‘Also, they’d be in a great position to identify

of behavioural sciences – has become internationally

where there are issues in the market – where they’re

renowned for ‘nudging’ the Great British public to pay

seeing problems pop up.’

more taxes and reduce their credit card debt.

In reality, BIT’s work is not as cloak and dagger as it

Set up by former Prime Minister David Cameron in

may sound. It applies insights from academic research in

2010, the agency has had phenomenal success and is now

behavioural economics and psychology to improve public

independent of government, with offices in London, New

services across a wide range of government policy areas,

York and Sydney, and projects in more than 15 countries.

from health and education to policing and energy. One

The London team is headed by affable Aussie

of BIT’s recent reports looks at how subtle changes can

Elisabeth Costa, who is a big advocate of the power of

bring about better outcomes for consumers in markets

behavioural science in nudging people towards making

such as energy and mobile telephony.

better choices. While the team has not yet worked with

‘It’s been one of the really big innovations in public

trading standards, Costa believes there is a lot of potential

policy since I’ve been engaged in it,’ explains Costa.

for joint working in the future.

‘I’m particularly interested in how it focuses on the end

August 2016

33

Spotlight

user and how citizens are affected by public policy. I was

tariffs, rather than switching to a better deal. The report

working on high-level policy at the Treasury in Australia,

set out to explore why consumers behave like this in the

so I was interested to see how it impacts users.’

energy and other regulated markets.

One of the team’s earliest successes was a rewording

‘It comes back to this consumer inertia,’ says Costa,

of an HM Revenue and Customs’ letter to people who

‘people not switching, people being disengaged from

owed tax, which stressed that ‘nine out of 10 taxpayers

the market. So a lot of this is about taking a different

pay on time’. This increased repayment rates by 4.5 per

approach. If regulators looked at the market through

cent and elicited tens of millions of pounds for the

a behavioural lens – with an understanding of how

government coffers. The top one per cent of earners were

consumers actually behave in the market – and explored

unmoved by this statistic, however; what encouraged

whether there are ways to address those systematic

them to pay up on time was including a line in the letter

behaviours, such as inertia, that could lead to different

to the effect that public services would suffer if taxes

ways of regulating; different remedies, different types of

weren’t paid.

metrics and, ultimately, better outcomes for consumers.’

Another success has been getting a clearer

Inertia, and what Costa calls ‘status quo bias’, are

explanation put onto credit card bills to let the account

issues that come up time after time for BIT. Looking at

holder know that repaying only the minimum amount

whether the default option can be changed is often the

each month means they will, ultimately, pay more and it

key to nudging people towards a better outcome. For

will take longer to clear the balance.

example, enrolment in company pension schemes can

In May of this year, BIT – now part-owned by a charity and its employees – worked with Citizens Advice to produce a report, Applying Behavioural Insights

be low, but trials have shown that uptake can double by changing the default to ‘in’ and having to ‘opt out’.

‘A more surprising concept is the behaviour science

to Regulated Markets. The Competition and Markets

that shows more choices don’t necessarily lead to better

Authority (CMA) estimates that UK consumers are

outcomes,’ says Costa. ‘Intuitively, you think – if you give

spending £1.7bn a year more on their energy bills than

people more information, and better information – it

they need to because they stick with standard variable

might lead them to make a better decision. But what we

A bit about BIT

find is something that we call ‘choice overload’, which

Typically, the Behavioural Insights Team tries to tackle small components of large issues, building up an impact over time and driving social change incrementally, but quickly.

Its flagship project is a three-year programme with Bloomberg Philanthropies, as part of the What Works Cities initiative. The US$42m (£31.8m) project endeavours to build on existing innovation at the city level by helping mayors and local leaders use data and evidence to engage the public, make government more effective and improve people’s lives.

decision or stick with the default option, so they are not

means consumers are more likely to delay making a making an active choice, and they’re potentially making a worse choice.’

Costa, who trained as a lawyer, worked on climate change policy for the Australian government after a brief stint in commercial law. Her interest in behavioural economics led her to do a Master’s at Harvard Law School in 2012, which eventually resulted in her working on the BIT team here in the UK. As an advocate of such a new discipline, Costa is used to people being concerned that there is a Machiavellian element to BIT’s work. ‘We strive for transparency,’ she

34

August 2016

they work or don’t work. Also, we preserve people’s freedom to choose – so I guess a core tenet of this type of intervention is that it doesn’t limit people’s freedom of

Spotlight

says, ‘so we publish the results of our trials, whether

choice. The default option isn’t the only option. A classic example is rearranging a canteen to put the unhealthy food at the back and the fruit at the front. None of that limits people’s freedom to take the unhealthy option, it just encourages them to take the healthier.

‘There is a lot of work happening at the moment about the ethics of nudging,’ Costa says. ‘Cass Sunstein has written extensively about it. Another important point is that there is no neutral default option. From a government point of view, they are in the business

ELISABETH COSTA

of changing behaviour and the way we’re designing

POSITION: Head of consumers, energy and sustainability for the Behavioural Insights Team

something – we’re trying to improve that process.’

PLACE OF BIRTH: Australia

them. So how do you make sure people actually receive

policies is to create better outcomes for people, to try to change social impact. The government is already doing Behavioural science not only looks at what the default options should be and how they are worded, but also how that information is delivered to people. Not everyone reads their energy bills; some people don’t even open the information you want to get across to them?

‘There are a lot of ways to make text more salient,’

AGE: 30 HOBBIES: Screen printing and etching at East London Printmakers LOVES Cooking and gardening – ‘although my current garden is confined to my kitchen windowsill!’

QUICK QUOTE: ‘We’re really just scratching the surface; our work has got huge potential, particularly in the financial market, payday loans, banking, credit cards, mobile phones, water, energy and other commodities. We have loads of ideas, and we’re looking for partners and people to test them with.’

says Costa. ‘We tend to operate on a primacy and recency

DEFINING BEHAVIOURAL SCIENCE ‘At its essence, it’s developing a sophisticated understanding of human behaviour,’ says Elisabeth Costa. ‘It draws on a lot of disciplines, primarily economics and psychology.

Richard Thaler [American economist] explains it as economics with more explanatory power. It still has all those elements, but the models are a be er fit with the data – with how people behave in the real world – and it gives you a be er understanding of how government policy, in particular, affects people.’

basis – people remember the first thing you said to them and the last thing, so we make letters as short as possible and put the important text at the beginning or at the end.

Colour and design can help attract attention as well. But there’s also the timeliness of the message – and how you get that message. Is it in a letter or a text message? Is it in an email? Is there some other way for you to get it or to be prompted, as a reminder, after you get the letter?’

BIT has a framework that it works to, called EAST – easy, attractive, social and timely. To affect behavioural change, the team aims for all of these things in its communications. BIT’s work is also extensively trialled, with researchers going out into the field to try to get a feel for the user experience.

Looking to the future, Costa thinks the team’s work could be a real force for good, to help improve outcomes for consumers in many different markets.

‘There’s huge potential here to change the way that regulators think about their role, to put a bit more emphasis on market design and make things work better for consumers,’ she enthuses. ‘If we can achieve even a bit of the vision we’ve set out in our report, I think that would lead to a great outcome for UK consumers.’

35

‘Metrology: the science of measurement and its application’ ‘Legal metrology: practice and process of applying statutory and regulatory structure and enforcement to metrology’1

Short mea Words. David Templeton

36

August 2016

Imagine if just one per cent of that trade was inaccurate,

political landscape in the UK becomes clearer – it can

resulting in a detriment of £6.22bn to the UK economy.

only be hoped that the interests of consumers and

So why isn’t accuracy of measurement, or weights and

businesses will play a central role in government policy

measures, a priority?

as our relationships with Europe and the rest of the

Part of the reason is intelligence – or rather a lack of

world are renegotiated. Change brings uncertainty, but it

it – in relation to weights and measures. Until recently,

also brings opportunity.

a dearth of coherent metrology intelligence codes meant

Legal metrology, or weights and measures, has

weights and measures issues often went unrecorded

suffered from a crisis of leadership in recent years.

on intelligence databases. This resulted in an inability

No vision or strategy; no priorities or objectives; no

to identify trends and emerging threats, and to inform

performance management framework – and declining

tasking and prioritisation processes.

resources. Business management guru Peter F Drucker

Consequently, decision-makers don’t realise that

famously said: ‘Management is doing things right, but

weights and measures is a priority area, so resources for

leadership is doing the right things.’2

it are reduced or reallocated. Yet anyone who follows

Decision-makers at the highest levels of central and

the author on Twitter, @legalmetrology, will know that

local government, within employers’ organisations and

weights and measures non-compliance is a real problem

the profession, need to realise that trading standards

for consumers and legitimate businesses across the UK.

doing weights and measures is trading standards doing

Three recent cases highlight this fact.

First, the underweight garlic bread found in Tesco

the right thing.

in October 2015.6 The supermarket withdrew 66,000

Currently, National Trading Standards has a business plan that identifies doorstep crime, fair trading

packs of deficient garlic bread, worth £93,000, after an

issues, mass marketing scams, product safety, illegal

investigation by Aberdeenshire Trading Standards. The

moneylending and intellectual property as priority

manufacturer of the bread has a line of 5,500 products.

action areas. Undoubtedly, these are all very important

If the same systems and procedures that resulted in the

consumer protection and fair trading matters. For

production of the deficient garlic bread were also used

example, it is estimated that scams cause approximately

for the other 5,449 products, there is a potential for a total

£3.5bn-worth of detriment to UK consumers every year.4

detriment of £0.5bn across the range. While there is no

However, each year in the UK £622bn-worth of goods are

evidence that this was the case, it does demonstrate the

sold on the basis of the measurement of their quantity.

potential scale of weights and measures detriment.

3

5

sure August 2016

Metrology

As the dust settles on the EU referendum – and the

As weights and measures takes a back seat in trading standards’ priorities, we outline why it is still a vital part of a healthy economy 37

demonstrate that weights and measures non-compliance is a real problem for consumers and legitimate businesses. However, the last Section 70 report9 again confirmed that the number of inspectors continues to decline, with only 257 full-time equivalent inspectors in 2014-15, compared with 304 the previous year.

With the creation of Regulatory Delivery – which brings together the Better Regulation Delivery Office and the National Measurement and Regulation Office (NMRO) – there is a real opportunity to create a vision and strategy for legal metrology in the UK. Continued central government support for the work of the NMRO, in relation to product and quality management systems certification, is also critical.

Independent economic research10 shows that the use of standards is hugely influential in boosting the sales of UK products and services abroad, with £6.1bn of additional exports per year attributable to their use.

LEGAL METROLOGY, OR WEIGHTS AND MEASURES, HAS SUFFERED FROM A CRISIS OF LEADERSHIP IN RECENT YEARS

With the global inspection, testing and certification market valued at €100bn10 (circa £834bn) there is an enormous opportunity for NMRO to support UK, European and international businesses through the use of standards.

Finally, central government, employers’ organisations and CTSI have an opportunity to underpin and support the role, training, development and competence of inspectors of weights and measures via the current

Metrology

review of the qualifications framework.

Second is the case of Lanchester Dairies, from County

There’s a famous saying: ‘You don’t know what you

Durham, in April this year.7 Local trading standards

have until its gone.’ The truth is, you knew what you had;

officers visited the dairy and selected at random 55

you just never thought you’d lose it. The challenge – but

packages from the stock room. All were inadequate, with

also the opportunity for key decision-makers – is to make

deficiencies greater than twice the tolerable negative

sure that doesn’t apply to weights and measures.

error. The scale of potential detriment only becomes apparent when you take into account that the dairy produces an average of 4,800 packages per hour and the system that had resulted in the defective packages had been in place for 13 years.

Finally, the case of R Davies Metals & Sons, from

David Templeton is the chief inspector of weights and measures for South Lanarkshire Council.

Dudley, in March 2015.8 Officers of the company pleaded guilty to using an unverified weighbridge, using false or unjust equipment and committing fraud.

An unapproved, unauthorised electronic device had been added to the weighbridge to enable a user to manipulate the indicator reading and print incorrect weight tickets. With the price of scrap copper currently averaging £3,000 per tonne, the scale of the potential detriment in this case is enormous.

These cases, among many other recent examples,

38

References: 1. OIML V1, International vocabulary of terms in legal metrology (VIML), Edition 2013, International Organisation of Legal Metrology.

2. The Essential Drucker: The Best of Sixty Years of Peter Drucker’s Essential Writings on Management, Peter F. Drucker, 2008, Collins Business Essentials.

3. Separate but similar arrangements exist in Scotland and Northern Ireland.

4. www.nationaltradingstandards.uk 5. Confidence in the UK: 2016-2021. A national approach to measurement, preparing for the 2020s, 2015, National Physical Laboratory.

6. www.bbc.co.uk 7. www.chroniclelive.co.uk 8. www.expressandstar.com 9. Weights and Measures Act 1985, Section 70 returns, Annual Report 2014-15, National Measurement and Regulation Office.

10. The economic contribution of standards to the UK economy, CEBR, June 2015.

Getting down to business

As councils move toward near total reliance on business rates for their funding, they are feeling the pressure to demonstrate added value to businesses – and even to compete with each other to attract companies to their

Mentoring

Words. Katie Silvester Images. Zsuzsa Goodyer

patch. Devon and Somerset Trading Standards has got ahead of the game by training its officers to become business support mentors, giving organisations that they visit advice beyond the usual scope of a trading standards officer (TSO).

The two counties’ TSOs – alongside colleagues from environmental health and fire and rescue – carry out around 65,000 visits to businesses each year. The new scheme encourages local authority regulators to work with firms and allows them to gain a better understanding of the support and advice that companies want.

Devon and Somerset is broadening its

Tim Milsom, business support lead at Devon and Somerset Trading Standards, explains how the

remit by offering basic mentoring to

mentoring idea came about: ‘The government – or the

businesses during regulatory visits –

quite a large amount of money at trying to boost the

a first for trading standards August 2016

previous administration anyway – has been throwing economy. We had things like the Red Tape Challenge and – as part of Vince Cable’s original plan – the Better

39

CPPD

SPONSORED BY

You do not need to carry a link to the ODR platform on your website

An interlinked network of national representatives, referred to as ‘National Contact Points’ – one for each EU member state – backs up the online platform. These bodies are not dispute resolution entities, but their remit is to offer

No

help and support in using the ODR platform at the national level, by acting as facilitators during the ODR process. The UK’s National Contact Point, hosted by CTSI, performs the following functions: • Assisting consumers with the submission of a complaint

Are you a trader that sells your goods or services online?

• Providing general information on UK consumer rights • Supplying information on the functioning of the ODR platform

Yes

• Explaining to parties the procedural rules and processes of ADR • When no resolution can be found via the platform,

No Are you in a sector where use of an approved ADR scheme is mandatory under any piece of legislation?

informing the consumers of other means of redress It should be noted that the European ODR Platform does not intend to replace other ODR mechanisms already established by traders; neither should it prevent parties from achieving resolution of disputes through direct approaches to ADR bodies, nor deprive them of the opportunity to seek redress through court procedures if an accord cannot be reached via ADR. The ODR Regulation (EU No 524/2013) was passed on

of out-of-court procedures, all of which seek to enable the

21 May 2013 and applies to cross-border as well as domestic

parties involved in a dispute to settle by using an impartial

disputes. The law requires that all online traders include

and independent third party. Mediation, arbitration,

on their website a link to the ODR platform and a contact

recourse to an ombudsman and conciliation are common

email address, irrespective of whether they market their

examples. These procedures are designed to be cheaper,

products or services within the UK or in another member

quicker and less formal than using the court process,

state. Furthermore, traders in a sector where the use of

particularly when one of the parties is a consumer.

an approved ADR scheme is either mandatory by law, or required by a trade association, must also include a link to

The ADR directive

the ODR platform in certain email communications – as well

The Directive on Consumer ADR (2013/11/EU), constituting

as supply information on the ODR platform in their general

the legal basis for ADR as a whole, came into force through

terms and conditions, where applicable. For sectors without

a number of instruments during 2015. The law requires

mandatory or required ADR, the platform will rely upon the

all traders who sell to consumers to provide specific

consumer and trader agreeing to the use of an ADR entity

information concerning ADR. This obligation falls under

suitable to hear their dispute.

two main requirements – as set out overleaf – which aim

Despite the law requiring online traders to provide a link

and to increase the awareness of ADR among traders and

that this has only become mandatory since 15 February

consumers. They are applicable to all transactions relating

2016. Furthermore, the Enterprise Act enforces any breach

to the provision of goods and services to consumers, with

of the information requirements under the ODR law.

only limited exceptions for the health sector. It should be

While ODR is a system that connects complainants to an approved ADR scheme, ADR is a term referring to a group

42

to enhance the chance of successful dispute resolution

to the ODR Platform from 9 January 2016, it should be noted

noted that contracts on the sale of property and tenancy agreements are not considered consumer contacts.

August 2016

Yes

Are you required by your trade association to participate in an approved ADR scheme?

No

CPPD

SPONSORED BY

You need to provide a link to the ODR platform on your website.

You also need to provide an email address on your website so that customers have a first point of contact for solving disputes

Yes

You need to inform consumers about the existence of the ODR platform and the possibility of using the ODR platform. You are required to provide the following: • A link to the ODR platform on your website • Any offers made via email must also include a link to the

ODR platform • An email address on your website so that consumers have a first point of contact for solving disputes • Information on the ODR platform, where applicable, in the general terms and conditions relating to online sales and service contracts The above information must be provided in addition to giving details, on your website, of an approved ADR provider in your sector

Your Connection

The first requirement The ADR Directive does not make the use of ADR providers mandatory for traders, but they can be bound to use ADR under a trade association code of conduct or an enactment.

In these circumstances, traders must include the name and website address of the approved ADR provider on their website – if they have one – and in the general terms and conditions of sales or services contracts between the trader and the consumer.

The second requirement When internal complaint procedures have been exhausted, all traders – including those that fall under the first requirement – must inform the consumer in a letter or other durable medium: 1) That the trader cannot settle the complaint with the consumer 2) Of the name and website address of an approved ADR provider that would be competent to deal with the complaint, should the consumer wish to use ADR 3) Whether the trader is obliged, or willing, to use that ADR provider

August 2016

Trading Standards • Police • Environmental Health • Animal Health Kenyon Block Consultants Specialist Recruitment

43

CPPD

SPONSORED BY

Under the ADR legislation, a trader is obliged to give details of an approved ADR body, but is not obliged to use it. Any breach of the information requirements under the ADR laws is enforced under the Enterprise Act. To qualify as an approved ADR body, a provider must be certified by the relevant ‘Competent Authority’. This will be the body that has regulatory responsibility, or which has oversight for the market sector under an enactment. In the UK, the Competent Authorities are: • The Financial Conduct Authority (in relation to the Financial Ombudsman Service) • Legal Services Board (in relation to the Office for Legal Complaints) • Civil Aviation Authority • Gambling Commission • Gas and Electricity Markets Authority • Office of Communications • The lead enforcement authority for the purposes of the Estate Agents Act 1979 CTSI has been delegated to act as a ‘competent authority’ for those areas not covered by the bodies listed above. The institute also assumes the role of Single Point of Contact for the purposes of these regulations, requiring it – among other tasks – to provide the European Commission with a list of approved ADR bodies from all competent authorities.Â

Conclusions The ODR platform provides an online tool to help consumers and traders – in dispute over the provision of online goods and services – to find resolution via ADR. The key strengths of the platform and related provisions are that they give consumers and traders a highly visible and more accessible tool to resolve their disputes out of court and promptly. Ultimately, it offers opportunities for bolstering consumer confidence to do cross-border shopping online.

The ODR platform will ensure a familiar ‘front end’ and set of procedures, potentially to overcome the challenges facing dispute resolution due to the fragmentation of ADR schemes and related mechanisms. The platform removes much of the prerequisite knowledge previously required for consumers to navigate the ODR/ADR process successfully.

Elisabe a Sciallis is a legal executive for the UK European Consumer Centre and ODR platform, and CTSI lead officer for cross-border consumer affairs.

44

AUGUST †‡ˆ‰

MODULE ŒŽ ODR AND ADR FOR CONSUMER REDRESS Boost your personal and professional development by completing this short questionnaire – worth one hour of CPPD. Answer the questions listed below at www.tradingstandards.uk/cppdtest

1. Is the European ODR platform applicable to both online and offline transactions for goods and services?

2. Did traders’ obligations to show a link to the ODR platform and an email address on their website start from the 9 January 2016, as stipulated by the regulation?

3. If the trader is a member of a trade association, how will its obligations under ODR vary from a non-member?

4. When using the ODR platform, how many days do the parties have to agree upon an approved ADR provider?

5. What is the role of the National Contact Point?

6. What recourse is available in the instance where a trader is non-compliant with either the ODR or ADR legislation?

7. Under what conditions can a trader be bound to use an ADR provider?

8. If an ADR provider would like to become approved to handle timeshare-related complaints, to which competent authority would the scheme need to apply?

Applicants who complete the module successfully will be given a certificate. The test must be taken before 21 October 2016.

Module 6 answers (May 2016): 1. Yes 2. No 3. No 4. Yes 5. Yes 6. Yes 7. Yes 8. Yes

KENYON BLOCK Consultants Specialist Recruitment

Tel: 020 8360 7289 www.kenyonblock.com

Associate Member of Chartered Institute of Environmental Health

PICK ‘N’ MIX Words. Denis Barry Images. Shutterstock

What powers can trading standards officers use in relation to

product safety? Are there additional powers to those under the

From the Bar

Consumer Rights Act 2015?

There are two burning issues of the day – aside from

The CRA powers

the small matters of the Labour Party’s implosion and

So, if your bag is the ambit of product safety legislation,

the strange demise of Andrea Leadsom during the

what parts of the CRA might you like to deploy in the

Conservative battle for prime minister. Of course, I am

field? Some thoughts are set out below. This list is not

referring to product safety and the overlap between the

exhaustive, since both life and this article are too short,

powers in Schedule 5 of the Consumer Rights Act (CRA)

and the provisions need to be considered with care. This

(known as the ‘generic powers’) and other product safety

is more by way of assistance in thinking about how an

legislation. Consumers may complain about a slight lack

investigation might be structured.

of joined-up thinking here.

To give a crude example, if I flog you an iron that does not work, there will be a remedy under the Consumer

Enforcers can inspect – under paragraph 25 – goods

Rights Act (CRA) and the consequential powers are

including tangible moveable items such as toys, electrical

available to trading standards. But, if I flog you an iron

goods, paint, cosmetic products – and the furniture

that blows up and gives you an electric shock, then other

within No 10 Downing Street.

trading standards powers kick in, in order for me to be investigated.

There is some guidance from the Department for

46

Inspection – paragraph 25

So enforcers may check that toys are labelled correctly and do not appear to have bare wires. They may also examine procedures including the quality control

Business, Innovation and Skills (BIS) on the general

checks for particular products, or production procedures

topic of powers, which makes the following wise – and

at manufacturer’s premises for product safety purposes.

completely superfluous – observation: ‘Rules governing

This includes observing the quality control checks. So,

intellectual property rights, product safety and rules

for example, you can nose about to see if the product

to counter unfair trading, also affect a wide variety of

has been made in a way that ensures that it is labelled in

consumer-facing businesses.’

compliance with the relevant safety legislation.

August 2016

August 2016

47

From the Bar

THERE IS NO SUGGESTION IN THE LEGISLATION THAT INANIMATE OBJECTS WILL LEAVE WAREHOUSES OF THEIR OWN VOLITION IN A BID FOR FREEDOM FROM THE OPPRESSIVE REGULATION OF CONSUMER RIGHTS, BUT RATHER THAT GOODS CAN BE SEIZED FOR FURTHER INSPECTION AND TESTING BACK AT BASE

An enforcer may require production of documents – paragraph 27

and plasticine, and that she now resembles Robert Smith

Let us be blunt with one another. Dodgy goods are sold

from the Cure. Concerned that there may be a breach

by dodgy people. Dodgy people have dodgy documents.

of the Cosmetic Products Enforcements Regulations

These particular powers are fun, and allow trading

2013/1478, she makes robust representations that this

standards officers to ask impertinent and difficult

situation should be investigated.

questions, exposing those further down the chain to investigation and arrest. This is a Good Thing.

If there is a reasonable suspicion of a breach of consumer law, the ‘naughty’ trader can be required to

Now, the regulations have been amended considerably by the CRA. So the powers to test, enter premises and inspect have been taken from the Cosmetic Regs, because they are subsumed in the CRA.

produce documents. However, where documents are

However, the sampling and testing part of the

required to be held by statute – which is often the way

regulations, which are in Schedule 3, remain in force.

in product safety – you can require them to be produced

They contain a series of rules to protect both the

even when there is no suspicion of a breach.

trader and the enforcer on the way in which particular

Power to test equipment – paragraph 26

goods are to be tested. They are reasonably specific to this industry. For example: ‘Any test to determine

Where an enforcer has reason to believe that weighing

whether a cosmetic product contains quinolin-8-ol or

or measuring equipment on a trader’s premises is

bis (8-hydroxyquinolinium) sulphate, or to determine

used for trade, or said equipment is available for

the amount of such a substance in a cosmetic product,

such use, they can inspect and test this equipment to

must be carried out in accordance with paragraphs

check its accuracy. There might be lots of reasons for

1 to 9 of that part of Annex C, which is headed

doing that.

“Identification and determination of quinolin-8-ol-and bis

An enforcer may seize and detain goods and documents – paragraph 28

(8-hydroxyquinolinium) sulphate”.’

There is little or no point in putting such provision into the generic powers of the CRA for enforcers

There is no suggestion in the legislation that inanimate

concerned with more mundane matters, such as

objects will leave warehouses of their own volition in

counterfeit CDs. You would have to be involved in

a bid for freedom from the oppressive regulation of

cosmetics to have the first idea about what it was

consumer rights, but rather that goods can be seized

talking about.

where further inspection and testing back at base.

Product safety powers

What is to be done?

How should one approach the vexed topic of the powers

There are certain specific powers contained in product

to be used? Perhaps the table (right) may help. It all

safety and weights and measures legislation that are not

depends on the type of unsafe product being dealt with,

included in the CRA.

and the potential offence being committed.

Suppose, for instance, a lipstick given to Mrs Barry and she, being eagle-eyed, becomes concerned that said

48

lipstick appears to be nothing more than a mixture of jam

The enforcers legislation is set out by Schedule 5 part 2 of the CRA. The list is a long one. But it includes the

Consumer Protection Act 1987. That is a requirement that each local authority must enforce the safety provisions within that Act, including such things as fireworks. In turn, CRA is concerned with such things as the Electrical Equipment (Safety) Regulations.

It also includes regulation 10 of the General Product Safety Regulations, which includes any consideration of

Question

Relevant provision

Reference

Do I want to do a test purchase?

Test purchase

CPR para 21

Shall I observe what is happening?

Power to observe

CPR para 22

Shall I do a routine inspection

Power to enter premises without a warrant

CPR para 23

Do I want to inspect a product?

Power to inspect products

CPR para 25

Do I need to look at the equipment used?

Power to test equipment

CPR para 26

Do I want to consider ge ing more information as documentary evidence?

Power to require the production of documents

CPR para 27

Do I need to take the goods away?

Power to seize and detain goods

CPR para 28

Shall I seize some documents?

Power to seize goods required as evidence

CPR para 29

Do I want electronic evidence?

Power to break open container

CPR para 31

Has there been a breach of the relevant legislation or is there about to be?

Entry to premises under a warrant

CPR para 33

Can the person on the premises help me?

Power to require assistance from person on premises

CPR para 34

Is the requirement of Product Safety Regulations being met?

Suspension Notice

GPS Reg 12

Do consumers need to be warned?

Requirement to warn

GPS Reg 13

Is the product dangerous?

Withdrawal notice

GPS Reg 14

Is the product dangerous and does it need to be recalled?

Recall notice

GPS Reg 14

Should the dangerous product be forfeit?

Forfeiture notice

GPS Reg 18

product safety. An enforcer can exercise a power under the schedule to ascertain compliance with the enforcer’s legislation: that means checking on compliance.

It is best to start with information that may be gleaned from the CPRs. All references in the table below relate to Schedule 5. There is obviously an overlap between the type of offence that may be being committed.

This table does not include all of the relevant powers.

For example, under the relevant legislation to do with furnishings there is a requirement to keep records for five years to prove compliance. Under cosmetic product safety legislation, an enforcer has the power to ask for documentation – such as the product information file – to check compliance or details of the supplier.

A sensible start is to check to see whether there are specific regulations dealing with the product you are concerned with.

From the Bar

whole of the legislation that comes from section 27 of the

Denis Barry is a junior barrister at 5 Paper Buildings chambers, and editor of Blackstones’ Guide to the Consumer Rights Act 2015.

49

1

The truth is rarely pure and never simple

2 I’ve never been a millionaire

but I know I’d be just darling at it

Downtime

FIVE OF THE

best quotes of all time

Each issue, TS Review presents you with five quotes that captured a mood,

3

A week is a long time in politics

4

Some of us drink champagne in the fast lane, and some of us eat our sandwiches by the loose chippings on the A597

5

Sources: www.news.sky.com www.goodreads.com www.blog.oxforddictionaries.com www.en.wikipedia.org

50

A good leader should know what it feels like to change

Picture credits: Cover and pages 20-23: Nobelus / Shutterstock. Page 6: 1000 Words / Jag_cz / Aksenova Natalya / Shutterstock. Page 7: Rawpixel.com / Shutterstock. Page 9: Chakrapong Zyn / Shutterstock. Page 10: TheVectorminator / Shutterstock. Page 11: Sentavio / Haryadi CH / PictuLandra / lenaalyonushka / Shutterstock. Page 14: Featureflash Photo Agency / Shutterstock.

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ANSWERS: 1) Oscar Wilde 2) Dorothy Parker 3) Harold Wilson 4) Victoria Wood 5) Our ‘cuckoo’ Carl Haggerty, digital communications manager, Devon County Council

set a tone or were simply awe-inspiring, but can you spot the cuckoo in the nest?

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