Journal of Trading Standards Summer 2020

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Business unusual

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Dealing with the fallout of COVID-19 on the high street

Facing disruption

New business models pose enforcement challenges

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Hallmarking

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Why the oldest consumer protection still matters

Lynn Faulds Wood

Fond memories of a trading standards hero

Summer 2020 | www.journaloftradingstandards.co.uk

BEHIND THE

MASK In a time of isolation, trading standards stands united against the fraudsters exploiting COVID-19

The Basics

Concise Guidance

Detailed Information

Need-to-know on trading law

What, where and how you sell

In-depth detailed guides

KE E P YO UR B U S I N ESS AT I TS PEA K use our free legal advice to stay on top

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Journal of Trading Standards SUMMER 2020

Leader

ALL CHANGE Since the last issue of the Journal of Trading Standards, many aspects of life in the UK have changed profoundly. Consumer protection is no exception, and the work of trading standards officers up and down the country has shifted to cope with a rapidly evolving situation. Accordingly, much of this issue is dedicated to examining the implications of COVID-19 for Robert Taylour consumers, businesses and trading standards officers alike.

Chair, CTSI Our cover story (page 16) investigates the scams that have arisen as unscrupulous individuals have sought to capitalise on the public’s anxiety, and looks at how trading standards is fighting back. On page 38 we examine the impact of the lockdown on businesses and discuss the role of trading standards in ensuring struggling companies are treated with fairness and sympathy while public safety and consumer “The crisis has rights remain protected. On demonstrated that as far page 26 we hear about some of the potential impacts of the as the profession goes, we emergency on local government really are all in this together” strategy and funding.

When discussing the COVID-19 crisis, it is hard to avoid using some of the wellworn phrases that have dominated many conversations and media coverage over the past months: ‘all in it together’; the ‘new normal’; ‘unprecedented situation’.

The reality is that the crisis has provided an opportunity for trading standards to demonstrate that as far as the profession goes, we really are all in this together. As a group of individuals united by a common cause, trading standards officers can be immensely proud that they showed great tenacity, commitment and resourcefulness during these difficult times by tackling criminals, supporting the economy and protecting the public.

All this comes as no surprise to those of us familiar with the profession and the people who comprise it. Going above and beyond in times of crisis has always been normal for trading standards officers, whether new or not – and there is nothing unprecedented about that.

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Editor-in-Chief:

Eleni Chalkidou Managing Editor:

Richard Young Designer:

Sam Millard Consultant:

Paul Thomas Evans Lead Developer:

Michael Sadler Videographer:

Panji Kaonga Writers:

Helen Nugent, Willemijn Barker-Benfield, Michael McCaw, Richard Young

Article suggestions and feedback should be sent to: editor@JournalofTradingStandards.co.uk

The Journal of Trading Standards magazine and website are produced on contract by Fourth Estate Creative Ltd. www.fourthestatecreative.com connect@fourthestatecreative.com Printed in the UK by Manson Group Distributed by Gold Key Media Published by the Chartered Trading Standards Institute, 1 Sylvan Court, Sylvan Way, Southfields Business Park, Basildon SS15 6TH. www.tradingstandards.uk 01268 582 200 © 2020, Chartered Trading Standards Institute. All rights reserved.

Views expressed by the authors are not necessarily the views of CTSI.

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Matt Allwright Matt is a journalist and presenter of the BBC’s Watchdog and Rogue Traders.

Sarah Caughey Sarah is Head of Policy at CTSI.

E D I TO R I A L B OA R D

COLUMNS

Editorial

Leon Livermore

Robert Taylour

David Riley

Chief Executive, CTSI

Chair, CTSI

After 25 years in local government, Leon joined the Chartered Trading Standards Institute as its Chief Executive in 2013.

Rob became Chair of CTSI in September 2019. He is also Chair of the Regulatory Compliance Officer Apprenticeship Scheme.

Immediate pastChair, CTSI, Programme Manager, NTS

David has more than 30 years’ experience in the profession.

Laura Kane Laura is CTSI Policy Executive.

Sara Barry

Damien Doherty

David MacKenzie

Head of Safer Communities, Lincolnshire CC

Chief Inspector for Northern Ireland Trading Standards Service

Trading Standards Manager, Highland Council

C O N T R I B U TO R S

Sara is Former Chair of the CTSI and has led Lincolnshire CC through major budget cuts.

Damien has 16 years’ experience and focuses on scams and doorstep crime.

David is a CTSI Lead Officer for e-Commerce with 27 years’ experience in the trading standards profession.

LEGAL

William Hibbert & Harrison Denner Henderson Chambers William Hibbert and Harrison Denner are barristers specialising in consumer law.

OPINION

Jason Lowther

Phil Owen

Gareth Walters

Christine Heemskerk

Service Director Profession Relationships, CTSI

Manager, Monmouthshire Trading Standards Service

Independent Consultant

Phil has experience across private, public and not-forprofit sectors with a focus on regulatory outcomes.

A CTSI Fellow since 2013, Gareth is Branch Secretary for Wales and Chair of the Welsh Animal Health Panel.

Christine is a self-employed consultant to the trading standards profession and a CTSI Lead Officer for Product Safety.

Institute of Local Government Studies

Jason is Director of the Institute of Local Government Studies at the University of Birmingham.

CPPD

Stephanie Young Stephanie is CTSI Lead Officer for Animal Health & Welfare.

www.JournalofTradingStandards.co.uk

Prof Louise M Hassan

Eleni Chalkidou

Richard Young

Professor of Consumer Psychology, Bangor Business School

Editor-in-Chief and Director of Communications, CTSI

Managing Editor and Head of Editorial at Fourth Estate Creative

Louise specialises in understanding consumer protection issues.

Eleni joined CTSI in May 2017 bringing a wealth of comms experience across business, law and publishing.

Richard has 10 years’ experience as a writer, producer and editor.

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Contents REGULARS

08 | Upfront

Our regular look at the headline news in trading standards, including the surge in COVID-19 scams.

13 | Allwright Now Why the coronavirus crisis should be a wake-up call for a society that relies on public protection professionals.

COVER STORY

FEATURE

16

20

Moment of crisis COVID-19 has brought the scammers out in force as they seek to exploit the situation, as Helen Nugent finds out.

Making a mark Why a medieval consumer protection law is just as important in helping enforcement today as it was 700 years ago.

FEATURE

FEATURE

28

32

14 | Think Piece CTSI Head of Policy, Sarah Caughey, discusses the potential implications of COVID-19 on the EU Exit negotiations.

24 | Total recall

Michael McCaw looks at calls for a new system to make sense of product recalls.

26 | Research

Jason Lowther, Director of the Institute of Local Government, examines the impact of coronavirus on local council funding.

36 | Think Piece

CTSI Policy Executive, Laura Kane, on how Trading standards officers have risen to the many challenges of COVID-19.

Lynn Faulds Wood Following the death of the consumer protection hero, we look back at the career of a loyal ally of trading standards.

Dealing with disruption With consumers selling to one another through internet portals, investigations can be an enforcement officer’s headache.

INTERVIEW

FEATURE

42

38

50 | CPPD

This issue’s module covers EU Exit training on Animal Heath & Welfare.

54 | Legal William Hibbert and Harrison Denner focus on COVID-19 and consumer contracts.

58 | Last Word

Eleni Chalkidou asks where would we be without... enforcers.

www.JournalofTradingStandards.co.uk

In conversation with: Noel Hunter The CTSI Board Chair discusses trading standards’ history and the future of the profession in a post-COVID-19 world.

Business unusual How can trading standards deal with the COVID-19 crisis in a way that is sensitive to the hardships facing many businesses?

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Journal of Trading Standards SUMMER 2020

Upfront 60 SECONDS

BUSINESSES AGAINST SCAMS

CMA ESTABLISHES COVID-19 TASKFORCE The Competition and Markets Authority (CMA) has set up a COVID-19 Taskforce to identify the problems facing consumers in relation to cancellations and refunds during the crisis. If it finds evidence that companies are failing to comply with the law, the CMA will take enforcement action.

CCAS BOOSTS MEMBERSHIP The Consumer Codes Approval Scheme (CCAS) has reported significant increases in its membership. CCAS promotes codes of practice for different industries which meet core criteria. CTSI administers the scheme, which intends to improve UK business practices.

UK ECC RECEIVES RECORD ENQUIRIES The UK European Consumer Centre (UK ECC) has received a record number of enquiries during the COVID-19 crisis. In one 48-hour period at the end of April, over 1,000 consumers sought advice on airline flight cancellations – the biggest influx since the 2010 Icelandic volcano eruption.

UNITED FRONT An initiative to train employees in spotting and preventing scams during the COVID-19 lockdown has proved popular with UK businesses

FAKE PPE TRAINING SCHEME LAUNCHES With enforcing the law on sub-standard PPE and hand cleansing products now a critical part of the role of trading standards and environmental health, CTSI has delivered a series of webinars to over 500 focusing on the classification of PPE and labelling and effectiveness claims.

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For further information on the Businesses Against Scams training scheme, visit friendsagainstscams.org.uk/BAS

More than 100 organisations have signed up to an initiative to combat fraud against businesses as more companies and employees have adjusted to working from home during the pandemic.

Businesses Against Scams is a cross-industry initiative led by National Trading Standards (NTS) to train workforces in identifying and preventing scams.

Louise Baxter, Head of the NTS Scams Team and CTSI Lead Officer for Consumer Education, said: “We’ve launched Businesses Against Scams as a free tool for organisations to help safeguard their business and protect their workforce and customers.”

The Businesses Against Scams initiative provides free online training modules, including examples of prominent scams advice on and how to avoid falling victim to fraudsters.

According to NTS Chair Lord Toby Harris, “Scams not only deceive legitimate businesses, they risk undermining the UK's economic recovery.

“As more employees work from home, we’re urging businesses to protect themselves, their employees and their customers to help prevent significant financial losses or data protection breaches.”

See cover story, page 16

Winter 2019

Journal of Trading Standards SUMMER 2020

BREAK DOWN

“The British public will remember which individuals and businesses supported them at this time, and which showed utter contempt for them – and they will vote with their wallets once this crisis ends.”

Key quotes and numbers to emerge from the coronavirus emergency

Leon Livermore | Chief Executive, Chartered Trading Standards Institute

160,000

The number of email scams reported to the National Cyber Security Centre's new COVID-19 fraud reporting service in its first two weeks

6.5m

Sub-standard face masks intercepted by trading standards officers at Heathrow Airport, along with 8,000 counterfeit hand sanitisers

£3.5m

The amount lost to COVID-19 scammers up to the middle of May, according to Action Fraud

38,808

London businesses advised on closures by trading standards two months into lockdown

“While the world is coming together to combat this global health crisis, criminals are intent on exploiting our unease, anxiety and vulnerabilities.

The fact the public have taken the opportunity to fight back is fantastic.”

Commander Karen Baxter, City of London Police, National Lead Force for Fraud

COVID-19 scams spread As the COVID-19 pandemic took hold, scammers seized the opportunity to exploit the crisis. Here are some of the most deplorable examples of the frauds which have come to trading standards' attention

Gone phishing Phishing emails incorporating convincing-looking Government branding and signed off by ‘The Government Digital Service Team’ offered a supposed council tax reduction. The scam was designed to steal the details of unsuspecting members of the public, particularly those enduring financial hardship during the lockdown.

Fake furry friends

Cashing in on trust

Members of the public lost almost £300,000 to phoney pet ads in March and April after putting down deposits. Stephanie Young, CTSI Lead Officer for Animal Health, said: "It breaks my heart that some people are using people’s increased desire for companionship during lockdown to swindle them out of money."

An HMRC-branded scam emerged comprising texts, emails and phone calls from bogus officials claiming that the Government was offering lumpsum payments. Katherine Hart said: “The HMRC scams are among the most dangerous, as they misuse the most authoritative brand in the country – the Government."

www.JournalofTradingStandards.co.uk

Small screen scam Bogus emails in Netflix branding asked recipients to give their payment details. CTSI Lead Officer for Doorstep Crime, Katherine Hart, said: "Scammers react to the changing behaviours of the general public, and I am especially concerned about Netflix-branded emails because of the rising popularity of the service."

Fraud unmasked Scammers called members of the public to wrongly inform them that wearing a mask while outdoors is obligatory, in order to sell overpriced masks to the unaware.

The fraudsters quoted a price of £29 for two masks, two hand gels and gloves, before requesting address details and payment information.

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The Journal of Trading Standards SUMMER 2020

Upfront

VOICES FROM THE FRONT LINE We speak to trading standards Heads of Service to get the inside track on how coronavirus has affected enforcement on the ground Have you seen a rise in scams in your area related to COVID-19?

Guy Pratt Assistant Director, Strategic Prevention & Regulatory Services, Hertfordshire County Council Our trading standards team continues to deal with an influx of COVID-related consumer complaints. There have been significant numbers of complaints about price gouging and local businesses exploiting vulnerable consumers by charging up to 10 times the normal price for items such as hand sanitisers, food, cleaning products and pharmaceuticals.

We have also seen a big increase in scams, from fake virus testing kits to miracle cures, which we work with our County Communications team to highlight. The team is also supporting members of the public who have requested advice on cancelled activities such as holidays, weddings and nursery closures.

“We have seen a big increase in scams, from fake virus testing kits to miracle cures”

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Trish Caldwell County Commissioner, Regulatory Services and Community Safety, Staffordshire County Council In times of crisis such as the coronavirus outbreak, we often see the best of people, but unfortunately we do get to see the worst in people as well. Local examples include callers purporting to be from official agencies offering to shop on behalf of those who are at risk; price gouging and profiteering; the sale of possible fake hand sanitiser; and the sale of fake PPE, particularly via social media and online.

Richard Strawson Team Manager, Trading Standards, East Sussex County Council We haven’t seen a rise in reported scams in East Sussex. We would like to put this down to lots of social media and publicity circulated to make people aware of all the latest reports on COVID-19 related scams. Added to this, we believe

a lot more people are keeping an eye out for neighbours during the lockdown, which makes it difficult for doorstep criminals to operate.

Furthermore, we have proactively followed up with all victims that were reported to us in the last year, not only to post information on scams but to follow up by phone to talk about scams and integrate a welfare check.

Wendy Martin Programme Director, National Trading Standards; Director of Policy, Association of Chief Trading Standards Officers At a national level, scams always exist; it’s the theme behind them that varies. So people are locking onto COVID-19 as a method – as opposed to, say, pension deregulation, or EU Exit, as has happened previously.

Have you had any problems with businesses not complying with the lockdown?

GP Trading standards have responsibility, alongside Environmental Health colleagues, to enforce emergency regulations requiring certain businesses to close. A joint protocol has been

agreed with all 10 Herts District Councils which means that trading standards are leading on receiving complaints and advising businesses, and the district councils are leading on local enforcement. The team also continues to receive large numbers of contacts from both businesses, concerned staff, and the public.

TC The vast majority of businesses have acted responsibly and have complied with the lockdown; for those who were uncertain about the requirements, once we provided guidance and support they heeded the advice and traded responsibly. There have been a few pubs for which we have had to apply a little gentle persuasion, along with our police and licensing colleagues.

As the rules change and the message changes with the next phase of controls, we may well have to step up the resources we provide to support businesses.

RS We have had lots of complaints and enquiries regarding business closures. To date we have had about 200 enquiries directly, plus we have a panSussex liaison meeting weekly with Police and Environmental Health colleagues to exchange information. We also receive daily reports of any business and COVID-related calls that the

Summer 2020

The Journal of Trading Standards SUMMER 2020

“As the rules change and the message changes, we may well have to step up the resources we provide” Police receive. Due to the rushed nature of the regulations, there is lots of ambiguity which we have had to deal with. We have dealt with most cases via advice and guidance, but we have issued a Prohibition Notice for a barber continuing to cut hair in breach of the regulations.

How have your own working practices been disrupted?

GP All of our staff are now working from home, except for our Metrology Laboratory, where staff are still present (with all appropriate social distancing etc.) for the testing needed. Care commitments of some officers have reduced capacity at a time when demand has increased.

This impact has been offset somewhat by long-established remote and flexible working practices. Shortage of PPE in the wider system reduced the ability to carry out market surveillance activity around COVID-related products. Increased lead times of repurposed test houses also reduced tools available to us.

TC We already had agile working in place and all staff were equipped to be able to work remotely or from home. The lockdown has resulted in greater use of IT solutions. To enable social distancing and avoid physical attendance at premises, where possible we have used alternative enforcement techniques.

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RS We have stopped routine and project-based work, with most of that capacity being replaced by the business closure activity.

We are limiting visits except in the most urgent cases to be sympathetic to businesses who are struggling. We have suspended food sampling and prioritised some of our animal health work.

All officers and support staff are working at home and we have utilised video conferencing.

WM The main impact on National Trading Standards has been that many anticipated large trials have been adjourned due to courts closing. Government guidance is that complex fraud trials (which most NTS-supported cases are) will be the lowest priority for new trials due to the amount of court time they take up.

Have any positive things emerged from the situation?

GP We have developed close working links with Environmental Health and the Police around enforcement matters relating to business closures. Communication channels within the Council have been excellent, with good use of technology to support staff. There has been greater understanding of the vulnerabilities of small business procurement, particularly the local healthcare sector. There has also been wider internal understanding of the remit and expertise of TSOs.

“The office is not important in operating – but human interaction is important for health and wellbeing”

“Government guidance is that complex fraud trials will be the lowest priority” TC It never ceases to amaze me that when there are challenging times, the profession really steps up to the plate. Trading standards’ ‘can-do’ culture, energy, flexibility and passion to protect our communities locally, regionally and nationally has meant the profession has pulled together.

RS During the early stages of the crisis we pulled together a pan-Sussex group for police, trading standards and Environmental Health – we quickly agreed a protocol of who did what as all three agencies had joint enforcement responsibilities. We also have a weekly Trading Standards South East board teleconference to discuss emerging issues and seek consistency of enforcement, which has been hugely beneficial.

We also now have better links with the Health and Safety Executive and the Office for Product Safety and Standards.

How do you think the crisis will affect trading standards in the long term?

GP The recovery stage will be demanding as resources will be required to ensure that COVID-related matters are dealt with whilst attempting to deliver other priorities for the service.

There could be a move towards greater centralisation of product safety work generally, as PPE enforcement and legislation is complex and fragmented. Data and headline narrative content from

around the country will show how crucial trading standards is both at ‘peace time’ and during crises.

This will be really useful in showing its value in terms of funding and as a positive and attractive recruitment tool.

TC Scammers and crooks evolve and change the way they operate depending on the situation; they take advantage of confusion and uncertainty. Changes in legislation as the country continues to fight the virus will give greater opportunity to those who want to take unfair advantage. Whilst the need for a robust, well-funded service is clear, with all the distractions the Government will be facing over the next few years, funding will be the challenge we face. As a profession, how will we make our voice heard?

RS We will take away that the office is not important in operating – but that human interaction is important for health and wellbeing. Our officers will take away a greater understanding of business pressures and the ability to pick up new legislation and run with it.

We always knew it, but collaboration is key to effective and proportionate enforcement. Most want to comply, but the minority do still cause us some work in seeking to protect the majority!

WM I am aware there are concerns about future budgets, given the potential national financial position. I think trading standards has put itself in a good place with its response to the business closures legislation, both in terms of logistics and having a pragmatic approach. n

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Travel

Food

Housing & Home Improvements

Matt Allwright

Matt Allwright Matt is a journalist and presenter of the BBC’s Watchdog and Rogue Traders.

Home truths about public protection Coronavirus has made it clear how much we all depend upon each other – and particularly upon those whose job it is to keep us safe

Will this moment have reminded us all that saving and improving lives is the only battle worth fighting?

Summer 2020

I’ve just had a food order delivered. It’s a fortnight after we booked one of the few remaining slots knowing that there was a good chance we’d be self-isolating, which we are. The sheer joy of seeing fresh food coming through the door was unique. I can’t remember ever being so pleased to see onions and potatoes, and knowing that we didn’t have to worry about food for the next week or so. And those are words I never thought I’d write – or if I did, it would be in the context of a calamitous handling of the Brexit junction. This thing that we’re in right now has made us re-evaluate our values, and it’s being widely called a reset button. A chance to turn our consumer world off and on again to appreciate the things that really matter.

You can see the same switch is being flicked in Government. They’ve had to reprioritise their efforts away from convoluted and divisive ideas, and concentrate on the only reason that Government really exists: public health. As an elected official, whether you’re in the middle of a pandemic or not, unless your focus is keeping as many of the people you serve as healthy and happy as you can, you’ve missed the point.

The difference is that we now have a really easy way to demonstrate what success and failure look like, with a deadly daily score and graphs to match. There’s no avoiding a judgement on success and failure when the country is following the progress of a single dotted line from their homes. And, apparently from nowhere, the funding is there too, in sums which, even during an election campaign based on competitive promising, seemed unimaginable.

What will be really interesting will be what happens when this is over. Will we once again get lost in the fog of life’s complexities, where there is no easy way to keep score? Or will this moment have reminded us all that saving and improving lives is the only battle worth fighting, and one that has to be fought all the time, requiring adequate funding and proper accountability? It’s amazing to see how quickly ad-hoc local networks of publicspirited individuals have formed, trying to organise and protect their communities, identifying those most in need and caring for them. These groups rightly receive praise for the work they do, but what is only murmured is that in local government we had these networks and more, established and accountable, paid for through our taxes, preparing for the worst-casescenario for decades.

Perhaps when this is done we will all breathe a sigh of relief and happily go back to the normality we had before, where we were able to take our safety and survival for granted. But if the human cost we have to pay for this moment doesn’t buy us some insight into how we can look after people better in the future, I suspect we’ll feel like it’s been time wasted. n

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Think Piece

When uncertain meets unprecedented

By Sarah Caughey Sarah is Head of Policy at CTSI

With COVID-19 taking over life as we know it, will the Government’s intention of seeing through the EU Exit transition period at the end of this year be possible?

After months of twists and turns, the UK officially exited the EU at 11pm on January 31, 2020, and entered into the transition period which will end on December 31, 2020. In a written statement to Parliament at the beginning of February, the Government asserted that “There is complete certainty that at the end of 2020 the process of transition… will be complete”. It certainly did not envisage a major global crisis precipitated by the coronavirus pandemic. So, what happens when the uncertainty of our future relationship with the EU meets the unprecedented circumstances and consequences of COVID-19?

On a practical level the work of the

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negotiating teams has been taking place virtually, after a period of delay.

At the time of writing, the parties have completed a third round of negotiations, and the progress reports are not exactly glowing. EU chief negotiator Michel Barnier has called for “new dynamism in order to avoid a stalemate”, stating that he was “still determined but not optimistic”.

David Frost, who leads negotiations from the UK’s side, has commented that there has been “very little progress” and has declared that “the UK will continue to work hard to find an agreement, for as long as there is a constructive process in being, and continues to believe that this is possible.” Both sides are calling upon the

Summer 2020

Journal of Trading Standards

It remains important that we hold the Government to account on the high-level commitment made to high standards of consumer protection

other to adjust their approaches around the virtual table.

The clock is ticking and yet again in the EU Exit journey as key milestones loom. The first high-level conference, at which the parties will take stock of the progress made so far, takes place in June.

Unforeseen events A decision must also be made by the end of June on extending the transition period.

The text of the Withdrawal Agreement provides for the possibility of an extension to the transition period for up to one or two years if the Joint Committee adopts such a decision before July 1, 2020.

Frost has previously commented: “At the end of this year, we would recover our political and economic independence in full – why would we want to postpone it? That is the point of Brexit.” Indeed, legislation is in place which prohibits extension of the implementation period – providing that “a Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period”.

These political deadlines were set before the world, and Government

www.JournalofTradingStandards.co.uk

bandwidth, was gripped by the COVID-19 crisis. However, the Government has maintained its position that the UK will not extend the negotiation process beyond December 31. Do the prevailing circumstances mean that the timeframe has gone from optimistic to unrealistic?

Uncertainty around exiting the EU persists. Negotiations may go down to the wire to reach an agreement, meaning that the details and steps for implementation will be last-minute. In the event that negotiations prove unsuccessful, the cliffedge may be different in some respects from previous “no deal” scenarios as the Withdrawal Agreement is in place.

However, the Institute for Government posits that “in all other areas of UK–EU co-operation, no deal on the future relationship in December 2020 would be no different from no deal in the first phase of Brexit negotiations. Businesses in the UK and EU would face the same consequences – with implications for UKEU trade in goods, services, data transfers and security co-operation.”

In his Greenwich speech, Boris Johnson put it like this: “The choice is

emphatically not ‘deal or no-deal’... The question is whether we agree a trading relationship with the EU comparable to Canada’s – or more like Australia’s.”

It remains important that we hold the Government to account on the highlevel commitment made in the Political Declaration to high standards of consumer protection. The House of Lords EU Justice Sub-Committee recently said it would welcome a public statement from the Government that they remain committed to high standards of consumer protection. I would echo that call. The CTSI Think Tank will continue to provide key insights into the seismic effect of exiting the EU on our system of trading standards, building upon the contributions to date.

From cuts to COVID Trading standards will remain at the forefront of protecting consumers and supporting businesses. However, it must be observed that the implications of exiting the EU, negotiating trade deals with other countries, and economic recovery from the coronavirus, will all come on top of the existing impacts of austerity measures and cuts to the profession.

It is hard to find an aspect of life that has not been impacted by this pandemic.

The EU Exit process is no exception – indeed the chief negotiators on both sides have had to go into self-isolation.

The UK, along with rest of the world, has found itself in unprecedented times.

Unprecedented because of the global reach and impact of the COVID-19 virus.

Unprecedented because of the measures taken by the Government to respond to and address the raft of emerging and rapidly evolving issues arising as a consequence.

Unprecedented in the short- and long-term effects on consumers, businesses and the economy as a whole.

It is not possible to view these events in isolation. The path of the UK exiting the EU is now intrinsically linked with the road to recovery from COVID-19. So, what happens when uncertain meets unprecedented? In short, it is unknown. n

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Cover story

By Helen Nugent

MOMENT OF

CRISIS The COVID-19 crisis has brought the scammers out in force as they seek to exploit the situation.

But trading standards has been fighting back, as Helen Nugent finds out

In these days of lockdown, social distancing and self-isolation, stories of acts of kindness are common. As the world faces a new reality, individuals and their wider communities have come together to help the most vulnerable in society as well as the keyworkers putting their lives on the line on a daily basis. It’s a silver lining in an otherwise grey sky.

But good, compassionate people aren’t the only ones out in force. True to form, fraudsters and unscrupulous tradespeople have adapted quickly to the coronavirus pandemic with a rash of new scams designed around the virus to prey on people’s fears and part them from their money.

“It’s old scams reinvented,” says Katherine Hart, CTSI Lead Officer for Doorstep Crime. “It’s scaremongering

16 |

and trying to exploit the current crisis, and very much targeted at people who are socially isolating. Normally with these scams you find them spaced out over the year but at this moment in time it seems to be that all the different scams are happening at once.”

The avalanche of scams began in early March, starting with dubious offers of hand sanitisers followed by face masks.

More recently there have been examples of fake tax rebates, false TV Licensing renewals and Netflix-branded emails as well as texts purporting to levy fines for supposedly breaking lockdown rules.

It’s especially worrying that, according to Trend Micro, a cybersecurity and defence company, the UK is the most heavily targeted nation for coronavirusrelated email deceptions.

Hart says: “There are two different types of scams. There are the physical doorstep ones with the knock on the door to sell the testing kits, do testing or the disinfecting of drives. But you have a lot of the ones that are more secretive, the ones that are texted, emailed or called.

Those ones are more difficult to control.”

Hardly a day seems to go by without a new COVID-related scam infecting our inboxes. Towards the end of April, the National Crime Agency (NCA) reported that it had taken down more than 2,000

“At this moment in time it seems to be that all the different scams are happening at once” Summer 2020

Journal of Trading Standards

scams including online shops selling fraudulent coronavirus-related items, malware distribution hubs, and phishing sites pretending to share tips on avoiding the disease as well as searching for personal information such as passwords and card details.

The NCA has also removed advancefee frauds where big sums of money are promised in exchange for a set-up payment. Meanwhile, GCHQ’s National Cyber Security Centre is asking members of the public to report suspicious emails via a new reporting service.

Opportunity knocks Criminals exploit national and international crises. The fact they are using COVID-19 as a hook to commit fraud comes as little surprise – and the

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“Whenever anything new or emerging happens, there is very quickly a response from highly mobile professional criminals who will move in” scale and sophistication of their activities will only increase. Tim Day, CTSI Lead Officer for Doorstep Crime, says: “Whenever anything new or emerging happens, there is very quickly a response from highly mobile professional criminals who will move in. For COVID-19, the way that’s manifested is your old-school coldcalling. So we’ve seen instances of this around the country.

“Quite apart from any broad offences and any crime prevention messages, this is of course currently a very big public health issue because they’re going door to door at a time when we’re being asked to keep to social distancing. There are so many angles that they can try to exploit now, it’s not just the health issue, it’s also the economic impact of the restrictions which effectively gives such a wide platform to the psychological techniques that can be employed.”

As for the internet, Day says that “the fraudsters are getting more and more sophisticated and using what we call ‘legitimate guise’ techniques, so things like websites look very professional on the face of it but there’s nothing behind them… it is quite easy to be taken in if you don’t know what you’re looking

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Cover story

By Helen Nugent

“People are using the coronavirus to instil fear and panic to make people make decisions that they potentially wouldn’t have made” for or just have a cursory glance.”

Fraudsters are no respecters of health emergencies, particularly if they sense vulnerability. Elderly people are particularly at risk from the doorstep criminals who are literally in touching distance of their victims. As Day says, this is a recycling of the “whole playing on visceral fear to try and get people to make an immediate decision”.

A builder who claims they can lay driveways with an antibacterial layer which protects the household from COVID-19 may seem ridiculous with the benefit of hindsight but these despicable individuals can be extremely convincing.

Locked down Whereas trading standards would usually be on the ground to deal with doorstep crime, the lockdown means that in many cases this isn’t possible. But there is still work to be done, as Hart explains.

“For us, it’s very much intelligence gathering, trying to work with partners who are out and about such as the police, but also trying to collate as much information for when this is all over as we can only go with the evidence that we’ve got.

“The advice is as it always is – do not engage with a trader at your door. If you need work done, get your three quotes.

But at this present moment in time we’re saying that, if it’s not urgent, don’t do it. Only have somebody round if it’s an emergency.”

While doorstep scammers tend to be transient and therefore difficult to find after the fact, telephone, text and online fraudsters present an entirely different – and sometimes intractable – problem.

Louise Baxter, Head of the National

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Trading Standards (NTS) Scams Team, says: “When you get scammed you get into what’s called a hot state. People will phone you and they’ll try to make you panic or make a decision quickly and put that adverse pressure on you. During the coronavirus we’re all potentially in that hot state all of the time, because of our heightened levels of anxiety, fear, worry and uncertainty. So to get someone into that hot state or to push them down that road is far easier.”

Put simply, fraudsters are clever marketers. “Quite often the scammers will be charming and befriend and groom people because it’s worth their while to invest a bit of time and effort because they’re going to get a lot of money out of people,” says Baxter.

“It’s people using the coronavirus to instil fear and panic to make people make decisions that they potentially wouldn’t have made historically because of the situation that we’re in.”

However, Baxter believes that there are reasons for hope. “From a positive perspective, you are seeing more people

taking an interest in scams because they’re prevalent and they’re in people’s homes. And actually social isolation and loneliness are more at the forefront so people are more aware. It’s driving up awareness of scams and people’s desire to want to protect those people.”

United against scams In the meantime, the NTS Scams Team is working hard to combat the criminals. At present there are two major campaigns running: Friends Against Scams and Business Against Scams. The strapline for the former is ‘Wash your hands of coronavirus scams!’ and focuses on protecting and preventing people from becoming victims of scams.

“When you get scammed you get into what’s called a hot state. During the coronavirus we’re all potentially in that hot state all of the time” Summer 2020

Journal of Trading Standards

As well as warning consumers to be wary of various bogus initiatives including people offering or selling virus testing kits (they are only offered by the NHS), it urges members of the public not to assume that everyone is genuine. In addition, it urges against trusting people who claim to be healthcare workers or those offering miracle cures or vaccines.

Business Against Scams targets companies and their employees with information on how to spot and stop fraudulent activity.

Trading standards is concerned that in a time of remote working, businesses are more susceptible to scams as employees are working from home and therefore less likely to talk to people as they would in an office environment.

Things to look out for include messages from a senior executive asking for private business information or a payment, requests to make urgent money transfers, new remote access demands, and calls claiming to offer tech support for a home IT network. n

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BEYOND COVID-19 “No matter what kind of incident or current event crops up, any sort of crisis will be exploited and any sort of emerging market as well.”

These are the words of Tim Day, CTSI Lead Officer for Doorstep Crime, referring to environmental frauds, in particular those seen after Storms Ciara and Dennis which hit the UK earlier this year. As with previous scams of this nature, trading standards encourages the public to be on their guard against less than reputable traders who seek to convince homeowners to pay for unnecessary or over-priced repair work.

Tips include seeking the advice of a qualified surveyor if there has been structural damage, and ensuring that everything is in writing – don’t rely on a verbal promise. Also be aware that, if there has been damage, most insurance companies will appoint their own

tradespeople to carry out the work.

So, presumably the advice is to ignore doorstep cold-callers?

“Absolutely, and to use trading standards approved trader schemes as well,” says Day. “And that currently is a public health message as well as a crime prevention one.”

He adds: “With any sort of environmental thing, whether it’s the recent storms or high winds, there will be people going round and offering fencing and things like that. We see it time and again whether it’s flooding or whatever else – there will be people piggybacking what becomes a sudden need for people who don’t necessarily know where to go for legitimated tradespersons.

“Whatever service the criminal is offering is merely a vehicle by which they are perpetrating their criminality.”

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Hallmarking

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By Willemijn Barker-BenďŹ eld

Summer 2020

Journal of Trading Standards

Making a

MARK Willemijn Barker-Benfield discovers why a medieval consumer protection law is just as important in helping enforcement today as it was 700 years ago

Kings, leopards and castles. You’d be forgiven for thinking the origins of hallmarking were taken directly out of folklore. Following an early attempt

by Henry III in 1238, hallmarking was introduced in 1300 by Edward I to protect gold and silver standards, and to prevent craftsmen from committing fraud when making jewellery – and other items made with precious metals – by requiring a stamp of a leopard’s head to denote quality. The symbol was used to signify the King’s mark of authentication.

Since 1300, more stamps became required to guarantee the consumer of quality. These include who made the product (the maker’s mark, which is also known as the sponsor’s mark); the metal and fineness mark to indicate the precious metal content; and the Assay Office mark to show where the artefact was tested for its precious metal composite. A date letter can also be added so the consumer

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knows what year the artefact was made.

If the precious metal composite doesn’t match legal requirements (which vary depending on the metal), then the artefact cannot be hallmarked.

While the process of hallmarking has been around for over 700 years, the word ‘hallmark’ didn’t come into use until the 15th century, when craftsmen took their artefacts to Goldsmiths’ Hall in London to be assayed. Today there are four Assay Offices in operation, in London, Birmingham, Edinburgh and Sheffield.

Since those early days, hallmarking techniques and regulations have been fine-tuned. The current legislation that governs hallmarking has been effective since the 1973 Hallmarking Act, which is enforced by trading standards officers and is updated and advised by the British Hallmarking Council (BHC).

This legislation is well established and essential when it comes to trading standards’ enforcement of hallmarking.

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Hallmarking

By Willemijn Barker-Benfield

There are very few countries in the world that have the system we have.

The consumer in the UK is better protected than many David Sanders, CTSI Lead Officer for Hallmarking, says: “If a jeweller makes items of silver, palladium, gold or platinum and wants to sell them, they are obliged to get them assayed, which guarantees they are good quality and then the hallmark is applied so it can be put on the market.

“There are very few countries in the world that have the system we have got. The consumer in the UK is better protected than many.”

All that glitters…

Trading standards services have many areas to cover, and often hallmarking can appear low on the agenda when compared to other high-priority areas such as product safety and public health. But without hallmarking enforcement, many consumers and legitimate businesses are exposed to fraud.

Jewellery fraud has consistently been an issue in the precious metal industry, where counterfeit items are made and sold to unsuspecting customers at a high price. For example, if buying a platinum diamond ring online without an official hallmark, you could have purchased a plated copper ring that has been set with a stone made from plastic. Shocking and humiliating for the customer, fake jewellery also affects the reputation of legitimate businesses and hurts the value of the industry as a whole. Since online retail has become more prevalent, many perpetrators are now using online marketplaces as a means of selling

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counterfeit products on a mass scale.

A 2019 report by the BHC and Goldsmiths’ Company Assay Office confirmed that up to a third of precious metal products supplied online are unhallmarked and could therefore be fake.

According to the report, 36% (6,377 out of 17,657 items) of jewellery listed through online marketplaces was not advertised as hallmarked. This could generate huge financial losses to those in the jewellery industry every year, as well as hitting consumers’ pockets.

It has become essential for trading standards enforcement to take a firm stance against the influx of online scams when it comes to buying and selling precious metals.

Chair of both the BHC and CTSI Board, Noel Hunter, notes: “We [the BHC] are looking to set up a project across the UK

with a focus on internet trading to try and ensure the various organisations that sell into and through the UK via the internet are a fair deal for the consumer and legitimate traders as well.”

With a third of all ‘gold’ jewellery sold online in the UK potentially fake, it’s clear that it is increasingly difficult to tell when a piece of jewellery is legitimate or not.

For CTSI Fellow Robert Grice MBE, who is now retired from trading standards duties, “the problem is that it doesn’t matter how intelligent you [the consumer] are, you do not have the knowledge or the skills and you do not have the technical expertise to know that something is wrong. In the case of hallmarking, you have no idea.”

Grice explains that the role of hallmarking remains as crucial as ever when it comes to protecting consumers

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Journal of Trading Standards

36%

of all precious metals sold online are not legitimate

60,000 £5.9bn

people are employed in the jewellery industry in the UK

to ensure the trading standards community didn’t lose sight of the important role they have in relation to hallmarking enforcement,” says Hunter, adding: “There is about £50m of fraud across a year on the internet at current levels of activity.”

from fraud – whether online or through brick-and-mortar stores – and in helping local businesses thrive. “I noticed that hallmarking was falling off the trading standards agenda. So I wanted to put it back,” he says.

The Touchstone Award was created in 2012 in response to concerns about precious metal fraud and consumer protection. It was “developed

The number of prosecutions has increased substantially since the Touchstone Award was introduced www.JournalofTradingStandards.co.uk

Valued recognition Funded by the four UK Assay Offices and in collaboration with The National Association of Jewellers (NAJ), the UK’s leading trade association for jewellery, the Touchstone Award is presented annually by the BHC. The purpose of the award is to raise the profile of hallmarking throughout the trading standards community and to recognise the achievements of those enforcing consumer protection within the industry.

The winner is selected by the judges who are “looking for innovative activity related to hallmarking,” as stated by the UK Government. “Successful applicants invariably have a clear plan, which could be entirely proactive or alternatively a response to a complaint or enquiry, and excellent follow up.” These activities include: ▪ enforcement; ▪ education; ▪ information; ▪ a published article.

Last year Shared Regulatory Services (Cardiff, Bridgend and Vale of Glamorgan) won the Touchstone Award for its projects relating to hallmarking enforcement.

value of the UK jewellery market in 2019

Visiting 21 jewellers, officers found four premises that were selling nonhallmarked items. They also delved into a complaint about an online retailer attempting to sell non-hallmarked jewellery and counterfeit items, which when seized amounted to a retail value estimated at £25,000.

Thanks to such efforts, many hallmarking offences across the UK are being uncovered. “The number of prosecutions has increased substantially since the Touchstone Award was introduced,” says Grice.

Andrew Hinds of the NAJ noted last year that the jewellery industry makes up 1% of the UK economy and hires 60,000 people, so hallmarking enforcement has far-reaching consequences if laws are broken and infringement of the law is not investigated.

And thanks to initiatives such as the Touchstone Award, a greater emphasis is being placed on safeguarding the industry and its contribution to the economy, as well as of safeguarding consumers when making some of the most significant purchases of their lives. n

The 2020 Touchstone Award has been postponed in response to the UK Government guidelines on COVID-19.

The awards ceremony will resume in 2021.

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Recalls

By Michael McCaw

Total recall

Product recalls often make headlines – and given the volume of unsafe products made available to UK consumers, perhaps that’s no surprise. But are current rules and protocols up to scratch?

Product recall announcements in the UK are never far from the headlines – but the volume of cross-industry cases is almost impossible to track, with a number of websites claiming to offer the most up-todate master list of live recalls.

In days gone by, trading standards would have printed adverts in local newspapers and posted banners in relevant distributors’ windows. But the internet has put a stop to that not only because of the volume of information online – both trustworthy and otherwise – but also because of consumers reselling products online and across borders.

For regulators and enforcement officers to ensure the complete removal of products from online marketplaces, they would essentially have to check them constantly.

“It comes down to recall of product, but that requires resources for the regulator which they simply don’t have,” says Mark Gardiner, CEO of Market Surveillance Specialists and CTSI Lead Officer for Product Safety. “With the best will in the world you could require corrective action, you could require the disposal of products but there’s a time resource issue and getting someone to actually confirm that a complete disposal has happened.”

Instead, most officers focus on working with organisations to increase traceability

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and product identification, he says. As ever, the issue for officers is one of resourcing.

“There’s a distinct group of businesses who take this seriously and a distinct group of businesses who just don’t bother, and who just don’t take the appropriate action,” says Gardiner. “There’s a lot of businesses who in my view don’t fully understand consumer risk and their obligations to act on it. The chronic under-resourcing of trading standards means that a lot of these organisations can’t be taken to task. You need many more officers on the ground.”

Cautious optimism As far as educating those organisations, Gardiner acknowledges that “the direction of travel is positive”. Not least thanks to the publication of PAS 7050 and PAS 7100 Code of Practice for Corrective Actions and Recalls, sponsored by the Department for Business, Energy and Industrial Strategy (BEIS). With the new rules, businesses must consider product safety as part of their business risk.

Not everyone believes the rules go far enough though.

“The new guidelines are really good but one of the areas it doesn’t cover is how manufacturers communicate to retailers who have been stocking a product,” says Tim Gass, Regulatory Compliance Manager (trading standards)

“There’s a distinct group of businesses who take this seriously and a distinct group of businesses who just don’t bother” Summer 2020

Journal of Trading Standards

“Quite often we see a recall to the public is announced and that’s the first time we’ve heard about it too”

Far Left Washing machine Right Child safety seat Left Wireless ear buds Bottom Electric generator

at Tesco, and member of the CTSI Board. “Quite often we see a recall to the public is announced and that’s the first time we’ve heard about it too – so a customer hears about a recall, calls us up immediately and wants all the answers.

There’s still a challenge.”

For an organisation like Tesco, social media can be a useful way to communicate recalls, and the fact the supermarket giant keeps ClubCard holders’ contact details means it can often easily trace the buyer. However, as Gass points out, it can be difficult to actually get consumers to bring faulty or dangerous products back, especially

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if they are of low value or limited use.

Responsible organisations are therefore attempting to incentivise returns by offering replacements of equal or greater value – which also comes with obvious drawbacks. Getting those products out of the market is crucial, says Gass.

“It’s a bit of a challenge because you can’t compel people to bring things back because it’s their product – they own it.

That’s the difficult thing, even if you offered them lots of money to bring something back they can still keep hold of it if they really want to, and you lose control of it.”

For Gardiner, many of the problems

are tied to the increasingly complex supply chains and the globalised nature of modern commerce. The European Commission has attempted to bring clarity and consistency to the types of products entering the markets with the so-called Goods Package, which sets out to offer direction on market surveillance and the movement of products into and out of the Union.

“The law does need improvement and the EU is trying to improve that now with the Goods Package,” he says. “It will upgrade a lot of the current requirements particularly in relation to traceability, and dealing with instances in which someone has bought something outside of the single market, or there’s fulfilment houses where no one takes responsibility for the product. But whether or not we have that law inserted into UK law, we don’t know yet.” � See page 30 for a look back at Lynn Faulds Wood’s contribution to trading standards, including her work on product recalls.

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Academic

Away from Westminster

Jason Lowther, Director of the Institute of Local Government Studies at the University of Birmingham, discusses the long-term implications of COVID-19 on funding, and the problems of adopting a centralised approach to the crisis Austerity has clearly had a severely detrimental impact on local government resources over the past decade. Do you think COVID-19 will further hit funding of local government services such as trading standards?

In the short term, central government has gone some way to recognise the additional cost impact which COVID-19 is having on local government, although the reported comments of the Secretary of State [Robert Jenrick] that councils will be expected to share the extra costs are worrying.

In the longer term, government needs to recognise that local governments (particularly in deprived areas) have borne far more than their fair share of spending cuts during the decade of austerity, and as a result essential and preventative services have already been reduced too far.

There are already disparities between councils in terms of funding. Can you see this being exacerbated by the crisis?

Will regions with higher rates of infection bear the brunt?

It’s difficult at this point for government to know what the extra costs of COVID-19 have been and will be on different councils. We know rates of infection appear higher in large cities and in some disadvantaged groups, so that may well lead to higher financial burdens for

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certain councils. Councils have worked hard to provide data to government on the costs they have faced so far – if that is used sensibly it should help ensure the additional funds are appropriately targeted.

The crisis has dramatically changed the ways in which many of us work, with an increase in remote working and greater use of conferencing technology. Do you think this will have a long-term effect on local government working practices?

It’s been incredible how changes to working practices that would usually take years were delivered in days. We’ve noticed this across a range of other activities too, from partnership working and voluntary community activity, through to changes in road space use. Which of these will represent a new ‘COVID-19-era normal’, will depend on the ambition of local areas and whether England’s usual

“One thing that clearly emerges from the current crisis is that central systems of command and control are not delivering”

over-centralised approach to governing reasserts itself.

There have been some worrying examples of centralised control as the preferred working approach when it comes to things like testing and provision of PPE, even when it’s patently ineffective and wasting resources. We need to challenge this and take the opportunity to push for new more devolved and localised ways of working and governing.

One thing that clearly emerges is that central systems of command and control are not delivering. Responses could have

Summer 2020

Journal of Trading Standards

“Trading standards and associated departments have skills which could be well-suited to contact tracing” standards and enforcement officers – from contracting the virus?

Councils have worked hard to think through the risks facing their staff, and to provide appropriate advice and equipment. However, there are major issues with the availability of suitable protective equipment for a range of public servants which need to be addressed urgently and sustained in the long term.

Can you see any other ways in which the expertise of trading standards officers could be used in the fight against coronavirus, or indeed any future pandemic? There is a wealth of knowledge around scrutiny of the supply chain and animal welfare practices, for example.

been more nimble if there had been more freedom (and funding) to go ahead with local approaches.

Are there any particular consumer protection challenges that you can see arising from businesses being forced to adapt to the ‘new normal’?

Trading standards have been doing a brilliant job so far: warning the public of scams operating during the epidemic, providing expert guidance on key issues like PPE products, helping consumers affected by cancellations, and so on.

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As the lockdown arrangements begin to be loosened, trading standards may have an important role in helping businesses to trade safely and legally in a rapidly changing situation. Trading standards and associated departments (such as environmental health) have skills which could be well-suited to contact tracing for example, which will be critical in future.

What measures have you seen being put in place by local councils to protect their front-line workers – including trading

As mentioned, it’s clear that contact tracing will be important if we are safely to open up economic and social activity.

We know that specific public health resource in this area is limited, so it would make sense to explore whether other experienced and skilled staff groups could contribute effectively to this task – it seems likely that some trading standards officers may be particularly skilled in this area. It’s not yet clear in detail how this will work, and how effectively national systems will link with local ones. But it’s great that local Directors of Public Health have recently been given the lead role here. �

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Lynn Faulds Wood

By Richard Young

A lasting

LEGACY Lynn Faulds Wood, the journalist and consumer rights campaigner, sadly died after suffering a stroke on April 24 at the age of 72. Here some of her friends and former colleagues talk about her lasting contribution to trading standards

Lynn Faulds Wood was always an intrepid and fearless figure, and throughout her career she was a staunch ally of trading standards, developing real expertise in consumer protection and gaining many friends in the profession along the way.

Born in Glasgow in 1948, Lynn grew up in Auchendennan, on the shores of Loch Lomond. After graduating from Glasgow University with an MA in modern languages she moved to London, where she began her career in journalism in the 1970s, first working on newspapers and magazines, and then on television. It was during this time that she met fellow journalist John Stapleton, and the couple married in 1977.

Throughout her career Lynn was tenacious in striving for justice on behalf of others. From campaigning for animal rights to taking on criminal thugs, she became renowned for her bravery, and when she was diagnosed with bowel cancer in 1991 she devoted her energies to campaigning

28 |

for better diagnosis and treatment for fellow cancer sufferers.

In the course of her tenure presenting the BBC’s Watchdog from 1985 to 1993, she built up a reputation as a knowledgeable and passionate consumer rights advocate.

“You couldn’t help but be totally impressed with Lynn – her commitment was always immense,” says Ron Gainsford, the former Chief Executive of CTSI (TSI as it was then known).

“She became involved with the Young Consumer of the Year competition and was a real champion of it. She had a great way of relating to people of all ages, whether young or old.

“She was a regular at our annual Conference [now Symposium] – she would

“You couldn’t help but be totally impressed with Lynn – her commitment was always immense”

do whatever she could to help, it was never too much, and the same was true of her husband John. We all became genuine friends, in pursuit of the same goals.

“One of my fondest memories of her is from one of our Conferences in Brighton a few years ago. She’d had to really bust her schedule to get there, but she wouldn’t not be with us. She hosted the Young Consumer Award, but then she had to catch a flight from Heathrow for another work engagement. Time was running really short, so I said to her, ‘Look, how do you feel about a motorbike courier?’ I don’t think she’d ever rode pillion on a motorcycle before, but she said, ‘Go for it!’.

“The courier company supplied the leathers and the helmet, and on she got, grinning all over her face. Me and a few others stood outside the venue to wave her off, and away she sped.

“It really summed her up – never being afraid to have a go, trying something for the first time and smiling

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Journal of Trading Standards

Lynn was a staunch supporter of CTSI’s activities, including the CTSI Hero Awards

all the way. And most importantly, she did it for us.”

Consumer champion Chris Armstrong, Secretary of CTSI’s London Branch, has similarly warm memories. “Lynn was a consistent supporter of the service through all weathers,” he says. “Way back in the late 70s when she was an investigative newspaper journalist, at a time the Institute was a much smaller and less influential body, she was establishing supportive links and contacts with many of us.

“Not only did she take on board many of those consumer issues that we identified but encouraged and inspired us to pursue matters close to her heart.

“In the early 1980s those trading standards officials who were battling against the abolition of the flagship Metropolitan County Authorities were extremely grateful for the support that Lynn gave through her media contacts,

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“Not only did she take on board many consumer issues that we identified but encouraged and inspired us to pursue matters close to her heart” including the occasion in the Cutlers Hall in Sheffield when she was alongside all the Chairs of the Met County Committees highlighting the work and the worth of the consumer protection services in those areas.

“When she joined Watchdog, she worked with dozens of trading standards teams to highlight the problems with thousands of unfair trading practices.

“For their huge support for the Institute and the profession Lynn and John were made Honorary Members.”

Steve Playle, Trading Standards Manager at the City of London Corporation, was equally impressed by

her commitment. “I have known Lynn for 35 years since my first appearance on her BBC Breakfast slot, the forerunner to Watchdog, when we worked together to tackle a dodgy furniture retailer that took the money but never supplied the goods,” he says. “Our paths crossed many times after that and I was delighted to recruit Lynn as an Ambassador for London Trading Standards back in 2017. Lynn was always very enthusiastic and a great supporter of the trading standards profession. She appreciated the impact that we made and was amazingly passionate about preventing consumers from being ripped off.”

“She will be sadly missed by all in the consumer protection community,” says Mark Gardiner, CTSI Lead Officer for Product Safety.

Walking the walk Lynn always went beyond simply paying lip service to consumer protection issues, instead being focused on

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Lynn Faulds Wood

By Richard Young

“She appreciated the impact that we made and was amazingly passionate about preventing consumers from being ripped off” getting real results. As one former colleague recalls, “Once at a Torquay Conference Lynn contributed to the BBC Breakfast programme each morning and interviewed several senior Institute members in front of ‘ROT 1’, a mileagedoctored and unroadworthy secondhand motor vehicle on display in the Conference exhibition.

“When we had explained all the hidden faults that made the car a death trap for the unfortunate consumer who might have bought it, in true form Lynn asked ‘Well what are you going to do about it?’. Perhaps rather foolishly and without too much thought of the logistics, the Institute spokesperson said we would take it to the Department of Trade and Industry (DTI) at Victoria Street, London and dump it on the Minister’s doorstep!

Thanks to the swift and slightly devious action of the London Branch members the vehicle was towed from the Conference and ‘dumped’ at the entrance to the DTI the following Sunday morning.

Suitable photographic evidence was then released to make the point about the seriousness of buying cars from rogue car dealers.”

Speaking truth to power Lynn became so highly regarded in the field of product safety that she was commissioned by the Government to lead an independent review into product recalls in 2015. The UK consumer product recall report, which was published in 2016, called for better information sharing between officials tasked with

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protecting the public, as well as an official website for product recalls.

She was critical of the Government after the report’s publication however, feeling that many of her recommendations had been ignored. She told the BBC following the Grenfell Tower tragedy in June 2017, “We do not know what caused the Grenfell Tower fire, but what we do know is that we are putting people at risk because we don’t have a good enough system.”

Lynn also spoke out about the impact of budget cuts to local authorities, believing that a decline in consumer protection funding put the public in danger.

Valuing the integrity of her work over personal plaudits, Lynn was offered an MBE in 2016 but refused it as she felt the honours system needed “dragging into

Above Lynn’s campaigning made headlines, as when an unroadworthy vehicle was dumped outside the DTI on her suggestion

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Journal of Trading Standards

“Her name will be remembered by all those who continue to fight for the rights of the disadvantaged” the 21st century” – and accepting the title would make her a “hypocrite”.

She remained a devoted friend of the service right up until the end, as Chris Armstrong points out: “Lynn visited many trading standards officers to find out directly what were the problems of the moment and enjoyed talking face to face with the enforcement staff.

Just last year she chaired a one-day seminar organised by Islington Trading Standards for Lettings Agents and related industry personnel.

“Lynn has always been a true Consumer Champion and will be sadly missed. Her name will be remembered by all those who continue to fight for the rights of the disadvantaged against those who seek to take an unfair advantage.”

The tributes from Lynn’s former friends and colleagues in broadcasting were led by Dame Esther Rantzen, who commented: “She fought for the rights of vulnerable people doggedly and determinedly, and she is a huge loss to journalism and to her friends and family.”

Fellow journalist Sophie Raworth tweeted: “I have known Lynn since I was 14. She inspired me to become a journalist. She has lived next door to my parents for decades. She has been the most wonderful, generous, kind friend to me and my family for such a long time.”

John Stapleton said in a statement: “Huge thank you to the hundreds and hundreds of people who have paid tribute to Lynn. A wonderful mother to Nick, a loving and hugely supportive wife to me and a campaigning journalist on so many fronts who really made a difference to the world we live in. We’ll miss her always.” n Compiled with the help of Chris Armstrong

www.JournalofTradingStandards.co.uk

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Disruptive businesses

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by Michael McCaw

Summer 2020

Journal of Trading Standards

DEALING WITH

DISRUPTION The online age has opened up a new commercial arena, drastically altering traditional business models.

But with consumers selling to other consumers through internet portals, investigations can be an enforcement officer’s headache, writes Michael McCaw The internet has revolutionised consumerism, bringing goods and services from all over the globe to our fingertips and our doorsteps. While markets have been overhauled by the global pandemic over the past few months, the past two decades have seen immeasurable expansion in choice and – in many cases almost complete – elimination of geographical monopolies.

The pace of disruption has accelerated over the past five years, with consumers trading more and more through online portals such as eBay, AirBnB, FaceBook Marketplace, Amazon, and others; by mid-2017, 62 percent of the UK had participated in the sharing economy and 73 percent of those did so across multiple platforms.

From an enforcement and legal perspective, it’s a new challenge that is in need of serious attention, and there

are no easy fixes – even the Office for National Statistics (ONS) has been forced to conduct a feasibility study to define and quantify the sharing economy. Because it is difficult to pin down, the new ecosystem doesn’t fit easily into current UK law, which to some seems outdated.

New world “The suite of consumer laws that we have, have been written with an analogue world in mind – there’s no doubt about that, and they’ve been developed mostly from EU law,” says David Mackenzie, CTSI Lead Officer for E-commerce.

“Things like the different selling provisions, for example – the information you have to give to a buyer when selling at a distance, calculation rights, etc – it’s all really based on discussions that were had in the 1990s when it was simply a case of an ecommerce website. But now with

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Disruptive businesses

by Michael McCaw

Companies like Airbnb put peer-to-peer relationships between individuals at the heart of their business model

all these different platforms it is a much more complicated picture,” he says.

While Mackenzie concedes that many European Union laws have been constructed on principles-based directives, there are still many areas that could do with fresh consideration.

“You could argue that the legislation was written for a world that has moved on, and there could be an argument for writing legislation that really attempts to tackle the world as it is now and as it is going to be,” he contends.

A major problem in applying the law is national boundaries. Many of the platforms that have sprung up to shape the sharing economy have taken advantage of the very fact that the internet removes geographical boundaries, says Peter Stonely, CTSI Lead Officer for Civil Law. “If you look at AirBnB or Facebook, they are global brands, so their reach and their compliance requirements are complex issues and trading standards have got to make links between various

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“ONE OF THE MAIN PROBLEMS WE HAVE IS THAT PRETTY MUCH ALL TRADING STANDARDS LAWS ARE BASED ON THE IDEA THAT THE SELLER IS A BUSINESS” bodies, and adapt their enforcement methods to deal with this,” he says. “It’s clearly a problem – these businesses are not in front of [enforcement officers], they’re up in the ether somewhere.”

Although dealing with issues that cross national boundaries is a hurdle trading standards has encountered more often in recent years, just as problematic is the question of who is responsible when things go wrong – such as when a service hasn’t been fulfilled or a product not

delivered as described. Legally speaking, if a consumer sells to another consumer it is not necessarily technically a business transaction.

A matter of principle “One of the main problems we have is that pretty much all trading standards laws are based on the idea that the seller is a business,” says Mackenzie, who points out that the definition of a business is largely principles-based – founded on questions such as throughput and whether or not something has been bought in order for it to be sold.

Mackenzie says this particular issue became a challenge when eBay gained a market, but things have become more challenging with the growth of social media and adaptive technologies.

“When does an AirBnB host letting out a room for three months of a year become a business? There’s a growing grey area in which there’s a lot of people unsure as to whether regulations apply to them or

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62

%

of people in the UK participate in the ‘sharing economy’

73% of those do so across multiple platforms

not. And even if the regulation did apply to them it can be really difficult to reach them,” he says.

Further, many of the platforms consider themselves as introducers rather than intermediaries, with rules and enforcement policies restricted to their own ecosystems.

For instance, AirBnB (which did not respond to comment for this article) has a set of standards which includes safety, security, fairness, authenticity and reliability. The company’s website asserts that it will “take the circumstances of each situation into account when reaching our enforcement decision,” but crucially admits that it has “limited discretion in our response to serious violations of the policies”.

Similarly Amazon Marketplace’s provisions include a “safe buying guarantee”, but claims can only be made within 90 days of the estimated delivery date. Facebook Marketplace also contains commercial policies, but issues still

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remain: just last year it was reported that knives were being sold on the platform without age verification.

On the face of it, policies such as these do much to make buyers and sellers feel protected, but for trading standards – which maintains regionally and nationally held values – internal complaints procedures and online review systems effectively stop complaints from reaching them. The challenge then for trading standards is to find information to work with, and determine who is to be held responsible for a particular matter.

Collaboration is key In a way, enforcement officers have turned these platforms’ best asset – access – to their advantage. Given how tight resources have become, officers would have slim hopes of contacting each and every entity through the platforms to ensure higher standards, so instead they work with those platforms to communicate through them, as well as attempt to convince those platforms to adopt best practice initiatives.

“The prospect of getting a message to the many, many thousands of online retailers to have individual conversations about compliance on things like charging fairly, making sure they’re displaying things properly, can be extremely challenging,” says Mackenzie. “But we’ve had some success in getting the likes of Amazon to make some of our rules almost

“IT’S CLEARLY A PROBLEM – THESE BUSINESSES ARE NOT IN FRONT OF ENFORCEMENT OFFICERS, THEY’RE UP IN THE ETHER SOMEWHERE”

Hosting low standards In March, a landlord in Torquay was instructed to pay almost £33,000 in fines and costs for failing to meet fire regulations.

The owner had let the property out on Airbnb even after a report he commissioned had described the property’s condition as “intolerable”.

The market is split, says David Sapiecha of Albion Chambers, who prosecuted the case, between those who run lets as proper businesses, and those who don’t consider the rules.

“Many don’t realise that effectively now their property has become commercial they have to consider the law and consumer protection issues,” he says. “In a lot of instances people don’t stop to consider that they are running a business and that they have to comply with the various regulations.”

part of their own rules and contribute towards the general level of compliance and fairness.”

For Stonely however, the size of a number of these organisations – as well as the way they are built to rely largely on technology – makes them seemingly impregnable to external input, never mind enforcement.

“Where it goes a bit wrong is when you have to speak to a human to work out what’s going on with a problem.

I’m not sure if the problems are new or different but the process takes much more time and there’s a lot more instances of problems arising,” he says. n

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Think Piece

Laura Kane Laura is Policy Executive at CTSI

Sometimes invisible, always inspirational Trading standards officers have risen to the many challenges of COVID-19, responding with passion, initiative and unity as they confront a war on all fronts Having been away from the profession for over three years working in energy regulation, it is an inspiring time to be back to see the important and diverse work of trading standards being showcased. This is especially evident during such a challenging time, as trading standards services work to deal with the fallout from COVID-19, which has significant and potentially dire effects on both business and the consumer.

Despite facing drastic cuts over the past ten years, with all authorities in the latest Workforce Survey reporting

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a reduction in resources and a fall in staffing levels of between 30% and 50%, trading standards services continue to adapt to new challenges, this time in the form of a pandemic.

When speaking with trading standards officers over the past two months a few examples have stuck in my mind, such as those who have been redeployed to coroner duties, or who have been delivering food to the vulnerable or self-isolating. In the latter, the food delivery was done in shift work with long hours, but these officers were still carrying out Primary Authority

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Historically trading standards officers have been at the forefront of national emergencies, be that on the ground or behind the scenes

duties for one of the largest and busiest retailers at this time. It just reinforces the commitment of the profession as a whole to protecting those who need it most.

Adapting and responding A lot of what local authority trading standards services have been tasked with is novel. Enforcing the new regulations for business closures/restrictions, or finding ways to deal with the newly emerging practice of price gouging, new scams and door step crimes are a few examples.

Cancellations of contracts in the travel and accommodation sector have led to consideration of how we advise consumers whilst balancing that with the need to support the UK economy as a whole, which would ultimately benefit consumers and business. Food safety and product safety have become areas of even greater risk, as suppliers rush to get products onto shelves to meet demand, and unscrupulous opportunists seek to take advantage of the shortfall in basic food, toiletries and personal protection equipment.

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This just goes to show the agility of the profession as trading standards services continue to adapt and respond, protecting the public and reputable business, despite facing considerable operational challenges. Much of our legislation was not designed with the current circumstances in mind, meaning enforcement and the provision of clear consumer and business advice can be more difficult. This is combined with insufficient resources, a lack of personal protection equipment and adaptation to home working along with self-isolation and/or care for dependants.

Lead Officers have been responding to the uncertainty around our legislative toolkit at speed. This is helping to bring clarity to such a hotbed of queries and has fed into important discussions on longer-term solutions at government level. CTSI has been working to add to that clarity, obtaining legal advice and working with our consumer protection partners on consistent messaging on relevant issues.

We have also produced a COVID-19 Information Hub on the CTSI website which aims to provide the latest updates on each sector. I would caveat that by saying that on some days the picture changes so vastly in multiple areas, that it takes us a wee while to catch up!

Right now, a lot of our officers are designated Key Workers, and as we know, historically trading standards officers have been at the forefront of national emergencies, be that on the ground such as in the foot and mouth outbreak, or behind the scenes dealing with product safety issues in the Whirlpool dryer scandal.

Society looks back on such periods in history to judge how they were dealt with and to take lessons on how we can do better in future. A question people often ask is, who was in charge of regulating this at the time?

A lot of what trading standards officers do is invisible, enforcing what may be perceived as “red tape� which is vital to keep people safe and make trading fair.

We enforce an ever-growing list of over 250 pieces of legislation. During the pandemic, we have visibility, which makes it important that we now capture and use the examples of our work to inform government and decision makers.

A case can be made now so more than ever for the importance of sustaining the profession and making sure it is property equipped to deal with not only the day-to-day challenges, but also events of a large-scale emergency nature. From conversations with stakeholders, trading standards officers are being reflected in a positive light, acting with measure and diligence in carrying out their duties, some of which are brand new.

Taking the temperature As I write this, CTSI is just about to launch a survey aimed at Heads of Service, which hopes to get a snapshot of what it looks like on the ground in local authority trading standards services during the pandemic.

The survey will gather information on new COVID-19 related issues as they arise. The results will add to the findings from the ACTSO Value of Trading Standards Report 2019 and the most recent Workforce Survey. In conjunction, this data can be used as evidence to support the argument that the funding deficit the profession faces needs to be resolved, urgently.

Going forward, the trading standards profession needs to be involved in the joined-up emergency and contingency response for future emergencies.

To do that effectively would require the appropriate resources. I doubt there is anyone within the profession who doesn’t wish we could do more to help, if only we had deeper pockets and better tools at our disposal. n

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Business & COVID-19

By Helen Nugent

BUSINESS

UNUSUAL

The COVID-19 crisis is proving an existential threat for many businesses, with a surge in companies being forced to shut up shop. How can trading standards deal with the situation in a way that protects consumers but is sensitive to those seeing their livelihoods go up in smoke? Âť

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Business & COVID-19

By Helen Nugent

t has become an overused phrase but it still rings true: we are living in ‘unprecedented times’. With the coronavirus pandemic meaning that much of the world is on lockdown and the possibility that social distancing measures may remain in place for some time to come, we will have to adjust to a new reality.

The number of deaths due to the virus is startling and tragic, as are the symptoms experienced by those worst affected. But there are other casualties, not least businesses which are no longer able to trade. Figures from the Enterprise Research Centre found that 21,000 more UK businesses failed in March than the same month a year ago and the number of new firms fell by nearly a quarter. Experts have called the data “catastrophic”.

Various industries, including the travel, culture and hospitality sectors, are warning of “total collapse” as a result of the coronavirus outbreak. And there have been predictions from banking officials that unemployment in Britain and the US could exceed levels seen during the Great Depression nearly a century ago. But what of consumers? Many people have been left out of pocket by cancelled flights, holidays, leisure tickets and cultural events, unsure what to do in order to secure redress.

New normal?

Peter Stonely, CTSI Joint Lead Officer for Civil Law, says that society is dealing with a highly unusual situation where neither businesses nor consumers are responsible for broken contracts.

“I think that makes for a different perspective on what consumer rights might be, and also on what might be best for consumers working with businesses.

So there is an argument that consumers may be well served to try and support businesses rather than taking money out, but that comes with risks, and we are seeing that in a number of sectors.

“Also, I think it’s important that we are seeing, particularly in the leisure services sector, businesses taking quite different

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21,000

more UK businesses failed in March than in the same month a year ago views with regards to refunds. It may be that they haven’t got the cashflow to support refunds.”

When it comes to travel, the rules are pretty clear. For package holidays, if a holiday has been cancelled by the tour operator, a full refund should be made within 14 days. However, travellers could choose a credit note as an alternative if offered by the business. CTSI advice would be to ensure that the credit should be protected, so that if the business collapses prior to the holiday, the traveller will still be refunded. The traveller should though be made aware that a refund is still an option. In addition, the Association of British Travel Agents (ABTA) says that

“IT MAY BE THAT SOME BUSINESSES HAVEN’T GOT THE CASHFLOW TO SUPPORT REFUNDS”

many operators and agents don’t have the cash to pay customers back and is urging the Government to extend the two-week refund period to up to four months.

Meanwhile, airlines and holiday companies have been accused of breaking the law by illegally holding onto these 14-day refunds, ignoring the European Union’s ‘denied boarding’ rules for EU carriers which stipulate that a refund or a rerouting must take place when flights are cancelled. The travel industry’s own calculations estimate that up to £7bn could be owed for cancelled trips and the UK European Consumer Centre (UK ECC) has been inundated with enquiries from members of the public concerned about how the crisis may affect their holiday plans.

Wait and see?

Bruce Treloar, CTSI Lead Officer for the Travel and Holiday Industry, says that traditional advice and legal remedies are likely to be inappropriate at this time, and any required changes to legislation will take time.

“The travel industry is appealing for patience as operators are unlikely to have sufficient cash available to meet all refund requests and many are at risk of going out of business,” he says. “Tour operators

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£7bn the amount estimated to be repaid by the travel industry over cancelled trips

“THE TRAVEL INDUSTRY IS APPEALING FOR PATIENCE AS OPERATORS ARE UNLIKELY TO HAVE SUFFICIENT CASH AVAILABLE TO MEET ALL REFUND REQUESTS” and holiday companies are advised to keep communicating with their customers about the steps they are taking now and those they intend to take in the future.

“Advice to travellers already booked is to wait and see what the situation is nearer the time of departure and to check their travel insurance cover.”

Given the Government advised against all but essential travel on March 17, most travel insurance policies should cover cancellations of overseas flights.

But probably only if the policy was purchased before March 11 when the pandemic was officially declared by the World Health Organisation.

Stonely says: “With hotels, flights and holiday cottages we are seeing a range of options between full refunds to sometimes the middle business holding onto the money as a credit against future bookings. Is that right or wrong? But

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consumers can certainly ask for their money back. Let’s take a holiday booking.

The situation is that neither party has done anything wrong and, in this job, we are used to talking about breach of contract. It’s Government who have said to businesses that they can’t do this, you can’t let people in, and they’ve said to consumers that you can’t go. And that’s what is so different here.”

According to Stonely, there are two legal options: force majeure clauses (things beyond our control) and frustration of contract. But a lot of clauses are not very clear and frustration of contract (if neither party can deliver the contract then the contract is effectively set aside) is “something we all learned about when we learned contract law but never thought we’d ever use. And the courts don’t like it. We don’t know how this law will apply, we really don’t.”

Playing fair Sylvia Rook, CTSI Lead Officer for Fair Trading, agrees that these are unique times when it comes to enforcing consumer rights. “Both parties want the contract to go ahead but it can’t go ahead.

The last time we had something like this was when we had the volcanic ash cloud [in Iceland] ten years ago,”she says.

She adds: The legislation [which came out at the end of March] was written quickly so there are quite a few grey areas. It’s quite a challenge to make sure there’s consistency across the country.

We don’t want businesses to go under but a lot of businesses aren’t going to reopen, which is tragic. So there has to be a lot of sensitivity in enforcement.”

In the leisure sector, there are similar difficulties, including venues granting refunds for gigs but ticket agencies keeping their fees. Essentially, refunds will depend on how the ticket was bought and from whom.

Rook says: “Your consumer rights haven’t changed in terms of goods or services that aren’t provided or services that aren’t provided. Your consumer rights are the same, it’s just the practicalities of enforcing your rights.

And if a business goes under, you can’t get money back from a business if it’s not trading. So it’s down to whether you paid by credit card in which case Section 75 of the Consumer Credit Act will kick in and you may have a chance of getting your money back that way.”

She continues: “There are problems particularly when people have booked different things with different people [for example, a wedding]. You have to hope that people have good insurance policies and insurance that was taken out before March and will cover cancellation because of coronavirus.”

On top of all this is the issue of fair terms. “A force majeure term has been used as a standard through many elements of various sectors for a long time,” says Stonely. “I think when we come out of this we will be looking at these terms and asking, were they fair? Or will the business say, ‘we did all that we could’?” n

See the Legal section on page 54 for further discussion of the consumer rights implications of COVID-19

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In conversation with: Noel Hunter

Journal of Trading Standards

I N C O N V E R S AT I O N W I T H

NOEL HUNTER

The Chair of the CTSI Board discusses trading standards’ history and looks ahead to the challenges of a post-COVID world

BY PAUL EVANS

Trading standards in the UK has a long history yet it’s very much at the forefront of what’s happening at the moment. Do you think people are aware of its role in society?

I’m often asked what the service actually does. It has a very broad base, and it’s very much embedded in history; you can trace its roots back to the Magna Carta if you search long enough.

The trading standards profession in its present form has been around for the best part of 150 years, so it has quite a lot of pedigree. It started off with a responsibility for weights and measures and food and drugs law, and that was about all it did. But the world has changed considerably since then.

How would you characterise the changes that the profession has gone through in the past few decades – from mainly dealing with weights and measures to having responsibility for more than 250 pieces of legislation?

One of the reasons the service has got so many responsibilities is that the profession has been extremely effective in being versatile and responsive to change.

That’s partly to do with training; trading standards officers have a legal training, they have training in investigation, and they have a wide skill base. So that has led to the huge number of responsibilities, in everything from product safety

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to petroleum and explosives law, to consumer credit laws and so on. The service has had many issues placed on its shoulders and has been hugely flexible in dealing with them – and hugely effective.

In times of crisis trading standards has emerged as being particularly important – perhaps more than many people realise.

How does that relate to what’s been happening recently with the COVID-19 emergency?

In my 55 years with trading standards the service has faced lot of major issues.

Back in the 1970s there was the fuel crisis, and we were heavily involved there. In the 1990s, BSE was a major concern, with far-reaching health implications to the public at large as well as the damaging effect it had on the industry. The foot and mouth outbreak in 2001 was clearly a very serious issue which devastated the farming industry.

More recently the Grenfell Tower tragedy highlighted concerns about construction products. Right up to the COVID-19 crisis of the present day, which has brought with it all sorts of attendant problems for consumers and indeed for businesses, with things like scamming and price gouging, there have been a whole range of issues which the trading standards community has dealt with in its changing face over a period of time.

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In conversation with: Noel Hunter

Society at the moment is in the process of asking questions about our preparedness for these sorts of situations.

And I think we may find, as a society, that at the end of this we will be found wanting.

A big part of the missing component is actually prevention – trying to stop problems occurring, as well as finding a way of dealing with them when they do occur. That sort of emergency planning is hugely important to a service like trading standards, which has been involved in the emergency planning agendas of local authorities over many years now.

What do you think are the biggest challenges presented by COVID-19 to the profession?

I suppose in many ways it’s the same as what everyone else is facing: change.

There is no doubt that the world will look different after COVID-19. There are obvious components to that. One is, how will trade look? The retail trade is obviously going to be affected quite a lot in all of this and there’s been a considerable increase in internet trading in the global marketplace. We’ll see an issue with consumer confidence – and with that, how will consumer problems be addressed in an increasingly global marketplace?

At the moment for example, CTSI operates the UK European Consumer Centre [UK ECC], which brings together the interests of 28 EU nations plus Norway and Iceland, to deal with crossborder disputes. Now we’re not quite sure what will happen with the UK ECC as we exit the EU but clearly in the future there will be an even greater need for a service such as that, to deal with the crossborder issues that consumers will face increasingly in the new world in which they operate.

The pandemic has made us all think about what constitutes key workers, from people working for the NHS to people working in supermarkets.

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The service has had many issues placed on its shoulders and has been hugely flexible in dealing with them – and hugely effective

Where do you think the role of trading standards officers fits in terms of the jobs that are really valued by society more broadly?

I think there’s a pretty strong recognition of trading standards and what it does out there in the community. The problem has been that the trading standards service has been diminished over the last few years of austerity – we’ve lost about half of our resources, and I would say that in some places now the size of the service is probably no greater than it was back in the days when I first entered the profession, when its responsibilities were much fewer. That is a significant change, and one which has caused the service to change dramatically as well.

The service works smarter now, it has electronic means of operating, it has

intelligence bases we didn’t have before – but nevertheless it has a major challenge on its hands. If you look at the service, it is part of local government at the moment, and is part of that group of workers who are perhaps under-recognised.

Undoubtedly the service needs reordering – we have said as an Institute that it’s no longer fit for purpose in terms of its structure and the resources it has to operate. So it does need a major rethink to ensure that the protections needed for consumers and businesses in this changing world are met. That is a really big issue going forward for CTSI. What are the risks of failing to bring trading standards up to a level where it’s properly resourced?

If you talk to the major business

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very persuasive reports to government advocating this. The government has this on its agenda – that agenda has been interrupted by recent events but we’re still pressing very hard as a professional Institute to make sure that is not forgotten, and will be addressed as soon as possible.

organisations, they recognise the huge importance of the role trading standards plays in terms of maintaining a level playing field. And that level playing field is even more necessary in the UK’s future outside Europe. So those protections for trade are hugely important. There is a great need for us to reshape and reform to deliver that agenda.

Since its early days, trading standards has always been involved with one thing: fair trading. This sits right in the middle of the relationship between business and consumer. So it’s as relevant to business success as it is to consumer redress, and we have always spent a lot of time on advising businesses. In many senses, the case for proper funding and resourcing has already been made; the National Audit Office and others have made major and

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“I think when it comes to adapting, the trading standards service is in a ‘learning mode’ as much as everybody else is at the moment”

Even after lockdown is over, the consumer detriment caused by COVID-19 is likely to last a very long time. What do you anticipate will be the biggest challenges coming out of the pandemic in the long term?

I think we’ll all have to find new ways of working – we’ve all become much better at using things like web conferencing technology to shorten the distances between officers and make sure we can meet more regularly and exchange information more effectively. On a practical level, that’s already happening but I think it will require trading standards to evaluate the tools available to it to deal with some of the problems I’ve referred to already. I think when it comes to adapting, the trading standards service is in a ‘learning mode’ as much as everybody else is at the moment.

What about the challenges of communicating with the wider public?

One of the big issues is around getting information to consumers and guiding them on how to deal with real problems they’re facing at the moment. With the situation changing so rapidly, there’s a real challenge on the ground of getting reliable information across. I’m currently chairing a group bringing together BEIS, the CMA, Which? and a range of other players in this field to try to ensure that we are working together and getting information out to those who need it, through consumer and business networks. We’re working very closely on making sure that our collective effort is more than the sum of its parts. n

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Business Companion

Doing business the right way Through its Business Companion service, CTSI has published a series of guides to support traders who want to stay on the right side of consumer law In the midst of the COVID-19 emergency, much of trading standards’ attention has been directed towards ensuring the public are protected when buying goods and services, and businesses are able to make sense of the swathe of new regulations and restrictions rapidly brought into force. But against this dramatic – and, hopefully, temporary backdrop – the nuts-and-bolts work of trading standards continues.

A big part of that day-to-day work involves helping companies to stay within the law when going about their business, in the interests of both their own profitability and the safeguarding of consumer rights. With this in mind, CTSI has – with the support of the Department for Business, Energy and Industrial Strategy (BEIS) – over the past year published a series of guides themed around specific areas of business.

The aim of these guides is to provide reliable and succinct information about important aspects of consumer law, complete with case studies, training

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resources and useful links to further reading. The guides have also been designed to take into account the differences in consumer law that can sometimes apply in England, Scotland, Wales and Northern Ireland.

In addition to providing valuable guidance for business, they also serve as a useful resource for trading standards and other enforcement professionals who may need to double-check an aspect of consumer law quickly and conveniently.

So far the guides have centred on five main areas: ▪ care homes; ▪ travel; ▪ used cars; ▪ alternative dispute resolution; ▪ online marketplaces Care homes The care home guides have been published in response to a 2018 review of the sector by the Competition and Markets Authority (CMA). With the UK’s population steadily ageing, there is a

pressing need to ensure that care home provisions are fit for purpose. This has been starkly illustrated by COVID-19, which has brought into focus the vital role played by care homes across the country in safeguarding some of our most vulnerable citizens.

One of these guides addresses the responsibilities of communicating information accurately to care home residents and their representatives, with detailed guidance on when and how information should be given.

Another addresses the things that should be borne in mind by care homes when setting up their websites, while the Care home complaints guide focuses specifically on what owners, managers and staff need to be aware of when setting up a robust complaints handling procedure.

Travel CTSI’s Practical holiday law: guidance for business guide provides an in-depth examination of the Package Travel and Linked Travel Arrangements Regulations 2018 (2018 PTRs). These new rules cover a potentially complicated area of legislation, as Bruce Treloar, CTSI Lead Officer for Holiday and Travel Law, explains: “Package holidays and Linked

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In addition to these guides, in response to the government advice for businesses during COVID-19, a series of bulletins have been put together to highlight key information for the following business sectors: ▪ Food ▪ Home improvements ▪ Travel ▪ Vehicles ▪ Working in other people’s homes ▪ Construction ▪ Offices ▪ Restaurants ▪ Shops

The aim of these guides is to provide reliable and succinct information about important aspects of consumer law, complete with case studies, training resources and useful links to further reading Travel Arrangements are often complex combinations of travel services. Different service providers, for example airlines and hotels, are often involved and a problem with the delivery of one service may affect the delivery of the others.”

The guide breaks down the regulations into practical, real-life examples of where a knowledge of consumer rights can ensure that all parties – whether travel providers or travellers themselves – are satisfied. These include the impact of building works on customers’ holidays; getting the wording of promotions right; and travel operators’ responsibilities with regards to cancellations.

Used cars It is an inconvenient truth that used cars are the most complained-about consumer purchase. This is for a variety

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of reasons: cars are usually among the most expensive things people buy; consumers often invest a huge amount of emotional capital in their cars; and they rely on cars to keep themselves and their loved ones safe, and often take it personally if things go wrong.

Car traders and consumer law: guidance for dealerships has been designed as a reference for busy car dealers who might need to look something up quickly and under pressure. It includes an overview of the relevant consumer protection legislation that used car dealers need to be aware of, setting out in plain English their responsibilities to their customers. These include the Consumer Protection from Unfair Trading Regulations 2008, the Consumer Rights Act 2015, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and the Consumer Rights (Payment Surcharges) Regulations 2012.

Alternative dispute resolution (ADR) This guide offers an introduction to the concept of ADR, a process for resolving disputes between consumers and traders that doesn’t involve going to court, using the services of a neutral third

party to reach an agreement quickly. The advantages of ADR include cost savings and the avoidance of reputational damage.

The guide discusses the differences between mediation, conciliation and arbitration as types of ADR, and the criteria that third parties have to meet, as well as the requirements for traders, including internal processes and communication requirements, along with case studies to illustrate the stages.

Finally, the guide provides an overview of the online dispute resolution platform, including details of the CTSI helpline, which allows consumer to log details of a dispute, and serves as a mechanism for communication between the consumer, trader and ADR body in a dispute.

Online marketplaces Online marketplaces are booming. Sales on such platforms as eBay, Facebook Marketplace and Amazon Marketplace have rocketed in recent years – a trend that is only set to rise.

This guide lays out a logical approach for sellers, beginning with three tests for whether the UK’s trading rules apply, including what counts as a ‘trader’, important considerations around whether a trader is selling to businesses or consumers, and issues around the geographical location of customers. The guide also covers precontractual requirements and consumers’ cancellation rights, along with a list of exemptions from these rules.

It includes a list of frequently asked questions, supported by practical examples that help traders visualise potential problem situations. There’s also a concise summary of consumer protection regulations that apply to online marketplace sales, including legislation that protects consumers from misleading descriptions, aggressive practices, unlawful surcharges and unsafe products. n

To read the guides in full, visit www.businesscompanion.info

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Symposium

Eye on the future With this year’s Symposium regrettably cancelled due to COVID-19, CTSI is looking ahead to next year’s event, which is already shaping up to be better than ever The COVID-19 pandemic leaves a large hole in our annual event programme with the cancellation of the 2020 Symposium.

In 75 consecutive years, this will be the first time that we will miss the opportunity to get together as a profession at this much-loved annual event.

Every year, colleagues look forward to engaging and celebrating with the profession, sharing knowledge and taking part in the exciting debates that emerge from the seminars, plenaries and the awards ceremony.

Many of you have expressed your disappointment but also understand

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that this was necessary given the unprecedented circumstances. We want to reassure you that the CTSI Symposium will be back even stronger for 2021.

We want to thank those organisations that have already committed to supporting the 2021 event.

CTSI is planning some CPPD activity later this year and we are working hard to put together our Autumn Digital Programme. We are hoping for a week of content which you can participate in at your convenience. Some of our 2020 exhibitors and session holders will be providing us with content that we can

share with you together with the CTSI Policy team to deliver updates and debates.

The content that is planned will include live webinars, videos, podcasts and written content. We will announce further details in due course via Leon’s Update and our social channels.

Thank you to all our sponsors.

We are delighted to have Status International confirmed as main sponsor for 2021. n

Save the date CTSI Symposium 2021 15-17 June Eastside Rooms, Birmingham

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Journal of Trading Standards

Main sponsor:

Sponsors:

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NATIONAL TRADING STANDARDS

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Scams Team

Estate Agency Team

Protecting Consumers Safeguarding Businesses

Protecting Consumers Safeguarding Businesses

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CPPD Module

WORDS BY

Stephanie Young CTSI Lead Officer for Animal Health and Welfare

Continuing Personal Professional Development Module

The systematic improvement of your vocational knowledge and skills – both through expansion and refinement – is absolutely essential in keeping on top of an ever-changing regulatory landscape at this time of restricted resources.

As part of its role leading the trading standards profession, CTSI offers free CPPD modules through its publications.

The Journal of Trading Standards is pleased to offer the latest in the series here.

After reading the article, you can head to the CTSI website to complete the questions (also included on page 42).

Successful completion is worth one hour of CPPD. If you have already completed the online EU Exit Trading course, additional CPPD cannot be awarded for completion of this module.

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CPPD Module 18:

EU Exit training: animal health and agriculture The UK’s exit from the EU will create new legislative challenges which trading standards officers will need to be aware of.

This is especially so in the area of animal health and agriculture The UK has one of the strongest systems of protection for farm animal health, welfare and agriculture in the world.

Since its formation, the EU has also been recognised globally for maintaining and promoting animal health and welfare, with directives and regulations that have raised and harmonised controls across the single market, improving standards in many of the EU Member States that previously were less concerned with protections in this area.

The main body of animal health law in the UK (derived from both domestic statute and the EU) is interpreted, communicated and enforced by authorised animal health officers from local authorities. In the main, this is the trading standards service. The legal and regulatory framework for animal health, welfare and feed ensures that the food chain from farm to fork remains protected, as well as ensuring the exotic notifiable animal disease status of the UK is not compromised.

Higher standards of protection represent a trade-off and bring competitive challenges in wider global markets, where factory-style intensive farming means the principles of animal sentience, health and welfare become secondary to lowering costs of production. With budgets and numbers of local authority trading standards staff in considerable decline, there is a correlating threat to the potential for reduced standards of animal health and welfare, as the global competition

for markets increases and the levels of regulatory checks and enforcement diminish.

After Brexit The EU (Withdrawal) Act 2018 has the intention of transposing all directly applicable regulations into UK law, thereby ensuring no cliff edge and a functioning statute book on the day the UK leaves the EU. Fundamentally, the way that EU law is applied and enforced relating to animal health and agriculture within the UK will not change, and existing EU-derived legislation will remain in place and be transposed into domestic statute via a number of EU exit amendments.

The proposed ‘Agriculture Bill’, detailing Government plans for financial support for farming post-EU exit, is still being debated. However, early indications are that by 2028, basic payments of direct funding will be phased out to farming communities and financial support will be replaced by an ‘environmental land management scheme’ (ELMS) that pays ‘public money for public goods’, and there will be new support for increasing agricultural productivity and higher animal health and welfare programmes.

The Direct Payments to Farmers (Legislative Continuity) Act 2020 has been introduced on exit day and the EU legislation governing the 2020 CAP direct payment schemes becomes part of domestic law.

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Journal of Trading Standards

“Existing EU-derived legislation will remain in place and be transposed into domestic statute via a number of EU exit amendments” Switzerland, are included in the alert system. It is believed that following the withdrawal from the EU, the UK would not have access to RASFF, yet the relationship with the European Food Safety Authority (EFSA) remains unclear.

Whilst in a transition stage following the UK withdrawal from the EU, until it is clear on what trade deals there may be on the table between the UK, the EU and the rest of the world, it is not possible to state what the rules will be in the future or how they will apply. Animal health and feed law is a devolved function; therefore, it is expected that there will be similar and parallel provision across the whole of the UK. An unintended consequence of reduced Government funding to some of the less viable farming communities may lead to a rise in the number of complaints that local authorities receive relating to animal health and welfare, particularly where enhanced environmental or welfare standards on farm are expected for payments to be made and these cannot be achieved. If livestock keepers leave the industry in a responsible manner realising that their business is no longer viable, this will have minimal impact on the demands of the trading standards service. However, for those that fail to recognise that their business is no longer viable, or who are holding out for things to get better, there could potentially be a rise in welfare cases

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that may require intervention from local authority enforcers.

There is suggestion that there will be an increase in people keeping a few pet farm animals including chickens, goats or pigs in their back yards to beat any potential increase in shop prices following the UK’s withdrawal from the EU. Should this become a trend there is a risk that awareness of where these backyard premises are located will not be known, raising concerns over management of any notifiable exotic animal disease outbreak.

RASFF The Rapid Alert System for Food and Feed (RASFF) was put in place to provide a tool for the exchange of information with regards to serious risks to the protection of the food chain by its members. There is a legislative basis for RASFF in Regulation (EC) No 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. However, other non-EU countries, such as Norway and

TRACES Trade Control and Expert System (TRACES) is the European Commission’s multilingual online management tool for intra-EU trade and importation of animals, semen and embryo, food, feed and plants. TRACES facilitates the exchange of information between all involved trading parties and control authorities, and speeds up the administrative procedures. It offers traceability for movements of animals, semen and embryo, food, feed and plants moved across the EU and contributes to the reduction of the impact of disease outbreaks and brings a quick response to any sanitary alert for the better protection of consumers, livestock and plants.

The network promotes better cooperation between the competent authorities but also between the traders themselves and their competent authorities.

TRACES allows the quick detection of fake certificates and therefore contributes to the enhancement of trust vis-à-vis its partners.

In October 2019, as part of the withdrawal agreement from the EU, Member States granted the UK ‘national listed status’, which ensures exports of live animals and products of animal origin, such as meat, fish and dairy, can continue. The move recognises the UK’s biosecurity and animal health standards are up to EU standards. These moves would still be reported through TRACES. If the UK leaves the EU without a deal,

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CPPD Module

CPPD MODULE 18: ANIMAL HEALTH AND AGRICULTURE POST-BREXIT Review the 8 questions below, and when you’re ready, submit your answers at tradingstandards.uk/cppdtest 1. Animal health and feed law is a devolved function. True or false? a) True b) False 2. The proposed ‘Agriculture Bill’ details Government plans for financial support for farming post EU exit.

True or false? a) True b) False 3. How many animal diseases are included in Regulation (EU) 2016/429 on transmissible animal diseases and amending and repealing certain acts in the area of animal health (‘Animal Health Law’)? a) 29 b) 39 c) 49 d) 59 4. What is included in the three stages of risk analysis? a) Risk development b) Risk classification c) Risk communication

5. What does RASFF stand for? a) Rapid Alert System for Food and Feed b) Rapid Advice Service for Food and Feed c) Rapid Alarm System for Feed and Food 6. What is the legislative basis for RASFF? a) Regulation (EC) No 178/2002 b) Regulation (EC) No 183/2005 c) Regulation (EU) 2016/429 7. Trade Control and Expert System (TRACES) will be replaced by IPAFFS. What does this stand for? a) Import of Products, Animals, Food and Feed System b) Important Products, Animals, Food and Feed System c) International Products Animals, Food and Feed System 8. Article 11 of Regulation (EU) 2016/429 requires competent authority officers to be qualified. True or false? a) True b) False

Applicants who complete the module successfully will be given a certificate. The test must be taken by September 30, 2020.

If you have any questions, please email tsievents@tsi.org.uk

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Journal of Trading Standards

RISK FACTORS The UK is reliant upon risk analysis systems used in Europe for food and feed, and it will now be responsible for ensuring that functions presently undertaken by the European Commission and the European Food Safety Authority (EFSA) continue in the UK. Risk analysis is a structured approach to the identification and management of public health hazards. The approach is made up of three components: ● Risk assessment This involves using a scientific approach to identify hazards and estimate the potential risk to human and/or animal health. This includes evaluating the likely exposure to risks from food and other relevant sources. ● Risk management The consideration of potential measures to either prevent or control the risk. It considers the risk assessment and other factors related to

the UK’s plan is to replace TRACES with its own ‘Import of Products, Animals, Food and Feed System’ (IPAFFS).

UK legal framework In preparation for the UK withdrawal from the EU, the Department for Environment, Food and Rural Affairs (DEFRA) and the FSA have drafted several EU exit regulations that came into force on or immediately before exit day. All regulations have been made under the European Union (Withdrawal) Act 2018. It is important that relevant officer authorisations are updated where needed to ensure that they reflect the amendments to the legislation and there is no risk of acting ultra vires. Whilst English legislation is cited in Sch.1, similar provisions have been made to other devolved legislation not listed.

One of the main considerations moving into the future is the introduction of Regulation (EU) 2016/429 on transmissible animal diseases and amending and repealing certain acts in the area of animal health (‘Animal Health

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consumers’ wider interests in relation to food to identify an appropriate response ● Risk communication The exchange of information and opinions throughout the risk analysis process between risk assessors, risk managers, consumers, industry, the academic community and other interested parties. It includes understanding the concerns of consumers and other stakeholders, the publication of risk assessment findings and other supporting evidence, and the distribution of final advice.

For animal feed safety, international best practice will remain in place for public and animal health protection.

The Food Standards Agency (FSA) and Food Standards Scotland (FSS) are the competent authorities for ensuring that systems are in place to manage risks for feed.

Law’). It is expected that this will be implemented by the UK by 2021.

There are two key pieces of regulation that have an impact on this requirement: one is EU Regulation 2016/429 on transmissible animal diseases now known as the ‘Animal Health Law’; the second is EU Regulation 2017/625 on official controls and other official activities performed to ensure the application of food and feed law and the rules on animal health and welfare. Both of these pieces of legislation make it a requirement for the competent authority to have qualified staff.

This legislation is yet to be adopted by the UK; however, it is expected that the regulation will form part of UK statute as it will consolidate a lot of the individual regulations that are in place within the EU for 39 animal diseases. Should the UK choose not to adopt the regulation it may have a massive impact for trade outside of the UK. n For further EU Exit Trading modules, visit tradingstandards.uk/euexit

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Legal

By William Hibbert & Harrison Denner

Contracts, cancellations and COVID-19 Henderson Chambers barristers William Hibbert and Harrison Denner discuss the implications for consumer rights and trading law when contracts are cancelled

The COVID-19 pandemic is having an enormous and rapidly evolving impact on the daily lives of the vast majority of individuals and businesses. In particular, businesses have been forced to close by legislation, or the dearth of customers, or difficulties in obtaining supplies. Even if businesses are still functioning, they are often struggling or unable to fulfil their contractual obligations in the manner initially intended. At times, they may be unable to fulfil their original contractual obligations at all.

What can the consumer do about the trader that cannot perform a contract and cancels it, or alters performance because of COVID-19? Does the consumer still have his or her rights to claim damages or the return of any advance payment?

Equally, can the consumer be held by the trader to performance of the contract if the circumstances arising from COVID-19 mean the consumer no longer wants to

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proceed? This article gives some guidance on the tricky issues that arise.

The first step is to look at the contract and familiarise yourself with legal terms usually only thought about by law students studying their first year of contract law, or city lawyers dealing with major commercial contracts.

The first such term is force majeure.

Does the contract contain a force majeure clause? It is the sort of clause that the consumer will usually barely glance at, if it is noticed at all in the small print. It may also be given as a ground for cancellation within a cancellation clause.

Force majeure clauses typically suspend one or both parties’ contractual performance obligations, or allow for an altered performance, or no performance at all, on the occurrence of events outside the parties’ control.

In English law this is a relatively (in lawyers’ terms) new concept, different

from the older concept of ‘Act of God’ (an exceptional, unanticipated natural event – the effects of COVID-19 on contracts may be said to be caused by non-natural governmental action rather than the natural event of the illness itself).

In 1915 we find a High Court Judge in a case dealing with delays in a ship building contract saying rather sniffily: “The words ‘force majeure’ are not words which we generally find in an English contract. They are taken from the Code Napoléon, and they were inserted by this Roumanian gentleman or his advisers, who were no doubt familiar with their use on the Continent.

“I have had the evidence of a Belgian lawyer as to their meaning, and he said that the words are understood on the Continent to mean “causes you cannot prevent and for which you are not responsible.”

The judge went on to find that force majeure does not cover delays caused

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by the bad weather in Sunderland, workers’ attendance at football matches, or shipbuilders attending the shipyard manager’s funeral.

The present case Is COVID-19 a force majeure event?

There is no statutory definition of a force majeure event and so the parties to the contract can theoretically define such an event in whichever way they see fit.

However, the following points will assist when assessing whether COVID-19 is covered by a force majeure clause.

A clause that simply refers to force majeure without more is unlikely to be effective to allow a party to avoid proper performance of the contract. A clause that simply stated that the “usual ‘force majeure’ clauses shall apply” has been held to be void for uncertainty.

▪ Does the clause expressly refer to

pandemics? If so, plainly COVID-19 is a force majeure event under that contract.

There is no statutory definition of a force majeure event and so the parties to the contract can theoretically define such an event in whichever way they see fit

▪ Does the clause expressly refer to

terms that could cover COVID-19 and the circumstances surrounding it? For example, terms such as “health emergencies” and “national emergencies” may be sufficient, as may “Government action or interference” or similar.

▪ Does the clause expressly enumerate

certain events that will constitute force majeure events? If so, and if pandemics or health emergencies etc. are not expressly listed, the question is whether the list is indicative or exhaustive. If the former, COVID-19 may still constitute a force majeure event; if the latter, it is unlikely to do so.

▪ Does the clause require that

performance must be rendered impossible or simply hindered? If the

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former, COVID-19 alone is less likely to constitute a force majeure event. A distinction can for example be drawn between contracts for the delivery of goods and contracts for attendance at a sporting, music or theatrical event: deliveries of goods are, albeit with difficulties and delays, generally proceeding while, by contrast, all sporting, musical and theatrical venues are closed. Therefore, while it might be said that deliveries are hindered, the provision of a sporting, music or theatrical event is impossible. It is important to assess the precise nature of the Government restrictions in force and how they impact on performance of the contract.

▪ Does the clause require any specific

action by the party whose contractual performance is prevented/hindered?

It may be that the clause requires the relevant party to give a certain amount of notice to the other party before it can be relied on. More generally, a party must show that it has used reasonable endeavours to prevent, or at least mitigate, the effects of the force majeure event.

For contracts between businesses, force majeure clauses will need to satisfy the requirement of reasonableness contained in section 3(2) of the Unfair Contract Terms Act 1977. For contracts between businesses and consumers the Consumer Rights Act 2015 will apply and the force majeure clause, like any cancellation clause, will need to satisfy the requirements of fairness (section 62) and transparency (section 68). For example, is the term inappropriately excluding or limiting the consumer’s rights in the event of the trader’s total or partial nonperformance (see paragraph 2 of Schedule 2 of the Act, which lists terms likely to be considered unfair)? Is the language used

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Legal

By William Hibbert & Harrison Denner

plainly intelligible to a consumer? Simply using the term “force majeure”, without more of an explanation of what it means, is unlikely to satisfy this test.

If COVID-19 is a force majeure event in the clause, what follows? Again, the analysis begins with the contract; it may expressly state the consequences of a force majeure event. This may involve permitting some form of delayed obligation: suspending the obligation for x days after the conclusion of the event, or to the earliest date reasonably practicable.

It may involve some form of renegotiation, for instance of the price, and it could include the right to terminate the contract altogether, for example if a party’s inability to perform its contractual obligations continues for a longer period of time.

Burden of proof Importantly, the wrongful invocation of a force majeure clause to try and give a different or no performance will render that party in breach of contract and thereby liable in damages. The burden of proof lies on the party seeking to rely on the clause to prove both that the clause covers the event in question, and that its non-performance was due to that event.

COVID-19 may also mean that the consumer is unwilling to go ahead with the contract even though the trader is still intending to perform. When it comes to the consumer relying on a force majeure clause to avoid performance of his or her obligations, it must be remembered that typically the consumer’s only obligation is to make payment. Given that payment is unlikely to be made “impossible” as a result of COVID-19, most force majeure clauses cannot be relied on by the consumer to avoid payment or recover payment in such situations.

If the trader triggers the clause, one issue will be whether the consumer can get back any advance payment.

This will depend on what the clause says. Force majeure clauses are about the agreed allocation of risk and if the clause makes no provision for payment or repayment, in principle costs will lie where they fall. If the clause allows for

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It must be remembered that typically the consumer’s only obligation is to make payment alternative or delayed performance, it may fairly allow the trader to hold onto the advance payment or to offer a voucher to be used in the future but if it makes no provision for payment or repayment, the parties will have to look to insurance for compensation (if they have any).

However, in a consumer transaction this may well make the clause unfair under the Consumer Rights Act and therefore not binding on the consumer at all.

Frustrating times In many contracts there will be no force majeure clause, or the clause may not be binding because it is unfair under the Consumer Rights Act; in that case the doctrine of ‘frustration’ becomes relevant

and may provide an alternative, and better, protection for the consumer.

A contract is ‘frustrated’ when the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.

Typically, the mere fact that it has become more difficult, more burdensome or more expensive for a party to perform its contractual obligations will not enable that party to avail itself of the doctrine of frustration. Again, there is also likely to be a distinction to be drawn between contracts for the delivery of goods and contracts for services, such as building works, transport, hotel stays or sporting, musical or theatrical events. The former

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COVID-19 may mean that the consumer is unwilling to go ahead with the contract even though the trader is still intending to perform

would naturally seem to more likely fall within the category of obligations that are merely more difficult to fulfil, whereas whether the latter can be performed at all will depend on any Government restrictions in place at the time of intended performance.

If a contract has been frustrated, it is automatically terminated and the parties are excused from their outstanding obligations and neither party can claim damages for non-performance. However, if either party incurred obligations prior to frustration, they remain bound to perform those. Having said that, consumer contracts are likely to be governed by the Law Reform (Frustrated Contracts) Act 1943, under which:

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▪ Money paid before the frustrating event

can be recovered and money due before the frustrating event, but not actually paid, ceases to be payable (section 1(2));

▪ Where one party has incurred expense

in its performance of the contract, it may be entitled to recover such sums from the other party (section 1(2)); and

▪ Where a party has received some benefit

from the contract before the frustrating event, they may be liable to pay a ‘just’ sum to the other (section 1(3)).

A consumer who has paid upfront for something that can no longer occur is therefore likely to be in a better position

as a result of frustration than force majeure. Again, care must be taken before a party invokes frustration as, if this is done incorrectly, that party may be found to have committed a breach of contract and be liable to the other for damages.

Finally, we would draw attention to one particular sort of consumer contract that has special rules applying to it. Under regulation 13 of the Package Travel and Linked Travel Arrangements Regulations 2018, there is a term implied into a package holiday contract that where the organiser is “prevented from performing the contract because of unavoidable and extraordinary circumstances” and gives prompt notice, it “may terminate the package travel contract and provide the traveller with a full refund of any payments made”, and is not liable for any additional compensation.

The termination and the giving of the refund go hand-in-hand. Equally, under regulation 12 the traveller is entitled to terminate where, “due to unavoidable and extraordinary circumstances” the performance of the package or the travel arrangements are affected and will receive a full refund (though not compensation) without having to pay a termination fee.

Any refund must be paid without undue delay and within 14 days (regulation 14).

Any term which seeks to circumvent these statutory provisions is not binding on the traveller (regulation 30), so attempts by the organiser to rely on a force majeure clause or any other clause giving less protection to the consumer will be ineffective.

This has not prevented some holiday providers from delaying payment or palming consumers off with vouchers.

As is so often the case, getting traders to treat consumers properly can be a frustrating business! n

About the authors William Hibbert & Harrison Denner are barristers specialising in consumer law at Henderson Chambers. For further information visit hendersonchambers.co.uk

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Last Word

Where would we be without…

Enforcers Eleni Chalkidou Eleni is Editor-in-Chief of the Journal of Trading Standards and Director of Communications at CTSI

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Locked up in my bedroom, away from the noises of the Fortnite Victory Royale taking place in my son’s room, I am zoning into my work. I am in control I think, getting my work done, sticking to government guidance and staying safe. I don’t think twice when my phone rings and it is an unrecognised mobile number. Sarah Saunders tells me in her non-English accent that she is calling from my bank. I haven’t spoken to anyone new for months. Cabin fever has kicked in, I am longing to speak to her because I am vulnerable.

One of the most traumatic things for me has been the rise in COVID-19 related scams targeting the public. Under normal circumstances most scams are aimed at the vulnerable; and even though each of us can be vulnerable some of the time, under the ‘new normal’ of life during lockdown, we are all vulnerable.

This is why now, more than ever, enforcers – whether the police, anti-crime agencies or, of course, trading standards – play a vital role

in protecting the citizens of the UK. The scammers have shown their true colours during this pandemic. Launching a barrage of phishing emails and text scams, they are exploiting a situation which for most of us has been distressing, and for many of us, tragic.

But likewise, enforcers have stepped up to the mark and proved themselves to be on the side of the angels, diligently working with dedication and determination under the most difficult circumstances. I am in awe and I am grateful.

This vulnerability has been exploited beyond scams. The early days of the lockdown saw panic-buying and stockpiling, as people attempted to prepare themselves for an unprecedented and chaotic situation. Most retailers acted admirably but some hiked their prices as they sought to make a quick buck from people’s anxiety. Mark my words, I will remember you after lockdown!

Trading standards received numerous complaints as disreputable businesses and individuals pushed up the prices of items such as toilet paper and hand sanitisers. The Competition and Markets Authority created a Coronavirus Taskforce to clamp down. With the support of trading standards, it will ensure that those attempting to exploit my fear are held to account.

Just like me, the citizens of the UK have long memories, and are sure to remember those whose greed, callousness and criminal behaviour represented the very worst of humanity during the crisis, even long after it is over.

Trading standards officers can be immensely proud because when the time came, they stood up and behaved selflessly with courage and decency – and people will not forget this!

If anything good can come from COVID-19, it will be a renewed appreciation for trading standards and all enforcers. We have all seen over the past few months who the key workers are; with any luck, this new perspective on essential services may lead to new funding priorities.

As for my mystery caller Sarah, I listened for a moment longer, until she suggested she could transfer my money to a safer account. Luckily it then clicked and I realised that she was trying to steal from me. Angrily I asked her if she goes fishing much and I thanked my lucky stars for everything I learned from becoming a Friend Against Scams! n

Summer 2020

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