The legal right to introduce revisit charges
The Food Standards Agency has reviewed its guidance on charging a fee for requested re-inspections and re-visits to re-assess food hygiene ratings, in consideration of the general power under the Localism Act (2011).
The Agency considers that providing a re-inspection upon request by a food business operator, in circumstances where there is no statutory requirement to provide that re-inspection, falls within the general power that allows for the recovery of costs.
Wirral Council has chosen to adopt the ability to recover reasonable costs for carrying out non-statutory work. The current charge for a revisit when requested by the food business owner is £125 in total. This fee will be reviewed annually.
When does the re-inspections and re-visits mechanism apply?
It applies in the following circumstances:
- following an appropriate planned intervention (an inspection, partial inspection or audit) by the local authority where an establishment is given a food hygiene rating (other than the top rating)
- a Food Business Owner has accepted the rating
- a Food Business Owner has taken action to rectify non-compliances identified
- a Food Business owner asks the authority to be re-assessed with a view to receiving a higher rating
Is there a time limit within which a request for a re-inspection or re-visit must be made?
No. The food business owner can make a request for a re-inspection or re-visit at any time after the planned intervention. They should do this after the actions necessary to rectify the non-compliances have been carried out. The food business cannot, however, dictate when the re-inspection or re-visit will take place.
When a Food Business Owner's request for a re-inspection or re-visit is substantiated, when should this take place?
Once the application has been received and accepted the revisit should take place within two calendar months. Officers will endeavour to visit as soon as possible.
Where issues were identified under the Confidence In Management category, officers may in some cases visit towards the end of this two month period. This is because the measures and controls associated with confidence in management must be fully implemented and demonstrated over a sustained period of time.
What happens if the re-inspection or re-visit is not carried out within the two month window?
The Food Business Owner can raise the issue with the Lead Officer for Food. If the matter cannot be resolved, the Food Business Owner has the option of using the local authority complaints procedure.
How many requested re-inspections or re-visits can a Food Business Owner have?
No limit applies on the number of requests the Food Business Owner can make. The request should be made when the Food Business Owner believes that the actions needed to improve legal compliance have been taken.
It may be appropriate for the local authority officer to discuss progress by telephone before a revisit is arranged. This will help to establish what remedial action has been taken and ensure that the re-inspection or re-visit is appropriately timed. It will also confirm that the actions needed to improve the level of compliance have been addressed.
Can the food hygiene rating be changed if the local authority re-visits the establishment without a request from the Food Business Owner?
In certain cases officers will revisit premises to ensure legal compliance with more serious hygiene issues. This is likely if you were awarded a score of 15 or more in any single category that makes up your overall rating.
This compliance visit is not an opportunity for the score to be reassessed. It is more appropriate and consistent for the business to be re-rated at a separate re-inspection or re-visit requested by the Food Business Owner.
How do you apply for a re-inspection or re-visit?
The request can be made by completing a form or in writing (including by email). It should outline the case for a re-inspection or re-visit. It should indicate the actions that have been taken by the Food Business Owner to improve the level of compliance since the planned intervention and, where appropriate, should include supporting evidence.
The supporting case should refer to the actions the local authority told the Food Business Owner would need to be made in order to achieve legal compliance. These issues will have been highlighted on the report left at the time of the inspection and in some cases a follow-up warning letter.
Does the local authority have to accept all requests for re-inspections or re-visits?
No. If the case made by the Food Business Owner is not substantiated, or insufficient evidence is provided, the local authority can refuse to undertake a re-inspection or re-visit.
The local authority must explain why the request is being refused. It should re-emphasise the priority actions that must be taken in order to improve the level of legal compliance. It should also indicate what evidence will be needed for agreement to a re-inspection or re-visit to be made.
If the Food Business Owner disagrees with the local authority’s decision to refuse a request for a re-inspection or re-visit, they can raise the issue with the Lead Officer for Food. If the matter cannot be resolved, the Food Business Owner has the option of using the local authority complaints procedure.
Where there is a supporting case, must a re-inspection or re-visit be made or can a new food hygiene rating be given on the basis of documentary evidence?
A re-inspection or re-visit must be made. A new food hygiene rating should not be given on the basis of documentary evidence only.
Where a re-inspection or re-visit is to be undertaken, should this be unannounced?
Yes. Such a visit should be unannounced unless it is necessary to ensure that certain staff are present, or unless an unannounced visit would compromise food safety.
Are powers of entry and authorisation required for requested re-inspections or re-visits?
By virtue of making a request, the Food Business Owner is inviting the local authority onto their premises. Clearly, where entry onto premises is with the consent of the Food Business Owner, formal powers of entry and authorisation are not being exercised.
It should be made clear, however, that the officer is still authorised under the Food Safety and Hygiene (England) Regulations 2013. As such, they retain powers of entry and have the powers to take enforcement action where appropriate.
If hygiene standards have not improved or have deteriorated at the time of the re-inspection or re-visit, should a lower food hygiene rating be given?
At the time of the re-inspection or re-visit, the local authority officer should not only check that the required improvements have been made. They should also assess the level of compliance overall. This means that the food hygiene rating could go up, down or remain the same if deemed appropriate by the local authority officer.
If an appropriate intervention is undertaken, can the intervention rating (not the Food Hygiene Rating) also be changed?
Yes. If an inspection, partial inspection or audit has been undertaken, the intervention rating should be reviewed and revised if deemed appropriate by the local authority officer. This is in line with the Food Law Code of Practice.
If an official control intervention other than an inspection, partial inspection or audit is carried out the intervention rating cannot be changed. This is the only situation where a food hygiene rating can be changed without determining the intervention rating.
When a re-rating has been given on this basis, there will be no change to the date of the next planned intervention.