It was pleasing to note that most candidates attempted the correct number of questions and employed basic examination strategy to maximise marks: when in doubt write down something, even if it is a guess. Using this strategy, students amassed marks even though they may not have understood the full tenor of the question. Well done to all of you! No candidate failed to attempt their three 25 mark questions, although of the section A questions, number 5 left a few students with that blank feeling. In Section B eight attempted question 6 and amassed a variety of marks from 3 to 25 the rest attempted question 7 achieving a spread of between 4 to 21 marks. However, Q.7 was well answered in the main most students having a reasonable grasp of self-regulation. Section C: Q8 was by far the most well attempted question on the paper. The lowest mark recorded being 8 and the highest 22. However, many answers achieved high teen scores, elaborating which consumer groups they targeted and why and practical answers on how to reach those groups. There would appear to be a great source of knowledge on this topic in various authorities, good news for the future of the profession! A joy to mark! Q.9 was a mixed bag with scores between 4-25 some knowing precious little about Primary Authority and at the other end of the scale some that could advise BRDO on its functions. Q10 produced another wide range from 4 to 21 marks. The lowest end should have attempted another question, perhaps the greatest failing being the lack of case law to support the various aspects of due diligence. Those that could elaborate on the premises of due diligence and cases highlighting them scored well. Q1. Good answers stated the Enforcement policy emanated from the statutory Code of Practice for Regulators made under the Legislative and Regulatory Reform Act 2006. They then cited the Regulators code as laying down basic principles. Many went on to describe how it provides a template for the operation of TSS in their authority. Describing how TSS works day to day and the range of options for enforcement and when finding infringements. The policy was stated to be published on the Council s web page and available for consumers and traders alike. Some excellent answers. Q2. Surprisingly not generally well answered, few knowing the basic functions of local government beyond trading standards. Social services, education, highways waste disposal, lighting, leisure, police and consumer protection, to name but a few. The majority of monies to run council coming from the Government. 60% in England and Wales and 85% in Scotland. Local council tax and business rates making a contribution. Few realised the impact of private enterprise and partnerships and the fact that many TSS are now looking at federated or joint service arrangements with other authorities. Most knew that funding had been radically reduced over the past 6 years.
Q3. Many candidates believed the alternative to prosecution was the civil sanction outlined in part 8 of the Enterprise Act. Whilst this was an alternative the answer was more simple looking at the range of options which if they did not work could ultimately lead to prosecution or Enterprise action.: For example, considering informal action: such as simple advice, perhaps then detailed or written advice and follow up to see if that was understood and acted upon. This could be stepped up to written warnings, informal and formal cautions, fixed penalty notices, statutory notices, depending upon legislation enforced Q4. Most students claimed a couple of marks at least for this question many opting for ombudsman schemes and scoring quite well, but answers included Mediation, conciliation, and arbitration these schemes being usually cheaper than going to court and offering a range of outcomes to the consumer; from an apology through change of practice or policy, to compensation. Q5. The Consumer Rights Act 2015 describes 4 enforcers: a domestic enforcer, an EU enforcer, a public designated enforcer (for example, Which) and an unfair contract terms enforcer. If these answers could be added to with a little detail full marks could be attained. Sadly this question produced the greatest number of zero scores although a few scored well. Q6. Those who scored at the lower end knew little of either CMA or BIS. The CMA is an independent non-ministerial department. It works to promote competition for the benefit of consumers, both within and outside the UK. Their aim is to make markets work well for consumers, businesses and the economy. They took over many of the duties of the OFT when it was disbanded in April 2014. Those functions were merged with the Monopolies and Mergers Commission to form the CMA. General duties: investigating mergers which could restrict competition conducting market studies and investigations in markets where there may be competition and consumer problems, investigating where there may be breaches of UK or EU prohibitions against anti-competitive agreements and abuses of dominant positions bringing criminal proceedings against individuals who commit the cartel offence enforcing consumer protection legislation to tackle practices and market conditions that it difficult for consumers to exercise choice co-operating with sector regulators and encouraging them to use their competition powers considering regulatory references and appeals. It works with and alongside trading standards in enforcing legislation b) In brief, the Secretary of State for BIS can review and propose new legislation in line with Government policy, an example of this would be the Consumer Rights Act 2015. Whilst not all functions come under BIS many do such as Weights and Measures, consumer rights, consumer credit, fair trading and safety. The Sec, of State also has the power to make secondary or subordinate legislation under delegated powers under various Acts such as Weights and Measures Act 1985, CRA 2015 and Consumer Credit Acts 1974 & 2006. BIS can also instigate reviews such as the one by Lynn Faulds Wood into product recall notices. BIS runs the Primary Authority scheme under the auspices of BRDO. BIS, through BRDO, also coordinate the civil injunctive processes under the Enterprise Act 2002. BIS also funds the National Trading Standards (NTS) which brings together representatives of Trading Standards from England and Wales to prioritise, fund and coordinate national and regional enforcement cases. It also funds the Illegal Money lending and Scambusters teams that operate under the NTS. Many other projects are led by NTS including safety at ports, feedings
stuffs and control of Estate Agents and the National Trading standards e-crime Team. Those who scored highly had a comprehensive knowledge of both CMA and BIS. Q7. Generally well answered most students had a reasonable knowledge of self-regulation. A few thought to start with some form of definition and comparison with mandatory controls. Whilst mandatory controls are compulsory or binding, usually taking the form of law and having a governmental organisation to police and enforce those laws such as trading standards. Basically self-regulation means that the industry has voluntarily established and paid for its own forms of control. It also can decide on the manner of that control, be it a code of practice, or a setting up a separate body to maintain and administer the rules for businesses to follow. Those that did not get high marks on this question had a very limited view on what self-regulation could be and offered little insight in to how it works and its benefits and also its negative points. The advantages can be that it is flexible and adaptable; lower regulatory burden on business; more commitment, pride and loyalty within a profession or industry, as it is their own code or regulatory system, they have expert knowledge of their industry. It is usually much less complicated than law and is much cheaper and quicker to implement. It is also much quicker and responsive to change. The costs fall to the industry not to the state. There can be a wide range of outcomes from an apology to compensation. It can reduce the burdens on business who are trading fairly. The disadvantages are that not all traders may participate. If a code is employed as an industry standard, do all in the trade join? Are the sanctions for non-compliance effective and enforced or is the fee merely a membership to a club? Industry codes of practice, self-promoted schemes using arbitration/mediation and Consumer Code Approval Schemes are some of the methods of self-regulation. There are codes of practice that have a semi regulatory type of function such as the CTSI Consumer Codes Approval Scheme. This examines the Codes prior to approval to determine if they are fit for purpose and audits them to determine their effectiveness: such codes requiring a named ADR provider in the event of a dispute. Although ultimate punishment for breach of the code is expulsion from the scheme. Codes of practice have been around for many years, however they may be weak. Many gave the example that the Tobacco Advertising and Promotion Act in 2003 resulted from the recognition that voluntary agreements were completely unworkable in a competitive market. By reducing mandatory controls it reduces the need for Regulators to control it, hence fewer regulators required. This reduces the cost to government, both central and local. However, as this is actually happening in the current political climate, we then harken back to those businesses who do not comply and without enforcement that level playing field is abandoned. Q8. This was the most pleasing question on the paper to mark and by far produced the most consistently good marks with many recording 15 and above. The offerings stated that consumer education can be delivered to anyone of a number of age groups, it could be aimed at primary school to give them a basic understanding or secondary when they are consumers and have spending power through to pensioners to prevent them falling foul of scams and doorstep cowboys. I expected the students to explain why they picked a particular group and the benefits for them, as against other ages and was not disappointed in the scope of answers. The how of delivery was important. I expected more than we would use TV and the internet as this could be expensive and out of the question in the current economic climate. Focussed and targeted delivery is the key, do you go in to schools, colleges, community groups, societies? Can it be built in to schools curricula? These were some of the answers provided and all correct with their criteria and explanation, which was key.
The economic benefits are: smarter consumers who will spend wisely. The will not give their money to scam artists or cowboys but use local traders with a good reputation, possibly assured trader schemes or CCAS approved. They will not buy counterfeit goods or from doorstep salespersons. This would provide money for local traders who pay rates and employ local people, thus putting money in to the local economy. Good traders would be patronised whilst dubious businesses avoided and hopefully driven out of business or out of your area. Consumers benefit from goods and services that are reliable and so do not waste their cash. If ever there was a feel good factor about the answers to a question this was it. We have some bright and forward thinking students out there. Q9. a) The variation in marks for this question was quite wide. Many were aware of the proposals by BIS/BRDO to roll out PA to all businesses regardless of size. Sadly some folks had little knowledge of Primary Authority and its benefits to business and local authorities. Some of which were outlined, in varying detail, as follows: a reduction in the amount of time businesses spend on regulatory activities. Improvements in relationships with regulators. Improved intelligence about regulatory matters. Improvements in the consistency of regulatory advice and guidance. Access to advice, both Primary Authority Advice and other informal (non-statutory) advice. Support for staff development. Advice on planned or future developments. Support for addressing incoming regulatory issues from enforcing authorities. Advice on standardising policies, procedures, systems and documentation. In some instances, the primary authority can deal with, or at least screen, enforcing authority queries on behalf of the business, so only those queries with substance need be passed on to the business itself. Potential enforcement issues (e.g. in respect of new business developments) can be discussed with the primary authority in advance, and an agreed approach adopted. This approach can then be assured in respect of any subsequent queries from enforcing authorities. Authorities can recoup reasonable costs, this allows for retention of staff and development of better expertise in certain subjects. b) the negatives of the scheme were covered by a few, this was the least well answered part of the question. Some said that having to pay for what was previously free under Home Authority; lack of specialists in small authorities would prevent them from being able to offer such a scheme and hence other, better staffed, authorities would be better placed to take advantage of the scheme. This could perpetuate creating a skills drop between some local authority TSS. Many believed that this was getting in to bed with industry, perhaps a worrying view given the government s position on this. It was pointed out that small businesses and start up businesses may not be able to afford to take advantage of the scheme and were therefore adversely affected. Q10. Not quite as popular as questions 8 and 9. But, as with many of this type of question, my advice would be first start with a definition of what is a due diligence defence. Sadly many could not do this, yet some provided textbook definitions: In any proceedings for an offence it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. If in any case the defence provided involves an allegation that the commission of the offence in question was due to the act or default of another person, or due to reliance on information supplied by another person. One has to take in to consideration the complexity of the system: is it a business selling hundreds of lines of product, or a small store selling a few? Is it a manufacturer of complex items with multiple potential hazards or a simple product with few apparent dangers? Are the staff trained
initially and then regularly to update and take account of new staff and changes in production? Is there some form of HACCP or similar system in place? Are complaints analysed and the system modified to take account of problems discovered? Are samples taken and analysed, if so by whom and how many? Is it a manufacturer or an importer within or without the EU? Good answers looked at each of these areas and linked it to relevant case law. For example: reasonable precautions- Sherratt v Gerald's The American Jewellers Ltd (1970) 68 LGR 256. Size of sample depends upon the size of the business- Garrett v Boots The Chemists Ltd (1980) 88 ITSA MR 238. Many students could lay down the principles but not many of the cases and so scored reasonable marks. Essentially a due diligence system is a moveable feast. It cannot be set up and forgotten it is constantly being analysed and altered to take account of changes.