Statutory inspection of burial authorities, cremation authorities and funeral directors

Section 6 - Seizure, Detention or Removal of Equipment

Previous consultation

119. The 2017 inspection consultation asked, “Do you agree that inspectors should have powers to seize, detain or remove equipment in certain circumstances?”

While respondents to the consultation were generally in agreement, they noted key concerns with the proposal. These included:

• it may not always be possible for equipment to be removed due to reasons related to safety, location, size, cost or other
• logistically, this may also be impractical and may adversely impact the bereaved where funerals are already arranged
• whether costs of removing and relocating the deceased would be borne by the business

120. The Inspection Regulations Working Group also discussed this issue. Concerns raised particularly related to:

• the potential impact on a person’s livelihood of removing equipment essential for running a business
• how training and expertise of inspectors may be limited, but the seizure of equipment may require specialist background knowledge (such as health and safety)

121. The Working Group ultimately agreed that while inspectors should have powers to instruct businesses or authorities not to use equipment, they should not have the power to physically remove any equipment.

122. The Scottish Government has noted these valuable contributions, and has made additional considerations. These include:

• where equipment which has been seized might be securely and safely stored, and
• how equipment which has been seized can be returned to the owner safely, securely, and in a timely manner.

Scottish Government position

123. Having considered the above, the Scottish Government’s view is that the range of concerns presented about this proposal are valid and outweigh risks of allowing authorities or businesses to keep equipment on their premises. The Scottish Government now proposes that Inspectors will not have the power to seize, detain or remove equipment.

124. Instead, we propose that Inspectors may recommend improvements or, in serious cases, issue an enforcement notice which, to be lifted, requires that faulty equipment be repaired or replaced within an appropriate timeframe.

125. The Scottish Government is seeking views about whether Inspectors should have powers to prohibit use of faulty equipment through the use of an enforcement notice. This would be a stronger measure than the one described above, requiring that the relevant body does not use the equipment until it is repaired or replaced. The Scottish Government is aware this type of sanction could have a significant impact on the operations of relevant bodies. We therefore welcome views on whether this approach might be proportionate and appropriate for inclusion in the proposed inspection regime, in addition to the proposal that an enforcement notice can be issued which only requires equipment to be repaired or replaced.

126. We are exploring this because there may be instances where equipment does not pose a risk to living persons but poses an ongoing risk to the dignity of the deceased. For example, where equipment to lift and move bodies may risk them being dropped. We seek views on whether it may be necessary for Inspectors to have powers to mandate this equipment is not used until repaired/ replaced, or whether in practice relevant bodies do not use any equipment with serious faults. We note that where equipment which poses work-related risks of death, injury or ill health this would require referral to the Health and Safety Executive.

127. To enforce such a prohibition on using faulty equipment, it would be likely that Inspectors would need to make ad-hoc inspections of the relevant body, or contact them remotely (requiring the relevant body to self-report on their compliance). This would require more time and resources from Inspectors and from the relevant body who would need to accommodate these Inspector checks. The time and resource required would be greater than for enforcement notices only requiring equipment be repaired or replaced, because evidence of those improvements can be provided electronically through documentation and/or photo or video means.

128. If the intended inspection regulations were to provide for Inspectors to issue enforcement notices prohibiting use of equipment, the Scottish Government would ensure that decisions by Inspectors to issue such an enforcement notice would be eligible for appeal by the relevant body. We intend this would follow the same appeal process as for any other enforcement notice (see section on Enforcement Notices below).

Question 15 - Please provide any views about the Scottish Government’s revised proposal to not include in regulation powers for Inspectors to seize, detain, or remove equipment from relevant bodies.

Question 16 - Do you agree or disagree that Inspectors should be able to issue an enforcement notice which requires equipment to be repaired or replaced?

Strongly agree

Agree

Neither agree or disagree

Disagree

Strongly disagree

Question 17 - Do you agree or disagree that Inspectors should be able to issue an enforcement notice which prohibits a relevant body from using equipment until it is repaired or replaced?

Strongly agree

Agree

Neither agree or disagree

Disagree

Strongly disagree

Question 18 - Please provide any other comments about the use of enforcement notices to require equipment repairs/replacements or prohibit use of equipment.