Statutory inspection of burial authorities, cremation authorities and funeral directors

Section 9 - Suspension Notices for burial authorities and cremation authorities

150. Where an inspector identifies serious non-compliance, or where actions are not being progressed in line with an enforcement notice, the 2016 Act provides for regulation-making powers for inspectors to make recommendations to Scottish Ministers to suspend all or part of the operation of activities of the burial authority or cremation authority. The Scottish Government intends to use this power within the proposed inspection regulations, as a ‘last resort’ enforcement measure where there is evidence of serious or repeated non-compliance and a refusal to address non-compliance issues.

151. Please note this section applies only to burial authorities and cremation authorities; not funeral director businesses. This is because, while enforcement notices could be issued against funeral director businesses (see previous consultation question), if the proposed licensing regime is implemented under section 95 of the 2016 Act, enforcement escalation could lead to the suspension or revocation of funeral director businesses’ licences. The suspension or revocation of funeral director licences is therefore dealt with in our consultation on licensing).

Previous consultation

152. We asked for public views about suspension notices in the 2017 consultation, although views were gathered as part of a broader question about inspection reports and enforcement. Responses indicated general agreement with the Scottish Government’s proposals, including of suspension notices only being used as a last resort for enforcement of burial or cremation authorities. However comments asked for more information about the inspection regime and any associated enforcement action, including timescales for compliance, and that compliance must be measured against clear, achievable requirements.

153. The Inspection Regulations Working Group in October 2019 discussed the issue of suspension notices. The Group agreed that suspension should only be used as a last resort, and that suspension notices shouldn’t have a defined timescale attached – rather that an authority could apply for the suspension to be lifted once they had taken corrective actions. Further, the Group discussed whether there were any circumstances which would justify an immediate suspension and it was agreed that this is likely to be very rare. The Group asked for further clarity on: whether staff identified as carrying out poor practice could be suspended rather than the authority, and who would be liable for additional costs on families should there be a suspension.

Scottish Government position

154. The Scottish Government’s position is that the proposed inspection regulations should provide powers for Inspectors to recommend that Scottish Ministers issue a suspension notice on burial authorities or cremation authorities. The decision must be made by Scottish Ministers, as per the provisions of the 2016 Act. The proposed process for this is as follows:

• Inspector considers it appropriate to recommend to Scottish Ministers a suspension of all or part of the operation of activities of a burial authority or cremation authority.
• Inspector notifies the authority they are making this recommendation. Notification will be made via electronic communication to the premises manager.
• The authority will have 21 days from the date of notification to make potential representations to challenge the recommendation. This is to provide the authority with the opportunity to challenge the facts and basis of the recommendation.
• If representations are received, for example if the authority has since remedied the issue, or has provided additional evidence to oppose the recommendation, the Inspector must consider these. The Inspector would then decide to either maintain (i.e. proceed with recommendation) or reverse their decision (i.e. not submit recommendation).
• If no representations are received, or the Inspector has considered the representations and maintained their decision, the Inspector will proceed to making a recommendation to Scottish Ministers to issue a suspension notice on the authority. This recommendation must be accompanied by evidence used to support the recommendation and any representations from the authority.
• Scottish Ministers proceed with deciding whether to issue a suspension notice. To support this decision, they may request additional written evidence from the authority. On the basis of this evidence, Scottish Ministers will make their decision.
• The decision of Ministers will be communicated by the Scottish Government to the burial or cremation authority manager by registered post. If a suspension notice is being issued, it is intended that this will take effect 21 days from the date the notice is communicated to the authority. This is to allow for contingency measures to be put in place, to mitigate the potential impact on the public (more detail is provided below).

155. The above proposed process relies on written evidence. We are now seeking views regarding whether an opportunity for oral representation by the authority to a representative of the Scottish Ministers should be included in this process. If so, it is likely that this representation could be triggered by either the authority or Scottish Ministers.

156. When making a recommendation to Scottish Ministers, the inspector would be expected to provide supporting information including: inspection reports, enforcement notices, follow-up reports and any other relevant information. Further, we recognise that suspending all or part of the operations could potentially negatively impact bereaved people who are planning to use that authority. It is expected that inspectors must take account of this potential impact before making a recommendation to Ministers that a suspension notice should be issued, and to work with the authority to minimise this impact.

157. Similar to enforcement notices, it is intended that suspension notices will be made public once the notice has been issued to the authority, to ensure that members of the public planning to use a burial authority or cremation authority can be made aware of their non-compliance with set standards. It is currently proposed that suspension notices will be physically posted at the relevant premises, and a notice will be posted on the relevant Scottish Government website page.

158. It is proposed that a suspension notice should specify the following:

• the provisions of the Act, regulations, or relevant code of practice which are being contravened
• the reasons why the Scottish Ministers have decided to issue the notice
• the requirement that the burial authority or cremation authority must remedy the contravention, and the actions it should take
• the date on which the notice will take effect

159. We note that, unlike an enforcement notice, we do not intend for a suspension notice to have a defined timescale for addressing the identified non-compliance. This is because we intend that the suspension notice will stay in effect until the burial authority or cremation authority takes corrective measures and seeks for the suspension to be lifted.

160. The procedure for how a relevant body can apply for the suspension to be lifted will require the submitting of evidence by the authority to Inspectors of how compliance concerns have been addressed, and an inspection to verify the changes have indeed taken place. If an Inspector is satisfied that the changes are sufficient and the authority is now compliant with set standards, the Inspector can recommend to Scottish Ministers (with reference to the evidence submitted and new inspection results) to lift the suspension notice. If an Inspector is not satisfied with the changes they may decline to recommend to Ministers that the suspension is lifted. The authority would be able to appeal this decision, using the same appeals procedure as will be in place regarding the issuing of suspension notices.

161. If Scottish Ministers decide to remove the suspension, this would likely trigger a series of actions:

• Scottish Ministers inform Inspectors of the decisions
• Inspectors formally communicate (electronically) with the relevant person notifying that the suspension has been lifted and can be immediately removed from the physical premises
• Removal of any notice from the Scottish Government website

162. If Scottish Ministers decline to lift the suspension, the authority would be able to appeal this decision, using the same appeals procedure as will be in place regarding the issuing of suspension notices.

163. We note that a suspension notice would be the most serious enforcement action that can be taken against burial authorities or cremation authorities.

164. As noted above, the Scottish Government is also mindful of the potential impact on the bereaved of suspending the operations of a burial or cremation authority. In terms of costs for families, the Scottish Government does not intend to specify in regulations any financial liability should there be additional costs on the bereaved resulting from a suspension notice being issued.

165. It is intended that the publicising of enforcement notices and suspension notices, with warning of their commencement date (21 days after notification), will provide transparency to the public about the operations of the particular burial authority or cremation authority. This will allow bereaved people to make their own choices about if they wish to engage that burial authority or cremation authority.

166. Certain clients of the burial authority or cremation authority will not yet have had the burial or cremation they are engaging the authority for. It is our intention that the authority will be required to inform these clients that a suspension notice has been issued against them and is coming into force on X date. They would be required to do so by telephone or electronically (if electronic, they must request confirmation of receipt of the communication). They would also be required to keep a written record of having informed each client.

167. Finally, it is our intention that the burial authority or cremation authority would be required to notify any member of the public who contacts them to enquire about their services after the suspension notice has been issued (even if it has not yet commenced), during their first interaction with that member of the public.

Question 24 - Please provide any views on the proposed content of suspension notices.

Question 25 - Please provide any views on the proposed process of issuing suspension notices.

Question 26 - Please provide any views on whether there should be an opportunity for the authority to make an oral representation to Scottish Ministers or a representative of Scottish Ministers before Ministers make their decision whether to issue a suspension notice.

Question 27 - Please provide any views on the proposed process for lifting a suspension notice.

Question 28 - Please provide any other views on the Scottish Government’s proposals for suspension notices for burial authorities and cremation authorities.