EHJ March 2005, pages 28

Julie Barratt steps on to the other side of the fence this month by looking at how an EHP's competency could be challenged in the courts

Apparently, I am biased. I do not write pieces for those "on the other side" who, from time to time, may find themselves acting against local authorities in litigation. How, I am asked to consider, would I challenge the competency of an EHP?

I should first say that challenging the competency of a local authority is not the first step. The first step is to check that the officer is duly authorised and was acting within their authority. If you are satisfied on that score, it may be worth considering whether the officer is competent. Qualified, doubtless, but holding a qualification and being competent to act are two quite different things, and just as expert witnesses can be quizzed about the exact nature and breadth of their expertise, so can ordinary witnesses, professing some competency, be quizzed about the extent to which they may be held to be competent.

In some cases, life is made slightly easier, in that there are particular requirements - for example, the need for food safety officers inspecting high-risk food premises to hold the higher certificate in food premises inspection. In such cases, check that the qualification is indeed held and was at the time that the inspection in question was carried out. If it is or was not held, competency is not an issue, the officer was not appropriately qualified to act, and the case must fall.

Once that you have established that all of the pre-requisites have been met, what can you do to challenge competency? The first challenge that I would consider is that the officer is a generalist, or the holder of specialist knowledge that is not relevant to the case in point. An officer specialising in noise may be very highly qualified, but that will not assist if he is dealing with a fatality in a food factory. He would certainly hold some relevant general skills but whether he would be sufficiently competent in this particular field is a question that would merit being asked.

A further ground of challenge is where knowledge and skills are held, but are not practised - they are old and cold. The fact that an officer did housing some 10 years ago, but has not been in a house for the purposes of inspecting it since that time, means that his competency to do so can be called into doubt. I would wish to ask what refresher training he had done, how had he kept his knowledge, and perhaps more importantly, his practical skills up-to- date? I would seek proper evidence of engagement with the subject through training courses or conferences to be satisfied - reading the odd article in EHJ would not suffice.

Finally, there is the question of the newly qualified - how competent are they? Some would argue that they have much in the way of knowledge, but nothing in the way of experience and both are required to be truly competent. Others would argue that the newly qualified know more about a particular subject than most, since their knowledge is the most up-to-date, and that skills, once obtained, can be practised often, but remain the same skill.

If it is to be done, challenging competency must be done with care. After all, the officer is qualified and his employing authority is sufficiently convinced of his competency to employ him. Where the issue of competency is to be challenged, it can be done two ways. The first is by letting the issue hang in the air, and to let the tribunal of fact draw its own conclusions. Where the court harbours doubts as to the competency of the witness, the weight that is attached to that officer's evidence will be reflected in that doubt.

The second way is to call an expert from the same field to the stand and ask him how he considers the case in question should have been handled, offering this explanation as the preferred way to the court and thereby calling into doubt the competence of the local authority officer. This route, however, does require the court to accept that the expert is just that, and that he is qualified to comment on local authority practice. Even if this is done successfully it may still only affect the weight to be attached to the evidence of the officer, without undermining it completely. Only rarely will an officer's evidence be wholly discredited.

Where officers practise within their field of expertise and keep their skills and knowledge up-to-date, it is very difficult to challenge competency successfully. Where they do not, prospects for success are better, though not guaranteed. Challenging a professionally qualified officer's competency can provoke the court's hostility and must be weighed against any potential gain before a challenge is undertaken

Julie Barratt is director of CIEH Wales