challenge 25 policy - East Lindsey District Council

EAST LINDSEY DISTRICT COUNCIL REPORT
COMMITTEE:
LICENSING ACT 2003 COMMITTEE
DATE: 25 NOVEMBER 2009
SUBJECT:
PORTFOLIO HOLDER
Ward(s) affected:
CHALLENGE 25 POLICY
COUNCILLOR J WEBB
ALL WARDS
Brief description of report content and the decision being asked for:
Summary:
To consider whether or not to consult on a possible amendment to the Licensing
Policy that would encourage the use within the alcohol licensed trade of a
Challenge 25 Scheme rather than a Challenge 21 Scheme.
Recommendations:
That the Committee decide whether to continue encouraging the use of a
Challenge 21 Scheme within the Licensing Policy or should a review of the
current Licensing Policy be undertaken with a view to moving towards an
encouragement of the Challenge 25 Scheme.
This report has been prepared by:
Mr A Twiddy Tel: 01507 329448 - e-mail: adrian.twiddy@e-lindsey.gov.uk
This report was prepared after consultation with:
Not Applicable
This report is number 1 in a series of 1.
This report has been signed off by: John Green (Business Manager –
Regulatory Services)
The following policies form a context to this report:
The Council’s current Licensing Policy published in December 2007 in relation to
the Licensing Act 2003.
This report is a key decision included in the Forward Plan.

LIST OF BACKGROUND PAPERS AS REQUIRED BY LAW
(papers relied on to write the report but which are not published and do not
contain exempt information)
1. Not Applicable
OTHER HELPFUL PAPERS
(papers which the report author considers might be helpful – this might include
published material)
1. DCMS Guidance to Licensing Authorities issued under Section 182 of the
Licensing Act 2003.
Local Government (Access to Information Act) 1985
Is the report Exempt – NO
Please contact the person who has written this report or Mr D
Hollingworth
Tel. No. 01507 601111 Extn 867
e-mail: duncan.hollingworth@e-lindsey.gov.uk, if you want more
information about this report or the background papers.
1.0. INTRODUCTION
1.1. Section 5 of the Licensing Act 2003 requires the Council (the Licensing
Authority) to prepare and publish a Licensing Policy that it proposes to
apply in exercising its licensing functions. The statement will last for a
maximum of three years, but can be reviewed and revised by the
Authority at any time. This Authority’s current statement was published
in December 2007 and must be reviewed and adopted by the end of
January 2011.
1.2. Earlier this year the Licensing Act 2003 Committee discussed the issue of
Challenge 21 and Challenge 25 Schemes. Members of the Committee
made reference to the current trend towards Challenge 25 rather than
Challenge 21 within certain areas of the licensed trade. The Committee
expressed a wish to consider the issue and decide whether or not it was
appropriate for the Licensing Authority to be encouraging the use of
Challenge 25 rather than Challenge 21. The Principal Licensing Officer
was asked to present a Report to the Committee with a view to the
Committee perhaps recommending an amendment to the Council’s
Licensing Policy in this area.

2.0. BACKGROUND
2.1. The Council’s current Licensing Policy encourages the use of a Challenge
21 policy (or similar scheme) within the licensed trade. An extract from
the current policy detailing the Council’s recommendations in relation to
Challenge 21 is attached at Appendix A of this Report.
2.2. Challenge 21 is a scheme in the United Kingdom introduced by the
British Beer and Pub Association (BBPA) aimed at preventing young
people gaining access to age restricted products including cigarettes and
alcohol. Under the scheme, customers attempting to buy age-restricted
products are asked to prove their age if in the retailer's opinion they look
under 21, even though the minimum age to buy alcohol and cigarettes in
the UK is 18.
2.3. The scheme was first launched in 2004/05 and has since been adopted
by large sections of the licensed trade.
2.4. The campaign is not an over 21s only entrance policy, but rather a
requirement to ask for ID if a customer appears to be under 21, so as to
prove that he or she is at least 18 years of age. The principle of
Challenge 21 – to support and educate employees and customers on the
issues relating to under age sales – is now firmly embedded within the
licensed trade.
2.5. The usual process followed at this Authority in relation to Licensing Policy
amendments has been for the Licensing Committee to consider the draft
policy document before it is issued for consultation. The result of the
consultation is then reported back to the Licensing Committee and any
appropriate amendments are made. The Licensing Committee then
recommends the revised Licensing Policy to the Council for adoption.
2.6. Adoption of the Licensing Policy cannot be delegated to the Licensing
Committee. Therefore full Council must adopt the final document. This is
different to the granting of premises licences, which the 2003 Act
automatically delegates to the Licensing Committee.
2.7. Any proposed amendments to the Policy must be issued for consultation
before any revision is recommended to Council for adoption.
3.0. SUBJECT INFORMATION AND ISSUES/FACTS AND FIGURES
3.1. Over time, the Challenge 21 Scheme has been raising awareness among
publicans and their staff of the need to be vigilant in preventing
underage sales. The scheme serves as a reminder to customers that it is
against the law to purchase alcohol if you are under 18, or to purchase
alcohol on behalf of someone who is under 18. The motto usually used

on promotional material is “If you are lucky enough to appear under 21,
you can expect to be asked to prove your age”.
3.2. Research has demonstrated that nationally a large percentage of 18-24
years olds are aware of the Challenge 21 scheme, demonstrating the
success of the scheme amongst its key target group. Nationally pubs
turn away many customers who, when challenged, are unable to provide
acceptable proof of age.
3.3. The BBPA and its members have now circulated almost half a million
Challenge 21 posters to British pubs. Hard copies of the Challenge 21
poster can be obtained from BBPA website (www.beerandpub.com) and
other associated websites. East Lindsey District Council also has its own
Challenge 21 poster and guidance literature, which is issued to licensed
premises – copies of the East Lindsey literature is attached at Appendix
B of this Report.
3.4. This Authority promotes and educates licensees in relation to Challenge
21 by:
• Providing information and posters to all liquor licence applicants
• Encouraging use of posters, etc, through the Enforcement Officers
• The Licensing Committee, when appropriate, requiring Challenge 21
to be a condition of a premises licence.
3.5. According to government figures the Challenge 21 Scheme has been
successful in reducing the number of under-18s gaining access to
alcohol. Fewer pubs and off-licences are persistently selling alcohol to
children thanks to strict penalties, tough enforcement and also efforts
nationally by the industry. It is clear that the Challenge 21 policy has
become established as standard practice across responsible areas of the
industry. However the underlying figures indicate there is still room for
further improvements to stop underage sales.
3.6. In May 2007, it was reported that Asda stores in Scotland were operating
a Challenge 25 scheme, whereby anyone who appeared to be below the
age of 25, seven years above the age required to buy alcohol in the UK,
would be asked to provide a form of ID such as a passport or a driving
licence.
3.7. Challenge 25 has now been rolled out across the UK to other national
supermarkets (Tesco Morrisons, Sainsburys, etc.), following in the
footsteps of Asda who introduced Challenge 25 in an attempt to stamp
out underage sales.
3.8. It is fair to say that nationally Challenge 25 is a policy championed by
the off-trade and supermarkets rather than the on-licensed trade. The
BBPA has indicated that in its opinion Challenge 21 remains the best
policy for the on-trade. The BBPA go on to say that pubs and

supermarkets are very different trading environments and as such, a
scheme that is right for one is not always right for the other.
3.9 The rationale behind the supermarkets’ decision to increase the age of
challenge to 25 is that a number of young people can make themselves
look 21 years old relatively easily, but it is a lot more difficult for them to
look 25 years old. The aim therefore is that by raising the age of
challenge to 25 years, more young people who try and purchase alcohol
whilst under the legal age of 18 years old will be identified and refused.
3.10. The Licensing Team has undertaken informal consultation with Trading
Standards, Lincolnshire Police and other interested parties on the subject
of Challenge 25. The responses are detailed below.
3.11. Lincolnshire Trading Standards: Lincolnshire Trading Standards
Service is now promoting the newly launched Challenge 25 initiative.
However we feel the most important thing is that licensees have a
suitable proof of age policy in place whether it be 21 or 25 and are using
it appropriately. The Trading Standards Institute are also promoting
Challenge 25 rather than Challenge 21 and have asked Trading
Standards Services across the Country to promote the scheme to show
continuity of advice and information provided to businesses. Any
information sent out (i.e. general mail shots) or requested from our
Business Support Team regarding proof of age is now Challenge 25.
3.12. Lincolnshire Police (The following comments were made by the Police
Licensing Officer for the East Division): There have been Home Office
speakers at the last two licensing seminars I've been to, who state that
the current Home Office policy is to promote and support the challenge
25 scheme. The reason for this is that studies clearly show that younger
members of staff find it increasingly difficult to determine their peers
ages and frequently fall foul of Police and Trading Standards legislation,
subsequently selling alcohol to under age children. Home Office figures
have shown that by implementing a Challenge 25 scheme fewer sales
have been made to minors. This can only be a good thing.
The NHS also fully support the scheme as they provided figures showing
a decrease in Accident and Emergency drink related submissions
involving children when the Challenge 25 scheme was implemented in
Manchester and other areas across the Country.
The Police will support any scheme that reduces underage drinking and
drink related crime and violence offences. Again the statistics show a
decrease in this in areas where Challenge 25 is implemented.
All the figures and studies I have referred to can be found on the Home
Office web site. Attached is a link which shows that a substantial number
of outlets now already implement Challenge 25. A number in ELDC have
voluntarily adopted the Challenge 25 to override Challenge 21.

I hope my view will help in the decision in implementing Challenge 25.
N.B. The extract from the Talking Retail website (www.talkingretail.com)
referred to by the Police Licensing Officer is at Appendix C of this
Report.
3.13 Kurnia Intertade Limited: As you are aware our company operate
seven licensed premises within Lincolnshire and also have a consultancy
and training company specialising in all areas of the licensed trade under
the Licensing Act 2003 and Gambling Act 2005.
We feel that the use of Challenge 21 should be promoted with Challenge
25 being left to the discretion of the premises. Our company fully
supports and promotes Challenge 21. We would however not support or
recommend Challenge 25 unless we felt it necessary for a particular
premises.
We do not know of any evidence why Challenge 21 is not effective and
therefore, if there is no evidence of it being not being effective then, why
increase the age to 25? The issue that should however be addressed is
that of premises that do not conduct a challenge scheme whatsoever as
mentioned in previous correspondence. We feel that premises that are
not operating any type of challenge policy are the ones where underage
sales are taking place. There is little point in encouraging a scheme of
any age if a premises simply chooses not to operate it.
As you aware it is not illegal for a premises to sell alcohol to a person
who is aged 18 or over. The use of a challenge scheme therefore is at
the discretion of the individual who serves the alcohol. We assume that
your Committee may be considering the recommending of using either
Challenge 21 or Challenge 25. To try and impose the use of either
scheme as a condition at Review could lead to a challenge at Appeal.
The Home Office in their draft Code of Practice for Alcohol Retailers only
suggest a Challenge 21 scheme as a discretionary condition for problem
premises. It is therefore questionable that if the Home Office have
considered that Challenge 21 is sufficient for problem premises then why
would an Authority be considering Challenge 25?
BBPA stated in their response to the Home Office consultation:
‘We believe that the local discretionary condition which could require a
premise to operate a Challenge 21 scheme is potentially problematic with
regard to age discrimination.
The condition would require the premises to ask to see proof of age
where it is perceived by the person making the sale that the purchaser is
under 21 years of age.

The law is only breached if a sale is made to someone under the age of
18, not if someone looked over 18 but was under 21. However, this
condition could make this an offence in the event of disputes between
premises and Enforcement Authorities on how old someone looks. Such a
judgement is, obviously, subjective.
Due to the rigorous way in which our members are tackling under-age
sales, the attachment of this condition to licences could encourage many
operators to operate age policies such as “Over 21s only” in order to
comply, which could be deemed discriminatory.
We urge the Government to reconsider the inclusion of Challenge 21 or
Challenge 25 as a possible discretionary local condition, and allow the
industry to continue to operate high standards of good practice in this
area while those intent on breaking the law are made subject to the
maximum penalties available under existing legislation by the
enforcement authorities’
British Institute of Inn Keeping (BII) stated in their response to the
consultation;
‘BII members are in support of the Challenge 21 scheme which is well
established in the on trade. In this instance we concur with the views of
BBPA in their response to this condition.’
We have asked BBPA, BII and ALMR, of which we are members of, for
their views. Once we have their comments we shall forward them on to
you.
To conclude our company wishes to request that the Committee retains
the ‘encouragement’ of Challenge 21 as the evidence suggests that
Challenge 21 is effective and workable.
3.14. BBPA: I would just emphasise that we (BBPA) are totally committed to
Challenge 21. As you know we have given away thousands of posters to
premises all over the country and research has shown that Challenge 21
has been widely accepted by the industry and is recognised by
youngsters. Even the Home Office refers to Challenge 21 rather than
other schemes although as it has been pointed out at the consultations
we wouldn't want it to be a mandatory condition as the offence relates to
serving under 18s.
As you rightly point out there is nothing to stop individual outlets
adopting Challenge 25 or as …… might say, Challenge 37 and a half, but
the more age levels you have the more crazy the whole thing is so we
would encourage the continued use of Challenge 21.

3.15. BII: A copy of a letter from the BII regarding their position on Challenge
21/25, which confirms that the BII support Challenge 21 as to Challenge
25, is attached at Appendix D of this Report.
3.16 Mr P Cordingley, Chattertons, Solicitors: Personally I would welcome
Challenge 25 and have recommended it to clients because it provides
protection for licensees/DPSs and their employees from the
consequences of making mistakes in assessing the age of customers.
That I know will not be the angle, which will concern the Committee but
it is the best way of selling the policy to the trade.
4.0. SUPPLEMENTARY FACTS
4.1. The document issued jointly by the DCMS and Home Office “Problem
Premises on Probation – Red and Yellow Card: How it Would Work”,
which included examples of possible tough conditions on premises
licences did not make reference to Challenge 21 or 25 Schemes. The
Licensing Committee considered the document on 7 January 2009.
4.2. The Council’s current policy will need to be reviewed in due course in
order to address minor variations and alcohol sales in community
venues. Members may wish to bring forward the required 3-year review,
in order to address these issues, rather than waiting until the later half of
2010.
5.0.
COUNCILLOR COMMENTS – If no comments are received from
one or more of the Ward Members consulted state which
Councillor(s) did not respond
5.1. Not Applicable
6.0.
DISCUSSION / CONSIDERATION – ISSUES / CONCLUSION –
including reasons for recommendation(s)
6.1. Nationwide the promotion of Challenge 25 is currently undertaken more
often than not by off licences and supermarkets. There is little
encouragement from the pub trade organisations (BII and BBPA) for the
introduction of Challenge 25 rather than Challenge 21. By way of
contrast the Police and Trading Standards would welcome an increase to
Challenge 25.
7.0. PERFORMANCE MONITORING
Subject Deadline Responsible Officer
Not applicable Not applicable Not applicable

8.0. RISK ASSESSMENT
8.1. There is a theoretical risk of civil action against the Licensing Authority if
it is found not to have exercised due diligence in licensing matters. There
is also the risk of judicial review if the Policy is found not to comply with
the requirements of the Licensing Act 2003 and associated legislation,
regulations and guidance.
9.0. FINANCIAL CONSIDERATIONS/IMPLICATIONS
9.1. Any policy review would being undertaken as part of normal duties
carried out by the Licensing Team with no additional costs involved.
10.0. LEGAL CONSIDERATIONS/IMPLICATIONS
10.1. In the majority of cases the adoption of the Challenge 21 Scheme or
Challenge 25 Scheme by individual premises will be voluntary.
10.2. Under the Licensing Act 2003, a premises licence holder may choose to
adopt a Challenge 21 or Challenge 25 Scheme in their Operating
Schedule, which will then become part of their premises licence
conditions.
10.3. In the interest of achieving one or more of the four licensing objectives
and following information considered at a licensing hearing, the Licensing
Authority can attach the adoption of a Challenge 21 Scheme or Challenge
25 Scheme to the conditions of an individual premises licence.
11.0.
INCLUDE IF APPROPRIATE AND ONLY BRIEF EXPLANATION OF
ISSUE
11.1. Environmental issues – None directly arising.
11.2. Human Resources – None directly arising.
11.3. Section 17 – All Local Authorities must fulfil their obligations under
Section 17 of the Crime and Disorder Act 1981 when carrying out their
functions as Licensing Authorities. Section 17 places a duty on Local
Authorities to do all they reasonably can to prevent crime and disorder in
their area.
11.4. FOI/Human Rights/Data Protection - Human Rights: The Licensing
Authority must ensure that its decisions and policies can withstand
scrutiny by reference to the principle of proportionality, i.e. is the
decision / action proportionate to what it wishes to achieve, or,
colloquially does the end justify the means.

11.5. Equality and Diversity – None directly arising.
12.0. RECOMMENDATIONS
12.1. That the Committee decide whether to continue encouraging the use of a
Challenge 21 Scheme within the Licensing Policy or should a review of
the current Licensing Policy be undertaken with a view to moving
towards an encouragement of the Challenge 25 Scheme.
13.0.
HOW DO THE ACTIONS/RECOMMENDATIONS CONTAINED IN
THIS REPORT DELIVER OUR COMMUNITY AND CORPORATE
STRATEGIES?
13.1. The licensing and compliance role of the Council is important in
improving the health, safety, security and welfare of the District's
residents, visitors and business community.
Appendix A – An extract from the licensing current policy detailing the
Council’s recommendations in relation to Challenge 21.
Appendix B - Examples of East Lindsey literature in relation to Challenge 21.
Appendix C – Extract from the Talking Retail website referred to by
Lincolnshire Police.
Appendix D – Letter from BII on the subject of Challenge 25.