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Water Bill [HL]


Water Bill [HL]
Part 2 — New regulatory arrangements, etc

    55

 

 45    Consumer complaints

     (1)    For section 29 of the WIA (duties of customer service committees) there is

substituted—

       “29            Consumer complaints

           (1)           This section applies to a complaint which any person (“the

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complainant”) has against a relevant undertaker in relation to any

matter connected with the functions of that undertaker.

           (2)           Where a complaint to which this section applies (other than one

appearing to the Council to be frivolous or vexatious) is referred to the

Council by or on behalf of the complainant, the Council shall (subject to

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subsections (3) and (8) below) investigate the complaint for the purpose

of determining whether it is appropriate to take any action under

subsection (9) below.

           (3)           Where it appears to the Council that the complaint is one the Authority

would be required to investigate under section 181 below, the Council

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shall, instead of investigating the matter to which it relates, refer the

complaint to the Authority.

           (4)           Where it appears to the Council that the complaint relates to a matter in

respect of which a function under section 18 or 22A above is or may be

exercisable by any person, the Council shall (unless it considers that

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that person already has notice of the matter) refer the matter to that

person.

           (5)           Where it appears to the Council that the complaint relates to a matter

which constitutes or might constitute an offence, the Council shall refer

the matter—

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                  (a)                 to the Assembly, if the matter relates to a relevant undertaker

whose area is wholly or mainly in Wales; or

                  (b)                 to the Secretary of State, if the matter relates to any other

relevant undertaker.

           (6)           Where it appears to the Council that the complaint relates to a matter

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which constitutes a dispute of a kind which can be referred to the

Authority for determination under any provision of this Act, the

Council shall, if the complainant consents, refer the matter to the

Authority.

           (7)           A referral under subsection (6) above shall have effect for the purposes

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of section 30A below as if it were a referral by the complainant of a

dispute for determination by the Authority.

           (8)           The Council is not required to investigate any matter if it appears to the

Council that—

                  (a)                 it is unlikely that the complaint could be resolved by action

40

taken by the relevant undertaker;

                  (b)                 the relevant undertaker has not been given a reasonable

opportunity to deal with the complaint; or

                  (c)                 in a case mentioned in subsection (4) or (5) above or (where the

complainant does not consent to the matter being referred to the

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Authority) subsection (6) above, it is inappropriate to do so.

 

 

Water Bill [HL]
Part 2 — New regulatory arrangements, etc

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           (9)           Where it appears to the Council to be appropriate to do so with a view

to assisting in reaching a satisfactory resolution of a complaint referred

to it under this section, the Council shall make representations on

behalf of the complainant to the relevant undertaker about anything to

which the complaint relates.

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           (10)          After investigating a complaint the Council may make a report to the

Authority, the Secretary of State or the Assembly.

           (11)          A report under subsection (10) above may include information about—

                  (a)                 any representations made by the Council under subsection (9)

above; and

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                  (b)                 the response of the relevant undertaker to the complaint or any

such representations.

           (12)          No report under subsection (10) above or information about a

complaint referred to the Council under this section, from which the

complainant may be identified, shall be published or disclosed by the

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Council, the Authority, the Secretary of State or the Assembly in the

exercise of any power under this Act without the consent of the

complainant.

           (13)          Where a representation made to the Authority, the Secretary of State or

the Assembly about any matter (other than a representation appearing

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to the person to whom it is made to be frivolous or vexatious) appears

to that person—

                  (a)                 to be about a matter which is or amounts to a complaint to

which this section applies (other than one which, in the case of

the Authority, it is its duty to investigate under section 181

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below); and

                  (b)                 to have been made by or on behalf of the complainant,

                                       that person shall refer the matter to the Council.”

     (2)    Section 30 of the WIA (duties of Director with respect to complaints) shall cease

to have effect.

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 46    Investigations by the Council

After section 29 of the WIA there is inserted—

       “29A            Power of Council to investigate other matters

           (1)           The Council may investigate any matter (not being a matter which it is

its duty to investigate under this Part) which appears to it to be a matter

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relating to the interests of consumers other than consumers of water

supplied to premises by licensed water suppliers.

           (2)           Before undertaking an investigation under this section the Council

shall consult the Authority, the Secretary of State and the Assembly.

           (3)           Where the Council has investigated a matter under this section it may

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make a report on that matter to the Authority, the Secretary of State, the

Office of Fair Trading, the Assembly or any other public authority

whose functions appear to the Council to be exercisable in relation to

that matter.

           (4)           Subject to subsection (5) below, the Council may—

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Water Bill [HL]
Part 2 — New regulatory arrangements, etc

    57

 

                  (a)                 send a report on any matter investigated under this section to

any person who appears to the Council to have an interest in

that matter; and

                  (b)                 publish any such report in such manner as the Council thinks

appropriate.

5

           (5)           Information which relates to the affairs of any particular individual or

body of persons (corporate or unincorporate)—

                  (a)                 shall not be included in a report which is to be sent to any

person under subsection (4)(a) above, unless one or more of

paragraphs (a) to (c) of subsection (6) below applies; and

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                  (b)                 shall be excluded from any such report which is to be published

under subsection (4)(b) above, unless one or more of

paragraphs (a) to (c) of subsection (7) below applies.

           (6)           Information relating to a particular individual or body may be included

in a report to be sent under subsection (4)(a) above if—

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                  (a)                 that individual or body has consented to the disclosure;

                  (b)                 it is information that is available to the public from some other

source; or

                  (c)                 it is not information the disclosure of which would or might, in

the opinion of the Council, seriously and prejudicially affect the

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interests of that individual or body.

           (7)           Information relating to a particular individual or body may be included

in a report to be published under subsection (4)(b) above if—

                  (a)                 that individual or body has consented to the publication;

                  (b)                 it is information that is available to the public from some other

25

source; or

                  (c)                 it is not information the publication of which would or might,

in the opinion of the Council, seriously and prejudicially affect

the interests of that individual or body.

           (8)           Before deciding to include in such a report any information relating to

30

a particular individual or body in pursuance of subsection (6)(c) or

(7)(c) above, the Council shall—

                  (a)                 consult that individual or body; and

                  (b)                 have regard to any opinion expressed by the Authority as to the

application of subsection (6)(c) or (7)(c) above to the

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information or as to the desirability or otherwise of its inclusion

in the report;

                                       and paragraph (b) applies whether the opinion is given in relation to

the information itself or to information of a description which applies

to that information.

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           (9)           The Council shall not include in any report to be sent under subsection

(4)(a) above or published under subsection (4)(b) above any

information which it considers relates to any matter which is, or is

likely to be, the subject of criminal proceedings.

           (10)          In considering whether information relates to any matter as mentioned

45

in subsection (9) above, the Council shall have regard to any opinion

expressed (whether in relation to the information itself or to

information of a description which applies to that information) by the

Secretary of State, the Assembly or the Director of Public Prosecutions.”

 

 

Water Bill [HL]
Part 2 — New regulatory arrangements, etc

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Enforcement of obligations

 47    Financial penalties

     (1)    After section 22 of the WIA there is inserted—

“Financial penalties

       22A            Penalties

5

           (1)           Where the Authority is satisfied—

                  (a)                 in the case of any company holding an appointment under

Chapter 1 of this Part, that the company—

                        (i)                        has contravened or is contravening any condition of the

appointment;

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                        (ii)                       has caused or contributed to, or is causing or

contributing to, a contravention by a company holding

a licence under Chapter 1A of this Part of any condition

of the licence; or

                        (iii)                      has failed or is failing to achieve any standard of

15

performance prescribed under section 38(2) or 95(2)

below; or

                  (b)                 in the case of any company holding a licence under Chapter 1A

of this Part, that the company—

                        (i)                        has contravened or is contravening any condition of the

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licence; or

                        (ii)                       has caused or contributed to, or is causing or

contributing to, a contravention by a company holding

an appointment under Chapter 1 of this Part of any

condition of the appointment,

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                                       the Authority may, subject to section 22C below, impose on the

company a penalty of such amount as is reasonable in all the

circumstances of the case.

           (2)           Where the Authority, the Secretary of State or the Assembly is

satisfied—

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                  (a)                 in the case of any company holding an appointment under

Chapter 1 of this Part, that the company—

                        (i)                        has contravened or is contravening any statutory or

other requirement which is enforceable under section 18

above and in relation to which he or it is the enforcement

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authority; or

                        (ii)                       has caused or contributed to, or is causing or

contributing to, a contravention by a company holding

a licence under Chapter 1A of this Part of any such

requirement; or

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                  (b)                 in the case of any company holding a licence under Chapter 1A

of this Part, that the company—

                        (i)                        has contravened or is contravening any statutory or

other requirement which is enforceable under section 18

above and in relation to which he or it is the enforcement

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authority; or

 

 

Water Bill [HL]
Part 2 — New regulatory arrangements, etc

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                        (ii)                       has caused or contributed to, or is causing or

contributing to, a contravention by a company holding

an appointment under Chapter 1 of this Part of any such

requirement,

                         he or it may, subject to section 22C below, impose on the company a

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penalty of such amount as is reasonable in all the circumstances of the

case.

           (3)           In a case in which—

                  (a)                 subsection (1) above applies by virtue of paragraph (a)(ii) or

(b)(ii) of that subsection, or

10

                  (b)                 subsection (2) above applies by virtue of paragraph (a)(ii) or

(b)(ii) of that subsection,

                         references in the following provisions of this section and sections 22B

and 22C below to a contravention include references to causing or

contributing to a contravention.

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           (4)           Before imposing a penalty on a company under subsection (1) or (2)

above the Authority, the Secretary of State or the Assembly (the

“enforcement authority”) shall give notice—

                  (a)                 stating that it proposes to impose a penalty and the amount of

the penalty proposed to be imposed;

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                  (b)                 setting out the condition, requirement or standard of

performance in question;

                  (c)                 specifying the acts or omissions which, in the opinion of the

enforcement authority, constitute the contravention or failure in

question and the other facts which, in the opinion of the

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enforcement authority, justify the imposition of a penalty and

the amount of the penalty proposed; and

                  (d)                 specifying the period (not being less than twenty-one days from

the date of publication of the notice) within which

representations or objections with respect to the proposed

30

penalty may be made,

                                       and shall consider any representations or objections which are duly

made and not withdrawn.

           (5)           Before varying any proposal stated in a notice under subsection (4)(a)

above the enforcement authority shall give notice—

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                  (a)                 setting out the proposed variation and the reasons for it; and

                  (b)                 specifying the period (not being less than twenty-one days from

the date of publication of the notice) within which

representations or objections with respect to the proposed

variation may be made,

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                                       and shall consider any representations or objections which are duly

made and not withdrawn.

           (6)           As soon as practicable after imposing a penalty, the enforcement

authority shall give notice—

                  (a)                 stating that he or it has imposed a penalty on the company and

45

its amount;

                  (b)                 setting out the condition, requirement or standard of

performance in question;

                  (c)                 specifying the acts or omissions which, in the opinion of the

enforcement authority, constitute the contravention or failure in

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Water Bill [HL]
Part 2 — New regulatory arrangements, etc

    60

 

question and the other facts which, in the opinion of the

enforcement authority, justify the imposition of the penalty and

its amount; and

                  (d)                 specifying a date, no earlier than the end of the period of forty-

two days from the date of service of the notice on the company,

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by which the penalty is required to be paid.

           (7)           The company may, within twenty-one days of the date of service on it

of a notice under subsection (6) above, make an application to the

enforcement authority for him or it to specify different dates by which

different portions of the penalty are to be paid.

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           (8)           Any notice required to be given under this section shall be given—

                  (a)                 by publishing the notice in such manner as the enforcement

authority considers appropriate for the purpose of bringing the

matters to which the notice relates to the attention of persons

likely to be affected by them;

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                  (b)                 by serving a copy of the notice on the company;

                  (c)                 by serving a copy of the notice on the Council; and

                  (d)                 where the notice is given by the Secretary of State or the

Assembly, by serving a copy of the notice on the Authority.

           (9)           Any sums received by the enforcement authority by way of penalty

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under this section shall be paid into the Consolidated Fund.

           (10)          The power of the enforcement authority to impose a penalty under this

section is not exercisable in respect of any contravention or failure

before the commencement of this section.

           (11)          No penalty imposed by an enforcement authority under this section

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may exceed 10% of the turnover of the company (determined in

accordance with provisions specified in an order made, after consulting

the Assembly, by the Secretary of State).

           (12)          An enforcement authority shall not impose a penalty under this section

where it is satisfied that the most appropriate way of proceeding is

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under the Competition Act 1998.

       22B            Statement of policy with respect to penalties

           (1)           Each enforcement authority shall prepare and publish a statement of

policy with respect to the imposition of penalties and the determination

of their amount.

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           (2)           In deciding whether to impose a penalty, and in determining the

amount of any penalty, in respect of a contravention or failure an

enforcement authority shall have regard to his or its statement of policy

most recently published at the time when the contravention or failure

occurred.

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           (3)           An enforcement authority may revise his or its statement of policy and

where he or it does so shall publish the revised statement.

           (4)           Publication under this section shall be in such manner as the

enforcement authority considers appropriate for the purpose of

bringing the matters contained in the statement of policy to the

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attention of persons likely to be affected by them.

 

 

Water Bill [HL]
Part 2 — New regulatory arrangements, etc

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           (5)           An enforcement authority shall undertake such consultation as he or it

considers appropriate when preparing or revising his or its statement

of policy.

       22C            Time limits on the imposition of financial penalties

           (1)           Where no final or provisional order has been made in relation to a

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contravention or failure, an enforcement authority may not impose a

penalty in respect of the contravention or failure later than the end of

the period of twelve months from the time of the contravention or

failure, unless before the end of that period—

                  (a)                 the notice under section 22A(4) above relating to the penalty is

10

served on the company under section 22A(8) above; or

                  (b)                 a notice relating to the contravention or failure is served on the

company under section 203(2) below.

           (2)           Where a final or provisional order has been made in relation to a

contravention or failure, an enforcement authority may not impose a

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penalty in respect of the contravention or failure unless the notice

relating to the penalty under section 22A(4) above was served on the

company under section 22A(8) above—

                  (a)                 within three months from the confirmation of the provisional

order or the making of the final order; or

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                  (b)                 where the provisional order is not confirmed, within six months

from the making of the provisional order.

       22D            Interest and payment of instalments

           (1)           If the whole or any part of a penalty is not paid by the date by which it

is required to be paid, the unpaid balance from time to time shall carry

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interest at the rate for the time being specified in section 17 of the

Judgments Act 1838.

           (2)           If an application is made under subsection (7) of section 22A above in

relation to a penalty, the penalty is not required to be paid until the

application has been determined.

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           (3)           If the enforcement authority grants an application under that

subsection in relation to a penalty but any portion of the penalty is not

paid by the date specified in relation to it by the enforcement authority

under that subsection, the enforcement authority may where he or it

considers it appropriate require so much of the penalty as has not

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already been paid to be paid immediately.

       22E            Appeals

           (1)           If the company on which a penalty is imposed is aggrieved by—

                  (a)                 the imposition of the penalty;

                  (b)                 the amount of the penalty; or

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                  (c)                 the date by which the penalty is required to be paid, or the

different dates by which different portions of the penalty are

required to be paid,

                                       the company may make an application to the court under this section.

           (2)           An application under subsection (1) above must be made—

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                  (a)                 within forty-two days from the date of service on the company

of a notice under section 22A(6) above, or

 

 

 
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