Postal Services Bill

House of Commons

Session 2010 - 11
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Other Bills before Parliament

Postal Services Bill

Postal Services Bill
Schedule 4 — Recovery of administrative charges incurred by OFCOM
70

      (4)
The specified period must be reasonable.
      (5)
In fixing that period, OFCOM must have regard, in particular, to—
(a)
the information that is required,
(b)
the nature of the dispute, and
(c)
the obligation imposed by paragraph 15(3) (obligation to make a
5
determination as soon as reasonably practicable).
      (6)
Part 2 of Schedule 8 (information: enforcement) applies in relation to a
requirement imposed under this paragraph as if—
(a)
the requirement were imposed under paragraph 1 of that Schedule,
and
10
(b)
sub-paragraphs (4) and (5) of paragraph 5 of that Schedule were
omitted.
Schedule 4
Section 41

Recovery of administrative charges incurred by OFCOM
Fixing of charges
15
1     (1)
If, at any time in a charging year, a postal operator provides a service within
the scope of the universal postal service, the operator must, in respect of the
service, pay to OFCOM the administrative charge (if any) that is fixed by
OFCOM as applicable to the operator.
      (2)
OFCOM may fix the administrative charge for a charging year only if—
20
(a)
at the time the charge is fixed there is in force a statement by OFCOM
of the principles that they are proposing to apply in fixing charges
under this paragraph for that year, and
(b)
the charge is fixed in accordance with those principles.
      (3)
Those principles must be such as appear to OFCOM to be likely to secure, on
25
the basis of such estimates of the likely costs as it is practicable for them to
make, that—
(a)
on a year-by-year basis the total amount of the charges payable to
OFCOM is sufficient to meet, but does not exceed, the annual cost to
OFCOM of carrying out their postal services functions,
30
(b)
the cost of carrying out those functions is met by the imposition of
charges that are objectively justifiable and proportionate to the
matters in respect of which they are imposed, and
(c)
the relationship between meeting the cost of carrying out those
functions and the amounts of the charges is transparent.
35
      (4)
OFCOM’s power to fix charges for a particular case includes—
(a)
power to provide that the charges are to be equal to the amounts
produced by a computation made in the manner, and by reference to
the factors, specified by them,
(b)
power to provide for different charges to be imposed on different
40
descriptions of persons,
(c)
power to provide for particular descriptions of persons to be
excluded from the liability to pay charges.

Postal Services Bill
Schedule 4 — Recovery of administrative charges incurred by OFCOM
71

      (5)
As soon as reasonably practicable after the end of each charging year,
OFCOM must publish a statement (a “financial statement”) setting out for
that year—
(a)
the total amount of the charges for that year that they have received,
(b)
the total amount of the charges for that year that remain outstanding
5
but are likely to be paid or recovered, and
(c)
the cost to OFCOM of carrying out their postal services functions.
      (6)
Any deficit or surplus shown (after applying this sub-paragraph for
previous years) by a financial statement is to be carried forward and taken
into account in determining what is required to satisfy the requirement
10
imposed by virtue of sub-paragraph (3)(a) in relation to the following year.
      (7)
For the purposes of this paragraph “charging year” means—
(a)
the period beginning with the commencement of this Schedule and
ending with the next 31 March, or
(b)
any subsequent period of 12 months beginning with 1 April.
15
Meaning of OFCOM’s postal services functions
2     (1)
For the purposes of paragraph 1 OFCOM’s postal services functions are—
(a)
functions that OFCOM carry out under, or in consequence of, any
enactment relating to postal services (including one contained in this
Schedule),
20
(b)
securing international co-operation in relation to the regulation of
postal services,
(c)
market analysis and any monitoring of the controls operating in the
market for the provision of postal services,
(d)
the carrying out for a relevant purpose of any research by OFCOM
25
or the Consumer Panel into any of the matters mentioned in section
14(6A)(b) to (e) of the Communications Act 2003 (as inserted by
Schedule 12 to this Act),
(e)
the publication under section 26 of that Act of any information or
advice that appears to OFCOM to be appropriate to make available
30
to users of postal services, and
(f)
any incidental functions carried out in relation to any of the above
functions.
      (2)
In sub-paragraph (1)(d) “a relevant purpose” means the purpose of
ascertaining the effectiveness of one or more of the following—
35
(a)
the regulation of the provision of postal services,
(b)
the mechanisms in place for the handling by postal operators of
complaints made about them by the users of postal services, and
(c)
the mechanisms in place for resolving disputes between postal
operators and the users of postal services.
40
      (3)
In sub-paragraph (1)(f) the reference to incidental functions carried out in
relation to any of the functions within sub-paragraph (1)(a) to (e) includes
the taking of any steps that OFCOM consider necessary—
(a)
in preparation for the carrying out of any of those functions, or
(b)
for the purpose of facilitating the carrying out of those functions or
45
otherwise in connection with carrying them out.

Postal Services Bill
Schedule 4 — Recovery of administrative charges incurred by OFCOM
72

      (4)
In sub-paragraph (3) the reference to the taking of any steps includes the
taking of any steps before the commencement of this Schedule.
Procedure for fixing of charges
3     (1)
The way in which a charge is to be fixed under paragraph 1 is by the
publication or giving of such notification as OFCOM consider appropriate
5
for bringing the charge to the attention of the persons who, in their opinion,
are likely to be affected by it.
      (2)
OFCOM may set out in that notification the time at which the charge is to
become due to them.
      (3)
A charge fixed under paragraph 1 for a charging year may be fixed in terms
10
providing for a deduction from the charge on a proportionate basis to be
made for a part of the year during which the service in respect of which it is
fixed is not provided by the person otherwise liable to the charge.
      (4)
A charge fixed under paragraph 1 for a charging year may also be fixed so
that (subject to sub-paragraph (5)) it is referable, in whole or in part, to the
15
provision of a service during a part of the year falling before the fixing of the
charge.
      (5)
A charge may be fixed so as to be referable to a time before it is fixed to the
extent only that both—
(a)
the imposition of the charge, and
20
(b)
the amount of the charge,

are required by, and consistent with, the statement of charging principles in
force at the beginning of the charging year.
      (6)
Before making or revising a statement of charging principles, OFCOM must
consult such of the persons who, in OFCOM’s opinion, are likely to be
25
affected by those principles as they think fit.
      (7)
The way in which a statement of charging principles must be made or may
be revised is by the publication of the statement or revised statement in such
manner as OFCOM consider appropriate for bringing it to the attention of
the persons who, in their opinion, are likely to be affected by it.
30
Notification of non-payment of charges
4     (1)
OFCOM may bring proceedings for the recovery from a person of an
administrative charge fixed for a year under paragraph 1 only if they have
given that person a notification under this paragraph with respect to the
amount they are seeking to recover.
35
      (2)
OFCOM may give a person a notification under this paragraph if they
determine that there are reasonable grounds for believing that the person is
in contravention of a requirement to pay the charge (whether the whole or
part of it).
      (3)
A notification under this paragraph must set out the determination made by
40
OFCOM.
      (4)
A notification under this paragraph must also specify the period during
which the person notified has an opportunity—
(a)
to make representations about the notified determination, and

Postal Services Bill
Schedule 4 — Recovery of administrative charges incurred by OFCOM
73

(b)
to pay the unpaid charge or (if applicable) the amount outstanding.
      (5)
The specified period must be at least one month beginning with the day after
the day the notification is given unless—
(a)
OFCOM and the person notified agree a shorter period, or
(b)
OFCOM have reasonable grounds for believing that the
5
contravention is a repeated contravention and, in those
circumstances, consider a shorter period would be appropriate.
      (6)
A contravention is a repeated contravention, in relation to a notification with
respect to the contravention, if—
(a)
a previous notification has been given in respect of the same
10
contravention or in respect of another contravention of a
requirement to pay an administrative charge, and
(b)
the subsequent notification is given no more than 12 months after the
day on which OFCOM determine for the purposes of paragraph 6(2)
that the contravention to which the previous notification related did
15
occur.
      (7)
OFCOM may (on one or more occasions) extend the specified period.
5     (1)
A notification under paragraph 4—
(a)
may be given in respect of contraventions of more than one
requirement to pay an administrative charge, and
20
(b)
if it is given in respect of a continuing contravention, may be given
in respect of any period during which the contravention has
continued.
      (2)
If a notification under paragraph 4 has been given to a person in respect of
an amount outstanding, OFCOM may give a further notification in respect
25
of the whole or a part of that amount only if—
(a)
the subsequent notification is in respect of so much of a period
during which that amount was outstanding as falls after a period to
which the earlier notification relates, or
(b)
the earlier notification has been withdrawn without a penalty having
30
been imposed in respect of the matters notified.
Penalties for non-payment of charges
6     (1)
This paragraph applies if—
(a)
a person has been given a notification under paragraph 4,
(b)
OFCOM have allowed the person an opportunity of making
35
representations about the notified determination, and
(c)
the period allowed for the making of the representations has ended.
      (2)
OFCOM may impose a penalty on the person if the person—
(a)
has, in one or more of the respects notified, been in contravention of
a requirement to pay an administrative charge fixed under
40
paragraph 1, and
(b)
has not, during the period allowed under paragraph 4, paid the
whole of the notified amount outstanding.
      (3)
If a notification under paragraph 4 relates to more than one contravention, a
separate penalty may be imposed in respect of each contravention.
45

Postal Services Bill
Schedule 4 — Recovery of administrative charges incurred by OFCOM
74

      (4)
If a notification under that paragraph relates to a continuing contravention,
no more than one penalty may be imposed in respect of the period of
contravention specified in the notification.
      (5)
The amount of a penalty imposed under this paragraph is to be such amount
as OFCOM determine to be—
5
(a)
appropriate, and
(b)
proportionate to the contravention in respect of which it is imposed.
      (6)
The amount must not be more than twice the amount of the charge fixed for
the year in relation to which the contravention occurred.
      (7)
In making the determination of the amount of the penalty OFCOM must
10
have regard to—
(a)
any representations made to them by the person, and
(b)
any steps taken by the person towards paying the amounts that the
person was notified under paragraph 4 were outstanding.
      (8)
If OFCOM impose a penalty on a person under this paragraph, they must—
15
(a)
within one week of making their decision to impose the penalty,
notify that person of that decision and of their reasons for it, and
(b)
in that notification, fix a reasonable period after it is given as the
period within which the penalty is to be paid.
      (9)
A penalty imposed under this paragraph—
20
(a)
must be paid to OFCOM, and
(b)
if not paid within the period fixed by them, is to be recoverable by
them accordingly.
     (10)
This paragraph does not affect OFCOM’s power to bring proceedings
(whether before or after the imposition of a penalty under this paragraph)
25
for the recovery of the whole or part of an amount due to them under
paragraph 1.
Suspending service provision for non-payment
7     (1)
OFCOM may give a direction under this paragraph to any postal operator
who is providing one or more postal services (“the contravening operator”).
30
      (2)
A direction under this paragraph is a direction that the entitlement of the
contravening operator to provide postal services—
(a)
is suspended (either generally or in relation to particular services), or
(b)
is restricted in the respects set out in the direction.
      (3)
OFCOM may give a direction under this paragraph only if they are satisfied
35
that conditions A to D are met.
      (4)
Condition A is that the contravening operator is or has been in serious and
repeated contravention of requirements to pay administrative charges fixed
under paragraph 1 (whether in respect of the whole or a part of the charges).
      (5)
Condition B is that the bringing of proceedings for the recovery of the
40
amounts outstanding—
(a)
has failed to secure complete compliance by the contravening
operator with the requirements to pay the charges, or
(b)
has no reasonable prospect of securing such compliance.

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Schedule 4 — Recovery of administrative charges incurred by OFCOM
75

      (6)
Condition C is that an attempt, by the imposition of penalties under
paragraph 6, to secure such compliance has failed.
      (7)
Condition D is that the giving of the direction is—
(a)
appropriate, and
(b)
proportionate to the seriousness (when repeated as they have been)
5
of the contraventions.
8     (1)
Unless it provides otherwise, a direction under paragraph 7 takes effect for
an indefinite period beginning with the time at which it is notified to the
person to whom it is given.
      (2)
A direction under paragraph 7—
10
(a)
in providing for the effect of a suspension or restriction to be
postponed may provide for it to take effect only at a time determined
by or in accordance with the terms of the direction, and
(b)
in connection with the suspension or restriction contained in the
direction or with the postponement of its effect, may impose such
15
conditions on the contravening operator as appear to OFCOM to be
appropriate for the purpose of protecting the users of that operator’s
services.
      (3)
Those conditions may include a condition requiring the making of
payments—
20
(a)
by way of compensation for loss or damage suffered by those users
as a result of the direction, or
(b)
in respect of annoyance, inconvenience or anxiety to which those
users have been put in consequence of the direction.
      (4)
OFCOM are not to give a direction under paragraph 7 unless they have—
25
(a)
notified the contravening operator of the proposed direction and of
the conditions (if any) which they are proposing to impose by that
direction,
(b)
provided the contravening operator with an opportunity of making
representations about the proposals and of proposing steps for
30
remedying the situation, and
(c)
considered every representation and proposal made to them during
the period allowed by them for the contravening operator to take
advantage of that opportunity.
      (5)
That period must be at least one month beginning with the day after the day
35
the notification is given.
      (6)
OFCOM may revoke a direction under paragraph 7 or modify its
conditions—
(a)
with effect from such time as they may direct,
(b)
subject to compliance with such requirements as they may specify,
40
and
(c)
to such extent and in relation to such services, or parts of a service, as
they may determine.
      (7)
For the purposes of paragraph 7 there are repeated contraventions by a
person of requirements to pay administrative charges to the extent that—
45
(a)
in the case of a previous notification given to that person under
paragraph 4, OFCOM have determined for the purposes of
paragraph 6(2) that a contravention did occur, and

Postal Services Bill
Schedule 5 — Approval of redress schemes
76

(b)
in the period of 12 months following the day of the making of that
determination, one or more further notifications have been given to
that person in respect of the same or different failures to pay
administrative charges.
Enforcement of directions under paragraph 7
5
9     (1)
A person commits an offence if the person provides any service—
(a)
while the person’s entitlement to do so is suspended by a direction
under paragraph 7, or
(b)
in contravention of a restriction contained in a direction under that
paragraph.
10
      (2)
A person guilty of an offence under sub-paragraph (1) is liable—
(a)
on summary conviction, to a fine not exceeding the statutory
maximum, and
(b)
on conviction on indictment, to a fine.
      (3)
The duty of a person to comply with a condition of a direction under
15
paragraph 7 is to be a duty owed to every person who may be affected by a
contravention of the condition.
      (4)
Sub-paragraphs (5) and (6) apply where a duty is owed by virtue of sub-
paragraph (3) to a person.
      (5)
A breach of the duty that causes that person to sustain loss or damage is
20
actionable at the suit or instance of that person.
      (6)
An act which—
(a)
by inducing a breach of the duty or interfering with its performance,
causes that person to sustain loss or damage, and
(b)
is done wholly or partly for achieving that result,
25

is actionable at the suit or instance of that person.
      (7)
In proceedings brought against a person as a result of sub-paragraph (5) it is
a defence for that person to show that the person took—
(a)
all reasonable steps, and
(b)
exercised all due diligence,
30

to avoid contravening the condition in question.
Schedule 5
Section 50

Approval of redress schemes
Approval of redress schemes
1     (1)
In deciding whether to approve a redress scheme, OFCOM must have
35
regard to—
(a)
the provisions of the scheme,
(b)
the manner in which the scheme will be operated (so far as that can
be judged from the facts known to OFCOM),