|
| |
|
(c) | the interests of users of postal services (including, in particular, the |
| |
number of other redress schemes which are, or are likely to be, |
| |
| |
(d) | applicable best practice. |
| |
(2) | “Applicable best practice” means the principles— |
| 5 |
(a) | which, in OFCOM’s opinion, constitute generally accepted |
| |
principles of best practice in relation to schemes for providing |
| |
redress to consumers, and |
| |
(b) | which it is reasonable to regard as applicable to the scheme. |
| |
(3) | OFCOM must not approve a redress scheme unless— |
| 10 |
(a) | the membership of the scheme is open to all postal operators, |
| |
(b) | the independent adjudicator may require members of the scheme to |
| |
provide complainants with the minimum types of redress (whether |
| |
or not other types of redress are available), and |
| |
(c) | OFCOM consider that the scheme makes satisfactory provision |
| 15 |
about the matters listed in sub-paragraph (6). |
| |
(4) | Sub-paragraph (3)(a) is not to be read as preventing OFCOM from |
| |
approving a redress scheme that contains provision as to the expulsion of its |
| |
| |
(5) | The minimum types of redress are— |
| 20 |
(a) | providing an apology or explanation, |
| |
(b) | paying compensation, and |
| |
(c) | taking such other action in the interests of the complainant as the |
| |
independent adjudicator may specify. |
| |
| 25 |
(a) | the matters about which complaints may be made (which may |
| |
include contravention of a code of practice or other document), |
| |
(b) | the independent adjudicator’s duties and powers in relation to the |
| |
investigation and determination of complaints (which may include |
| |
power to decide not to investigate or determine a complaint), |
| 30 |
(c) | the enforcement of any requirement to provide redress imposed on |
| |
| |
(d) | the acceptance and handling of complaints transferred from redress |
| |
schemes which have their approval withdrawn under paragraph 2, |
| |
| 35 |
(e) | the provision of information by the independent adjudicator to the |
| |
persons within sub-paragraph (7) (and, in the case of persons within |
| |
sub-paragraph (7)(e) and (f), for the purposes mentioned there). |
| |
| |
| 40 |
(b) | persons carrying out functions under other redress schemes that |
| |
apply to postal operators, |
| |
(c) | the National Consumer Council, |
| |
(d) | the Secretary of State, |
| |
(e) | the Office of Fair Trading, for the purposes of any public consumer |
| 45 |
advice scheme supported by it, and |
| |
(f) | persons who operate a public consumer advice scheme supported by |
| |
the Office of Fair Trading, for the purposes of that scheme. |
| |
|
| |
|
| |
|
(8) | In this paragraph “the independent adjudicator” means the person |
| |
mentioned in section 50(2) who investigates and determines the complaints. |
| |
Approval of redress schemes: supplementary |
| |
2 (1) | An application for approval of a redress scheme must be made in such |
| |
manner, and be accompanied by such information, as OFCOM may |
| 5 |
| |
(2) | The person who administers an approved redress scheme must notify |
| |
OFCOM of any change to the scheme. |
| |
(3) | That notification must be given before the end of the period of 14 days |
| |
beginning with the day on which the change is made. |
| 10 |
(4) | OFCOM may withdraw their approval of a redress scheme, and may do so |
| |
generally or in relation to complaints of a description specified by OFCOM. |
| |
(5) | OFCOM may, in particular, specify complaints by reference to the date on |
| |
| |
Procedure for refusing or withdrawing approval |
| 15 |
3 (1) | Before refusing or withdrawing their approval of a redress scheme, OFCOM |
| |
must give the person who administers the scheme (“the scheme |
| |
administrator”) a notice— |
| |
(a) | stating that they propose to refuse or withdraw approval, |
| |
(b) | giving the reasons for the proposed refusal or withdrawal, and |
| 20 |
(c) | specifying a period within which representations about the |
| |
proposed refusal or withdrawal may be made. |
| |
(2) | That period must be at least one month beginning with the day after the day |
| |
| |
(3) | OFCOM must give notice (a “decision notice”) to the scheme administrator |
| 25 |
| |
(a) | OFCOM’s decision on a proposal to refuse or withdraw approval, |
| |
| |
(b) | the reasons for their decision. |
| |
(4) | If the decision is to withdraw approval, OFCOM must also give notice of |
| 30 |
their decision and the reasons for it to the Secretary of State. |
| |
(5) | The scheme administrator must give a copy of a decision notice to each |
| |
| |
(6) | If OFCOM decide to withdraw approval, the withdrawal has effect in |
| |
accordance with, and from the date specified in, the decision notice. |
| 35 |
|
| |
|
| |
|
| |
| |
Imposition, modification or revocation of regulatory conditions |
| |
General test for imposing or modifying regulatory conditions |
| |
1 | OFCOM may impose or modify a regulatory condition only if satisfied that |
| |
the condition or modification— |
| 5 |
(a) | is objectively justifiable, |
| |
(b) | does not discriminate unduly against particular persons or a |
| |
particular description of persons, |
| |
(c) | is proportionate to what it is intended to achieve, and |
| |
(d) | is transparent in relation to what it is intended to achieve. |
| 10 |
Provision which may be contained in regulatory conditions |
| |
2 (1) | The power of OFCOM to impose a regulatory condition includes each of the |
| |
| |
| |
| 15 |
| The power to impose a requirement to comply with directions given by |
| |
OFCOM, or by another person specified in the condition, with respect to the |
| |
matters to which the condition relates. |
| |
| |
| Consents, approvals and recommendations |
| 20 |
| The power to impose an obligation with respect to those matters framed by |
| |
reference to, or conditional on, the consent, approval or recommendation of |
| |
OFCOM or of another person specified in the condition. |
| |
| |
| 25 |
| The power to confer a discretion exercisable by OFCOM or by another |
| |
person specified in, or determined in accordance with, the condition. |
| |
| |
| Different provision for different cases |
| |
| The power to impose different conditions for different cases (including |
| 30 |
different conditions in relation to different parts of the United Kingdom). |
| |
| |
| Revocation and modification |
| |
| The power to revoke or modify the condition. |
| |
(2) | The directions that are authorised as a result of this paragraph do not |
| 35 |
include directions withdrawing, suspending or restricting a person’s |
| |
entitlement to provide (in whole or in part) postal services. |
| |
Procedure for imposing, modifying or revoking conditions |
| |
3 (1) | The way in which a regulatory condition is to be imposed or modified is by |
| |
the publication of a notification setting out the condition or modification. |
| 40 |
(2) | The way in which a regulatory condition is to be revoked is by the |
| |
publication of a notification stating that the condition is revoked. |
| |
|
| |
|
| |
|
(3) | Before imposing, modifying or revoking a regulatory condition, OFCOM |
| |
must publish a notification— |
| |
(a) | stating that they are proposing to impose, modify or revoke the |
| |
condition specified in the notification, |
| |
(b) | setting out the effect of the condition, modification or revocation, |
| 5 |
(c) | giving their reasons for making the proposal, and |
| |
(d) | specifying the period within which representations may be made to |
| |
OFCOM about their proposal. |
| |
(4) | The specified period must be at least one month beginning with the day after |
| |
the day the notification is published. |
| 10 |
(5) | OFCOM may give effect, with or without modifications, to a proposal with |
| |
respect to which they have published a notification only if they— |
| |
(a) | have considered every representation about the proposal that is |
| |
made to them within the specified period, and |
| |
(b) | have had regard to every international obligation of the United |
| 15 |
Kingdom (if any) which has been notified to them for the purposes |
| |
of this paragraph by the Secretary of State. |
| |
(6) | The publication of a notification under this paragraph must be in such |
| |
manner as appears to OFCOM to be appropriate for bringing its contents— |
| |
(a) | in the case of a designated USP condition, a USP access condition or |
| 20 |
a USP accounting condition, to the attention of the persons who, in |
| |
OFCOM’s opinion, are likely to be affected by its contents, and |
| |
(b) | in any other case, to the attention of such persons as OFCOM |
| |
| |
(7) | The requirements of this paragraph apply even if OFCOM is under a duty |
| 25 |
under any other provision of Part 3 of this Act to impose or modify a |
| |
| |
Directions and approvals for purposes of conditions |
| |
4 (1) | This paragraph applies if— |
| |
(a) | a regulatory condition has effect by reference to directions, |
| 30 |
approvals or consents given by a person (whether OFCOM or |
| |
| |
(b) | the person proposes to give a direction, approval or consent affecting |
| |
the operation of the condition or to modify or withdraw a direction, |
| |
approval or consent so as to affect its operation. |
| 35 |
(2) | A person may give, modify or withdraw the direction, approval or consent |
| |
only if satisfied that to do so— |
| |
(a) | is objectively justifiable, |
| |
(b) | does not discriminate unduly against particular persons or a |
| |
particular description of persons, |
| 40 |
(c) | is proportionate to what it is intended to achieve, and |
| |
(d) | is transparent in relation to what it is intended to achieve. |
| |
(3) | Before the direction, approval or consent is given, modified or withdrawn, a |
| |
notification must be published— |
| |
(a) | stating that there is a proposal to give, modify or withdraw it, |
| 45 |
(b) | identifying the person whose proposal it is, |
| |
|
| |
|
| |
|
(c) | setting out the direction, approval or consent to which the proposal |
| |
| |
(d) | setting out the effect of the direction, approval or consent or of its |
| |
proposed modification or withdrawal, |
| |
(e) | giving reasons for the making of the proposal, and |
| 5 |
(f) | specifying the period within which representations may be made |
| |
about the proposal to the person whose proposal it is. |
| |
(4) | That period must be at least one month beginning with the day after the day |
| |
the notification is published. |
| |
(5) | But if the person giving the notification is satisfied that there are exceptional |
| 10 |
circumstances justifying a shorter period, the period for making |
| |
representations may be whatever shorter period that person considers |
| |
reasonable in the circumstances. |
| |
| |
(a) | a person other than OFCOM proposes to give, modify or withdraw |
| 15 |
a direction, approval or consent, and |
| |
(b) | the condition for the purposes of which it has (or will have) effect |
| |
provides for notifications of proposals for the purposes of the |
| |
condition to be given by that person, |
| |
| the obligation of publishing the notification of that proposal for the purposes |
| 20 |
of this paragraph falls on that person. |
| |
(7) | Otherwise, the obligation of publishing a notification for the purposes of this |
| |
paragraph falls on OFCOM. |
| |
(8) | The person who is authorised to give the direction, approval or consent may |
| |
give effect, with or without modifications, to a proposal with respect to |
| 25 |
which a notification has been given only if the person— |
| |
(a) | has considered every representation about the proposal that is made |
| |
to the person within the period specified in the notification, and |
| |
(b) | has had regard to every international obligation of the United |
| |
Kingdom (if any) which has been notified to OFCOM for the |
| 30 |
purposes of this paragraph by the Secretary of State. |
| |
(9) | The publication of a notification under this paragraph must be in such |
| |
manner as appears to the person publishing it to be appropriate for bringing |
| |
its contents to the attention of such persons as that person considers |
| |
| 35 |
Delivery of copies of notifications etc. |
| |
5 (1) | The relevant person must send to the Secretary of State— |
| |
(a) | a copy of every notification published under paragraph 3 or 4, |
| |
(b) | a copy of every direction, approval or consent given for the purpose |
| |
of giving effect to a proposal required to be published under |
| 40 |
| |
(c) | a copy of every instrument modifying or withdrawing a direction, |
| |
approval or consent for the purpose of giving effect to a proposal |
| |
required to be published under that paragraph. |
| |
(2) | The relevant person must send to the European Commission— |
| 45 |
|
| |
|
| |
|
(a) | a copy of every notification published under paragraph 3(1) with |
| |
respect to a designated USP condition or a general universal service |
| |
| |
(b) | a copy of every direction, approval or consent given for the purposes |
| |
of a designated USP condition or a general universal service |
| 5 |
| |
(c) | a copy of every instrument modifying or withdrawing such a |
| |
direction, approval or consent. |
| |
(3) | In this paragraph “the relevant person”, in relation to a notification, |
| |
direction, approval or consent— |
| 10 |
(a) | except in a case falling within paragraph (b), means the person by |
| |
whom it is published or by whom it has been or is to be given, |
| |
modified or withdrawn, and |
| |
(b) | in the case of a direction, approval or consent given, modified or |
| |
withdrawn by a person other than OFCOM for the purpose of giving |
| 15 |
effect to a proposal published by OFCOM under paragraph 4, means |
| |
| |
| |
| |
Enforcement of regulatory requirements |
| |
| 20 |
1 (1) | This Schedule makes provision for the enforcement of regulatory |
| |
requirements imposed by OFCOM in carrying out their functions in relation |
| |
| |
(2) | “Regulatory requirement” means— |
| |
(a) | a regulatory condition, or |
| 25 |
| |
(i) | section 89A or 116(2A) of the Postal Services Act 2000 |
| |
(schemes as to terms and conditions for provision of postal |
| |
services, and the Postcode Address File), or |
| |
(ii) | section 25(5) of the Consumers, Estate Agents and Redress |
| 30 |
Act 2007 (enforcement of requirements to give information to |
| |
the National Consumer Council). |
| |
(3) | The reference to the enforcement of a regulatory condition includes the |
| |
enforcement of an access condition containing provision as a result of |
| |
paragraph 6 of Schedule 3 against the person (B) who has made the |
| 35 |
arrangements with a postal operator mentioned in that paragraph. |
| |
Notification of contravention of regulatory requirements |
| |
2 (1) | OFCOM may give a person a notification under this paragraph if they |
| |
determine that there are reasonable grounds for believing that the person is |
| |
contravening, or has contravened, a regulatory requirement. |
| 40 |
(2) | A notification under this paragraph must— |
| |
(a) | set out the determination made by OFCOM, and |
| |
|
| |
|
| |
|
(b) | specify the requirement and contravention in respect of which that |
| |
determination has been made. |
| |
(3) | 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, |
| 5 |
(b) | to comply with notified requirements of which the person remains in |
| |
| |
(c) | to remedy the consequences of notified contraventions. |
| |
(4) | The specified period must be at least one month beginning with the day after |
| |
the day the notification is given unless— |
| 10 |
(a) | OFCOM and the person notified agree a shorter period, |
| |
(b) | OFCOM have reasonable grounds for believing that the |
| |
contravention is a repeated contravention and, in those |
| |
circumstances, consider a shorter period would be appropriate, or |
| |
(c) | OFCOM specify a shorter period under paragraph 8(3) (power to |
| 15 |
| |
(5) | 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 |
| |
contravention or in respect of another contravention of the same |
| 20 |
regulatory requirement, and |
| |
(b) | the subsequent notification is given no more than 12 months after the |
| |
day on which OFCOM determine for the purposes of paragraph 5(2) |
| |
or 6(2) that the contravention to which the previous notification |
| |
| 25 |
(6) | OFCOM may (on one or more occasions) extend the specified period. |
| |
3 (1) | A notification under paragraph 2— |
| |
(a) | may be given in respect of more than one contravention, and |
| |
(b) | if it is given in respect of a continuing contravention, may be given |
| |
in respect of any period during which the contravention has |
| 30 |
| |
(2) | If a notification under paragraph 2 has been given to a person in respect of a |
| |
contravention of a regulatory requirement, OFCOM may give a further |
| |
notification in respect of the same contravention of that requirement only |
| |
| 35 |
(a) | the contravention occurs after the earlier notification is given, |
| |
(b) | the contravention is a continuing one and the subsequent notification |
| |
is in respect of so much of a period as falls after a period to which the |
| |
earlier notification relates, or |
| |
(c) | the earlier notification has been withdrawn without a penalty having |
| 40 |
been imposed in respect of the notified contravention. |
| |
4 | OFCOM may not give a notification under paragraph 2 in relation to a |
| |
| |
(a) | they decide that a more appropriate way of proceeding in relation to |
| |
the contravention would be under the Competition Act 1998, and |
| 45 |
(b) | they publish a statement to that effect in such manner as they |
| |
consider appropriate for bringing their decision to the attention of |
| |
the persons who, in their opinion, are likely to be affected by it. |
| |
|
| |
|