Postal Services Bill

House of Commons

Session 2010 - 11
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Other Bills before Parliament

Postal Services Bill

Postal Services Bill
Schedule 5 — Approval of redress schemes
77

(c)
the interests of users of postal services (including, in particular, the
number of other redress schemes which are, or are likely to be,
approved), and
(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
members.
      (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.
      (6)
The matters are—
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
a member of the scheme,
(d)
the acceptance and handling of complaints transferred from redress
schemes which have their approval withdrawn under paragraph 2,
and
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).
      (7)
The persons are—
(a)
OFCOM,
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.

Postal Services Bill
Schedule 5 — Approval of redress schemes
78

      (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
determine.
      (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
which they were made.
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
the notice is given.
      (3)
OFCOM must give notice (a “decision notice”) to the scheme administrator
25
of—
(a)
OFCOM’s decision on a proposal to refuse or withdraw approval,
and
(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
member of the scheme.
      (6)
If OFCOM decide to withdraw approval, the withdrawal has effect in
accordance with, and from the date specified in, the decision notice.
35

Postal Services Bill
Schedule 6 — Imposition, modification or revocation of regulatory conditions
79

Schedule 6
Section 51

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
following powers.


Directions
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.


Discretion
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.

Postal Services Bill
Schedule 6 — Imposition, modification or revocation of regulatory conditions
80

      (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
consider appropriate.
      (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
condition.
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
another), and
(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,

Postal Services Bill
Schedule 6 — Imposition, modification or revocation of regulatory conditions
81

(c)
setting out the direction, approval or consent to which the proposal
relates,
(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.
      (6)
If—
(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
appropriate.
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
paragraph 4, and
(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

Postal Services Bill
Schedule 7 — Enforcement of regulatory requirements
82

(a)
a copy of every notification published under paragraph 3(1) with
respect to a designated USP condition or a general universal service
condition,
(b)
a copy of every direction, approval or consent given for the purposes
of a designated USP condition or a general universal service
5
condition, and
(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
OFCOM.
Schedule 7
Section 52

Enforcement of regulatory requirements
Introduction
20
1     (1)
This Schedule makes provision for the enforcement of regulatory
requirements imposed by OFCOM in carrying out their functions in relation
to postal services.
      (2)
“Regulatory requirement” means—
(a)
a regulatory condition, or
25
(b)
a direction under—
(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

Postal Services Bill
Schedule 7 — Enforcement of regulatory requirements
83

(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
contravention, and
(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
deal with urgent cases).
      (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
related did occur.
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
continued.
      (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
if—
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
contravention if—
(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.