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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schemes which have their approval withdrawn under paragraph 2,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.

 
 

 
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