Overview

During the research which included communicating with the Scottish Government Water Industry Team, we received two letters:

  • One from Jon Rathjen, Team Leader Water Industry Team, Ref: 2016/0023048, Dated: 21 July 2016
  • The other from Bob Irvine, Deputy Director Water Industry Division, Ref: 2016/0028722, Dated: 29 September 2016

Both are reviewed below, and not only conflict with each other, but also with the remits of the SPSO and the Water Industry Commission for Scotland.

The Research Process

Given that there appears to be a problem with Scottish Water, and its subsidiaries, during the research undertaken for this series of articles, it became necessary to engage with the various organs of government and administration in order to determine actually what was going on, and why what is apprently a clear and concise, easily understandable law was not being adhered to.

These organs included:

  • Scottish Water Revenue Proetection Team
  • Water Industry Commission for Scotland
  • Scottish Government Water Industry Team of the Environment and Forestry Directorate

The problem is that it appears that Section 27 of the 2005 Water Act is being studiously ignored. One thing is for sure - every organ is singing from the same Hymn Sheet: which means that the preacher is covering the ground very thoroughly.

A number of questions arise: 

  1. To what sector is it happening ? 
  2. How long has it been happening ?
  3. How is this happening ?
  4. Why is it happening ?

The results are the two letters - the text of which is given below. Our comments are shown in red.

Team Leader Water Industry Team, Ref: 2016/0023048, Dated: 21 July 2016

Thank you for your emails of 7 July 2016 and 15 July 2016 to the Cabinet Secretary for Environment, Climate Change and Land Reform and the Ministerial Correspondence Unit. I have been asked to reply.

As you will appreciate, Ministers receive a large volume of correspondence. Where appropriate, correspondence will be passed to the relevant policy team to respond on the Minister’s behalf.

Basically the Ministers do not get to see the correspondence which they ought to do, and thus cannot issue the appropriate instructions, but instead rely on civil servants to reply on their behalf and without their knowledge.

You suggest we have not responded to your concerns. The following summary is our understanding of the issues you have raised but if there are other points we have not responded to please do raise these again:

  • The Ministers’ Statement on the Principles of Charging sets out who is to be charged and how they are to be charged (for example metered/unmetered). A key principle is that there should be cost recovery – that is that customers should pay for the services received. 
    • We comment that this is part of the law but it has in any event to remain within the law. It cannot change the law.
  • Where a property is part of a much larger building which is connected to public water and/or sewerage then it may be liable for charges if it has access to services in the common parts of the building.
    • As has been pointed out elsewhere, Section 27 of the 2005 Act does not state this at all.
    • To this end an FOI was raised on this letter. Please see the article Water Charges - Information Commissioner Reviewed.
  • Charges will be collected by Licensed Providers, such as Business Stream, either from the property owner/factor (and these are recovered through the service charges applicable to each unit) or directly from the occupiers. In both cases, the nature of the arrangements should be set out in the lease/service agreement. It is a matter for the landlord to engage with Licensed Providers to set up appropriate charging arrangements.
    • It is interesting to note that the SPSO and Business Stream often say otherwise. Please see the article Water Charges - An SPSO Decision Reviewed.

In a previous email of 20 January 2016 I confirmed I would be happy to meet you and your colleagues if you considered it useful. I suggest that it may be helpful to arrange a meeting to discuss the issues you raise more fully. Please contact me or Stuart McCaskell to arrange a suitable date.

To this end an agenda was prepared. It seems that it was not acceptable. Please see the article Water Charges - A Clear Up Agenda.

Deputy Director Water Industry Division, Ref: 2016/0028722, Dated: 29 September 2016

Thank you for your email of 31 August 2016 to the Cabinet Secretary for Environment, Climate Change and Land Reform regarding your complaint in relation to water charges. I have been asked to reply. I am the deputy director with responsibility for the water industry division in the Scottish Government.

I note your dissatisfaction with the fact that responses have been issued by officials on behalf of Ministers. The process by which correspondence is responded to has been explained to you previously and I can confirm it is established practice for officials to reply on behalf of Ministers where there is settled policy. I am satisfied that this was appropriate in this instance.

Basically the Ministers do not get to see the correspondence which they ought to do, and thus cannot issue the appropriate instructions, but instead rely on civil servants to reply on their behalf and without their knowledge.

I understand that the process by which Scottish Water’s scheme of charges is reached has been explained to you previously. I fully appreciate that you do not accept that the charging regime reflects your understanding of the legal framework. However, this approach has been accepted by the independent economic regulator of Scottish Water and is ultimately subject to the determination of the Courts.

In the twelve years since the 2005 Act, it is surprising that the law has not been clarified. The independent economic regulator of Scottish Water [viz the Director, Water Industry Commission for Scotland] does not have the remit or authority to alter the law.

I also note from your email of 1 September 2016 to Stuart McCaskell your intent to refer matters to the Scottish Information Commissioner. In formal terms, if you are unhappy with the response to your FOI request, you must request the Scottish Government to carry out an internal review of the response before the case can be referred to the Scottish Information Commissioner. However, in anticipation of such a request I have reviewed the response and confirm that the relevant information is already in the public domain.

As has been pointed out the information in the public domain does NOT support Rathjen's contention.

If you continue to feel dissatisfied at the way the Scottish Government has dealt with these matters, you may wish to consider referring the matter to the Scottish Public Bodies Ombudsman (SPSO). The SPSO acts as the final stage for complaints about water and waste water services in Scotland. The SPSO can be contacted on 0800 377 7330, by writing to: SPSO, Freepost EH641, Edinburgh, EH3 0BR or at www.spso.org.uk.

Noted that this is a research project, and not case specific, and thus the SPSO has no authority to intervene.