Please note that this article is incomplete.
Part 1: Background
Briefing - Case Study: Scottish Water wrongly charging a Business.
For the full story, please refer to the section Water Charges - FOI's etc.
Following the raising of an FOI to Scottish Water, and the subsquent appeal to the Scottish Information Commissioner, Scottish Water have still managed to evade providing the documented information that they consider might authorise them to raise an invoice for property and drainage charges for a commercial property which:
- has no water connection of any sort, and
- has no sewerage connection of any sort.
and is thus, in any reasonable view, NOT an Eligible Premises, meaning that said premises is NOT eligible under Scottish Law to be charged for Water Supply or any form of Sewerage Collection.
The applicable law, the nub of the matter, is Section 27 of the 2005 Water Act - which is more fully explained elsewhere on this web site. Said section contains only 120 words, of which just 49 express the intent in this matter. It could not be simpler.
The law is so straight forward that is almost inconceivable that it could be misinterpreted - except in Scotland, by Scottish Water's Revenue Protection Department [SWRPD]: however, it has happened, not just once or twice, but as "the norm".
What is worse [please refer to the adjacent diagram] is that:
- the Scottish Government appear to condone this, by the lack of action taken to ensure some propriety in the management of SWRPD by the government department charged with overviewing Scottish Water.
- the Water Industry Commissioner for Scotland [WICS] supports the SWRPD methodology in that:
- his web site states that businesss's NOT in an eligible premises should expect to pay charges, and
- he sets the rate of the charges to be so levied.
- the Scottish Parliament and or their elected members [including the First Minister] have collectively failed to understand the scale of the problem, let alone take any action.
- the Board of Scottish Water has a sub board to manage their Ethics.
This may sound somewhat vitriolic, but the evidence is presented, it is believed, in a well documented manner on the this web site. The conclusion is appalling, and results in the suggestion at the end of this article.
How did this situation arise ?
In 2005, the Water Act for Scotland was passed. Section 27 introduced the concept of "Eligible Premises" which defines which commercial premises are liable to be charged for Water and or Sewerage.
For the Water Industry in Scotland, it was a change that was as dramatic as the replacement of "rates" with "the poll tax" was for the people of Scotland. As far as the newly created Scottish Water - an assembly of the several regional water companies - was concerned, they did not like it, and very obviously still do not like it.
The reason that they do not like it is purely commercial: the value of charges that can be levied on tenants using a rateable value basis is probably ten times that which is chargeable to a landlord for his "eligible premises" viz his facilities [toilets, kitchens, etc] on the basis of the volume of water supplied. The solution to their dilemma is simple: request a change to the law through the Scottish Parliament. However, they have decided to bully the small business sector instead. The negative results on asking why this is allowed seems to be an answer in itself.
About the institutional bullying . . .
The result in the Chataroo case is "of interest" to a Water Engineer, but it is Note 9 which is of most interest: it was made by the Dean of Faculty, acting for the Pursuers, who noted that the case was "but one of a not insignificant number of debt recovery cases". This statement is irrelevant to the matter of law under discussion - so why was it included ?
However it was dozen years before a case came to court, presided over by Sheriff Swanson, who found, by a long and tenuous argument, in favour of Scottish Water. Her argument bore some familiarity to that of Lord Denning MR in 1975 in the West Pennine case: in this case the Lords of Appeal stated categorically that their finding, against the tenants, was at best "rough justice" and the law should be amended by [the Westminster] Parliament.
One of the apparent problems of an Adversarial as opposed to an Inquisitoral system of Law is the restriction on the bench to only reviewing the law which is submitted to it - so it would seem that Section 38 of the 1945 Act, which appears to indicate that a supply should be disconnected prior to action to pursue a debt for non payment, was not considered, and if it had been, would it have indicated the "no water no bill" philosophy ?
In 2017, Sheriff Reid found somewhat differently in a case which, to the layman, appears to be almost identical to the one heard by Sheriff Swanson.
The question posed then is "does section 27 of the 2005 Act represent the totality of the law pertaining to the liability of paying for water and or sewerage and drainage charges" ?
It is thought so, but when SWRPD continue to raise charges [which charges are then levied by a service provider such as Business Stream] in respect of drainage, it is not unreasonable to ask "where is your authority" for so doing.
The Scottish Information Commissioner, despite the acknowledgement by Scottish Water [by the actions of the FOI Officer], failed to request Scottish Water for the provision of this information to wit the authority for the raising of charges, when common sense says that under Section 27 no charges are due.
Part 2 - About Freedom of Information - Responsibilities, etc
Notes
Section 23 - Publication Schemes
a) WICS
Authority for the statements made on the web site's faq page.
b) SWRPD
Authority for the issuing of charge statements to licensed providers for premises which are NOT Eligible Premises under Section 27 of the 2005 Act
Part 3 - Was the "hearing" of the appeal Honest, Open, and Accountable ?
Some questions and comments on Process:
Was the process fair and reasonable - when compared to a normal law court ?
- No. Nor even compared to a Tribunal, although it appears to have the same authority when it comes to determination of fact, even though it is selective in the consideration of what is and is not relevant, fails to state the grounds for such selection, let alone the infornmation that was selected.
What are the main differences ?
- The BUJ supplies a response which is not shown to the complainant.
- Although the SIC may ask the BUJ to supply further documents, it often does NOT take cognizanace of these, let alone recognising that such data may well demonstrate that information has been withheld.
Imagine a Sheriff Court.... IF
The Sheriff heaing a case brought by Pursuer against the Defender, a State Owned Corporation:
- hears the case presented by the Pursuer,
- enters into a private discussion with said Defender, making summary notes of said discussion,
- fails to provide the Pursuer with said notes of said discussion with the Defender,
- and makes a judgement based on "all relevant matters" which are not listed in the judgement,
Would that be determined as fair ?
This was put to a practising solicitor who was not only appalled, but commented that a motion for dismissal of the Sheriff be made forthwith to the authorities.
Was it in accordance with the law establishing the SIC ?
- ????
Does the SIC have a certified Quality Management System tio ISO9001 ?
- No. It appears that the Scottish Government is set against any of it's organs introducing a QMS to International, let alone British, Standards
Does the process meet with the requirements of Article 6 of the ECHR [Strasbourg Jurisdiction] ?
- ????
Some questions & comments on the Decision:
Were here any misleading or irrelevant words in the decision ?
- The words "In coming to a decision on this matter, the Commissioner considered all of the relevant submissions, or parts of submissions, made to him by both the Applicant and the Scottish public authority. He is satisfied that no matter of relevance has been overlooked"
- It appears these words are used in every decision under the heading "Commissioner's analysis and findings".
- This renders the words worthless without a list of the "relevant submissions, or parts of submissions"
- No such list of submissions was provided.
- When questioned on the extent of the information and or data that was actually considered, the response can be described, at best, as evasive.
Were any of the elements of the FOI misinterpreted ?
- Items 1, and 2, were about physical things, so the SIC could hardly ignore them.
- However Item 3 was of the essence and related to the "authority [viz the applicable law] under which a charge was levied".
- Item 3 was NOT, in the view of several persons all of whom would be considerd as "reasonable men", a request to determine if the applicable law rendered the property in question as an "eligible premises". It was for the authority under which a probably erroneous charge was made.
Did the decision meet with the requirements of Article 6 of the ECHR [Strasbourg Jurisdiction] ?
- ????
Conclusion
Scotland as a country does not have an administration whuich can be relied upon to be Open, Honest, and Accountable.