The problem is that the determination of whether a property is an "eligible premises" under the 2005 water act [and thus liable for water charges] - see the article on "The Law" - is not carried out in a fair and reasonable manner.
This leads, for example, in a well known four story edifice in Bridgeton, with tenants being treated in totally different ways:
- Some tenants have not received any communications, let alone invoices - although they are aware of what is going on.
- Others have been paying water, sewerage, and drainage charges for years - and are now asking why ?
- Several tenants have agreed to pay, and are paying, drainage charges only.
- Many have received invoices for water, sewerage, and drainage charges, and have challenged their liability.
- A few tenants have attempted to move to a different supplier [except that is a wrong description, its really a different revenue collector], and have been unable to change.
Specific Problem One - CMA Scotland's Market Code
First of all who and what is CMA Scotland ? See the CMA Scotland web site for more information.
Answer it is in effect a "collective" of the firms authorised to collect monies on behalf of Scottish Water for the provision of Water, and the collection of Sewerage [Foul Water] and Drainage [Storm Water]. It has a constantly changing "Market Code" to ensure that they all sing to the same hymn sheet.
The record at Companies House for the Central Market Agency Limited [viz CMA Scotland] shows as follows:
Company No. SC328635
Company Type: PRI/LTD BY GUAR/NSC (Private, limited by guarantee, no share capital)
Nature of Business (SIC): 82990 - Other business support service activities not elsewhere classified
There are seven directors - the current and previous directors are listed on, for example, on CompanyCheck.co.uk.
Their Market Code is available and may be downloaded from their web site at http://www.cmascotland.com/market-documents/market-code/market-code-2015-present. It is frequently updated [Latest Version No:37, dated 01 February 2018], and each version must be downloaded. Clause 5.15 Supply Points at Eligible Premises with multiple occupancy is the root cause of much of the problem.
As definition of an Eligible Premises is at variance with that of Section 27of the 2005 Water Act. Please see the article on The Law for more information.
It is to be noted that although the Gap Analysis [see below] may be carried out in accordance with this document, this will inevitably lead to erroneous determinations which often results in the matter of what monies are due to be paid going to court or being placed before the Scottish Public Services Ombudsman [the SPSO].
It has to be reiterated that CMA Scotland do not have the power to make laws, and their document ought to be in accord with the Law. One would have thought that the The Water Commission for Scotland would be the body to ensure this, but it seems not. Maybe this lack of regulation is also part of the problem, but that is "political" and out-with the scope of these articles.
Specific Problem Two - Drainage Charges
On the matter of drainage charges, the Scotland on Tap web site which is actually provided by The Water Commission for Scotland seems to support the levying of drainage charges from tenants which arise from the landlord's building and the nation's roads. Both of these, one for property and one for the nation's roads, seem grossly unfair and unreasonable - and might come under the "Unfair Contract Terms Act 1977" and the "Unfair Terms in Consumer Contracts Regulations 1999".
Various officials have been requested to provide details of the Law which specifies this, or failing that the Ministerial Direction which authorises it. The responses, including those under a Freedom of Information request are best said to wholly dismal and evasive.
One of the responses cited the Water Industry (Scotland) Act 2002 wherein Section 56 provides the the authority for ministers to issue directions [Noted that Section 44 allows Directions as to payment and investment], and then provided a link to the Scottish Government list of Water Industry Policy Statements relating to the Water Acts.
None of these can be construed as Ministerial Directions which have the force of law. However, the directions issued in October 2014, include the following statement at Paragraph 9 for Business Charges.
Ministers confirm that, in relation to non-domestic charges, wholesale charges should continue to be set in line with these principles and should take note of the following:
• Paying for public roads drainage - wholesale charges should continue to include an appropriate element to recover the cost to SW of draining public roads.
• Surface drainage - wholesale charges should include an element set to recover the costs of draining roofs and other impermeable surfaces within private properties where properties are connected to public sewers.
Basically this ought to be enshrined in a law or a formal ministerial direction to avoid any dubaiety. It has not been. Whether it will stand up in court has yet to be determined - but what large company has a million pounds or more to waste: no small company has for sure.
The Real Cause of the Problem - The Gap Analysis
The Remuneration of the Analysts in England and Wales is according to various documents is by performance as opposed to being on a salary. So the more revenue they can generate, the higher their remuneration. There is no reason to suggest that this is different in Scotland. This then puts pressure on the analysts, which in turn often leads to a false determination as the analyst gets a higher commission for locating an eligible premises that one that is not.
The various documents published by the Scottish Government indicate that they wish to increase the revenue available to Scottish Water, and this of course means increasing the rate of or the scope of water charges [viz Water Tax]. The question arises as to what they should be doing about those small business's which operate from a mobile phone and or a small van e,g, the "White Man Van" business's.
Three Policy documents have been issued.
- Principles of Charging Statement 2015-21 - 1 October 2014
- Principles Of Charging For Water Services 2010-2015 Statement - 27 October 2009
- Principles of Charging for Water Services 2006-10 Statement - 28 September 2005
These documents progressively define the charges to be raised.
However, only one principle has been issued as Ministerial Direction, and that was on 1st April 2003 being reaffirmed on 19th Dec 2014.
Even this direction is being ignored in part.
- Although to many people, the law is clear, possible some specific clarification on the Law on Drainage Charges is required for the water industry.
- Physically Property Drainage is the responsibility of the Landlord. It follows therefore that any charges for disposing of water from the property should be to the Landlord's account. Whether the landlord chooses to recharge this to the tenants is his affair. In any event, if there is a public drain attached to the Landlord's Property, then that part is an "Eligible Premises".
- Rectify the Scotland on Tap web site.
Water and Sewerage Charges
- Change the Law so that it relects the CMA's Market Code document - daft idea.
- Change the CMA's Market Code document so that it reflects the Law - recommended.