Water Charges - Analysis of an FOI & Appeal Procedure

The source of this information is published in the Review of Communications section, and includes the exchanges with the Scottish Information Commissioner [SIC] as well as Scottish Water [SC].

Part One - the FOI

1st April 2019 - The FOI was raised.

4th April 2019 - Further information was requested. Delay Tactic frustrated by reply on 9th April: no extension of time.

19th April 2019 - Response received. It was grossly inadequate. Evasion Tactic.

The information that was provided was:

• Not for the specific unit, but for the local area,
• The information was out of date by at least a decade,
• The information provided did not include a revenue water meter set in the pavement.

In addition:

• Information that was NOT requested was provided, the key information requested was NOT provided
• This key information requested was not provided; it was erroneously stated as not being held.

25th April 2019 - Review of Response Requested. Acknowledged on the 29th April.

The evidence of wrong doing was presented - quote from the request, namely:

The response made was:
Therefore the information is exempt under s.10(4a) of EIR on the basis that the requested information is not held by Scottish Water.
This response is wrong as it is Scottish Water's Revenue Protection Department who determine the status of a premises under Section 27 of the 2005 Act.

23rd May 2019 - Response received. It was restated bull. Frustation Tactic.

One wonders why they bothered replying. They could have said "We refuse to supply the information requested" - which was "what is the applicable law ?".

No problem, next step is the Scottish Information Commissioner and they were so advised on the 29th May 2019, citing the information received from the Revenue Protection Department on 31st January 2018. Except, in comes a so called "peace offering".

27th May 2019. Scottish Water's Legal Department butted in. Terror Tactic.

The reason for describing this as a Terror Tactic is called "beware I am a lawyer". However, the statements made constitute, in our opinion, a Fraudulent Misrepresentation, which was pointed out to them on 28th May, to which no response was received.

Part Two - The Appeal

4th June 2019 - The appeal was submitted. 

Receipt was acknowledged on the 5th June 2019.

There is now a new phase where the validity of the Appeal is checked.

17th July 2019 - Appeal confirmed as valid 

24th September 2019 - SIC's Attempt to Resolve 

The Scottish Information Commissioner was in touch with Scottish Water who had agreed to do further and better research, and provide these further  results, pending the review of which could result in the Appeal being withdrawn.

1st October 2019 - Further Information Received.

The information provided was substantial and consisted of some 66 pages extracted from a database of communications etc etc. Also a spreadsheet with one single line of data.

It was also suggested that SW's FOI Officer was contacted by telephone.

9th October 2019 - Research Project report to appellant, who fowarded it to the Scottish Information Commisioner.

The subject of this was the additional information that had been received on 1st October.

SW said that the FOI was unclear until the Appeal was made, which contained the following statement:

I would ask that the records of the Revenue Protection Department relating to the assessment of [premises] as an Eligible Premises be made available.

It was arranged to telephone Scottish Water's FOI Officer with support from the Research Project.

17th October 2019 - Record of telephone conversation with Scottish Water's FOI Officer

This summarised the nub of the matter:

• That SW agree that Section 27 is the law.
• That SW agree that there is neither a Water Connection or a Sewerage Connection 
• Conclusion that [premises] is NOT an Eligible Premises
• As SW have not withdrawn the charges, then there must be more to the Law,which is awaited.

21st October 2019 - Scottish Information Commissioner requests closure.

This was a point in time when communications were criss-crossing.

Scottish Water's FOI Officer confirmed that their Legal Department would provide the missing information as to the Applicable Law.

21st October 2019 - Research Project gives history and advises Closure NOT requested.

Scottish Water's FOI Officer's response forwarded to the Scottish Information Commisioner.

11th November 2019 - Scottish Information Commissioner confirms appeal on-going.

A large volume of additional information was received on 1st October 2019, following the intervention of the Scottish Information Commissioner. This was reviewed in detail. This elucidated that Scottish Water agreed that there was neither a water connection nor a sewerage connection to the premises.

The key on site investigation dates were 30 May 2014, and then again on 26 Jun 2014. Verified again on 3rd September 2015.

The first refusal to apply Section 27 was made by the Revenue Protection Department on 12th July 2014, and communicated formally to Scottish Water Business Stream at the behest of the Premises Validation team by the Wholesale Service Desk on 14th July 2014.

It was not until 4th January 2019 that the Water Charges, and associated Foul Charges were removed - in terms of Section 27 of the 2005 Act removing any possibility that the premises could be classified as Eligible Premises.

No valid law has ever been cited for raising Property and Roads Drainage charges: neither Statute nor Case Law. 

On the 17th October, a conversation was held with Scottish Water's FOI Officer presenting the argument that either the premises were NOT an Eligible Premises under the 2005 Act and not due to pay charges, or there was some other Applicable Law under which charges could be raised. This was then confirmed by email, with Scottish Water's FOI Officer confimring that our argument had been passed to their Legal Department who would provide such information.

As at 26th November 2019, a reasonable amount of time having passed, and no response having been received, it is sensible to cease to expect Scottish Water's Legal Departnment to provide either a letter stating that there would not be any charges, or the missing information as to the Applicable Law.

This then forms the decision that the Scottish Information Commissioner has to determine, viz has the Applicable Law been provided or not.

There is little dubaiety that the information provided once the Scottish Information Commissioner became involved shows that the premises in question is NOT an Eligible Premises - as far as an Reasonable Man is concerned. The Law is simple, and the facts as to connection were provided by Scottish Water - viz there aren't any.

Scottish Water has effectively gone "schtum", as they have yet to provide either a letter stating the removal of charges or the Applicable Law.

This indicates what might be termed "insidious collusive corruption". The following parties are specifically involved:

• Scottish Water's Revenue Protection Department - who determine "eligibility" - they ought to know the law.
• Water Industry Commissioner for Scotland - who sets the pricing policy, for which knowledge of the scope of eligibility is necessary.
• Scottish Ministers - who have published a direction that "Property and Roads Drainage Charges will be payable on Rateable Value"
• Scottish Government's Water Industry Team who overview the whole process.

So YES, the Objective of the FOI to locate the information as to Eligibility has been achieved.

But, as yet, NO, the Desired Result of ensuring that the tenant of the premises will never be wrongly charged again has not been achieved.

Ambrose Bierce, and American writer at the time of the civil war, wrote:

“A nation that will not enforce its laws has no claim to the respect and allegiance of its people.”

Scottish Water have employed the tactics of Delay, Evasion, Frustration, and finally Terror - all to no effect. The matter was then passed by way of Appeal to the Scottish Information Commissioner, upon whose intervention, Scottish Water provided some six months after the initial request, on 1st October 2019 a vast morass of information, and amongst the 66 A4 pages of information was the specific information requested as to Eligibility, but no more as to the Applicable Law.

Although the information provided undeniably demonstrates that the premises cannot under Section 27 be classified as Eligible Premises, Scottish Water have now effectively refused to supply the information requested as to the Applicable Law enabling them to instruct that charges for Property and Roads Drainage.

The Scottish Information Commissioner's decision is awaited.