Legalize / United Kingdom / Public General Act

Postal Services Act 2011

Type Public General Act

Publication 2011-06-13

Last updated 2024-04-01

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(b) there is a subsequent disposal of securities of the original holding company or any of its subsidiaries in relation to which paragraph 7 does not apply, and

(c) immediately before the subsequent disposal or the making of an agreement to make it, the original holding company or (as the case may be) the subsidiary was a member of a new group.

(2) For the purposes of the application of a degrouping provision in the case of that disposal or agreement—

(a) the company from which the original holding company or (as the case may be) the subsidiary acquired relevant assets or chargeable interests is to be treated as if it had been a member of the new group at the time the relevant assets or chargeable interests were acquired, and

(b) that company is to be treated as if it were a member of the new group immediately before the disposal or the making of the agreement mentioned in sub-paragraph (1)(c).

(3) “Relevant assets or chargeable interests” means assets or chargeable interests in relation to which, but for paragraph 7, the degrouping provision in question would have applied by reason of the disposal or agreement mentioned in sub-paragraph (1)(a).

(4) In this paragraph—

(a) references to a group have the same meaning as in the degrouping provision in question, and

(b) references to a new group are to a group other than a group of which the original holding company or (as the case may be) the subsidiary was a member immediately before the making of a disposal or an agreement in relation to which paragraph 7 applied.

SCHEDULE 3

Part 1 — Provision that may be made by access conditions

Introduction

1

Access conditions imposed on a person may include provision of the kind mentioned in the following provisions of this Part of this Schedule.

Terms of access

2

An access condition imposed on a person may include provision—

(a) requiring the terms and conditions on which the person is willing to offer access to include such terms and conditions as may be specified or described in the condition, or

(b) requiring the person to make such modifications as OFCOM may direct of any offer which sets out the terms and conditions on which the person is willing to offer access.

Price controls etc.

3

(1) An access condition imposed on a person may include provision imposing on the person—

(a) such price controls as OFCOM may direct in relation to matters connected with the giving of access (“access matters”),

(b) rules made by OFCOM in relation to access matters about the identification of costs and cost orientation,

(d) obligations to have compliance with those systems audited annually by a qualified independent auditor, and

(e) obligations to adjust prices in accordance with directions given by OFCOM.

(2) An obligation within sub-paragraph (1)(d) may require the person to meet the costs of the audit.

(3) In sub-paragraph (1)(d) “qualified independent auditor” means a person who—

(a) is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and

(b) if the appointment were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement).

4

An access condition may include provision requiring the application of presumptions in the fixing and determination of costs and charges for the purposes of the price controls, rules and obligations referred to in paragraph 3.

5

(1) If an access condition imposes rules on any person about the use of cost accounting systems, OFCOM may secure that the condition also imposes an obligation on the person to make arrangements for a description to be made available to the public of the cost accounting system used.

(2) If OFCOM impose an obligation on a person under sub-paragraph (1), the description of information to be made available must include details of—

(a) the main categories under which costs are brought into account for the purposes of that system, and

(b) the rules applied for the purposes of that system with respect to the allocation of costs.

Arrangements for provision of services by others

6

(1) This paragraph applies if—

(a) services are provided to a postal operator pursuant to arrangements made between the operator and another person (“B”),

(b) an access condition requires the operator to secure that those services are also provided to a third person (“C”), and

(c) the provisions of the arrangements are such that the operator cannot secure that the services are provided to C without B's agreement.

(2) The access condition may include—

(a) provision in relation to the giving of agreement by B (including provision for agreement to be deemed to be given in circumstances specified in the condition), and

(b) provision for determining the terms and conditions on which B is to secure the provision of the services to C.

(3) Provision may not be included in an access condition as a result of this paragraph if it would have the effect of requiring a person who provides services pursuant to the arrangements to do more than the person could be required to do pursuant to the arrangements as they have effect before the condition is imposed.

Separation for accounting purposes

7

An access condition requiring a separation for accounting purposes between different matters may include provision—

(a) requiring the separation to be maintained in relation to different services, facilities or products or in relation to services, facilities or products provided in different areas, and

(b) requiring particular accounting methods to be used in maintaining the separation.

Restriction on use of information obtained in connection with giving access

8

An access condition imposed on a person may include provision requiring the person not to use information which—

(a) is obtained in connection with the giving of access, and

(b) relates to the provision of postal services by any person to whom access is given,

for any purpose other than the purpose of the access given by the condition.

Periods for compliance

9

An access condition imposed on a person may include provision for securing that obligations contained in the condition are complied with within the periods or at the times required by or under the condition.

Dealing with requests for access

10

An access condition imposed on a person may include provision for securing fairness and reasonableness in the way in which requests for access are made and responded to.

Non-discrimination

11

An access condition imposed on a person may include provision requiring the person not to discriminate unduly against particular persons, or against a description of persons, in relation to access matters.

Transparency

12

An access condition imposed on a person may include provision requiring the person—

(a) to publish all such information as OFCOM may direct (in such manner as they may direct) for the purpose of securing transparency in relation to access matters, or

(b) to publish (in such manner as OFCOM may direct) the terms and conditions on which the person is willing to offer access.

Part 2 — Resolution of access disputes by OFCOM

Reference of disputes to OFCOM

13

(1) Any one or more parties to an access dispute may refer the dispute to OFCOM.

(2) In this paragraph “access dispute” means a dispute between postal operators, or between a postal operator and a user of postal services, about the terms and conditions (including those as to price) on which access, required by virtue of an access condition to be given—

(a) is to be or may be provided,

(b) is being provided, or

(3) A reference under this paragraph must be made in such manner as OFCOM require.

(4) A requirement under sub-paragraph (3) is to be imposed, withdrawn or modified by OFCOM publishing a notice in such manner as they consider appropriate for bringing the requirement, withdrawal or modification to the attention of persons who, in their opinion, are likely to be affected by it.

(5) Different requirements may be imposed for different cases.

OFCOM to decide whether to handle dispute

14

(1) This paragraph applies where a dispute has been referred to OFCOM under paragraph 13.

(2) OFCOM must decide whether it is appropriate for them to handle the dispute.

(3) As soon as possible after they have reached a decision, OFCOM must inform each of the parties to the dispute of—

(a) their decision,

(b) the date it was made, and

Resolution of disputes by OFCOM

15

(1) This paragraph applies if OFCOM have decided under paragraph 14 that it is appropriate for them to handle a dispute.

(2) OFCOM must—

(a) consider the dispute, and

(b) make a determination for resolving it.

(3) The determination must be made as soon as reasonably practicable.

(4) A determination binds all of the parties to the dispute.

(5) Where there has been an attempt to resolve the dispute by other means—

(a) OFCOM may, in making their determination, take account of decisions made by others in the course of that attempt, and

(b) the determination may include provision ratifying any of those decisions.

Resolution of disputes: OFCOM’s powers

16

(1) The powers that may be exercised by OFCOM, on the making of a determination under paragraph 15, are those listed in sub-paragraph (2).

(2) The powers are—

(a) to make a declaration setting out the rights and obligations of parties to the dispute,

(b) to give a direction fixing the terms or conditions of transactions between parties to the dispute,

(c) to give a direction imposing an obligation, enforceable by the parties, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM,

(d) to give a direction, enforceable by the party to whom the sums are to be paid, requiring the payment of sums by way of adjustment of an underpayment or overpayment (but see sub-paragraph (3)),

(e) to require a party to the dispute to pay all or part of another party's costs and expenses incurred in connection with the dispute,

(f) to require a party to pay all or part of OFCOM's costs of dealing with the dispute (but see sub-paragraph (4)).

(3) A direction under sub-paragraph (2)(d) may be given only for the purpose of giving effect to a determination by OFCOM of the proper amount of a charge in respect of which amounts have been paid by one party to the dispute to another.

(4) A direction under sub-paragraph (2)(f) may be given to a party only if—

(a) the party referred the dispute to OFCOM, and

(b) OFCOM consider that the reference was frivolous or vexatious or that the party has otherwise abused the right (conferred by paragraph 13) to refer disputes.

Resolution of disputes: procedure

17

(1) The procedure for the consideration and determination of a dispute is the procedure that OFCOM consider appropriate.

(2) That procedure may involve allowing the continuation of a procedure that has already begun for resolving the dispute by other means.

(3) OFCOM must send a copy of their determination, together with a full statement of their reasons for it, to every party to the dispute.

(4) OFCOM must publish so much of their determination as (having regard in particular to the need to preserve commercial confidentiality) they consider it appropriate to publish.

(5) Information published under sub-paragraph (4) must be published in such manner as OFCOM consider appropriate for bringing it to the attention (to the extent that they consider appropriate) of members of the public.

Reference not to affect legal proceedings or OFCOM’s powers

18

(1) A reference under paragraph 13 of a dispute does not prevent any person from bringing or continuing any civil or criminal proceedings in or before a court with respect to any of the matters under dispute.

(2) Sub-paragraph (1) is subject to—

(a) paragraph 15(4) (determination binding on all parties), and

(b) any agreement to the contrary.

(3) Any reference of a dispute to OFCOM, or consideration or determination by OFCOM of a dispute, does not prevent OFCOM from exercising any of their powers (or from doing anything in connection with the exercise of any of their powers) in relation to the subject-matter of the dispute.

Information

19

(1) This paragraph applies where a dispute has been referred under paragraph 13 to OFCOM.

(2) OFCOM may require a person to provide them with specified information, in the specified manner and within the specified period.

(3) The information that may be specified is information required by OFCOM for the purpose of—

(a) deciding whether it is appropriate for them to handle the dispute, or

(b) considering the dispute and making a determination under paragraph 15.

(4) The specified period must be reasonable.

(5) In fixing that period, OFCOM must have regard, in particular, to—

(a) the information that is required,

(b) the nature of the dispute, and

(6) Part 2 of Schedule 8 (information: enforcement) applies in relation to a requirement imposed under this paragraph as if—

(a) the requirement were imposed under paragraph 1 of that Schedule, and

(b) sub-paragraphs (4) and (5) of paragraph 5 of that Schedule were omitted.

SCHEDULE 4

Fixing of charges

1

(1) If, at any time in a charging year, a postal operator provides a service within the scope of the universal postal service, the operator must, in respect of the service, pay to OFCOM the administrative charge (if any) that is fixed by OFCOM as applicable to the operator.

(2) OFCOM may fix the administrative charge for a charging year only if—

(a) at the time the charge is fixed there is in force a statement by OFCOM of the principles that they are proposing to apply in fixing charges under this paragraph for that year, and

(b) the charge is fixed in accordance with those principles.

(3) Those principles must be such as appear to OFCOM to be likely to secure, on the basis of such estimates of the likely costs as it is practicable for them to make, that—

(a) on a year-by-year basis the total amount of the charges payable to OFCOM is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out their postal services functions,

(b) the cost of carrying out those functions is met by the imposition of charges that are objectively justifiable and proportionate to the matters in respect of which they are imposed, and

(c) the relationship between meeting the cost of carrying out those functions and the amounts of the charges is transparent.

(4) OFCOM's power to fix charges for a particular case includes—

(a) power to provide that the charges are to be equal to the amounts produced by a computation made in the manner, and by reference to the factors, specified by them,

(b) power to provide for different charges to be imposed on different descriptions of persons,

(5) As soon as reasonably practicable after the end of each charging year, OFCOM must publish a statement (a “financial statement”) setting out for that year—

(a) the total amount of the charges for that year that they have received,

(b) the total amount of the charges for that year that remain outstanding but are likely to be paid or recovered, and

(6) Any deficit or surplus shown (after applying this sub-paragraph for previous years) by a financial statement is to be carried forward and taken into account in determining what is required to satisfy the requirement imposed by virtue of sub-paragraph (3)(a) in relation to the following year.

(7) For the purposes of this paragraph “charging year” means—

(a) the period beginning with the commencement of this Schedule and ending with the next 31 March, or

(b) any subsequent period of 12 months beginning with 1 April.

Meaning of OFCOM’s postal services functions

2

(1) For the purposes of paragraph 1 OFCOM's postal services functions are—

(a) functions that OFCOM carry out under, or in consequence of, any enactment relating to postal services (including one contained in this Schedule),

(b) securing international co-operation in relation to the regulation of postal services,

(d) the carrying out for a relevant purpose of any research by OFCOM or the Consumer Panel into any of the matters mentioned in section 14(6A)(b) to (e) of the Communications Act 2003 (as inserted by Schedule 12 to this Act),

(e) the publication under section 26 of that Act of any information or advice that appears to OFCOM to be appropriate to make available to users of postal services, and

(f) any incidental functions carried out in relation to any of the above functions.

(2) In sub-paragraph (1)(d) “a relevant purpose” means the purpose of ascertaining the effectiveness of one or more of the following—

(a) the regulation of the provision of postal services,

(b) the mechanisms in place for the handling by postal operators of complaints made about them by the users of postal services, and

(3) In sub-paragraph (1)(f) the reference to incidental functions carried out in relation to any of the functions within sub-paragraph (1)(a) to (e) includes the taking of any steps that OFCOM consider necessary—

(a) in preparation for the carrying out of any of those functions, or

(b) for the purpose of facilitating the carrying out of those functions or otherwise in connection with carrying them out.

(4) In sub-paragraph (3) the reference to the taking of any steps includes the taking of any steps before the commencement of this Schedule.

Procedure for fixing of charges

3

(1) The way in which a charge is to be fixed under paragraph 1 is by the publication or giving of such notification as OFCOM consider appropriate for bringing the charge to the attention of the persons who, in their opinion, are likely to be affected by it.

(2) OFCOM may set out in that notification the time at which the charge is to become due to them.

(3) A charge fixed under paragraph 1 for a charging year may be fixed in terms providing for a deduction from the charge on a proportionate basis to be made for a part of the year during which the service in respect of which it is fixed is not provided by the person otherwise liable to the charge.

(4) A charge fixed under paragraph 1 for a charging year may also be fixed so that (subject to sub-paragraph (5)) it is referable, in whole or in part, to the provision of a service during a part of the year falling before the fixing of the charge.

(5) A charge may be fixed so as to be referable to a time before it is fixed to the extent only that both—

(a) the imposition of the charge, and

(b) the amount of the charge,

are required by, and consistent with, the statement of charging principles in force at the beginning of the charging year.

(6) Before making or revising a statement of charging principles, OFCOM must consult such of the persons who, in OFCOM's opinion, are likely to be affected by those principles as they think fit.

(7) The way in which a statement of charging principles must be made or may be revised is by the publication of the statement or revised statement in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

Notification of non-payment of charges

4

(1) OFCOM may bring proceedings for the recovery from a person of an administrative charge fixed for a year under paragraph 1 only if they have given that person a notification under this paragraph with respect to the amount they are seeking to recover.

(2) OFCOM may give a person a notification under this paragraph if they determine that there are reasonable grounds for believing that the person is in contravention of a requirement to pay the charge (whether the whole or part of it).

(3) A notification under this paragraph must set out the determination made by OFCOM.

(4) 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, and

(b) to pay the unpaid charge or (if applicable) the amount outstanding.

(5) The specified period must be at least one month beginning with the day after the day the notification is given unless—

(a) OFCOM and the person notified agree a shorter period, or

(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.

(6) 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 a requirement to pay an administrative charge, and

(b) the subsequent notification is given no more than 12 months after the day on which OFCOM determine for the purposes of paragraph 6(2) that the contravention to which the previous notification related did occur.

(7) OFCOM may (on one or more occasions) extend the specified period.

5

(1) A notification under paragraph 4—

(a) may be given in respect of contraventions of more than one requirement to pay an administrative charge, 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 continued.

(2) If a notification under paragraph 4 has been given to a person in respect of an amount outstanding, OFCOM may give a further notification in respect of the whole or a part of that amount only if—

(a) the subsequent notification is in respect of so much of a period during which that amount was outstanding as falls after a period to which the earlier notification relates, or

(b) the earlier notification has been withdrawn without a penalty having been imposed in respect of the matters notified.

Penalties for non-payment of charges

6

(1) This paragraph applies if—

(a) a person has been given a notification under paragraph 4,

(b) OFCOM have allowed the person an opportunity of making representations about the notified determination, and

(2) OFCOM may impose a penalty on the person if the person—

(a) has, in one or more of the respects notified, been in contravention of a requirement to pay an administrative charge fixed under paragraph 1, and

(b) has not, during the period allowed under paragraph 4, paid the whole of the notified amount outstanding.

(3) If a notification under paragraph 4 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.

(4) If a notification under that paragraph relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification.

(5) The amount of a penalty imposed under this paragraph is to be such amount as OFCOM determine to be—

(a) appropriate, and

(b) proportionate to the contravention in respect of which it is imposed.

(6) The amount must not be more than twice the amount of the charge fixed for the year in relation to which the contravention occurred.

(7) In making the determination of the amount of the penalty OFCOM must have regard to—

(a) any representations made to them by the person, and

(b) any steps taken by the person towards paying the amounts that the person was notified under paragraph 4 were outstanding.

(8) If OFCOM impose a penalty on a person under this paragraph, they must—

(a) within one week of making their decision to impose the penalty, notify that person of that decision and of their reasons for it, and

(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

(9) A penalty imposed under this paragraph—

(a) must be paid to OFCOM, and

(b) if not paid within the period fixed by them, is to be recoverable by them accordingly.

(10) This paragraph does not affect OFCOM's power to bring proceedings (whether before or after the imposition of a penalty under this paragraph) for the recovery of the whole or part of an amount due to them under paragraph 1.

Suspending service provision for non-payment

7

(1) OFCOM may give a direction under this paragraph to any postal operator who is providing one or more postal services (“the contravening operator”).

(2) A direction under this paragraph is a direction that the entitlement of the contravening operator to provide postal services—

(a) is suspended (either generally or in relation to particular services), or

(b) is restricted in the respects set out in the direction.

(3) OFCOM may give a direction under this paragraph only if they are satisfied that conditions A to D are met.

(4) Condition A is that the contravening operator is or has been in serious and repeated contravention of requirements to pay administrative charges fixed under paragraph 1 (whether in respect of the whole or a part of the charges).

(5) Condition B is that the bringing of proceedings for the recovery of the amounts outstanding—

(a) has failed to secure complete compliance by the contravening operator with the requirements to pay the charges, or

(b) has no reasonable prospect of securing such compliance.

(6) Condition C is that an attempt, by the imposition of penalties under paragraph 6, to secure such compliance has failed.

(7) Condition D is that the giving of the direction is—

(a) appropriate, and

(b) proportionate to the seriousness (when repeated as they have been) of the contraventions.

8

(1) Unless it provides otherwise, a direction under paragraph 7 takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

(2) A direction under paragraph 7—

(a) in providing for the effect of a suspension or restriction to be postponed may provide for it to take effect only at a time determined by or in accordance with the terms of the direction, and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening operator as appear to OFCOM to be appropriate for the purpose of protecting the users of that operator's services.

(3) Those conditions may include a condition requiring the making of payments—

(a) by way of compensation for loss or damage suffered by those users as a result of the direction, or

(b) in respect of annoyance, inconvenience or anxiety to which those users have been put in consequence of the direction.

(4) OFCOM are not to give a direction under paragraph 7 unless they have—

(a) notified the contravening operator of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction,

(b) provided the contravening operator with an opportunity of making representations about the proposals and of proposing steps for remedying the situation, and

(c) considered every representation and proposal made to them during the period allowed by them for the contravening operator to take advantage of that opportunity.

(5) That period must be at least one month beginning with the day after the day the notification is given.

(6) OFCOM may revoke a direction under paragraph 7 or modify its conditions—

(a) with effect from such time as they may direct,

(b) subject to compliance with such requirements as they may specify, and

(7) For the purposes of paragraph 7 there are repeated contraventions by a person of requirements to pay administrative charges to the extent that—

(a) in the case of a previous notification given to that person under paragraph 4, OFCOM have determined for the purposes of paragraph 6(2) that a contravention did occur, and

(b) in the period of 12 months following the day of the making of that determination, one or more further notifications have been given to that person in respect of the same or different failures to pay administrative charges.

Enforcement of directions under paragraph 7

9

(1) A person commits an offence if the person provides any service—

(a) while the person's entitlement to do so is suspended by a direction under paragraph 7, or

(b) in contravention of a restriction contained in a direction under that paragraph.

(2) A person guilty of an offence under sub-paragraph (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, and

(b) on conviction on indictment, to a fine.

(3) The duty of a person to comply with a condition of a direction under paragraph 7 is to be a duty owed to every person who may be affected by a contravention of the condition.

(4) Sub-paragraphs (5) and (6) apply where a duty is owed by virtue of sub-paragraph (3) to a person.

(5) A breach of the duty that causes that person to sustain loss or damage is actionable at the suit or instance of that person.

(6) An act which—

(a) by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and

(b) is done wholly or partly for achieving that result,

is actionable at the suit or instance of that person.

(7) In proceedings brought against a person as a result of sub-paragraph (5) it is a defence for that person to show that the person took—

(a) all reasonable steps, and

(b) exercised all due diligence,

to avoid contravening the condition in question.

SCHEDULE 5

Approval of redress schemes

1

(1) In deciding whether to approve a redress scheme, OFCOM must have regard to—

(a) the provisions of the scheme,

(b) the manner in which the scheme will be operated (so far as that can be judged from the facts known to OFCOM),

(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—

(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—

(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

(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—

(a) providing an apology or explanation,

(b) paying compensation, and

(6) The matters are—

(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),

(d) the acceptance and handling of complaints transferred from redress schemes which have their approval withdrawn under paragraph 2, and

(e) the provision of information by the independent adjudicator to the persons within sub-paragraph (7).....

(7) The persons are—

(a) OFCOM,

(b) persons carrying out functions under other redress schemes that apply to postal operators,

(d) the Secretary of State,

(e) Citizens Advice,

(f) Citizens Advice Scotland,

(fa) Consumer Scotland, and

(g) the General Consumer Council for Northern Ireland.

(8) In this paragraph “the independent adjudicator” means the person mentioned in section 52(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 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.

(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

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

(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 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 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.

SCHEDULE 6

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—

(a) is objectively justifiable,

(b) does not discriminate unduly against particular persons or a particular description of persons,

(d) is transparent in relation to what it is intended to achieve.

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 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 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 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 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 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.

(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.

(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,

(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.

(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 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 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 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, 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.

(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,

(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,

(b) identifying the person whose proposal it is,

(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

(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 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 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 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 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 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.

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 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In this paragraph “the relevant person”, in relation to a notification, direction, approval or consent—

(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 effect to a proposal published by OFCOM under paragraph 4, means OFCOM.

SCHEDULE 7

Introduction

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

(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 Act 2007 (enforcement of requirements to give information to the Citizens Advice etc).

(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 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.

(2) A notification under this paragraph must—

(a) set out the determination made by OFCOM, and

(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,

(b) to comply with notified requirements of which the person remains in contravention, and

(4) The specified period must be at least one month beginning with the day after the day the notification is given unless—

(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

(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 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.

(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 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—

(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 been imposed in respect of the notified contravention.

4

(1) Before giving a notification under paragraph 2, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998.

(2) OFCOM must not give a notification under paragraph 2 if they consider that it would be more appropriate to proceed under the Competition Act 1998.

(3) In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.

Enforcement notification for contravention of regulatory requirements

5

(1) This paragraph applies if—

(a) a person has been given a notification under paragraph 2,

(b) OFCOM have allowed the person an opportunity of making representations about the matters notified, and

(2) OFCOM may give the person an enforcement notification if they are satisfied that the person—

(a) has, in one or more of the respects notified, been in contravention of a requirement specified in the notification under paragraph 2, and

(b) has not, during the period allowed under that paragraph, taken all such steps as they consider appropriate—

(i) for complying with that requirement, and

(ii) for remedying the consequences of the notified contravention of that requirement.

(3) An enforcement notification is a notification which imposes one or both of the following requirements on the person—

(a) a requirement to take such steps for complying with the notified regulatory requirement as may be specified in the notification,

(b) a requirement to take such steps for remedying the consequences of the notified contravention as may be so specified.

(4) A decision of OFCOM to give an enforcement notification to a person—

(a) must be notified by them to that person, together with their reasons for the decision, no later than one week after the day on which it is taken, and

(b) must fix a reasonable period for the taking of the steps required by the notification.

(5) A person to whom an enforcement notification has been given has a duty to comply with it.

(6) That duty is enforceable in civil proceedings by OFCOM—

(a) for an injunction,

(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or

Penalties for contravention of regulatory requirements

6

(1) This paragraph applies (in addition to paragraph 5) if—

(a) a person has been given a notification under paragraph 2,

(b) OFCOM have allowed the person an opportunity of making representations about the matters notified, and

(2) OFCOM may impose a penalty on a person if the person has, in one or more of the respects notified, been in contravention of a requirement specified in the notification under paragraph 2.

(3) If a notification under paragraph 2 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.

(4) If a notification under that paragraph relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification.

(5) OFCOM may also impose a penalty on a person if the person is contravening, or has contravened, a requirement of an enforcement notification given under paragraph 5.

(6) If OFCOM impose a penalty on a person under this paragraph, they must—

(a) within one week of making their decision to impose the penalty, notify that person of that decision and of their reasons for it, and

(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

(7) A penalty imposed under this paragraph—

(a) must be paid to OFCOM, and

(b) if not paid within the period fixed by them, is to be recoverable by them accordingly.

7

(1) The amount of a penalty imposed under paragraph 6 on a person is to be such amount as OFCOM determine to be—

(a) appropriate, and

(b) proportionate to the contravention in respect of which it is imposed.

(2) The amount must not be more than 10% of the turnover of the person's postal services business for the relevant period, calculated in accordance with such rules as may be set out by order made by the Secretary of State.

(3) For the purposes of this paragraph—

“the person's postal services business” means so much of any business carried on by the person as consists in the provision of postal services, and

“the relevant period” means—except in a case within paragraph (b) or (c), the period of one year ending with the 31 March next before the time when notification of the contravention was given under paragraph 2,in the case of a person who at that time has been carrying on postal services business for under a year, the period, ending with that time, during which the person has been carrying it on, andin the case of a person who at that time has ceased to carry on postal services business, the period of one year ending with the time when the person ceased to carry it on.

(4) In making the determination of the amount of the penalty OFCOM must have regard to—

(a) any representations made to them by the person,

(b) any steps taken by the person towards complying with the requirements contraventions of which have been notified to the person under paragraph 2, and

(5) An order under this paragraph is subject to affirmative resolution procedure.

Power to deal with urgent cases

8

(1) This paragraph applies if OFCOM determine—

(a) that they are entitled to give a notification under paragraph 2 with respect to a contravention by a person (“the contravening person”) of a regulatory requirement,

(b) that there are reasonable grounds for suspecting that the case is urgent, and

(2) A case is urgent for the purposes of this paragraph if the contravention has resulted in or creates an immediate risk of—

(a) a serious threat to the safety of the public, to public health or to national security,

(b) serious economic or operational problems for persons providing postal services (other than the contravening person), or

(3) OFCOM may, in a notification under paragraph 2 with respect to the contravention, specify a period of less than one month for doing the things mentioned in sub-paragraph (3) of that paragraph.

(4) OFCOM may also give to the contravening person a direction that the entitlement of the contravening person to provide postal services—

(a) is suspended (either generally or in relation to particular services), or

(b) is restricted in the respects set out in the direction.

9

(1) Unless it provides otherwise, a direction under paragraph 8 takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

(2) A direction under paragraph 8—

(a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction, and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening person as appear to OFCOM to be appropriate for the purpose of protecting the users of that person's services.

(3) Those conditions may include a condition requiring the making of payments—

(a) by way of compensation for loss or damage suffered by those users as a result of the direction, or

(b) in respect of annoyance, inconvenience or anxiety to which those users have been put in consequence of the direction.

(4) OFCOM may revoke a direction under this paragraph or modify its conditions—

(a) with effect from such time as they may direct,

(b) subject to compliance with such requirements as they may specify, and

10

(1) As soon as reasonably practicable after giving a direction under paragraph 8 to a person, OFCOM must give the person—

(a) an opportunity of making representations to them about the grounds on which it was given, and

(b) an opportunity of proposing steps to remedy the situation.

(2) As soon as reasonably practicable after the period allowed by OFCOM for making those representations has ended, OFCOM must determine—

(a) whether the contravention did occur, and

(b) whether the circumstances made it an urgent case justifying the giving of the direction.

(3) If they decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(4) If not, they must revoke the direction or modify its conditions.

(5) As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify their decision to the person to whom the direction was given.

(6) Conditions included in a direction as a result of paragraph 9(3) have effect only if the direction is confirmed.

Suspending service provision for contravention of regulatory requirements

11

(1) OFCOM may give a direction under this paragraph to any person who is providing one or more postal services (“the contravening person”).

(2) A direction under this paragraph is a direction that the entitlement of the contravening person to provide postal services—

(a) is suspended (either generally or in relation to particular services), or

(b) is restricted in the respects set out in the direction.

(3) OFCOM may give a direction under this paragraph only if they are satisfied that conditions A to C are met.

(4) Condition A is that the contravening person is or has been in serious and repeated contravention of regulatory requirements.

(5) Condition B is that an attempt, by the giving of enforcement notifications under paragraph 5 or the imposition of penalties under paragraph 6 (or both), to secure compliance with the contravened requirements has failed.

(6) Condition C is that the giving of the direction is—

(a) appropriate, and

(b) proportionate to the seriousness (when repeated as they have been) of the contraventions.

12

(1) Unless it provides otherwise, a direction under paragraph 11 takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

(2) A direction under paragraph 11—

(a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction, and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening person as appear to OFCOM to be appropriate for the purpose of protecting the users of that person's services.

(3) Those conditions may include a condition requiring the making of payments—

(a) by way of compensation for loss or damage suffered by those users as a result of the direction, or

(b) in respect of annoyance, inconvenience or anxiety to which those users have been put in consequence of the direction.

(4) OFCOM may revoke a direction under this paragraph or modify its conditions—

(a) with effect from such time as they may direct,

(b) subject to compliance with such requirements as they may specify, and

(5) For the purposes of paragraph 11 there are repeated contraventions by a person of regulatory requirements to the extent that—

(a) in the case of a previous notification given to that person under paragraph 2, OFCOM have determined for the purposes of paragraph 5(2) or 6(2) that a contravention did occur,

(b) in the period of 12 months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of a regulatory requirement, and

(c) the previous notification and the subsequent ones all relate to contraventions of the same regulatory requirement (whether the same contravention or different ones).

13

(1) OFCOM are not to give a direction under paragraph 11 unless they have—

(a) notified the contravening person of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction,

(b) provided the contravening person with an opportunity of making representations about the proposals and of proposing steps for remedying the situation, and

(c) considered every representation and proposal made to them during the period allowed by them for the contravening person to take advantage of that opportunity.

(2) That period must be at least one month beginning with the day after the day the notification is given.

(3) This paragraph does not apply in an urgent case (as to which, see paragraph 14).

14

(1) In an urgent case, OFCOM must, as soon as reasonably practicable after giving a direction under paragraph 11, give the contravening person—

(a) an opportunity of making representations to them about the effect of the direction and of any of its conditions, and

(b) an opportunity of proposing steps to remedy the situation.

(2) A case is urgent for the purposes of this paragraph if OFCOM—

(a) consider that it would be inappropriate, because the contraventions in question fall within sub-paragraph (3), to allow time, before giving the direction, for the making and consideration of representations, and

(b) decide for that reason to act in accordance with this paragraph instead of paragraph 13.

(3) The contraventions fall within this sub-paragraph if they have resulted in or create an immediate risk of—

(a) a serious threat to the safety of the public, to public health or to national security,

(b) serious economic or operational problems for persons providing postal services (other than the contravening person), or

Enforcement of directions under paragraph 8 or 11

15

(1) A person commits an offence if the person provides any service—

(a) while the person's entitlement to do so is suspended by a direction under paragraph 8 or 11, or

(b) in contravention of a restriction contained in a direction under either of those paragraphs.

(2) A person guilty of an offence under sub-paragraph (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, and

(b) on conviction on indictment, to a fine.

Civil liability for breach of regulatory requirements etc.

16

(1) The duty of a person to comply with—

(a) regulatory requirements,

(b) requirements imposed by an enforcement notification under paragraph 5, or

is a duty owed to every person who may be affected by a contravention of the requirement or condition.

(2) Sub-paragraphs (3) and (4) apply where a duty is owed by virtue of sub-paragraph (1) to a person.

(3) A breach of the duty that causes that person to sustain loss or damage is actionable at the suit or instance of that person.

(4) An act which—

(a) by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and

(b) is done wholly or partly for achieving that result,

is actionable at the suit or instance of that person.

(5) In proceedings brought against a person as a result of sub-paragraph (3) it is a defence for that person to show that the person took—

(a) all reasonable steps, and

(b) exercised all due diligence,

to avoid contravening the requirement or condition in question.

(6) The consent of OFCOM is required for the bringing of proceedings as a result of sub-paragraph (1)(a).

(7) If OFCOM give their consent subject to conditions relating to the conduct of the proceedings, the proceedings are not to be carried on except in compliance with those conditions.

SCHEDULE 8

Part 1 — Requirements to provide information to OFCOM

Information required for purposes of OFCOM’s functions in relation to postal services

1

(1) OFCOM may require a person falling within sub-paragraph (2) to provide them with all such information as they consider necessary for the purpose of carrying out any of their functions in relation to postal services.

(2) The persons within this sub-paragraph are—

(a) a person who is, or has been, a postal operator,

(b) a person who provides, or has provided, access points or other facilities for use in connection with a postal service, and

(c) a person not falling within paragraph (a) or (b) who appears to OFCOM to have information required by them for the purpose of carrying out any of their functions in relation to postal services.

(3) The required information may, in particular, include information required for any one or more of the following purposes—

(a) ascertaining whether a contravention of a regulatory requirement (within the meaning of Schedule 7) has occurred or is occurring,

(b) ascertaining whether a provision of a regulatory condition which is for the time being in force continues to be effective for the purpose for which it was made,

(d) carrying out a review under section 35 or 44,

(e) ascertaining or verifying amounts payable by virtue of section 46,

(f) ascertaining or verifying charges payable under Schedule 4,

(g) identifying markets and carrying out market analyses or assessments in accordance with, or for the purposes of, any enactment relating to postal services, ... and

(h) statistical purposes connected with the carrying out of any of OFCOM's functions in relation to postal services ... .

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) A demand for information under this paragraph must be proportionate to the use to which the information is to be put in the carrying out of OFCOM's functions.

Restrictions on imposing requirements in case of conditions of general application

2

(1) This paragraph limits the circumstances in which OFCOM may require the provision of information under paragraph 1 for the purpose of ascertaining whether there is, or has been, a contravention of a condition of general application.

(2) OFCOM may require the provision of information for that purpose only if—

(a) the requirement is imposed for the purpose of investigating a matter about which OFCOM have received a complaint,

(b) the requirement is imposed for the purposes of an investigation that OFCOM have decided to carry out into whether or not the condition in question has been complied with,

(c) the condition in question is one which OFCOM have reason to suspect is one that has been, or is being, contravened, or

(d) the condition in question falls within section 42(2)(b).

(3) A “condition of general application” means a regulatory condition other than a designated USP condition, a USP access condition or a USP accounting condition.

3

(1) OFCOM may require—

(a) a postal operator, or

(b) a person who provides access points or other facilities for use in connection with a postal service,

to provide OFCOM with all such information as they consider necessary to carry out comparative overviews of the quality and prices of postal services.

(2) The overviews in question must be carried out—

(a) with a view to publication, and

(b) in the interest of users of postal services.

(3) OFCOM may also require—

(a) a postal operator, or

(b) a person who provides access points or other facilities for use in connection with a postal service,

to provide OFCOM, for use for such statistical purposes as they think fit, with information relating to the provision of postal services.

(4) A demand for information under this paragraph must be proportionate to the use to which the information is to be put in the carrying out of OFCOM's functions.

Manner in which information may be required

4

(1) A person required to provide information under paragraph 1 or 3 must provide it in such manner and within such reasonable period as may be specified by OFCOM.

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) OFCOM must require the provision of information under paragraph 1 or 3 by a demand which—

(a) describes the required information, and

(b) sets out OFCOM's reasons for requiring it.

(3) The reasons for requiring information for statistical purposes under paragraph 1 or 3 must set out the statistical purposes for which the information is required.

(4) A demand for information under paragraph 1 or 3 must be contained in a notice served on the person from whom the information is required.

(5) This is subject to an exception in the case of information required by OFCOM for the purpose of ascertaining who is liable to charges under Schedule 4.

(6) In that case, the demand—

(a) may be made by being published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons described in the demand as the persons from whom the information is required, and

(b) may take the form of a general demand for a person so described to provide information when specified conditions relevant to the person's liability to the charges are satisfied.

Part 2 — Enforcement

Notification of contravention of information requirements

5

(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) a requirement imposed under paragraph 1 or 3, or

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A notification under this paragraph must—

(a) set out the determination made by OFCOM, and

(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 matters notified, and

(b) to comply with notified requirements of which the person remains in contravention.

(4) The specified period must be at least one month beginning with the day after the day the notification is given unless—

(a) OFCOM and the person notified agree a shorter period, or

(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.

(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 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 7(2) that the contravention to which the previous notification related did occur.

(6) OFCOM may (on one or more occasions) extend the specified period.

6

(1) A notification under paragraph 5—

(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 continued.

(2) If a notification under paragraph 5 has been given to a person in respect of a contravention of a requirement, OFCOM may give a further notification in respect of the same contravention of that requirement only if—

(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 been imposed in respect of the notified contravention.

Penalties for contravention of information requirements

7

(1) This paragraph applies if—

(a) a person has been given a notification under paragraph 5,

(b) OFCOM have allowed the person an opportunity of making representations about the matters notified, and

(2) OFCOM may impose a penalty on a person if—

(a) they are satisfied that the person has, in one or more of the respects notified, been in contravention of a requirement specified in the notification under paragraph 5,

(b) the person has not, during the period allowed under that paragraph, complied with the notified requirement, and

(c) no proceedings for an offence under paragraph 13 have been brought against the notified person in respect of the contravention.

(3) If a notification under paragraph 5 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.

(4) If a notification under that paragraph relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification.

(5) The amount of a penalty imposed under this paragraph is to be such amount as OFCOM determine to be—

(a) appropriate, and

(b) proportionate to the contravention in respect of which it is imposed.

(6) The amount must not be more than £50,000.

(7) In making the determination of the amount of the penalty OFCOM must have regard to—

(a) any representations made to them by the person, and

(b) any steps taken by the person towards complying with the requirements contraventions of which have been notified to the person under paragraph 5.

(8) If OFCOM impose a penalty on a person under this paragraph, they must—

(a) within one week of making their decision to impose the penalty, notify that person of that decision and of their reasons for it, and

(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

(9) A penalty imposed under this paragraph—

(a) must be paid to OFCOM, and

(b) if not paid within the period fixed by them, is to be recoverable by them accordingly.

(10) The Secretary of State may by order substitute a different maximum penalty for the maximum penalty for the time being specified in sub-paragraph (6).

(11) An order under sub-paragraph (10) is subject to affirmative resolution procedure.

Suspending service provision for contravention of information requirements

8

(1) OFCOM may give a direction under this paragraph to any person who is providing one or more postal services (“the contravening person”).

(2) A direction under this paragraph is a direction that the entitlement of the contravening person to provide postal services—

(a) is suspended (either generally or in relation to particular services), or

(b) is restricted in the respects set out in the direction.

(3) OFCOM may give a direction under this paragraph only if they are satisfied that conditions A to C are met.

(4) Condition A is that the contravening person is or has been in serious and repeated contravention of requirements imposed under paragraph 1 or 3 ....

(5) Condition B is that an attempt, by the imposition of penalties under paragraph 7 or the bringing of proceedings under paragraph 13, to secure compliance with the contravened requirements has failed.

(6) Condition C is that the giving of the direction is—

(a) appropriate, and

(b) proportionate to the seriousness (when repeated as they have been) of the contraventions.

9

(1) Unless it provides otherwise, a direction under paragraph 8 takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

(2) A direction under paragraph 8—

(a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction, and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening person as appear to OFCOM to be appropriate for the purpose of protecting the users of that operator's services.

(3) Those conditions may include a condition requiring the making of payments—

(a) by way of compensation for loss or damage suffered by those users as a result of the direction, or

(b) in respect of annoyance, inconvenience or anxiety to which those users have been put in consequence of the direction.

(4) OFCOM may revoke a direction under paragraph 8 or modify its conditions—

(a) with effect from such time as they may direct,

(b) subject to compliance with such requirements as they may specify, and

(5) For the purposes of paragraph 8 there are repeated contraventions by a person of requirements imposed under paragraph 1 or 3 to the extent that—

(a) in the case of a previous notification given to that person under paragraph 5, OFCOM have determined for the purposes of paragraph 7(2) that a contravention did occur, and

(b) in the period of 12 months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of a requirement imposed under paragraph 1 or 3.

(6) For the purposes of sub-paragraph (5) it does not matter whether the notifications relate to the same contravention or to different contraventions of the same or different requirements or of requirements under different paragraphs.

10

(1) OFCOM are not to give a direction under paragraph 8 unless they have—

(a) notified the contravening person of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction,

(b) provided the contravening person with an opportunity of making representations about the proposals and of proposing steps for remedying the situation, and

(c) considered every representation and proposal made to them during the period allowed by them for the contravening person to take advantage of that opportunity.

(2) That period must be at least one month beginning with the day after the day the notification is given.

(3) This paragraph does not apply in an urgent case (as to which, see paragraph 11).

11

(1) In an urgent case, OFCOM must, as soon as reasonably practicable after giving a direction under paragraph 8, give the contravening person—

(a) an opportunity of making representations to them about the effect of the direction and of any of its conditions, and

(b) an opportunity of proposing steps to remedy the situation.

(2) A case is urgent for the purposes of this paragraph if OFCOM—

(a) consider that it would be inappropriate, because the contraventions in question fall within sub-paragraph (3), to allow time, before giving the direction, for the making and consideration of representations, and

(b) decide for that reason to act in accordance with this paragraph instead of paragraph 10.

(3) The contraventions fall within this sub-paragraph if they have resulted in or create an immediate risk of—

(a) a serious threat to the safety of the public, to public health or to national security,

(b) serious economic or operational problems for persons providing postal services (other than the contravening person), or

Enforcement of directions under paragraph 8

12

(1) A person commits an offence if the person provides any service—

(a) while the person's entitlement to do so is suspended by a direction under paragraph 8, or

(b) in contravention of a restriction contained in a direction under that paragraph.

(2) A person guilty of an offence under sub-paragraph (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, and

(b) on conviction on indictment, to a fine.

Offences in connection with information requirements

13

(1) A person who fails to provide information in accordance with a requirement imposed under paragraph 1 or 3 commits an offence.

(2) A person guilty of an offence under sub-paragraph (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, and

(b) on conviction on indictment, to a fine.

(3) A person does not commit an offence under sub-paragraph (1) if—

(a) it was not reasonably practicable to comply with the requirement within the period specified by OFCOM, and

(b) the person has taken all reasonable steps to provide the information after the end of that period.

(4) A person commits an offence if—

(a) in pursuance of a requirement under paragraph 1 or 3, the person provides any information that is false in any material particular, and

(b) at the time the information is provided, the person knows it to be false or is reckless as to whether or not it is false.

(5) A person guilty of an offence under sub-paragraph (4) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, and

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both.

(6) Proceedings for an offence under sub-paragraph (1) may be brought in respect of a contravention by a person of a requirement imposed under paragraph 1 or 3 only if—

(a) OFCOM have given the person a notification under paragraph 5 in respect of the contravention,

(b) the period allowed under that paragraph for doing the things mentioned in sub-paragraph (3) of that paragraph has ended without the required information having been provided, and

Part 3 — Supplementary provisions

Statement of policy on information gathering

14

(1) OFCOM must prepare and publish a statement of their general policy with respect to—

(a) the exercise of their powers under paragraph 1 or 3, and

(b) the uses to which they are proposing to put information obtained under those paragraphs.

(2) OFCOM may from time to time revise the statement.

(3) Where OFCOM make or revise a statement under this paragraph, they must publish the statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(4) In exercising the powers conferred by this Schedule, OFCOM must have regard to the statement for the time being in force under this paragraph.

Provision of information by OFCOM

15

(1) OFCOM must comply with a request made by a person—

(a) to notify the person whether or not a notification is required to be submitted by the person under regulations made under section 48,

(b) to notify the person whether a notification submitted for the purposes of those regulations satisfies the requirements of those regulations, or

(c) to provide the person with such information about the person's rights as may be necessary for the purpose of facilitating the negotiation by the person of any right to be provided with access pursuant to an access condition.

(2) A request for the purposes of this paragraph must be made in such manner as OFCOM may require.

(3) OFCOM do not have to comply with a request under this paragraph if (without having been asked to do so) they have already given the person the notification or information for which the person is asking.

(4) Any notification or information which under sub-paragraph (1) must be given or provided by OFCOM must be given or provided before the end of the period of one week beginning with the day on which the request was made to them.

SCHEDULE 9

Introduction

1

In this Schedule—

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