Following formal complaints that the time was too short for responding to BW’s consultation on 2011 licence fees and changes to licence terms and conditions, BW has extended the deadline to 31 January. According to its own code of practice on consultations, BW should have allowed 12 weeks for responses, not 6 weeks.
This consultation is important because yet again, BW is proposing more unlawful changes to the licence terms and conditions. It also proposes reducing the time available for claiming the 10% prompt payment discount, effectively changing it to an early payment discount, and reducing the time before the late payment charge is incurred. This increases the likelihood that licence payers will incur the late payment charge of £150 without actually being late paying for their licence, due to BW’s poor administrative practices.
The proposed increase in the licence fee is above inflation, and comes on top of substantial increases in the boat licence fee between 2007 and 2010.
Here is one response to the consultation:
1. Consultation period
BW has not followed its own procedures for direct consultation with stakeholders. BW states that these procedures follow the Government’s Code of Practice on Consultation issued by the Better Regulation Executive in the Department for Business, Enterprise and Regulatory Reform. Section 2.1 of this Code of Practice states that “Under normal circumstances, consultations should last for a minimum of 12 weeks”. Section 2.2 adds that if a consultation takes place over a period when consultees are less likely to respond, such as Christmas, a longer consultation period whould be allowed. This paper was released on November 24 2010 with a deadline for responses of 3 January 2011. The consultation period is below the minimum period in the Code of Practice and the consultation period should be extended to a new deadline of 16 February at the very earliest.
2. Changes to prompt payment discount and late payment charge
The changes to the prompt payment discount and late payment charge periods will not work with BW’s current administrative practices. At present, there is a ‘dead period’ of 15 working days when BW will not talk to its customers until 15 working days after it has received the payment for the licence. Reducing the time in which the standard licence fee is payable to a three week window between the 15th of the previous month and the 7th of the next month will mean that many customers will send the standard payment and miss the deadline for qualifying. They will incur the late payment penalty not because they are late paying but because BW’s administrative practices mean that they will not be able to find out about and rectify a lost payment ( if their cheque is lost in the post for example) until after 15 working days has elapsed, which will bring them into the period for the late payment penalty. This is fundamentally unfair and the changes to both the late payment deadline and the prompt payment discount should not be made while BW’s administrative practices remain as they are now.
3. Proposed changes to licence terms and conditions
C3 2.1 The Licence allows you to use the Boat in any
Waterway including mooring for short periods while
cruising. ‘Short period’ means up to 14 days or less
where a local restriction applies. The Licence does not
permit mooring for any longer period. Daily charges
may be applied for staying longer than the
maximum time allowed.
The change proposed in paragraph C3 is unlawful and should be deleted. ‘Short period’ means a minimum of 14 days, not a maximum of 14 days.
Section 17 3 c of the 1995 British Waterways Act states that “(3) Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless—
(i) the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or
(ii) the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.”
Boats licensed under Section 17 3 c i are therefore not bound by the 14-day time limit for mooring on the towpath. Boats licensed under Section 17 3 c ii are entitled to moor on the towpath in any one place for a minimum of 14 days and are allowed to stay longer if it is reasonable in the circumstances.
Therefore applying daily charges for staying longer than 14 days is unlawful in the case of boats licensed under Section 17 3 c i and ii – in other words, all boats with a BW licence.
C7. 4. BW’s policy for enforcing time limits is to use its
powers under S8(5) of the 1983 BW Act that permits it
to move boats that are causing an obstruction. A boat
is causing an obstruction at a mooring by preventing
other boaters from tying up. If we do need to move the
boat, you agree to repay our costs.
The amendment proposed in paragraph C7 is misleading and wrong in law and should be deleted.
Section 8 (5) of the British Waterways Act 1983 does not empower BW to recover the costs of moving a boat which is causing an obstruction. Section 8 (3) of the 1983 Act allows BW to charge for removal of a boat. If BW is exercising its power to remove boats under Section 8 (5) it cannot take advantage of the power to recover the costs of removal under Section 8(3). See Roderick F H Taylor v BWB, 24 April 2001 where District Judge Davies awarded £200 damages against BW when it attempted to make a charge for moving a boat under Section 8 (5).
Here are BW’s proposals