House of Commons Library 18 October 1999 Dear Mr Davey Flooding from Sewers Guaranteed Standards Water customers are entitled to guaranteed standards of service, laid down by the Government. The Director General of Water Services (the Director) monitors the scheme and recommends changes. The Office of Water Services (Ofwat) publishes details annually about company procedures and payments made under the scheme. (This is outlined in more detail below in the context of other duties). Under the Guaranteed Standards Scheme (GSS), if any waste water from the company’s sewers enters a customer’s building, the customer is entitled to a refund of his/her sewerage charges for the year, up to a maximum of £1,000. Some companies operate compensation schemes which go beyond the GSS. Southern Water, for example, has set the following standard: We will pay you an amount equivalent to your sewerage charge, subject to a maximum of £1,000, each time your home is flooded by a sewer unless severe weather conditions, industrial action, your own actions or a fault in your drainage is to blame. I have not been able to obtain information with regard to Thames water on this subject. They have promised to send information that I will forward when it arrives. Duties of water companies with respect to sewers To establish whether responsibility actually lies with the water company in the first place it is important to be clear on the cause of this flooding. All sewerage undertakers have a statutory responsibility, enforceable by the Secretary of State or the Director General of Water Services, to maintain all public sewers to ensure that they are effectually drained. However, water companies are only responsible for those sewers which they have "adopted". These will mainly include those which they took over from the public Water Authorities in 1989 but the Water Industry Act 1991 gives them the power to adopt sewers and disposal works situated within their area or serving the whole or any part of that area (102 (1) (a)). Generally, water companies only adopt main sewers running underneath the middle of roads; the connecting drains serving individual homes are not adopted and remain the responsibility of householders. Those sewers which have not been adopted are known as private sewers and homeowner’s served by private sewers are liable for their maintenance. In the following sections, I have set out the water companies’ responsibilities in respect of sewers which they have adopted. The Water Industry Act 1991 Section 94, Part IV of the Water Industry Act 1991 (the 1991 Act) deals with sewerage services. The 1991 Act was a consolidating act and therefore contains many provisions included in the Water Act 1989 which brought about privatisation. Section 94 sets out the terms of the water companies’ general duty to provide a sewerage system. Section 95 allows for the Secretary of State to make regulations prescribing standards of performance for the provision of sewerage services and setting out what constitutes a breach of the Section 94 duty. These regulations were originally made under the Water Act 1989 and entitled The Water Supply and Sewerage Services (Customer Service Standards) Regulations 1989. There have been a number of subsequent amendments, under the provisions of the 1991 Act, and the regulations tend to be referred to as The Guaranteed Standards Scheme. The Secretary of State and the Director General of Ofwat ("the Director") can also make Orders to secure compliance by the water companies with their conditions of appointment and statutory requirements. These powers are set out in Sections 18-26 of the 1991 Act. To make use of these clauses, claimants have to prove that the water company has not complied with their conditions of appointment or their statutory duties. In addition, Section 19 allows the Secretary of State and the Director some discretion in making these enforcement orders. For example, they do not have to take action if they think contraventions are of a trivial nature or if they are satisfied that the company is taking appropriate steps to secure compliance. The 1991 Act also requires companies to maintain an efficient and economic system of water supply. Levels of service are monitored by Ofwat and a requirement to provide information on sewer flooding as well as a number of other service targets is included in Condition J of the water companies’ licence conditions. Condition J requires each company to provide the Director General of Ofwat with an annual report setting out performance against seven measures covering: adequacy of water resources; reliability of service; and responses to customers' complaints and queries. In addition, companies are required to publish an annual report detailing their performance against three service targets. These targets cover improvements in water pressure, reductions in interruptions to supply and reductions in the number of properties experiencing sewer flooding. This information is published annually by Ofwat. I have enclosed an extract from Ofwat’s 1997-98 Report on levels of service for the water industry in England and Wales that deals with sewerage flooding. Case law I have enclosed details of two cases that refer to the Water Industry Act 1991 in the context of the maintenance of sewers. These are taken from the legal database Lawtel.
The judgement relating to the first case clarifies the remedies available to claimants seeking to prove a breach of the s.94 statutory duty. The second illustrates that the mere presence of floodwater is insufficient to prove failure to maintain or neglect to repair. Climate Change The effects of climate change are the subject of intense speculation in the scientific community. The impact on the UK varies between predicting a warmer, more tropical climate where there will be warmer weather and increased disease carrying insects and the failure of the gulf stream leading to much colder weather. The Climatic Research Unit at the University of East Anglia provide information and access to models which might begin to point the way climate change will affect the UK. It is difficult to be precise about global changes and the difficulty increases when speaking on a more local scale. One of the accepted facts is that the rainfall pattern will change globally. There is evidence to suggest that the rainfall will not, as with many of the climate change effects, be evenly distributed. Some areas which already receive high rainfall may get more whilst other areas which are already looking at rainfall deficits may get worse. If this change on a macro scale is reflected on a micro scale then increased rainfall in the UK (as predicted under one model) may not mean an extra few days rain but more intense rain over a shorter period. This is presented in the report produced by the Environmental Change Unit at the University of Oxford. I have enclosed the pages of the summary report I feel most relevant to your needs. This would have the potential to cause more floods due to the inability of the local infrastructure to cope with the increased short term demand. The question that remains is whether the potential risks raised by such models are sufficiently solid to warrant the expenditure necessary to upgrade the infrastructure. Environment Agency You asked for details of the Environment Agency case being brought in the courts which may affect the duties of the water companies. I have been in touch with the Agency and am waiting on them getting back in touch. I have enclosed a report on the Agency and flooding which I believe sets out the legal basis of the Agencies involvement with the flooding of sewers. I will forward further relevant material as soon as it is available. I hope this information proves useful to you. Science and Environment
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