During the drought earlier this year, the National Water Commission needed to be a responsible steward of the precious resource. Like never before, customers who did not pay their water bills on time experienced an unscheduled water disruption. But what is the law in relation to customers who consistently do not receive bills? Can the Commission lawfully disconnect for an unpaid, albeit undelivered water bill?

Under the National Water Commission Act, the NWC has the power to lock off the water supply to any premises for non-payment of water rates. The law stipulates that the water rates must be "payable" under the NWC Act, or any other law in relation to water supply services. The general rule in law is that a bill is due and payable either on presentation of the bill, or within such period after presentation as agreed by the parties. This general rule may be displaced by specific agreement to the contrary. The NWC has sought to do just that through its Conditions of Supply, which includes the following provision: "Bills must be paid monthly on or before the due date specified on the bill. In the event the customer does not receive a bill, the customer is obligated to ascertain the monthly charges from the NWC."

There is clearly good reason why the NWC would wish to have such a condition which puts the burden on the customer to make inquiries. It distributes water to places the mailman will not venture, whether in rain or shine. Of late though, and especially since the introduction of its now infamous multi-million dollar billing system last year, the NWC has acknowledged that it has had "distribution problems" in relation to customers' bills. NWC's representatives are trained to console aggrieved customers by advising that bill balances (though not copies of the bill) are available on its website. But does that mean that the NWC can lawfully disconnect a customer's water supply in circumstances where they know, or ought to know, that the bill has likely not been 'distributed' to the customer?

Among the Regulations that govern the supply of water services is the following: "The Commission shall, at such intervals not exceeding three months as the Commission may determine, prepare and render to occupiers, bills for rates, charges or fees in respect of water supply services, and the occupier shall pay such bills not later than fourteen days after such date as may be specified in the bills."

On the face of it, it would appear that the Regulation supports the general rule about billing that the customer's responsibility to pay is to follow the preparation and rendering of the bill. There is no consequence stated in law for a failure to substantially adhere to this Regulation. It is interesting that the Regulations only require that a bill be prepared at least once per quarter, but disconnection for unpaid water rates is likely to occur long before 3 months have elapsed. It is also interesting that the Service Standards prescribed by the Office of Utilities Regulation (OUR) state that the NWC is to compensate customers who do not receive their 1st bill which must be delivered within 48 days of connection. In other words, there is no service standard by which NWC guarantees that customers will receive any water bills after the first. The OUR does have general regulatory jurisdiction over all utility providers, however, and may hear complaints and order remedial action to be taken where it sees fit.

The law gives the NWC the right and authority to disconnect the water supply from any occupier for non-payment of any rates, charges or fees. The right appears to be an absolute one, unconnected to the issue of whether the NWC has delivered, or attempted to deliver, the bill the subject of the disconnection.

Any question concerning the NWC's responsibilities when it comes to billing and disconnection must be viewed in the light of the vast powers that the Commission has. Unpaid water rates are a first charge on the land and are payable by the owner of the property, regardless of whose name the account is in or who used the water. The term first charge means that the NWC may have a lien over the property that ranks higher than any non-government lien, including any mortgage, to secure the payment of water rates. This is just one of the reasons that landlords will take security deposits from tenants at the start of a lease and not return the deposit until the water bill covering the period of the last month of the tenancy has arrived. The NWC has the statutory power to sell the property or any goods found on it in order to recover the unpaid water rates plus interest. The applicable rate of interest is determined by the Minister of Water. Whenever the available water supply decreases, as it did earlier this year, the Commission's powers increase. The Commissioner has the power to limit or ban any activity that, in his opinion, may consume too much water. This includes, but is not limited to, the watering of lawns, the filling of swimming pools, the washing of vehicles, and the filling of water tanks with capacities exceeding 200 gallons.

All this raises two very important questions. First, who knew that tanks that small were even manufactured? More importantly, what should a customer do if he or she consistently does not receive a water bill? In respect of the latter question, the practical answer is that the customer ought first to contact a senior customer service manager at the NWC to identify and discuss the distribution issue, if there is one, and try to find a solution, which may include delivery of the bills via fax, email or to a post office box. You should follow up the conversation with a polite letter confirming the discussion and the solutions, if any. It would not be wise to withhold payment until the bill is delivered. Mere payment of the bill is not an acknowledgment that the amount charged is accurate and it does not prevent a customer from querying the accuracy of the bill or receiving an adjustment from the NWC, if appropriate.

Gavin Goffe is an associate in the Litigation Department at Myers, Fletcher & Gordon. Gavin may be contacted at gavin.goffe@mfg.com.jm or through www.myersfletcher.com

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