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Code of Practice

On this page, you can view and search the 15th revision of the Code of Practice which comes into force on 5 April 2022. Please click here to learn more about the Code 15 roll out. If you prefer, you can also download a copy of the Code in PDF format using the buttons below.

5. Engagement and enforcement

5.1.1

The PSA takes a balanced approach to engagement and enforcement. It may decide to deal with a matter through an engagement route, either by means of an enquiry Letter under paragraph 5.2 below and/or by way of a warning letter under paragraph 5.3 below. Alternatively, the PSA may decide that it would be more appropriate to issue an enforcement notice to a relevant PRS provider (the Relevant Party) in accordance with paragraph 5.4 below.

5.1.2

Engagement may take place alongside, or instead of, one or more of the supervision activities set out in Section 4 of this Code. Once an enforcement notice has been issued to a Relevant Party, no additional supervision activities will be commenced in respect of that Relevant Party under Section 4 aside from by way of a direction for information under paragraph 6.1 above, but existing activities will continue unless the PSA directs otherwise.

5.1.3

PRS providers must co-operate fully and throughout the period for which the PSA is carrying out its engagement or enforcement activities in accordance with this Section. PRS providers must also co-operate fully where the PSA is carrying out supervision activities as required by the co-operation principle set out under paragraph 4.2.3(d). A failure to co-operate will constitute a breach of the Code, which may lead to enforcement action under Section 5.4 below.

5.1.4

In determining the appropriate engagement or enforcement route, the PSA will take into account all relevant considerations as will be set out in Procedures published by the PSA from time to time. Such considerations will include, but may not be limited to:

  1. the seriousness of any apparent breach;
  2. the gravity of any apparent consumer harm, as initially assessed by the PSA; and
  3. the breach history of the PRS provider(s) concerned (including any sanctions previously imposed).

The PSA may, from time to time, establish further Procedures governing its engagement and enforcement activities under the Code.

5.1.5

Where the PSA considers that breaches may have been committed by more than one PRS provider as part of the same or a similar matter, the PSA is not obliged to use the same engagement or enforcement route in respect of each provider. It will decide the most appropriate route to use on a case-by-case basis, in accordance with paragraph 5.1.4 above and any relevant Procedures, and in the light of each PRS provider’s particular involvement and circumstances.

5.1.6

Where as a result of its enquiries or engagement the PSA considers that a breach of the Code is likely to have occurred, it may decide at any time that the matter should be placed before a Tribunal or a single legally qualified member of the CAP for determination, in accordance with paragraph 5.4 below.

5.1.7

If relevant information comes to light during the course of the PSA’s engagement with a relevant PRS provider, the PSA may change its engagement approach, or withdraw an allegation of any or all breaches, at its discretion. 

5.1.8

The PSA may decide not to take any further action in respect of a case or matter in accordance with any prioritisation criteria that it may publish from time to time. However, where it is considered appropriate, the PSA may at any time reconsider a case or matter in respect of which it has previously decided not to take further action. Where the PSA decides to reconsider a case or matter, it will notify the relevant PRS provider of the decision.

5.1.9

In general, the PSA will also provide reasons for any decision to reconsider under paragraph 5.1.8 above. However, in cases where, in the PSA’s reasonable opinion, there exist operational or investigative sensitivities including (but not limited to) those arising from any relevant confidentiality obligations that the PSA might have in relation to a third party, the PSA will not be obliged to provide reasons to the extent that the PSA reasonably considers that doing so would breach those obligations or otherwise prejudice the PSA’s ongoing operations or investigations.

5.2.1

The PSA receives intelligence about compliance issues from various sources, including (but not limited to) consumers, industry, other regulators or public bodies, the press and the PSA’s own compliance monitoring. Where the PSA receives such intelligence, it may carry out enquiries and engage with relevant PRS providers accordingly.

5.2.2

The PSA may engage with PRS providers where it considers that it is reasonable and proportionate to do so in order to understand Code-compliance issues and trends relating to the provision (including operation and consumption), content (including design), promotion, and marketing of PRS, whether in relation to specific services or service types, or in relation to the market in general. Such engagement will support and inform the PSA’s decisions on appropriate regulatory priorities and action.

5.2.3

Where the PSA decides to engage with a relevant PRS provider under paragraphs 5.2.1 and/or 5.2.2 above, it may send an enquiry letter to any participant in the relevant PRS value chain seeking information.

5.2.4

By means of an enquiry letter, the PSA may seek information concerning matters including: the relevant PRS; promotions; complaints (including any action taken by any person in relation to complaints); technical platforms; systems; operational issues; thematic issues that have come to light as a result of PSA’s compliance monitoring activities; contractual relationships; or any other compliance issues otherwise raised or identified.

5.2.5

Failure to respond to an enquiry letter without good reason and/or repeated failures to respond will be a relevant factor for the PSA to take into account when considering the requirement for co-operation in paragraphs 4.2.3. (d) and/or 5.1.3 above.

5.3.1

In appropriate cases where it appears to the PSA that a breach of the Code has occurred or is likely to have occurred, and whether or not an enquiry letter has been sent or a response received, the PSA may issue a warning letter to the relevant PRS provider. In a warning letter, the PSA will set out its concerns in relation to any apparent breach of the Code and require a response and/or corrective action to be taken within a specified timeframe, rather than proceeding to place the matter before a Tribunal or a single legally qualified CAP member under paragraph 5.4 below.

5.3.2

Where corrective action is required under paragraph 5.3.1 above, the PSA may specify the action to be taken in the form of an action plan. Action plans may be modified subsequently by agreement between the PSA and the relevant PRS provider.

In such cases, the following procedure will be adopted:

  1. The PSA will issue a warning letter to the relevant PRS provider, including an action plan. That action plan will specify a set of actions which the PSA believes to be necessary to remedy the breach and prevent any repetition, together with a deadline for implementation. The PSA may invoice the relevant PRS provider for its reasonable administrative costs associated with formulating the action plan and the warning letter.
  2. If the action plan is accepted, the relevant PRS provider must demonstrate to the satisfaction of the PSA that it has been implemented and the breach remedied on or before the deadline. If this is not demonstrated, the PSA will conclude that the action plan has not been implemented and that the breach has not been remedied.
  3. Where the relevant PRS provider does not agree to any part of the action plan (including the deadline), it must clearly set out its disagreement in writing within five working days of receiving the action plan. The PSA will consider such representations and may decide, at its discretion, to alter the action plan and/or the deadline as a result.
5.3.3

The PSA may decide to place the case or matter before a Tribunal or single legally qualified CAP member under paragraph 5.4 below if:

  1. the relevant PRS provider fails to respond to a warning letter within the timeframe set by the PSA under paragraph 5.3.1 above;
  2. the relevant PRS provider fails to demonstrate that it has complied with an action plan, where issued, in accordance with paragraph 5.3.2(b) above;
  3. no agreement on the action plan can be reached, under paragraph 5.3.2(c) above or otherwise; or
  4. the relevant PRS provider disputes that any apparent breach raised as a concern in a warning letter has occurred.
5.3.4

The PSA will keep a record of all warning letters and any action plans issued. If the case or matter is subsequently placed before a Tribunal or single legally qualified CAP member under paragraph 5.4 below, the PSA will take into account the warning letter and action plans when considering any further breaches by the Relevant Party or any connected person.

5.3.5

The PSA may publish warning letters (or any extract taken therefrom) where it considers that it would be necessary and proportionate to do so in order to prevent or reduce potential or actual harm to consumers. Before it publishes any document under this paragraph, the PSA will:

  1. send a notice to the relevant PRS provider providing details of the warning letters and/or extracts which it proposes to publish, and setting out in brief the PSA’s reasons for proposing to publish it;
  2. specify a reasonable period (not shorter than two working days but not longer than 10 working days) for the relevant PRS provider to make representations;
  3. consider any representations made within the specified period, paying particular regard to any representations concerning any potential prejudicial effect of any such publication on any relevant persons;
  4. decide whether and how to publish the warning letters and/or extracts in an appropriate manner and form, taking into account any representations made.

The PSA will not publish any confidential information under this paragraph.

5.4.1

When the PSA makes enquiries or engages with a relevant PRS provider under paragraphs 5.2 and/or 5.3 above, or obtains information by way of its compliance monitoring activities under Section 4 of this Code, and decides that a case or matter should be placed for determination before a Tribunal or a single legally qualified CAP member:

  1. paragraphs 5.4.2–5.11 will apply; and
  2. the matters set out at paragraphs 5.4.4, 5.5.1, 5.6.1, 5.6.2 and 5.6.3 below will be subject to oversight by senior members of the PSA, to the extent that such oversight is deemed appropriate by reference to any Procedures published by the PSA from time to time.
5.4.2

Where it appears to the PSA that a breach of the Code has occurred or is likely to have occurred, and the case or matter is sufficiently serious to warrant action that is or may be likely to lead to a determination by a Tribunal or single legally qualified CAP member, it will notify the Relevant Party in writing accordingly (the formal notification). Factors which may be taken into account in determining the seriousness of a particular case or matter, as well as in determining whether a case or matter will be placed before a Tribunal or a single legally qualified CAP member, will be specified by the PSA in Procedures published from time to time.

5.4.3

Following receipt of a formal notification, the Relevant Party may provide the PSA with any information it considers relevant to the case or matter, whether in response to any direction to provide information given by the PSA under paragraph 6.1 above or otherwise.

5.4.4

Upon the conclusion of any further enquiries and investigations the PSA will notify the Relevant Party of its conclusions in writing in the form of an enforcement notice, except where paragraph 5.1.8 applies or the PSA considers that a determination by a Tribunal or single legally qualified CAP member is no longer appropriate. The enforcement notice will contain, as a minimum:

  1. details of any PRS and/or promotional material considered relevant to the alleged breach(es);
  2. reference to the relevant provisions of the Code which are alleged to have been breached;
  3. all necessary information and evidence obtained in the course of the PSA’s enquiries and investigations concerning the alleged breach(es) of the Code; and
  4. the proposed sanction for the alleged breach(es) of the Code which the PSA will recommend to the Tribunal or single legally qualified member of the CAP (as applicable).
5.4.5

The Relevant Party will be given a reasonable period of time to respond to the enforcement notice and to provide any further information requested by the PSA. A response will normally be required within 10 working days unless otherwise specified in the enforcement notice. In exceptional circumstances, the PSA may set a shorter or longer time limit, which will not be shorter than one working day, nor longer than 20 working days.

5.4.6

If the Relevant Party fails to respond within the period specified pursuant to paragraph 5.4.5 above, the PSA will proceed with the case on the assumption that the Relevant Party does not wish to respond.

5.4.7

The PSA will prepare a report containing the enforcement notice and any responses from the Relevant Party, together with relevant supporting evidence, which will be placed before a Tribunal to determine the case. The case may be determined on the papers or by way of an oral hearing in accordance with paragraphs 5.7.6–5.7.19 below.

5.4.8

Where the PSA considers it to be appropriate having regard to the seriousness of the case or matter, and by reference to Procedures published by the PSA from time to time specifying matters including (but not limited to) the maximum applicable sanction limits, it may place the report and evidence before a single legally qualified CAP member to determine instead of a Tribunal. A single legally qualified CAP member may only determine the case on the papers, and not by way of an oral hearing. 

5.4.9

When considering the case or matter, if the single legally qualified CAP member determines that the apparent breach or breaches are serious and considers that the level of sanctions permitted in the published Procedures are not sufficient to address such seriousness, the single legally qualified CAP member may instruct that the case or matter is dealt with by a Tribunal instead.

5.5.1
At any point following receipt of a formal notification under paragraph 5.4.2 above but before the case or matter is placed before a Tribunal under paragraph 5.4.7 above or paragraph 5.6.3(b) or (c) below, or a single legally qualified CAP member under paragraph 5.4.8 above, the Relevant Party may, by reference to Procedures published by the PSA from time to time, engage with the PSA to settle the case or matter. This paragraph does not apply where an oral hearing is requested or required under paragraph 5.7.6 below.
5.5.2

Where the PSA and the Relevant Party engage in accordance with paragraph 5.5.1 above, the PSA may exercise its discretion to settle the case or matter. Where an agreement is reached in writing, which may include any discounts that the PSA considers appropriate to apply, such agreement will be binding. Any breaches admitted and/or sanctions agreed will have the same effect as if they had been upheld and imposed by a Tribunal. The PSA will publish on its website the facts relating to the case or matter and the terms of the agreement that has been reached.

5.5.3

Where an oral hearing is required under paragraph 5.7.9(a) below, but before the matter is determined by a Tribunal, the Relevant Party and the PSA may seek to reach agreement on:

  1. any interim measures that may be adopted;
  2. any admissions concerning the alleged breaches; and/or
  3. any agreement over sanctions that might be imposed by the Tribunal.
5.5.4
Where an agreement is reached in accordance with paragraph 5.5.3 above, the PSA will place the details of the matter and the agreement reached before the Tribunal for approval. Unless the Tribunal determines that there are good reasons not to do so, it will approve the agreement reached by way of an adjudication by consent. Where the Tribunal determines that there are good reasons not to approve the agreement it may vary, add or substitute any of the agreed interim measures, breaches or sanctions following consideration of any written or oral representations from the parties and having regard to any Procedures issued by the PSA from time to time. The Tribunal will provide its written reasons to the parties for making any variation, addition or substitution.

5.6.1

At any time during the PSA’s enquiries or engagement with a relevant PRS provider under paragraphs 5.2-5.4 above when it appears to the PSA that a breach of the Code has taken place and the PSA considers, by reference to any criteria set out in its Procedures published from time to time, that:

  1. the apparent breach is causing serious harm or presents a serious risk of harm to consumers or the general public and requires urgent corrective action; and/or
  2. the Relevant Party cannot or will not comply with any sanction that may be imposed by a Tribunal pursuant to paragraphs 5.8.5(d), (i) or (j) below, or an administrative charge imposed by the PSA under paragraph 5.11.1 below,

the PSA may adopt the course provided for by paragraphs 5.6.2 and/or 5.6.3 below as appropriate, by (among other things) seeking interim measures from a Tribunal.

5.6.2

Where paragraph 5.6.1(a) above is satisfied, the PSA may seek a direction from a Tribunal for the suspension of part or all of the PRS in question (a suspension direction) or such other corrective action as is considered appropriate in the circumstances.

5.6.3

Where paragraph 5.6.1(b) above is satisfied, the PSA may:

  1. issue a direction to a network operator or intermediary provider to notify the PSA of all future outpayment dates promptly and in any event within two working days and, in the event that any changes are subsequently made to such dates, to notify the PSA of those changes promptly and in any event no less than two working days before the next outpayment date;
  2. seek a direction from a Tribunal requiring a network operator or intermediary provider to retain any payment or proportion of such payment relating to the relevant PRS from the Relevant Party (a withhold direction), pending either a Decision under paragraph 5.7.21 below or the implementation of such acceptable alternative interim security as may be set out in Procedures published from time to time; and/or
  3. seek a direction from a Tribunal requiring a network operator or intermediary provider to pay over to the PSA any monies subject to a withhold direction under paragraph 5.6.3(b) above, pending either a Decision under paragraph 5.7.21 below or the implementation of such acceptable alternative interim security as may be set out in Procedures published from time to time. Any monies paid over pursuant to this sub-paragraph will be held by the PSA as security for any fines and/or administrative charge for which the Relevant Party may become liable as a result of a Decision under paragraph 5.7.21 below. For the avoidance of doubt, the PSA will repay all such monies promptly to the relevant network operator or intermediary provider in the event that neither a fine nor an administrative charge is imposed on the Relevant Party.
5.6.4

Where the PSA intends to seek a direction under paragraphs 5.6.2 and/or 5.6.3:

  1. by means of an interim enforcement notice, the PSA will (except where it is not appropriate to do so on public interest grounds) use reasonable endeavours to notify the Relevant Party of its initial findings and the proposed interim measure(s) which it considers appropriate;
  2. the Relevant Party will be given a reasonable opportunity to make representations to the PSA;
  3. if the Relevant Party fails to respond to the interim enforcement notice within such reasonable period as may be determined by the PSA, the PSA will proceed on the assumption that the Relevant Party does not wish to respond; and
  4. if the PSA decides to proceed, having considered any representations, it will notify a Tribunal of its findings and of any representations made by the Relevant Party.
5.6.5

Where it is not possible or appropriate for the PSA to issue an interim enforcement notice notifying the Relevant Party of the application for interim measures under paragraph 5.6.4(a) prior to seeking a direction from the Tribunal under paragraphs 5.6.2 and/or 5.6.3 above:

  1. the PSA will use reasonable endeavours to provide the Tribunal with all facts that might be material to its consideration including any materials which it considers might reasonably have been relied upon by the Relevant Party; and
  2. the PSA will use reasonable endeavours to inform the Relevant Party, as soon as reasonably practicable following a Tribunal’s decision to impose interim measures pursuant to paragraph 5.6.6 below, that its PRS appears to be in breach of the Code; that interim measures have been imposed by a Tribunal; and of the availability of the right to a review pursuant to paragraph 5.6.8 below.
5.6.6

Where a direction is sought from a Tribunal under paragraphs 5.6.2 and/or 5.6.3 above:

  1. the Tribunal will decide whether the applicable conditions at paragraph 5.6.1 above are satisfied so as to warrant the imposition of interim measures, on the basis of the evidence presented to them;
  2. the Tribunal will set out its findings and reasons in writing and provide them to the PSA and the Relevant Party. The PSA will use reasonable endeavours to ensure that the Tribunal’s written decision is received by the Relevant Party; and
  3. where, and to the extent that, the Tribunal considers that either or both of the conditions at paragraphs 5.6.1(a) and/or 5.6.1(b) are satisfied and decides that an interim measure is appropriate and proportionate, the Tribunal will permit the PSA to:
  1. issue a suspension direction to the Relevant Party;
  2. issue a direction for such other corrective action as the Tribunal determines to be appropriate;
  3. direct any relevant network operator or intermediary provider to bar access to the relevant service or phone numbers immediately if the Relevant Party cannot be contacted or does not immediately suspend the service or take the required corrective action; and/or
  4. issue a withhold direction to a relevant network operator or intermediary provider.
5.6.7

When directed to do so by the PSA, network operators and intermediary providers shall, in accordance with a withhold direction, immediately:

  1. withhold:
    1. such amount of money as the PSA may require out of any monies payable by any network operator or intermediary provider to a specified intermediary provider or merchant provider until permitted by the PSA to do otherwise;
    2. some or all monies payable to a specified intermediary provider or merchant provider in respect of certain PRS numbers or PRS (as may be specified) until permitted by the PSA to do otherwise; or
    3. all monies payable to a specified intermediary provider or merchant provider until permitted by the PSA to do otherwise;
  2. pay over to the PSA any amounts of money made subject to a withhold direction under paragraph 5.6.7(a) above or withheld pursuant to paragraphs 6.2.6 and 6.2.7 below, as the PSA may require to hold as security for fines that may be imposed by a Tribunal considering the case in accordance with this Section and/or an administrative charge that may be invoiced by the PSA in accordance with paragraph 5.11 below. Such payments must be made within 30 days of such a direction;
  3. pay over to the PSA any amounts of money made subject to a withhold direction under paragraph 5.6.7(a) above or withheld pursuant to paragraphs 6.2.6 and 6.2.7 below, as the PSA may require to satisfy any outstanding fines that have been imposed by a Tribunal considering the case in accordance with this Section and/or any administrative charge invoiced by the PSA in accordance with paragraph 5.11 below. Such payments must be made within 30 days of such direction; and/or
  4. pay refunds on behalf of intermediary providers or merchant providers when so required by the PSA in accordance with paragraphs 5.9.1 or 5.9.2 below.
Review of interim measures
5.6.8

At any time prior to a Decision made under paragraph 5.7.21 below, the Relevant Party may apply for, and the Chair of the CAP may grant, an urgent review of any interim measure(s) previously imposed, in circumstances where:

  1. it has not been possible or appropriate to issue an interim enforcement notice notifying the Relevant Party of the application for interim measures prior to their imposition; and/or
  2. further information has come to light suggesting that interim measures should not have been imposed or are no longer appropriate,

and in either case, upon referral by the PSA, the application for review is determined not to be frivolous or vexatious by the Chair of the CAP (or by another legally qualified member of the CAP where the Chair is unavailable or has sat on the original Tribunal), after consideration of any written representations by the Relevant Party.

5.6.9

A review of interim measures will be heard by a differently constituted Tribunal.

5.6.10

The application for review must be made in writing, must include any supporting evidence and must set out:

  1. the grounds on which the Relevant Party considers that the interim measure(s) should not have been imposed; and/or
  2. the grounds on which the Relevant Party considers that the interim measure(s) are no longer appropriate.
5.6.11

In the circumstances described at paragraph 5.6.8 above, and at the request of either the Relevant Party or the PSA, the Tribunal may permit oral representations to be made to clarify any matter. The Tribunal may also, of its own motion, request oral representations to clarify any matter.

5.6.12

Subject to any requirement for further information or the Tribunal’s need to consider any issues relating to whether the application for review is frivolous or vexatious for the purposes of paragraph 5.6.8 above, the Tribunal will determine the review within five working days of receiving the application. By way of its determination, and by reference to any relevant Procedures published by the PSA from time to time, the Tribunal will have the power to affirm, vary or withdraw the interim measure(s).

The Tribunal and single legally qualified CAP member
5.7.1

Where a referral or notification is made by the PSA pursuant to paragraphs 5.4.7, 5.4.8 and/or 5.6 above, a Tribunal of three members including at least one legally qualified member or a single legally qualified CAP member (as applicable) will be appointed from the CAP to consider the matter. A legally qualified Tribunal member will be appointed as the Chair of the Tribunal.

5.7.2

The Tribunal or single legally qualified CAP member (as applicable) will reach a Decision as to whether the Code has been breached by the Relevant Party on the basis of the evidence presented and the representations made before it.

5.7.3

When considering whether there has been a breach of the Code, the Tribunal or single legally qualified CAP member (as applicable) may take into account, where relevant, the extent to which the Relevant Party has followed any relevant guidance published by the PSA.

Oral representations
5.7.4

In any case where an enforcement notice or an interim enforcement notice has been issued by the PSA under paragraphs 5.4.4 or 5.6.4(a) above, or a review is sought under paragraph 5.10.1 below, and the matter is to be determined by a Tribunal on the papers, at the request of the Relevant Party or the PSA and with the Tribunal’s permission, the Relevant Party or the PSA may make oral representations to clarify any matter for the Tribunal. The Tribunal, of its own motion, may request oral representations to clarify any matter.

5.7.5

Where a case is to be determined by a single legally qualified CAP member in accordance with paragraph 5.4.8 above and the Relevant Party wishes to make oral representations, it may request that the case is dealt with by a Tribunal instead. Such a request will be considered by the single legally qualified CAP member in accordance with the PSA’s Procedures as published from time to time. Where a case is dealt with by a Tribunal under this paragraph, it may (if appropriate) impose the full range and level of sanctions available to a Tribunal under the Code having regard to the Procedures published by the PSA from time to time.

Oral hearings
5.7.6

Instead of a case being determined by a Tribunal on the papers any Relevant Party or the PSA, or in the case of subparagraph 5.7.6(b) below an associated individual, may by notice in writing:

  1. request an oral hearing in any case where there are serious and complex issues to be determined, a fair determination would not be possible without an oral hearing, and:

    1. an enforcement notice has been issued by the PSA under paragraph 5.4.4 above and a Decision has not yet been made by a Tribunal in respect of that enforcement notice; and/or
    2. the Relevant Party wishes to seek a review of any determination made by a Tribunal under paragraph 5.10.1 below and a review has not previously been carried out in respect of that determination; or
  2. require an oral hearing where the Tribunal intends, either following a recommendation by the PSA or of its own motion, to impose as a sanction, the prohibition of an associated individual from involvement in or promotion of any or all PRS types for a defined period, (see paragraphs 5.8.5(f) and 5.8.5(g) below).

Further details concerning the conduct of oral hearings are set out in Procedures published by the PSA from time to time.

5.7.7

An oral hearing may also be requested by the Relevant Party in the circumstances set out in paragraph 5.8.12 below.

5.7.8

Oral hearings must be applied for within 10 working days of the date of receipt by the Relevant Party of an enforcement notice or publication of a Tribunal Decision (where a review is sought), or notice of the Tribunal’s intention to impose a prohibition under paragraph 5.7.6(b) above, as the case may be, subject to any directions issued by the PSA altering the period of response, pursuant to paragraph 5.4.5 above.

5.7.9

Within any written application for an oral hearing, the Relevant Party must provide details of the relevant allegation or determination and set out clearly the applicant’s case in respect of it. In relation to an application under paragraph 5.7.6(a) above, the applicant must also set out the reasons why it believes that there are serious and complex issues to be determined, and why it believes that a fair determination would not be possible without an oral hearing. The Chair of the Tribunal constituted to deal with the matter on the papers or, where no Tribunal has been constituted the Chair of the CAP (or another legally qualified member of the CAP where the Chair is unavailable or has been involved in any previous proceedings relating to the case) will then determine whether or not to grant the requested oral hearing in accordance with the criteria outlined at paragraph 5.7.6 above.

5.7.10

If there is to be an oral hearing, the PSA will give the Relevant Party reasonable notice of the date listed. The Relevant Party is entitled to appear at the oral hearing in person and make representations, or to instruct a representative to do so on its behalf. The PSA will attend the oral hearing to present its case and may instruct a representative to act on its behalf.

5.7.11

The Chair of the Tribunal will give such directions as he or she considers necessary for a fair and efficient hearing.

5.7.12

If the Relevant Party is neither present nor represented at the hearing, and the Tribunal has no cause to believe that there is good reason for the Relevant Party’s absence, the case will be determined by the Tribunal as it sees fit in the absence of the Relevant Party.

5.7.13

In relation to oral hearings proceeding pursuant to paragraphs 5.7.6(a) and 5.7.6(b) above, where a Relevant Party or an associated individual, respectively, fails without good cause, to appear (in person or through a representative) at a hearing which is properly established, then the Tribunal may make such findings as it sees fit in the absence of the Relevant Party or associated individual.

5.7.14

The Chair of the Tribunal will generally conduct the pre-hearing process and the hearing itself in accordance with the relevant Procedures published by the PSA from time to time. However, he or she will have the power to conduct the pre-hearing process and the hearing as he or she sees fit in the interests of justice, including by deciding to adjourn the hearing if appropriate.

5.7.15

On the application of the PSA, the Chair of the Tribunal may direct that the Relevant Party is required to provide security for the PSA’s administrative charge that may be invoiced under paragraph 5.11 below, within a reasonable time period.

5.7.16

The Relevant Party will not be entitled to recover any costs incurred during the investigation and adjudication process.

5.7.17

The Chair of the Tribunal will have the power to strike out a case in the event of serious or persistent failure to comply with the Tribunal’s case management directions.

5.7.18

An audio recording of the oral hearing will be made. Recordings will be made available to the PSA and the Relevant Party.

5.7.19

An oral hearing will be conducted in private, unless the Relevant Party or the PSA otherwise requires. If an oral hearing is in public, either party may request that any part of the hearing be conducted in private and any such application will itself be heard in private.

Confidentiality
5.7.20

A Tribunal will be entitled to consider and to act upon confidential information provided to it by the PSA or the Relevant Party without the source of that information being disclosed, directly or indirectly, prior to or during the course of the hearing, provided that the PSA or Relevant Party (as appropriate) is given a reasonable opportunity to respond to the substance of any such confidential information. Before using confidential information in this way, the PSA or Relevant Party (as appropriate) will obtain consent to its use in these terms from the provider of that information and confirm to the Tribunal prior to the hearing that such consent has been obtained.

The Decision
5.7.21

A full, written, reasoned Decision will be prepared and provided to the Relevant Party as soon as reasonably practicable after the Tribunal or single legally qualified CAP member makes their determination on the papers or following an oral hearing.

5.7.22

The Decision will include reasons in relation to:

  1. whether the Relevant Party has breached the Code; and
  2. the appropriate sanction identified by the Tribunal in accordance with paragraph 5.8 below.
5.7.23

All Decisions, whether reached through a determination on the papers or an oral hearing, and whether interim or final, will be published by the PSA and may identify any Relevant Party or associated individual, and/or any other PRS provider involved in the provision and/or promotion of the PRS.

5.7.24

The Decision will be published on the PSA’s website, and in any other manner that the PSA considers appropriate and proportionate.

5.8.1

If a Tribunal or single legally qualified CAP member concludes that the Code has been breached, it will determine the appropriate sanction(s) to impose by considering:

  1. the Relevant Party’s history of Code breaches (if any);
  2. any previous sanctions imposed;
  3. the revenue earned from the service(s) concerned; and
  4. any other relevant information put before it.

‘Other relevant information’ may include, but is not limited to, the extent to which the Relevant Party has followed any relevant guidance published by the PSA and/or the extent to which the Relevant Party attempted to comply with the Code by any alternative methods. A Tribunal or single legally qualified CAP member will generally treat a failure to comply with guidance combined with failure to consider alternative methods for compliance with the Code as a serious aggravating factor. Following guidance will be treated as a mitigating factor.

5.8.2

The Tribunal may impose one or more of the sanctions set out in paragraph 5.8.5 below in any combination depending upon the seriousness with which it regards the breaches it has identified. In considering the seriousness of any breaches, and in determining the sanctions to impose, the Tribunal will have regard to Procedures published by the PSA from time to time.

5.8.3

A single legally qualified CAP member may impose any combination of the sanctions set out in sub-paragraphs 5.8.5(a)–(d) and 5.8.5(i) below up to the maximum levels specified in Procedures published by PSA from time to time.

5.8.4

A Tribunal may impose a greater or lesser sanction than that proposed by the PSA in any enforcement notice issued under paragraph 5.4.4(d) above, or proposed as part of the pre-hearing process conducted by the Tribunal Chair under paragraph 5.7.14 above.

5.8.5

Having taken all relevant circumstances into account and subject to paragraphs 5.8.2–5.8.3 above (as applicable), the Tribunal or single legally qualified CAP member may impose one or more of the following sanctions in relation to each breach as they consider appropriate and proportionate:

  1. a requirement for the Relevant Party to remedy the breach (including without limitation by requiring it to register in the PSA Register under paragraph 3.8 above if it has not previously done so);
  2. a formal reprimand and/or warning as to future conduct;
  3. a requirement for the Relevant Party to submit some or all categories of its services and/or promotional material to the PSA, or a third party, for compliance advice or for prior permission from the PSA for a defined period. Any compliance advice given by the PSA must be implemented within a specified period to the satisfaction of the PSA. The PSA may require payment of a reasonable administrative charge by a Relevant Party for compliance advice it provides pursuant to this sub-paragraph. Any compliance advice given by a third party must, to the satisfaction of the PSA, be: (i) sufficient to address the breaches of the Code identified by the Tribunal; and (ii) implemented within a period specified by the PSA. The cost of any such advice will be borne in its entirety by the Relevant Party;
  4. imposition of a fine on the Relevant Party in respect of all of the upheld breaches of the Code, or separate fines in respect of each upheld breach of the Code, not exceeding the maximum amount permitted by law (which at the time of publication of this Code is £250,000 in respect of all breaches or in respect of each breach). Where a fine is imposed under this sub-paragraph it will be payable to the PSA;
  5. a requirement for access to some or all of the Relevant Party’s services or PRS numbers to be barred for a defined period, or until compliance advice has been implemented to the satisfaction of the PSA, and a direction to any PRS provider in any relevant PRS value chain accordingly;
  6. a prohibition on a Relevant Party and/or an associated individual found to have been knowingly involved in a serious breach or a series of breaches of the Code, and/or failed to take reasonable steps to prevent such breaches, from providing or having any involvement in specified types of PRS or promotion for a defined period;
  7. a prohibition on a Relevant Party and/or an associated individual found to have been knowingly involved in a serious breach or series of breaches of the Code, and/or failed to take reasonable steps to prevent such breaches, from providing or having any involvement in any PRS or promotion for a defined period;
  8. a prohibition on a Relevant Party from contracting with any specified person registered (or who should be registered) in the PSA Register at all, or subject to specified terms, for a defined period;
  9. a requirement that refunds are paid within a specified time period to all or any specified group of consumers who claim a refund, for the full amount spent by them for the relevant service or for a specified lesser amount, save where there is good cause to believe that such claims are not valid, and to provide evidence to the PSA that such refunds have been made;
  10. a requirement in circumstances where there has been a serious breach of the Code and/or serious consumer harm and/or unreasonable offence or distress caused to the general public, that refunds for the full amount spent or a specified lesser amount are paid within a specified time period to all or any specified group of consumers who have used the service, regardless of whether they have claimed a refund;
  11. a requirement that the Relevant Party submits to a compliance audit carried out by a third party approved by the PSA and to a standard prescribed by the PSA, the costs of such audit to be paid by the Relevant Party. Such an audit must be completed and the recommendations implemented within a period specified by the PSA.
5.8.6

Where refunds have been ordered under paragraph 5.8.5(j) above, they must be credited directly to the consumer’s account with their communications provider. Where there is no such communications provider account, consumers must be notified of their right to a refund and be given an easy method of obtaining the refund.

5.8.7

Where it is not technically or legally possible to notify consumers of their right to a refund, the PSA may direct the Relevant Party to donate an amount of money equivalent to the refunds to an appropriate registered charity nominated or approved by the PSA. Evidence must be provided to the PSA that any refunds or payments to the nominated charity (as appropriate) have been made.

5.8.8

All breaches upheld and sanctions imposed against a Relevant Party following consideration by a Tribunal or single legally qualified CAP member will be noted on the PSA Register. Information concerning any such breaches and sanctions will be made freely available to the general public.

5.8.9

The failure of any Relevant Party to comply with any sanction within a reasonable time may result in:

  1. the PSA, of its own motion and without needing to seek further direction from a Tribunal, issuing a suspension direction to the Relevant Party until full compliance with the sanction(s) has been achieved. Such a suspension would, unless stated otherwise, cover any premium rate numbers, shortcodes or other means of access to services, or other codes allocated during the period of suspension;
  2. a further breach of the Code by the Relevant Party, which may lead to the PSA issuing a fresh enforcement notice and the matter being determined by a Tribunal or single legally qualified CAP member, with the consequence that further separate sanctions may be imposed; and/or
  3. the PSA taking such other action as it is entitled to take under any applicable law.
5.8.10

When directed to do so by the PSA either as the result of a sanction imposed under paragraph 5.8.5(e)-(g) above or in consequence of the issue of a suspension direction, all network operators, intermediary providers and merchant providers shall immediately (and as applicable):

  1. terminate access to such PRS and/or PRS numbers as the PSA may specify;
  2. terminate access to all PRS numbers that are allocated to any specified intermediary provider or merchant provider; and/or
  3. terminate access to some or all PRS numbers over which a specified PRS or type of service may be operated.
5.8.11

If a network operator fails to comply with a sanction issued under this Section, the PSA may (without prejudice to any other action available to it) refer the matter to Ofcom in accordance with section 120 of the Act for Ofcom to take such action as it sees fit.

5.8.12

If a Tribunal considers that it may wish to impose a prohibition under sub-paragraphs 5.8.5(f) or 5.8.5(g) in respect of any associated individual, the PSA will first make all reasonable attempts to notify the individual concerned and the Relevant Party in writing. In providing any such notification, the PSA will inform the Relevant Party and the associated individual that either of them may request an opportunity to make representations in writing, or in person, to the Tribunal and of their right to require an oral hearing under paragraph 5.7.9(b) above rather than consideration of the matter relating to the associated individual on the papers.

5.9.1

Where:

  1. a Tribunal has directed a Relevant Party to pay refunds to consumers, under paragraph 5.8.5(i) or 5.8.5(j), or a single legally qualified CAP member has directed the payment of refunds under paragraph 5.8.5(i); and
  2. the Relevant Party can satisfy the PSA that it cannot comply without recourse to money which has been retained by a network operator or intermediary provider under paragraphs 6.2.1 and/or 6.2.2 above, and/or in response to a withhold direction (the Retention),

then the PSA may, without further direction from the Tribunal or single legally qualified CAP member, direct the Relevant Party to present a list of consumers to whom refunds are due to the PRS provider which holds the Retention. That PRS provider will then make any payments due from the Retention.

5.9.2

If a Relevant Party fails promptly to pay refunds in response to a sanction, the PSA may (without prejudice to any other action available to it and without further direction from the Tribunal or single legally qualified CAP member) direct a network operator or intermediary provider which holds a Retention to pay refunds from the Retention.

5.9.3

Where refunds are paid under paragraph 5.9.1 or 5.9.2 above, the Relevant Party will be responsible for any reasonable administration costs which the PRS provider holding the Retention may incur as a result of making payments on its behalf. Those costs may be deducted from the remainder of the Retention after all refunds have been processed.

5.9.4

A PRS provider holding a Retention will not be required to make refunds on behalf of the Relevant Party if the PSA has not directed it to do so under paragraph 5.9.1 or 5.9.2 above within six months of the date of the Decision.

5.9.5

If funds from a Retention are left over following the payment of all refunds, or after the six-month period referred to in paragraph 5.9.4 above, such funds must be used to pay in whole or in part any outstanding fines, or any administrative charge invoiced under paragraph 5.11 below owed by the Relevant Party.

5.10.1
A Relevant Party or the PSA may, after a Tribunal or single legally qualified CAP member has adjudicated a case pursuant to paragraphs 5.4.7 or 5.4.8 above or made any variations, additions or substitutions to a proposed adjudication by consent pursuant to paragraph 5.5.4 above, apply for a review of any determination (including a Decision but excluding an approved adjudication by consent under paragraph 5.5.4 above) before a differently constituted Tribunal.
5.10.2

Such an application will set out, in writing, the grounds for a review. A determination may be reviewed on one or more of the following grounds:

  1. the determination was based on a material error of fact;
  2. the determination was based on an error of law;
  3. the Tribunal or single legally qualified CAP member reached an unjust determination due to a material error of process in respect of procedures set out in the Code and/or Procedures published by the PSA from time to time; and/or
  4. the Tribunal or single legally qualified CAP member came to a determination that no reasonable person could have reached.
5.10.3

Other than in exceptional circumstances, an application for a review must be made within 10 working days of the publication of the relevant determination and must include all relevant supporting information and/or evidence. If an application for a review is brought after the deadline has expired, the Relevant Party must in its request explain the exceptional circumstances for its delay.

5.10.4

The PSA may respond to any application for a review and may provide any relevant supporting information and/or evidence. Having received a request for review, the Chair of the CAP (or another legally qualified member of the CAP where the Chair is unavailable or has sat on the original Tribunal) will consider the grounds of the application and any response received from the PSA and decide whether there are reasonable grounds to conclude that the review has merit.

5.10.5

If it is decided that there are reasonable grounds to conclude that the review has merit, a differently constituted Tribunal (or in the case of a determination made by a single legally qualified CAP member, a Tribunal not including that CAP member) will carry out a review of the Decision, as soon as practicable.

5.10.6

The enforcement of sanctions imposed pursuant to a Decision is not automatically suspended by an application for a review. Where the Relevant Party wishes to request that the enforcement of sanctions be suspended, the following will apply:

  1. the Relevant Party may apply in writing to the Chair of the CAP setting out the grounds on which any sanction should be stayed;
  2. the Chair (or other legally qualified CAP member where the Chair is unavailable or has sat on the original Tribunal) will not grant the application unless: (i) to do so would not give rise to a significant risk of public harm; and (ii) the Relevant Party would otherwise suffer undue hardship;
  3. on the application of the PSA, if a Relevant Party has not been granted a suspension of sanctions and has failed to comply with any sanction, the Chair (or other legally qualified CAP member, as applicable) may stay the review unless and until the sanction is fully complied with.
5.10.7

The Tribunal will consider all documentation and evidence produced at the original Tribunal and will determine the review on the papers, unless on the application of the Relevant Party in accordance with paragraph 5.7.9 above, or of its own motion, the Tribunal decides to convene an oral hearing. Where an oral hearing is convened the Tribunal may consider evidence not produced at the original Tribunal where such an application is made by the Relevant Party in accordance with any directions issued by the Chair of the Tribunal under paragraph 5.7.11 above. Where the Tribunal conducts the review on the papers it may, at its sole discretion, invite the Relevant Party or the PSA to make oral representations to clarify any matter.

5.10.8

The Tribunal may:

  1. confirm, vary or rescind a determination or any part of it, and substitute such other finding as it considers appropriate; and/or
  2. confirm, vary or rescind any sanction imposed by a determination. For the avoidance of doubt, the Tribunal may impose a greater sanction than that imposed by the original Tribunal or single legally qualified CAP member, provided that such a sanction is permissible under paragraph 5.8.5 above. The Tribunal is not in any case subject to the limitations that apply to a single legally qualified CAP member under paragraph 5.8.3 above;
5.10.9
5-10-9

Where a Tribunal decides to rescind a determination or any part of it in accordance with paragraph 5.10.8 above, the Tribunal may require such determination or part of it to be taken again in circumstances where it is found to be unjust under paragraph 5.10.2(c) above and/or a full written reason for the determination has not been provided by the original Tribunal in their Decision in accordance with paragraphs 5.7.21 – 5.7.22 above.

5.11.1

The PSA may invoice a Relevant Party found to be in breach of the Code for the PSA’s administrative and legal costs by way of an administrative charge.

5.11.2

Non-payment of the administrative charge within the period specified by the PSA will be considered a breach of the Code and may result in further sanctions and/or legal action.

5.11.3

The PSA may instruct a relevant network operator or intermediary provider to retain revenue and/or not to provide further PRS numbers, until the administrative charge has been paid.

5.11.4

The PSA may direct a relevant network operator or intermediary provider to transfer to it any sums remaining under the Retention up to the full value of the administrative charge owed, after any refunds have been paid to consumers and after the relevant network operator or intermediary provider has recovered its reasonable administration costs in accordance with paragraphs 5.9.1-5.9.3 above.

5.11.5

If a Relevant Party considers that an administrative charge invoiced to it is excessive, it may challenge the level of the administrative charge by applying to the Chair of the CAP (or other legally qualified CAP member where the Chair is unavailable) for a review, in accordance with Procedures published by the PSA from time to time.