Water Industry Act 1991

CHAPTER IVE+W FLUORIDATION

[F187 Fluoridation of water suppliesE+W

(1)If requested in writing to do so by a relevant authority, a water undertaker shall enter into arrangements with the relevant authority to increase the fluoride content of the water supplied by that undertaker to premises within the area specified in the arrangements.

(2)But a water undertaker shall not be required by subsection (1) above to enter into any such arrangements until an indemnity with respect to the arrangements has been given by virtue of section 90 below—

(a)to the water undertaker; and

(b)to any [F2water supply licensee] which is entitled to one.

(3)In this section and the following provisions of this Chapter—

(a)references to a relevant authority—

[F3(i)in relation to areas in England, are to the Secretary of State;]

(ii)in relation to areas in Wales, are to the Assembly; and

(b)references to water supplied by a water undertaker are to water supplied (whether by a water undertaker or a [F4water supply licensee]) to premises using the supply system of that undertaker.

F5(3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The area specified in arrangements under this section may be—

[F6(a)in relation to England, such area [F7in England as the Secretary of State may determine];]

(b)in relation to Wales, such area comprising the whole or any part of Wales as the Assembly may determine.

(5)The arrangements shall be on such terms as may be agreed between the relevant authority and the water undertaker or, in the absence of agreement, determined in accordance with section 87B below.

(6)[F8Subject to subsection (6A)] those terms shall include provision—

(a)requiring the relevant authority to meet the reasonable capital and operating costs incurred by the water undertaker in giving effect to the arrangements;

(b)specifying circumstances in which the requirement to increase the fluoride content may be temporarily suspended; and

(c)for the variation of the arrangements at the request of the relevant authority.

[F9(6A)The Secretary of State may by regulations provide that, in circumstances specified in the regulations, subsection (6)(a) is not to apply in relation to arrangements entered into by the Secretary of State.

(6B)The Secretary of State may by regulations require a public body specified in the regulations to make payments to the Secretary of State to meet any costs incurred by the Secretary of State under the terms of the arrangements.]

(7)The relevant authority shall consult the Authority in relation to the terms to be included in any arrangements under this section (in particular, terms which affect the operation of the water undertaker’s supply system).

F10(7A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(7B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F11(7G)Before making regulations under subsection (6A) or (6B) the Secretary of State must consult such persons as the Secretary of State considers appropriate.]

F12(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)Before carrying out the consultation required by subsection (1) of section 89 below in relation to a step mentioned in paragraph (a), (b) or (c) of subsection (2) of that section, [F13a relevant authority] shall consult the water undertaker in question as to whether the arrangements which would result from taking that step would be operable and efficient (or, where it is proposed to terminate the arrangements, as to whether it would be reasonably practicable to do so).

[F14(12)A statutory instrument containing regulations under subsection (6A) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.]]

[F1587ATarget concentration of fluorideE+W

(1)Arrangements under section 87(1) above shall include provision for securing that, so far as reasonably practicable, the concentration of fluoride in the water supplied to premises in the specified area is maintained at the general target concentration of one milligram per litre.

(2)But the arrangements may provide for the concentration in the specified area (or any part of it) to be lower than that if the relevant authority considers that it is not reasonably practicable to achieve the general target concentration in the specified area (or that part of it).

(3)Any such lower concentration must still be as high as is reasonably practicable in the circumstances.

F16(3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)If, in relation to any area (“area A”), an order under section 88A(1) below specifies a general target concentration lower than that for which any arrangements effective there provide (or, by the previous operation of this subsection, are taken to provide), the arrangements shall have effect from the coming into force of the order as if they provided for the general target concentration specified in the order (subject to the operation again of subsections (2) and (3) above).

(5)If the result of the operation of subsection (4) above in relation to arrangements in area A is that in an area adjoining area A (“area B”) it is not reasonably practicable to maintain the concentration of fluoride in the water supplied by virtue of arrangements made in area B with the same water undertaker, the order shall be taken to extend also to area B so far as those arrangements are concerned, and subsection (4) above shall apply accordingly.

(6)An order under section 88A(1) below which in relation to any area specifies a general target concentration higher than that for which any arrangements effective there provide (or are taken to provide by virtue of subsection (4) or (5) above) does not have effect to increase the concentration for which the arrangements provide (or are taken to provide).

(7)In this section, “specified area” means the area specified in arrangements under section 87(1) above.]

[F1787BFluoridation arrangements: determination of termsE+W

(1)This section applies if a relevant authority and a water undertaker fail to agree—

(a)the terms of arrangements requested by the relevant authority pursuant to subsection (1) of section 87 above; or

(b)a variation in the terms of those arrangements following a request by the relevant authority pursuant to subsection (6)(c) of that section.

(2)In relation to areas in England (except where subsection (4) below applies)—

[F18(a)the Secretary of State may—

(i)determine the terms of the arrangements as the Secretary of State sees fit; or

(ii)refer the matter for determination by such other person as the Secretary of State considers appropriate; and]

F19(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the determination of the Secretary of State or, as the case may be, the other person shall be final.

(3)In relation to areas in Wales (except where subsection (4) below applies)—

(a)the Assembly may—

(i)determine the terms of the arrangements itself as it sees fit; or

(ii)refer the matter for determination by such other person as it considers appropriate; and

(b)the determination of the Assembly or, as the case may be, the other person shall be final.

(4)[F20Where a combined reference is made under section 87(7C)(b) or 87(7F)] above—

(a)the terms of the arrangements shall be determined by a person appointed by the Secretary of State and the Assembly acting jointly; and

(b)the determination of that person shall be final.

(5)Following determination under this section of the terms to be included in any arrangements—

(a)the relevant authority shall give notice of the determination to the water undertaker in question; and

(b)the undertaker shall be deemed to have entered into the arrangements under section 87(1) above on the terms determined under this section with effect from the day after the date of the notice.

(6)References in this Chapter to arrangements entered into under section 87(1) above shall include arrangements deemed to have been entered into under that section by virtue of subsection (5)(b) above.]

[F2187CFluoridation arrangements: complianceE+W

(1)It shall be the duty of each water undertaker to comply with any arrangements entered into by it under section 87(1) above.

(2)Where, pursuant to any such arrangements, the fluoride content of any water is increased, the increase may be effected only by the addition of one or more of the following compounds of fluorine—

• hexafluorosilicic acid (H₂SiF₆)

• disodium hexafluorosilicate (Na₂SiF₆).

(3)Subject to subsection (4) below, water to which fluoride has been added pursuant to any such arrangements entered into by a water undertaker (with a view to its supply in an area) may be supplied by that or any other undertaker to premises in any other area (whether or not that other area is the subject of arrangements under section 87(1) above).

(4)Subsection (3) above applies if (and only if) the undertaker or undertakers concerned consider that it is necessary for the water to be supplied in the other area—

(a)for the purpose of dealing with any serious deficiency in supply; or

(b)in connection with the carrying out of any works (including cleaning and maintenance) by the undertaker concerned or, as the case may be, by the undertakers concerned, or by a [F22water supply licensee] supplying water using its or their supply system.

(5)In this section—

(a)the reference, in subsection (3) above, to water to which fluoride has been added pursuant to arrangements includes a reference to water to which fluoride has been added by Scottish Water in exercise of the power conferred by section 1 of the Water (Fluoridation) Act 1985; and

(b)in relation to a supply of such water by a water undertaker, the reference, in subsection (4) above, to the water undertakers concerned shall have effect as references to the water undertaker and Scottish Water.

(6)In subsection (4) above, “serious deficiency in supply” means any existing or threatened serious deficiency in the supply of water (whether in quantity or quality) caused by an exceptional lack of rain or by any accident or unforeseen circumstances.

(7)Arrangements entered into under section 87(1) above shall remain in force until the relevant authority, after giving reasonable notice to the water undertaker, terminates them.

F23(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

88 Power to vary permitted fluoridation agents.E+W

(1)The Secretary of State may by order amend section [F2487C(2)] above by—

(a)adding a reference to another compound of fluorine; or

(b)removing any reference to a compound of fluorine.

(2)The power of the Secretary of State to make orders under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

[F2588APower to vary target concentration of fluorideE+W

(1)The appropriate authority may by order made by statutory instrument provide that section 87A(1) above is to have effect as if for “one milligram per litre” there were substituted a lower concentration specified in the order.

(2)An order under subsection (1) above may make different provision for different geographical areas, or for some such areas and not others.

(3)A statutory instrument containing an order under subsection (1) above shall not be made by the Secretary of State (or by the Secretary of State and the Assembly acting jointly) unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4)In subsection (1) above “appropriate authority”—

(a)in relation to an area which is partly in England and partly in Wales, means the Secretary of State and the Assembly acting jointly;

(b)in relation to an area which is wholly in England, means the Secretary of State; and

(c)in relation to an area which is wholly in Wales, means the Assembly.

(5)An order amending or revoking an order under subsection (1) above made by virtue of subsection (4)(a) above must also be made by the Secretary of State and the Assembly acting jointly.]

F2688BRequirement for fluoridation proposal: EnglandE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688CInitial consultation etc. on fluoridation proposalE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688DAdditional requirements where other local authorities affectedE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688EDecision on fluoridation proposalE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688FDecision-making procedure: exercise of functions by committeeE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688GSecretary of State's duty in relation to fluoridation proposalE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688HPayments by local authorities towards fluoridation costsE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688IVariation or termination of arrangements under section 87(1)E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688JInitial consultation etc. on variation or termination proposalE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688KAdditional requirements where other local authorities affectedE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688LDecision on variation or termination proposalE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688MDecision-making procedure: exercise of functions by committeeE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688NSecretary of State's duty in relation to requests for variation or terminationE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2688OPower to make regulations as to maintenance of section 87 arrangementsE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F2889Consultation F27... E+W

(1)Before taking any step mentioned in subsection (2) below, [F29a relevant authority] shall—

(a)consult and ascertain opinion in accordance with regulations made by [F30that authority]; and

(b)comply with the requirements set out in regulations made by [F31that authority].

(2)The steps are—

(a)requesting a water undertaker to enter into arrangements under section 87(1) above;

(b)requesting a water undertaker to vary any such arrangements in, or except in, prescribed circumstances or cases;

(c)giving notice to a water undertaker under section 87C(7) above to terminate any such arrangements;

(d)maintaining any such arrangements in prescribed circumstances.

(3)Regulations—

(a)under paragraph (a) of subsection (1) above shall include provision about the process which [F32the relevant authority is] to follow for the purposes of that paragraph;

(b)under paragraph (b) of that subsection shall include provision about the requirements which must be satisfied (with respect to the outcome of that process or otherwise) before a step mentioned in subsection (2) above may be taken.

(4)Subsection (1) above shall not apply in relation to a proposal by [F33a relevant authority] to take the step mentioned in subsection (2)(c) above if [F34that authority so directs] by an instrument in writing (and such a direction may apply either generally or in relation to a particular proposal).

(5)[F35In this section “appropriate authority”—

(a)in a case where two or more relevant authorities (one of which is the Assembly) propose to request a particular water undertaker to take a step mentioned in subsection (2)(a), (b) or (c) in respect of arrangements in adjoining areas, means the Secretary of State and the Assembly acting jointly;

(b)in relation to England (except in a case to which paragraph (a) applies), means the Secretary of State; and

(c)in relation to Wales (except in a case to which paragraph (a) applies), means the Assembly.]]

[F3690 Indemnities in respect of fluoridation.E+W

(1)The Secretary of State may, with the consent of the Treasury, agree to indemnify any water undertaker in respect of liabilities which it may incur in complying with arrangements entered into by it pursuant to section 87(1) above.

(2)The Secretary of State may also, with the consent of the Treasury, agree to indemnify any [F37water supply licensee] in respect of liabilities which [F38the licensee] may incur—

(a)in supplying water to which fluoride has been added by a water undertaker by virtue of any such arrangements;

(b)(if the licensee is introducing water into the water undertaker’s supply system) in complying with any obligation imposed on [F38the licensee] by the undertaker in consequence of the arrangements.

(3)The Secretary of State may by regulations make provision with respect to—

(a)the matters in respect of which an indemnity may be given under subsection (1) or (2) above;

(b)the form and terms of any such indemnity; and

(c)such ancillary matters as he sees fit.]

[F3990AReview of fluoridationE+W

(1)A relevant authority which has entered into arrangements under section 87(1) above shall—

(a)monitor the effects of the arrangements on the health of persons living in the area specified in the arrangements; and

(b)in accordance with subsections (3) to (5) below publish reports containing an analysis of those effects.

(2)The relevant authority shall make available—

(a)any information collected by it for the purposes of subsection (1) above; or

(b)summaries of that information.

(3)The relevant authority shall publish a report under subsection (1)(b) above within the period of four years beginning with the date on which the arrangements come into force (unless section 91(1) below applies in relation to the arrangements).

(4)Where section 91(1) below applies in relation to the arrangements, the relevant authority shall publish a report under subsection (1)(b) above within the period of four years beginning with the date on which section 58 of the Water Act 2003 came into force.

(5)The relevant authority shall publish a further report under subsection (1)(b) above within each period of four years beginning with the date on which their last such report was published.

F40(5A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)This section ceases to apply in relation to any arrangements under section 87(1) above if those arrangements are terminated.]

[F4190BOld English fluoridation arrangements: transitional provisionE+W

(1)With effect from the day on which section 176 of the Health and Care Act 2022 comes into force, old English fluoridation arrangements are to be treated for the purposes of this Chapter as if they were arrangements entered into by the water undertaker with the Secretary of State under section 87(1).

(2)The Secretary of State may request such modifications to the arrangements as the Secretary of State considers necessary in order to give effect to subsection (1) (for example to insert the terms mentioned in section 87(6)).

(3)If the Secretary of State and the water undertaker fail to agree the modifications requested by the Secretary of State—

(a)subsection (2) or, as the case may be, (4) of section 87B is to apply as if the parties had failed to agree the terms of the arrangements under section 87(1), and

(b)following determination of the modifications—

(i)the Secretary of State is to give notice of the determination to the water undertaker, and

(ii)the arrangements are deemed to have been modified as so determined with effect from the day after the date of notice.

(4)Sections 87(11) and 89(1) (which relate to consultation) do not apply to the deemed entry into, and modification of, arrangements by virtue of this section.

(5)References in this Chapter to arrangements entered into under section 87(1) include arrangements entered into by a water undertaker by virtue of subsection (1).

(6)In this section “old English fluoridation arrangements” means—

(a)any arrangements entered into by a water undertaker with a Strategic Health Authority under section 87(1) of the Water Industry Act 1991 (before section 87(3) was amended by section 35(2) of the Health and Social Care Act 2012 in relation to England), and

(b)any arrangements which were treated as arrangements falling within paragraph (a) by virtue of section 91 (as that section had effect immediately before the commencement of section 37(4) of the Health and Social Care Act 2012).]

[F4291 [F43Old Welsh fluoridation arrangements: transitional provision]E+W

(1)With effect from the appointed day, [F44old Welsh fluoridation arrangements] shall be treated for the purposes of this Chapter as if they were arrangements entered into by the water undertaker in question with the [F45Welsh Ministers] under section 87(1) above.

(2)The [F46Welsh Ministers] may request such modifications to the arrangements as it considers necessary in order to give effect to subsection (1) above, for example to insert the terms mentioned in section 87(6) above.

(3)If the [F47Welsh Ministers] and the water undertaker fail to agree the modifications requested by [F48the Welsh Ministers]—

(a)subsection F49... (3) or, as the case may be, (4) of section 87B above shall apply as if the parties had failed to agree the terms of arrangements requested under section 87(1) above; and

(b)following determination of the modifications—

(i)the [F47Welsh Ministers] shall give notice of the determination to the water undertaker; and

(ii)the arrangements shall be deemed to have been modified as so determined with effect from the day after the date of the notice.

(4)Sections 87(11) and 89(1) above (which relate to consultation) shall not apply to the deemed entry into, and modification of, arrangements by virtue of this section.

(5)References in this Chapter to arrangements entered into under section 87(1) above shall include arrangements treated as entered into by a water undertaker by virtue of subsection (1) above.

(6)In this section—

• “the appointed day” means the day on which section 58 of the Water Act 2003 comes into force [F50in relation to Wales]; and

• [F51“old Welsh fluoridation arrangements” means arrangements, other than arrangements mentioned in section 90B(6), in pursuance of which a scheme for increasing the fluoride content of water was being operated by a water undertaker by virtue of paragraph 1 of Schedule 7 to this Act immediately before the appointed day.]]