When I was sitting in applications courts I would regularly be handed a third of the bundle of applications and told by the chairman where to sign them. There was virtually no discussion. I repeat.......this was the normal recognised way of processing these matters with the only consideration that of the legal advisor that we must not delay forthcoming business. Even prior to being appointed an approved chairman I made my objections where and when I could that this was a disgraceful way to approve a possible forced entry to premises whether private or business. And then came the currently hotly debated Human Rights Act incoporated into our legal system in 1998 and a couple of additional clauses were inserted by the utility companies into the information laid before us insofar as consideration had been given as to the make up of said households eg invalids, children etc and they thought their obligation was complete. Around this time I discovered The Good Practice Guide* which is reproduced after this post. Whilst I was still a winger I attempted with little success to persuade chairmen of the benefits of applying the "Guide". Generally it was waste of time. On taking the chair I began to impose the document on my wingers prior to 10.00am usually without any objection. There was a sitting where the clock showed 10.30am and I was still questioning an application when the L/A told me quite bluntly there was no more time and we had to get on. There was a heated post court discussion. Over the next few years I gradually persuaded powers that be that it was an utter disgrace and an injustice not to investigate these applications. In those early days more often that not my questions were answered by the reply, "Not to my knowledge, sir." Indeed at one sitting an applicant awaiting his turn in the open court shouted out, "This is rubbish; never had to go through this before." He walked out. My persistence eventually paid off. In my court on every bench there is now an abridged version of the original document** (also reproduced below) which is available for every chairman for reference. I am pleased and perhaps if I am honest a little bit proud that before being kicked out my colleagues and legal advisors would refer to my efforts on this topic as making me the "expert" on the subject.
In the light of the news story I would ask fellow J.P.s to consider these guides if they have have not done so and perhaps consider how seriously they apply themselves when next they sit in applications courts.
* ENERGY DISCONNECTION WARRANTS
BEST PRACTICE GUIDANCE
Under the Rights of Entry (Gas and Electricity
Boards) Act 1954 a representative of a gas or electricity supply company can
apply for a warrant of entry to premises to inspect or read the meter, to install
a prepayment meter, or to disconnect the supply.
Applications for a warrant of entry must be
made on oath under s2(1) of the 1954 Act.
In order for a warrant to be granted, the relevant company must satisfy
the magistrate that admission is reasonably required, that consent has not been
given by or on behalf of the occupier, and that relevant period of notice has
been given.
When considering whether to grant a disconnection warrant,
you should consider asking some or all of the following questions. An explanation for the thinking behind some
of them follows in italics.
Potential questions for
company representatives
1)
How many attempts were made to contact the customer and were any
successful?
There is no legal
requirement on energy companies regarding the number of attempts to contact the
customer in advance of a disconnection to assess vulnerability or discuss
debt. However, the Energy Retail
Association, the dedicated trade association for energy suppliers, provided a
typical example of the attempts made by energy suppliers to contact customers
during the process in its report ‘Protecting Vulnerable Consumers from
Disconnection’ (September 2004) as follows:
·
Collections path duration –
5 months
·
8 attempts to contact
through correspondence
·
2 attempts to contact by
telephone
·
2 attempts to contact by
personal visit to the property
·
1 attempt to contact by
visit to court
·
Final attempt to contact at
warrant execution
2)
If the customer has been successfully contacted, are you satisfied that
they are not, for reasons of their age,
health, disability or severe financial insecurity, unable to safeguard their
personal welfare or the personal welfare of other members of the household, and
what evidence do you have for this?
It
is generally accepted that defining vulnerability is not an exact science. Energy companies currently apply the following
definition, and have stated that no person who meets this definition has been
disconnected since December 2003 or will be disconnected in future – “A customer is vulnerable if for reasons of their age, health, disability or severe financial insecurity they are unable to
safeguard their personal welfare or the personal welfare of other members of
the household”.
3)
Has any indication been
received from third party representatives (such as a carer, social worker,
health visitor or physician) that the customer may be vulnerable?
4)
Are you satisfied that no
member of the household is dependent on medical equipment that is operated by
electricity such as a stair lift, electric wheelchair, defibrillator or
dialysis machine?
In
order to avoid being overly prescriptive in drawing up its definition of
vulnerability the Energy Retail Association provided additional guidance to its
members to ensure that genuinely vulnerable consumers were not excluded. This additional guidance acts as a framework
within which energy suppliers should operate their debt recovery systems, and
where suppliers identify households in the following circumstances they are
advised to consider whether the customer is vulnerable in accordance with the
definition:
·
A customer is caring for an
elderly person in the household;
·
A permanent member of the
household is disabled and unable to support themselves or has a long-term
medical condition;
·
A carer, social worker,
health visitor or physician has indicated that a member of the household may be
vulnerable;
·
Households on a low
income/state benefit with young children; or
·
A customer dependent on
medical equipment that is operated by electricity e.g. a stair lift, electric
wheelchair, defibrillator or dialysis machine
5)
Does the application for a
warrant follow a broken payment arrangement between the customer and his or her
supplier? If so, what was the
arrangement made?
Energy
companies are expected to offer a range of help to customers experiencing
difficulties as an alternative to disconnection, and Standard Licence Condition
35(d) for both gas and electricity supply requires companies to take into
account the customer’s ability to repay debt.
http://www.dti.gov.uk/energy/gas_and_electricity/regulation_policy/licences/sc1_elecsupply.pdf
(Electricity - Page 104)
http://www.dti.gov.uk/energy/gas_and_electricity/regulation_policy/licences/sc1_gassupply.pdf
(Gas - Page 111)
6)
What is the total amount
owed by the customer?
There
is no legal requirement on energy companies for debt to reach a certain level
prior to disconnection. However, Ofgem’s
annual report into supplier performance in line with the regulator’s Social
Action Plan showed that the average amount owed to suppliers by consumers on a
debt payment arrangement as of September 2005 was as follows:
<£100
|
£100-£300
|
£300-£600
|
>£600
|
|
Gas
|
59%
|
27%
|
9%
|
5%
|
Electricity
|
62%
|
23%
|
6%
|
7%
|
7)
Has there been any dispute
about the amount owed by the customer?
Ofgem,
the regulator, and energywatch, the energy consumer representative, produced
guidelines for energy companies in January 2003 entitled ‘Preventing Debt and
Disconnection’. These guidelines were
intended to provide guidance on best practice for the industry. In this guidance, it was suggested that, in
situations where a supplier has clearly been in error and the consumer is not
culpable, good practice is to provide means of redress, which may be financial
or otherwise, and may include reducing debts or writing off debts over a
certain age (mention Super Complaint); not blocking consumers if they wish to
change suppliers; or accepting repayment over an extended period at least as
long as the period over which the bill has accrued (notwithstanding the
obligation under gas and electricity Supply Licence Condition 35d to take into
account the ability to pay).
8)
Under what circumstances,
when the engineer arrives at the property, would the disconnection not be
carried out?
The Energy Retail
Association has indicated that the final attempt by energy companies to contact
the consumer to assess vulnerability and discuss debt is at the time of warrant
execution and that, therefore, all field staff should be trained to recognise
signs of vulnerability and be empowered to halt the disconnection procedure
pending further investigation by suppliers’ priority service teams. If it is assessed that the consumer is
vulnerable according to the accepted industry definition or the additional
guidance provided by the Energy Retail Association, the consumer should have
their record flagged and be offered the help most appropriate to their needs.
9)
Under what circumstances will a prepayment meter be fitted at the
premises?
The fitting of a prepayment
meter (PPM) to recover debt varies between gas and electricity, which has led
to the discrepancy in the number of disconnections between the two fuels. It is not necessary for the consumer to be
present when PPMs are fitted in most cases.
However, some suppliers are reluctant to fit gas PPMs without the
consumer present on safety grounds. The
Energy Retail Association has indicated that fitting a PPM is now the preferred
option to disconnection where it is possible to do so.
10)
Has information been provided to the customer about how they could
reduce their bills in future by more efficient use of energy?
Good practice as recommended
by Ofgem and energywatch is for energy suppliers, when staff identify a
consumer who would benefit from energy efficiency advice, to be proactive in
providing that advice by passing the consumer’s details to energy efficiency
specialists within the company.
11)
What steps have been taken to ensure that the address is correct in
relation to the supply point?
12)
What steps have been taken to ensure that the address is currently
occupied by the person responsible for the debt?
Good
practice as recommended by Ofgem and energywatch is for suppliers to make every
effort to minimize the extent to which billing errors lead to debt or exacerbate payment problems. Although rare,
the above are potential examples of such an error.
13)
If in receipt of benefits,
has any attempt been made to enable the customer to pay off the arrears using
Fuel Direct?
Fuel
Direct is part of the Third Party Deductions Scheme operated by the Department
of Work and Pensions. It allows for a deduction
to be made from benefits at source to repay debt accrued to energy
suppliers. It is limited to consumers on
income support, jobseeker’s allowance and pension credit. Suppliers are not able to control who
qualifies for Fuel Direct – this decision is taken by the local benefits
office. However, good practice as
recommended by Ofgem and energywatch would be for suppliers to offer Fuel
Direct to such consumers who are in debt and eligible and to approach the relevant
benefits office. Third Party Deductions
will only be used when all other avenues of debt recovery have been exhausted
and can be used to pay any outstanding debts and maintain the supply or to
prevent any further debt accruing.
Background
Information for magistrates
Actions before applying for a warrant.
Whilst there is no legal requirement to do so,
energy suppliers wishing to disconnect energy supply should make several attempts
to contact the customer – by letter, by phone and in person - before moving to
apply for a warrant in accordance with voluntary guidance published in 2004 by
the Energy Retail Association, the trade association for domestic energy
suppliers. They can also deal with a
third party agent, though they may not always succeed in establishing
contact. If, during contact with the
customer, it becomes apparent that the customer is unable to pay the bill,
suppliers’ staff will attempt to obtain further information about the customer
or their dependents, including such details as their age, whether they are
currently receiving benefits, the number of young children in the household or
any special circumstances such as whether any members of the household are
disabled or have special needs.
The typical number of attempts to contact the
customer is detailed earlier in this document.
Regulation on disconnections
Companies wishing to supply gas or electricity
in Great Britain
must hold a licence from the regulator, the Office of Gas and Electricity
Markets (Ofgem), and must comply with a list of Standard Licence
Conditions. Of relevance to the issue of
the disconnection of supply are Standard Licence Conditions 35 and 37A for gas
suppliers and Standard Licence Condition 35 for electricity suppliers.
Limitations on possible disconnection
The
effect of these Licence Conditions is that gas and electricity suppliers
should, as far as practicable, avoid disconnecting the supply where the
customer (the bill payer) is either of pensionable age or disabled or
chronically sick in the period between 1 October and 31 March (commonly
referred to as the Winter Moratorium) and, in the case of gas supply, should
not disconnect households where, to the knowledge or reasonable belief of the
company, the customer is of pensionable age and lives alone or with other
persons all of whom are also of pensionable age or under eighteen years of age
between the same dates.
Safeguards and duties
In
addition, energy companies are also expected to offer a range of help to
customers experiencing difficulties as an alternative to disconnection, and
Standard Licence Condition 35(d) for both gas and electricity supply requires
companies to take into account the customer’s ability to repay debt. Suppliers have a duty to accept payment by
Fuel Direct, a system whereby customers on three qualifying benefits (Income
Support, Pension Credit and Jobseekers Allowance) facing disconnection can pay
a defined minimum which is deducted from benefits weekly. Suppliers are also required to offer
customers a Pre Payment Meter before they move to disconnect supply.
Industry Vulnerable Customer Safety Net
In September 2004 the Energy Retail Association
(ERA), the dedicated trade association for the six major UK energy suppliers, published a
report on the issues of debt and disconnection in the energy sector following a
challenge from Ofgem to industry to develop measures to protect vulnerable
customers from being disconnected. This
report presented the definition of a vulnerable customer which member companies
will seek to abide by, that “a customer
is vulnerable if for reasons of age, health, disability or
severe financial insecurity they are unable to safeguard their personal welfare
or the personal welfare of other members of the household.”
References to ‘customer’ in the Standard
Licence Conditions refer to the bill payer.
The ERA has stated that industry’s intention is to protect all those who
are vulnerable and at risk from disconnection, which has prompted the inclusion
in its definition of vulnerability that the bill payer must also be able to
safeguard the welfare of other members of the household.
In order to ensure that genuinely vulnerable
customers are not excluded from the definition the ERA has also produced
guidance to suppliers on identifying vulnerability, noting five separate
circumstances which, if applicable, could lead to energy suppliers determining that
the customer is vulnerable. These are:
- A customer is caring for an elderly person in the household;
- A permanent member of the household is disabled and unable to support themselves or has a long-term medical condition;
- A carer, social worker, health visitor or physician has indicated that a member of the household may be vulnerable;
- Households on a low income/state benefit with young children; or
- A customer dependent on medical equipment that is operated by electricity e.g. a stair lift, electric wheelchair, defibrillator or dialysis machine.
Ofgem/energywatch guidance
In January 2003 the regulator, Ofgem, and the
consumer watchdog, energywatch,
produced a set of guidelines aimed at improving suppliers’ performance in debt management and
recovery and in reducing disconnection, identifying six key areas for action –
minimising billing errors; using incoming calls to identify customers in
difficulty; using customer records to target energy efficiency improvements
(these reduce energy use and therefore cost, thus reducing the potential for
debt); demonstrating flexibility in debt recovery; offering sustainable
solutions to customers in extreme hardship; and helping customers who are
unable to manage their own affairs.
Since January 2003 all suppliers have developed strategies for
improvements in these areas.
Disconnection figures
Statistics published by Ofgem show that the
number of disconnections for gas and electricity in the last five calendar
years was as follows:
Year
|
Gas
|
Electricity
|
Total
|
2000
|
16500
|
300
|
19500
|
2001
|
26088
|
375
|
26463
|
2002
|
21780
|
995
|
22775
|
2003
|
15973
|
1361
|
17334
|
2004
|
2553
|
727
|
3280
|
It is accepted that the discrepancy between the
figures for gas and electricity are due to the fact that it is easier to
install a prepayment meter (PPM) for electricity supply than it is for gas, as
in the latter case it is necessary for the customer to be present for safe
installation to take place.
**
Utilities Warrants – Questions for Applicants
1)
How many attempts
were made to contact the customer before the application today and were any
successful?
2)
Could the customer be
vulnerable?
3)
Are you satisfied that no member of the household is
dependent on medical equipment that is operated by electricity such as a stair
lift, electric wheelchair, defibrillator or dialysis machine?
4)
What is the total amount owed by the customer and what
period do the arrears cover?
5)
Has there been any dispute about the amount owed by
the customer? How are you sure that you
are right and they are wrong?
6)
Could the arrears be met by an arrangement between the
customer and his or her supplier?
7)
If in receipt of benefits, has any attempt been made
to enable the customer to pay off the arrears using Fuel Direct?
8)
Under what circumstances, when the engineer arrives at
the property, would the disconnection not be carried out?
9)
Has information
been provided to the customer about how they could reduce their bills in future
by more efficient use of energy?
10)
Are you sure that
the address is currently occupied by the person responsible for the debt?
