WARRANTS OF ENTRY & UTILITY COMPANIES//SIX OF THE BEST

I`m obviously pleased that since this blog`s inception almost four years ago at WWW.THE JUSTICEOFTHEPEACE.BLOG.CO.UK it has had almost half a million  viewers.  However continuing techie problems there persuades me that a permanent switch to this site at BLOGGER will enable me to continue posting in a trouble free environment.

Amongst the most commented upon subjects in the last four years has been that of utility companies and their threats of cutting off electricity or gas supply to ordinary consumers.  In order to do so they generally must have a warrant of entry signed by a magistrate. The following six posts are on this topic and were published between December 2009 and April of this year.  

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• THEY ARE STILL THREATENING TO CUT OFF YOUR ELECTRICITY!

by TheJusticeofthePeace @ 19. Dec. 2009. – 11:40:29

We hear a lot about "Human Rights" these days. I am not referring to our rights as human beings but to a particular consequence of The Human Rights Act of 1998. Until that became a part of the English legal system utility companies after due process including the obtaining of an entry warrant at a magistrates` court could cut off the supply of electricity at an address where there appeared to be no possibility of obtaining payment of money owed by the consumer of electric power. Depending on the diligence of individual benches the power companies` representatives, occasionally employees with some local knowledge of the situation, but usually bailiffs, could seek a warrant of entry from a bench offering only the scantiest information regarding the individual concerned and forcibly enter the premises and cut off the power supply. Since the above act became law power companies have had to comply with strict guidelines prior to going to court; eg making personal visits and attempting to talk to the account holder, ascertaining whether or not vulnerable people [elderly or young children] live in the property etc and above all sending out letters warning of the intention to seek a warrant and advising the householder of his/her human rights under the legislation. Upon making an application at Magistrates` Court a diligent bench can ask many questions to ensure that entry is warranted.....eg have there been previous attempts to obtain a warrant at the same address, has there been a broken payment agreement, how much is actually owed in unpaid bills, has there been a dispute over the amount claimed, is the person responsible for the debt still in occupation at the address or is somebody new living there, and many other other questions depending on the individual case. Only after a bench being satisfied the request is in order will or should a warrant be granted. And even so rarely in domestic cases will the power be disconnected. A pre-payment meter will be installed.

Seems quite straightforward. The householder can`t or won`t pay the bill and the supply company can`t cut off the supply unless there is a health risk. But you`d be quite wrong. Many organisations rely on their superior knowledge and menace the individual citizen into compliance when these empty threats have no basis in law and are just the tactics of a bully. It happened last week to an aquaintance of mine. He had had his place refurbished before renting it to a friend. After receiving estimated bills for part of the period he informed Southern Electric by phone and letter of the dates for which he was responsible and informed them again when his friend moved in. Meter readings were sent at the changeover date. A couple of days ago he received another bill of the same estimated unit usage and across the bill was written, "NOTICE OF ELECTRICITY DISCONNECTION"...."unless we receive full payment immediately we will have no alternative than to disconnect the supply of electricity to...."

Advised by me my friend knew it was an empty threat. But consider a harrassed single mother or father without the ability to ascertain her remedies in such a situation. Stress and worry piled on increasing hardship and other tensions. Or an elderly person on her/his own in poor health and with lonliness an only companion or somebody new both to this country and the terror tactics used by some businesses to intimidate customers. Hang your head in shame SOUTHERN ELECTRIC.

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• WARRANTS OF ENTRY AND APPLICATIONS TO DISCONNECT UTILITY SUPPLY

by TheJusticeofthePeace @ 23. Mar. 2010. – 17:51:54

Amongst the "extra" matters dealt with in Magistrates` Courts I have recently commented on statutary declarations.  Another common function for all JPs is deciding whether or not to grant Warrants of Entry for utility companies either to disconnect supply gas or electricity [usually at vacant or business premises] or to replace a regular meter with a pre-payment meter.  It has been and might still be the norm for these applications to be "rubber stamped" without too much investigation.

However with many colleagues in various courts all over the country I have been consulting a "good practice guide" which encourages courts to take a more inquisitorial approach to these applications in spite of the time taken when there is a crowded list.

A magistrate from a neighbouring court told me recently that when he was sitting outside his own court he was surprised at the novel questioning of the applicants by the chairman.  It had never happened when he was sitting at his own court.  In the session one application was to disconnect the landlord`s supply in a block of flats the tenants having no say in the matter.  In practice it would probably have meant no lighting to the common parts eg entrance hall and stairways. In view of the possible danger to infirm or elderly occupants falling down stairs that bench refused the application and suggested no further application be made until there was a firm refusal from the absentee landlord to pay the outstanding bill of c£300.  He also described an application to fit a pre-payment meter [always a higher tariff] to an occupier he discovered was two weeks late in an arrears payment previously agreed.  This history was discovered he reported  by the chairman`s questioning the bailiff in quite some detail.

He told me that he had never previously sat on a bench which had refused an application to disconnect and fit a pre-payment meter.  Information from that episode he said would be conveyed to his "home" court.

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• SOUTHERN ELECTRIC THINKS JPs WILL RUBBER STAMP THEIR ENTRY WARRANTS

by TheJusticeofthePeace @ 01. Jul. 2010. – 16:43:24

On 19th December 2009 I reported how Southern Electric, one of this country`s major utility suppliers, was sending threatening letters to overdue payers. These "red" bills had a message which was in effect pay now or your supply will be cut off. The actual wording [unless it has been changed] is "NOTICE OF ELECTRICITY DISCONNECTION"...."unless we receive full payment immediately we will have no alternative than to disconnect the supply of electricity to...." This is an empty threat and has no power. A domestic supply cannot be cut off for non payment of a bill without a warrant having first been obtained by the supplier or its agent at a Magistrates` Court. It is an absolutely disgraceful example of practices which for the most part retailers and suppliers have stopped using. But it seems to have gone from bad to worse for Southern Electric and they are still disregarding approved practice.

I sit on a bench where I personally [with colleagues] deal with applications about once every three weeks from utility companies. Our strict inquisitorial approach to such suppliers or their agents when applications are before us for dis-connection, or as is most likely, installation of a pre-payment meter has been extremely worthwhile insofar as they usually appear with most of the information and answers we require to ensure as far as we can that not a single case of entry could have been avoided. That is all but Southern Electric who still seem to think that all they have to do is appear before a bench of magistrates and say, "at 1111 Main High Street, the occupier owes £xxx and here is a warrant of entry for you to sign." Last week that is exactly what took place except of course these scanty details were on the information document presented. The agent was unable to supply any real information at all, answer any question on detail and in one case confirm the identity of the account holder. He was told politely to get lost and not to return until he had the information available for each warrant as might be required under the agreed Best Practice Guidance on this topic.

Millions of households are in difficulties paying gas and electricity bills. That is no excuse for Southern Electric pursuing such payments by threatening actions which can cause such distress and which they know they cannot carry out against these vulnerable people . 

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• CUTTING OFF SUPPLY BY UTILITY COMPANIES AND OFGEM`S POSITION

by TheJusticeofthePeace @ 16. Nov. 2011. – 08:07:39 

I had thought I had written all that had to be written about utility companies and J.P.s and their previously long held attitudes that in order to secure a warrant to enter a customer`s home or business to disconnect supply or fit a pre payment meter all they had to do was to turn up at court and ask for the bench to issue such. At my court owing to pressures made to our senior staff this is no longer the case and many of my colleagues are now following the Best Practice guide. By so doing this ensures that warrants are not showered upon the companies` bailiffs like legal confetti. But thanks to information from commenter Tianc there is much more to be said on this topic.

Ofgem is the organisation which regulates the electricity and gas markets in Great Britain. As such it stands between suppliers and consumers. It is or should not be allied to either side of the market in energy. “Colleagues” is a word that could be defined as fellow officials or workers in an organisation, business or profession. Colloquially I would assert that the connotation of the word denotes those whose objectives are similar or collaborative.

On 16/08/2010 a letter was sent by OFGEM to “Holders of Gas and Electricity Supply Licences, consumers and their representatives, consumer bodies and other interested parties”. That letter addressed the recipients as “Dear Colleagues”. Pedantic I might be but that form of address in a letter which can be accessed here in the circumstances to be outlined gives perhaps some cause for concern that the poor consumer who pays for everything at the end of a long supply line is an afterthought. The essence of the letter is the increasing distribution of smart meters. With these in situ remote changes can be made to a customer`s supply. Tariffs can be changed including changing to pre payment meters and supply can be cut off. Pre payment meters are a bone of contention; when fitted they are designed to use a portion of the payments made to collect unpaid balances. It is a source of disquiet to some colleagues that J.P.s` legal powers are not those to authorise debt collection in these matters. What is of more significance in OFGEM`s letter with regard to cutting off supply is that nowhere do they discuss the current legal requirement for a magistrates` warrant of entry to be issued before forced entry can be made. If remote disconnection is contemplated, more likely for business rather than domestic premises there is an important question as to how the application is to be investigated prior to any direct action by the supplier unlike the current position with the requirement of a personal appearance at court by applicant to be questioned by the bench on the particulars of the application. If there is being contemplated a diminution of the guidance particulars as currently being increasingly practised every day in every magistrates` court in England & Wales that will be a very bad day for individual consumers.

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• APPLICATION COURTS MUST SCRUTINISE DETAILS

by TheJusticeofthePeace @ 26. Jan. 2013. – 17:06:43 

It seems that some utility companies still can`t get into their corporate heads that it is only under very limited circumstances that they can switch off the gas or electricity to a domestic property. I have posted here more than once on warrants of entry and indeed that subject is the source of very many page views to this blog.

Recently for the first time this year I sat in such an applications court and the representative of a major utilities supplier presented us with two dozen warrants of entry the wording of which subsequent to the stated intention of fitting pre-payment meters was that the company retained an alternative of cutting off supply. This was of course after his repetition of the “human rights” mantra including words to the effect that the company would not disconnect. Usually the applicant will state in open court that any households with a vulnerable* person will not be amongst the applications. Despite some initial observations from our L/A we scored through the offending words re disconnection, initialled at the side and then signed off the warrants.

There is no doubt in my mind that including in the warrant words as above is no more than a threatening posture. Such actions will only cease if all colleagues take a similar forensic action and closely question such applications according to the Good Practice Guide.

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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:

1. A customer is caring for an elderly person in the household;
2. A permanent member of the household is disabled and unable to support themselves or has a long-term medical condition;
3. A carer, social worker, health visitor or physician has indicated that a member of the household may be vulnerable;
4. Households on a low income/state benefit with young children; or
5. A customer dependent on medical equipment that is operated by electricity e.g. a stair lift, electric wheelchair, defibrillator or dialysis machine.

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• UTILITY COMPANIES STILL DON`T GET IT

by TheJusticeofthePeace @ 25. Apr. 2013. – 12:24:56 

Blog analytics show that among the most visited pages on this site by what I assume are non legally minded viewers are those concerning entry warrants by utility companies or, as often is the case, by bailiffs appointed by them.

As a newbie magistrate I was concerned at the rubber stamping of such applications without so much as a cursory inspection of the warrants` terms or inquiry in any individual case. To a certain extent that situation has improved and more of my colleagues are taking an inquisitorial role in their questioning of such applications. There is no doubt that since the requirement to send out “human rights” letters many utility companies consider that there is no other investigation required on their part prior to an application to install a pre payment meter for those who have an outstanding debt. Searches here will produce many previous posts on this subject. I had thought that the “message” was beginning to get through to the companies and their representatives; this court applies the principles enshrined in the “Good Practice Guide” for utility companies. I have been over optimistic.

A bailiff before our bench not so long ago was simply that; a bailiff. Unlike the companies who employ their own staff to make application and who have visited every address on their list of warrants this person had absolutely no knowledge of any individual case except that some were domestic and some commercial and that each owed a certain amount which in one case was less that £150. She had no knowledge of when any previous payment had been made, denied that a person opposing in person a warrant being applied for on the grounds that she was making arranged payments to clear her account had indeed been on a payment arrangement scheme, All she had to support her applications was an address, sometimes without an occupant’s name and an uncorroborated outstanding amount. In addition the warrants` wording was such that an application to cut off supply not exclusively on health and safety grounds was included. After some brief discussion we scored through the offending words where required and returned unsigned about half the applications.

I would hope that colleagues throughout the country are being thoughtful enough about individuals` rights to be strong enough to consider carefully such warrants even in the face of some legal advisors` impatience to get on with the morning`s list.

BLAME IS ON OUR OWN DOORSTEPS

There are some very rare occasions when any thinking person, and I include of course all those who give a few minutes of their valuable time to read my jottings, must refuse to sit on the philosophical fence and  declare an opinion on a subject of the utmost gravity.  We are living through such times. I am  not referring solely to the tragedy in Ukraine but to legal circumstances surrounding its ancillary personalities and principles who and which are arguably at the top of the legal tree and the application of justice in what still remains of a society where everyone is equal before the law.  Two examples of the muddled thinking of the senior judiciary and at the top of the Bar have presented themselves in the last six months that prove to me at least that the letter of the law has been positioned as the arbiter of justice as opposed to its spirit. These are the situations recently at the Hong Court of Final Appeal and the Royal Courts of Justice over the last few years where routinely Russian oligarchs and their bottomless treasure chests have been stifling criticism by throwing some of their ill gotten gains at those who represent them.. 

It became apparent to any observer with an ounce of common sense and/or an insight into Chinese  political obfuscation that the agreement on the transfer of Hong Kong to China would last only as long as it suited the Chinese. The changes in China since the 1997 transfer have been apparent to all. The regime under the current dictator has shown that nothing will stand in his way of his securing what he believes to be China`s future as the world`s unassailable military power and that includes the futures of Hong Kong and Taiwan.  The United Kingdom has provided him with the legal fig leaf of the Hong Kong Court of Final Appeal where the most senior British judiciary have presided.  Serving judiciary who function on the Court have their fees paid to the UK Treasury.  Retired senior judiciary presumably negotiate their own fee for services rendered because it seems such information is unknown to Mr Google.  The mealy mouthed kowtowing of the UK to the supine head of government in Hong Kong was published on 27th August last year by the Supreme Court.  This head in sand position so beloved by senior legal minds has been endorsed by a retired member of the Supreme Court on the basis to quote Lyndon Johnson, late US President, "better to have your enemies in the tent pissing out than outside pissing in".  The underlying thinking processes behind such actions, in my humble opinion, seem to be that that they are above government intervention in their opinion of the application of the law.  But if the existing law is untenable, undemocratic, or perhaps badly drafted do those who sit in judgement not consider that they are enablers of anything from injustice to dictatorship?  It would appear not. Supreme rulers of all shades throughout history have always found that the law can be tailored to their requirements and compliant judges can be persuaded to do their bidding brushing aside all valid objections but the converse equally applies: by counting the numbers of angels on a pinhead lawyers can invoke law to suit their sometimes nefarious purposes even when justice is the victim. 

The current situation in Ukraine has opened a nest of previously hidden vipers around Russian oligarchs and their fortunes beckoned here by the curled forefinger of unscrupulous simple minded governments from Tony Blair via David Cameron  to Boris Johnson.  It appears that the last named is striving to avoid for as long as possible the imposition of legislation that would open to public scrutiny the truly obnoxious lengths he has gone to utilise benefit from the laxity with which Russian money was able to ingratiate itself and thus its owners within the innards of the Conservative Party.  And now enter the lawyers.  Following perhaps the example of Lord Pannick QC legal arguments have been loudly voiced at any suggestion that the current legal rights of defence by Russian enablers of Putin be, in their opinion, curtailed insofar as their previous attempts, some successful, in curbing free speech have demonstrated, are anathema to the rule of law.  So conversely to the situation in Hong Kong it is the legal profession (in part) which is opposing government. However to this outsider the enormous financial milch cow of representing these thieves of Russian state assets during and after the time of Boris Yeltsin seems to be the driving force of their supposed shoring up of the legal system against arbitrary government decree.    

It seems that for many lawyers, to quote Dickens, "It was the best of times; it was the worst of times. It was the age of wisdom, it was the age of foolishness."  I would sum up by saying that in some of the upper reaches of the legal fraternity  the rule of the law entrenched becomes secondary to the tool of the claw outstretched.   The law can give and the law can take away. The law is in the end what we make it and the lawmakers sit in London SW1.  If our legal system is becoming but a shadow of its former regal self the blame is on our own doorsteps. 

EVERYDAY INJUSTICE AT MAGISTRATES COURTS

I have recently had a comment from a serving JP about his disquiet in the manner in which warrants for utility companies are rubber stamped sometimes in their hundreds.  As a newbie to the bench I too was very much disturbed by the complete lack of justice for those faced with court action for non payment.  There seemed to be no interest by anybody in even recognising there was a problem from my colleagues up to the Deputy Justices Clerk.  However over a period of about two years with the assistance of a sympathetic L/A and a new DJC I persuaded him that the document copied below be placed on the bench for every such hearing. I fear, however, that since my retirement old habits have prevailed.  Search https://thejusticeofthepeaceblog.blogspot.com/2013/08/six-of-best.html  for a summary of early previous posts on this topic. 

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Applications by utilities companies for warrants to enter premises to inspect or read a meter/install a pre-payment meter, or to disconnect the supply – 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?

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Energy Disconnection Warrants – An extract from the 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.  

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.      

WHEN JURIES GET IT "WRONG"

The NHS, the monarchy, the Spanish Inquisition and trial by jury without wasting my reader`s time by asking the question, have one thing in common: they are or were in the case of that Iberian organisation held to be sacrosanct for the societies that created them. The collapse of everything supported in those beliefs by those societies was the prediction of all who argued that their removal or modification would lead to a world of chaos or worse.  A cartoonist`s favourite backdrop of a sandwich board.......THE END OF THE WORLD IS NIGH....... perfectly sums up those believers` attitudes if change were to take place. The NHS is regarded almost in religious terms.  Attempts to improve efficiency without just a shower of money being thrown at it are viewed as contemptible especially by the wokes of the Left and the luvvies on the Right. The Catholic Church seems to have survived and even thrived subsequent to the definitive end of the Spanish Inquisition when the Spanish queen regent María Cristina de Borbón issued a decree abolishing it on July 15th 1834. And with three waiting in line for the succession it would take a brave gambler to bet against the toddler prince taking his place in Buck House towards the latter half of this century.  Standing alone is the current accepted concept of trial by jury which appears to be being questioned as the best form of justice for all those on trial at the crown court.  Northern Ireland has  been subject to judge only trial.  Diplock courts, in which serious criminal cases connected with the Troubles were  tried by a single judge sitting without a jury, were initiated  in 1973. In the ensuing years well over 10,000 defendants passed through the system, the annual average having dropped from about 1,000 at the peak of the Troubles in the Seventies to about 400 in the early Nineties. These figures represented about a third of all serious criminal cases in Northern Ireland, a statistic in itself revealing of the huge impact of the emergency regime on the legal process as a whole.  They were abolished in 2007. To quote Wikipedia: "The Justice and Security (Northern Ireland) Act 2007 abolished the idea of "scheduled offences" automatically tried without a jury. Instead it allows for the Director of Public Prosecutions for Northern Ireland to certify a non-jury trial for any indictable offence provided it was committed either from a motive of "religious or political hostility" or by on behalf of a group which is both proscribed under the Terrorism Act 2000 and "connected with the affairs of Northern Ireland". The act seeks to address the concerns which led to the establishment of Diplock courts by enhancing jurors' anonymity to prevent intimidation, and increasing randomised juror selection to prevent bias.The Northern Ireland Office's explanatory notes for the 2007 act characterise its changes as "repeal" of "the Diplock system" and its replacement with "a new system of non-jury trial". On the other hand courts in such trials have much the same format as the pre-2007 Diplock courts."  When the issue of amending the rules on jury trials is alluded to the legal profession almost with one voice expresses its horror.  Last year with regard to the backlog of cases owing to the pandemic respected QC Geoffrey Robertson proposed the possibility of non jury trials under certain conditions. Robertson, who was born in Australia is quoted as saying,

“We believe sentimentally that trial by jury is a defendant’s fundamental right but why not give them the additional right to choose instead a reasoned verdict from a judge as they have, for example, in most Australian states. That would get some courts back and running, even if barristers and judges have to argue through their face masks and it would be a boon to defendants with good cases who do not want justice delayed”.

I am not aware if any scientific authoritative poll has been taken of lawyers on the subject but I would opine the vast majority would not agree with Mr Robertson.

And that brings me to the case of the six Extinction Rebellion protesters who, despite the judge`s advice, warning, information on the law and explicit direction, were acquitted by a jury last week of causing criminal damage by deliberately spraying graffiti or smashing windows at the Shell building in Belvedere Road central London.  This immediately reminded me of the case of Clive Ponting.  To quote Wikipedia once again, "While a senior civil servant at the Ministry of Defence (MoD), Ponting sent two documents, subsequently nicknamed "the crown jewels" to Labour MP Tam Dalyell in July 1984 concerning the sinking of the Argentine navy warship General Belgrano, a key incident in the 1982 Falklands War. After Ponting admitted revealing the information, the Ministry of Defence suspended him without pay. On 17 August 1984, he was charged with a criminal offence under Section 2 of the Official Secrets Act of 1911.The Prime Minister, Margaret Thatcher, had his pay reinstated once she had been briefed on what had happened. Ponting's defence at the trial was that the matter and its disclosure to a Member of Parliament were in the public interest. It was the first case under the Official Secrets Act that involved giving information to Parliament. Although Ponting expected to be imprisoned, he was acquitted by the jury. The acquittal came despite the judge's direction to the jury, and hence by definition a "perverse verdict". The judge, Sir Anthony McCowan, "had indicated that the jury should convict him". [my bold].  As a direct result a new Official Secrets Act was passed in 1989 to give government greater control of what was classed as "secret". 

With regard to that recent ER decision it appears that the jury must have followed the line that the end justifies the means; the end being the political end i.e. a natural outcome of radical left wing opinion that the "victim" opposed ER philosophy. None will ever know if the "victim" were a person or persons would the jury have come to a similar decision.  Would offenders of an extreme right wing group or Islamist persuasion committing such an offence or worse be favoured with a defiance of a judge`s direction and/or being lauded by their peers and fellow believers?  This type of decision making  has been the basis of countless atrocities by individuals, groups and nation states. It is nihilistic. It is a perversion of justice and it will surely lead to legal and/or political ramifications. The corollary which has been expressed here more than once is that the composition of juries and the competence of jurors must be examined in detail by a parliamentary or royal commission; whichever the government considers most suitable. The current situation of jury eligibility as laid down by government is available here.  

There is no doubt in my opinion whether or not the entire structure of trial by jury is re-examined that the individual requirements of the individual potential juror must be re-examined.  The most obvious need for a juror whose finding can be life changing for the defendant is a comprehensive understanding of the English language.  Many jurors have English as a second language with varying degrees of fluency.  This should be no surprise to anyone.  The Office for National Statistics (ONS) estimate that in 2019 nearly 9.5 million people living in the UK were born abroad,  just over 14% of the total population of the UK. Of these, 3.6 million were from countries now in the European Union and 5.9 million were from non-EU countries.  A basic understanding of simple statistics or other simple arithmetical concepts is not a requirement for a juror although many legal cases depend upon such an understanding.  Jurors do not have to be British citizens.  This facet of eligibility is one that I personally find hardest to accept.  

Lawyers are happy to work within a system that allows a single District Judge (MC) to be judge, jury and sentencer within the magistrates court.  Indeed some would hold that that single person bench is preferable for their clients {and themselves?} than a three person bench of Justices of the Peace. It therefore seems illogical for there to be such opposition in the wigged fraternity to at least a re appraisal of the current jury system.  But as I began this blog logic seems to be a facility missing in this matter.   

    

JUSTICE EVAPORATES WITH 8 JUSTICE SECRETARIES SINCE 2010

To put it mildly, the justice system is in a mess. As will increasingly become apparent much of this mess as with so many other policies is being put down by government to Covid 19. Perhaps there other reasons one of which is that we are now on Secretary of State/ Lord Chancellor number eight since 2010. With only one of this number still clinging on to the greasy political pole and the current incumbent there as a demotion is it any wonder that justice, a pillar of any successful democracy, is crumbling before our very eyes. 

With Kenneth Clarke on his first appearance before the Justice Select Committee 25/7/2010 we saw what was below that "I`m a fair chap" image; " He was not fussed about competitive tendering (“we have enough lawyers” and there is “no lack of people wanting to come in”). “I haven’t made that many policy decisions yet”, he concluded." Further comment is available here. He was proud to tell the media that in that first austerity budget of the Coalition he had made cuts of 23.8% in the MOJ budget and that he was the first secretary of state to have submitted that intention to the Chancellor of the Exchequer. His period at Petty France was just the beginning of the cracks which are now threatening to collapse the pillar of justice. 

From the sublime Kenneth Clarke to the ridiculous Chris Grayling who was his anointed successor. It was his bright idea to decide that having courts and personnel to offer a system of justice to all as the right of every citizen as had been the ethos (more or less) for centuries was untenable and wasteful of precious funds. He decided to impose a tax on every offender for the privilege of appearing in a court of law. This tax was to be over and above any fines, compensation or social or custodial sentence imposed. It was not means tested. Perhaps his landmark achievement was to forbid visitors bringing books for prisoners to read in jail; such a stupid decision it was reversed by his successor. However he will forever be  remembered for his actions in his next job as Transport Secretary in signing a shipping contract with a company which had no ships.But no problem; he was a staunch supporter of our prime  minister and a fanatic Brexiteer. 

Next came Michael Gove to who, to many supporters, is the brains of the party. Speaking outside his portfolio before the Referendum he was not immune to endorsing the lies of the Leavers; Just prior on being questioned on Sky it is quoted, " Like Mr Cameron, Mr Gove faced intense scrutiny of his campaign tactics, in particular the claim that the UK sends £350m to the EU every week. Sky’s political editor Faisal Islam said Mr Gove knew that figure was wrong, and accused him of importing the “post-truth” politics of Donald Trump to the UK. The UK Statistics Authority has said the figure “is misleading and undermines trust in official statistics”, because it is a gross sum and does not account for Britain’s rebate and funding received from the EU. In response to Mr Islam, Mr Gove agreed to have the figure independently audited."  The full text is available here. To quote from Politico, "As justice secretary and lord chancellor, Gove got “a lot of the judges and legal Twitter on-side” with warm words on rehabilitation and the justice system, according to one former civil servant who was working in government at the time.But the ex-official believes Gove “did little in the way of actual reform, simply applying his strong rhetorical skills to tell a story about justice.” That was mainly due to his short tenure. He was in post for just over a year before the EU referendum brought the Cameron government to an abrupt halt". It is arguable that had he been in post longer our justice system would have benefited greatly from his intellectual prowess, a facility sadly lacking in some of his contemporaries.  Under his short stewardship at Petty France the MOJ produced its annual report 2016/2017 as bland and meaningless as ever. 

We have four strategic objectives to deliver our vision. 

1. A prison and probation service that reforms offenders. We will:
 Maintain the highest level of public protection;
 Keep prisons safe and secure;
 Reform offenders; and
 Reduce reoffending.
2. A modern courts and justice system. We will:
 Upgrade the best justice system in the world using
technology and modern ways of working;
 Put the citizen at the centre of the justice system;
 Protect vulnerable victims, witnesses and children; and
 Support the independent judiciary and their ability to attract the best and widest range of talent.
3. A Global Britain that promotes the rule of law. We will:
 Make the most of opportunities presented by exiting the
EU to expand the reach of our world leading legal services;
 Promote our world class legal sector and judiciary; and
 Protect our common law traditions and strengthen ourhuman rights framework.
4. A transformed department. We will:
 Deliver excellent services to the public through a diverse,
engaged and capable workforce;
 Be a unified and responsive department, collaborating withpartners across the justice system and government;
 Put data, information, technology and innovation at the
heart of our work to improve our services; and
 Deliver value and drive efficiency in all we do.

Liz Truss, another non lawyer, the next incumbent, lasted less than one year bossing the MOJ.  Her short reign was rather less than successful.  She initially failed to defend the judiciary in November 2016 after they were branded “ Enemies of the people” by the Daily Mail because they ruled parliament had to be given a vote on triggering Brexit. Ms Truss later issued a statement supporting the judges but this was seen as too little, too late. Her actions drew unprecedented criticism from Lord Thomas, the Lord Chief Justice, who told a committee of MPs in March that he felt Ms Truss had been “completely and absolutely wrong”. It was the duty of Ms Truss to defend judges, Lord Thomas told the committee, adding he was “very disappointed” that she initially failed to defend them describing it as “constitutionally absolutely wrong”. The Lord Chief Justice also attacked Ms Truss for a “complete misunderstanding” of reforms to cross-examination of vulnerable witnesses in rape trials.

And so we have another Lord Chancellor who is not a lawyer; David Lidington. He had  consistently voted in favour of restricting the scope of legal aid and for allowing national security-sensitive evidence to be put before courts in secret sessions. He had a history of squeezing as much from the parliamentary purse as possible. In May 2009, it was revealed he had claimed £1,300 on expenses for dry cleaning. He also claimed for toothpaste, shower gel, body spray and vitamin supplements on his second home allowance. He repaid the claims for the toiletries, saying: ’I accept that many people would see them as over-generous.’  He could claim the honour of being the shortest in tenure at Petty France having lasted a whole six months. 

In January 2018  David Gauke transferred from Work and Pensions. At least he was a lawyer.  Indeed he was the first solicitor to be appointed Lord Chancellor. A month into his job he outlined his hopes in a speech available here; as bland as ersatz coffee and egg powder available to war time Britons between 1939 and 1945. His leaving office was as notable as his arrival. 

Robert Buckland, a solicitor, was anointed in 2019.  His keynote speech on judicial review is available here. I copy below an extract.  (my black)
The second part of my principles is the Rule of Law. What I mean is that as a society we are governed by clear rules set in advance and not by the arbitrary choices of those in power. That is a fundamental principle of our Constitution and I would not want any reform to endanger it.
The third is the Sovereignty of Parliament. In order for life in common to be possible, the laws that govern us must be orientated towards the common good. But what the common good means is, of course, open to interpretation. As Winston Churchill said, the least bad way of settling those disagreements is through democracy. It is our Constitution that gives the final say to the elected Parliament, not to the unelected branches of the state. I think that is a very sensible settlement which has served us all very well.

It is arguable to say the least that above we have the irresistible force meeting the immovable object and of course as a buddy of Boris Johnson when push came to shove he was a government lackey in the Brexit controversies over parliamentary rights. 

And so we come to Dominic Raab, demoted this year to Petty France but given the office? (title) of Deputy Prime Minister. That alone indicates the status of Justice Secretary in the eyes of this Tory government  where its newest holder needs his ego polished. 

Is it any wonder that Justice in this country is now an accoutrement  to our society`s well being in addition to saving the face of on overblown egotistical political irrelevance. The concept of Justice as a right for all citizens has long gone and with it the basis of our democratic traditions and freedoms because without Justice they evaporate just as surely as the morning mist in autumn.  

MAGISTRATES COURTS MUST BECOME MORE INQUISITORIAL

There is no doubt that many previously ignored facets of life in the European Union previously taken for granted are now being compared to life in a supposedly independent UK. Extremists on both sides of the Brexit argument are still raising their voices metaphorically and in real time to offer their opinions many of which are bereft of sensible argument but complete with invective and ever more strident haranguing of the perceived opposition. One aspect central to our collective lives continues to underperform using Covid 19 as a convenient excuse; our criminal justice system. In the week ending 20 September 2020, there were 509,347 cases outstanding in the magistrates' courts   and  at the end of Q3 2020 there were 50,918 outstanding cases at the Crown Court, an increase of 44% on Q3 2019 (35,478 cases). This is the highest level of outstanding cases seen since the end of 2015 and continues the consistent increases seen since Q1 2019.  I have yet to read anywhere of any significant member of the legal profession daring to suggest that judicial systems in continental Europe might offer increased efficiency compared to the concept of common law underlying English law. Perhaps there really is a belief that English is best;  I don`t know but what I do know after watching again many series of the wonderful French series "Spiral" is that the case for magistrates in England taking on a more inquisitorial role is in my humble opinion one that cannot be merely dismissed as unEnglish. 

In France and other jurisdictions where the justice system is inquisitorial as opposed to the adversarial system in the U.K. there is an office of investigating magistrate. And as it says on the tin that person takes an active role in the investigation and court proceedings. Judges and J.P.s take an impartial role in the presentation of a criminal case and its defence. There are, however, occasions in a magistrates` court where intervention is not just allowed but necessary in the interests of justice. Frequent examples which come to mind are where a witness is being badgered by a lawyer prosecuting or defending or where the lawyer is insensitive to a witness`s ability to comprehend a convoluted question whether that lawyer`s insensitivity is by accident or design. The cause for intervention in such cases is relatively simple to make. But matters are never always so straight forward.

Many non Crown Prosecution Service offenders are brought to a magistrates` court. Examples are RSPCA, TV licensing, transport companies [fare dodgers], trading standards [fly tipping, health and safety etc ] , local authorities [council tax defaulters] etc etc

I can recollect a case some years ago when I was sitting on one such prosecution. The prosecutor in her opening told us that her only witness, the investigating official, would read his five page statement and she would be relying on a bundle of over 200 pages as her evidence. We duly heard the official and a brief glance at the bundle showed that in addition to the official`s statement it was divided into three complainants` statements, the defendant’s interview, documents directly connecting the offender with the alleged offences and his various bank accounts over the specified period. Defence council had little upon which he could defend his client during cross examination of the official. His client who was not the sharpest knife in the drawer duly did his best under cross examination which was not approaching a Perry Mason standard. We retired to read the bundle telling those involved that we might have some questions for the defendant.

Much of the material in the bundle was totally unhelpful and unnecessary. We had to hunt for the pearls that the prosecutor had told us would be the basis for her case. We duly did find documents which appeared to link the defendant with the offence. Our concern was that they although they had been exhibited neither lawyer had pin pointed them. We decided that in the interests of justice we could not adjudicate without further knowledge and more answers. Thus we questioned the defendant in detail overruling objections from his counsel. He was found guilty. At the post court review our legal adviser anticipating the tone of the discussion assured us that our inquisitorial approach was, in this particular case, perfectly lawful. He agreed that the prosecutor was failing in her duty when she attempted to rely on a huge bundle without further probing. He added that he would have intervened if we had been overstepping the mark.

With ever increasing numbers of defendants denied legal aid and without the means to employ representation it is my belief that magistrates and District Judges must be allowed discretion to undertake an inquisitorial  role to ensure that a defendant is assured of justice not being denied owing to their  inability or lack of confidence in presenting their opinion in the witness box.  There will be many who will vociferously protest that the level playing field and equality of arms argument must not be questioned but those very terms are now nothing but fond memories. Indeed they are a misrepresentation of the current state of activity in the magistrates courts system. They are an anachronism. Even before my last court sitting almost six years ago it was apparent that many defendants were considering guilty pleas simply because of convenience in getting the matter over with. Pressures for such equivocal pleas have increased greatly since then although I know of no research to prove my point. A most enlightening article on the consideration of early guilty pleas and ancillary information The Supervision of Guilty Pleas by the Court of Appeal of England and Wales – Workable Relationships and Tragic Choices is available here. 

Chairmanship of a magistrates` bench is an art not a science although the drafters of the so called competences required and the resultant appraisals techniques would seem to argue otherwise. J.P.s` awareness of when sensitive questioning of a witness is useful is not in the instruction manual but it is in the interests of justice especially in this era of unrepresented defendants.  The adversarial system can only offer confidence in the concept of justice for all being done and being seen to be done when there is a true equality of arms.  When boxing enthusiasts attend a fight they do not expect a flyweight to be matched with a middleweight.  In the magistrates court where the stakes are sometimes life changing such mismatches are an every day occurrence.  There must be change.   

WARRANTS OF ENTRY BY UTILITY COMPANIES....AN UPDATE

I began this blog almost six years ago initially at  http://thejusticeofthepeace.blog.co.uk/ and laterally here.  In all that time the most widely read posts with literally tens of thousands of views have been on the subject of utility warrants of entry.  From various analytics I have deduced that these have been read not by regular viewers to this or the previous site (which is still viewable) but by one off visitors finding it directly or by references from sites dedicated to assisting those summonsed to court on the pain of applications from mainly electricity and/or gas companies for non payment of accounts.  This is not surprising nor is the headline and story in this news medium and many others.

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

http://www.energy-retail.org.uk/pdfs/Disconnections_Report_Sep_04.pdf (Page 10)

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”.

http://www.energy-retail.org.uk/pdfs/Disconnections_Report_Sep_04.pdf (Page 6)

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

http://www.energy-retail.org.uk/pdfs/Disconnections_Report_Sep_04.pdf (Page 7)

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%

http://www.ofgem.gov.uk/temp/ofgem/cache/cmsattach/10978_10505.pdf (Page 18)

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).

http://www.ofgem.gov.uk/temp/ofgem/cache/cmsattach/1248_jan2403debtprev.pdf (Page 3)

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.

http://www.energy-retail.org.uk/pdfs/Disconnections_Report_Sep_04.pdf (Page 9-10)

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.

http://www.energy-retail.org.uk/pdfs/Disconnections_Report_Sep_04.pdf (Page 11)

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.

http://www.ofgem.gov.uk/temp/ofgem/cache/cmsattach/1248_jan2403debtprev.pdf (Page 4)

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.

http://www.ofgem.gov.uk/temp/ofgem/cache/cmsattach/1248_jan2403debtprev.pdf (Page 3)

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.

http://www.ofgem.gov.uk/temp/ofgem/cache/cmsattach/1248_jan2403debtprev.pdf (Page 6)

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:

1. A customer is caring for an elderly person in the household;
2. A permanent member of the household is disabled and unable to support themselves or has a long-term medical condition;
3. A carer, social worker, health visitor or physician has indicated that a member of the household may be vulnerable;
4. Households on a low income/state benefit with young children; or
5. 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?