MAN`S BEST FRIEND

Probably not commonly known is the fact that magistrates can impose the death penalty.  Those canines which receive such a penalty most certainly deserve it because dog lovers or not I`m sure most  J.P.s have  in the back of their minds that properly trained and well homed dogs are unlikely to be so dangerous and that humans have been at least partly responsible for such an animal`s unacceptable actions.  The 1991 Act was a dog`s breakfast of legislation and new powers introduced last year should allow more appropriate disposals.  Meanwhile latest figures on prosecutions provided by the government are available here and here.

OBFUSCATION BY ASSOCIATION

I make no apology for returning to criticism of the Magistrates Association.  The Criminal Courts Charge is nothing short of a legal abomination.  It was introduced as part of a philosophy forced  upon  the previous government in its search for financial cuts which left inter alia the NHS "free at the point of service" and overseas aid to remain at 0.7% of GNP.  It introduced the principle already forced upon civil courts of trying to make justice pay for itself overturning a long cherished tradition that alongside defence it is a pillar of a democracy which must only be funded by the state.  The chairman of the M.A. in a letter for members *copied below,  refers obliquely to this charge as to whether it has "negatively effected the administration of the law and justice"  in his quest for members` responses.

Administration (noun)    The process or activity of running a business, organization, etc.

Effect  (verb)    cause (something) to happen; bring about

It would seem therefore that he is asking magistrates to answer a question which is completely "off topic".  The charge  blatantly does not affect administration as above defined; it affects the ability to pay without means testing of those found guilty. Perhaps the question was phrased deliberately in this form to elicit particular forms of reply or perhaps it was phrased thus owing to simple incompetence of the writer.  Either way, apart from the writer`s confusion between affect and effect  it is just another example of obfuscation by the Magistrates Association. 

*

 

LAWS SHOULD BE APPLIED EQUALLY TO ALL ETHNIC GROUPS

Being of a generation that, when much younger,  didn`t have the money, the opportunity or a big desire to sojourn through far flung exotic parts of this world I really have little sympathy with a proportion of a current generation of travellers that appears to ignore, have little knowledge of or fails to observe local mores and customs of those who follow traditions unfamiliar to westerners.  Such appears to be the case of the mountain strippers.  However ludicrous it might seem to us if an area`s native people believe in causes and effects which are akin in our eyes  to medieval witchcraft it would seem wise to bear such considerations in mind before acting in a manner which insults those beliefs. Having acres of flesh visible on a beach on the Riviera does not allow the wearing of bikinis or budgie smugglers on the Promenade des Anglais.  However wisdom per se is not a function of youth but it should be a pre requisite  of High Court judges except it appears to be absent in the reasoniong of  High Court Judge Mrs Justice Pauffley.  She was prepared to allow for the Indian cultural heritage of a father to be considered in a case related to his abuse of his child. So there we have it; the law can be applied according to the culture of the law breaker........precisely the same kind of disjointed reasoning as allowed the abomination of child abuse by men of Pakistani origin in so many northern towns to continue for years after the knowledge of such crimes was known to police and child protection agencies.  During my time on the bench similar attitudes were occasionally expressed by some colleagues after listening to the pleas of a defence advocate.  Thankfully such views never became a majority on any case in which I was involved.  But I do wonder sometimes........................

MISREPRESENTATION AT THE MAGISTRATES ASSOCIATION

Last week I commented once again unfavourably about the goings on at the Magistrates Association. Now and again whilst I was a member I really didn`t give the subject a great deal of my time or attention.  I believe that that attitude of mine is echoed throughout J.P. benches across the country.  To quote from one of the very few items easily sourced from the ram shackle website of said organisation:-

"The Magistrates’ Association aims to represent the views of its members when developing policy or responding to consultation documents. Clearly, with so many members it is impossible to consult everybody and so, in common with similar bodies, the Magistrates' Association forms policy through the Council and its standing committees. The Council comprises representatives - branch council members - from each of the 58 local branches throughout England and Wales. Branch council members are appointed for terms of one year and meetings are held twice a year in May and December."

The largest trade union elects its council according to the following mode of representation as per its website:-
 

"UNISON branches are grouped into 12 regions which cover the UK. Each region has its own head office and a regional council made up of delegates from all branches in the region. As a union member you have the right to vote in elections to decide who sits on these committees and structures. You also have the right to stand for election to any of these bodies, at branch, regional or national level. All UNISON elections are governed by the principles of "proportionality and fair representation". This means the make-up all elected bodies in the union must represent the make-up of the membership – so you will often find some seats on committees etc. reserved for women or low-paid members, for instance, to make sure this happens."

 

Nowhere in Unison`s website was there any reference I could find on on line voting. The surest and simplest way to ensure a high turn out and a truly representative result when about 70% of the  adult population own a smartphone is to institute on line voting but that would not suit these two orgaisations.  They thrive on the lethargy of the majority of members thus allowing activists to pursue their own agendas.  It was precisely this lethargy and to a lesser degree intimidation which caused the collapse of the British car industry in the 1970s.  It was responsible for extreme left wing groups  taking over Liverpool, Lambeth and Islington councils around the same time.  It is certainly reponsible for the failure of the M.A. to follow its own doctrine of consultation highlighted above. In the not unlikely event of future scandals  involving a community rehabilitation company which has benefited the M.A. to the tune of £10,000 those responsible will wriggle and wiggle but not swallow the blame. If the M.A. wanted to truly represent its members its new website would have had within it a feature for on line voting and surveys for its total membership.  Only under such a circumstance would it be able to truly reflect members views and opinions.  Perhaps that`s why there is little likelihood of such a transformation in M.A. voting processes.  After all it took centuries for the abolition of rotten boroughs in England.

HAVE WE HAD ENOUGH OF POLICE AND CRIME COMMISSIONERS?

The installation by local election of Police and Crime Commissioners was supposed to be one of Theresa May`s brighter ideas within the Coalition.  With many instances of incompetence, wrong doing, lying and general malfeasance within their ranks it seems that she is trying to do her best off the back foot.  The latest example of a PCC being shown as an ignorant bully and a liar from his position in Humberside can be read here.  Whilst there initially might have been an underlying argument to install a single individual in place of a local committee to oversee policing the results so far are a justification for the whole process to be re-assessed.

INNOCENT UNTIL PROVED GUILTY/TIME FOR A CHANGE?

It used to be axiomatic; a defendant was innocent until proved guilty. It seems this pillar of British justice has some cracks within it.  The difficulty in some cases of achieving levels of proof in this regard until relatively recently persuaded police that getting suspects to "fess up" was the way to secure conviction.  It is to be hoped that with current safeguards this habit has died a well deserved death. However the ever increasing cacophony of "the victim must be the centre of our justice system" emanating from myriad sources is liable to lead to just as many miscarriages of justice as ever perpetrated by police.  An early sign of this perverted philosophy was the argument that if most European countries can do it why not the U.K.?  And the "it" was to place guilt upon the motorist in any collision with a cyclist until such time as it was shown that said motorist was blameless.  Indeed it was only yesterday as I was driving down a local street, cars parked on both sides, when I had to sound my horn to warn a cyclist ahead of me, earphones in place, who was cycling well over the halfway line in the road.   And to further my point of view a hundred yards further on a family of adult and two teenagers was cycling  towards  me on the wrong side of the street.  The suggestions in Scotland are concerned with action in the civil court not in criminal cases but the words "wedge, thin, edge" come to mind. 

The crime of rape is horrendous.  The perversion of a pleasurable natural function to an act of hate and misogyny can arguably be considered in the criminal court as a matter of opinion.  There are rarely any independant witnesses.  Consequently there has been considerable legal argument as to where the height of the hurdle of guilty beyond reasonable doubt should be     placed. Contrary to many loaded analyses, convictions are over 60% which compares well with other indictable offences. But megaphone arguments of what could be termed the victim lobby seek much more.  Pressure is building for guilty until proven innocent when certain considerations are before the court. Primarily that is the issue of consent.  This post is not about the detail but about the underlying philosophy and for what it might mean for British justice. We have seen over the last year or so the witch hunt which began with Leveson.  Apart from burning at the stake the search for heretics be they sexual deviants or those who operate a free press is being propelled by a similar hysteria.  This does not augur  well for the lowly citizen when and if in contest with the almighty state.  


ADDENDUM

As if to prove a point, earlier today in the High Court two long serving prisoners were ordered to be released because their convictions were considered unsafe but were denied their claims for compensation because after a ruling by Chris Grayling on such matters, "A person who has been wrongfully convicted can now only get a payout if it is proved beyond reasonable doubt they had not committed the offence."  And we all know how easy and simple it is to prove a negative; don`t we?

FORCES AND OBJECTS

The major political parties were truly glad that matters relating to this country`s foreign policies were totally ignored by commentators.  All that is except immigration whilst that is only a result of our losing the abilities to govern ourselves which is the mammoth in the political room.  It is to be hoped that the forthcoming referendum will illuminate the underlying root of our relationship with the E.U. and not merely those examples which make the headlines. 

With American security services climbing the wall over recent happenings in the Senate we too are approaching a crunch in the argument of individual freedom and freedom from terrorism exemplified perhaps by the fact that the organisation Cage  argued by some as an apologist for terrorist activity, is seeking judicial review against the Charities Commission.   This government like its predecessor  tries to shift the security curtain to landlords and employers because of its own inadequacies.  The irrestible force and the immoveable object come to mind.

DAVID DAVIS M.P. HOOKS HIS SLING

Capita plc the outsourcing megalith which collects license money for BBC and is probably hard at it behind the scenes lobbying against any attempts to decriminalise non payment of such despite protestations from BBC bigwigs is also the company that collects council tax for many boroughs including my own.  Recently I received a form for me to sign confirming the number of people at my property eligible to be counted for said tax.  There was a space below my address which asked for my trelephone number and e mail address so that I might be subject to a telephone survey.  I returned the form leaving the space empty.  This is just another example of such bodies collecting information to which they are not entitled but how many will feel comfortable not answering in the required format?  

All of which leaves me bemused by the arch libertarian and Eurosceptic David Davis M.P.`s  opposition to the so called "snoopers` charter" yet also opposing the government`s aim to withdraw from the European Court of Human Rights.  Would we be in a better place had he won the Tory leadership contest against  another David a decade ago?
 

PRIVILEGED

From time to time and too often IMHO we read of celebrities, politicians, sportsmen and women etc seeking to persuade magistrates that their particular and often privileged positions offer them sufficient reason why they should be acquitted of offending in driving matters.  It leaves a bad taste in this blogger`s mouth when somebody of such status seeks preferred treatment in our courts. In the dock at Wimbledon Magistrates` Court  Conservative peer Lord Trefgarne`s  excuses for speeding based upon his supposed medical condition and his position as a member of the House of Lords were rejected and he was duly disqualified from driving.  At £300/day attendance allowance he can afford taxis.

ANDY COULSON ACQUITTED IN EDINBURGH

The trial was held in Edinburgh so coverage in England has been scant but its history and participants go back some years.  I commented in 2011 on a by product of the original case which led to the current proceedings just concluded.  The judge`s comments will be regarded carefully by lawyers north and south of the border.

MAGISTRATES ASSOCIATION WITH CRCs

Public and private finance or similar phrases are a common feature of our social and political discourse. Such phrases can indicate a social and political minefield the most commonly quoted being our national religion; the NHS. When large sums of money flow from recipient of business  to provider there will inevitably be the question of a quid pro pro.  The world`s  media booked their tickets to Zurich last week for just such a situation.  In this regard the financial goings on at the Magistrates Association however apparently laudable cannot be glossed over.  Yet it seems that glossing with a fine coat of the best obfuscacious  paint is just what appears to be the case.  That organisation has lost about a third of its members and consequently substantial income over the last decade.  It is an organisation which if it were founded tomorrow from scratch would not bear any resemblance to its current form. Historically it has been run by well meaning individuals with their own agenda often including the hope  of a gong for meritorious service to the community.  About eight years ago there appeared to be a willingness to allow some light to shine where before darkness reigned and an on line members only forum attached to its website  was established to allow on line discourse, debate and discussion limited only by respected colleagues who moderated where occasionally required. Earlier this year the M.A. in somebody`s wisdom revamped an already  navigationally impossible website, abolished the forum and made it virtually impossible to source many of the thousands of items  probably hidden away somewhere in its archives.  Considering the costs involved for web re-design such actions could not have been an accident.  And one factor where the shrouding of information might be of significance is that of the M.A.`s seeking additional income by inviting "affiliates" to buy into its activities. These currently comprise five Community Rehabilitation Companies (CRC's). According to the April-May edition of its house magazine:- 

"The end of January management accounts show a year-to-date deficit of £21,100. This is largely due to expenditure on the new MA website, which has now been launched and is evident across this edition of the MAGISTRATE. Membership income and associated gift aid is marginally ahead of budget, but with the continuing decline in membership, due to the continuing fall in the number of magistrates, other income streams are being developed" {my italics}

In the same issue the chairman writes:-

"Some may be nervous about our engagement with political stakeholders, opinion-makers and the media. But it is important not to lose sight of the fact that when we do this, we do so as spokespeople for a nationally respected charity, not as individual holders of judicial office; the two roles are separate. It is, of course, a delicate operation and it is important that the MA is seen – at all times – to be exactly what it is: a non-partisan, independent national charity in the criminal justice field. Our slogan has been for some time ‘the independent voice of the magistracy’".

These monies received will apparently pay so we are told  for commissioned research.  In the same issue was  published the following:-


"CRCs are often conglomerations of different service providers with experience of addressing different criminogenic factors in the lives of offenders. The Senior Presiding Judge has issued guidance about liaison between providers of probation services and sentencers, emphasising that it is the NPS who have that responsibility". 

The current edition of the magazine contains the following statement on behalf of the M.A.:-
 
"so we can make comparisons at a later stage, and we would like to be able to present views to other interested parties with a greater understanding of how our members feel about developments. Responses would be very much appreciated." {my italics}

It begs the question as to why such a major and  controversial policy was not put to the membership before  its initiation. It might transpire that the tail of a CRC will wag the dog providing research.  Of equal or greater importance is the possibility not just of conflict of interest but contagion.  It is not unlikely that sooner or later some form of bad publicity will surround one of these CRCs. The M.A.`s reliance on a probation provider to keep its book balanced is not odour free.  It stinks.

When representative organisations, and of course the M.A. is a registered charity, cannot fund their expenditure from their own or members` resources they enter that minefield when they go cap in hand to those who might conceivably benefit from the closeness of their association and for whom they provide business. The first call should have been on members to seek a membership fee increase.  This latest "venture" reinforces the correctness of my and hundreds of other decisions to leave the M.A. in the last decade

HARMONY INCLUDES ENCOMPASSING DIFFERENCE

Recent activities within the ultra Orthodox Jewish Belz sect would not normally warrant national news coverage or a mention in this blog.  It is a miniscule minority within a minority of observant Jews who arguably are a minority of  this country`s Jewish population of 263,000.  The advisory letter regarding mothers who drive their children to school draws immediate comparison with the rules enforced by the Wahabi interpretation of Islam as practised in Saudi Arabia where women are forbidden to drive. Indeed it is likely that if  similar "advice" were given by governors of a Moslem school the headlines would be much more strident.  Even allowing  for those Jews who live a ghetto style life in this country  it must be a disturbing event to their co-religionists who have a large variety of institutions to cater for their varying levels of religious devotion.  Perhaps if  Islam could cater for the very same differences in observance that Christianity also offers disharmony would be less likely to occur within our society.

Section 4A religiously aggravated  of The Public Order Act is defined as religiously aggravated disorderly behaviour with intent to cause harassment, alarm or distress.  Apparently calling two Muslim men “terrorists with guns in their pockets” constituted the offence committed by a 65 year old  female pensioner of previous good character. Notwithstanding the fact that the group to which the offender was apparently affiliated would arguably appear to be of a non denominational messianic variety which holds the Jewish people and the Land of Israel as crucial in the Second Coming (a common belief amongst many on the right wing of the Republican Party in America)  the basis of a finding of guilt might be on shaky ground.  If the lady involved does indeed go to appeal the result will be of some interest.

The murders committed by Islamists  in Paris and Toulouse  France  of Jews simply for being Jews is a warning to all of us that we in this country are not immune from the 2000 year old virus.  Activities such as those described above do not IMHO assist those within Moslem communities here who strive to live in harmony with their monotheist and atheistic co citizens.

A VERY NAUGHTY BOY

Reading this report and accepting such limitations to my knowledge of the particular case I can only wonder why former colleagues allowed this fellow to retain a license to drive. Perhaps they were under the impression that the Sword of Damacles approach would act as a deterrent.  The public in North Devon I would suggest might not be so generous. 

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.

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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?