If you summoned to a magistrates’ court legislation dating from 1954 is utilised to either remove a meter or to fit a pre-payment

Major  concern has arisen growing about the bulk applications being made under the Rights of Entry (Gas and Electricity Boards) Act 1954,with applications leading to the issue of a warrant to force entry to the homes of customers. This is frequently being used to instal a more expensive pre-payment meter that can result in self-disconnection from poverty. The vulnerable and fuel poor are particularly at risk.

There has been raised political concerns over the practice  following coverage in the i-newspaper.

 There are human rights issues arising from warrant applications, not least that the supply of energy has changed enormously since 1954 and the system was never designed used for fitting modern prepayment or ‘smart’ meters.

Past experience by Nucleus  on the practice which was shared with energy  regulator Ofgem in 2019 and 2020 was that  there isa need for assistance and representation at these proceedings because of the summary and potential unlawful way that the process is being used and abused.

The  best advice is to attend the magistrate’s’ court if summonsed and make the facts of your situation known to the court and the representatives of the energy company – who may withdraw the application if a customer attends in person. A friend, relative, social worker or volunteer may be able to accompany you so the facts of your situation can be considered by the court.

Alternatives for the Court

An error of many magistrates’ courts is to assume there is no discretion in issuing the warrant.

Firstly, the magistrates’’ court should be satisfied that it is reasonable to issue the warrant, applying the principles  of reasonableness set down in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

Furthermore, the courts have inherent powers to adjourn or stay  proceedings or simply make no order.

There seems no obvious reason why a magistrates’ court cannot suspend the issue  of a warrant or refuse it  outright and recommend that other enforcement options are tried before disconnection if satisfied it would be appropriate.                      

Human Rights Issues – the right to a fair hearing

Arguably the warrant system – especially the fitting of a pre-payment meter – falls foul of Article6 guaranteeing  the right to a fair hearing in determining civil rights and obligations whenever a Pre-payment meter is contemplated.

Not only is the process being used to fit a prepayment meter – a step not envisaged when the legislation was written in1954 and therefore outside its scope – but it also amounts to a unilateral change in terms and conditions of supply and pricing.

Human rights jurisprudence on the right to a fair trial requires there to be a proper hearing wherever the civil rights and obligations of a party are changed or restricted, as when a meter is fitted, effectively changing the terms of the fuel supply contract.

Since the1954 warrant  process is outside the CPR code for proceedings in  the County Court and High Court,  the summary procedure before the magistrates’ court allows no opportunity for challenges under contract law principles or any a hearing enabling the debtor to contest the variation in price and terms of the fuel supply.

(On the right to a fair hearing see ECHR Article 6; Rommelfanger v Germany(1989) 62 DR 151 and Diennert v France (1996) 21 EHRR 554)

It also follows that to change a smart meter remotely without any court process also results in a breach of contract of the terms of supply.

Proportionality

In considering whether to exercise its discretion to grant a warrant, the court should have regard to human rights principles under European law including the ‘doctrine of proportionality’ – ie, any legal measures applied against citizens of member states and affecting their rights must be proportional to the ends achieved.

The law has yet to be tested in the context of warrants, but it is at least arguable that an application for a warrant to gain entry to disconnect electricity or gas maybe a disproportionate measure in the case of a vulnerable household – eg, alone parent receiving only benefit income.

In a case off line enforcement, the High Court held that enforcement activity maybe disproportionate as a measure and contrary to Article 8 of the European Convention on Human Rights, amounting to an unlawful inference with the right to the home and family life (see R (on the application of Stokes) v Gwent Magistrates’ Court [2001] JPN 766).

A court might  thus legitimately refuse a warrant if disproportionate to a vulnerable family, for example where a debt is small.

In some cases it would be a disproportionate remedy if the effect would be a complete disconnection of a vulnerable household.

Results

Applying human rights principles and the doctrine of proportionality, it would appear open to a magistrates’ court to decline to issue a warrant where a debt is relatively small and the hardship caused to a vulnerable household would be severe.

A magistrates’ court should consider the position of any children residing in the property and anyone with illness or disabilities who may be affected.

Wherever possible  it is important that a financial statement  and details of all persons residing in the property are provided to the court at the hearing. Inthe event that you are too ill to attend, send details to the court in writing in time for the hearing

These legal arguments need to be raised in court, at first instance at the magistrates’ courts.  Attendance at court is urged if you are subject to a warrant application.

Forced entry and the National Standards for Enforcement Agents

A further stories in the i-newspaper and  in The Times 2 February 2023 have also highlight the abuse of the warrant system and forced entry.

Theguardian.com/business/2023/feb/01/british-gas-halts-use-of-warrants-to-force-people-on-to-prepayment-meters-allegations-vulnerable-customers-break-in

In particular, the treatment falls short of the principles in the National Standards for Enforcement Agents which were adopted by the then Lord Chancellor’s Department in April 2002 and restated by the Ministry of Justice in 2014.

These are set out the standards for enforcement agents (and have done for more than 20 years)
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The National Standards

from Taking Control of Goods: National Standards issued by the Ministry of Justice on 6 April 2014.

The full document is available at

70. Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/ agency and creditor about how such situations should be dealt with. The appropriate use of discretion is essential in every case and no amount of guidance could cover every situation. Therefore the agent has a duty to contact the creditor and report the circumstances in situations where there is evidence of a potential cause for concern.

71. If necessary, the enforcement agent will advise the creditor if further action is appropriate. The exercise of appropriate discretion is needed, not only to protect the debtor, but also the enforcement agent who should avoid taking actions which could lead to accusations of inappropriate behaviour.

72. Enforcement agents must withdraw from domestic premises if the only person present is, or appears to be, under the age of 16or is deemed to be vulnerable by the enforcement agent; they can ask when the debtor will be home – if appropriate.

73. Enforcement agents must withdraw without making enquiries if the only persons present are children who appear to be under the age of 12.

74. A debtor may be considered vulnerable if, for reasons of age, health or disability they are unable to safeguard their personal welfare or the personal welfare of other members of the household.

75. The enforcement agent must be sure that the debtor or the person to whom they are entering into a controlled goods agreement understands the agreement and the consequences if the agreement is not complied with.

76. Enforcement agents should be aware that vulnerability may not be immediately obvious.

77. Some groups who might be vulnerable are listed below. However, this list is not exhaustive. Care should be taken to assess each situation on a case-by-case basis

. ● the elderly;

● people with a disability;

● the seriously ill;

● the recently bereaved;

● single parent families;

● pregnant women;

● unemployed people; and,

● those who have obvious difficulty in understanding, speaking or reading English.

78. Wherever possible, enforcement agents should have arrangements in place for rapidly accessing interpretation services (including British Sign Language), when these are needed, and provide on request information in large print or in Braille for debtors with impaired sight

Since Gas and electricity are treated as ‘goods’ in law and under the Consumer Rights  Act 2015 if supplied and sold in limited volumes or set quantities there is a good case to say these standards should be applicable.

(see Tamarind and Others v Eastern Natural Gas and Eastern Energy [2000] QBD 27)

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