Nor any drop to drink

Velasquez Waterseller

This is potentially huge. There could be millions of pounds at stake and possibly many councils and housing associations affected. It might only mean a pound or so per tenant per week, but definitely 37,000 and potentially 375,000 tenants are involved, over periods of years.

Jones v London Borough of Southwark [2016] EWHC 457 (Ch)

Quite a lot of councils have agreements with water suppliers under which the council will collect water charges from their tenants, effectively as an addition to the rent. This case concerned a challenge to the nature and validity of Southwark’s agreement, at least before 2013.

We have seen such agreements raised before, for instance in London Borough of Southwark v Ofogba [2012] EWHC 1620 (QB), Lambeth LBC v Thomas (1997) 30 HLR 89 and Rochdale MBC v Dixon [2011] EWCA Civ 1173. The latter two cases concerned the vires of such agreements, which were taken to be ‘agency agreements’, while Ofogba raised a similar issue to this case, but was lost at County Court.

The key issue in this case was whether Southwark was acting as Thames Water’s agent in collecting water charges from their tenants, or whether Southwark was actually a ‘re-seller’ for the purposes of The Water Resale Order 2006. This is significant because the 2006 Order imposes maximum charges on re-sellers and allows only for modest administration charges.

Ms J had been a Southwark tenant since 1981 and paid the water rate to Southwark with her rent, as do some 37,000 tenants of unmetered Southwark properties. The rates vary, but are typically around £5 per week.

At issue was the period between 2000 and 2013. In 2013, following counsel’s advice in the wake of the Ofogba case, Thames Water and Southwark entered into a deed of clarification and amendment dated 23 July 2013. It was common ground that if effective, this deed would stop Southwark being a ‘re-seller’. The effectiveness of the deed was disputed, but as Thames Water were not a party to the present case, any decision on the validity of the deed was adjourned to enable Thames to be joined.

Key to the case were a 2000 Agreement between Southwark and Thames Water, and Thames Water’s ‘Charges Schemes’ between 2002 and 2010.

The charges schemes all contained a passage like:

“Person Chargeable

a) The person responsible for payment of charges under this scheme shall be the occupier of the relevant premises to which the supply is made except where some other person is liable by agreement with Thames Water.

b) Where there are two or more people occupying the relevant premises to which the supply is made, the occupiers shall be jointly and severally liable for the payment of the charges.

c) Where the relevant premises to which the supply is made is let on a tenancy of less than twelve months or licence, the owner of the premises shall be regarded as the occupier and be liable for charges except where some other person has paid the charges or is liable by agreement with Thames Water.”

All Southwark’s tenancies are weekly periodic, thus for less than 12 months. The Court held that while Southwark could not reasonably be considered to be an occupier:

I nonetheless take the view that a charges scheme can properly provide (as Thames Water’s charges schemes formerly did) for the owner of premises to be chargeable where they are “let on a tenancy of less than twelve months or licence”. In such a situation, the owner might be said to be a person “to whom the undertaker provides services or in relation to whom it carries out trade effluent functions” (within the meaning of section 142(1)(b) of the WIA) even if the occupier is also to be treated as receiving the services under section 144(1). Where that is so, it will, I think, be possible for a scheme to determine which of those to or in relation to whom services are being provided is to be responsible for the charges.

The significance is that Thames Water were charging Southwark as owner, and Southwark then charging its tenants. Effectively, a re-seller.

Then there was the 2000 Agreement. This was in terms as follows:

“1 Premises Affected
1.1 THIS Agreement covers all of the Premises where the water supply given by the Provider is not measured by a meter (‘the Unmeasured Premises’).
2 Liability For Charges
2.1 THE Customer shall pay for all of the Provider’s charges (‘the Charges’) in respect of the Services provided to the Unmeasured Premises.
2.2 THE Charges will be raised by applying the relevant tariffs (‘the Tariffs’) for the Services, less the allowances and reductions to which the Customer is entitled under Clause 3.
2.3 THE Tariffs will be those that are in force at the relevant time by virtue of inclusion in Charges Schemes made by the Provider under Section 143 of the [Water Industry Act 1991].
3. Allowances and Reductions
3.1 THE Tariffs will be reduced by 5% in recognition of the fact that in any given year a number of the Unmeasured Premises are likely to be unoccupied for a period of less than three months.
3.2 FOLLOWING the deductions under Clause 3.1 the balance of the Charges will be reduced by a further 18% by way of the Customer’s commission.”

And at clause 4.6: “THE Customer shall send the Provider an invoice … in respect of any Value Added Tax that is payable in respect of the Customer’s commission referred to in Clause 3.2.”

So Southwark paid Thames Water an overall sum for unmeasured properties (apparently quarterly), but with a voids rebate of 5% and a ‘commission’ of 18% deducted from the amount payable by Southwark. Southwark then demanded apportioned and weekly water rate payments from their tenants, in the full amount of the Thames Water listed charge for that property.

Southwark argued vigorously that this was an agency agreement, that Southwark were, in effect, simply doing debt collection on behalf of Thames Water. However, they did admit that the 5% voids rebate (actual voids currently about 1.35%) and the 18% commission, supposedly for administration and the risk of non-payment, were “an important source of funding for Southwark”, as Southwark got to keep any extra raised from direct demands on their tenants.

The Court held, after an excursus on contractual interpretation after Arnold v Britton, and on the findings in Lambeth v Thomas and Rochdale v Dixon, that this was not an agency agreement and that Southwark were indeed ‘the customer’. The list of reasons:

i) Clause 2.1 of the 2000 Agreement provided for Southwark to pay for “all of the Provider’s charges … in respect of the Services provided to the Unmeasured Premises”, reflecting a recital to the effect that Southwark would “pay for the Services in respect of the Premises”. It is common ground that Southwark was thereby obliged to pay “the Provider’s charges” regardless of what (if any) sums it received from its tenants. The alleged principal (Thames Water) was to have no interest in moneys collected by its alleged agent (Southwark);
ii) While calculated by reference to tariffs contained in charges schemes (see clauses 2.3 and 2.3 of the 2000 Agreement), the sums that Southwark had to pay to Thames Water did not correspond to the total of the sums that tenants were required to pay. What was due from Southwark was a net sum, after “allowances and reductions” had been deducted;

iii) A linked point is that the 2000 Agreement made no provision for Southwark to account to Thames Water. That is unsurprising since the idea was evidently that Southwark should have an unconditional obligation to pay “the Provider’s charges” and no liability to make any further payment. The absence of an accounting obligation is, however, significant. “[T]he duty to account is a typical feature of the agent’s position” (Bowstead & Reynolds on Agency, 20th ed., at paragraph 1-032, citing Michelin Tyre Co Ltd v Macfarlane (Glasgow) Ltd [1917] 2 SLT 205);

iv) In other respects, too, the usual incidents of agency were missing from the 2000 Agreement. There was, for example, no provision for Thames Water to exercise any control over Southwark (compare Bowstead & Reynolds, at paragraph 1-017) or for Southwark to exercise diligence, care or skill (compare Bowstead & Reynolds, at paragraphs 1-016 and 6-017);

v) The 2000 Agreement also omitted any reference to Thames Water giving Southwark authority to collect money from the tenants. Yet it is of the essence of agency that the agent should be able to affect the principal’s legal relations with third parties (see Bowstead & Reynolds, at paragraphs 1-001, 1-003 and 1-004);

vi) If I am right in thinking that Thames Water’s charges schemes imposed liability for water and service charges on Southwark between 1 April 2002 and 31 March 2010 (as to which, see paragraphs 30-37 above), there can have been no possibility of Thames Water authorising Southwark to collect such charges from its tenants on Thames Water’s behalf during this period. The tenants would not have owed any money to Thames Water;

vii) The 2000 Agreement referred to Southwark as “the Customer”. Although I doubt whether the parties should be taken to have had in mind the definition of “customer” to be found in section 219 of the WIA, the fact remains that an agent would not generally be termed a “customer”;

viii) Mr Bourne (for Southwark) noted that an unconventional meaning can be attributed to a word in a contract if the parties habitually used the word in that sense. While, however, there is evidence that the parties sometimes used the word “customer” loosely, Southwark has not come close to demonstrating that “customer” was habitually used in a particular way that could explain a true agent being so described in a formal document;

ix) The 2000 Agreement’s use of “Customer” is counterbalanced by its use of “commission”. However, “the mere use of labels … will not be decisive” (see paragraph 42 of Rix LJ’s judgment in Rochdale) and, unlike normal commission, this “commission” did not depend on any performance or the happening of any event. In practice, it simply served to reduce what Southwark had to pay Thames Water;

x) That leads to the next point: that the mere fact that the parties may have referred to their relationship as one of “agency” and to Southwark collecting water and sewerage charges “on behalf of” Thames Water is of no real importance. “[T]here is no magic in the word ‘agency’. It is often used in commercial matters where the real relationship is that of vendor and purchaser” (Ex p White, re Neville (1871) LR 6 Ch App 397, at 399; see too Bowstead & Reynolds, at paragraph 1-032);

xi) In the Lambeth case, the focus appears to have been on whether Lambeth was acting “on behalf of” the water company for the purposes of paragraph 20 of schedule 1 to the Water Consolidation (Consequential Provisions) Act 1991 rather than on whether a relationship of agency in the strict sense existed. In any case, “it is not entirely clear what issues were taken” (see paragraph 48 of Rix LJ’s judgment in Rochdale);

xii) How the parties have conducted themselves since entering into the 2000 Agreement can be of little or no significance (see e.g. Lewison, “The Interpretation of Contracts”, 6th ed., at 179-189), but, in case it matters, it can be observed that the parties’ behaviour has not obviously been entirely consistent with an agency relationship. By way of example, Southwark’s charges to its tenants have not accorded with Thames Water’s tariffs in every respect (e.g. as regards charging for garages); Southwark has considered itself to be entitled to make decisions without consulting Thames Water as to what, if any, steps it should take to recover charges from tenants; and Thames Water has sent bills to Southwark referring to its “Commitment to our customers” and “several Codes of Practice including a guaranteed standards scheme” and none to the tenants; and

xiii) Although the 2006 order may make a sale and re-sale arrangement disadvantageous to Southwark, no Water Resale Order had yet been made at the date of the 2000 Agreement.

So, that was that on the re-seller issue. At least for the period 2000-2013 Southwark were found to be a re-seller of water and sewerage services.

The significance of this, to return to the 2006 Order (and similar terms in a 2001 order), was that

paragraph 6(2)(b)(i) of the 2006 Order focuses on the “amount payable by the Re-seller to the Relevant Undertaker”. Under the 2000 Agreement, Southwark had to pay Thames Water only the net sum obtained by “applying the relevant tariffs … for the Services, less the allowances and reductions to which the Customer is entitled” (viz. the “commission” and “voids allowance”) (see clause 2.2). The tariffs were “reduced by 5%” (see clause 3.1) and “the balance of the Charges” was “reduced by a further 18%” (see clause 3.2). However the parties may have viewed the “commission”, the reality is that it simply served to reduce the amount that Southwark had to pay. It would be still more anomalous if the “voids allowance” were disregarded since that would mean that “voids” would be ignored when determining the “amount payable” yet still taken into account when considering how many properties the “amount payable” was to be shared between.

In the circumstances, it seems to me that, unless and until the 2000 Agreement was varied by the 2013 Deed, Southwark was charging Miss Jones (and other tenants with unmetered water supplies) more than was permissible under the 2006 Order.

And the conclusion:

i) Unless and until the 2013 Deed took effect, the relationship between Thames Water and Southwark was not one of principal and agent but involved Southwark buying water and sewerage services from Thames Water and re-selling them to its tenants;

ii) As a result, the 2006 Order applied and served to limit what tenants could be charged; and

iii) The amounts that Southwark charged Miss Jones exceeded the “maximum charge” allowed under the 2006 Order.

Comment

Oh my. Oh my, oh my.

The first thing is that an appeal is inevitable. The further hearing on the validity of the 2013 deed of amendment can wait.  It may only concern a pound or so a week per tenant, but that is 37,000 tenants for Southwark alone. I’d guess that Thames Water may want to intervene in any appeal too, given that their evidence was of similar arrangements with 69 councils and housing associations, covering some 375,000 properties. This is big money. Every one of those councils and housing associations had better be checking their agreements with Thames Water right now…

Second the water rates were levied as rent. In many Southwark rent arrears cases, this will form part of the arrears, in some cases all of the arrears (as housing benefit doesn’t cover the water rates element). So, a prospect for a counterclaim for overpaid/unlawfully levied water charges for at least 2010-2013 (given a 6 years limitation)? Or maybe an argument that the arrears claimed are uncertain? At first glance, this could potentially impact every rent arrears possession case Southwark has going, against tenants charged the water rates. (And of course, there are the other 68 councils and housing associations with so far  unexamined agreements).

How much the ‘overcharge’ was is going to have to be worked out. A certain level of administration charge by a reseller is permitted – according to Ofwat £5 per year, per property – but there will be argument about voids and the actual void rate, amongst other things.

Third, although Southwark will obviously not do anything pending an appeal, what will they do if an appeal fails? The immediate conclusion has to be that a repayment of some sums to the affected tenants would be necessary.

(And lastly and parenthetically, how I wish my case on estate heating charges and the Unfair Terms in Consumer Contracts regulations had not been settled)

The picture, by the way, is by Velaquez, the ‘Waterseller of Seville’.

Posted in Housing law - All, secure-tenancy and tagged .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

58 Comments

  1. So, if I have this right Giles, the Rochdale and Arnold cases were decided on different legal issues but they are per incuriam the 2006 Order?;

    If the water board first charges the undertaker then this is recovered as rent through the tenancy agreement, this invokes the 2006 Order and thus the undertaker is a ‘re-seller’ and not an agent as a matter of law;

    If the above applies, any charges in excess of those permitted under the Order are recoverable – para. 10 (1) and (2) of the Order and or as a primary statutory right under Section 150 (5) (a) and (b) of the WIA?.

    • That appears to be it, yes. Though it is not just ‘first charging the undertaker’ per se – it was the specific terms of the 2000 Agreement and the Thames Water charging schemes between 2002 and 2010 – the factors listed at para 52 of the judgment.

      On recovery 10. of the 2006 Order looks the most straightforward. However, I suppose that 6 year limitation applies, section 9 Limitation Act.

  2. See Hammersmith and Fulham water charges See local government lawyer council water rates, see also local government ombudsman Hammersmith and Fulham water rates charges . See also Surrey comet council water rates and for good measure disconnection of water as a default sanction was removed in 1999 for a person to state that they are collecting on behalf of private water companies and using the threat of eviction to enforce payment of the demand would do well to consider if they are in breach of section 21 of the theft act 1968.

  3. Is this the right one frank?

    ‘Sometimes the landlord is the customer liable to pay charges to the water company. The charges set by such a landlord to tenants are service charges that are in the first place a matter between landlord and tenant. Ofwat has made the Water Resale Order 2001, under section 150 of the Water Industry Act, limiting the charges that may be made for reselling water or sewerage services provided originally by a water company. Ofwat can advise but has no powers to determine disputes between landlords and tenants.’

    http://www.publications.parliament.uk/pa/cm200102/cmhansrd/vo011105/text/11105w10.htm#11105w10.html_sbhd4

  4. Yes, I agree. No ambiguity – no need to refer to hansard, well, for practitioner purposes anyway….

    None the less, it is shocking to think how such an important provision could have been overlooked, particularly given that many of the ‘payment schemes’ were introduced around the same time as the 2006 Order. Whilst I know many of them are done in good faith, it might have been better to have avoided introducing them from the start. I have heard similar bi-lateral ‘agreements’ being pushed onto tenants with ‘preferred’ energy suppliers, again, whilst in those cases the Electricity and Gas Acts will step in, it is not something the LA’s and HA’s should be meddling in for income purposes.

  5. I have a letter here from the secretary of state department of DEFRA stating that in the court of appeal Rochdale v Dixon Rochdale Council are acting as a reseller I also have a copy of the true contract between Rochdale Council and United Utilities it is quite a bit different from the draft presented to the courts. and the missing piece of my eleven year jigsaw just fell in place

  6. I’d be interested in viewing those frank. Are you aware of any similar / same agreement between “RBH” and “UU”?

  7. I have to confess that I struggle with the disctinction between Rochdale and Lambeth, save for one very crucial factor: if it is right that Southwark were liable to pay Thames Water the water charge for the majority of the ten year period, how on earth can they claim that they were acting as Thames Water’s agents? They must have been a re-seller.

    As for the other attempts to distinguish Rochdale, wouldn’t it have been easier to simply say no one took the 2006 Water Resale Order point? For all intents and purposes the arrangements are very similar; they do exactly the same thing.

    Also, presumably as s.150 gives Ms Jones and other tenants an express statutory right to claim back the overpayment, Southwark won’t even be able to rely on the usual restitutionary defences that I had originally thought would be available to it.

    This is a real problem for them. Especially as they won’t be able to raise the rents to meet the shortfall in the HRA (as per clause 21 Welfare and Work Bill which requires them to reduce rents by 1%).

    • S. Yes, this was why I said Rochdale was about vires. The reseller issue was not raised on appeal (and not clear if put that way at first instance). And the terms of the Agreement seem rather different.

      Both s.150 and s.10 of the 2006 order cover repayment.

  8. See water industry Scotland act 2002 section 30 water resale section 37 collection by L.A schedule 4 recovery method . See The water and sewerage services to dwellings collection of unmetered charges by Local Authority Scotland order 2014. section 11 WIA 1991 section 150 water resale. Collection by LA ? Recovery method ? accounting? miss Jones says Southwark are water reseller under section 150 WIA 1991 Southwark LA say we are collecting for Thames Water under section ?of the WIA 1991

  9. Sorry Mr Peaker i was simply pointing it out as a comparator section 38 of the local government act 1974 having been repealed by the water act 1989 i am trying to find where it has resurfaced otherwise your LA could demand that you pay them your water charges after all we are all consumers regardless of property status. its just i dont like being treated differently than any other resident of the borough unless there is a valid reason .Southwark are demanding Miss Jones money but under what document and under what section of the water act 1991 the answer is under the tenancy agreement and section 150 so the landlord answers to Thames water and miss Jones answers to the landlord and the landlord adheres to the water resale order or the tenant sues

  10. “….its just i dont like being treated differently than any other resident of the borough unless there is a valid reason”

    I probably don’t suspect that you were Frank, I can hazard a guess that there may have been others affected by this where the court would not have considered it reasonable to grant a possession order had the ‘rent’ arrears figures been correct. Given that (if upon further examination) they were not the correct figures, then the rest may speak for itself.

    In your case, if indeed you are the same Mr Dixon, in your shoes I would seek advice from a solicitor given the Southwark judgment. It is probably prudent to note the case of Young v. Bristol Aeroplane Co. Ltd. [1944] 1 K.B. 718 which gives the court jurisdiction in cases concerning statutory law or rules not having been presented before the court.

    https://en.wikipedia.org/wiki/Young_v_Bristol_Aeroplane_Co_Ltd

  11. Thank you .I am on with the contract for you it was provided to me through the councils external auditor i believe i need permission to use it for other purposes. Rochdale council was charged 19.082 pounds to deal with my complaint he went along with Lambeth and Rochdale i am now back on to him I actually meant by being treated differently was as a consumer of goods and services regarding my next door neighbour who owns his own home. I feel certain as a deemed customer of UU the same as him all the threatening demand letters and phone calls possession orders and evictions 1000 in seven years 2005-12 no reported figures since . Also on a freezing cold January morning at 11-oclock a man suffering from Crohn’s disease was due to be evicted by the bailiff and the housing officer for an amount of 584-pounds unpaid so called rent arrears, most likely not knowing how he was gong to cope with his illness without water and homeless, when they broke in he had hung himself.if UU want all this in their name due to my judgement then they are being very foolish My water charges have just arrived stating water charges are collected on behalf of UU and are payable by ALL tenants. Given all the above and i,m deemed to be trading with UU and under the Unfair consumer trading practices reg 2008 lets see if they agree with Rochdales judgement

  12. The date the poor man took his own life was Jan 2011 my appeal date was June 2011 and the people that knew this were at there. If, as is normal,payment of the water charge to the authority is either treated as and considered to be part of the rent,or is otherwise a requirement of the tenancy, failure to pay the water charge element of the rent gives rise to a ground for possession, which means that it contributes to (or in an extreme case,could at least in theory, even be solely causal of) the possibility of eviction,a possibility that does not arise where the debt is directly owed to the water conpany. (In this connection it maybe noted that payments are not differentiated, otherwise than in the annual notice of rent . At least Rochdale Council the LA obtained the judgement to carry on regardless.

  13. I’m assuming that if the principle (Thames Water) uses an agent (Southwark L.A) to collect on its behalf monies due to it for services provided to the premises, that the occupier being the user of the services, would also be the customer of the principle,and the book debtor ,on whom liability to pay would fall as the occupier as envisaged by section 144 WIA 1991. If however the occupier is not the customer of Thames Water and the liability to pay the charges due then no agency exists. Please now see Thames Water Scrutiny Southwark Council page two . Sorry i can’t post a link . To be continued .

  14. The allowances and reductions are Thames Waters avoidable retail costs, it is retailing to one customer( Southwark LA) as opposed to thirty seven thousand individual customers (the occupiers)

  15. Is it not possible that if you agree to vary the existing agreements between a HA/Council and the water provider to make clear that it is agency agreement, that agreement could operate retrospectively? Therefore, arrears would not be an issue.

    • No because that is akin to retrospectively applying a contract which doesn’t exist. In that sense what was was, and was is is, remembering that of course it isn’t just what the parties say the agreement status has (i.e. an agency agreement) but also the cooperation between the parties i.e. what the parties do. I contrast that with say, an employment relationship where one party says a person is self employment but having construed the relationship the party isn’t really self employed but a ‘worker’ despite the labelling given to the relationship.

  16. I have read the Southwark news article, was the forced disclosed agreement the same 2000 agreement put before the court for adjudication?. If so that is a contract of sale. To confirm this all that needs to be done is to insert the word seller for provider and buyer for the word customer in the clauses stated. and in clause 3.2 for the word commission insert the word undertaking. Southwark LA(buyer) has given an undertaking to Thames Water Utilities Ltd(seller) that it will pay the charges due on the premises contained in the agreement for the charging period of 2000-01 at the negotiated reduced price of the market value to Thames Water,and on payment terms agreed by the parties. I am certain that if Southwark LA default on payments Thames Water will sue. Now i ask is that to collect or is it to pay. regarding the VAT issue raised at clause 4.6 that is simply the seller asking the buyer if any of the water is being used at the premises for purposes that could be eligible for VAT(a laundrette or a hairdressers and beauty parlour) please see HMRC water sewerage charges. After the seller has raised his charges under section 143 WIA 1991 he provides the water he does not police the buyer he has achieved his financial intention. To reply to the comment made by Cllr Livingstone in the press i would simply say, go on to the shop floor for one month and live in one of the void properties,pay the rent as is expected of all tenants,and pay the water charges as is expected of all the users,and then put your wit to the test . From the first time you turn on the tap see how long it takes to answer yourself the following questions (1) Am i buying the water i am using from Thames Water or am i buying it from Southwark LA? could any one else answer the question.

  17. Just going back to the VAT issue at clause 4.6 the VAT would be payable on the price paid if charges on the use of water at individual premises are due.

  18. Follow the money and treat the audit trail as the road to the truth. At para 10 of the judgement is an invoice for Feb 2005 the figures are for one instalment comprising of ten. So before the court are a 15 year old agreement and a 10 year old invoice. Why was the current invoices not produced, the payments to Thames Water Utilities Ltd (vendor), these can be found at Southwark Council open data council spends. The payments for 2015-16 are ten instalments from April to Jan one payment of £ 1,316,565,36. followed by nine of £1,307,430,61. That is over 13m pounds payments, for previous years can be traced back to August 2010. and payments will have been made by the person who registered as the bill payer in 1989 at privatisation. now where is that agreement?. That is account of expenditure where is the account of income?. Are the payments gross or nett of allowances and deductions. The next payment to Thames will be about the 7th April with a rise of 3% that is before any monies have been extracted from users in the premises. The LAs section 151 officer should be looking into the authorisation of the next payment along with the head of paid services and borough solicitor. It would appear that the agreement is a commercial venture by Southwark LA as opposed to water resale or a collecting agency agreement. Now how it is supposed to work as opposed to actually working becomes clear.

    • Frank – the actual money involved is neither here nor there. it is the nature of the agreement, pure and simple.

      Payments to Thames Water are less the allowed deductions in the agreement, for ‘voids’ and for ‘admin’ – total is 23%. It is that discount, as opposed to the £5 per household per week allowed under the reseller order, that is the ‘profit’. Southwark paid it into the Housing Revenue account. They have publicly valued it at c £2,300,000. Working on a rough average of £45 per household per year, that looks about right.

      The position after 2013 has yet to be decided by the court, which is to decide on the validity of the amended agreement of that year.

  19. The water resale order , the amount for admin allowed is £5 per year for unmetered premises. 37.000 at £5 -£185.000

  20. Frank, I’ve now got a copy of the letter you referred to (albeit redacted of any other personal information) from the DEFRA confirming, in it’s opinion, RBH was acting as a reseller during the CA case, that is quite persuasive.

    As far as I can understand at the moment, if the position remains the same to date, they may still be acting the same.

  21. I’ve not done much digging to date, but Giles, are you aware of any prosecutions under the LTA where said landlord refuses to provide information?

  22. Where a tenant has received a summary of the service charges relating to the tenancy (such as the water charges) but upon request, the landlord refuses to provide a copy of, or an inspection of, documents as to how such charges have been calculated and any agreements which cover the charge under s.22 LTA 1985, thus failure to do so being a summary offence under s.23?

    • Nathan. First, it would have to be requested. Second, Local Authorities are exempt from prosecution (though not housing associations).

  23. Thanks Giles, I suppose in the end, that still captures most as most are probably now HA’s or non local authority.

    • But also trivially easy to satisfy. Could just hand over Water company’s assessment for that property. That would be all s.21 & 22 would require.

  24. I suppose in the end of the day, the best route to disclosure might have to be the usual civil process then

  25. Nathan i think you will find that the person from DEFRA says Rochdale council is acting as a water reseller in the agreement. My issues have always been with RMBC. RBH was only the ALMO sending out the bag men and women chasing a debt owed to United Utilities by Rochdale council as a consequence of its actions not those of RBH. If you like the scheme introduced in 2005 between United Utilities and RMBC .The same as Southwark only they started their scheme in 1989. Rochdale council agreed to purchase the water and sewerage services from UU value £3.6m at a knock down price of £2.9m. The 20% discount -3% for voids 5% off the total charges and 12% UU avoidable costs of collection issues. leaving RMBC with a profit margin of £700.000. RMBC billing the occupiers the same as if UU billed them. it seems Southwark are doing the same.,and the intention is to profit However you twist the above the lable of collecting on behalf of will never stick. Nor will water resale. Neither are the nature of the agreement. At clause 16.1 of my contract not put before the courts it states NATURE OF AGREEMENT-Not used I would now ask the question Was RMBC the claimant for my money as the vendor or transferee to myself and other occupiers aware of the true nature of the agreement between itself and UU. Nathan see para 37 Rochdale v Dixon. Post when you have read , I will then post the legislation that applies to Southwark from 1989 to date.

  26. At para 39 R v Dixon the three who else questions posed by the judge can now be answered by saying Rochdale/,and at para 50 Rochdale do somehow attempt to earn the charges concered .and at para 38 UU have dropped out of the picture,but in the case of Southwark Thames water never stepped into the frame.

    • Frank & Nathan

      Might I suggest that doing your working out of your case in public on this site is maybe not the best way to go about things?

  27. Frank, yes, I agree in your case it was still RMBC who were liable before RBH acquired the housing stock a few years ago. If that was the true nature of the agreement then it seems that all you need to do is calculate what you should have paid as a pose to what they demanded and what was included in the claim for possession. It is a shame that the legal issues were not discovered at the time you really needed them.

  28. Point taken Mr Peaker. If yourself and Nathan have a little spare time over the weekend, could you read, Water Affordability in England and Wales by Snell and Bradshaw. It shows the utter nonsense of treating water debt as rent arrears,also it would not be a bad thing for any councillors, council officers, or anyone in the legal profession from the bottom to the top, to bear the thing said in the report before serving NOSPs or granting suspended possession orders. Water inaffordability will never be solved by threatening eviction., nor is it confined to social housing. Pages 19-20-21 sum it up for me.I will learn to post a link Mr Peaker. If a cant pay, cant pay the water company, then the cant pay, cant pay the party thats paid the water company. The mind boggles

  29. Wow, that is a substantial figure. I have often said that I have thought at least, that some of these schemes
    are on a good faith basis, I am beginning to think that some of them may not be not withstanding the issues of
    illegality.

  30. Sorry about the mistakes. I am drained with these people, when they put me in court in 2010 they destroyed my credit rating,plus now after 44 years in my home i have lost my right to buy over a disputed water debt. 70% discount i could have bought it for £16.500. but i will win in the end.

  31. I must have messed up sorry. I have just been informed that Rochdale v Dixon has been cited in the United Kingdom supreme court in the case of Plevin v Paragon personal Finance 12th November 2014 para 30. I dont know if the Southwark judgement alters anything or not. in Rochdale.what i do know is that in all cases the bill should just be simply sent to the occupier, failing that a payment card for rent and a payment card for water services need to be issued. i am sure people would then take care of the rent first., and then the water. Council tenants do pay water bills in the lLAs that dont implement this scheme.and if they dont the water company apply for a CCJ order. and whatever follows from that. but it will never result in adults and children being made homeless . i need to read Pevin.

  32. Rochdale Council are still the customer of UU even though RBH took over the housing stock in 2012. The council could still send their demand(bill) to me direct but choose to send it through RBH. If i may i will post under Water under the bridge Nearly legal. so not to interfere with Southwark Thank you for the link to plevin.

  33. c) Where the relevant premises to which the supply is made is let on a tenancy of less than twelve months or licence, the owner of the premises shall be regarded as the occupier and be liable for charges except where some other person has paid the charges or is liable by agreement with Thames Water

    LAG article on Water (May 2016 p19, last paragraph) & cases where tenants are billed by the water co.

    In cases where a non 12 month tenant (e.g. a weekly tenant) has always paid the Thames and not the Landlord for water, the suggestion is that for the period 1/4/02 to 31/03/2010 the tenant can recover the money paid to Thames by deducting it from money now due (as limitation does not apply to defences).

    “the tenants have claims for restitution of the entire amount paid to the undertaker in error”

    I have now been looking at that suggestion more closely and in consequence I do not think that conclusion would be necessarily be correct.

    This is because there is an exception to the person chargeable being the Landlord (owner).

    “except where some other person has paid the charges or is liable by agreement with Thames Water”

    In this case some other person has paid the charges i.e. the tenant.

    Have I missed something?

  34. Southwark Council are now going to refund over 28 million pounds from 2001-12 to current and former consumers. The trouble with council officers is that they do not listen to what members of the public say. Having now spent many weeks reading the law on the supply of water and sewerage services as opposed to housing law, if i was in their shoes i would not act in haste., it appears that the demand is lawful or unlawful no in between.The question to ask is. Is the agreement between Thames and Southwark legal.

  35. In order to clarify my position with regard to water charges applied to Council House tenants in Rochdale plus the same status when these tenants transferred to Rochdale Boroughwide Housing [RBH]; I was the recipient of the letter from Dept for Environment Food & Rural Affairs dated 11 Feb 2013 – in reply to my letter. Hence I was the Councillor who took action on behalf of Frank Dixon when he challenged Rochdale Council about the legality of their water contract.
    It is useful to point out that the Water Contract is still with Rochdale Council today albeit they do not easily admit that – but this can be confirmed via United Utilities the Water company if you speak to the “right person”..
    Most will be aware that residents suffering from genuine inaffordability with respect to water charges can only seek financial assistance from a water company – who hold a Trust Account for that purpose. [No government department is allowed to give money to anyone for their water bill.]
    Alas, when a LA pays the water bill, as is the case in Rochdale, then the water bill is already paid = no debt, so a tenant is effectively barred from applying for help – even if they had a reference number with the water company as a customer – which they do not. Since over 80% of tenants are on Housing Benefit (Rochdale has many impoverished tenants) it means that thousands of tenants have been evicted for non-payment of their water charge – however, this charge has been merged with the rent account so it goes to Court as rent arrears!
    Having known of a mother with a baby being hounded for a “rent” payment and left with just £7.00 from a Tuesday to the following Friday to feed herself and her baby, it does rather bring it home to me that we are not talking about people on drugs and or alcohol who have been made victims.
    The chap who hanged himself just prior to officials calling to evict him had been a hard working lorry driver all his life then he became ill and was incontinent. Had he, like hundreds of others, been able to acquire aid from a Trust Fund OR been put on the published lower rates enjoyed by anyone whose account was with a water company – affording the water charges would not have been a problem to him as with thousands of others. People in high rise flats, for instance, are entitled to a discount too as they cannot have a water meter: yet not automatically in Rochdale.
    The injustices levied upon ex-council house tenants in Rochdale is profound.
    Finally, I wish to point out that the Appeal Case re Frank Dixon, which I attended, was unable to raise the issues concerning the legality of the Water Contract as these had not been included in the legal bundle used by the QC who represented Rochdale Council.

  36. We currently have a case in which we act for a tenant of RBH in a Defence and Counterclaim to a rental possession action.

    United Utilities have been joined into the proceedings as an Intervener and the case has been transferred to the High Court Chancery Division for the trial of a preliminary issue namely ;

    “Is the Claimant a “reseller “ within the meaning of the Water Resale Order 2006 by reason of the agreements (s) entered into between the Claimant and the Intervener “

    It is anticipated that the issue will be determined in early 2017 subject to any appeal.

  37. The following is a reply from United Utilities to the question i asked, Who am i the customer of ? Dear Mr Dixon. Thank you for your telephone call on the 9th of January 2007, regarding payment of water services charges at the above address. Please allow me to explain the situation. Rochdale Council has an agreement with United Utilities to pay for water services charges at their properties,and the council then has to recover these costs from the tenants of the properties. Therefore, it is your responsibility as a tenant, to pay Rochdale Council for water services charges at the above address. As this is a third party dispute, United Utilities cannot become involved and you will need to contact Rochdale Council directly to resolve this matter. I hope this is satisfactory for you.

  38. What is the situation in a case where someone is liable under in use and occupation, rather than a weekly periodic tenant?

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