Northern Waters

Rochdale Boroughwide Housing Ltd v Izevbigie (2017) EWHC 790 (CH) (not on Bailii yet, Judgment is here)

Rochdale BH is a social housing provider (of what was the council’s housing stock). The issue in this case – heard as a preliminary issue – was whether Rochdale BH was a water reseller under the terms of The Water Resale Order 2006 in that charges for water it made as a part of the rent.

We’ve seen this becoming a significant issue for Thames Water in and after Jones v Southwark, where Southwark were found to be a reseller. We have also seen previous proceedings on the issue concerning Rochdale in Rochdale Borough Council v Dixon (2011) EWCA Civ 1173 (our report). The issue is that if the council/RSL is a reseller, they are only entitled to a small administrative charge and have to pass on any discounts or reductions in charges that they receive on to the tenants. For Southwark, over 13 years, this amounted to tens of millions of pounds. And of course, as we have seen, charging water rates as rent in this situation leads to uncertain arrears and failed possession claims.

The sole issue for this judgment was whether the contractual terms of the agreements between United Utilities Water Ltd (who were intervener in this case) and Rochdale BH (and its predecessor) meant that RBH was a reseller. Specifically, as per the 2006 Order, was RBH a body that “provides to any Purchaser a supply of piped water which a Water Undertaker has supplied, directly or indirectly, to the Re-seller”?

There were three relevant agreements, from 2005, 2012 and 2014.

The 2005 agreement provided

Recital B records the fact that the Intervener is responsible for “providing water” to the relevant area and may recover charges for doing so

Recital C records that the Claimant (its predecessor) has a power to enter into “an agreement for the collection and recovery” by them “on behalf of” the Intervener of “Charges fixed by the Company for the supply of water…”

Recital D records that the Intervener and the Claimant’s predecessor have agreed “that the Council will collect and recover the charges fixed by the Company for the supply of water”

“Charges” are defined as the liability to pay for water “provided by (the Intervener)”

The term “Customer” is defined as “tenants or other occupiers of the Properties who are liable to pay water or sewerage charges to the Company”.

Clause 2.1 records that the Claimant will provide certain services to the Intervener in exchange for payment

The services (at schedule 1) to be provided include the “collection and recovery of the Charges from the Customers”

Clause 2.2 records that the Intervener “authorises” the Claimant to collect the Charges on behalf of the Intervener.

The 2012 agreement was more or less the same, save that:

“Charges” are defined as charges for water services “provided to the Customers by the (Intervener) which would but for the operation of this agreement have been charged and billed by the (Intervener) directly to the Customers…

“Customers” defined as customers of the Intervener.

Clause 2.1 and Schedule 1 define the services to be performed by the Claimant as “collection and recovery of the Charges from the Customers”.

The 2014 agreement records:

At Recital B the Intervener wishes “to engage (the Claimant) for the purpose of providing collection services in respect of the (Intervener’s) water… charges due from the (Intervener’s) Customers.

“Charges” are defined as the Intervener’s charges for water “provided to the Customers by the (intervener) which would, but for the operation of this agreement have been charged and billed by the (Intervener) directly to the Customers”

“Customers” defined as customers of the (Intervener)

Clause 2.1 and Schedule 1 define the services to be performed by the Claimant as “collection and recovery of the Charges from the Customers”.

Clause 3.1 provides that the Claimant is bound to “collect and recover” the Charges.

Ms I’s argument was

  • The court was not bound by the first instance finding in Rochdale v Dixon on the 2005 agreement.
  • RBF had, in the 2012 and 2014 agreements clearly accepted responsibility for the payment of charges on all its properties, occupied or not – referring to the definition of “Charges” in those agreements
  • RBH had no authority to collect charges on the Intervener’s behalf, so was not an agent.
  • Jones v Southwark should be followed.

RBH argued that on interpretation of the agreements, it was not a reseller. Further, the 2012 and 2014 agreements had been drafted in full knowledge of Rochdale v Dixon and this should be borne in mind in interpretation.

The High Court said that it followed Arnold v Brittan on contractual interpretation, and then read the agreements as a whole, in context.

The definition of “Charges” simply meant that the Intervener did not charge and bill the tenant customer directly. It did not mean that RBH was itself being charged.

The rest of the terms of the agreement were all consonant with RBH providing collection services for the Intervener. The Intervener told RBH what the charge was and RBH collected it

The context of Dixon v Rochdale was significant as background knowledge that a reasonable person would have had in interpreting the 2012 and 2014 agreements, the effect of the Dixon v Rochdale decision being that ‘the council had got it right’ in achieving an agreement to collect charges for the Intervener without assuming responsibility for them.

Unlike Jones v Southwark, RBH were not under  contractual obligation to pay for services provided by the Intervener.

Held – RBH was not a reseller.

 

 

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

37 Comments

  1. Thank you Mr Peaker. I was going to comment in a few days time, however i have just received a letter and a copy of the judgement from the head of claims and debt at United Utilities which he hopes will satisfy my concerns. In part of the letter he says. You will see from the judgement that His Honour Judge Bird refers to the three agreements between RBH (its predecessor) and ourselves at paragraph 11. These are dated 2005,2012,and 2014. That statement now only goes to add another concern to my concerns. I am now concerned and i would hope His Honour Judge Bird would also be as to why the second agreement being the legacy debt agreement between UU and RMBC commencing on the 1st April 2005 was omitted by both the claimant and the intervener and the provisions of that agreement being denied to the court. The basic workings of that agreement are of the £2m owes to UU RMBC would collect that on a 50/50 split basis,£66.000 collected in the first 3 years generating £33.000 for the council.Call this agreement 1. Agreement 1 reducing UU debt, Agreement 2 for which i have a report by RBH dated 6th December 2004 recommending the council enter into an agreement with UU and the financial implications. If approved, the scheme will operate as follows. I will post the details later. the scheme then approved on 10th Jan 2005 by council. Which results that from 1st April 2005 UU will incur no more debt on the housing stock from the occupiers(tenants). That’s two documents omitted. Agreement 1 and implications of agreement 2. I think the lady defendant has had a bit of a raw deal. Will post financial later.

    • Frank, please don’t post the financials, it doesn’t make any difference. If RBH (or RMBC) were not a reseller, they can receive a commission or payment from UU. And on that, it is the contract agreements that are important.

  2. I assure you Mr Peaker i could not do so.I am going to post four points on how the scheme would operate if approved. which it was.

    • Frank, you are not getting the point – it doesn’t make any difference to the judgment. It is purely a question of the interpretation of the contract.

  3. Goodness has it been over two years since i last posted. Time flies when you are having fun,trying to asertain the nature of the agreement between the water service provider and my landlord Rochdale Boroughwide Housing not the nature of an agreement between a Local Authority and a Water Company. As to the financials follow the money and it will be apparent which party is liable for the charges the landlord or the tenant, and from whom the charges demand. Three contracts 2005-10 2010-15 2015-20. each one with the landlord now see the court judgement the 2010-15 liabilities novated in 2012 to the purchasing landlord. the novation is signed by the CEO of RBH. IN 2015 the landlord entered into a 5 year contract for the provision of water services supplied to his properties which expires on the 31st March 2020. If a new contract is not agreed all tenant will become new customers of United Utilities they will also become Data Subjects as regards billing and debt, which ipersonaly ceased to be on the 1st april 2005 due to the variation of payer fro tenant to landlord to the payee the water company.

  4. And to add the nature of the agreement between water company and landlord is not one of water resale nor is the landlord demanding collecting and recovering on behalf of UU. he has quite simply paid the water charges for his tenants or as Lord Rix would say for the benefit of his tenants. and i say thank you,but as my landlord dont tell me water charges are collected on behalf of UU if that is not the nature of the agreement.

  5. In the court case RBH v Izevbibie at paras 33-34 who is liable asks the judge. three parties in the courtroom. the service provider the landlord and the tenant, the landlord denies his liability the tenant denies liability which one is lying and what is the reason to deny liability? If the landlord is liable the answer is obvious.

  6. Refering to posts in water under the bridge Giles Peaker 18-4-2016 Stock transfer now thats interesting.18-4-2016 F Dixon zero balances The stock tranfer coincides with the novation of the liabilities of the landlords in 2012 contained in the 2010-2015 contract. This is why i find it hard to believe that the CEO of my landlord RBH does not know that as a landlord they are liable for all charges to the water service provider as he himself signed the novation and why judge bird was kept in the dark when he posed the question in the court case.That could be a material fact the judge should be aware of.

  7. I am at this present moment waiting for a reply to a question i have put to my landlord which is,As United Utilities is the water service provider and must raise its charges,does he raise those charges from the landlord or the tenant? Now that is not a difficult question for a landlord to answer but he is a long time coming back with the answer. maybe he should ask United Utilities i am sure they will tell him who is the account holder and from what date to what date.I will now concentrate on the property i rent and will find out what date i last owed any money to United Utilities for the provision of their services.

  8. There are three sections of the WIA 1991 which concern liability of owners, if you discount the two not applicable to the agreement between RBH and UU this leaves the relevant one and exposes the nature of the agreement. The Truth will out.

  9. The truth will out. 18.54 25th November been informed by United Utilities RBH are the account holder for the property i rent from them, the agreement they have with U/U will end on the 31st March 2020. The consequences of the landlord ending the agreement are that i and other tenants will become customers, consumers and data subjects of U/U. This will result from a variation of Section 52 5b to 5a of the Water Industry Act 1991. In a nutshell the owner will end his contractual obligation to pay for the services provided to him the services will from 1stApril 2020 be provided to the occupiers who have since the 1st April 2005 and the 1st April 2012 new landlord RBH not owed any money to U/U and at this present moment owe no money to U/U. No money owed to U/U no collecting on behalf of U/U by the Local Authority or by RBH from 2012. The Landlord has said, I Will Pay For The Services you use them, to which i reply Thank You. Iwill take care of the gas and electric services. Now i want my money back which in my opinion has been taken by a false pretense. Water charges are collected on behalf of United Utilities.

    • There is a forthcoming judgment on the London/Thames Water agreements and whether the councils and Housing Associations are re-sellers.

      But I’m afraid, Frank, that for you the whole matter is done. There is no way round the judgments on the Rochdale cases.

  10. Water charges are collected on behalf of United Utilities is in my eyes a false statement and to add U/U can not raise a judgement against me for non payment if i owe them no money for any financial year fro 1st April 2005 to date and to the end of the current financial year 2019-20.

  11. Mr Peaker Why do people keep asking is the agreement water resale? the answer is no it is not water resale for the simple reason that water resale is where the water companies can not bill the occupiers direct. So i ask myself are RBH a reseller of water services,and the answer is no they are not,for the simple reason that the water company can and did up until 2005 bill tenants individually. Ithen ask myself are RBH collecting monies from its tenants for U/U. I then conclude the answer is no. RBH the landlord as simply instructed U/U send the bill for all the charges due to me i will settle the debt in installments from 2012-15 and2015 to April 2020 the landlord billed direct and now from 2020 the tenant will be billed direct, thats me. The question then is. Are RBH an agent of U/U . So the pertinent question is the landlord collecting on behalf of U/U as he states.and in the words of Lord Justce Rix and in the presence of the CEO of RBH If what i am saying is correct this would be fraud.The agreement is not water resale. nor is it a collection agreement. Its a done deal for payment by the landlord for services provided to him as the customer the consumer the debtor and the data subject under the data protection acts.The landlord can now not recharge the tenant to reimburse himself for what he has freely agreed to pay. Judge Bird said in his judgement the question is who is liable the landlord kept stum he should have admitted his liability then see the outcome.

    • No, Frank. If they are an agent, they can take payment for services as an agent. The landlord takes a payment from the water company for acting as the the agent of the water company in providing services for the recovery of water charges. And yes RBH are collecting payments for the water company.

      That is the whole point of the ‘re-seller’ argument. If they are a re-seller, they must pass on any discounts they received. If they are not, then they are agents for the water company.

      You may well not agree with this judgment, but I am afraid it is the end of things for your dispute.

      What happened in 2005 is completely irrelevant.

  12. The only way the tenant can be billed from April 2020 is if the landlord informs U/U he is no longer willing to fulfill his contractual liability to pay the charges not to collect on behalf of U/U. U/U will then set up new accounts and send out privacy notices to its new customers and begin credit referencing for default with credit agencies.at the moment tenants are only potential customers see section 219 water act 1991 landlord is customer. O what a tangled web we weave.

  13. So what happens when the water company say they are not collecting on our behalf. As i have been told i do not have an account with U/U I now have the consumer council for water to ask U/U questions on my behalf. Question. For accounting purposes what are the total amount of the charges i have incurred since 2005 to date? On any given date could i have an account balance? Will you please provide statements of accounts for 2012 to 2019?. Are RBH processing debt data on your behalf. U/U refunded Mr Dixon £150.00 overpayments in Feb 2004 and closed his account what was the reason for this? As there is no distinction between tenants who are customers of water companies and others, Why can Mr Dixon not simply set up a direct debit or better still pay U/U the full amount of the years charges on the 1st April each year?. Why is Mr Dixon and other tenants of RBH not eligible for your back on track scheme? Mr Dixon says you have informed him the agreement is a parent and child agreement, that the parent account consists of the charges for each individual properties rented out by RBH , RBH is then liable for the total amount of the charges he then pays the parent account in agreed installments thereby settling his debt. Mr Dixon believes that section 150a of the water act 1991 does not apply to him as he can not dispute the charges as he is not the payer of the bill and therefore he is simply disputing liability to pay U/U could you please confirm as the tenant is he liable or not, sub section 11 of section 150a customer means any person to whom the undertaker provides services he believes that U/U provide the services to the landlord and not to him personally,and that he has no financial relationship with U/U or indeed any relationship. He as requested that under the GDPR data protection act 2018 that you remove his personal details from your systems as you have no reason to process any data on him most importantly billing and debt Mr Peaker i am 69 years old i know to whom i owe money and who i dont and so do RBH and the water charges will be on their asset and liability register or should be, because i cant list them on mine.

  14. Something just made me laugh so i thought i would share. The landlord RBH are owed about £1400 by a close friend of mine.No rent has been due for years DWP cover that,the debt is purely water service debt which is collected on behalf of United Utilities,i kept telling him that they would evict him just like they tried to evict me. Drinking two bottles of southern comfort + cans a week alcoholic poor soul. His motto some you win, some you lose,win or lose have a booze.He evicted himself on behalf of United Utilities today he dropped dead.That is United Utilities out of pocket,o no i am wrong the landlord has paid he is out of pocket.He is just a former tenant who owes the landlord income. the landlord chases former tenants for water debt i wonder will they chase him or employ a debt collector as they state in their rent and incomes policy.

  15. Kingston lost court case have to make refunds they tried to hang on to the money they had taken from their tenants when all they had to do was follow the law and the proceedure for water rates on rented properties by owners/ landlords Since well before the water resale order came into force in 2001.

  16. Also long before Dixon in Rochdale, Thomas in Lambeth, and Izevbigie in Rochdale boroughwide housing.

  17. See if anyone can answer this question What Act of Parliament governed water rates charging and owners in 1965, 1984, or anyone pick a year. Also do not even think about the WCCP Act 1991 Para 20.

  18. The Water Act 1989 Section 1 Sub section 1. Section 145 sub section 2 WCCP act 1991 para 20. the NRA became the Enviroment agency in 1996. That para confers powers on first the NRA and then the Agency to collect and recover on behalf of ANY water and sewerage company,not Rochdale Local Authority collect and recover on behalf of ANY water and sewerage company and certainly not Rochdale Boroughwide Housing. See APSE Public bodies for the purposes of The LGA 1970 see WCCP Act 1991.So RBH have the power to take my money uder that act i do not think so. Nor any Housing Association.

  19. It Dosent matter then you tell the one parent family who went into Rochdale Law Centre in tears at the thought of losing her home for £125 water debt supposedly owed to United Utilities She went back to her parents my MP commented lucky they did not find her in the canal. The Act is The General Rates Act 1967 first see section 115 excepted rates then section 56 and 57. thats all Kingston had to follow.

  20. I will go back to Jan 2015 In Oldham court when i had withheld £3200+ And RBH got a suspended warrant and called it rent arrears and i gave them over £35 per week plus the current water charges plus the rent the rochdale landlord never had one penny off me and nor have U/U only RBH as the landlord.RBH s lawery opend his file and said Judge platt said in manchester and thid Judge said you can put that away RBH said they would except £35 a week. So RBH have had all the water money from 2005 over £5000 plus allrent due from 2012 and they now want all the water money due up until 31st march and i have never owed U/U any money since 2005.All this because U/U wont send me a bill for the services they have provided to me.Let me rephrase that all this because U/U cant send me a bill for any year from 2005 because they hae not provided me with any services they have provided them to their customer first to rochdale council landlord, and then on sale of housing stock in 2012 to RBH up until march 31st 2020. Some people in life get desperate and do silly things when money is at stake or involved Mr Peaker but whatever silly things i did i would not pay a water bill before i paid my rent.

  21. RBH said they would not except £35 a week not what i put above. they wanted me out after 43 years.

  22. Mr Peaker I agree with you i lost, I said the Local Authority did not have the power to demand collect and recover water charges on behalf of water companies.Right they do.So if Rochdale Local Authority demanded it now who would they demand collect and recover it off. RBH the owner.Not off me the occupier.

    • RBH are collecting the water rates for UU.That is the point of the case in this post.

      I’m osrry Frank, I’m going to have to ask you to stop. It isn’t helping anyone else, and it isn’t helping you.

  23. Fair dos Mr Peaker What i have to do is get U/U to say they are not Wish me good luck. I will ask you to do one more thing concerning the kingstone case. put in your computer Our charges Your Bill Thames water. Page two Landlords and tenants and Common billing Agreements. The first one the landlord cant recover from the tenant . it is not water resalehe has just said he will pay the bill. the second one is water resale, one service pipe one meter thames charge landlord for water sold landlord resells water to tenant purchaser.Apportioned fairly. and there cant be water resale on an house.Thank you Mr Peaker look forward to reading your future posts i read every one all very interesting.

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