First-tier Tribunal Decides on Water Charges for Park Home Occupier

OUTCOME: Allowed in Part

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference : CAM/33UG/PHC/2019/0005

Property : Mile Cross Gypsy/Travellers’ [ADDRESS] [POSTCODE]

Applicant: [redacted]

Respondent : [redacted]

Representative : [COUNSEL] (counsel), instructed by [NAME], Norwich

[ref : [COUNSEL]]

Type of Application : by a park home occupier for determination of any

question arising under the Mobile Homes Act 1983

or agreement to which it applies [MHA 1983, s.4]

Tribunal : [NAME] [NAME] date : Friday 18th October 2019 at Cambridge County Court

and venue

Date of decision : 28th October 2019

DECISION

• Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 1–3

• Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 4–12

• Applicable law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 13–16

• The hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 17–22

• Discussion and findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 23–27

• Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 28–30

1. The issues for determination in this application were reduced by striking out at

an earlier directions hearing to one only, namely the amount (if any) owed by the

applicant for the supply of water to his pitch by way of resale by Norfolk County

Council as operator of the travellers’ site at Mile Cross, Norwich. Despite this the

applicant again sought to raise or resurrect other issues, including the council’s

failure (as local authority rather than as site owner or operator) to carry out a risk

assessment of this “private supply of water”, a refusal to pursue [NAME]

for charging at over its published rate, and also a claim that the respondent had

accused him of theft of water charges that he had collected from other pitch

occupiers while he was employed by it as on-site manager but later admitted its

error, so he was owed roughly £34 000 and that sum should have been applied

as a credit to his water account - thus more than cancelling out any sums

allegedly owed by him.

2. For the reasons set out below the tribunal determines that :

a. The respondent having reconsidered two elements of its water billing, viz

its own administration charge of 10% of the total bill rather than £10, and

its overcharging for sewerage services, the amount due from the applicant

is as claimed in the respondent’s spreadsheet and accompanying notes and

[NAME] bills served on 4th July 2019, namely £1 007.29. This is

£787.57 less than erroneously charged previously. To that extent only, but

subject to paragraph 3 below, the applicant has succeeded.

b. Whether the water supply within the site is private or not, and regulation

2 of the Private Water Supplies (England) Regulations 2016 confirms that

it is not, that is an issue between the applicant and the respondent in the

latter’s capacity as local authority; it is not a question arising under the

Mobile Homes Act or agreement to which it applies, and its determination

is therefore outwith this tribunal’s jurisdiction.

c. The claim for an alleged £34 000 owed by the respondent to the applicant

is said to have arisen in the context of an employment relationship, some

of it may be out of time under the Limitation Act 1980, it has apparently

been raised as an issue and struck out in previous County Court litigation,

and again it is outwith the tribunal’s jurisdiction.

d. Other issues such as the respondent’s alleged refusal to challenge [NAME] for invoicing at a higher rate than that published, and inaccuracy

of water meters on site, were not raised as part of the applicant’s original

case but only in his witness statement filed and served on 27th August. It

is too late to raise them now, even if this tribunal were to regard them as

legitimate issues for determination.

3. Further, the tribunal is satisfied that by refusing an offer by the respondent to

waive any outstanding sums in return for withdrawing his application [NAME] [RESPONDENT]

unreasonably required the respondent to incur additional and unnecessary legal

costs. The amounts detailed in the summary costs schedule as the costs of and

incidental to this hearing total £3 697.00, which the tribunal allows in full.

Background

4. [NAME] [NAME] has lived at the Mile Cross Gypsy/Travellers’ Site in Norwich for many

years. He is currently or was engaged in other relevant proceedings, viz

a. Before the County Court [E00NR895], in which Norfolk County Council

has obtained a possession order in respect of the pitch occupied by him on

the site; and

b. Before the Upper Tribunal (Lands Chamber), on appeal from the Land

Registration division of the First-tier Tribunal (Property Chamber)

[REF/2017/1102], in which his application to be registered with freehold

title to the site in place of the current registered proprietor of land held

under Title No NK336687, Norwich City Council, was dismissed.

5. The decision by Judge Ann McAllister of the Land Registration division dated 25th

February 2019 noted that he has difficulty in reading and writing, and that he had

been assisted by various others, including in particular [NAME] [NAME] [NAME]. As

[NAME] [NAME] was the subject of a civil restraint order dated 26th April 2016

Judge Cook in an earlier decision in those same land registration proceedings

made an order that neither [NAME] [NAME] nor his wife (against whom a similar

order was made in April 2016) nor any member of his family be permitted to

represent [NAME] Brazil as a [NAME] friend.

6. In this case the sheer volume of paperwork filed with the application confirmed

that once again [NAME] [NAME], who in court addressed the tribunal confidently but

without ever looking at a document, was in receipt of considerable assistance.

7. As explained in this tribunal’s first set of directions issued on 1st May 2019, the

applicant listed in his application various questions that he invited the tribunal

to answer. They were, in summary :

a. An order/declaration identifying that Norfolk County Council should

provide information under the Mobile Homes Act 1983 as amended when

this is requested

b. An order/declaration identifying that it is unlawful for Norfolk County

Council to “tap” electricity meters to prevent overcharging

c. An order/declaration that the Norfolk County Council should not be able

to charge rent for unsafe homes

d. An order/declaration that the Norfolk County Council should not be able

to overcharge for water.

8. However, he then sought determination of a further series of questions :

a. Whether, by reference to the Housing Act 2004, the Housing (Assessment

of Accommodation Needs) (Meaning of Gypsies and Travellers) (England)

Regulations 2006, and the Housing and Planning Act 2016, if gypsy/

travellers who have ceased to be nomadic but are technically homeless due

to provision of unsafe living accommodation under the Mobile Homes Act

1983 as amended by a Local Authority are to be regarded as nomadic or

non-nomadic due to a shortage of alternative accommodation

b. Whether he should be entitled to recover all money owed to him prior to

the period of alleged termination for rent and water

c. Whether, by reference inter alia to the Equality Act 2010, the occupiers are

to be treated as trespassers on the land or in adverse possession

d. Whether Norfolk County Council through its solicitor has acted in a

discriminatory manner towards him, as a result of which he is owed

money, and

e. Whether the state (City of Norwich Council and Norfolk County Council)

can claim that they should not be made liable for their acts of direct

discrimination on costs grounds i.e. the cost of putting right their acts

would bankrupt the councils.

9. Although not specifically raised in the application form, the written summary

submitted by the applicant and a large bundle of documents accompanying it

refer to contracts of employment and contracts to provide services. There is also

an allegation of procurement fraud by Norfolk County Council staff.

10. By order dated 1st May 2019 this tribunal indicated that most of the issues raised

had either been dealt with already in other courts or tribunals or were outwith the

jurisdiction of this tribunal, and invited the applicant to show cause why much

of his application should not be struck out under rule 9 of the Tribunal Procedure

(First-tier Tribunal) (Property Chamber) Rules 2013.

11. At a hearing on Friday 21st June 2019 the tribunal ordered that :

1. All aspects of the application as identified in paragraphs 10–14 inclusive of the

directions order dated 1st May 2019 shall be and hereby are struck out under rule

9(2) as being outwith the tribunal’s jurisdiction.

2. The issue relating to electricity, mentioned in paragraph 19 of the above order,

has no reasonable prospect of success and is hereby struck out under rule

9(3)(e).

3. The issue, touched upon at page 4 of the application form (at (c)), at the foot of

page 7, and raised explicitly today, about fire safety assessments is struck out

under rule 9(3)(d) as being frivolous or vexatious, as any findings will be of no

benefit to the applicant, who has already been ordered by the County Court to

deliver up vacant possession of the pitch occupied by him.

4. The only issue remaining for consideration by the tribunal is the respondent’s

alleged non-compliance with the Water Resale Order 2006 and overcharging for

water and sewage charges.

12. Directions for the trial of that single issue were then given.

Applicable law

13. The supply of water by way of resale by the site owner/operator is governed by

the Water Resale Order 2006, made by the Director General of Water Services

pursuant to powers conferred on him by section 150 of the Water Industry Act

1991. Paragraph 6 provides different mechanisms for calculating the cost of

water supplied to individual users (in this case the occupier of each pitch),

depending on whether the supply to that user is metered [6(1)] or unmetered

[6(2)]. Further, paragraph 8 allows for an administration charge on top :

8. (1) In addition to the sum calculated in accordance with paragraph 6 of this

Order, the charges which the Re-seller may recover from the Purchaser

may include a fee in respect of the Re-seller’s cost of billing and, if the

water supply to the Purchaser’s dwelling is metered, the cost of

maintaining the meter where these costs are not recovered by other

arrangement.

(2) The fee recoverable under sub-paragraph (1) (and by whatever means

levied, charged or sought to be recovered) must not exceed 2.5 pence per

day for each Purchaser to whose service sub-paragraph 6(1) applies and

1.5 pence per day for each Purchaser to whom sub-paragraph 6(2) applies.

14. [NAME]’s official guidance1 refers to administration charges of “around

£5 each year for those without a meter and £10 for those with a meter” the actual

maximum payable for a metered supply is at most £9.15 – in a leap year (or

£0.025 x 366).

15. Paragraph 9 is headed “Transparent charging” and sets out the information that

the [NAME] must supply on request by the end customer to show how the charge

has been calculated. Failure to provide this information has consequences, as

provided for by paragraph 9(3)–(5), in the form of a reduced charge.

16. The applicant also sought to allege in his submissions for this hearing that the

respondent local authority, Norfolk County Council, has failed to carry out a risk

assessment whether there is a risk of supplying water that would constitute a

potential danger to human health, contrary to regulation 6 of the Private Water

Supplies (England) Regulations 20162. However, the definition of a “private

water supply” appears in the interpretation provisions in regulation 2, viz

“private water supply” or “private supply of water” means a supply of

water other than a supply provided directly by a water undertaker or water

supply licensee, and which is comprised of all physical assets from the

point of abstraction to the point of use, including associated pipes,

fittings and tanks;... [my emphasis added]

The hearing

17. At the final hearing on 18th October 2019 the applicant represented himself, but

[NAME] [APPELLANT] was again present throughout, issuing hints and corrections from

behind. As mentioned in paragraph 1 above, despite the order dated 21st June

2019 restricting the focus of the application on the single issue of miscalculation

of water charges, [NAME] Brazil (or those supporting him) insisted on raising other

issues. In response to the respondent serving upon him a recalculation of what

it said he owed, with explanatory notes and copies of [NAME] invoices, he

responded with a 191 page sheaf of documents – which occupied much of the

exhibit to a witness statement by [RESPONDENT] [NAME] (for the respondent) dated 29th

August 2019.

18. [NAME] Brazil filed his own witness statement under cover of a letter dated 27th

August, but at the hearing handed in a letter plus lengthy schedule purporting to

show payments by him from as long ago as July 2004. These were designed to

support his claim that in his role as site manager the respondent had deducted

over £34 000 from his wages in respect of water charges, so even on the

respondent’s new calculations he was still owed by it a very substantial sum.

19. As this schedule referred to a matter that the tribunal had already declined to

hear both it and its supporting letter were put to one side as being irrelevant to

the issue for determination (although that did not prevent the applicant from

repeatedly trying to raise the issue of his £34 000 – this being an amount that the

respondent wholly rejected).

20. [NAME] [RESPONDENT] had nothing to say about the corrected figure for administration to

which the respondent was entitled under the Water Resale Order, and for the

1 A guide to water resale : Information for household customers ([NAME], November 2009)

2 SI 2016/618

reduced figure for sewerage charges – the respondent having applied the correct

percentage to reflect the discount actually allowed for that by [NAME]. He

did though keep referring to this as fraud on the part of Norfolk County Council,

and an admission by it that its assurance to the County Court that the figures

were correct was wrong. He insisted that what he wanted from the tribunal was

a “declaration” that he had been overcharged. He was not interested in the debt

being waived by the respondent – which is why he continued to pursue his

application. He wanted a declaration, which he believed would benefit the other

residents including members of his family. They are not parties to this case.

21. Amongst the documents produced by [NAME] Brazil were adjusted (i.e. reduced) bills

for other residents, which [NAME] [NAME] referred to as confirmation that the errors

identified were being corrected for all concerned, not just for [NAME] Brazil.

22. However, [NAME] Brazil was able to draw the tribunal’s attention to an [NAME] for the year 2018-19 [at [NAME] page 79]. Under the

[ADDRESS] tariff for non-household measured water charges the fixed

charge is listed as £7.00 and the volumetric charge per m³ as 135.42p. Compare

this with the [NAME] bill to the respondent dated 4th July 2019 (the latest

available, produced by those instructing [NAME] [NAME] at the hearing), which charges

on the basis of a volumetric charge of £1.4159 per m³. Rounded up, this is 7

pence more per cubic metre than the published tariff. He accused Norfolk

County Council of failing to recover moneys overcharged by [NAME] and

due to residents. There was no denying that the respondent had passed on what

it had been charged. The accusation was that it showed no interest in pursuing

[NAME], as it passed on the entire cost to residents and so was not directly

out of pocket.

Discussion and findings

23. Further to the second set of directions issued after the hearing on 21st June 2019

the respondent had rightly concentrated on correcting its miscalculations in the

bills rendered and applied a reduced administration charge. The net result was

a saving for [NAME] Brazil of over £700. To that extent his application had merit, but

he then wasted his opportunity – and spurned an offer to waive the entire debt

– by unnecessarily raising a number of issues which the tribunal suspects owe

rather more to his supporters than to matters thought of by himself.

24. The billing by [NAME] at a volumetric charge some 7 pence per m³ higher

than in its published list of charges is a point worth taking up by the respondent,

but as it is merely passing on to pitch occupiers what it has itself been billed the

best that occupiers can hope for is an eventual rebate when this issue is resolved.

As the point appears to have merit the tribunal trusts that the council will query

this apparent overcharging with the relevant department at [NAME].

25. However, this allegation, and another that the water meters on site record usage

inaccurately, were not raised as part of the applicant’s original case – only in his

witness statement filed and served on 27th August 2019. It is too late now to raise

them, even if legitimate issues for determination.

26. Whether the water supply within the site is private or not, and regulation 2 of the

Private Water Supplies (England) Regulations 2016 confirms that it is not, that

is an issue between the applicant and the respondent in the latter’s capacity as

local authority; it is not a question arising under the Mobile Homes Act or

agreement to which it applies, and its determination is therefore outwith this

tribunal’s jurisdiction.

27. On the sole issue for determination, therefore, the tribunal is satisfied that the

applicant is indebted to the respondent for unpaid water charges for the period

2015 to date in the sum of £1 007.29. Whether the respondent chooses to waive

that debt is a matter for it to decide.

Costs

28. By letter dated 28th August 2019 the respondent wrote to the applicant, advising

him that it had taken the decision to write off his outstanding balance and urging

him to withdraw what was left of his application so that further costs could be

avoided. Should he fail to do so then a costs application would follow, on the

grounds that he was thereby guilty of unreasonable conduct, under rule 13(1)(b).

29. The tribunal is satisfied that in the above circumstances the applicant, against

whom a possession order has been made (but apparently not yet enforced), had

nothing financially to gain by continuing to insist on proceeding to a hearing of

his application for determination of the amount owed by him for unpaid water

charges in the financial years 21015/16 to 2018/19.

30. Pursuant to rule 13(1)(b) the tribunal agrees with [NAME] [NAME] submission that the

continued pursuit of the application to a hearing was unreasonable and resulted

only in an unnecessary increase in the respondent council’s legal costs. [NAME] Brazil

wanted the council to pay his costs instead, without offering any reason why, but

had nothing to say about the hourly rate charged (which is a modest in-house rate

of £90 per hour instead of the hourly rate for solicitors in private practice in this

region which would ordinarily be recoverable)3. While the tribunal initially

queried the fee for attendance of [NAME] [COUNSEL] instructing solicitor – which would

not ordinarily be recoverable in a Fast Track case in the County Court – it is

prepared to accept that he has an in-depth knowledge of the (so far) three cases

involving [NAME] Brazil and this site and, were any offers to be made or considered,

had authority to bind the council. In the circumstances the tribunal is prepared

to allow the respondent’s costs in the amount sought.

Dated 28th October 2019

[NAME]

First-tier Tribunal Judge

3 [COMPANY] v Twinn [2015] UKUT 0122 (LC), following Re Eastwood (deceased)

[1975] Ch 112 (CA)