First-tier Tribunal rules on Mobile Homes Act 1983

OUTCOME: Allowed

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FIRST - TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

Case Reference MAN/00EQ/ PHC/2022/0013 [ADDRESS] [POSTCODE] Applicant [NAME] [COUNSEL] - Respondent [RESPONDENT] Ms [COUNSEL], [NAME]. Type of Application Determination of any question arising under the Mobile Homes Act 1983 or any agreement to which it applies

Tribunal Members Judge Rachel Watkin Surveyor Member – [NAME] and Venue of Hearing

22 June 2023 – County Court at Chester Date of Decision 19 October 2023

DECISION

CROWN COPYRIGHT 2023

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DECISION

The Tribunal has determined the questions arising under the Mobile Homes Act 1983 or the agreement to which it applies below. THE PARTIES 1. The Applicant, [NAME] [APPELLANT] (the “Applicant”), is the owner of a mobile home situated at 56 [ADDRESS] [POSTCODE]. 2. The Respondent, [RESPONDENT] (the “Respondent”) is the proprietor or site owner of [ADDRESS] Nantwich Cheshire CW560D (the “Park”).

THE LAW

The Mobile Homes Act 1983 (as amended)

3. The Mobile Homes Act 1983 (as amended) (“the 1983 Act”) “applies to any agreement under which a person (“[NAME]”) is entitled - a. to station a mobile home on land forming part of a protected site; and b. to occupy the mobile home as his only or main residence.” 4. Section 2(1) of the 1983 Act provides for the implied terms set out in Schedule 1 of the 1983 Act to be incorporated into any agreement to which the 1983 Act applies, notwithstanding any express terms of the agreement. The implied terms set out in Chapter 2 (the “Implied Terms”) apply to “all agreements which relate to a pitch except an agreement which relates to a pitch… on a local authority gypsy and traveller sites or a County Council gypsy and traveller site.” 5. Section 2(2) provides that the Tribunal, may, on the application of either party, within 6 months of the date of the agreement (or the date upon which the written agreement was given, if later), order that certain further terms shall be implied into the agreement (subject to exceptions).

6. Section 4(1) provides that: “In relation to a protected site … a Tribunal has jurisdiction –

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(a) to determine any question arising under this Act or any agreement to which it applies; …”

Relevant Implied Terms 7. The following are the Implied Terms that are relevant to the present matter and are set out in Chapter 2 of Schedule 1.

8. Paragraph 12 of chapter 2 states: “The owner may enter the pitch without prior notice between the hours of 9 a.m. And 6 p.m. a) to deliver written communications, including post any notices, to [NAME]; and b) to read any meter for gas, electricity, water, sewage or other services supplied by the owner.” 9. Paragraph 13 states: “The owner may enter the pitch to carry out essential repair or emergency works on giving as much notice to [NAME] (whether in writing or otherwise) as is reasonably practicable in the circumstances and period.” 10. Paragraph 14 states: “[NAME] has agreed otherwise, the owner may enter the pitch for a reason other than one specified in paragraph 12 or 13 only if he is given [NAME] at least 14 clear days written notice of the date, time and reason for his visit.” 11. Paragraph 21 states: “[NAME] shall— (a) pay the pitch fee to the owner; (b) pay to the owner all sums due under the agreement in respect of gas, electricity, water, sewerage or other services supplied by the owner; … 12. Paragraph 22 states: “The owner shall—

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(a) … (b) if requested by [NAME], provide (free of charge) documentary evidence in support and explanation of— (i) any new pitch fee; (ii) any charges for gas, electricity, water, sewerage or other services payable by [NAME] to the owner under the agreement; and (iii) any other charges, costs or expenses payable by [NAME] to the owner under the agreement; (c) be responsible for repairing the base on which the mobile home is stationed and for maintaining any gas, electricity, water, sewerage or other services supplied by the owner to the pitch or to the mobile home; (d) maintain in a clean and tidy condition those parts of the protected site, including access ways, site boundary fences and trees, which are not the responsibility of any [NAME] of a mobile home stationed on the protected site; (e) consult [NAME] about improvements to the protected site in general, and in particular about those which the owner wishes to be taken into account when determining the amount of any new pitch fee; and (f) consult a qualifying residents' association, if there is one, about all matters which relate to the operation and management of, or improvements to, the protected site and may affect the [NAME] either directly or indirectly.” 13. Paragraph 24 states: “For the purposes of paragraph 22(e) above, to “consult” [NAME] means— (a) to give [NAME] at least 28 clear days' notice in writing of the proposed improvements which— (i) describes the proposed improvements and how they will benefit [NAME] in the long and short term; (ii) details how the pitch fee may be affected when it is next reviewed; and

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(iii) states when and where [NAME] can make representations about the proposed improvements; and (b) to take into account any representations made by [NAME] about the proposed improvements, in accordance with paragraph (a)(iii), before undertaking them.”

Housing Act 2004 14. Section 231A of the Housing Act 2004 provides: (1) The First-tier Tribunal and Upper Tribunal exercising any jurisdiction conferred by or under [the Caravan Sites and Control of Development Act 1960,] the Mobile Homes Act 1983, the Housing Act 1985 or this Act has, in addition to any specific powers exercisable by them in exercising that jurisdiction, the general power mentioned in subsection (2). (2) The Tribunal’s general power is a power to give such directions as the Tribunal considers necessary or desirable for securing the just, expeditious and economical disposal of the proceedings or any issue in or in connection with them. (3) When exercising jurisdiction under this Act, the directions which may be given by the Tribunal under its general power include (where appropriate)— (a) directions requiring a licence to be granted under Part 2 or 3 of this Act; (b) directions requiring any licence so granted to contain such terms as are specified in the directions; (c) directions requiring any order made under Part 4 of this Act to contain such terms as are so specified; (d) directions that any building or part of a building so specified is to be treated as if an HMO declaration had been served in respect of it on such date as is so specified (and such a direction is to be an excluded decision for the purposes of section 11(1) and 13(1) of the Tribunals, Courts and Enforcement Act 2007);

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(e) directions requiring the payment of money by one party to the proceedings to another by way of compensation, damages or otherwise. (3A) When exercising jurisdiction under the Caravan Sites and Control of Development Act 1960, the directions which may be given by a Tribunal under its general power include (where appropriate) directions requiring the payment of money by one party to the proceedings to another by way of compensation, damages or otherwise. (4) When exercising jurisdiction under the Mobile Homes Act 1983, the directions which may be given by the Tribunal under its general power include (where appropriate)— (a) directions requiring the payment of money by one party to the proceedings to another by way of compensation, damages or otherwise; (b) directions requiring the arrears of pitch fees or the recovery of overpayments of pitch fees to be paid in such manner and by such date as may be specified in the directions; (c) directions requiring cleaning, repairs, restoration, re- positioning or other works to be carried out in connection with a mobile home, pitch or protected site in such manner as may be specified in the directions; (d) directions requiring the establishment, provision or maintenance of any service or amenity in connection with a mobile home, pitch or protected site in such manner as may be specified in the directions. Relevant Case Law 15. In Elleray v Bourne [2018] UKUT 0003(LC), the Upper Tribunal stated: “Despite the apparent breadth of section 4, a power to determine questions or entertain proceedings is not the same as a power to grant specific remedies. The FTT has no inherent jurisdiction and may only make such orders or grant such remedies as Parliament has given it specific powers to make or grant. Although it is rather strangely

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described as part of a “general power” to “give directions”, in section 231A(4)(a) of the Housing Act 2004 Parliament has given the FTT a specific power to require the payment of money by one party to the proceedings to another. Such “directions” may be given where the FTT considers it necessary or desirable for securing “the just, expeditious and economical disposal of the proceedings.” The use of the word “directions” in this context might give the impression that section 231A (2) is concerned only with procedural matters. It is clear from section 231A (4), however, that the power to give directions is a power to make substantive orders, including for the payment of money, the carrying out of works, and the provision of services.” 16. In [COMPANY] v Santer (2018) UKUT 0030 (LC), the Upper Tribunal stated: “The language of section 4 of the 1983 Act is very broad, and the powers conferred by section 231A of the 2004 Act are extensive and expressed in general terms. It should therefore be taken that (with the exception of disputes over termination) the proper forum for the resolution of contractual disputes between park home owners and the owners of protected sites in England is the FTT.” 17. Therefore, it would appear that the intention is for most mobile homes disputes to be dealt within the Tribunal rather than the Courts because of the Tribunal’s greater expertise, accessibility and lower cost. The enhanced powers conferred by section 231A Housing Act 2004 also reduce the risk that proceedings to resolve disputes may be required to be commenced in more than one forum.

18. In relation to the question of payment of any compensation or damages under Section 231(A) of the Housing Act 2004, consideration must be given to any judicial guidance provided. In the case of [NAME] v [COMPANY] ([NAME]) [2010] EWCA Civ 389, Lord Justice Ward stated: “It is trite law that the measure of damages is such compensation as will place the claimants, so far as money can do so, in the same position as they would have been in had the contract been properly performed. The task is to compare and contrast what was promised and what was received, acknowledging that money cannot truly compensate for this deficit. As Lord [NAME] of Borth-y-Gest observed in Parry v Cleaver [1970] A.C. 1, 22, "But a money award is all that is

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possible. It is the best that can be done." Doing the best one can is hardly the most enlightening guidance for those who have to perform the task, but I am not sure I can improve upon it.”

BACKGROUND 19. The Applicant is entitling to station a mobile home on [NAME] by virtue of an agreement between his predecessor, [NAME] [NAME], and [RESPONDENT] (the predecessor of the Respondent) dated 17 February 1989 (“the Written Statement”). The annex to part two of the Written Statement sets out implied terms. 20. [NAME] is a residential mobile home site for residents aged over 55 years. It is understood that there is only one director , Mrs [NAME]. There is also an employee site manager called [NAME] [NAME] who takes his instructions from a man called [NAME] [NAME] [NAME]. Each of the homes on [NAME] has outside sub-meters for gas and LPG gas.

21. On 1 July 2022, the [NAME] all received letters from [NAME] stating that the Respondent had contracted with them for the installation of pre-payment smart sub-meters for both the LPG gas and electricity on each of [NAME]’s pitches. As a result of events that have taken place in relation to the installation of the new system, a number of the site [NAME] have been left dissatisfied with the management. Eight of the [NAME] have submitted applications to the Tribunal. As each of the applications is different, separate judgments have been prepared for each.

THE APPLICATION 22. By application filed at the Tribunal, the Applicant has requested that the Tribunal determines a number of questions raising under the Mobile Homes Act 1983 or the agreement to which it applies. This Application was issued at the same time as 7 others similar applications.

INSPECTION AND HEARING 23. The Tribunal carried out an inspection during the morning of 22 June 2023 when it visited the Applicant’s pitch, as well as the pitches belonging to other applicants with similar claims. The Tribunal viewed the location of the electricity and gas meters.

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24. Immediately following the inspection, a hearing took place before the Tribunal at the County Court in Chester. At this hearing, the Applicant represented himself, with a nominated spokesperson, as did the other 7 applicants bringing similar applications. Ms [COUNSEL], solicitor, represented the Respondent and [NAME] [COUNSEL], director, of [NAME] (“[NAME]”) was present as a witness on behalf of the Respondent.

THE QUESTIONS Question 1. Did the Respondent breach implied term 22(e) of Schedule 1 to the Act 25. Implied term 22(e) stipulates: “22. The owner shall –

… e) consult [NAME] about improvements to the protected site in general, and in particular about those which the owner wishes to be taken into account when determining the amount of any new pitch fee.” 26. The Applicant contends that the Respondent breached implied term 22(e) by not consulting him about the works to be carried out to the sub-meters. Whilst he accepts that he was contacted by [NAME] about the works in a letter dated 1 July 2022 from [NAME], he was not contacted by the Respondent. This was despite him having sent a letter to the Respondent himself on 8 July 2022 indicating that he did not wish to have a submeter installed and to query the costs.

27. It is the Applicant's view that this is a breach of the terms of his written statement and the implied terms. 28. [NAME] appears to have written to the Applicant as agent for the Respondent, the correspondence lacked detail and did not amount to any consultation. At the hearing, Ms [RESPONDENT], on behalf of the Respondent, accepted that there had been a breach of the implied term at paragraph 22.

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29. The Tribunal determines that the Respondent’s failure to properly consult would amount to a breach.

Question 2. Did the Respondent breach implied term 14? 30. The Applicant states that the letter that he received from [NAME] on 1 July 2022 did not provide a date or time for when the installation would take place. He adds that [NAME] commenced work in his area of [NAME] on 22 August 2022 but that he had not been informed of the date in advance and only found out when he came home late that afternoon to discover that somebody had been in his shed.

31. Paragraph 14 of Schedule 1 of the Act and of the Annex to the Written Statement provides: “14. [NAME] has agreed otherwise, the owner may enter the pitch for a reason other than one specified in paragraph 12 or 13 only if he has given [NAME] at least 14 clear days written notice of the date, time and reason for the visit.” 32. Paragraph 12 relates to entry for the purposes of delivering communications or reading meters and paragraph 13 relates to essential repair or emergency work.

33. Neither party contends that the entry of the pitch for the purposes of installing sub-meters falls within an exception within paragraphs 12 or 13 and the Respondent, through Ms [RESPONDENT], accepts the breach.

34. The Tribunal determines that a breach occurred.

Question 3. Did the Respondent breach implied term 11 during planning, installation and ongoing management of the new sub-meters? 35. Paragraph 11 of Schedule 1 of the Act provides: “[NAME] shall be entitled to quiet enjoyment of the mobile home together with the pitch during the continuance of the agreement, subject to paragraphs 10, 12, 13 and 14”

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36. Paragraph 10 relates to the re-siting of a mobile home, paragraph 12 relates to entry for the purposes of delivering communications or reading meters, paragraph 13 relates to essential repair or emergency work and paragraph 14 relates to the Respondent’s obligation to give notice prior to entering onto a pitch (see above). Neither party contends that paragraphs 10, 12, 13 or 14 apply. 37. [NAME]: Landlord and Tenant refers as follows: “The covenant in law for quiet enjoyment entitles the tenant to enjoy his lease against the lawful entry, eviction or interruption of any man... ”1 38. The Applicant contends that his “right to quiet enjoyment of his home and pitch has been severely disrupted since July 2022 and continues to be disrupted”. He complains that his pitch was entered on different occasions since July 2022 without notification and sometimes in his absence. He states that his gas and electricity supplies were disconnected for one full day and intermittently for the second day.

39. The applicant also states that he has stopped receiving invoices before electricity and gas it sends the work on the sub-meters and is now required to go onto [NAME]’ web portal in circumstances where he does not want to have any business relationship with [NAME].

40. He states that he is 78 years of age (at the time of the Application) and not confident or competent. He finds the information displayed on the portal to be difficult to follow and finds the sub-meters difficult to read because they only display a single reading rather than peak/ off peak.

41. TheApplicant complains that the Respondent has refused to accept his payments for gas and electricity, forcing him into arrears for the first time in his life. It does not understand why he should be required to have an online account with a company he has no business contract with. He does not think it's reasonable and doesn't believe he should be forced to do so. He also refers to the fact that he has been advised that if he doesn't activate his account, it will revert to manual readings with which there will be an additional charge.

42. The Applicant complains that the events that he describes have interfered with his peace and comfort for almost 6 months.

1 [NAME]: Landlord and Tenant at 11.267

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43. In light of the previous acceptance by the Respondent of the breaches of paragraphs 11, 14 and 22(e) above, the Tribunal determines that the Respondent’s conduct in carrying out works to the Applicants pitch amounts to a breach of the Applicant’s quiet enjoyment of his pitch. It is acknowledged that Ms [RESPONDENT] did not dispute this on behalf of the Respondent.

44. The Tribunal does not consider that the Respondent’s instruction of [NAME], the use of an online portal or the issuing of invoices for the manual reading of the meters to amount to breaches of the Applicants right to quiet enjoyment. However, those matters may constitute other breaches and, in that regard, they are considered further below.

Question 4. Can the Applicant continue to pay the Respondent for gas and electric bills? 45. Paragraph 21(b) of the First Schedule to the Act states: “[NAME] shall: a) … b) pay to the owner all sums due under the agreement in respect of gas, electricity, water, sewerage or other services supplied by the owner” 46. The Applicant sets out in his statement that, from October 2022, he has tried to pay the Respondent, via the site manager, for his gas and electricity, but the site manager has refused to accept the payments due to the payments being by cheque payable to the Respondent. He states that this has forced him into arrears.

47. The Applicant states that his Written Statement, his Electricity Supply Agreement and his Calor Gas Supply Agreement as well as implied term 21(b) of the First Schedule of the Act all indicate that the Respondent is the supplier of gas and electricity.

48. Ms [RESPONDENT] on behalf of the Respondent confirmed that [NAME] had been appointed to both maintain and monitor to the meters and to act as the Respondent’s agent for the purposes of collecting the sums charged in respect of gas and electricity usage.

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49. The Tribunal concludes: a. the implied term at paragraph 21(b) of Schedule 1 of the Act relates to the [NAME]’ obligations to pay charges and does not place any duty upon the Respondent. Paragraph 21(b) does not stipulate how the payments are to be made to the Respondent and does not preclude the use by the Respondent of an agent for the collection of the charges. b. there is not term within the Written Statement or implied term that would prevent a Respondent from using an agent to collect any charges on its behalf. c. whilst the letter from [NAME] dated 1 July 2022 states only that it has been appointed to “install new meters and manage the metering and billing”, it is accepted that, on the facts of this matter, [NAME] has also been appointed to collect the sums payable. d. the payment of the charges to the agent of the Respondent, if so, requested by the Respondent, amounts to payment to the Respondent. However, it is noted that the Respondent did not clearly advise the Applicants of the fact that an agent had been appointed and that the charges for gas and electricity were to be paid to the agent until some time after the charges had become payable.

50. The balance, the Tribunal find that the Applicant must pay the Respondent the charges in the manner requested by the Respondent. As this is to [NAME], the Applicant should pay the charges to [NAME]. However, the Tribunal also finds that the request for payment to be made to [NAME] should have been clearly communicated to the Applicant by the Respondent and prior to the date the payments fell due.

51. However, if the Applicant is unable to make payments online due to an inability to do so which arises from his age, as age is a protected characteristic under the Equality Act 2010, the Tribunal considers it reasonable for the Applicant to be permitted to make payment by leaving a cheque payable to [NAME] at the site office.

Question 5. Is the 41 pence per utility per day “administration charge”/ “daily service charge” lawful?

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52. The Applicant states that the letter from [NAME] referred to an administration charge of 41p per day per utility that would be added to the gas and electricity invoices. A number of these invoices were provided to the Tribunal at the hearing.

53. The Applicant states that this charge is new charge linked to the use by the Respondent of [NAME]’ services.

54. The Applicant suggests that this charge is unlawful and refers to [COMPANY] (UTLC Case Number: lrx/14/2013) (“[NAME]”) in which he states that the Upper Tribunal ruled that a monthly administration fee charged in addition to the cost of electricity was unlawful. In that case, the administration charge was intended to cover time and costs incurred by [NAME] owner in administering the residents’ accounts. The Upper Tribunal read the express terms of the written statements and found that, unless there was an express term allowing such a separate administration charge, these costs were deemed to be included within the pitch fee and could not be included as an additional charge.

55. Ms [RESPONDENT] on behalf of the Respondent avers that the charges are lawful as they are not charges for the administration work of the Respondent but are the charges of an agent appointed by the Respondent. She refers to the case of [NAME] and partners v [NAME] (2015) UKUT 0587 (“[NAME]”) which was a decision of the Upper Tribunal, subsequently upheld by the Court of Appeal. Within this decision the wording of the written statement was construed.

56. Paragraph 3 of that written statement reads as follows: “(a) to pay to the owner an annual pitch fee of [blank] subject to review… (b) to pay and discharge all general and/ or water rates which may from time to time be assessed charged or payable in respect of the mobile home or the pitch (and/ or a proportionate part thereof where the same are assessed in respect of the residential part of [NAME]) and charges and respect of electricity gas water telephone and other services” 57. The Upper Tribunal held that the starting point for considering the submissions was the express terms of the written statement as

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supplemented by the statutory implied terms. It was noted that neither of the sources of obligation include anything which looked like a service charge as might appear within a long lease, acknowledging that if there had been an intention to impose an obligation on [NAME] to pay a separate service charge for services provided by [NAME] owner then it could have been included. Furthermore, if a form of service charge had been intended, one would expect it to have been made clear. The Upper Tribunal held that there was nothing of that sort in the common form of written statement or in the statutory implied terms.

58. The Deputy President went on to confirm adherence to the express term in [NAME] which was that paragraph 3(b) of (Part IV) of the written statement did not impose a general service charge on the [NAME] but is concerned solely with the reimbursement of specific outgoings incurred by the site owner in meeting liabilities to [NAME]. However, he notes that paragraph 3(b) begins with the charges for general and water rates and continues to state, “and charges in respect of electricity gas water telephone and other services”. He found that the reference to “other services” must amount to services which are analogous to the other types of service already listed and added that the common characteristic of the list of services is that each service is generally supplied by a third party and quantified by a third party.

59. The Upper Tribunal further stipulated that the language of paragraphs 21 and 22 of the Implied Terms did not further the matter but, in fact, supports the view taken as it “reflects the understanding of the draftsman that the parties are free to provide expressly for separate charges to be payable in addition to the pitch fee” 60. Therefore, in determining this matter, the Tribunal must turn to the Written Statement which includes the following provisions: “3. [NAME] undertakes with the freehold owner as follows: - (a) to pay to the owner an annual pitch fee of... (b) to pay and discharge all general and/ or water rates which may from time to time be assessed charged or payable in respect of the mobile home or the pitch (and/ or a proportionate part thereof where the same are assessed in respect of the residential part of [NAME]) and charges in respect of electricity gas water telephone and other charges”

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61. Thus, the wording of the Written Statement is in similar terms to the written statement in [NAME]. For that reason, the Tribunal finds that the Respondent is entitled to recover fees incurred by [NAME] on its behalf in relation to (or in respect of) “electricity gas water telephone and other services” and, therefore, as the present charges are those incurred by [NAME] for services in respect of the utilities, the Tribunal finds that they are chargeable.

Question 6. Is the Respondent obliged to provide a transparent itemised invoice/ bill for gas and electricity? 62. The Applicant has been advised that he will no longer receive an invoice each month but that this information will be available online and that he will be charged if he requests paper copies of his invoices.

63. The Applicant states that he is not competent or confident online and refers to [NAME] again as authority to suggest that the Respondent cannot charge for administrative time in providing hardcopy paper invoices. However, as it is understood that the provision of hardcopy paper invoices would be carried out by [NAME], it is the costs of the third-party agents that would be relevant and, in accordance with [NAME], would be allowed as costs that are “in respect of electricity gas water telephone and other charges” (term 3(b) of the Written Statement).

64. The Applicant also states that the invoices he currently receives via the site manager do not provide a breakdown for gas and electricity charges are not clear to him.

65. In accordance with paragraph 22 of the Act: “The owner shall – a) .. b) if requested by [NAME], provide (free of charge) documentary evidence in support and explanation of- i. any new pitch fee;

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ii. any charges for gas, electricity, water, sewerage or other services payable by [NAME] to the owner under the agreement; and iii. any other charges, costs or expenses payable by [NAME] to the owner under the agreement;” 66. It is, therefore, correct that the Respondent is obliged to provide a transparent itemised invoice/bill for gas and electricity charges when requested to do so by the Applicant. However, there is no prohibition against the Respondent using an agent for this purpose neither does the implied term stipulate that the information cannot be provided electronically. In current times, it is not unreasonable for information to be provided electronically and is not unreasonable for the Respondent to recharge the costs incurred by [NAME] for providing the paper copies on to the [NAME].

67. However, if it is the case that the Applicant is unable to access the internet by reason of his age, as age is a protected characteristic under the Equality Act 2010, it is reasonable for him to be provided with hard copies of the statement at no charge and in accordance with his previous dealings with the Respondent.

68. Thus, the Respondent is obliged to provide documentary evidence in support and explanation of the charges levied. If insufficient information has been provided, it must now be made available.

Question 7 Is the Respondent: [redacted] obliged to provide the Applicant with evidence that the sub- meters are of an approved type under national/EU legislation; b) obliged to provide the Applicant with evidence that the new sub- meters are working within legal accuracy boundaries; and c) obliged any to agree any dispensation of the requirements for legal certification with the Applicant in writing?

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69. The Applicant states that the Government's [NAME] stipulates: “any gas or electricity meter used for the purpose of billing, whether by a licensed energy supplier or a landlord, must be of an approved design” (https://www.gov.uk/guidance/gas-and-electricity-meter- regulations); and “The meter owner is obliged to use an approved meter and keep the metrology of the meter accurate” (HTTPS://www.gov.uk/guidance/electricity-meter-certification)

70. The Applicant further contends that the letter from [NAME] dated 1 July 2022 suggests that the sub-meters and technology will comply with the EU Measuring Instruments Directive. The Applicant states that he has not received any evidence of this and requests that the Respondent is ordered to provide him with such evidence.

71. The Applicants state that the sub-meters on their pitch display only a single reading and do not show different readings for peak and off-peak usage despite the letter from [NAME]' indicating to the contrary. He contends that [NAME] are not fitting sub-meters that are able to differentiate between peak and off-peak rates but only single rate display sub-meters.

72. Whilst the Applicant also indicates that the [NAME] makes clear that the sub-meters do not need to be certified, he states that the guidance indicates that “a written agreement must be in place between the two parties to dispense with the requirement for certification”. HTTPS://www.gov.uk/guidance/electricity-meter- certification). He adds that no such written agreement exists between him and the Respondent and that the Respondent should be ordered to commenced discussions with him with a view to reaching such agreement if the certification cannot be provided.

73. The question for the Tribunal is simply whether the Respondent has an obligation to provide the Applicant with evidence that the sub-meters are of an approved type, are working within legal accuracy boundaries or, alternatively, whether the Respondent must reach an agreement with the Applicant for dispensation of the requirement.

74. The Tribunal considers that, unless the meters bear the appropriate stamp confirming that they are of an approved design, the Respondent must

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provide the Applicant with documentary evidence confirming that the meter is approved.

Question 8 Is the Respondent obliged to compensate the Applicant for the breach of rights and the time, disruption, fear, and distress caused by the manner in which the planning and installation of the new sub metering arrangements and complaints about this were handled, the Respondents repeated failures to respond to requests, and to reimburse the Applicant for the fees for bringing this action? 75. The Applicant complains that the installation of the new meters and management of the ongoing payments for gas and electricity have caused him significant upset, distress and disruption. He states that he has spent considerable time attempting to resolve these issues with the Respondent.

76. Furthermore, the Applicant indicates that he respects the Respondents rights to appoint an agent for the installation and management of the sub- meters together with the billing but that the process should have been handled differently and the rights of the [NAME] respected.

77. However, the Applicant contends that he should still receive invoices from the Respondent and that he should be able to make payments to the Respondent in accordance with his Written Statement and the implied terms.

78. The Applicant states the way the installation the new sub-metering arrangements and ongoing payments have been managed has caused significant stress and disruption and he's tried to resolve the issues amicably with the Respondent but has been ignored. He accepts the Respondents right to use a third party but does not think it should impact him as disruptively as it has. He wants his rights to be respected. He wants to understand what he is being charged and have evidence of that and for his correspondence to be dealt with transparency. This has caused him significant upset and loss of faith in the Respondents and staff. He requests compensation to make up for this and to rebuild trust. Whilst he does not specify a sum which he believes he should be awarded by way of compensation; he requests that the Respondent refunds him the fees associated with bringing in this action as he has tried on multiple occasions previously to resolve these issues. He considers it unfortunate

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that his efforts have been ignored leaving him with no option but to apply to the Tribunal for resolution. He does not provide details of any sum claimed.

79. Pursuant to Section 231A of the Housing Act 2004, the Tribunal is able to make an order for the payment of compensation by one party to another by way of compensation, damages or otherwise.

80. The Tribunal agrees that the conduct of the Respondent has been less than satisfactory and has led to the Applicant becoming less than satisfied and unhappy with the manner in which he has been treated. However, the Tribunal is not aware of any actual financial loss having been suffered for which damages are claimable and the Applicant does not otherwise quantify any claim for damages/compensation.

81. The Applicant’s claim for costs incurred in relation to the proceedings should correctly be treated as a claim to costs pursuant to the Tribunal Procedure (First-Tier Tribunal) ([NAME]) Rules 2013 – see below.

ORDERS 82. The Applicant requests that specific orders be made.

For the reasons set out above, the Tribunal responds as follows: Order Request 1 That the Respondent must accept payment for gas and electricity bills made out to the Respondent. Where the Respondent has contracted with an agent for that agent to collect payments for gas and electricity bills, it is appropriate for the Applicant to make those payments as requested by the Respondent. However, if the Applicant is unable to make payment online due to reasons relating to his age, it is appropriate for the Respondent’s agent to accept payment by cheque. Order Request 2 That the Respondent must provide the Applicant with monthly invoices in arrears for gas and electricity that provide: i. the tariff rates being applied for gas and electric at peak and off-peak times

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ii. units of gas and electric used per month at peak and off-peak times and the total cost of each of these for the invoice.; and iii. itemised costs for all additional gas and electric charges being levied (including but not limited to an explanation for the 82 pence per day “utility charge” or “daily service charge” currently being charged

In light of the Applicants difficulties in accessing [NAME]' online system, it is appropriate that the Respondent or its agent provides the Applicant with invoices in arrears for gas and electricity charges which include the information sought. Order Request 3 The Respondent must withdraw the 41p per utility per day “administration charge”, the proposed charge for ‘manual reading’ and threats of Court action. As set out above, the Respondent is permitted to recharge the fees charged by its agent in relation to the provision of services. If the charge in respect of manual readings online applies due to the Applicant being unable to access the online systems by reason of his age, those charges are not appropriate and should be withdrawn if charged.

Order Request 4 and 5 Provide evidence that the sub-meters installed are of an approved meter type under national and or EU legislation and are working within legal accuracy boundaries. Alternatively, to commence negotiations regarding an agreed dispensation of the requirement for legal certification of the new sub-meters Whilst the Applicant requests only that the Respondents commence negotiations in relation to agreeing a dispensation, the obligation is for the provision of a legal certification. In the event that the Respondent is able to provide the Applicant with evidence that the sub-meters installed are of an approved meter type pursuant to national and/or EU

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legislation and are working within legal accuracy boundaries there is no obligation for the Respondent to reach an agreement, in writing, for the dispensation of the legal certification, Unless the sub-meters bear the appropriate stamp confirming that they are of an appropriate design, appropriate order is that the Respondent must provide the requisite legal certification evidence that the sub meters installed are of an approved meter type and, only if they are unable to do so, to commence negotiations with the Applicant.

Order Request 6 Pay the Applicant any fees and/ or compensation The Applicant does not presently quantify his claim for compensation for the distress he states that he has suffered. He quantifies this only as a refund of the fees that he has incurred as a result of these proceedings, but he does not state how much those fees and such a claim should properly be considered as a claim for costs. On balance, whilst the Tribunal does accept that some inconvenience has been suffered by the Applicant, the Tribunal is not able to further quantify the appropriate sum due to the lack of detail in respect of the sum claimed. For the avoidance of doubt, the Tribunal does not consider that any significant compensation is likely to be allowed in the circumstances in any event.

Order Request 7 The Respondents are to inform [NAME] not to contact the Applicant The Respondent is permitted to appoint an agent for the purposes of dealing with the recovery of electricity and gas charges from the [NAME] of [NAME]. For the agent to act on behalf of the Respondent it is reasonable and appropriate for the agent to contact the Applicant.

Data Protection Concern 83. Finally, the Applicant raises a concern that the Respondent has inappropriately provided his personal details to its agent. The Applicant

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does not accept that this is reasonable or necessary as, he states that the agent is able to read meters and issue gas and electricity invoices without them being aware of his personal details.

84. The Tribunal accepts that the Respondent is a data controller under GDPR and that individuals must actively consent to a business processing and passing on their personal detail data unless that business has a lawful reason for processing their data.

85. Article 6(1)(f) of the United Kingdom General Data Protection Regulation (UK GDPR) states: “Processing shall be lawful only if and to the extent that at least one of the following applies: … (e) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is child.” 86. As [NAME] has been appointed as the Respondent’s agent, not just in relation to preparing invoices but for issuing invoices to the Applicant and the collection of payments from him, the Tribunal considers that it is necessary for the Applicant’s name and address to be provided to the agent for that purpose.

87. The Tribunal does not accept that there has been any breach of UK GDPR as a result of the Respondent having been provided with the Applicant’s name and address.

88. Whilst some issues were raised at the hearing in relation to date breaches by [NAME], these are not part of the Applicant and, therefore, have not been considered further.

COSTS 89. Whilst the Applicant does suggest that he should be repaid his costs due to the inconvenience that he has suffered, he does not claim costs in the ordinary way and does not provide any evidence to show that any costs have been incurred by him.

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90. No claim for costs has been made by the Respondent.

91. In the circumstances, it is not considered that either party has made any valid claim for costs.

92. In any event, it is not considered that either party has acted “unreasonably in bringing, defending or conducting proceedings” which is the appropriate test set for any claim for costs under rule 13(1)(b)(ii) of the Tribunal Procedure (First-Tier Tribunal) ([NAME]) Rules 2013.

----------------------------- APPEAL If either party is dissatisfied with this decision an application may be made to this Tribunal for permission to appeal to the Upper Tribunal, [NAME] (Residential Property) on a point of law only. Any such application must be received within 28 days after these reasons have been sent to the parties under Rule 52 of the Tribunal Procedure (First-tier Tribunal) ([NAME]) Rules 2013. Judge R Watkin Tribunal Member [NAME]