Tribunal rules in favour of occupier on water charges and site owner obligations

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/12UG/PHC/2019/0004 Property : 19 [ADDRESS] [POSTCODE] Applicant : [redacted] Respondent : [redacted] : [COMPANY_3] [ref STP/RED/MAN069-0003] 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 : Judge G K Sinclair Date of determination : 9th September 2019

DECISION following a paper determination

• Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . para 1 • Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 2–6 • Material provisions in written statement. . . . . . . . . . . . . . . . . . . . . . . . paras 7–8 • Applicable law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 9–14 • Discussion and findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 15–22 1. Neither party having asked for an oral hearing, and the tribunal considering the application upon a consideration of the parties’ written representations, for the reasons set out below the tribunal determines that : a. Insofar as it concerns the production of documents that concern [NAME_4] charges relating to any period before the applicant took an assignment of

the mobile home and benefit of the agreement under the Act (i.e. before 2015) the application be dismissed b. The respondent site owner has overcharged for [NAME_4] by adding a fee for administration or billing that exceeds that permissible under paragraph 8 of the [NAME_4] Order 2006 in every subsequent year, namely : Year Sum charged Maximum Excess 2015–2016 [L] £41.08 £5.49 £35.59 2016–2017 £40.40 £5.48 £34.92 2017–2018 £46.14 £5.48 £40.66 2018–2019 £10.00 £5.48 £4.52 [L] = leap year Total repayable : £115.69 c. The respondent site owner has failed to provide accurate information to show how the [NAME_4] charges have been calculated; his written submissions comprising merely tables that neither correspond with the [NAME_4] bills that have been disclosed nor, in the year 2017–2018, his actual invoice sent to the applicant for the period May 2017–April 2018 d. As to the validity of the respondent’s pitch fee review form dated 20th March 2019 : i. While the reference to the previous review date of June 2018 is incorrect the calculated 2.5% RPI uplift (February 2018–February 2019), at (B) in section 4 of the form, is accurate ii. That does not explain the reduction in pitch fee from £124.95 per month to £124.71 per month iii. The respondent has failed to show how he calculated the figure for the current pitch fee, at (A); a matter of some importance bearing in mind the error in calculating previous pitch fees that the tribunal drew to the parties’ attention at paragraph 31 of its decision dated 5th November 2019. In view of the findings at b. above this figure may require recalculation iv. The recoverable costs, at (C), are inaccurate and not adequately explained v. By reason of the above the pitch fee review form is therefore invalid and, subject to compliance with the 10% reduction imposed by the tribunal in its decision dated 5th November 2019, the current pitch fee shall remain in force pending the application by either party for determination of the pitch fee for 2019–2020. Background 2. This is the third application brought by Mr [NAME_1], who purchased a mobile home and took an assignment of a pitch at the above protected site in about May 2015. In late 2017 he sought answers to various questions which he said arose under his pitch agreement, and these were dealt with in a decision dated 2nd January 2018.1 Later in 2018 he challenged the site owner’s desire to increase the annual pitch fee in line with inflation (as determined by reference to the Retail 1 CAM/12UG/PHC/0010

Prices Index). That application, determined on 5th November 2018,2 succeeded and he obtained a reduction rather than an increase in his pitch fee due to a loss of amenity enjoyed by this specific pitch by the entrance to the site.

3. In paragraph 31 of that November 2018 decision the tribunal commented that : While not strictly part of the task before the tribunal it notes the figures used in the supplementary statements of account produced at the hearing. Mistakenly, when assessing the percentage increase, [NAME_2]’s staff failed to deduct the standing charge for [NAME_4] as well as its actual cost before applying the percentage uplift. The standing charge should then have been added back after making this adjustment. The proposed 3.6% increase (which will affect the other pitches but not this) is therefore slightly higher than it should be – and this appears to have been compounded over several such pitch fee increases. That is a matter that [NAME_2] must sort out between himself and the residents, but it ought to be a simple arithmetical exercise 4. The applicant now seeks to use that comment to justify an application that the respondent site owner produce statements of account going back as far as 19773, in case the error referred to in paragraph 31 of the November 2018 decision is of historic proportions. This is notwithstanding the fact that the applicant took an assignment of the pitch as recently as May 2015 and was aware of and accepted at the time the passing pitch fee.

5. By its directions order dated 7th May 2019 the tribunal, applying the overriding objective, stated that it did not regard the expenditure of time and resources either by itself or the parties in such an exercise to be proportionate and, insofar as the request refers to any period prior to May 2015, the same was refused.

6. The tribunal directed that unless the applicant provided a written explanation why the matters mentioned by him in his application raise valid questions for determination by the tribunal then his application would automatically be struck out under rule 9(1). He did provide an explanation by the required date, and the respondent site owner in turn took the opportunity of sending his own written submissions to the tribunal office and to the applicant. Material provisions in written statement 7. The written statement begins as a rather vague document, with none of the boxes in Part 1 completed, including the names of the parties, other than the start date of 24th April 2009 (box 3), plot number (box 4), and a reference to an additional charge for “Second car additions car £10:00 per month” (box 9).

8. In Part 3 (Implied Terms) paragraphs 16 to 20 make provision for the pitch fee and the method of changing it annually, at the review date (left blank in Part 1). Written notice of the proposed increase must be served on the occupier at least 28 days before the review date, and the occupier shall continue to pay the existing pitch fee until a new one is either agreed or an order determining the amount of the new pitch fee is made by the court. (These provisions have been overtaken by 2 CAM/12UG/PHI/2018/0008 3 Perhaps 1997 was intended

subsequent statutory amendment, for which see below). Applicable law 9. The relevant principles of law governing the subject of annual pitch fee increases appear in paragraphs 16, 17, & 20 of Chapter 2 of Schedule 1 to the Mobile Homes Act 1983 (as amended). The material parts provide as follows :

16. The pitch fee can only be changed in accordance with paragraph 17, either– (a) with the agreement of the occupier, or (b) if the appropriate judicial body, on the application of the owner or the occupier, considers it reasonable for the pitch fee to be changed and makes an order determining the amount of the new pitch fee. 17.(1) The pitch fee shall be reviewed annually as at the review date. (2) At least 28 clear days before the review date the owner shall serve on the occupier a written notice setting out his proposals in respect of the new pitch fee. (2A) In the case of a protected site in England, a notice under subparagraph (2) which proposes an increase in the pitch fee is of no effect unless it is accompanied by a document which complies with paragraph 25A.4 (3) If the occupier agrees to the proposed new pitch fee, it shall be payable as from the review date. (4) If the occupier does not agree to the proposed new pitch fee – (a) the owner may apply to the appropriate judicial body for an order under paragraph 16(b) determining the amount of the new pitch fee; (b) the occupier shall continue to pay the current pitch fee to the owner until such time as the new pitch fee is agreed by the occupier or an order determining the amount of the new pitch fee is made by the appropriate judicial body under paragraph 16(b); and (c) the new pitch fee shall be payable as from the review date but the occupier shall not be treated as being in arrears until the 28th day after the date on which the new pitch fee is agreed or, as the case may be, the 28th day after the date of the appropriate judicial body’s order determining the amount of the new pitch fee. (5–10) [not relevant] 20(A1) In the case of a protected site in England, unless this would be unreasonable having regard to paragraph 18(1), there is a presumption that the pitch fee shall increase or decrease by a percentage which is no more than any percentage increase or decrease in the retail prices index5 calculated by reference only to – (a) the latest index, and (b) the index published for the month which was 12 months before that 4 I.e. a document that complies with the Mobile Homes (Pitch Fees) (Prescribed Form) (England) Regulations 2013 [SI 2013/1505] 5 Although the “Retail Prices Index” or RPI is no longer recognised as an official national statistic due to its exaggerated effect it continues to be published by the ONS as an unofficial statistic and for the time being is still the index relied upon for various statutory purposes, such as rent capping, and it provides a presumed maximum or minimum in the case of pitch fee adjustments

to which the latest index relates. (A2) In sub-paragraph (A1), “the latest index”– (a) in a case where the owner serves a notice under paragraph 17(2), means the last index published before the day on which that notice is served; (b) in a case where the owner serves a notice under paragraph 17(6), means the last index published before the day by which the owner was required to serve a notice under paragraph 17(2).

10. By section 4 of the Act a tribunal has jurisdiction to determine this particular issue and it is therefore the “appropriate judicial body” referred to in the above provisions, and as defined in section 5.

11. Insofar as it is alleged that the respondent is overcharging for [NAME_4] charges, the application for disclosure of information for periods during which the applicant is liable to pay the respondent for such supply complies with the obligation placed upon the site owner by Part 1, Chapter 2, paragraph 22(b) of Schedule 1 to the Act, viz The owner shall ... (b) if requested by the occupier, provide (free of charge) documentary evidence in support and explanation of— (i) any new pitch fee; (ii) any charges for gas, electricity, [NAME_4], sewerage or other [COMPANY_4] payable by the occupier to the owner under the agreement; and (iii) any other charges, costs or expenses payable by the occupier to the owner under the agreement; ...

12. What may be charged for any [NAME_4] supplied by way of resale by the site owner is governed by the [NAME_4] Order 2006, made by the Director [NAME_4] of [NAME_4] [COMPANY_4] pursuant to powers conferred on him by section 150 of the [NAME_4] Act 1991. Paragraph 6 provides different mechanisms for calculating the cost of [NAME_4] 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 [NAME_4] 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. 13. [NAME_5]’s official guidance6 refers to administration charges of “around £5 each year for those without a meter and £10 for those with a meter” the actual 6 A guide to [NAME_4] resale : Information for household customers ([NAME_5], November 2009)

maximum payable for an unmetered supply is at most £5.49 – in a leap year (or £0.015 x 366).

14. Paragraph 9 is headed “Transparent charging” and sets out the information that the reseller 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. Paragraph 10 deals with overcharging, and provides that the excess charge paid shall be recoverable together with simple interest at twice the average Bank of England base rate over the period of overcharging. Discussion and findings 15. Further to the directions order issued on 7th May 2019 the applicant duly filed and served additional submissions, including a copy of the hard-to-find [NAME_4] Order 2006 (amongst the 2009 [NAME_5]), several [NAME_4] bills from [NAME_6], and an invoice from the respondent to him for the period May 2017–April 2018. He also provided a copy of a letter from the respondent to all the park residents dated 21st March 2019 and a very brief email to him dated 3rd April 2019 in which the respondent said : The [NAME_4] invoice is in the post and we do not do statements now, all the information needed is on the form.

16. In response, under cover of a letter from [NAME_3] dated 6th June 2019, the respondent filed submissions comprising merely an observation that the [NAME_4] charges are calculated by reading the site meter annually and applying the [NAME_4] supplier’s rates of charge followed by a series of tables, one for each year. In each table the penultimate row reads “plus service charges”, without any explanation of what is meant by that. As the tables concern [NAME_4] and sewerage charges only this must refer to the respondent’s administration charges. If so, then subject to the maximum permissible under the 2006 Order any excess is irrecoverable because no attempt has been made to justify it. The excess sums shown in the table at paragraph 1 b. above are therefore recoverable. Interest is payable under 17. The respondent claims to have taken meter readings in March but then produced [NAME_4] bills from [NAME_6] which refer to slightly different periods, using different readings or even estimates. His table for the year 2017–2018 does not even accord with the invoice that he sent to the applicant. As a result the figures that he relies upon are not properly supported, and the sum of £4 780.00 for total cost at item (C) in section 4 of the pitch review form is arithmetically wrong and cannot be relied upon. The respondent should use actual readings and sums actually billed as the basis for claiming shares from the occupiers, if necessary by adjusting the annual pitch review date so that it falls after the supplier’s bills have been received.

18. The applicant raises a number of other points concerning the validity of the pitch fee review form. First, section 2 says that the last review date was 1st June 2018. That is wrong. The review date is and has, unless or until changed, been in April of each year, with the rather irregular notice of increase issued in March by reference to the last published RPI index, namely that for February. The fact that a review may be late – or challenged – does not alter the review date.

19. This seems to be accepted by the respondent, as the current prescribed form is dated 20th March 2019, uses the correct RPI figures, and the uplift has correctly been calculated as 2.5%. However, as the proposed new pitch fee is calculated by adding the current pitch fee at (A) to the RPI percentage uplift at (B), and then adding recoverable costs at (C) and finally making any relevant deductions at (D) (there being none shown) one would need to see the whole workings out, as with the supplementary statements of account produced at the hearing that led to the tribunal’s last decision in November 2018. Those showed that the respondent had failed to deduct his administration charges (which were excessive) as well as the [NAME_4] charges before applying the RPI uplift to the net figure. The actual [NAME_4] charge plus permitted administration or billing fee are then added back to produce the new pitch fee.

20. To suggest, as the respondent did in his email to the applicant on 3rd April 2019 (see paragraph 15 above) that the prescribed form contains all the information necessary is quite wrong. The pitch occupier is entitled to see that the calculation has been done properly.

21. The tribunal therefore cannot have any faith in any figure in section 4 of the form other than the 2.5% uplift.

22. The pitch fee review form is thus inadequate and invalid and cannot be relied upon. However, as explained in the tribunal’s directions in May 2019, neither party has actually asked for a determination of this year’s pitch fee and so – even if it had the essential detail before it – the tribunal is in no position today to do so. Dated 9th September 2019 Graham Sinclair First-tier Tribunal Judge

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/12UG/PHC/2019/0004 Property : 19 [ADDRESS] [POSTCODE] Applicant : [redacted] Respondent : [redacted] : [COMPANY_3] [ref STP/RED/MAN069-0003] 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 : Judge G K Sinclair Date of determination : 9th September 2019 Amended under slip rule 18th September 2019

DECISION following a paper determination

16. In response, under cover of a letter from [NAME_3] dated 6th June 2019, the respondent filed submissions comprising merely an observation that the [NAME_4] charges are calculated by reading the site meter annually and applying the [NAME_4] supplier’s rates of charge followed by a series of tables, one for each year. In each table the penultimate row reads “plus service charges”, without any explanation of what is meant by that. As the tables concern [NAME_4] and sewerage charges only this must refer to the respondent’s administration charges. If so, then subject to the maximum permissible under the 2006 Order any excess is irrecoverable because no attempt has been made to justify it. The excess sums shown in the table at paragraph 1 b. above are therefore recoverable. Interest is payable under paragraph 10 of the Order at twice the average Bank of England base rate over the period of overcharging, but as the total amount repayable is only £115.69 and the base rate has varied between 0.25% and 0.75% per annum any interest would be negligible.

17. The respondent claims to have taken meter readings in March but then produced [NAME_4] bills from [NAME_6] which refer to slightly different periods, using different readings or even estimates. His table for the year 2017–2018 does not even accord with the invoice that he sent to the applicant. As a result the figures that he relies upon are not properly supported, and the sum of £4 780.00 for total cost at item (C) in section 4 of the pitch review form is arithmetically wrong and cannot be relied upon. The respondent should use actual readings and sums actually billed as the basis for claiming shares from the occupiers, if necessary by adjusting the annual pitch review date so that it falls after the supplier’s bills have been received.

18. The applicant raises a number of other points concerning the validity of the pitch fee review form. First, section 2 says that the last review date was 1st June 2018. That is wrong. The review date is and has, unless or until changed, been in April

of each year, with the rather irregular notice of increase issued in March by reference to the last published RPI index, namely that for February. The fact that a review may be late – or challenged – does not alter the review date.

22. The pitch fee review form is thus inadequate and invalid and cannot be relied upon. However, as explained in the tribunal’s directions in May 2019, neither party has actually asked for a determination of this year’s pitch fee and so – even if it had the essential detail before it – the tribunal is in no position today to do so. Dated 9th September 2019 Graham Sinclair First-tier Tribunal Judge Amended under the slip rule (rule 50) on 18th September 2019

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/12UG/PHC/2019/0004 Property : 19 [ADDRESS] [POSTCODE] Applicant : [redacted] Respondent : [redacted] : [COMPANY_3] [ref STP/RED/MAN069-0003] 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 : Judge G K Sinclair Date of substantive : 9th September 2019 decision Amended (rule 50) : 18th September 2019 Date of this decision : 10th October 2019

DECISION REFUSING PERMISSION TO APPEAL © CROWN COPYRIGHT 2019 Decision of the tribunal 1. On 9th September 2019 the tribunal issued its decision following determination of this application on paper. On 18th September 2019, following a query by the respondent site owner’s solicitors, the tribunal issued an amended decision correcting a minor error at the end of paragraph 16.

2. On 1st October 2019 the tribunal received an application by Mr [NAME_1] dated 28th September 2019 seeking permission to appeal.

3. The tribunal has considered the application by the site owner for permission to appeal and determines that : a. it will not review its decision; and b. permission be refused.

4. In accordance with section 11 of the Tribunals, Courts and Enforcement Act 2007 and rule 21 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, the proposed appellant may make further application for permission to appeal to the Upper Tribunal (Lands Chamber). Such application must be made in writing and received by the Upper Tribunal (Lands Chamber) no later than 14 days after the date on which the First-tier Tribunal sent notice of this refusal to the party applying for permission to appeal. Reasons for this decision 5. The tribunal’s decision was based on the evidence and submissions put before it in writing. Apart from the front page of the respondent’s submissions made as required by the tribunal’s earlier directions order the tables or schedules attached to the application for permission to appeal had not been provided and were not before the tribunal when it made its substantive decision in September 2019.

6. As to the applicant’s request for production of pre-2015 documents, paragraph 1 a. merely repeats the tribunal’s earlier decision when issuing its directions dated 7th May 2019 (referred to in paragraph 5 of the decision) that, applying the overriding objective in rule 3, the expenditure of time and resources either by itself or the parties in such an exercise was not proportionate and, insofar as the request referred to any period prior to May 2015, the same was refused. Further, the applicant took an assignment of the pitch as recently as May 2015 and was aware of and accepted at the time the passing pitch fee.

7. Paragraph 1 b. rules in the applicant’s favour, by deducting the overcharged fee for administration added to the [NAME_4] charges. However, while paragraph 1 c. points out that the respondent’s figures for [NAME_4] usage do not match the sums and readings actually invoiced by the [NAME_4] supplier, the applicant overlooks the fact that the tribunal has never been asked to determine the pitch fee for this or any previous year.

8. In paragraph 1 d. the decision determines that the most recent pitch fee review form is null and void, meaning that the fee applicable last year continues to apply unless or until a new and complete form is validly served. See also paragraph 22.

9. The decision whether to order a party to reimburse tribunal fees paid by another, under rule 13(2), is a matter entirely within its discretion. In the instant case the applicant failed in his demand that the respondent disclose documentation going back as far as 1977 (or even 1997). He was successful in achieving a declaration that the respondent had overcharged for administration fees contrary to and in breach of the [NAME_4] Order 2006, and that the most recent pitch fee renewal form was invalid, but his application was ill-thought-out. There was no effective request for determination of the current or any past pitch fees.

10. The tribunal is therefore satisfied that, in accordance with the criteria adopted by the Upper Tribunal, there are no reasonable grounds for arguing :

a. That the tribunal wrongly interpreted or applied the relevant law b. That it took account of irrelevant considerations, or failed to take account of a relevant consideration or evidence, or c. That there was a substantial procedural defect. Dated 10th October 2019 Graham Sinclair First-tier Tribunal Judge