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Fuel Rights Handbook 21st edition

Council tenancies
You have a ‘council tenancy’ if your landlord is a local authority, unless you have used your ‘right to buy’ or if, in England and Wales, your tenancy has a fixed term of more than 21 years. Most council tenancies are called ‘secure tenancies’ – ie, you can usually live in the property for the rest of your life, as long as you do not break the conditions of the tenancy.
In England and Wales, local authorities are under the general duty to act reasonably in setting levels of service charges or rent for council tenants,1Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 and may be subject to judicial review. The Secretary of State has the power to make regulations covering heating charges, including that they are ‘reasonable’, but this has not been used.2s108 HA 1985
In Scotland, local authorities are limited to making service charges which they think are ‘reasonable in all the circumstances’.3s211 H(S)A 1987 There is no definition of ‘reasonable’, but if you think the charges are unreasonable, you can apply for a judicial review (see Chapter 14).
Some protection may be provided for council tenants by way of contract. If fuel or fuel-related services are provided as part of your tenancy, a failure to provide these is a breach of contract. If there is such a breach, you can go to court to claim damages (ie, compensation) and a court order requiring the council to obey the terms of the tenancy agreement. If a council is seeking a possession claim against you, this may be raised as a counterclaim. Note, however, that legal aid is unlikely to be available for such claims; increasingly most people have to represent themselves as best they can at any possession hearing. However, with a council tenancy in England and Wales, there is wider scope for a court to decline to grant a possession order than with a private sector tenancy.
 
1     Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 »
2     s108 HA 1985 »
3     s211 H(S)A 1987 »
Local authority heating systems
All local authorities have the power to produce and sell heat, including electricity which is produced by renewable sources.1s11 LG(MP)A 1976; Sale of Electricity by Local Authorities (England and Wales) Regulations 2010 No.1910; ss170A and 170B Local Government Scotland Act 1975 as inserted by s102 and Sch 13 Electricity Act 1989; Sale of Electricity by Local Authorities (Scotland) Regulations 2010 No.1908 There is no specific protection in relation to heating charges, but the authority must:
    keep a separate account of them;2s12(4) LG(MP)A 1976and
    when fixing the charges, act in good faith, not for ulterior or unlawful purposes, and within the reasonable limits of a reasonable local council;3Bromley LBC v GLC [1982] 1 All ER 129and
    comply with the law on maximum charges for resale of fuel (see here).
London boroughs have additional powers in respect of the provision of heating by hot water or steam.4Part III London County Council (General Powers) Act 1949 They may prescribe scales of heating charges that apply, unless there is a specific agreement setting different charges.5s22 London County Council (General Powers) Act 1949 The charges must be shown separately on rent books, demand notes or receipts, and be differentiated from rent generally. The cost of some ancillary or incidental expenses may be included, such as insurance, and a welfare element may be recognised in this.6Attorney General v Crayford Urban District Council [1962] Ch 246 per Lord Evershed
London boroughs are not allowed to subsidise heating. When providing heat or setting charges, they must not show ‘undue preference’ or exercise ‘undue discrimination’.7s20(3) London County Council (General Powers) Act 1949 Some preference or discrimination is inevitable, as not all tenants paying the same charges will be provided with identical heat. To decide if the preference or discrimination is ‘undue’ consider:
    the cost of providing the heat to you compared with the cost of providing it to other tenants;
    the level and consistency of heat;
    restrictions or terms governing the heat provided – eg, in winter only.
If you can show undue preference or discrimination, you can recover the amount you have been overcharged by taking legal action (see Chapter 14).
In Scotland, local authorities are only entitled to sell electricity produced in association with heat and waste. Scottish local authorities can also sell electricity which is produced from renewable sources including wind, solar, hydropower and biogases.8s170A Local Government Scotland Act 1973; reg 2 Sale of Electricity by Local Authorities (Scotland) Regulations 2010 No.1908
Do you suspect that the local authority is overcharging for heating?
If you suspect that the local authority is charging more for heat and power than the actual cost to itself, you can make a freedom of information request to obtain the actual costs. The local authority must make the information available within 21 days of a written request, unless the information falls into a number of restricted categories. There is a right of appeal to the Information Commissioner’s Office against a refusal to supply information.
 
1     s11 LG(MP)A 1976; Sale of Electricity by Local Authorities (England and Wales) Regulations 2010 No.1910; ss170A and 170B Local Government Scotland Act 1975 as inserted by s102 and Sch 13 Electricity Act 1989; Sale of Electricity by Local Authorities (Scotland) Regulations 2010 No.1908 »
2     s12(4) LG(MP)A 1976 »
3     Bromley LBC v GLC [1982] 1 All ER 129 »
4     Part III London County Council (General Powers) Act 1949 »
5     s22 London County Council (General Powers) Act 1949 »
6     Attorney General v Crayford Urban District Council [1962] Ch 246 per Lord Evershed »
7     s20(3) London County Council (General Powers) Act 1949 »
8     s170A Local Government Scotland Act 1973; reg 2 Sale of Electricity by Local Authorities (Scotland) Regulations 2010 No.1908 »
Challenging the way heating is provided
If you challenge the legality of the way a heating system is being run or charges for heat, complex legal issues arise. As well as the matters mentioned, a court can consider such matters as whether the local authority charges for:
    assumed heat delivery instead of actual heat delivered, if there is a significant difference;
    heating costs that are significantly higher than those of other heating systems;
    amounts unrelated to heat delivered or assumed to be delivered.
When some heating is provided but it is inadequate, it is difficult to prove that there has been a breach of the tenancy agreement unless there is a specific agreement stating how much heating is to be provided and at what times of the year. If nothing is specifically agreed or set out in the tenancy agreement, there is probably an implied term that ’reasonable heat’ should be provided, but this is extremely vague. If there is a dispute, keep a detailed diary of when the heating was sufficient, when it was inadequate or off altogether, and even when there was too much.
A failure to consult adequately on local authority changes to district heating schemes is potentially open to judicial review.1R (on the application of Ofogba) v Secretary of State for Energy and Climate Change [2014] EWHC 2665 (Admin) In respect to specific groups of dwellings, the local authority or landlord may apply to the First-tier Tribunal (Property Chamber) for a dispensation from the duty to consult – eg, when replacing boilers on an estate. If a landlord seeks a dispensation, you may challenge it by showing that you will be prejudiced, either financially or otherwise.2Camden LBC v Leaseholders of 46 flats in Harben Road Estate [2015] LON/00AG/LDC/2014/0123, 27 April 2015 Once you – and other leaseholders – have shown a credible case for prejudice, it is for the landlord to rebut it, and the tribunal should regard the leaseholders’ arguments sympathetically. The duty to consult is an important one and good practice would dictate that it occurs even in emergency situations. Failures to consult and delays in doing so will count against a landlord.
Pressure by tenants’ groups
It may be more effective for tenants’ associations to put pressure on a local authority to change the way it manages the heating system or the charges for it. In challenging high heating charges, tenants’ groups can look at:
– copies of local council committee reports on heating systems and charging policies;
– a comparison of income from, and expenditure on, individual estate systems and across a local council area;
– expenditure charged to the heating account: does it include all fuel expenditure, maintenance, insurance, caretakers’ wages, interest on the cost of the system; is this consistent with other public landlords?;
– district heating systems: the number of dwellings supplied, the costs and type of fuel used;
– level of service: heating and hot water, hours per day, winter and summer, temperature standards assumed and achieved;
– method of calculation of charges: pooling of costs, property by property, flat charge, charges related to size and number of bedrooms;
– energy efficiency of dwellings: insulation quality, double-glazing;
– arranging a temperature survey to find out what heat is being delivered. Temperatures in all rooms at different times of the day can be measured simultaneously in a number of dwellings.
Requests made under the Freedom of Information Act 2000 may assist in obtaining relevant information from local authorities (see here). Media interest is also high in energy supply issues.
 
1     R (on the application of Ofogba) v Secretary of State for Energy and Climate Change [2014] EWHC 2665 (Admin) »
2     Camden LBC v Leaseholders of 46 flats in Harben Road Estate [2015] LON/00AG/LDC/2014/0123, 27 April 2015 »
Council tenancies: heating standards
In England and Wales, to be ‘fit for human habitation’ your home has to have adequate provision of heating. Public Health England recommends that heating homes to at least 18°C (65F) in winter poses minimal risks to the health of a sedentary person, wearing suitable clothing and is also important for people over 65 years or with pre-existing medical conditions.1Public Health England, Minimum Home Temperature Thresholds for Health in Winter: a systematic literature review, 2014 Having temperatures slightly above this threshold may be beneficial for health. Maintaining the 18°C (65F) threshold overnight may be protect the health of those over 65 or with pre-existing medical conditions. They should also continue to use sufficient bedding, clothing and thermal blankets or heating aids as appropriate.
However, a local authority may provide heating to another standard which it has set for itself. Some landlords use their own standards. Ask your local authority what standards it uses, as these are probably used in setting the charges.
In Scotland, a property is considered uninhabitable if is deemed ‘below tolerable standard’, which may include lacking in satisfactory provision for heating. Local authorities may take action against properties that fall below this standard under powers contained in Housing (Scotland) Act 2006.
In Wales, accommodation for homeless people and families (eg, B&B accommodation) must be adequately heated. All habitable rooms must maintain a minimum temperature of 18°C when the outside temperature is -1°C.2Sch 1 para 2(2) Homelessness (Suitability of Accommodation) (Wales) Order 2015 No.1268
 
1     Public Health England, Minimum Home Temperature Thresholds for Health in Winter: a systematic literature review, 2014 »
2     Sch 1 para 2(2) Homelessness (Suitability of Accommodation) (Wales) Order 2015 No.1268 »