Proportionality and Human Rights Act principles
The court has discretion whether to grant a warrant and must act reasonably.1Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 In considering whether to exercise its discretion to grant a warrant, the court should have regard to human rights principles under European law including the ‘doctrine of proportionality’ – ie, any legal measures applied against citizens of member states and affecting their rights must be proportional to the ends achieved. The law has yet to be tested, but it is at least arguable that an application for a warrant to gain entry to disconnect electricity or gas may be a disproportionate measure in the case of a vulnerable household – eg, a lone parent receiving only benefit income. In a case of fine enforcement, the High Court held that enforcement activity may be disproportionate as a measure and contrary to Article 8 of the European Convention on Human Rights (protecting rights to the home and family life).2R (on the application of Stokes) v Gwent Magistrates’ Court [2001] JPN 766 EWHC Amin 564 Applying the principle of proportionality, it would appear open to a magistrates’ court to decline to issue a warrant where a debt is relatively small and the hardship caused to a vulnerable household would be severe. A magistrates’ court should consider the position of any children residing in the property and anyone with disabilities who may be affected. It is therefore important that a financial statement (see here) and details of all persons residing in the property are provided to the court at the hearing. In the event that you are too ill to attend, send details to the court in writing in time for the hearing. Similarly, it has not been determined whether it is correct for an energy company to pursue a warrant where another option may be available – eg, Fuel Direct or a payment plan. You should certainly raise any failure to do so at the hearing, as your supplier has a duty to consider these options under SLC 27.
It should be noted that under SLC 28B(4), suppliers should not exercise a warrant where such action would be disproportionate in the context of the amount of the outstanding debt and charges.3Condition 28B(4) SLC