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  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  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.