Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

[Kjun]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

I cannot agree added costs are not relevant as this will only increase the inevitable judgment amount which puts the Defendant further in debt.

My suggestion is to avoid a judgment which if it remains unpaid is likely to attract further enforcement which in turn incurs more cost as I am sure you are aware.

More water companies are using the Order to Attend to gather information they may not have and if the Defendant is not working they may well make an unconsented request to the DWP for deductions for benefit which they will have to action or of course instruct bailiff or HCEO.

Other option is file an Admission with a token £1.00 per month since judgment does not matter to the Defendant and then apply for help with ongoing charges as I have never contested an offer by Admission nor requested a re-determination and have not heard of one being applied to.

If the water supply could be disconnected to domestic properties I am certain that the Defendant would find some way of making payments for water and I am aware of plenty of persons on low incomes who still manage to pay water bills so with the greatest of respect to you and the Defendant I cannot accept they can pay nothing and neither will the water company as they rightly have a duty to customers who do pay to pursue non payment of charges.

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Thanks Kjun, appreciate the advice..

I know nothing about Admission so thanks for bringing that up - I will be passing the info on to the Defendant immediately. What would happen if the £1 per month was paid, but no help was had with ongoing charges? Does the £1 per month pay off the arrears with no increase in payments expected? How would the Admission be made? Can it be done after the Strike Out Application, but before a hearing? Who will help with ongoing charges? I thought the charity would only help with arrears.?

[Kjun]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Hey Sam,

Admission is as it suggests as in the Defendant admits the claim in full and there is usually an admission form (N9A) in the court response pack but I presume you have filed a Defence already?

If that is the case a letter to the court and Claimant withdrawing the Defence and including the N9A should suffice and though may be complicated somewhat by your application I cannot see a reason why that cannot be withdrawn again by letter and the N9A though I suspect it will be referred to the DJ.

The £1.00 will go towards the arrears and as to ongoing charges it is worth talking to the water company regarding schemes they will have to help with these but I don't think you have mentioned which one it is (and I am sure you understand I cannot say which one I work for on an open forum) but most have very similar levels of assistance.

The charity Trust Fund may well help with a grant towards arrears however the one I am familiar with will not make an award if said arrears are subject to court judgment hence my Tomlin Order through mediation thought and the Admission I suggest will incur a judgment however other water company Trust Funds may have different criteria.

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

That's great, Kjun, thanks very much. Don't believe a Defence has yet been filed - just an intention to defend. This will have to be looked into and considered.

Cheers!

[Kjun]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

No worries Sam hope you manage to get it resolved but if you need any further help or advice please post back.

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Quick update.

Orders made that Claim to be heard in Defendant's local court and Strike Out Application to be heard - barring any objections within 7 days.

I assume the court will need to decide a date once it has been transferred. Will update as and when.

[nemesis45]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Yes that's what will happen.

nem

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

As for not paying not affecting profits of said company not sure where you have come up with that

The same was repeated on another forum recently by regular poster who almost definitely knows what they are talking about. They said, "...any such avoidance and/or legal expenses incurred simply mean that the losses/expenses are paid for by other customers in higher charges - the water companies suffer no loss of profit."

I haven't had the need yet to delve further into their previous posts on the matter but if I find a link or reference that backs up this assertion I'll elaborate.

Application for strike out will be heard at the end of next month.

[Kjun]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Sorry but that is just not the case as water company charges have to be approved by OFWAT the regulator so they cannot increase prices to cover for non-payers in order to maximise profits.

I cannot agree that it is acceptable for someone to receive a service that they do not pay for yet utilise on a daily basis and if domestic supplies were able to be restricted then I have no doubt most non-payers would find the money for this simply as the alternative would be private septic tanks and standpipes on the street...

What is correct is that we all would have lower water bills if those who chose not to pay did as there is no doubt that submissions water companies make to OFWAT when prices are agreed include a provision for bad debt.

Water infrastructure maintenance is well known to be very expensive and this is included in the charges which is often forgotten or not given any consideration.

Good luck with the hearing though I believe it will be fruitless.

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Cheers.

Will have to look into this a bit more when I'm minded to.

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Interesting - the water co won't be attending the hearing this month.

Also they mention in detail their version of what happened at Mediation in their Witness Statement, which seems not to be allowed. Just how much it isn't allowed is something I'm going to look into right now. If it's possible to apply to have the Witness statement struck out then that'll probably be the next course of action. If not, they have still ignored the CPR by the looks of it, and that can't be good for them I would have thought.

As a general rule, water rates are generally regarded as inappropriate for mediation according to the Civil Mediation Service Manual, so don't know why a judge ticked the 'Yes' box.

[nemesis45]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Nothing discussed in the mediation can be put before the court.
A judge should disallow all of it.
All that can be said is that no agreement was reached.

nem

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Absolutely agree.

There will be sanctions for non-compliance with Practice Directions, though I can only find references to it in the Manual - perhaps they may have to issue a revised Witness Statement - but it seems to me there would then need to be a different judge involved.

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

The water company made some submissions, and the defendant replied, as below.


1. The Claimant has still not provided to either the Defendant or the Court a copy of any Letter Before Claim as required by Annexe A of the Pre-Action Conduct Practice Direction. Neither has the Claimant referred the Defendant to this Practice Direction or drawn the defendant's attention to paragraph 4 of the Direction, which are requirements under paragraph 2.3 of the Annexe. Therefore the Defendant requests that this Claim be struck out on the basis of the Claimant's non-compliance with this Practice Direction. In addition to this non-compliance with Practice Directions the Claimant has supplied to the court inconsistent evidence at paragraphs 4 & 5 of their letter... stating that their court department did not review the account unil... when it was passed from the debt collection agencies, and state that they do not send a letter advising the account will be passed for claim, making it unlikely that they would have sent a Letter Before Claim on... as suggested in paragraph 9 of their Witness Statement. No communication has been provided by the Claimant which would constitute a valid Letter Before Claim, or which was compliant with Practice Directions.

2. The Claimant has, in paragraph 13 of their Witness Statement dated..., provided the court with a version of events which took place during the Mediation Hearing. Page 34 of the Civil Court Mediation Manual makes plain that confidentiality is spelt out to the parties to ensure that they do not use mediation as evidence in court, and the Claimant did enter into such an agreement before the Mediation Hearing not to disclose any information as to what occured during the process. By referring to such information in this court action the Claimant has failed to comply with Directions and has broken the confidentiality agreement. The Defendant submits that it would be appropriate for the Claim to be struck out, or for other sanctions to be applied, because of this breach.

3. The Claimant has also failed to comply with paragraph 8.4 of the above mentioned Practice Direction, and as can be seen from paragraph 2 of their letter of... have no intention of doing so, and make erroneous statements regarding the criterea for help from the Trust fund. It was within the Claimant's power to place a hold on court proceedings, contrary to the assertions in their letter, whilst an application to the Trust Fund was being progressed, and in failing to do so have again been non-compliant with Practice Directions.

4 The Claimant has still not identified the legal wrong that has been done by the Defendant. The Claimant is correct that legislation allows them to demand and recover charges for water services, but the Defendant submits that so is, for example, a window cleaner allowed to demand and recover charges. The provisions of Part V of the Water Industry Act 1991 merely enable water companies to make and collect charges whereas prior to the Act they were not. The Act gives no specific power by which to enforce recovery of charges and so [the water company] are in the same legal position that any other Claimant would be in, that is to say they would need to show that a legal wrong had been committed, which they have failed to do. [The water company] are required by legislation to provide water services to all domestic properties in their area. The Defendant submits that as they have no choice but to receive water services they have committed no legal wrong in not paying for them.

5. Water services are mandated by the legislature to be supplied to the Defendant, but the legislature has failed to make any provision of a means to pay for those services. Please see
http://www.publications.parliament.uk/pa/cm200304/cmselect/cmenvfru/1186/4110311.htm
which is a 2004 Memorandum submitted by WaterVoice to the Select Committe on Environment, Food and Rural Affairs, and which at Paragraphs 21-23 proposes that the Government act to provide financial assistance for water charges as a right through the benefit system. No such action was taken by the government and the situation remains as it did in 2004, leaving benefit claimants with no means by which to pay for water charges.
The Defendant is in receipt of Income Based JSA which is provided to pay for certain essentials such as food, heating, lighting, cooking facilites and clothing. The fact of their being no inclusion in benefit of an allowance towards water charges means that no money is currently available to the Defendant to pay those charges. The Secretary of State has restricted the Defendant's means and ability to pay for any more than the bare essentials, and has deemed that water charges are not one of them.

6. The Claimant is incorrect in quoting Section 143 as the basis for advance charges and the Defendant reiterates that the Claim was wrongly issued because of the inclusion of advance charges. Section 143 contains references to water services in Paragraph (1) (a) & (c), which say that [the water company] (the relevant undertaker) may make a charges scheme, effective over a twelve month period, and which makes provision for how and when charges are to be paid. Paragraph (1) (b) refers solely to the case of a sewerage undertaker, as do paragraphs 2 & 3. The Defendant submits that there is no indication in the 1991 Act that charges for water services are payable in advance. The Claimant has, in their Reply to Defence, Witness Statement and letter of... referred to Section 2.2 of their Charges Scheme, and asserted that in accordance with the Scheme charges are due in advance and become immediately payable if not paid in time. The Defendant submits that OFWAT's approval of such a scheme creates no compulsion on the consumer to pay in advance, and that such an assertion is not a statement of the law. OFWAT can certainly approve a water company asking for advance payment but it doing so does not and cannot give a water company a legal right to recover
payment for services which have not yet been supplied.

7. In view of the Claimant's failures to adhere to the Civil Procedure Rules and in particular to Practice Directions as regards the lack of a Letter Before Claim, their reference to details of the Mediation Hearing and their refusal to be compliant with Practice Direction 8.4, the Defendant submits that the only appropriate course of action would be to strike out their Claim. In any event their Witness Statement mentioning what happened at Mediation should be struck out, or at least be subject to sanctions.

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Here's an update of sorts, not quite sure what to make of it:

Since the Strike Out Application Hearing two phone calls to the court elicited no information regarding the result (it was heard on the papers without either party attending).

The staff did, however, say that the judge was going to or had struck out the Defence, but was going to allow the Defendant to submit a more appropriate one.

They said the defendant would hear something by post.

If nothing has been received by the Defendant by the middle of next week I suggested that this be noted in a letter to the court.

A few more things were said, such as a letter before claim not being needing to have been sent - that was mentioned in the Strike Out App and the Defence statement. They also said that if the Defendant had attended the Hearing (Strike Out App) then they would have known what had happened.

All of this has, naturally, led to speculation as to what is going on exactly.