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I wonder if someone can give me an opinion on the below, I've set it out so hopefully it's relatively clear.
It turns out her supplier was not the supplier she thought it was, they didn't complete the switch, she only became aware of this in April 2021 when the National Database was shared. Surely she doesn't have to pay the £4k debt?
The below was an e-mail I sent to Octopus on 5 March, they've literally not responded to any of it, no formal response, no response for the Data Processing either.
I'm really keen to get someone's view on the below situation.
Ps she became aware of it as the first step they took was to send a Debt Collector round to her address in January 2021, literally no other collection activities, nothing shown in the SAR either.
In summary Mrs G case is that there is no contractual relationship with Octopus Energy, Mrs G transferred to another supplier, raised a dispute with Octopus in November 18 which was ignored at the time of receiving a communication, she has never provided a meter reading and from the information I have seen not only is there no evidence of an implied contract, the evidence shows the opposite to be true.
Pursuant to the Consumer Rights Act 2015 it is clearly stated that a "notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer".
'Significant imbalance' means that the rights or obligations contained within the term or notice are significantly weighted in favour of the trader and therefore place a greater burden on OctopusEnergy to show that the terms of the agreement are fair when raising a dispute.
Switching Supplier
In April 2018 Mrs G requested a switch of supplier from Flow Energy to Economy Energy, on 17 April 2018 she received a letter setting up her Direct Debit with that new supplied and furthershe received an SMS Message advising that the switch had completed. In accordance with Flow Energy Terms and Conditions she duly e-mailed them on9 September 2017 advising them that she was terminating ‘the termination’ the contract with them, she received no further correspondence from Flow Energy and Mrs G made payments to her new supplier.
Flow Energy Bills
Within the Octopus Energy account there are a number of Flow Energy Bills it is clear that these were never provided to Mrs G, the Flow Energy Statement for 1 October 2017 through to 20 June 2018 was issued on 2 July 2019 this was significantly after the termination of the contract, this was ‘Back Billing’ and shows a debit of £673.78, she was paying her new supplier. Despite this high accrual of alleged arrears Flow Energy made no reasonable attempts to contact Mrs G for payment, there was no contact. However, following her email of termination in September 2017 she made no further payments her intention clearly being to terminate the agreement with that company.
Flow Energy further produced a statement on 2 July 2019 for the period of 21 June 2018 to 10 January 2019, it shows a further debit balance of £620.78, therefore so far a total of £1,294.56, again no attempts were made to contact Mrs G about this large debt accruing on her account, something which Ofgem require, no direct debit was in place and she had terminated her agreement and she had no knowledge of this debt accruing.
Octopus Energy Acquisition of Flow Energy
It was not known by Mrs G at the time but in late 2019 a transfer occurred of the customer book from Flow Energy. Octopus Energy acquired Mrs G account with an alleged debit balance of £2,181.87, both companies would have been aware of this balance at the time and OctopusEnergy would have knowledge that there was no live Direct Debit instruction on the account at the point of acquisition, there were no Debt Collection activities for such a high balance, in the alternative the alleged debt was higher than the industry level of debt as identified by Ofgem by which point reasonable interventions should have taken place for a vulnerable customer. Put simply Mrs G has been treated significantly unfairly by both Octopus Energy and Flow Energy in the allowance of such a debt accruing with no contact or support.
Contractual Relationship
Aside from the evidence of a transfer to Economy Energy where Mrs G had formed a new contract she states the following.
In accordance with Flow Energy terms and conditions Mrs Gill could terminate the agreement the relevant clause states ‘8.1.2 In all other circumstances (except where clause 7.2 applies), you can end this contract by giving us at least 28 days’ notice, or a notice period that we agree to, as long as by the end of the notice period’ following her notice of termination she received no further communication from Flow Energy.
Upon acquisition, Octopus Energy allowed the account to to continue accruing debt, with no Direct Debit or meter readings being supplied from acquisition to present date, there was no ‘intention’ for Mrs G to form a contract with either Flow Energy or Octopus Energy following her termination in September 2017.
There must be an 'intention to make a contract'. Both Mrs G and Octopus Energy or Flow Energy must intend to be legally bound by the contract and both parties must understand what the contract actually means, this requirement within the Consumer Rights Act simply cannot follow as there was no intention to make a contract, the contrary is evident.
Fairness
There is a significant amount of inherent unfairness because when Mrs G received what she deemed was a ’suspicious’ email in late 2019 she responded on 12 November 2019 and clearly raised a dispute, she has already provided a copy of this e-mail but it states 'you are not my energy supplier, please remove me from your lists', Octopus Energy failed to respond or engage in any dialogue with Mrs G, she could not have made it clearer that she did not recognise or acknowledge the account. In the alternative, save as to the arguments clearly set out above, hypothetically had Mrs G been a customer, Octopus Energy have an obligation both in statute, Ofgem rules and Octopus Energy’s own fairness policies to recognise vulnerable customers and provide support. Octopus Energy have allowed a debt of over £4,000 to accrue on the account with no contact, this is entirely unfair conduct and creates an imbalance between the consumer and the business.
Data Processing
This e-mail has been copied to the Data Protection Officer for Octopus Energy as Mrs Gill is ‘objecting’ to processing and requiring ‘erasure’ of information, the relevant ICO Guidance is ‘Principles for the Reporting of Arrears, Arrangements and Defaults at Credit Reference Agencies’ which sets out the key principles for processing. Mrs G objects to that processing on the following grounds.
1. The data is being processed is not fair or accurate, I have clearly outlined above why it isn’t fair or accurate.
2. There is no agreement or right to process that exists in any event for you to process data, Mrs G terminated her contract in September 2017 and has shown no intention to form a contract since, there is no lawful basis for processing.
Mrs G requests Erasure of information shared with the credit reference agencies, this is because the information has been processed unlawfully and against the 1st and 4th principle, more specifically the data has no lawful basis, is not fair and is not accurate.
You have one calendar month to confirm if you are complying with Mrs G request.
Outcome
Mrs G does not acknowledge there is a contract in place with Octopus Energy and does not acknowledge the balance, she raised a dispute which was not responded to and Octopus have allowed the alleged account to reach a significant level of debt with no reasonable steps taken to address it, this constitutes an ‘unfair relationship’, despite full knowledge that no payment method had never been in place and a dispute had been registered, she does not acknowledge the account or balance and therefore the account should be closed with no further action.
Further, as outlined above there is no lawful basis for a company with no contractual relationship with Mrs G to continue processing her data and therefore this information should be erased and destroyed.
It turns out her supplier was not the supplier she thought it was, they didn't complete the switch, she only became aware of this in April 2021 when the National Database was shared. Surely she doesn't have to pay the £4k debt?
The below was an e-mail I sent to Octopus on 5 March, they've literally not responded to any of it, no formal response, no response for the Data Processing either.
I'm really keen to get someone's view on the below situation.
Ps she became aware of it as the first step they took was to send a Debt Collector round to her address in January 2021, literally no other collection activities, nothing shown in the SAR either.
In summary Mrs G case is that there is no contractual relationship with Octopus Energy, Mrs G transferred to another supplier, raised a dispute with Octopus in November 18 which was ignored at the time of receiving a communication, she has never provided a meter reading and from the information I have seen not only is there no evidence of an implied contract, the evidence shows the opposite to be true.
Pursuant to the Consumer Rights Act 2015 it is clearly stated that a "notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer".
'Significant imbalance' means that the rights or obligations contained within the term or notice are significantly weighted in favour of the trader and therefore place a greater burden on OctopusEnergy to show that the terms of the agreement are fair when raising a dispute.
Switching Supplier
In April 2018 Mrs G requested a switch of supplier from Flow Energy to Economy Energy, on 17 April 2018 she received a letter setting up her Direct Debit with that new supplied and furthershe received an SMS Message advising that the switch had completed. In accordance with Flow Energy Terms and Conditions she duly e-mailed them on9 September 2017 advising them that she was terminating ‘the termination’ the contract with them, she received no further correspondence from Flow Energy and Mrs G made payments to her new supplier.
Flow Energy Bills
Within the Octopus Energy account there are a number of Flow Energy Bills it is clear that these were never provided to Mrs G, the Flow Energy Statement for 1 October 2017 through to 20 June 2018 was issued on 2 July 2019 this was significantly after the termination of the contract, this was ‘Back Billing’ and shows a debit of £673.78, she was paying her new supplier. Despite this high accrual of alleged arrears Flow Energy made no reasonable attempts to contact Mrs G for payment, there was no contact. However, following her email of termination in September 2017 she made no further payments her intention clearly being to terminate the agreement with that company.
Flow Energy further produced a statement on 2 July 2019 for the period of 21 June 2018 to 10 January 2019, it shows a further debit balance of £620.78, therefore so far a total of £1,294.56, again no attempts were made to contact Mrs G about this large debt accruing on her account, something which Ofgem require, no direct debit was in place and she had terminated her agreement and she had no knowledge of this debt accruing.
Octopus Energy Acquisition of Flow Energy
It was not known by Mrs G at the time but in late 2019 a transfer occurred of the customer book from Flow Energy. Octopus Energy acquired Mrs G account with an alleged debit balance of £2,181.87, both companies would have been aware of this balance at the time and OctopusEnergy would have knowledge that there was no live Direct Debit instruction on the account at the point of acquisition, there were no Debt Collection activities for such a high balance, in the alternative the alleged debt was higher than the industry level of debt as identified by Ofgem by which point reasonable interventions should have taken place for a vulnerable customer. Put simply Mrs G has been treated significantly unfairly by both Octopus Energy and Flow Energy in the allowance of such a debt accruing with no contact or support.
Contractual Relationship
Aside from the evidence of a transfer to Economy Energy where Mrs G had formed a new contract she states the following.
In accordance with Flow Energy terms and conditions Mrs Gill could terminate the agreement the relevant clause states ‘8.1.2 In all other circumstances (except where clause 7.2 applies), you can end this contract by giving us at least 28 days’ notice, or a notice period that we agree to, as long as by the end of the notice period’ following her notice of termination she received no further communication from Flow Energy.
Upon acquisition, Octopus Energy allowed the account to to continue accruing debt, with no Direct Debit or meter readings being supplied from acquisition to present date, there was no ‘intention’ for Mrs G to form a contract with either Flow Energy or Octopus Energy following her termination in September 2017.
There must be an 'intention to make a contract'. Both Mrs G and Octopus Energy or Flow Energy must intend to be legally bound by the contract and both parties must understand what the contract actually means, this requirement within the Consumer Rights Act simply cannot follow as there was no intention to make a contract, the contrary is evident.
Fairness
There is a significant amount of inherent unfairness because when Mrs G received what she deemed was a ’suspicious’ email in late 2019 she responded on 12 November 2019 and clearly raised a dispute, she has already provided a copy of this e-mail but it states 'you are not my energy supplier, please remove me from your lists', Octopus Energy failed to respond or engage in any dialogue with Mrs G, she could not have made it clearer that she did not recognise or acknowledge the account. In the alternative, save as to the arguments clearly set out above, hypothetically had Mrs G been a customer, Octopus Energy have an obligation both in statute, Ofgem rules and Octopus Energy’s own fairness policies to recognise vulnerable customers and provide support. Octopus Energy have allowed a debt of over £4,000 to accrue on the account with no contact, this is entirely unfair conduct and creates an imbalance between the consumer and the business.
Data Processing
This e-mail has been copied to the Data Protection Officer for Octopus Energy as Mrs Gill is ‘objecting’ to processing and requiring ‘erasure’ of information, the relevant ICO Guidance is ‘Principles for the Reporting of Arrears, Arrangements and Defaults at Credit Reference Agencies’ which sets out the key principles for processing. Mrs G objects to that processing on the following grounds.
1. The data is being processed is not fair or accurate, I have clearly outlined above why it isn’t fair or accurate.
2. There is no agreement or right to process that exists in any event for you to process data, Mrs G terminated her contract in September 2017 and has shown no intention to form a contract since, there is no lawful basis for processing.
Mrs G requests Erasure of information shared with the credit reference agencies, this is because the information has been processed unlawfully and against the 1st and 4th principle, more specifically the data has no lawful basis, is not fair and is not accurate.
You have one calendar month to confirm if you are complying with Mrs G request.
Outcome
Mrs G does not acknowledge there is a contract in place with Octopus Energy and does not acknowledge the balance, she raised a dispute which was not responded to and Octopus have allowed the alleged account to reach a significant level of debt with no reasonable steps taken to address it, this constitutes an ‘unfair relationship’, despite full knowledge that no payment method had never been in place and a dispute had been registered, she does not acknowledge the account or balance and therefore the account should be closed with no further action.
Further, as outlined above there is no lawful basis for a company with no contractual relationship with Mrs G to continue processing her data and therefore this information should be erased and destroyed.
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