April 10, 2024

Directions from the Senior Presiding Judge and Chief Magistrate: Warrants for pre-payment meters

Lord Justice Edis Magistrates' court Senior Presiding Judge Practice Direction

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Updated April 2024

Applications for warrants for pre-payment meters

1. On 6 February 2023 the listing and determination of applications for warrants of entry for the purpose of installing a pre-payment meter was suspended with immediate effect. That direction was made following Ofgem’s announcement of a market-wide review into the practice of pre-payment meter installation by energy suppliers.

2. The direction of 6 February 2023 has been kept under regular review in light of the progress of Ofgem’s investigation and other developments. On 10 March 2023 Ofgem announced that all domestic energy suppliers have signed up to an updated Code of Practice on Involuntary Pre-payment meters. Conditions in the Code have since been incorporated into standard license conditions and all energy suppliers are required to follow them. On 8 January 2024 Ofgem announced that three suppliers had been given permission to restart involuntary PPM installations after meeting the regulator’s set of conditions. On 21 February Ofgem confirmed that a further two suppliers had been given such permission.

3. Following these developments, the direction of 6 February 2023 and the relevant parts of previous guidance issued regarding such applications to magistrates are revoked with immediate effect. The courts may recommence the listing of such applications. The arrangements for listing these applications going forward are to be agreed with the Senior District Judge (Chief Magistrate).

4. When considering applications from energy suppliers for warrants of entry to install prepayment meters the court must act compatibly with the Human Rights Act 1998 and in accordance with the statutory scheme in section 2 of the Rights of Entry (Gas and Electricity Boards) Act 1954. Suppliers must satisfy the court that they have complied with the standards set by Ofgem, admission to the property is reasonably required and the requirements of the Electricity and Gas Codes have been met.

The Right Honourable Lord Justice Edis
Senior Presiding Judge of England and Wales

March 2024 (Updated April 2024)

Directions as to the listing and conduct of applications for warrants of entry by utility suppliers, their servants and agents

1. Listing and procedure

Uncontested cases will be assigned to a court by the Heads of Legal Operations by applicant. This also applies to emergency applications. Existing assignments will continue.

Senior legal managers will determine frequency and hearing slots based on predicted volumes, which may change from time to time.

Allocation to judiciary

Practice Direction 5.14 on the deployment of cases between district judges (MC) and justices of the peace will apply.

Note: ‘occupier’ throughout refers only to the main bill payer or (in the case of third party warrants) the owner or lessee of the premises.

Notice

In addition to the statutory notices set out in the 1954 Act, in order to comply with EHCR Articles 6, 8 and Article 1 of the First Protocol, applicants will send a notice to the occupier informing them of their right to apply for a contested hearing.

No notice is required in the event of a genuine emergency, or where criminal activity is suspected and it is necessary to avoid disclosing the investigation. The applicant must satisfy the court of this.

Otherwise notice of 14 days before the application is made is required for applications on the grounds of safety, tampering or criminal activity (and water utilities applications under Sched 6 of the Water Industry Act 1991). In other cases, 21 days is required.

These notice periods also apply where access is sought to inspect equipment held on property other than that of the customer (“third party cases”). In those circumstances the customer and the third party must both be notified.

The notice must inform the occupier of their right to request a hearing at a courthouse other than the assigned courthouse, a list of which will be provided by HMCTS and which may change from time to time. These occupier will be required to provide basic case management information with their request.

Where a contested hearing is requested, the applicant will contact the listing office at the selected court to fix the hearing with reference to the case management information provided by the customer.

Hearings

Uncontested hearings will be held by live link. Contested hearings may be held by live link, in accordance with Magistrates’ Courts Rule 3B.

There is no requirement for applications to be heard in open court. However, for convenience in listing (for example where applications are combined with other types of business) they may be held in public.

Applications

Applications will be made by submitting the relevant data in a CSV file to the assigned court office and paying the prescribed fee.

Separate CSV files will be submitted for warrants sought for different purposes, viz: installation of pre-payment meters; commercial disconnection; safety, theft and tamper; any other purpose. This will assist the court in scrutinising a sample of applications and identifying the correct notice period.

Each CSV file will be accompanied by a further file which comprises the written Information for each case, to be confirmed on oath. This will be filed by the court officer.

Acknowledgment

The Chief Magistrate is grateful for the assistance of District Judge (MC) Goozee and the Justices’ Legal Advisers and Court Officers’ Service (formerly the Justices’ Clerks’ Society) in the preparation of this direction.

2. The information the court must establish

This is based on the requirements of the 1954 Act and Ofgem’s guidance, developed in the pathfinder exercise carried out by District Judge (MC) Goozee.

Justices and judges must scrutinise the applications in light of the requirements of the 1954 Act and good practice as prescribed by Ofgem. The key questions are whether the operator has a right of entry under the relevant Act and whether admission is reasonably required to exercise it.

It is recommended that courts do not hear each application individually. Experience has shown that the relevant evidence is the same in the vast majority of cases. Thus the oral Information should be provided generically for every case on the list, followed by more detailed scrutiny of a sample of cases, from which the justice/judge can assess the validity of the applications.

In particular it is not necessary to require individual evidence of matters which are the same in each case, for example service of notices and provision of credit on pre-payment meters. Scrutiny should take the form of an examination of a dip sample of cases (see below). If the court is satisfied in relation to the cases sampled, the remaining applications can be granted en bloc following confirmation of the information on oath.

It is recommended that the court sample five applications for lists of under 100 cases and 10 for lists over that. Courts should however ensure that at least five cases where pre-payment meters are sought are sampled. Note that the information sought differs depending on the purpose for which the warrant is sought. Justices/judges must be provided with the application list, either digitally or printed, from which to draw the samples.

Unusual applications (particularly where it is intended to disconnect a residential supply) should always be made individually.

In general, for all applications (en bloc):

The applicant acts on behalf of the supplier as an employee or agent
Their evidence is based on computer systems which were operating normally when the date was obtained
The supplier provides energy to each of the occupiers
The supplier [and agent] have complied with the terms of the supplier’s licence and Ofgem’s Codes of Practice

Additional information for applications other than debt (usually theft, tamper or safety)

Notice has been sent to each occupier notifying them of the intention to apply for a warrant and their right to ask for a court hearing at least 14 days before the date of hearing
OR
Notice has not been sent due to the urgency or need to avoid tipping-off
[Where notice has been given] none of the occupiers on the list has responded asking for a court hearing
There are grounds to believe that someone in the premises has interfered with the supply, or damaged the fittings, or tampered with the meter
A member of staff has sought admission, giving at least 24 hours’ notice, and admission has not been granted
As a result there is a right of entry under the Gas Act 1986 and/or Electricity Act 1989.

Additional information for debt cases for non-domestic premises

A demand has been made for payment in each case
The provider has sent by post or email a written demand for payment to each occupier
Payment has not been made within 28 days of that demand
As a result there is a right of entry under the Gas Act 1986 and/or Electricity Act 1989 to disconnect the supply.
Notice has been sent by to each occupier notifying them of the intention to apply for a warrant and their right to ask for a court hearing at least 21 days before today
The sums owing are not in dispute to the knowledge of the supplier [and agent].
All outstanding debts exceed £200 per fuel, taking into account payments made after the notice was sent
If on entry the supplier/agent becomes aware that someone other than the customer is living in the premises they will investigate further.

Additional information for domestic pre-payment meters as a result of debt

The supplier has been authorised by Ofgem to install pre-payment meters
No staff are incentivised by the number of pre-payment meters they install.
All field agents wear body worn cameras/audio recording equipment and the recordings are retained for [period] [must be at least 5 years]
A demand has been made for payment in each case
The provider has sent by post or email a written demand for payment to each occupier
Payment in full has not been made within 28 days of that demand
The sums owing are not in dispute to the knowledge of the supplier [and agent].
We are not aware that any of the customers have a debt moratorium under the Breathing Space scheme.
All outstanding debts per fuel exceed £200 per fuel, taking into account payments made after the notice was sent
Notice has been sent by to each occupier notifying them of the intention to apply for a warrant and their right to ask for a court hearing at least 21 days before the date of hearing
As a result there is a right of entry under the Gas Act 1986 and/or Electricity Act 1989 in order to install a pre-payment meter. There is no intention to disconnect.
The supplier [and agent] have complied with the terms of the supplier’s licence and Ofgem’s PPM Guidance.
In none of the cases is the customer in the process of setting up a pre-payment plan.
If a pre-payment meter is applied it will be fitted with £30 credit or, where it is a Smart Pay as You Go meter, with a non-disconnection period.
Supplier/agent will attempt to make contact after installation, according to Ofgem’s guidance [at least 3 attempts via multiple channels in the first fortnight].
If supplier/agent becomes aware that a customer or member of their household is highly vulnerable (as defined by Ofgem) they will withdraw the installation.
If supplier/agent becomes aware that a customer or member of their household has medium vulnerability (as defined by Ofgem) they will stop and assess further.

Questions for sampled cases
All applications

Question	Notes
When was the HR notice sent (if it was)	If sent, must be at least 21/14 days before the date of hearing
What type of contact details do you have?	i.e. address, phone, email
How many contact attempts have you made and how?	For theft, safety and tamper, there may properly have been none

Additional questions for applications other than debt (usually theft, tamper or safety)

What are your grounds for believing there is a need to enter to inspect?	E.g. information from third parties, or supply known to continue but no metering
If no notice was given, why	E.g. urgency, need to avoid tipping off

Additional questions for debt cases for non-domestic premises

What dates were bills sent?	Must be at least 28 days before the date of hearing
How much is owed?	Must be over £200 per fuel
Has anything been paid?
Are you aware of anyone living in the premises?	Any details known, particularly are they the customer or a third party

Additional questions for domestic pre-payment meters as a result of debt

What dates were bills sent?	Must be at least 28 days before the date of hearing
How much is owed?	Must be over £200
Has anything been paid?
How many contact attempts have you made and how?	Must be at least 10 by multiple methods, less if they only have a postal address
What was the result of these contacts?
Have you made a welfare visit(s) and if so when	1 visit is required
What happened?	They should outline any contacts and any observations, e.g. was it empty, any indication of vulnerability
Are you aware of any high or medium risk vulnerability?	If some of the customers are medium risk, how was that assessed?

Summary of Ofgem PPM Guidance on Vulnerability

High Risk – Do not install

There is no-one within the household able to access, operate and/or top up the meter due to physical or mental incapacity or for technical reasons
Household requires a continuous supply for health reasons, including:
– dependency on any powered medical equipment (such as heart/lung ventilators, dialysis equipment, stair lift or hoist, refrigerated medication;
– dependency on carelines or health and wellbeing alarms;
– a medical dependency on a warm home (for example due to illness such as circulatory disease, sickle cell disease).
Households with a very elderly occupant (75+), without support in the house;
Households with children under 2
Households with chronic/severe or terminal health conditions (such as cancer, cardiovascular/ respiratory disease (COPD such as emphysema, chronic bronchitis) and organ failure).

Medium Risk – Further assessment required by suppliers on a case-by-case basis

Age: Children 5 and under
Other serious medical/health Conditions (such as neurological diseases (Parkinson’s, Huntingdon’s, cerebral palsy), respiratory conditions. nutritional issues (such as malnutrition) and mobility limiting conditions (osteoporosis, muscular dystrophy, multiple sclerosis)).
Serious mental/developmental health conditions (such as clinical depression, Alzheimer’s, dementia, learning disabilities difficulties, schizophrenia).
Temporary situations (such as pregnancy, bereavement).

Suppliers are encouraged to ensure that PPM installation is safe and reasonably practicable for any household with adults over 65 and/or children under 16.

Precautionary Principle

Suppliers must assume that any domestic customer faced with Involuntary PPM for debt is likely to be in financial difficulty and therefore more likely to self-disconnect.

Suppliers must therefore assess the ability to pay of any household they know or have reasonable cause to believe has a personal circumstance or characteristic that falls under the requirement for FAN, to understand if the customer will be unable to afford their ongoing energy needs. If a supplier concludes (taking into account meter type, aftercare support and reasonable energy saving assumptions) that the household will, frequently or for prolonged periods self-disconnect and risk causing significant consumer harm, then the supplier must consider PPM to be not safe and reasonably practicable.

In circumstances where suppliers have attempted contact via multiple channels and conducted a Site Welfare Visit but have been unable to establish with certainty the level of detriment in association with medium risk characteristics and/or financial assessments, suppliers should apply their own discretion on progression to Involuntary PPM, noting that any move to PPM may need to be reversed if vulnerabilities are subsequently discovered in the household.

Paul Goldspring
Senior District Judge (Chief Magistrate) for England and Wales