R Ofogba v Secretary of State for Energy and Climate Change
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 16 July 2014 |
| Neutral Citation | [2014] EWHC 2665 (Admin) |
| Docket Number | CO/13220/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 July 2014 |
[2014] EWHC 2665 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice William Davis
CO/13220/2012
Mr R Ofogba appeared as a litigant in person
Mr T Buley (instructed by Treasury Solicitors) appeared on behalf of the Defendant
The claimant, Mr Roy Ofogba, to whom I shall refer throughout this judgment as the claimant, is a tenant of the London Borough of Southwark. He is the sole occupier of a flat in the Wyndham Estate in that borough. It consists of five 21-storey tower blocks and three low rise blocks. There is a single boiler that serves all the buildings on the estate and all the dwellings within the various blocks. That boiler provides the central heating and the hot water for every single flat and dwelling. It is known as a district heating system.
The claimant, in common with all Southwark tenants whose homes are served by a heating system such as is used at Wyndham Estate, pays a flat rate charge for his heating. There is no immediate link between the charge he pays and his actual consumption. The charge is set annually in advance. It is based on the costs of running all of the district heating systems in Southwark.
In December of 2012, when the claim was instituted, it is said there were 98 separate district heating systems in Southwark. They were apportioned equally between all the tenanted dwellings, some 22,000 in all, the only weighting being to reflect the number of bedrooms in any given property.
In 2012 the claimant was paying just short of £15 a week for his heating and hot water. His case is that this is considerably more than if he had a meter when he would pay simply the metered charge based on his usage. The claimant is in difficult financial circumstances. He is not able to adjust the use of his heating to make economies, as those with meters would be able to do. The system operating at the property where he lives runs for 24 hours a day, 365 days of the year.
Southwark is apparently not the only borough that operates this system; the grounds of claim indicate that there were an estimated 150,000-odd tenants spread around London, and perhaps elsewhere in the country, who were subject to district heating systems.
The claimant now brings proceedings not against the London Borough of Southwark; they are merely an Interested Party because they are the landlords of the claimant. Rather, the proceedings are brought against the Secretary of State for Energy and Climate Change in circumstances which I will outline in a moment.
In his closing remarks, the claimant was anxious to emphasise that, for him, this claim was all about one thing: the unfairness involved in linking his heating charge to his rent. He was not, in the end, necessarily objecting to the heating charge being a standard rate in the way that I have described. But he did assert with, if I may respectfully say so, understandable passion that the current system was unfair to him and he asked me, not entirely rhetorically, "What do we do about my problem now? My problem now is not academic and it needs a solution." People, he said, are suffering.
I do not, for one moment, doubt the sincerity and potentially the truth of what he was saying, but he must understand that this claim has been brought against the Secretary of State for Energy and Climate Change in respect of particular aspects of decision-making by that government minister and his department. It is not and cannot be a general challenge to the way in which the claimant's heating charges are levied and I am not in a position — could not be in a position — to reach any final and concluded result or solution for him.
This is an application for judicial review in relation to the Secretary of State for Energy and Climate Change and positions adopted by him. The application was lodged on 10 December of 2012. The starting point of the application was European Directive 2006/32/EC, relating to energy services, adopted by the European Union in April of 2006. Article 13 of the Directive is the one that is potentially relevant to this case. Paragraph 1 of article 13 reads as follows:
"Member states shall ensure that, insofar as it is technically possible, financially reasonable and proportionate in relation to the potential energy savings, final customers for electricity, natural gas, district heating and/or cooling and domestic hot water are provided with competitively priced individual meters that accurately reflect the final customer's actual energy consumption and that provide information on actual time of use."
Lest it be thought that it is odd that the European Directive was directing its attention to district heating when that applied to a relatively limited number of people in the United Kingdom, it appears from documents that are before the court that in other countries within the European Union, very, very significant numbers of people are subject to district heating systems. Anything up to 50 per cent of all of those in the population in some countries.
In any event, the final transposition date for the provisions of the Directive, that is the date by which, insofar as they could be, the provisions were to be implemented, whether by law or by administrative act in member states, was 17 May 2008.
In the United Kingdom, there was no legislative provision made for metering district heating systems. There was a consultation carried out. It was in two stages. There was an initial consultation followed by a second consultation in August of 2007. It was entitled, this is the name of the consultation document, "Energy billing and metering, changing consumer behaviour". The consultation did express an initial view that installation of individual meters for final customers in district heating schemes should not be required by any government legislation or administrative act. Equally, further views were sought. The response to the consultation came in April of 2008. In essence, although it indicated that the Government wished to encourage individual metering in new district heating schemes, it was concluded that there would be a disproportionate cost in introducing such a scheme at existing district heating schemes. The proportionality was in relation to energy savings. That is not surprising since that is what the Directive concerned; energy efficiency.
The claimant's solicitors plainly were involved with the claimant for a considerable period because after that consultation they engaged in correspondence with the defendant. The detail of that correspondence it is not necessary to rehearse, save that on 9 June 2011, as part of the correspondence, the defendant sent a letter to the claimant's solicitors, in which this was said:
"I can confirm that we will be conducting a review of district heating in relation to article 13 of Directive 2006/32/EC. As part of conducting the review we will issue a document for consultation."
In due course, to the same solicitors, the department wrote again. This was on 13 September 2012 and this is the decision about which complaint is made in these proceedings. The relevant passage appears on the second page of the letter:
"DECC (an acronym for the department) did not issue a document for consultation on the heat metering aspects of the Energy Services Directive. At the time we wrote to you on 9 June 2011 we intended to consult on this issue. However, the BRE report on heat metering satisfied us that a case for heat metering had not been made and subsequently, on 22 June of 2011, the European Commission published details on the Draft Energy Efficiency Directive which, when implemented, will repeal the Energy Services Directive. DECC will be considering its approach to the Energy Efficiency Directive requirements for heat metering over the coming months, including whether to undertake a public consultation."
The claimant launched judicial review proceedings based on the premise that that letter was a decision not to hold a consultation on the 2006 Directive. That view probably was correct. There were six grounds for judicial review:
First, it was alleged that there had been an unlawful failure to implement article 13 of the 2006 Directive. The single judge, when considering that ground, refused leave. I shall have to return to it shortly because a later order of the court was that any renewed application for leave on that ground was to be considered by me today.
Secondly, there was a failure to consult on the review of district heating systems contrary to what had been said in 2011. Therefore, there had been a legitimate expectation and the failure to consult consequently was unlawful.
Third, it was asserted there was a breach of duty under section 149 of the Equality Act 2010, either the duty had been overlooked entirely or, insofar as it had been considered at all, the defendant had fallen far short of giving due regard to the need to eliminate discrimination.
Fourth, it was alleged that the defendant had misconstrued article 13. The defendant had not considered the position on a case by case basis. That is not asserting that the defendant should have considered the position in relation to each individual person affected by a district heating scheme; rather the defendant should have considered each local authority's position and each category of housing and how it was affected by such schemes.
Fifth, it was said...
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