One of the strange things about housing law is how random provisions move in and out of fashion in response to the problems of the time.
S222 injunctions have been around since 1972 but people rarely use them these days.
Same with Works in Default. The council have had the powers to do repairs and bill the landlord for decades but few use them.
I want to tell you here about another one that has taken its place in the museum of landlord and tenant law oddities but despite being covered in dust is still very much alive and well and could do with a makeover.
Section 33 of the Local Government (Miscellaneous Provisions) Act 1976.
This tool in the box is available where the renter is paying rent inclusive of bills and the supply has either been disconnected or is about to be, due to non-payment of the bill.
The council can exercise its powers under s33 to pay the bill and recover the money from the tenant, including interest “at such reasonable rate as the council may determine” and can either register a charge on the property or recover the money by the renter paying the sum through what would normally be their rent payments.
The landlord is not allowed to treat the missing money as rent arrears.
Back in the 1990s I did loads of these, simply because in large HMOs the rent was nearly always inclusive and the common tactic of the time, if the landlord thought they were using too much heating in the winter, would be to leave the bill unpaid and under threat of disconnection.
Things have changed these days and in large HMOs where the rent is inclusive, its more likely that the landlord is using decommissioned or tampered meters but this isn’t always the case and on occasion you still do get situations where s33 is feasible.
Surprisingly the hardest part should actually be the easiest bit, getting the supply company to give you details that will allow you to pay them.
In line with GDPR, Data Protection and probably just good practice, they wont discuss an account with anyone who isn’t the account holder, which in most instances will be the landlord, who isn’t going to help you out for obvious reasons.
After around 10 phone calls you can usually get to talk to someone who is at least prepared to listen to what you have to say and is reasonable enough to try and think of a way to help.
But then you have to go through a similar process of trying to get the council’s finance team to understand why you are asking them to pay somebody else’s gas bill and to create a method of payment for recovery of the debt through a mechanism that the council’s computerised system, increasingly Capita, probably doesn’t have.
These are procedural details however and procedures can always be tweaked by getting the right people around the table to work something out.
Bearing in mind that no heating at the wrong time of year would be a Cat 1 Hazard, rendering the household officially homeless under s177 of the Housing Act 1996 and dealing with that problem will cost a lot more than paying a bill, so its worth several people meeting up to create a pathway for s33 to be done smoothly.
What about the push for smart meters? I hear you say. These will make s33 largely redundant.
The farcical national rollout of smart meters for every home was originally supposed to be here by the end of 2020 but energy firms aren’t doing too well on that front and so the deadline was put back to 2024, now it been put back again to 2025, so there is still plenty of time for s33 to be applicable.
Smart meters aren’t proving very popular with the public and take up is not great, despite the advertising that makes it look like you can be totally in charge of your usage and billing.
It has not escaped public attention that unlike conventional meters, you can be disconnected for non-payment remotely. No need to let somebody into your home, despite reassurances of the utility companies that this will only happen in extreme circumstances.
People I speak to just don’t like the idea that a voice on the end of a phone or even just words in a “Live chat” window, have their finger on your button.
Energy companies also have a misplaced faith that smart meters cant be tampered with and massively reduced the size of their revenue protection teams as a result but a competent electrician can hack into the meter further back down the line, even in the street and as so much meter tampering is done by skilled electricians, this seems to be a level of naivete bordering on the daft.
So if you are presented with a problem of disconnection on a rent inclusive arrangement, bear in mind there is something that can be done.
Its not smooth or without its frustrations but it can work and you can always use the threat of interest and the possibly of a charge registered on the property, as leverage when negotiating with the landlord.
By Ben Reeve-Lewis