Ben Christman
‘Making a Case for Legal Research on Fuel
Poverty in the UK’
Sheffield Postgraduate Fuel Poverty
Symposium
16/11/12
Introduction - Aims of the Talk
1. Mapping Fuel Poverty Law
2. Can the legal response to fuel poverty be
improved? The Warm Homes and Energy
Conservation Act 2000 (WHECA).
3. Legal Research on fuel poverty
1. Mapping Fuel Poverty Law
Fuel Poverty Strategy
• Warm Homes and Energy Conservation Act 2000 (fuel poverty strategy and definition).
Schemes/Duties to Help Implement the Fuel Poverty Strategy
• Sustainable Energy Act 2003 – duty to publish a ‘sustainable energy report’ on the progress
made towards ‘reducing the number of people living in fuel poverty in the United Kingdom’
• Climate Change and Sustainable Energy Act 2006 - duty to have regard to ‘the desirability of
alleviating fuel poverty’ and for local authorities to publish ‘energy measures’ reports which
consider fuel poverty.
• Green Energy (Definition and Promotion) Act 2009 – general duty to have regard to ‘the
desirability of alleviating fuel poverty’ in relation to duties on microgeneration.
• Climate Change Act 2010, S10(2)(e) – CCC/SOS to consider fuel poverty impacts when making
‘carbon budgets’.
• Energy Act 2010 – SOS given powers to ‘create schemes for reducing fuel poverty’.
• Warm homes Discount Regulations 2011 – powers to carry out the ‘Warm Homes Discount
Scheme’.
• Forthcoming Energy Act (2013?) – electricity market reform likely to have fuel poverty
impacts.
1. Mapping Fuel Poverty Law
Case Law
• The Queen on the Application of Friends of the
Earth and Others v Secretary of State for Energy
and Climate Change [2009] EWCA Civ 810.
2. WHECA 2000
A. WHECA 2000 – fuel poverty strategy
requirements:
(i) Aim.
(ii) Content.
(iii) Provisions for review.
B. Alternative legal responses to fuel poverty?
2. WHECA 2000
A. (i) Aim of the Fuel Poverty Strategy
S2(1) - It shall be the duty of the appropriate authority to prepare and to
publish . . . a strategy setting out the authority’s policies for ensuring . . .
that as far as reasonably practicable persons do not live in fuel poverty.
Analysis
• Known as a ‘target’ or an ‘outcome’ duty – ‘as far as reasonably
practicable’ - weak, non-mandatory ‘legalese’ – provokes an unfavourable
comparison with the Climate Change Act 2008.
• Judicial interpretation of ‘as far as reasonably practicable’ (FOTE/Age
Concern case) - “this is the language of ‘effort’ to achieve targets, rather
than of a guarantee that targets will be reached”.
• Polycentricity issues (King).
• Dangers of legal symbolism/hollowness (Smith).
2. WHECA 2000
A. (ii) Content of the fuel poverty strategy
S2(2) – The strategy must –
(c) Specify interim objectives to be achieved and target dates for achieving
them.
(d) Specify a target date for achieving the objective of ensuring that as far as
reasonably practicable persons in England or Wales do not live in fuel
poverty.
S2(3) – target date no more than 15 years after the date on which the strategy is
published (2016).
Analysis
• No mandatory interim objectives – offers flexibility, perhaps too much?
• Climate Change Act 2008 – government must set 5 year carbon budgets.
• Clear final goal of ending fuel poverty by 2016 – weak commitment.
2. WHECA 2000
A. (iii) Review of the Strategy
S2(6) – The Secretary of State shall. . . from time to time assess the impacts of
steps taken (to implement the strategy) . . . from time to time publish
reports on such assessments.
Analysis
• Weak review obligations – a result of which little review and learning has
taken place – although see duties under Climate Change and Sustainable
Energy Act 2006 to produce ‘energy measures’ reports.
• Need for government to reflect on the steps taken and consider
improvements – known as ‘reflexive’ law (Teubner and Orts).
• No provision for strategy review? No duty to amend the strategy if interim
targets are not met.
2. WHECA 2000
B. Alternative Legal Responses
(i)
Fuel poverty commission? e.g. UK Equality and Human rights
commission.
Issues – Extent of powers, costs, political aversion to ‘quangos’,
accountability issues, relationship with FPAG.
(ii)
Rights-based approaches – Create a new human right: a ‘right to a warm
home’? Improve existing rights such as housing rights? Use existing
rights creatively – e.g. ECHR article 2, the ‘Right to Life’ – could this be
used to tackle winter deaths?
Issues with rights approaches – enforceability, individualism, vagueness,
invites legal battles over social policy.
3. Legal Research on FP
• What is the state of knowledge?
• Danger of ‘legalism’ – can the law help to solve
fuel poverty?
• My research – analysis of the legal response to
fuel poverty from a ‘climate justice’ perspective.
Conclusion
• WHECA 2000 is well-intentioned – but the
obligations within it are weak and have been
ineffective. Fuel poverty needs a more
sophisticated legal response.
• More broadly, fuel poverty seems ripe for legal
research, reform and innovation.
• Please get involved – other suggestions and
research collaboration are welcome!