Background - Fuel poverty and the duty to eradicate it

Fuel poverty is the condition in which a household needs to spend more than 10% of its income on fuel in order to heat its home to an adequate standard of warmth.

In the UK - the world's sixth largest economy - it has been and remains a serious social problem to which many deaths are attributed each winter.

In the Warm Homes and Energy Conservation Act 2000, the Government decided to address this issue by inviting Parliament to place the Secretary of State under a legally-binding obligation to eradicate fuel poverty.

Section 2(1) of the Act said:

"It shall be the duty of the [Secretary of State] to prepare and publish...a strategy setting out [his] policies for ensuring, by means including the taking of measures to ensure the efficient use of energy, that, as far as reasonably practicable, persons do not live in fuel poverty."

Section 2(2) added that it was the duty of the Secretary of State in the strategy to "specify a target date for achieving the objective of ensuring that as far as reasonably practicable persons...do not live in fuel poverty". Once the strategy had been published he was required to "take such steps as are in [his] opinion necessary to implement the strategy".

The Government's strategy for England (in Scotland, Wales and Northern Ireland fuel poverty is the responsibility of the devolved administrations, with which this case was not concerned) duly set target dates. Fuel poverty in the case of the vulnerable (such as the elderly and disabled) would be eradicated by 2010, and fuel poverty for everyone else by the (strikingly specific) date of 22 November 2016. But in both cases, following the language of the Act, only 'so far as reasonably practicable'.

After some initial progress towards meeting the targets, things rapidly went backwards. There were 1.2 million English households in fuel poverty in 2004 and 2.4 million by 2006.

The case

Since by 2008 it had become clear that the target dates could not possibly be met, Friends of the Earth, together with Help the Aged and Age Concern, challenged the Secretary of State by way of judicial review. The case failed at first instance but was then appealed.

The argument for the appellants was essentially that the duty on the Secretary of State was to achieve the eradication of fuel poverty and not just to make an attempt to do so. Although the Act qualified the duty by reference to what was 'reasonably practicable', this was not a get-out clause from the basic obligation. In particular, it did not allow the Secretary of State to avoid the duty just because budgets were tight. The budget must follow the obligation; not the other way round. The qualification merely meant that, exceptionally, the duty should not be regarded as absolute if it would not be possible to meet the target without totally disproportionate effort.

Maurice Kay LJ, giving the leading judgment in the Court of Appeal, rejected these arguments. He found that the language of the Act pointed to the Secretary of State being under a duty to make efforts to eradicate fuel poverty but not a duty to ensure that it was eradicated. In particular, in considering what was 'reasonably practicable', he was entitled to take into account the budgetary constraints under which he operated.

There was still a minimum level of endeavour which the Secretary of State needed to reach. But the court seemed prepared to set this bar at a very low level. If the Secretary of State provided in the fuel poverty strategy that he would take certain steps such as making winter fuel payments to the elderly, then he would breach the minimum standard if he failed to make any winter fuel payments. But there was no duty on him to provide within the strategy for those steps to be taken.

In short, the Act imposed on the Secretary of State a duty to try, but not an obligation to succeed. Although it was quite clear that the target dates were going to be missed, and in spite of the statutory framework underpinning them, he was not legally required to do more.

Commentary

The judgment is hardly surprising. Judicial review is, classically, not an appropriate vehicle for resource allocation decisions, which are more properly matters for democratic accountability through Parliament.

Although Parliament decided in 2000 to place the Secretary of State under a duty to eradicate fuel poverty, it also approved the departmental estimates for each subsequent year and passed annual Appropriation Acts in which departmental funding was allocated. For instance in 2006, by which time 2.4 million English households were in fuel poverty, the fuel poverty budget of the Secretary of State (which included staffing costs for the relevant internal team) was a trivial £267,154. In practice, the Secretary of State's ability to meet his statutory duties was of course limited by the money made available to him under these measures.

Moreover, once energy prices began to rise in the middle of this decade, it was statistically inevitable that progress being made towards fuel poverty targets would be reversed. And given the UK's current fiscal deficit, it is unrealistic to suppose that ever larger amounts of money are going to be poured into a single policy initiative - however important - or that any court would be comfortable in making an order which had that effect. The 'reasonably practicable' language of the statute gave the Court of Appeal in this case an obvious route to avoid a politically unfeasible judgment.

On the other hand, we might ask what a statutorily mandated target is worth if it can be so easily overridden. Why did Parliament impose a duty on the Secretary of State at all if not to indicate that the matter was so important that it should stand above the usual give and take of the annual spending round?

Clearly the Government could, in the time-approved manner, simply have made a public statement of its policy intentions in relation to fuel poverty without also codifying them in legislation. And reading the judgment of the Court of Appeal, one might wonder if that would have made any significant difference to their legal status and enforceability.

Perhaps the biggest problem with the case therefore is that it risks reducing the opening provisions of the Warm Homes and Energy Conservation Act 2000 to little more than a Parliamentary sanctioned press release, subject to only minimal legal sanction. This is not obviously an attractive way of viewing statute.

Perhaps the most interesting aspect of the case is that it is unlikely to be a one-off. As Maurice Kay LJ said:

"Until recently, one would not have expected legislation to impose upon central government a model which defines the route from policy, via strategy, to implementation in terms of a legal obligation within a temporal framework. However, in so doing...the 2000 Act is not unique...

There are two striking things about all this. The first is the relatively sudden upsurge of this type of target-setting, duty-creating legislation. The second is the variety of formulations in relation to such duties, each model attracting its own interpretation. On any view, this is a rapidly developing area of public law with an obvious and concerning potential for litigation."

In a series of important statutes - including the Climate Change Act 2008 and the Child Poverty Bill currently before Parliament - Parliament is now setting the Government targets to deliver certain policy objectives by specified target dates. Are these obligations likely to be any more enforceable than the duty to eradicate fuel poverty?

Interestingly, the answer is 'perhaps'. As Maurice Kay LJ pointed out, many of these duties are drafted in more absolute terms than those under the Warm Homes and Energy Conservation Act 2000. They are not qualified by exceptions based on reasonable practicability. It is therefore less obvious that a court would find a route to treat them as something other than strictly binding, even when under intense budgetary pressures.

Nonetheless, Friends of the Earth inevitably means that those other statutes need to be looked at carefully, and cannot be assumed to be as binding as they might first appear.

It is almost inevitable that, in due course, these issues will be tested again in further judicial review challenges.