Wyldecrest Parks (Management) Ltd v Susan Kram & Ors

Introduction

1. This is an appeal from the FTT’s decision that the appellant has overcharged the residents of the park for electricity during the period from September 2022 to February 2024, because it has charged them more than it paid for its electricity to its supplier.

2. The appellant has been represented by its Estates Director Mr David Sunderland, and the respondents by the Tranquillity Park Residents Association and by Ms Susan Kram. The names of the respondents are set out in the Schedule to this decision The legal background

3. Tranquility Park is a mobile homes park, acquired by the appellant Wyldecrest Parks (Management) Limited three years ago. Its residents occupy their homes under agreements that are subject to the protection of the Mobile Homes Act 1983 . Section 4 of that Act gives the FTT jurisdiction to determine any question arising under the Act or any agreement to which the Act applies.

4. The 1983 Act implies terms into the residents’ agreements. Among them is paragraph 21 of Schedule 1, Chapter 2 to the Act , which provides: “The occupier shall— (a) pay the pitch fee to the owner; (b) pay to the owner all sums due under the agreement in respect of gas, electricity, water, sewerage or other services supplied by the owner; …”

5. As the Tribunal observed in PR Hardman & Partners v Fox and others [2019] UKUT 248 (LC) , that paragraph requires the occupier to pay the pitch fee, but does not itself impose an obligation to pay for electricity and other utilities; such an obligation has to be contained in the agreement itself. Consistent with that, a pitch fee is defined in paragraph 29 of Schedule 1, Chapter 2 as: “the amount which the occupier is required by the agreement to pay to the owner for the right to station the mobile home on the pitch and for use of the common areas of the protected site and their maintenance, but does not include amounts due in respect of gas, electricity, water and sewerage or other services, unless the agreement expressly provides that the pitch fee includes such amounts”.

6. Agreements between residents and site owners tend to be in a standard form. In PR Hardman & Partners v Greenwood and others [2017] EWCA Civ 52 the Court of Appeal had to consider the meaning of the following wording which is commonly found in agreements between site owners and mobile home residents: “3(a) To pay to the owner an annual pitch fee of [left blank] subject to review on 1 February annually … (b) To pay and discharge all general and/or water rates which may from time to time be assessed charged or payable in respect of the mobile home or the pitch (and/or a proportionate part thereof where the same are assessed in respect of the residential part of the park) and charges in respect of electricity gas water telephone and other services.”

7. The Court of Appeal held that clause 3b required the residents to pay to the owner only what it had paid to third-party suppliers for electricity, gas, water and so on; it did not allow the site owner for example to impose an administration charge for reading the meters. At paragraph 33 Sir Terence Etherton, MR, said: “The appeal turns on the proper meaning and effect of paragraph 3(b) of Part IV of the agreements. I consider it is clear that the "charges" mentioned in the second part of that paragraph are charges by third party utility suppliers and the "other services" mentioned are those provided by third parties in respect of third party utility supplies to the pitch. Payment for other third party contractors and for services undertaken by Hardman themselves is not recoverable under paragraph 3(b) but can be recovered only as part of the site fee.”

8. That was not a decision referred to by either of the parties before the FTT, nor by the FTT itself, but as we shall see it is relevant to the dispute between the parties for reasons that were not known to the FTT but have become clear in the appeal.

9. Commonly a park homes site provider purchases gas, electricity etc and in turn supplies it to the residents. The Maximum Retail Price Direction (“the MRP”) made by OFGEM under section 44 of the Electricity Act 1989 provides that where a person resells electricity purchased from an “authorised supplier”, as Wyldecrest does to its residents, it can charge them only what it pays; it may not make a profit. The authorised supplier in this case was NPOWERTQ at the start of the period in dispute, and is now Shell. The direction provides examples showing how to calculate the price to be passed on to residents, how to share the standing charge, how to apportion charges, and what to do when charges have been estimated so that there has been an under- or over-payment. The MRP does not apply to electric vehicle chargers, nor to electricity generated by a site provider and sold to its residents. The application to the FTT

10. The respondents to this appeal are all residents at Tranquillity Park. In September 2023 an application was made on their behalf by “Tranquillity Parks Residents Association” to the FTT in its jurisdiction under section 4 , asking the FTT to decide whether they have been overcharged for their electricity by Wyldecrest between 1 November 2022 and 30 November 2023.

11. The supply of electricity to the park is metered, and the electricity supplied to each mobile home is measured by a sub-meter. The residents produced in the FTT a schedule showing what they had been charged during the period in issue and what Wyldecrest had been charged by its electricity supplier; they had access to that information because the Mobile Homes Act 1983 requires the site owner to produce it (in paragraph 22 of Schedule 1, Chapter 2). That comparison was not an easy one to make because, as the FTT explained, Wyldecrest charged the residents for electricity over different periods from those for which it was billed. But the difference is obvious once the two-year period is considered as a whole; the residents’ schedule showed that they had been charged £58,834.04 during that time, and that that was £39,194.92 more than Wyldecrest had paid to its supplier.

12. The residents had also been charged for more units than Wyldecrest had paid for. So the issue was not that they were being charged too much per unit, but that they were being charged for more units than Wyldecrest was being charged for. Indeed, the residents agreed both that the amount Wyldecrest charged per unit was correctly calculated in accordance with the MRP, and that each of them had been charged for the correct number of units – there was no suggestion by the residents that their sub-meters were inaccurate.

13. So how were the residents being charged for more units than Wyldecrest was paying for? The FTT decided that Wyldecrest had overcharged, but said that it was impossible to calculate the amounts overpaid. It suggested that the problem might be that the residents were paying for the electricity consumed by Wyldecrest’s offices and other property on the site. In the absence of the necessary information the FTT said that it was not able to decide that Wyldecrest was in breach of the MRP; it directed Wyldecrest to provide a “reconciliation” showing what it had paid to its supplier over the period in dispute and agree with the residents what the overpayment had been, and then make a repayment with 28 days of the FTT’s decision. If agreement proved to be impossible the FTT said that the residents could apply to the FTT for it to decide the amount of the overpayment. The appeal

14. Wyldecrest appeals, with permission from this Tribunal, on three grounds. Ground 1

15. The first ground is that the FTT should not have accepted an application from the residents’ association; the individual residents should have been the applicants. I agree; the residents’ association is an unincorporated association without assets and it is not appropriate or practicable for it to be a party to litigation. Following discussion at the hearing Ms Kram confirmed that she had no objection to the individual residents being named as respondents with the Association being their representative, and they are designated in that way in the appeal decision. In circumstances where a number of residents wish to raise the same issue with the FTT there is no reason why they should not jointly make a single application. That disposes of ground 1. Ground 2

16. In its grounds of appeal Wyldecrest said that its second ground arose from the fact that while electricity is supplied to the park by an authorised supplier, “there is also a solar farm which feeds electricity into the park”. Accordingly, it was argued, the FTT had been wrong to determine that the MRP applied to electricity being fed into the park from a solar farm and not from an “authorised supplier” as specified in section 44 of the Electricity Act 1989 .

17. I appreciate that that ground of appeal comes out of the blue after my account of what the FTT decided. It is clear to me, and the parties to the appeal agreed at the hearing, that the FTT did not know that electricity was supplied to the park from a solar farm.

18. There was no mention of solar power in Mr Sunderland’s statement to the FTT. Wyldecrest also filed in the FTT a statement from Ms Jodie Thompson, its then Utilities Manager, who mentioned briefly that there were solar panels at the park but said that the equipment was “not our asset and is owned and leased by a private supplier”. The FTT at paragraph 38 of its decision said that the solar panels were “leased to a third party which benefits from the Feed in Tariff”. The FTT recorded the residents’ assertion that free solar electricity was not taken into account when the residents were charged for electricity; and it mentioned, very briefly, an electrician’s report stating that solar power was fed into the park supply. But it also recorded Ms Thimpson’s evidence, at its paragraph 45, that “residents have only been charged with the electricity supplier charged [Wyldecrest]”. So whilst the FTT was aware of the solar panels it did not regard them as relevant to its decision. It recorded Mr Sunderland’s evidence that any discrepancy between what the residents paid and what Wyldecrest paid for electricity arose from the different billing periods.

19. Mr Sunderland explained to me at the appeal hearing that at the time he made his statement to the FTT he was unaware of the fact that the solar panels, leased to a third party, fed half the electricity they produced into the park (the rest being exported to the grid). He was unaware that the electricity the residents were being charged for was not all from the authorised supplier but was also solar power, which came free so far as Wyldecrest was concerned. But having now looked into things he acknowledged that the residents were being charged, at the rate calculated in accordance with the MRP, not only for electricity from the grid but also for the free solar power.

20. That, I believe, explains why there was no dispute about the calculation of the unit price – taken from the supplier’s invoices, dividing the total charge by the units consumed and sharing out the standing charge – and why the residents were able to agree that they had been charged for the correct number of units. So they had, but less than half of those units had come from the external supplier; the rest came from the solar panels and had cost Wyldecrest nothing. Hence the overcharge.

21. Mr Sunderland said he thought the solar power might amount to about half what the residents consumed, but could offer nothing by way of justification of that figure. I asked if he was prepared to agree with the residents’ schedule which showed that the total charge to the residents of £58,834.04 exceeded what had been paid to the supplier by £39,194.92. He very helpfully said that he could not disagree with that figure, and I find that that was what the residents were charged for solar power during the period in dispute.

22. I asked Mr Sunderland on what basis Wyldecrest was entitled to charge for the solar power, which cost it nothing. He helpfully acknowledged that the agreements with the residents (which Wyldecrest could have produced but did not) were in standard form. I take it that that means they contained standard provisions for payment for utilities such as those considered by the Court of Appeal in PR Hardman , which as we have seen allow the site owner to require the residents to pay only what it has paid the third parties for the supply of utilities. Mr Sunderland acknowledged that there was no provision in the agreements for the residents to pay for the free solar power.

23. At the appeal hearing I expressed the view that the FTT’s decision must be set aside because it was made on the basis of inaccurate evidence because Wyldecrest did not tell the FTT about the solar power. On reflection I have concluded that it need not be set aside; the FTT was correct in that the residents were overcharged, because they paid more for their electricity than Wyldecrest had paid the supplier. That decision stands, although the reason why it is correct is now apparent whereas the FTT found it impossible to account for the discrepancy.

24. However, I set aside the FTT’s directions that Wyldecrest produce a reconciliation of the charges since Mr Sunderland has agreed the amount of the overcharge. Ms Kram argued that Wyldecrest should reimburse the overpayment and I agree. The FTT, and the Tribunal, have power to order repayment under section 231 A(4)(a) of the Housing Act 2004 .

25. The residents’ association has no bank account and is not able to receive a payment for the residents. The amount to be repaid will be less than £39,194.92 because some residents have not paid in full. Ms Kram agreed that within 21 days of the appeal hearing the residents will provide a schedule showing what is due to each of them; by 16 December 2025 Mr Sunderland will respond with any comments on that schedule and the Tribunal will then make an order which will require payment very shortly after that date, since Wyldecrest is now on notice of the repayment it needs to make.

26. One of the observations made by Wyldecrest in its grounds of appeal is that if a site owner is not allowed to charge for electricity supplied from solar panels there will be no incentive for it to invest in green energy. The short answer to that is that Wyldecrest did not install the solar panels in this case and has acknowledged that the solar energy came to the park free of charge. The longer answer is that a site owner wanting to install solar panels and to recoup its investment by charging the residents for electricity can consult its residents with a view to a consensual amendment to their agreements, providing for a payment which would compensate the site provider for its input while giving the residents a cheaper supply of power than they would have from the mains. So there is no disincentive here for the provision of solar panels; but equally there is no power for a site owner to generate solar power and charge for it either at a rate calculated pursuant to the MRP or at any rate that is not provided for in its agreement with its residents. Ground 3

27. Ground 3 was that the FTT also directed that the sub-meters in the mobile homes be certified in accordance with Schedule 7 to the Electricity Act 1989 . Mr Sunderland pointed out that Schedule 7 requires certification for main meters, such as the main meter in the park, but not for sub-meters such as those in the mobile homes.

28. My impression from a brief perusal of the legislation is that that is right, but I have not been given detailed legal submissions and I make no decision about it. There was no complaint to the FTT about the accuracy of the sub-meters; quite the contrary, it was agreed that the residents had been charged for the appropriate number of units. I set aside the FTT’s direction about the certification of the sub-meters because it appears to have been unnecessary. Conclusion

29. In summary, although grounds 1 and 3 succeed, the outcome of ground 2 is that the FTT’s decision that the residents were overcharged for their electricity is upheld and the appeal fails on that ground. I have set aside the directions made by the FTT in consequence of that decision and I substitute a direction that the sum of £39,194.92, less whatever part of that sum has not been paid to Wyldecrest by the residents, is to be repaid to the residents. The Tribunal will make an order setting out the amount to be paid to each resident once it has been provided with a schedule in accordance with the directions I gave at the hearing.

30. I have not set aside the FTT’s decision that the appellant shall repay to the residents the application fee paid to the FTT, in the sum of £100. Rather than try to apportion that sum, the Tribunal’s order will require that the appellant repay it to Ms Kram who will deal with it by agreement with the residents. Judge Elizabeth Cooke 20 November 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission. Schedule: the respondents Pitch number 1 Mrs. Maureen Mills 2 Mrs. Patricia Lawson 3 Mr. & Mrs. Dave and Sue Hodges 4 Mr. & Mrs. Richard and Louise Rowley 5 Mr. & Mrs. Nick and Pam Buckley 6 Mr. & Mrs. Bruno and Julie Grasso 7 Mr. Ian Escott and Mrs. Susan Kram 8 Mr. Clive Warner 9 Mr & Mrs. Geoffrey and Rita Lock 9 Ms. Helen Walsh & Ms. Jeanette Morgan 10 Mr. & Mrs. Dave and Sandra Jennings 11 Mr. & Mrs. Rex and Kim Shiel 12 Ms. Jan De Ville 13 Mr. & Mrs. Peter and Elaine Lufflum 14 Mr. & Mrs. Geoffrey and Alison Hunt 15 Mr. & Mrs. John and Linda Draper 16 Mr. & Mrs. Roger & Pam Morris 17 Mr. Martin Painter 18 Mrs. Carole Fussell 25 Mr. & Mrs. Michael and Barbara Conalty 27 Mr. Alan Forman 35 Mr. & Mrs. Dave & Bernie Forster 36 Mr. & Mrs Paul & Bev Stockham 39 Mr. & Mrs. Paul & Bev Brown 48 Mr. Steve Harris & Ms. Maria Featherstone 51 Estate of Mrs. Thelma Greaves