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Ground 7 – proportionality and sanction if not a green deal plan
Ground 7 – proportionality and sanction if not a green deal plan
The final ground of appeal concerns whether the FTT was wrong to find that the plan should be cancelled even if it was not a green deal plan.
Given the respects in which I have already found the FTT erred in law in deciding the energy plan was not a green deal plan and its erroneous approach to the proportionality test it had to apply and to sanction, and given I have found Ms Heaney has a green deal plan, I do not consider it would be appropriate for the Upper Tribunal to address this (now hypothetical) scenario afresh.
I may add that FTT in its preliminary decision seemed to consider that if the energy plan was not a green deal plan, that ended the FTT’s adjudicative jurisdiction: see paragraph 32 of the preliminary decision. The FTT in its substantive decision appears to have taken a different view: see paragraph 81 of that decision. The view that the FTT’s jurisdiction does not extend to a sanction decision where the energy plan is not a green deal plan may be borne out by section 35(1)(a) of the Energy Act 2011, which might be said to limit the right of appeal to the First-tier Tribunal (and thereon to the Upper Tribunal) to issues arising in respect what are green deal plans. The contrary argument might be that section 3(3)(i) of the Energy Act 2011 is broad enough to confer a right of appeal in respect of the consequences of non-compliance with any requirement, and thus the consequences of non-compliance with regulation 30(3)(c), of the Framework Regs. I have, however, heard no argument on this jurisdictional issue. It provides an additional reason why I do not address ground 7.
- Heading
- The decision of the Upper Tribunal is to allow GDFC Assets Limited’s appeal
- The statutory scheme
- A notice under these Regulations— must be in writing; and
- The improvement-specific instalments must not exceed the improvement-specific first year savings The improvement-specific payment period must not exceed the improvement-specific savings period
- Improvement-specific instalments – exceptions to fixed amount
- Guarantees to be given by green deal providers
- The guarantee must include the requirements set out in Schedule 3 (guarantees) Condition as to other matters – confirmation from bill payer and owners
- the relevant first bill payer; or subject to paragraph, the relevant subsequent bill payer; and
- A must pay instalments under the plan for such time as A is the bill payer, and the other terms of the plan which bind a bill payer will bind A
- Sanctions for breaches of the relevant requirements by green deal providers
- withdrawal
- the following may be imposed—
- that the Secretary of State intends to impose the sanction
- details of the early payment discounts
- the reason for imposing the sanction; and information on appeals which may be made under regulation 87
- Appeal to First Tier Tribunal
- The Tribunal may suspend a decision pending determination of the appeal The Tribunal may—
- Relevant factual background
- The decisions of the First-tier Tribunal
- Preliminary decision
- Substantive decision
- I will return, as necessary, to where aspects of this summary were unpacked by the FTT The FTT’s grant of permission to appeal
- The grounds of appeal
- Discussion and conclusion
- Grounds 2-4 – legal effect of non-compliance with regulation 30(3)(c) and whether written or oral notification is required by that regulation
- Nor does regulation 30(3)(c) containing a condition sit oddly with, or indeed lie outwith ( ultra vires ), the enabling powers of the parent Act under which it was made. Section 1(3) (b) of the Energy
- Grounds 5 and 6 – proportionality and approach to sanction
- Ground 7 – proportionality and sanction if not a green deal plan
- Conclusions