[2024] UKUT 345 (AAC)

The substantive decision of the FTT was made on 5 July 2023 following hearings on 31 March and 1 April 2022 (see paragraph 26 above for first substantive decision made following these hearings, on 16 November 2022, which was then set aside and remade as the 5 July 2023 substantive decision).

The FTT in the substantive decision imposed a sanction of cancellation of Ms Heaney’s energy plan with effect from 19 March 2019.

The substantive decision is lengthy but the FTT helpfully provided a summary of its conclusions at the start of the decision. That summary reads as follows, and I have highlighted in bold the key aspects of it as far as this further appeal to the Upper Tribunal is concerned:

“1a. The Secretary of State was correct to find that HELMS, when providing Ms Heaney with an energy plan, was in breach of paragraph 2.7, and paragraphs 18, 47A and 54 of Annex B, of the Code of Practice.

b.

Certain statutory requirements are ‘qualifying conditions’. If any qualifying condition is not met, then an energy plan will not be a Green Deal plan. In this case:

i.

A subsequent registered EPC does not invalidate an earlier EPC. A qualifying assessment was undertaken.

ii.

The term ‘improvements’ at s.4(3) of the Energy Act 2011 refers to the generic improvements listed at Schedule 1 of the Green Deal (Qualifying Energy Improvements) Order 2012/2105. A change in the configuration of solar panels prior to installation did not breach a qualifying condition.

iii.

The Tribunal finds that HELMS did not comply with the obligation under regulation 30(3) to notify Ms Heaney in writing of the amount of the first year instalments attributable to each improvement. The Framework Regulations, at regulation 3, requires any notice to be given in writing. Nor, the Tribunal finds, was such notice given orally. This was a breach of a qualifying condition and Ms Heaney’s energy plan is not a Green Deal plan.

iv.

The restriction of a bill payer to an electricity supplier that takes part in the Green Deal does not breach regulation 34.

v.

Where the Framework Regulations refer to improvement-specific instalments or improvement-specific savings, this does not include separate finance charges and interest.

vi.

There is no requirement for the improvement-specific savings period for solar panels to be capped at the period for which FIT payments will be received.

c.

The appropriate sanction should be decided according to the principles set out by Judge Macmillan in her preliminary issues ruling issued on 29 December 2021 (“the Preliminary Decision”), and in this decision.

d.

Breach of a qualifying condition does not automatically lead to cancellation. The adverse consequences for the bill payer are nonetheless so serious that cases where a lesser sanction is proportionate are likely to be rare. Each case must be considered on its facts. In Ms Heaney’s case, the Tribunal considers cancellation to be the appropriate sanction.

e.

The effective date from which a sanction can be effective is, in cases where HELMS was the provider and GDFC Assets Ltd is now the payee, the date of complaint to the Secretary of State. Here, that date is 19 March 2019.

f.

If the Tribunal had not found that a qualifying condition was breached, then the decision on the 30% reduction imposed by the Secretary of State would have been as follows:

i.

‘Substantive loss’ and harm need not be pecuniary.

ii.

The Secretary of State is not required to produce a[n] overly-precise or forensic calculation of the exact financial loss claimed by a complainant, and is entitled to take a balanced approach to evidence and fact-finding.

iii.

In each case recognition should be given to other types of harm, the public interest factors engaged in cases of non-compliance, and deterrence. The Secretary of State is entitled to apply a percentage figure reduction to achieve this outcome on a broad brush basis.

iv.

The Tribunal previously decided as a preliminary issue that the effect of a sanction on the relevant person is only relevant to proportionality in exceptional circumstances, and that any ‘windfall’ benefit to the bill payer is only relevant to the level of harm suffered and redress. By reason alone of that ruling, the Secretary of State placed undue weight on irrelevant factors when deciding on the appropriate sanction. We would have allowed the appeal and remitted the decision to the Secretary of State. Had the Secretary of State not erred in placing the weight he did on those factors, we would have dismissed the appeal and confirmed his decision.