![[2024] UKUT 345 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
The decision of the Upper Tribunal is to allow GDFC Assets Limited’s appeal
The decision of the Upper Tribunal is to allow GDFC Assets Limited’s appeal.
The decisions of the First-tier Tribunal made on 29 December 2021 and 5 July 2023 under case number NV/2020/0030 were made in error of law and are set aside.
The Upper Tribunal gives the decision the First-tier Tribunal ought to have given.
The Upper Tribunal’s decision is to dismiss Ms Heaney’s appeal from the Secretary of State’s sanction decision of 6 October 2020.
This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
Introduction
This appeal is a test case about what are termed ‘green deal plans’. It is the first case concerning the relevant statutory provisions which has come before the Upper Tribunal. A number of cases are stayed before the First-tier Tribunal to await the decision in this appeal.
The appeal concerns a sanction of reduction imposed in the first instance by the Secretary of State on the basis that a ‘green deal plan’ had been mis-sold to an energy consumer (Ms Heaney). On appeal, the First-tier Tribunal changed that sanction to one of cancellation of the green deal plan. The issue before me is whether the First-tier Tribunal erred in law in making that cancellation decision.
- 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