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The grounds of appeal
The grounds of appeal
GDFC Assets Limited advances seven grounds of appeal. The first four grounds concern notification under regulation 30(3) of the Framework Regs and whether the consequence of a breach of regulation 30(3)(c) of those regulations is that the energy plan is not a green deal plan. The fifth and sixth grounds of appeal are about the FTT’s approach to sanction and proportionality on the basis that there was a green deal plan in place. The final, and seventh, ground of appeal argues that the FT’s decision to cancel the plan was wrong on proportionality and sanction even if Mrs Heaney’s plan was not a green deal plan.
I will take each ground in turn under my discussion of the grounds.
However, before I do so I should record that the Secretary of State’s primary interest in this appeal to the Upper Tribunal, which is seen as a lead case on green deal plans and the legislation underpinning them, is to obtain a clear interpretation of the relevant legal provisions and guidance about the making of sanction decisions.
- 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