[2024] UKUT 345 (AAC)

The relevant statutory provisions are contained in the Energy Act 2011 and the regulations made under it. It is necessary to set these out first in order to frame the relevant background and the issues arising on this appeal.

Section 1 of the Energy Act 2011 provides, so far is relevant, a follows:

“Green deal plans

1:- (1) This section applies for the purposes of this Chapter.

(2)

An energy plan is an arrangement made by the occupier or owner of a property for a person to make energy efficiency improvements to the property.

(3)

An energy plan is a green deal plan if—

(a)

the energy efficiency improvements are to be paid for wholly or partly in instalments, and

(b)

all of the requirements listed in paragraphs (a) to (e) of subsection (4) are met in relation to the plan at the time when it is made.

(4)

The requirements are—

(a)

the property is an eligible property,

(b)

the energy efficiency improvements fall within a description specified in an order made by the Secretary of State (“qualifying energy improvements”),

(c)

the conditions mentioned in section 4 as to assessment of the property and other matters have been met,

(d)

the conditions mentioned in section 5 as to the terms of the plan and other matters are met, and

(e)

a relevant energy supplier supplies, or is to supply, energy to the property.”

Section 3 of the Energy Act 2011 requires the Secretary of State to make regulations implementing green deal plans, as follows (insofar as is relevant):

“Framework regulations

3:-(1) The Secretary of State must by regulations establish a scheme making provision for the Secretary of State—

(a)

to authorise persons to act as green deal assessors, green deal providers or green deal installers in connection with green deal plans (either individually or through membership of a body specified in, or authorised under, the scheme);

(b)

to regulate the conduct of those assessors, providers or installers (“green deal participants”).

(2)

Regulations under subsection (1) are referred to in this Chapter as “the framework regulations”.

(3)

The scheme established by the framework regulations may, in particular, make provision….

(d)

for the issuing, revision or revocation of a code of practice;

(e)

requiring green deal participants to comply with the code of practice as a condition of their authorisation;…

(h)

for securing compliance with any condition or any other requirement of the scheme, code or agreement;

(i)

as to the consequences of non-compliance with any such condition or requirement…..

(8)

The provision made for the purposes of subsection (3)(h) or (i) may, in particular, include provision enabling the Secretary of State to….

(b)

require a green deal provider to suspend or cancel the liability of a bill payer to make payments under a green deal plan;…

(d)

require a green deal participant to pay compensation or a financial penalty;….”

Sections 4 and 5 of the Energy Act 2011 provide, insofar as is relevant as follows:

“ Assessment of property etc

4:-(1) For the purposes of section 1(4)(c) the conditions as to assessment of the property and other matters are—

(a)

the conditions set out in subsections (2) to (9), and

(b)

such other conditions (whether relating to the green deal assessor, the green deal provider, the improver or any other person) as are specified in the framework regulations.

(2)

The first condition is that a qualifying assessment of the property has been carried out by a person authorised by virtue of the framework regulations to act as a green deal assessor.

(3)

The second condition is that the green deal assessor has recommended the energy efficiency improvements.

(4)

The third condition is that the green deal provider has given an estimate, on the basis specified in the framework regulations, of the savings likely to be made on the energy bills for the property if the improvements are carried out.

(5)

The fourth condition is that the green deal provider has given an estimate, on the basis specified in the framework regulations, of the period over which the savings mentioned in subsection (4) are likely to be made.

(6)

The fifth condition is that the green deal provider is authorised by virtue of the framework regulations to act as a green deal provider.

(7)

The sixth condition is that the green deal provider has offered to carry out the improvements on the basis that the whole or part of the cost will be repaid in instalments over a period after the improvements have been made.

(8)

The seventh condition is that the green deal provider meets any requirement specified in the framework regulations as to the relationship between—

(a)

the estimated total of the proposed instalments, and

(b)

the estimate mentioned in subsection (4).

(9)

The eighth condition is that the green deal provider meets any requirement specified in the framework regulations as to the relationship between—

(a)

the period for which the instalments are proposed to be paid, and

(b)

the period estimated under subsection (5).

“Terms of plan etc

5:- (1) For the purposes of section 1(4)(d), the conditions as to the terms of the plan and other matters are—

(a)

the conditions set out in subsections (2) to (4), and

(b)

such other conditions as are specified in the framework regulations.

(2)

The first condition is that the plan includes the following terms—

(a)

a term in which the improver agrees to—

(i)

the amounts of the payments in instalments and the intervals at which, and period for which, they are payable;

(ii)

such other matters as are specified in the regulations;

(b)

a term in which the improver confirms that any necessary permissions or consents have been obtained in respect of the improvements;

(c)

a term providing that the green deal provider may not take a charge over any person's property by way of security for payments;

(d)

a term providing that the green deal plan does not prevent the bill payer from changing the intervals at which energy bills are to be paid.

(3)

The second condition is that the plan does not include any of the following terms—

(a)

a term making a person liable to make any payments under the green deal plan otherwise than in respect of the period for which the person is the bill payer in relation to the property;

(b)

a term requiring the bill payer to make in any circumstances an early repayment of the whole or part of the amount outstanding under the green deal plan (except in accordance with the framework regulations or regulations under section 34, or provision made under them);

(c)

a term providing for money to be advanced to the improver (except in accordance with the framework regulations or provision made under them).

(4)

The third condition is that the agreements mentioned in paragraph (a) of subsection (2) and the permissions and consents mentioned in paragraph (b) of that subsection have not been withdrawn before the end of the period of 14 days beginning with the last day on which they were given.

(5)

The conditions which may be specified in the framework regulations by virtue of subsection (1)(b) include, in particular—

(a)

a condition that the plan includes a term so specified enabling the early repayment of the whole or part of the amount outstanding under the plan and making provision as to the calculation of the amount payable and any fee,

(b)

a condition that the plan includes a term so specified guaranteeing the improvements and making provision as to who is to benefit from the guarantee,

(c)

a condition that the plan includes a term so specified as to how any problems with the improvements installed, or arising in connection with the installation of them, are to be dealt with, and

(d)

a condition requiring the agreements mentioned in subsection (2)(a) to be in the form specified in the framework regulations.”

Section 35 of the same Act deals with appeals and provides, so far as is relevant, as follows:

“Appeals

35:-(1)This section applies if provision is included in a scheme or regulations by virtue of any of the following—

(a)

section 3(3)(h) or (i)…;

(2)

The Secretary of State must by regulations provide for a right of appeal to a court or tribunal against any sanction imposed, or other action taken, by the Secretary of State or a specified public body under the provision mentioned in subsection (1).

(3)

Regulations under subsection (2) may, in particular, include provision—

(a)

as to the jurisdiction of the court or tribunal to which an appeal may be made;

(b)

as to the persons who may make an appeal;

(c)

as to the grounds on which an appeal may be made;

(d)

as to the procedure for making an appeal (including any fee which may be payable);

(e)

suspending the effect of a sanction or other action being appealed against, pending determination of the appeal;

(f)

as to the powers of the court or tribunal to which an appeal is made;

(g)

as to how any sum payable in pursuance of a decision of the court or tribunal is to be recoverable.

(4)

The provision referred to in subsection (3)(f) includes provision conferring on the court or tribunal to which an appeal is made power—

(a)

to confirm the sanction imposed or action taken;

(b)

to withdraw the sanction or action;

(c)

to impose a different sanction or take different action;

(d)

to remit the decision whether to confirm the sanction or other action, or any matter relating to that decision, to the person who imposed the sanction or took the action;

(e)

to award costs or, in Scotland, expenses.”

The key detail of the legislative scheme made under section 3 of the Energy Act 2011 is found in the Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regulations 2012 (“the Framework Regs”).

The following are the key aspects of the Framework Regs.

“Notices