The Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) Regulations 2012

• (3) The Secretary of State must give the relevant member notice of the deferral and the terms and conditions to which it is subject.

CHAPTER 5 — Enforcement undertakings and guidance

Contents of an enforcement undertaking

82

• (1) An enforcement undertaking from an authorised person must—

• (a) specify the action intended to—

• (i) secure that the breach does not continue or recur;

• (ii) secure that the position is, so far as possible, restored to what it would have been if the breach had not been committed; and

• (iii) benefit any person affected by the breach;

• (b) contain a statement that the undertaking is made in accordance with this regulation.

• (2) An enforcement undertaking may specify—

• (a) the period within which the action must be completed;

• (b) the circumstances in which a person is considered to have discharged the undertaking;

• (c) where restoration of the harm arising from the breach is not possible, the action that will secure equivalent benefit to improvers and bill payers.

• (3) The undertaking may be varied if the Secretary of State gives notice in writing.

• (4) In this regulation, “equivalent benefit” means benefit which, in the opinion of the Secretary of State, is equivalent to the benefit that would result from restoration of the harm arising from the breach.

Failure to comply with an enforcement undertaking

83

Where a person fails to comply with an enforcement undertaking, the Secretary of State may impose one or both of the following—

• (a) the sanction which may otherwise have been imposed on that person had the enforcement undertaking not been given;

• (b) in respect of the failure to comply with the enforcement undertaking,—

• (i) withdrawal; or

• (ii) except where the person is a green deal provider, suspension.

Discharge of a compliance notice or enforcement undertaking

84

• (1) Where the Secretary of State is satisfied that a person—

• (a) has taken the steps specified in a compliance notice; or

• (b) has complied with an enforcement undertaking;

the Secretary of State must issue a certificate to that effect (a “certificate”).

• (2) Subject to regulation 85(2), a compliance notice and an enforcement undertaking cease to have effect on receipt of a certificate.

• (3) A person who—

• (a) is subject to a compliance notice; or

• (b) has given an enforcement undertaking which has been accepted by the Secretary of State,

may at any time apply for a certificate.

• (4) Within 14 days of receipt of an application made under paragraph (3), the Secretary of State must decide whether or not to issue a certificate and as soon as is practicable—

• (a) issue a certificate; or

• (b) give notice to the applicant of—

• (i) the refusal; and

• (ii) the reason for the refusal.

Inaccurate, misleading or incomplete information

85

• (1) A person who has given inaccurate, misleading or incomplete information to the Secretary of State in relation to an enforcement undertaking is regarded as having failed to comply with it.

• (2) The Secretary of State may by notice revoke a certificate issued under regulation 84 if it was issued on the basis of inaccurate, incomplete or misleading information.

PART 9 — Power to obtain information and appeals

Power to obtain information

86

• (1) The Secretary of State may require an authorised person (“A”) to provide such information as the Secretary of State requests—

• (a) for the purposes of monitoring or securing A’s compliance with the relevant requirements;

• (b) for the purposes of determining what action to take as a consequence of any non-compliance by A with the relevant requirements;

• (c) relating to A’s conduct and activities as an authorised person.

• (2) The Secretary of State may also require a green deal provider to provide such information as the Secretary of State requests for the purposes of determining—

• (a) whether there has been a breach of the consent provision or the disclosure and acknowledgment provisions;

• (b) whether to impose sanctions under regulation 65 or 66;

• (c) where applicable, the amount of compensation to be paid in accordance with regulation 65 or 66.

• (3) Information requested under this regulation must be provided in such form and within such period as the Secretary of State specifies.

Appeal to First Tier Tribunal

87

• (1) Subject to paragraph (5), any person directly affected by a decision of the Secretary of State—

• (a) to refuse an application for authorisation under Part 3 to act as a green deal assessor certification body or a green deal installer certification body;

• (b) to impose or not to impose a sanction under Part 8,

may appeal to the First Tier Tribunal.

• (2) The Tribunal must determine the standard of proof in any case.

• (3) The Tribunal may suspend a decision pending determination of the appeal.

• (4) The Tribunal may—

• (a) in relation to a decision under Part 3 or 8—

• (i) withdraw, confirm or vary the decision;

• (ii) remit the decision to the Secretary of State;

• (b) in relation to a decision whether to impose a sanction under Part 8, impose a different sanction or take different action.

• (5) A relevant energy supplier may not appeal under this regulation unless it is affected by a decision for a reason which is not connected with its collection of payments under a plan.

SCHEDULE 1 — Registers

SECTION 1 — All green deal certification bodies and green deal participants

1

Name, address and contact details.

2

Any trading name.

3

For a company, the company registration number and names of the directors.

4

Green deal registration number.

5

Date of entry on the register.

6

Whether the person’s authorisation is suspended or withdrawn and—

• (a) if it is suspended, the period of the suspension;

• (b) if it is withdrawn, when the withdrawal of authorisation began.

7

Any periods when the person’s authorisation has been suspended or withdrawn other than a suspension or withdrawal of authorisation to which paragraph 6 applies.

8

The reasons for any suspension or withdrawal of authorisation.

SECTION 2 — Green deal assessor certification bodies

9

Date of accreditation to certify persons as able to act as a green deal assessor.

10

Certificate of accreditation number.

11

Name of accrediting body.

SECTION 3 — Green deal assessors

12

Date of certification to act as a green deal assessor.

13

Certificate number.

14

Name of certifying body.

SECTION 4 — Green deal installer certification bodies

15

Date of accreditation to certify persons as able to act as a green deal installer.

16

Scope of accreditation.

17

Certificate of accreditation number.

18

Name of accrediting body.

SECTION 5 — Green deal installers

19

Date of certification to act as a green deal installer.

20

Scope of certification and energy efficiency improvements certified to install.

21

Certificate number.

22

Name of certifying body.

SECTION 6 — Green deal providers

23

Whether authorisation is granted in relation to—

• (a) non-domestic properties only, or

• (b) domestic and non-domestic properties,

and the date of authorisation.

24

For authorisation in relation to domestic properties—

• (a) the number of the person’s consumer credit licence and the types of business authorised by that licence, or

• (b) where a consumer credit licence is not required under section 21 of the 1974 Act[^f00040], an entry on the register to that effect.

SCHEDULE 2 — Annual reports by green deal providers

1

The information to be included in a report provided under regulation 24(1)(d)(ii) is—

• (a) the number of—

• (i) green deal plans that the green deal provider has entered into during the reporting period;

• (ii) energy plans that the green deal provider has entered into during the reporting period;

• (iii) customer complaints received during the reporting period and the issues that these complaints related to;

• (iv) unresolved customer complaints at the start of the reporting period;

• (v) customer complaints that were resolved during the reporting period, and how they were resolved;

• (b) in relation to any customer complaint that has not been resolved at the end of the reporting period, the steps being taken to resolve it;

• (c) in relation to green deal plans made by the provider during the reporting period, how many qualifying assessments were carried out by green deal assessors who were not—

• (i) employed by; or

• (ii) acting on behalf of,

the green deal provider;

• (d) in relation to improvements installed during the reporting period under green deal plans made by the green deal provider, whether the installers of those improvements were employed by the green deal provider;

• (e) details of whether the green deal provider has been party during the reporting period to any partnership arrangements with other organisations.

2

In this Schedule—

• (a) “customer complaint” is a complaint made by an improver or a bill payer in relation to a green deal plan;

• (b) “partnership arrangement” is an arrangement in which organisations agree to work together in relation to—

• (i) green deal plans;

• (ii) energy plans; or

• (iii) proposed green deal plans or energy plans,

but does not include an arrangement with another green deal participant, a supplier of energy efficiency improvements or materials or products for such improvements or a person engaged as an adviser to the green deal provider.

SCHEDULE 3 — Guarantees

1

The requirements for a guarantee referred to in regulation 35(2) are as follows.

2

All problems which affect the functioning of an improvement and which—

• (a) relate to its installation, materials or design; and

• (b) are notified to the green deal provider—

• (i) subject to paragraph (ii), within five years of the improvement being installed;

• (ii) where the improvement is solid wall insulation or cavity wall insulation, within 25 years of the improvement being installed,

must be rectified by the green deal provider free of charge.

3

The green deal provider must repair damage to the property free of charge which—

• (a) is caused by an improvement or the installation of an improvement;

• (b) is notified to the green deal provider—

• (i) subject to paragraph (ii), within 10 years of the improvement being installed;

• (ii) where the improvement is solid wall insulation or cavity wall insulation, within 25 years of the improvement being installed; and

• (c) is of a kind described in paragraph 4.

4

The descriptions of damage referred to in paragraph 3 are—

• (a) damage to—

• (i) the structure of the property;

• (ii) wall coverings, ceilings, roofs and roof coverings including plaster and render but excluding decoration;

• (iii) floors;

• (iv) staircases;

• (v) external windows and doors, including panes;

• (b) damage which is likely to result in risks to the health or safety of persons.

5

The green deal provider’s total liability to repair damage to the property under paragraph 3 must not be less than £20,000.

6

The requirements in paragraphs 2 to 4 do not require the green deal provider to rectify a problem or repair damage which arises after the improvement is installed where that problem or damage arises from one or more of—

• (a) negligence;

• (b) accident;

• (c) misuse of the improvement;

• (d) repair of the improvement,

attributable to a person other than a person described in paragraph 7.

7

The following persons are referred to in paragraph 6—

• (a) the green deal provider;

• (b) the manufacturer of the improvement;

• (c) a person acting on behalf of such provider or manufacturer.

Signed

Edward Davey — Secretary of State — Department of Energy and Climate Change — 6th August 2012

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations, which apply to Great Britain, establish elements of the framework for the Green Deal energy efficiency scheme which was created by Chapter 1 of Part 1 of the Energy Act 2011 (c. 16.) (“the Act”).

Regulation 87, in so far as it provides for an appeal against a decision by the Secretary of State to refuse an application for authorisation under Part 3 to act as a green deal assessor certification body or a green deal installer certification body, ensures continued compliance with article 10(6) of Directive 2006/123/EC of the European Parliament and Council on services in the internal market (OJ No. L 376, 27.12.2006, p.36).

Part 1 Regulation 1 provides for the commencement of these Regulations. Regulation 2 defines terms that are used in the Regulations. Regulation 3 makes provision requiring a notice under the Regulations to be in writing and enabling a notice to be transmitted by electronic means. Regulations 4 to 7 provide interpretation for the terms “energy”, “energy bill”, “occupier”, “owner”, “relevant energy supplier” and “qualifying assessment” which are used in Chapter 1 of Part 1 of the Act and these Regulations.

Part 2 Regulation 8 provides for the authorisation of a person as a green deal certification body or green deal participant. A person will be authorised as a green deal certification body or a green deal participant where that person is entered on the relevant register of authorised persons established and maintained by the Secretary of State under regulation 9. A person will not be authorised as a green deal certification body or green deal participant where the relevant register shows that the person’s authorisation has been suspended or withdrawn. Regulation 9 requires the Secretary of State to establish and maintain registers of persons authorised as green deal certification bodies and green deal participants, and to make such registers publicly available. Regulation 10 requires the Secretary of State to issue a code of practice for green deal certification bodies and green deal participants, and to make any code issued publicly available.

Part 3 Regulations 11 to 16 provide for applications for authorisation to act as a green deal certification body or green deal participant and details the information which must be provided in support of such applications. Where an application is granted, specified information about the applicant must be entered on the relevant register. In the case of green deal certification body applications, specified information must be entered on the relevant register about persons the applicant has certified to act as green deal assessors or green deal installers. Regulation 17 provides for a green deal provider to apply to the Secretary of State to withdraw its authorisation and the consequent actions of the Secretary of State. Regulation 18 makes provision where the Secretary of State intends to refuse an application for authorisation.

Part 4 Regulation 19 provides for the requirements which apply to green deal certification bodies. Regulation 20 provides for the Secretary of State to update the relevant register where notification is received from a certification body that there has been a change to that body’s membership list. Regulation 21 provides for the Secretary of State to update the relevant registers where the accreditation of a green deal certification body ceases. Regulations 22 to 26 provide for the requirements which apply to green deal assessors, green deal installers and green deal providers.

Part 5 Regulations 27 and 28 set out requirements regarding the estimates which must be made, under section 4(4) and 4(5) of the Act, by the green deal provider if an energy plan is to be a green deal plan, being estimates of the likely energy bill savings after energy efficiency improvements are installed under a plan and estimates of the period over which those savings are likely to be made. Under regulations 29 to 36, an energy plan is not a green deal plan unless the conditions in those regulations are met. Regulations 30 and 31 set out the relationship between (i) the amount of instalments and the likely energy bill savings, and (ii) the payment period and the period over which savings are likely to be made. Regulations 32 and 33 set out conditions regarding the rate of interest that can be charged under a plan for domestic properties, and the extent to which the amount of instalments can vary under a plan. Under regulation 34, a plan must not restrict a bill payer from changing gas or electricity supplier. Under regulation 35, a green deal provider must give a guarantee in respect of improvements and damage to the property caused by the improvements. The guarantee must include the requirements in Schedule 3. Regulation 36 provides that an improver must obtain a written confirmation from the relevant first bill payer or the relevant subsequent bill payer in respect of a property, as well as those who are the owners of a property, before an energy plan that is to be a green deal plan is entered into. A confirmation obtained pursuant to this regulation (or a copy of the confirmation) must be attached to the plan. Regulation 37 defines an owner of a property for the purposes of regulation 36.

Part 6 Regulation 38 provides when a green deal plan may include a term which enables a green deal provider to require early repayment of credit outstanding under that plan. Regulation 39 sets out the extent to which a green deal plan can provide for money to be advanced by the green deal provider to the improver. Regulation 40 sets out the terms of a green deal plan which bind or benefit a bill payer or a subsequent bill payer for the property.

Part 7 Regulation 41 specifies the period, for the purposes of section 8(3) of the Act, which is used to calculate the date (to be included in the notice required by section 8(2)(a) of the Act) from which payments for energy efficiency improvements are to be included in the energy bill for that property. Regulation 42 specifies the action that green deal providers must take under section 8(4) of the Act to confirm a green deal plan. It also specifies the description of document for the purposes of section 8(4)(b) of the Act. That document is also the document that must be disclosed under section 12 of the Act and regulations 43 to 50. Regulations 43 to 50 require disclosure and acknowledgment of a green deal plan in relation to certain transactions or arrangements (which do not fall within section 12(1) or 14(1) of the Act) where a person will have a right to occupy a green deal property.

Part 8 Regulation 51 defines terms used in Part 8. Regulation 52 provides for the complaint or information which the Secretary of State must receive in respect of a breach or failure described in Part 8 before the Secretary of State can impose a sanction. Regulation 53 lists the sanctions which the Secretary of State may impose under Part 8. Regulation 54 enables the Secretary of State to accept an enforcement undertaking instead of imposing certain sanctions. Regulations 55 to 60 make provision regarding complaints for the purposes of Part 8. Regulations 61 to 64 set out the matters which constitute a breach or a failure under Part 8. Regulations 65 to 71 make provision concerning when sanctions may or must be imposed and which sanctions apply for a particular breach or failure. Regulations 72 to 74 set out the procedures that the Secretary of State must comply with before imposing sanctions, including giving intention notices and sanctions notices to affected persons. Regulation 75 makes provision relating to the amount of a financial penalty. Regulation 76 makes provision relating to the recovery of compensation and financial penalties. Regulation 77 makes provision for a notice to be given where the Secretary of State decides not to impose a sanction. Regulation 78 sets out to whom a sanctions notice must be given and the information the notice must include. Regulation 79 requires that sanctions imposed under Part 8 must be proportionate to the breach for which they are imposed. Regulations 80 and 81 require updating of the relevant register maintained by the Secretary of State under regulation 9 where the sanction of suspension or withdrawal is imposed. Regulations 82 and 83 provide for the contents of enforcement undertakings and the consequences of failure to comply with such an undertaking. Regulations 84 and 85 make provision relating to the discharge of compliance notices and enforcement undertakings and the consequences of giving inaccurate, misleading or incomplete information in relation to such notices and undertakings.

Part 9 Under regulation 86 the Secretary of State may require information to be provided to the Secretary of State for the purposes described in that regulation. Regulation 87 provides for appeals to the First Tier Tribunal by persons directly affected by decisions of the Secretary of State to refuse an application for authorisation under Part 3 to act as a green deal assessor certification body or a green deal installer certification body and decisions of the Secretary of State under Part 8.

Schedules Schedule 1 provides for the information which the Secretary of State is required to include on the registers of green deal certification bodies and green deal participants. Schedule 2 provides details of the information that a green deal provider is required to include in the annual report required under regulation 24. Schedule 3 provides for the requirements of the guarantees that green deal providers must provide under regulation 35. A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Green Deal Legislation Team, Department of Energy and Climate Change at 3 Whitehall Place, London SW1A 2AW and is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.

Footnotes

[^f00001]: 2011 c.16.

[^f00002]: 1972 c.68; paragraph 2(2) of Schedule 2 was amended by the Legislative and Regulatory Reform Act 2006 (c. 51), sections 27(2)(a) and 33.

[^f00003]: S.I. 2009/221.

[^f00004]: Section 2(2) was amended by the Legislative and Regulatory Reform Act 2006 (c.51), section 27(1), and by the European Union (Amendment) Act 2008 (c.7), section 3(3) and Schedule, Part 1. Under section 57(1) of the Scotland Act 1998 (c.46), despite the transfer to Scottish Ministers of functions in relation to implementing obligations under EU law in relation to devolved matters, the Secretary of State retains power to exercise such functions as regards Scotland.

[^f00005]: 1974 c.39.

[^f00006]: S.I. 2007/991, amended by S.I. 2007/1669, 2007/3302, 2008/647, 2008/2363, 2009/1900, 2010/1456, 2010/2214, 2011/2452 and 2012/809.

[^f00007]: S.S.I. 2008/309, amended by S.S.I. 2008/389 and S.S.I. 2012/190. S.S.I. 2012/190 was made on 6th June 2012 and comes into force on 1st October 2012.

[^f00008]: S.I. 2012/1661.

[^f00009]: S.S.I. 2012/214.

[^f00010]: The United Kingdom Accreditation Service is a company limited by guarantee, registered at Companies House with company number 03076190.

[^f00011]: Details of the Gas Safe Register are available at: www.gassaferegister.co.uk.

[^f00012]: S.I. 2012/1660.

[^f00013]: 2000 c.8.

[^f00014]: 1989 c.29; section 6 was amended by the Utilities Act 2000 (c.27), section 30, by the Energy Act 2004 (c.20), sections 89(3), 136(1) and (2), 143(1), 145 and 197(9), Schedule 19, paragraphs 3 and 5, and Schedule 23, Part 1, by the Climate Change Act 2008 (c.27), section 78 and Schedule 8, paragraph 2, by the Energy Act 2011 (c.16), section 72 and Schedule 1, paragraphs 2 and 3, and by S.I. 2011/2704, regulation 19.

[^f00015]: Further details to be found at: www.ombudsman-services.org/energy.html.

[^f00016]: Details of which are available at: www.microgenerationcertification.org.

[^f00017]: BS EN 45011 (General requirements for bodies operating product certification systems). ISBN No. 0580294153. Copies can be obtained from the British Standards Institution at www.bsigroup.com.

[^f00018]: 2002 c.9. Section 4 was amended by S.I. 2008/2872, article 1(1), 2(1) and (2) and the Charities Act 2011 (c.25), Schedule 7, Part 2, paragraph 94. Section 4 is also amended by the Localism Act 2011 (c.20), section 157(1) and (3), which is yet to be commenced.

[^f00019]: Section 27 is amended by the Commons Act 2006 (c.26), section 52 and Schedule 5, paragraph 8(1) and (2), which is in force in relation to England for certain purposes, and yet to be commenced for (i) remaining purposes in relation to England, and (ii) all purposes in relation to Wales. Section 27 is also amended by the Localism Act 2011 (c.20), section 157(1) and (4) which is yet to be commenced.

[^f00020]: 1974 c.39; section 8 was amended by the Consumer Credit Act 2006 (c.14), sections 2(1)(a), 2(1)(b), 5(1) and Schedule 4, and S.I. 2008/2826, article 3(2).

[^f00021]: The definitions given in this regulation and regulation 4 are made pursuant to section 2(9) of the Act.

[^f00022]: This provision is made pursuant to section 2(10) of the Act.

[^f00023]: 1974 c.39; section 21 was amended by the Consumer Credit Act 2006 (c.14), section 33(1). It is also amended by the Energy Act 2011 (c.16), section 26, which has not yet been commenced.

[^f00024]: This is the estimate that is required to be made under section 4(4) of the Act.

[^f00025]: The Government’s Standard Assessment Procedure for Energy Rating of Dwellings (2009 Edition) can be found at http://www.bre.co.uk/filelibrary/SAP/2009/SAP-2009_9-90.pdf.

[^f00026]: This is the estimate that is required to be made under section 4(5) of the Act.

[^f00027]: This is the seventh condition for the purpose of section 4(8) of the Act.

[^f00028]: This is the eighth condition for the purpose of section 4(9) of the Act.

[^f00029]: The terms of the plan which bind a bill payer are set out in regulation 40.

[^f00030]: In respect of England and Wales, the Secretary of State has prescribed the form that the acknowledgment required by this regulation must take. See the Green Deal (Acknowledgment) Regulations 2012 (S.I. 2012/1661), which were made under section 15(3) of the Act. The Scottish Ministers have prescribed the form of acknowledgment for Scotland. See the Green Deal (Acknowledgment) (Scotland) Regulations 2012 (S.S.I. 2012/214), which were made under section 15(4) of the Act.

[^f00031]: The terms of the plan which bind a bill payer are set out in regulation 40.

[^f00032]: In respect of England and Wales, the Secretary of State has prescribed the form that the acknowledgment required by this regulation must take. See the Green Deal (Acknowledgment) Regulations 2012 (S.I. 2012/1661), which were made under section 15(3) of the Act. The Scottish Ministers have prescribed the form of acknowledgment for Scotland. See the Green Deal (Acknowledgment) (Scotland) Regulations 2012 (S.S.I. 2012/214), which were made under section 15(4) of the Act.

[^f00033]: The terms of the plan which bind a bill payer are set out in regulation 40.

[^f00034]: In respect of England and Wales, the Secretary of State has prescribed the form that the acknowledgment required by this regulation must take. See the Green Deal (Acknowledgment) Regulations 2012 (S.I. 2012/1661), which were made under section 15(3) of the Act. The Scottish Ministers have prescribed the form of acknowledgment for Scotland. See the Green Deal (Acknowledgment) (Scotland) Regulations 2012 (S.S.I. 2012/214), which were made under section 15(4) of the Act.

[^f00035]: The terms of the plan which bind a bill payer are set out in regulation 40.

[^f00036]: The terms of the plan which bind a bill payer are set out in regulation 40.

[^f00037]: In respect of England and Wales, the Secretary of State has prescribed the form that the acknowledgment required by this regulation must take. See the Green Deal (Acknowledgment) Regulations 2012 (S.I. 2012/1661), which were made under section 15(3) of the Act. The Scottish Ministers have prescribed the form of acknowledgment for Scotland. See the Green Deal (Acknowledgment) (Scotland) Regulations 2012 (S.S.I. 2012/214), which were made under section 15(4) of the Act.

[^f00038]: 1974 c.39; section 95 was amended by S.I. 2010/1010, regulation 31.

[^f00039]: S.I. 2012/1660.

[^f00040]: 1974 c.39; section 21 was amended by the Consumer Credit Act 2006 (c.14), section 33(1). It is also amended by the Energy Act 2011 (c.16), section 26, which has not yet been commenced.