GDFC Assets Limited v Carol Heaney & Anor

An obligation to notify an improver under regulation 30(3)(c) of the Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regulations 2012 is a condition of an energy plan being a green deal plan. Notification need not be in writing. It may be oral, written, or both.

A sanction under regulation 79 must be proportionate in the individual case. The assessment is objective and must take account of the effects of the sanction on the green deal provider, including interference with its property rights. A bill payer’s windfall benefit is relevant, but cannot automatically bar cancellation.

GDFC Assets Limited, the assignee entitled to payments under a purported green deal plan, appealed against decisions of the First-tier Tribunal made on 29 December 2021 and 5 July 2023. The First-tier Tribunal had concluded that the plan was not a green deal plan because the provider had not complied with regulation 30(3)(c) of the Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regulations 2012, and it substituted cancellation for the Secretary of State’s reduction sanction.

The Upper Tribunal considered whether regulation 30(3)(c) was a qualifying condition, whether it required written notification, whether the required information had been provided, and the proper approach to proportionality when choosing between cancellation and reduction.

1. Appeal allowed. The First-tier Tribunal’s decisions were set aside for material errors of law. The Upper Tribunal remade the decision by dismissing Ms Heaney’s appeal against the Secretary of State’s sanction decision and confirming the reduction imposed on 6 October 2020.

2. Regulation 29 provides that an energy plan is not a green deal plan unless the conditions in regulations 30 to 36 are met. The mandatory requirement in regulation 30(3)(c), to notify the improver before the plan is entered into of the first-year instalments attributable to each improvement, is such a condition. It is within the statutory scheme created by sections 1, 4 and 5 of the Energy Act 2011.

3. The First-tier Tribunal erred in treating regulation 3 as requiring notification under regulation 30(3)(c) to be in writing. Regulation 3 concerns a notice under the Regulations. The distinct word notify bears its ordinary meaning and allows oral, written, or combined notification. In any event, the Green Deal Improvement Package gave Ms Heaney a sufficient written estimate by setting out maximum first-year repayments for each installed improvement. A maximum may constitute an estimate for this purpose.

4. The First-tier Tribunal also erred in treating the effect of a sanction on the green deal provider as generally irrelevant. Regulation 79 requires an individual, objective proportionality assessment of the sanction’s consequences in relation to the breach. As cancellation or reduction interferes with the provider’s rights under article 1 of the First Protocol, the decision-maker must take account of the actual effect on the provider, including loss of a windfall benefit.

5. A windfall benefit retained by the bill payer is relevant to the harm and redress assessment, but is one factor among several. It cannot operate as an automatic bar to cancellation. The First-tier Tribunal nevertheless misread its own preliminary decision by treating the Secretary of State’s consideration of the windfall and of GDFC’s position as legally irrelevant.

6. Having found that the arrangement was a green deal plan and applying the correct approach, the Upper Tribunal found no reason to depart from the First-tier Tribunal’s alternative view that the Secretary of State’s detailed reduction sanction should be confirmed.

• Upper Tribunal (Administrative Appeals Chamber): Allowed GDFC’s appeal, set aside the First-tier Tribunal’s decisions, and remade the decision by dismissing Ms Heaney’s appeal against the Secretary of State’s reduction sanction.
• First-tier Tribunal (General Regulatory Chamber): By decisions dated 29 December 2021 and 5 July 2023, held that the arrangement was not a green deal plan and imposed cancellation from 19 March 2019.
• Secretary of State: On 6 October 2020, imposed a reduction sanction under the Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regulations 2012.