Appendix 1
S.I. 2012/3118: memorandum from the Department
for Communities and Local Government
Energy Performance of Buildings (England and
Wales) Regulations 2012 (S.I. 2012/3118)
1. The Committee has requested a memorandum on
the following points:
(1) What is the intended sanction for failure
to comply with regulation 19 or 23 and how is effect given to
that intention?
(2) Why do the criteria for approval of an accreditation
scheme in regulation 22(3) appear to contain nothing express about
ensuring that members comply with the obligations under regulations
19 and 23?
(3) What is the prohibition or restriction to
which regulation 25 is an exception and how is that made clear?
2. On point 1, in relation to regulation 19(1),
we do not think it necessary to provide enforcement sanctions
for failure to give the person who commissions the inspection
a written report, since this would be simply a contractual matter
between the parties concerned. An energy assessor who carries
out an inspection but does not produce a written report is liable
not to be paid for the inspection work.
On point 1, in relation to regulation 19(2) and
(3), enforcement of the provisions in
paragraphs (2) and (3) is not in the legislation, but instead
is in the Accreditation Scheme Operating Requirements for domestic
energy assessors. An independent body may be licensed by the
Secretary of State to operate a scheme to accredit and monitor
energy assessors. These are the accreditation schemes referred
to in regulation 22. Currently there are ten such licensed schemes.
An energy assessor may not operate without belonging to an accreditation
scheme, and must lodge an energy performance certificate or an
inspection report on the register via that scheme. It is not
possible for an energy assessor to enter energy performance or
inspection data directly onto the register other than through
the relevant accreditation scheme operator.
The detailed requirements for accreditation schemes
for domestic energy assessors with regard to both inspection reports
and energy performance certificates are attached for information:
An energy assessor who either breaches the legal
requirements for an inspection report or energy performance certificate,
or who fails to comply with the terms of the code of conduct operated
by the accreditation scheme, is liable to have accreditation revoked.
Compliance with the requirements for operation of
an accreditation scheme, including enforcing the detailed duties
which energy assessors must carry out, is a term of the contract
between the Secretary of State and the scheme operator. DCLG
regularly audits schemes, and takes action against scheme operators
which fail to enforce the requirements with respect to energy
assessors. Arising from these audits, one scheme operator has
had its licence revoked and three others have voluntarily ceased
running.
A further safeguard with regard to regulation 19(2)
and (3) lies in the fact that the register of data is set up in
such a way that it is not possible for an energy assessor, through
the scheme operator, to lodge only part of the data. For a report
to be lodged successfully, it must include all the relevant data
at the same time.
3. On point 1, in relation to regulation 23,
the disclosure requirements by energy assessors contained in regulation
23 are covered by the code of conduct for energy assessors which
is enforced by scheme operators. The code is in Appendix 1.2
to the Accreditation Scheme Operating Requirements.
4. On point 2, regulation 22(3) contains
a general description of the matters which are set out in detail
in the Scheme Operating Requirements. In the Department's view,
it would therefore not be appropriate to include particular specific
details in this regulation.
5. On point 3, there is a prohibition
on disclosure of general access data where the owner or occupier
has opted out and this is set out in regulation 30, in particular
paragraphs (2)(c) and (3). Notwithstanding such an opt-out, regulation
25 allows a person who is under a duty to do so to copy or issue
a document produced by an energy assessor - for instance, to make
a copy energy performance certificate available to a prospective
purchaser. Situations in which regulation 25 needs to be relied
on are likely to arise only infrequently, since usually where
a duty to copy or issue the document arises it would be in the
interests of the person who opted out to opt back in and permit
this. However, it could be relevant in situations where there
are several different owners and occupiers of a building. Furthermore,
if a dispute has arisen between different owners and occupiers
of a building, with conflicting alternate notifications to the
keeper of the register on opting out or opting in, the keeper
of the register after five such instructions will put into effect
a permanent opt-out. Regulation 25 could therefore also be relied
on where a permanent opt-out has occurred. Even where there has
been an opt-out, the register can still be searched by report
reference number, which is a unique 24 digit number allocated
to a specific energy performance certificate.
Department for Communities and Local Government
5 February 2013
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