Kaylee Slee v The Secretary of State for Energy Security and Net Zero

This is an appeal against a decision of the Secretary of State (“the SoS”) dated 10 June 2024 referenced ID AD0000248885 to impose a sanction upon the Appellant requiring the payment of compensation to GDFC Assets Ltd (“the Sanctions Notice”). The appeal concerns the installation of solar panels at 47 Escallond Drive, Seaham SR7 8JZ (“the Property”) under the UK Green Deal scheme. The Sanctions Notice follows a complaint by the owner of the Property, that his former tenant (the Appellant) entered a green deal plan for the installation of the solar panels without his prior written consent.

The parties opted for a determination of the appeal on the papers. The Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with Rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

The documentary evidence comprises an indexed bundle of some 58 pages.

The Energy Act 2011 (“the 2011 Act”) created the ‘green deal plan’ as a new way of financing the cost of energy efficiency improvements to residential properties. It included measures such as insulation and solar panels, which reduce carbon emissions and save money on energy bills.

Under a green deal plan the initial cost of purchase and installation of the energy efficiency improvements is met by way of an interest-bearing loan made to the homeowner by the provider or a finance company. The loan is repayable in instalments. Those instalments are paid by an additional charge taken direct from the property’s energy bills. The bill payer either pays an extra amount each month to their energy provider, or additional deductions are made from a pre-payment meter, until the loan under the green deal plan is repaid.

The Sanctions Notice of 10 June 2024 followed an ‘Intention Notice’ issued by the SoS on 20 June 2023.

In issuing the Sanctions Notice, the SoS was satisfied, on the balance of probabilities, that the Appellant failed in her role as “the improver” to obtain written confirmation of consent from the owner before entering into the contract for the solar panels (“the Green Deal Plan” or “Plan”) in breach of regulation 36(1) of The Green Deal Framework (Disclosure, Acknowledgement, Redress, etc.) Regulations 2012, as amended.

The SoS also concluded that the green deal provider (Green Deal Express Limited) failed to ensure that the confirmation or a copy of it was attached to the plan at the time it was entered in breach of regulation 36(2). The green deal provider is no longer authorised, and the benefit of the loan repayments have been assigned to GDFC Assets Ltd. The solar panels remained in situ. In consequence, the SoS firstly imposed cancellation of the Green Deal Plan pursuant to regulation 65(2)(b) on GDFC Assets Ltd (as the ‘relevant person’). The proposed effective date was 24 March 2022, being the date of the complaint by the owner to the SoS.

Secondly, the SoS imposed the sanction of compensation on the Appellant. This requires the Appellant to compensate GDFC Assets Ltd in respect of cancellation of the Plan. The compensation payable was calculated as £3,602.55 as of 15 May 2024, being (a) the outstanding capital at the effective date, and (2) the intertest and servicing fee accrued between then and 15 May 2024. The level of compensation continues to increase as interest and service charges accrue.

Annexed to the Sanctions Notice is a list of documents considered by the SoS. Those documents are not provided within the bundle prepared by the SoS, albeit summaries of responses are given.

The appeal to the Tribunal is dated 5 July 2024. In essence, the ground of appeal is that the Appellant’s landlord was aware of and consented to the Appellant entering the contract for the installation of solar panels at the Property.

The Appellant describes herself as a professional person who upholds the values of honesty and integrity throughout her personal and professional life. In answer to the numbered paragraphs within the Sanctions Notice, the Appellant submits:

To support her case, the Appellant provided a photograph of a handwritten letter dated 1 July 2024 signed by Donna Jenkinson who was the second tenant of the Property after the Appellant herself.

In the letter Ms Jenkinson confirms that she moved into the Property and the owner made her aware of the Green Deal Plan for the solar panels and the terms and conditions. That is why, as a tenant, she set up payments in 2017. However, in 2019 Ms Jenkinson says that she was made aware through the electricity and gas company that the owner tried to transfer the Plan into her name without her permission. Ms Jenkinson confirms that the previous tenant left the paperwork relating to the Green Deal Plan in the Property and the owner was aware of this.

The Appellant states that she does not know Ms Jenkinson with whom she made contact through social media. The Appellant reiterates that whilst residing at the Property, the plan was paid by herself until the tenancy ended in April 2017.

The Appellant considers that the owner has tried to find a loophole to eradicate the debt of the solar panels to her expense. She considers that the SoS has not made a proportionate decision to the case. The Appellant adds that the owner also benefited from a free boiler as part of another green deal scheme, and this was never challenged by the owner.

In the response dated 24 November 2024, the SoS submits that his decision was correct, and the appeal should be dismissed. It is suggested that the Appellant does not appear to challenge the SoS’ discretionary decision to impose cancellation of the Green Deal Plan or that compensation is payable or the amount. The allegation that the sanctions imposed were disproportionate is not particularised.

The SoS considers, on the balance of probabilities, that he was correct to find that the Appellant breached the consent provision because:

The SoS submits that the sanctions imposed were proportionate to the breach.

In her reply dated 26 November 2024, the Appellant emphasises that the SoS has not adequately considered the evidence particularly regarding the issue of consent. The decision is based on hearsay from the owner.

The Appellant refers to the legal framework surrounding the Green Deal, which provides clear steps for situations where [homeowner] consent is either not given or is contested. None of those steps were undertaken in this case.

From 2015 to 2022 no organisation or the owner challenged the Green Deal Plan for the Property. Had it been challenged the Appellant says she would have had opportunity to resolve the dispute. In the original analysis the SoS outlined the concerns that the owner was unaware of the true nature of the Plan prior to his complaint when trying to sell the Property in 2022. The evidence of the second tenant, Ms Jenkinson proves this is incorrect.

The Appellant accepts that her husband was the representative for ‘Sun Spirit’ in this matter. However, it is a fundamental condition that for any work to be carried out under the Green Deal, the property owner must provide written consent. ‘Sun Spirit’ would not have been able to proceed with the installation of solar panels without the proper written consent from the Property owner.

The Appellant categorically denies any mis-selling of the solar panels to the landlord. She maintains that the owner confirmed consented to the installation, as required by the Green Deal terms.

The timeline of events does not align with the evidence. The discrepancy has not been addressed. As an unrepresented individual, the Appellant acknowledges that some particulars were omitted from her earlier submissions in error.

The Appellant accepts that she did not retain the Green Deal Plan documentation. She moved out of the Property in 2017 and, at that time, transferred all relevant paperwork to the landlord. The landlord in turn shared the documentation with the new tenant who continued the payments. In hindsight it would have been prudent to retain these records. After a period of 8 years this matter has unexpectedly resurfaced.

The electronic documentation provided in the SoS’ evidence is typed. The Appellant notes that it is not signed by her.

Sanctioning the Appellant to pay compensation to GDFC Assets Ltd runs contrary to the green deal goals to promote energy efficiency improvements and to create positive environmental and economic outcomes. It also leaves the Appellant in financial hardship, especially when she acted in good faith and followed the regulations to the best of her knowledge and ability.

It is submitted that the Government Legal Department’s (“GLD”) Senior Lawyer emailed the Appellant on 18 November 2024 advising that she had recommended to her client a fresh decision in light of Ms Jenkinson’s statement.

A signed witness statement from Ms Jenkinson is produced dated 8 January 2025. Ms Jenkinson confirms that she lived at the Property from April 2017 to April 2021. She was the second tenant after the Appellant moved out. Ms Jenkinson says she was approached by the Appellant in June 2024 in relation to the difficulties concerning the green deal scheme at the Property. They did not have an ongoing relationship after a brief communication over moving dates in 2017.

It is stated that the owner and his wife were the landlords. The wife continues to reside in the neighbouring property. Throughout Ms Jenkinson’s tenancy, the owner regularly visited to see and collect his child. The owner is described as “not an appropriate landlord” with reference to “times during my tenancy that he would turn up to my home…”.

Ms Jenkinson confirms that the owner provided her with all the paperwork relating to the green deal scheme when she moved into the Property in April 2017 in order that she could set up repayments from her electricity and gas bills. The green deal payments were made by Ms Jenkinson until she left the Property in 2021 with no debt to the plan accrued.

When Ms Jenkinson moved to her current address, she had the Green Deal documents “on my person”. She cannot find the documents, many years having since passed.

She confirms becoming aware from the gas and electricity supplier in 2019 that the owner had tried to transfer the whole responsibility of the Green Deal Plan to herself without her permission or consent.

Ms Jenkinson says she is aware that the owner had difficulties selling the Property due to the solar panels.

The relevant provisions are within The Green Deal Framework (Disclosure, Acknowledgement, Redress, etc.) Regulations 2012, as amended, made under section 3 of the 2011 Act. They are referred to as “the Framework Regulations”.

For the purposes of the Framework Regulations, “the improver” is the occupier or owner who makes the arrangement for energy efficiency improvements to the property. After installation they are also known as the “bill payer”. If they then sell or rent the house, then subject to notification requirements the liability to pay instalments transfers to the new owner or tenant. That new person will then be the “bill payer”.

An “improvement” means an energy efficiency improvement in respect of a property. The person who makes the improvements is the “green deal provider” (“the provider”). In practice it is also the company who sold the plan to the improver. Where, as in this case, the green deal provider is no longer authorised, the payee becomes the “relevant person” (as defined in regulation 51).

An energy plan is not a green deal plan unless the conditions in regulations 30 to 36 are met (regulation 29). In this appeal, the focus is on regulation 36, which provides:

For the purposes of regulation 36, a person is an owner if that person is: (a) a relevant title holder; (b) a landlord of a lease of the property granted for a fixed term which exceeds 21 years, or (c) a licensor under a licence of the property.

Under Chapter 2, section 61, a breach of the consent provision occurs where the improver had failed to obtain a necessary permission or consent to the installation of an improvement at a property under a green deal plan.

Chapter 3 identifies when sanctions may be imposed. At section 65, the sanctions for breaches of the consent provision are as follows:

“65.—(1) This regulation applies where the Secretary of State is satisfied that there is a breach of the consent provision.

(2)

If the Secretary of State is satisfied that the improvement for which the necessary permission or consent should have been obtained— (a) has been removed from the property, the Secretary of State may impose cancellation; (b) has not been removed from the property, the Secretary of State must impose cancellation, on the relevant person

(3)

Where cancellation is imposed on the relevant person, the Secretary of State— (a) except where sub-paragraph (b) applies, must impose compensation; (b) where a person other than the improver is wholly or partly responsible for the breach, may impose compensation, on the improver.

(4)

Where paragraph (3)(b) applies, imposing compensation means that the Secretary of State requires the improver to pay to the relevant person such amount (as a fixed sum or in instalments) as the Secretary of State may determine, being an amount not exceeding the sum payable under paragraph (a) of the definition of compensation in regulation 51.

The “relevant person” is defined in regulation 51 as (a) the green deal provider; or (b) where the authorisation of the provider is withdrawn, the payee.

Whereas, “compensation” means that the Secretary of State requires the improver or notifier, as applicable, to pay to the relevant person—

Where cancellation or compensation must or may be imposed, the SoS must under regulation 72(2) give an “intention notice” to any person other than the relevant energy supplier whom the SoS considers to be an affected person.

Under section 78 a ‘sanctions notice’ must be given to any person to whom the SoS is required to give notice under regulation 72(2) where cancellation or reduction is imposed to the relevant energy supplier and the complainant (if they are not the bill payer). The sanctions notice must contain the information prescribed by regulation 78(2) to (6).

By virtue of section 79, any sanction imposed under chapter 4 must be proportionate to the breach in relation to which it is imposed.

Any person directly affected by a decision of the SoS has a right of appeal to the First-tier Tribunal against a decision to either impose, or not to impose, a sanction under Part 8 (regulation 87). By regulation 87(2), the Tribunal must determine the standard of proof in any case. The powers of the Tribunal on appeal are set out within Regulation 87(4). In relation to a decision under Part 3 or 8, the Tribunal may withdraw, confirm or vary the decision or remit the decision to the SoS. In relation to a decision whether a sanction under Part 8, the Tribunal may impose a different sanction or take different action.

The judgment in GDFC Assets Limited v Heaney and Secretary of State for Energy Security and Net Zero [2024] UKUT 345 (AAC) (“Heaney”) was a test case before the Upper Tribunal about what are termed ‘green deal plans’. Several cases were stayed before the First-tier Tribunal awaiting the outcome.

The Upper Tribunal addressed the argument about whether the duty upon the green deal provider to ‘notify’ the improver of certain estimated figures in regulation 30(3)(c) requires written notification. It found at [76] that “The duty to notify found in regulation 30(3)(c) does not need to be carried out in writing. It can be met by the information being provided orally, in writing or a combination of both.”

The issue of wider importance in Heaneyconcerned the correct approach to the proportionality test found in regulation 79 of the Framework Regulations.

The Upper Tribunal at [100]:

“the imposition of a sanction (be it cancellation or reduction) will necessarily interfere with the green deal provider’s ….[Article 1 of Protocol 1 of ECHR] rights. Moreover, the decision to impose a sanction, be it by the Secretary of State or the FTT … would ordinarily (that is, without consideration of the terms of the statutory scheme) involve the decision maker undertaking a broad proportionality assessment which takes account of all relevant matters. This is because the interference with GDFC’s A1P1 rights must be justified as proportionate in order for it to be lawful. Such a proportionality assessment is provided for on its face by regulation 79. Given the sanction decision will interfere with the green deal provider’s A1P1 rights, it is very difficult to see how the real effect of that A1P1 interference can be ignored, and nothing in regulation 79 in my judgement warrants such a view of the reach of regulation.”

Moreover, the Upper Tribunal found at [101]:

“the words of regulation 79 are clear. The sanction must be proportionate to the breach in relation to which it is imposed. Although this focuses on the breach, I can see nothing in that language which excludes the effect of the sanction on the green deal provider or limits the effect of the sanction to the green energy deal recipient/consumer. All the word ‘breach’ is doing is identifying the act or omission from which the sanction, and the proportionality assessment in respect of that sanction, arises. The objective question to be answered under regulation 79 is whether the sanction for the breach is proportionate in its consequences. This is not, therefore, strictly speaking an exercise in determining fairness inter partes. It is an objective test, imposed in the first instance by the Secretary of State, that the sanction (on the green deal provider) must be proportionate to the breach. I can identify nothing in that wording that necessarily excludes consideration of the effect on the green deal provider of the sanction. That the type or level of sanction must be proportionate to the breach in relation to which it is imposed requires a relationship of proportionality between the breach and the sanction. In my judgement, that statutorily drawn relationship does not exclude consideration of the effects on the green deal provider of the proposed sanction as the same may plainly be relevant to the correct level or type of sanction.”

“The weight to be attached to the windfall benefit was obviously a matter for the FTT to evaluate” [113]. However, it was unclear what the FTT’s reasoning was for giving little weight to the windfall benefit in a context where the plan was a green deal plan. [116]

Regulation 87 provides for appeals to this Tribunal—

The main issues for the Tribunal to determine in this appeal are:

Prior to April 2017, the Appellant was the tenant of the Property.

In 2015 the Appellant (formerly Kaylee Stoves) entered into the Green Deal Plan with a company called Green Deal Express Limited for the installation of solar panels at the Property. The solar panels were installed in 2015.

The Appellant vacated the Property in April 2017.

On 24 March 2022, the owner submitted a complaint to the SoS pursuant to regulation 60 of the Framework Regulations that the Appellant had not obtained his consent prior to agreeing the Green Deal Plan (contrary to regulation 36 of the Framework Regulations).

The owner had not complained to the Green Deal provider before its authorisation was withdrawn.

The complaint was initially reviewed on behalf of the SoS by the Green Deal Ombudsman and Investigation Service, which provisionally concluded that the Appellant had failed to obtain the owner’s consent.

The SoS issued an Intention Notice on 20 June 2023 indicating an intention to impose the sanctions of (i) cancellation of the Green Deal Plan, and (ii) compensation on the Appellant.

On 3 July 2023, the Appellant made written representations in response to the Intention Notice. The Appellant stated that:

The owner was invited to make representations in response. In his reply of 10 August 2023, he “categorically” denied having given either written or verbal consent to the Green Deal Plan or that he had met a representative of the installer. The owner explained that he had moved out of the neighbouring property in early 2013, before the installation in 2015. He pointed out that the Appellant had signed the documentation as the owner of the Property rather than as tenant. Also, that the Appellant’s husband appeared to be working for SunSpirit at the time of installation.

The SoS liaised with GDFC Assets Ltd who hold a copy of the documentation for the Plan. No consent document is held within the file. The SoS is satisfied by evidence provided by the owner that he was not living next door at the time of installation. The owner indicated to the SoS that the Appellant’s husband, Mr Slee, had told him that the solar panels were installed for free by his company, SunSpirit, and the Property would benefit from cheaper utility bills as a result. The SoS has seen what appears to be Mr Slee’s signature on documents connected with the matter. The SoS maintains that this strongly suggests his involvement in selling the plan to the Appellant.

Having conducted further investigations, the SoS issued a final decision notice on 10 June 2024.

The burden of proof in satisfying the Tribunal that the SoS’s decision was wrong lies with the Appellant and the standard of proof is the balance of probabilities.

The Sanctions Notice involves two limbs; (i) the cancellation of the Green Deal Plan and (ii) compensation imposed upon the Appellant. The appeal is brought against the second limb only.

This case is not on all fours with Heaney which concerned the duty to ‘notify’ under regulation 30(3) of the Framework Regulations. This appeal involves the consent provisions within regulation 36. Unlike regulation 30(3), regulation 36(3) is explicit that the confirmation to be obtained from a person under paragraph (1) must be in writing (and contain specified information).

The starting point is whether regulation 36 is applicable. The Appellant was “the improver” for the purposes of the Framework Regulations being the person who made the arrangement for energy efficiency improvements to the Property. She was also the relevant first bill payer. As the owner was neither “the improver” nor “the relevant first bill payer”, the Appellant was bound by the requirements of regulation 36, which is engaged.

The question turns to whether the Appellant obtained the necessary written confirmation of consent from the owner of the Property before the Green Deal Plan was entered.

In arriving at a determination, the Tribunal must disregard any possible data protection breach by the SoS during the course of the appeal. That falls outside the scope of this decision. The type of landlord that the owner may or may not have been is also irrelevant to our determination as to whether or not his prior written consent was given. Furthermore, whilst we can understand the Appellant’s feelings of being disbelieved, those feelings cannot influence our decision. The Tribunal’s focus is upon an objective assessment of the evidence before us as a whole.

The Appellant insists that the owner was not only aware of the Green Deal Plan but consented to it. The Tribunal bears well in mind that the issue is not whether the Property owner was aware of the Green Deal Plan but whether he consented in writing to it before the Plan was entered. Awareness of the solar panels is not enough. The obligation was on the Appellant, as the improver, to obtain his written confirmation of consent. Such consent had to be obtained before entering the Plan.

We note that the SoS response to the appeal pre-dates the more detailed witness statement of January 2025 that was produced for this appeal. However, the Senior Lawyer at GLD did not give any assurances to the Appellant in their email message of 18 November 2024. The message was non-committal. It stated: “I am conscious that you have been able to locate an additional witness statement since the [SoS] made his decision, and therefore it might be that with her evidence a different decision would have been made. This is something that the Tribunal will be asked to consider, and I will be taking instructions on.”

It is the evidence of the Appellant, independently corroborated by Ms Jenkinson that the documentation for the Green Deal Plan was left with the landlord. Ms Jenkinson maintains that she kept the documents but has been unable to find them. That is perhaps unsurprising given the long lapse in time between her moving out of the Property in 2021 and being contacted by the Appellant in 2024. Notably, Ms Jenkinson does not refer to any recollection of seeing written confirmation of consent from the owner. The evidence of Ms Jenkinson confirms the existence of the documentation, but it takes us no further in establishing whether prior written consent existed. It does no more than confirm that the owner knew of the Plan and seemingly had no issues with it. As evidence, it carries very little weight in establishing the issue of consent.

There is suggestion that the Appellant signed the documentation for the Plan as owner of the Property rather than as tenant. The SoS also refers to having seen what appears to Mr Slee’s signature on documents connected with this matter. This indicates that documents exist that have not been produced in this appeal for us to consider and attribute any weight to them. Mr Slee’s involvement in selling the Plan might explain why the Appellant entered the arrangement as the SoS suggests, but that does not assist us evidentially.

Ultimately, there is no contemporaneous written evidence confirming the owner’s prior consent. Whilst it was a long time ago, no particulars are given of the circumstances in which the transaction is said to have been conducted. The Appellant has not explained any of the details of how the owner came to provide his consent. If the Plan was arranged by SunSpirit, documentation might have got lost. As Mr Slee worked for SunSpirit and was someone actively involved in securing the transaction, his evidence might have assisted yet it has not been provided. Very limited weight attaches to the argument that it was virtually impossible to register the Plan without owner consent when there is no evidence produced to verify that would be so.

This may have been a case where there was owner consent but what we are missing is evidence of such consent. A bare assertion is not evidence. On the available evidence we cannot be satisfied, on the balance of probabilities, that the Appellant’s evidence suffices to discharge the burden of proof that written consent from the owner was obtained in advance. On that basis, there was a breach of regulation 36.

The question turns to sanction. Where there is a breach and the solar panels requiring consent have not been removed, then cancellation must be imposed (regulation 65(2)(b)). Where cancellation is imposed, compensation must also be imposed on the improver except where a person, other than the improver, is wholly or partly responsible for the breach, in which case compensation may be imposed (regulation 65(3)).

In this case, there was a technical breach that was partly attributable to SunSpirit or the provider not keeping the paperwork in order. That does not change the decision. However, it was the responsibility of the green deal provider to ensure that the confirmation or a copy of it from the owner was attached to the Plan at the time it was entered into (regulation 36(2)). That omission had a significant impact on the ability of the Appellant being able to demonstrate that compliance with regulation 36 was achieved.

Moreover, it strikes the Tribunal as extraordinary that if the owner did not agree to the installation of the solar panels in 2015 why he left it until 2022 before raising complaint. He may no longer have been living in the neighbouring property by the time of the installation, but the evidence indicates that his family continued in occupation, and he visited regularly. It is implausible that the owner did not know about the solar panels when they are such an obvious physical feature. If he had not given consent, there is no reasonable explanation for a 7-year delay before raising complaint. On the balance of probabilities, the owner gave consent to the improvements even if he did not do so in writing. He had a large degree of responsibility in the breach arising. By delaying his complaint for as long as he did, the owner severely prejudiced the Appellant’s ability to demonstrate that there was no breach.

The Tribunal is satisfied that there was a breach of the consent provision (regulation 65(1)). The Tribunal accepts that it was a technical breach. Responsibility for the breach lies partly with others. Therefore, compensation does not have to be imposed (regulation 65(3)(b). The actions of the owner and SunSpirit and/or the provider have impaired the ability of the Appellant to demonstrate compliance with the requirements of regulation 36 to such an extent that it would not be fair and proportionate to impose a sanction upon her in all the circumstances of the case.

In reaching this conclusion the Tribunal has had regard to the effect of the interference with the ECHR Protocol 1, Article 1 rights of GDFC Assets Ltd, as the relevant person.