Enforcement of the regulations

The main features of the enforcement provisions are as follows.

1. It is the duty of every local weights and measures authority to enforce the EPC, DEC and air-conditioning inspection duties it its area. (regulation 38).

2. They have power to require a person to produce within seven days an EPC and recommendation report, advisory report or air-conditioning inspection report for inspection, up to six months from when that person was subject to a duty in relation to that document. (regulation 39).

3. Where a breach of duties is believed to have taken place, including the duty under regulation 39 to produce a document for inspection, an enforcement authority may, if it considers that penalty charge notice ought to be given, give such a notice to the person who has committed the breach, up to six months after that breach. The notice must contain specified particulars. It is payable within 28 days or such longer period specified by the authority. A notice may be withdrawn by the authority. (regulation 40).

4. The recipient of the notice can, within the time specified for payment, give notice requiring the enforcing authority to review its decision to give the notice.

5. If the notice is confirmed on review, an appeal may be made to a County Court, and must be lodged within 28 days of that confirmation or such extended time as the county court may allow (regulation 45).

6. The penalty charge amount is recoverable as a debt (regulation 46).

7. A person who obstructs, an enforcement officer or who, not being an enforcement officer, purports to act as one, commits an offence and is liable to a fine (not exceeding level 5) on conviction. (regulation 48).

Enforcement officers have no powers to check the accuracy of the energy efficiency information in the EPC, only that it has been issued by an accredited assessor and entered into the EPC register in relation to the building featured in the transaction and is valid in respect of time.
Power to require documents

The Regulations give trading standards officers as authorised officers of the enforcement authority the power to require a person under a duty to produce an EPC and recommendation report, advisory report or air-conditioning inspection report for inspection within seven days of the request. A person is not required to comply with the request if they have a reasonable excuse for not doing so.
Penalty charge notices

There is no statutory form for the notice, but it must:

* State the officer’s belief that the person has committed a breach of duty

* State the circumstances of the breach

* Require that the person either pay the penalty charge or ask the local authority to review the notice within the specified period for payment

* Tell the recipient that the penalty charge is recoverable as a debt

* Specify to whom and at what address the penalty charge may be paid and the payment method or methods

* Specify to whom and at what address a request for a review and any representations relating to it should be addressed.

The main penalty charges are as follows:

* When selling or renting a home, the penalty is £200 for failing to make available an EPC or recommendation report to any prospective buyer or tenant or to give an EPC or recommendation report to the person who ultimately becomes the buyer or tenant

* The penalty for failing to make an EPC available to any prospective buyer or tenant when selling or letting non-dwellings is fixed, in most cases, at 12.5 per cent of the rateable6 value. The range of penalties under this formula is set with a minimum of £500 and capped at a maximum of £5,000, with a default penalty of £750 where the formula cannot be applied

* For failure to display a DEC the penalty will be £500 and for a failure to be in possession of an advisory report, £1,000

* For failure to have an air-conditioning inspection the penalty will be £300.

* For failure to produce a document to an authorised officer when required to do so the penalty is £200.

The receipt of a penalty charge notice does not remove the need to comply with the duty for breach of which it was given.

The enforcing authority may withdraw the notice if considers that it should not have been given, and must withdraw it if the recipient can demonstrate that he or she:

* Took all reasonable steps and exercised due diligence to avoid the breach; or

* Has a defence set out in regulation 42.

The relevant person is not liable to a penalty charge for a breach of duty by failing to make available an EPC or recommendation report to a potential purchaser if he or she has been given a penalty charge notice under the HIPs legislation in respect of that same failure.
Defences

Reg 42 of the Regulations establishes two defences where an EPC is not obtainable in time:

A person will not be liable to a penalty charge where they can show that they made a request to an energy assessor to obtain an EPC at least 14 days before it was needed and that despite all reasonable efforts and enquiries have been unable to obtain it. The request for an EPC in these circumstances must have been addressed to an energy assessor likely to be able to provide an EPC for the category of building in question, and accompanied by the necessary payment or an undertaking to pay.

A landlord will also not be liable if a prospective rental tenant is seeking to rent the building due to an emergency which required his urgent relocation, the landlord has no EPC available, and there is insufficient time for the landlord reasonably to be expected to obtain one before the building is rented out to that tenant. The landlord must nonetheless give an EPC to the tenant as soon as is reasonably practicable.

If a penalty charge notice is withdrawn, the enforcement authority must refund any charge already paid.
Reviews

When the recipient of a penalty charge notice has asked the notice authority to review their decision to issue it, the authority must withdraw the notice if it is not satisfied that:

* The recipient commited the breach of duty specified in the notice; or

* The notice was issued within time and contained the necessary particulars; or

* In the circumstances of case it was appropriate for the notice to be given to the recipient.

Appeals

If a person who has been issued with a penalty notice is not satisfied with the review, they may appeal to the County Court within 28 days after having the penalty charge confirmed.

If a penalty charge has been confirmed, an appeal can be made on one or more of the following grounds:

* The recipient did not commit the breach of duty specified in the penalty charge notice;

* The notice was not given within the period specified, or contain the necessary particulars; or

* In the circumstances of the case it was inappropriate for the notice to be given to the recipient.

Where an appeal is considered by the County Court, the court may either uphold the penalty charge or quash it. Where it is quashed, the enforcement authority must refund any charge already paid.
Offences relating to enforcement officers

A person who obstructs a trading standards officer who has required an EPC and recommendation report, advisory report or air-conditioning inspection report for inspection is guilty of an offence and liable upon conviction to a fine not exceeding level 5 (currently £5,000 maximum).

A person who is not an enforcement officer and purports to act as such is guilty of an offence and liable upon conviction to a fine not exceeding level 5 (currently £5,000 maximum).
Enforcement Checklist

The following checklist is designed to help enforcement officers carry out their duties:
1. Is the relevant person claiming the property is exempt? If so, consider whether this is correct, consulting relevant EPC, DEC and air-conditioning inspection guidance and the Regulations.
2. If the relevant person is claiming that an EPC, DEC or air-conditioning report is completely unobtainable, is this correct/does it seem reasonable?
3. Is the EPC authentic ie registered?
4. Has the relevant person unjustifiably failed to make available a copy of the EPC to a potential buyer?
5. Has the relevant person without reasonable excuse taken longer than allowed (seven days) to produce a document to the enforcement officer?
6. Is it more than six months since the relevant person ceased to be under a duty (in which case the enforcement officer cannot require the production of the document)?
7. Has the relevant person imposed any unreasonable conditions on the potential buyer seeing the EPC or charged for providing a copy of the EPC?
8. Is action other than a Penalty Charge Notice a more appropriate exercise of enforcement functions in the particular case eg a warning?