The Energy Act 2011 aims to improve the energy efficiency within the private rent sector by making it unlawful to rent a property with an Energy Performance Certificate (EPC) rating of F or G. This will apply to all NEW tenancies from 1^st April 2018, including extensions and renewals, and any statutory periodic tenancies which come into existence at the end of a fixed term tenancy. The new regulations will apply to ALL privately rented properties from 1^st April 2020.

Under separate legislation tenants are already able to request consent from their landlords to carry out energy efficiency improvements which cannot be unreasonably refused. However, it is the tenant’s responsibility to source funding as landlords are not required to contribute to any up-front costs. This does pose somewhat of a quandary as the Green Deal funding ceased in July 2015 with no replacement expected until 2017, so who will fund these improvements?

The enforcement of these regulations will be the responsibility of the local authority, assisted by a central register, the ‘PRS Exemptions Register’. Where a landlord feels that an exemption applies to their property permitting it to be let below the minimum energy standard they must provide evidence of this which will be stored on the register and made available to local authorities in order for them to target their enforcement activity.

Where a council suspects that a property is not compliant, or has not sufficiently evidenced an exemption from the minimum standards a compliance notice can be served on the landlord requesting further information. Where the landlord fails to provide this information, or the provided information is insufficient a penalty notice can be served by the authority.

The penalties for a single offence can be cumulative up to a maximum amount of £5,000 with further penalties only enforceable when either the tenant changes, or the regulatory backdrop comes into effect.

The below table highlights the possible infringements and the related penalties which are fixed and do not vary according to the severity of the breach:

Landlords can request a review of the council’s decision to serve a penalty notice which must be undertaken by the authority. Where an authority is not satisfied that the landlord committed the breach resulting in the penalty, or it was not appropriate to serve a notice, the penalty charge notice must be withdrawn. Where the authority maintains that the landlord is in breach and no exemptions apply any penalty charge notice will still apply. If a landlord continues to dispute the notice they may proceed to the appeals stage.

Landlords may appeal any penalty notice on the basis that the penalty notice was issued in error of law or fact, the penalty does not comply with the Regulations, or that it was inappropriate in the circumstances for the penalty notice to have been served. The appeal would be heard at the First Tier Tribunal General Regulatory Chamber.

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