Carol Heaney v The Secretary of State for Business, Energy & Industrial Strategy & Anor
[2022] UKFTT 416 (GRC)
GDFC Assets Limited v Carol Heaney & Anor
6 November 2024
[2024] UKUT 345 (AAC)
Upper Tribunal
A homeowner claimed a 'green deal' loan for home improvements was mis-sold. A lower court cancelled the loan, but a higher court reversed that decision. The higher court ruled that the company selling the loan did not have to provide written notification about payment terms, and that fairness to both the homeowner and the company needed to be considered when deciding about the loan.
Key Facts
- •GDFC Assets Limited appealed a First-tier Tribunal (FTT) decision that cancelled a 'green deal plan' due to mis-selling by HELMS.
- •Ms Heaney, the consumer, claimed mis-selling as she wasn't aware it was a loan and faced high repayments.
- •The Secretary of State initially imposed a reduction sanction, but the FTT changed it to cancellation.
- •The appeal concerned the interpretation of the Energy Act 2011 and related regulations on green deal plans.
- •A key issue was whether compliance with Regulation 30(3)(c) (notification of instalment amounts) was a condition for a plan to be a 'green deal plan'.
Legal Principles
Statutory interpretation: The court must construe the words of the legislation in their statutory context.
R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255
Proportionality: A sanction must be proportionate to the breach, considering the impact on both the consumer and the provider. The effect on the provider's Article 1 Protocol 1 rights cannot be ignored.
Regulation 79 of the Green Deal Framework Regulations 2012; Article 1 of the First Protocol to the European Convention on Human Rights
'Notify' in Regulation 30(3)(c) does not require written notification; oral notification suffices.
Regulation 30(3)(c) of the Green Deal Framework Regulations 2012; Regulation 3 of the Green Deal Framework Regulations 2012
Tribunal procedure: A tribunal is not restricted to a review of the Secretary of State's decision; it reaches its own decision, but it must pay careful attention to the Secretary of State's reasoning.
R(Hope & Glory Public House Ltd) v City of Westminster Magistrates’ Court [2011] EWCA Civ 31, and Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60
Outcomes
The Upper Tribunal allowed GDFC Assets Limited’s appeal.
The FTT erred in law by: (1) incorrectly interpreting Regulation 30(3)(c) as requiring written notification; (2) failing to properly consider the evidence regarding notification; (3) misapplying the proportionality test by neglecting the impact on GDFC; and (4) misinterpreting its preliminary decision regarding windfall benefits.
The FTT decisions were set aside.
Material errors of law affected the FTT's decision.
The Upper Tribunal dismissed Ms Heaney’s appeal.
The Secretary of State's reduction sanction was confirmed because the Upper Tribunal found that the regulation 30(3)(c) notification had been given and that the sanction was proportionate.