Public Authority

The term "Public Authority" is important in determining whether an organisation requires a Display Energy Certificate (DEC) or is subject to the Energy Savings Opportunity Scheme (ESOS) instead.

Due to some significant differences between the systems the devolved administrations have introduced, different rules apply in different parts of the UK.

Display Energy Certificate (DEC)

The current regulations in England do not contain a specific list of public authorities.  Nor do they contain a clear definition of the term.  However, the regulations were intended to include central and local government, schools, colleges, academies, free schools, universities, hospitals, NHS funded centres and surgeries, libraries, publicly funded museums, emergency services, social services, publicly funded sports and leisure facilities and most other civic buildings.  As such, with the current format of service provision by charities, not-for-profits, community groups, agencies and arm’s length organisations, it is not correct just to assume the term is restricted to government departments and council facilities.

In the absence of a clear definition, it has become commonly accepted that the meaning of “public authority” in The Energy Performance of Buildings Directive (England & Wales) Regulations 2012 is the same as the term “contracting authority” as defined in 2(1) of The Public Contracts Regulations 2015. Additionally, a similar list of “public authorities” can be found in The Freedom of Information Act 2000. This definition is further reflected in The Energy Savings Opportunity Scheme Regulations 2014 which ensures organisations are potentially subject to either mandatory Display Energy Certificates or Energy Savings Opportunities Scheme (ESOS) assessments but should not be simultaneously subject to both sets of regulations.

The Public Contract Regulations 2015 state:

“contracting authorities” means the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law, and includes central government authorities, but does not include Her Majesty in her private capacity;

“bodies governed by public law” means bodies that have all of the following characteristics:—

(a)they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b)they have legal personality; and
(c)they have any of the following characteristics:—

(i)they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law;
(ii)they are subject to management supervision by those authorities or bodies; or
(iii)they have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.

We have developed a Self-Determination Questionnaire to help you decide if your organisation qualifies.  It can be found here.

The Scottish system deals with the need of public authorities to report energy consumption to the public under the Energy Performance of Buildings Directive (EPBD) differently.  The system in place does not require a Display Energy Certificate and so further definition is not required.

Whilst this is now an area of devolved responsibility in Wales, at the time the regulations were introduced responsibility lay with the Government in Westminster.  As such, the current regulations are the same as in England.

The regulations do not contain a specific list of public authorities.  Nor do they contain a clear definition of the term.  However, the regulations were intended to include central and local government, schools, colleges, academies, free schools, universities, hospitals, NHS funded centres and surgeries, libraries, publicly funded museums, emergency services, social services, publicly funded sports and leisure facilities and most other civic buildings.  As such, with the current format of service provision by charities, not-for-profits, community groups, agencies and arm’s length organisations, it is not correct just to assume the term is restricted to government departments and council facilities.

In the absence of a clear definition, it has become commonly accepted that the meaning of “public authority” in The Energy Performance of Buildings Directive (England & Wales) Regulations 2012 is the same as the term “contracting authority” as defined in 2(1) of The Public Contracts Regulations 2015. Additionally, a similar list of “public authorities” can be found in The Freedom of Information Act 2000. This definition is further reflected in The Energy Savings Opportunity Scheme Regulations 2014 which ensures organisations are potentially subject to either mandatory Display Energy Certificates or Energy Savings Opportunities Scheme (ESOS) assessments but should not be simultaneously subject to both sets of regulations.

The Public Contract Regulations 2015 state:

“contracting authorities” means the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law, and includes central government authorities, but does not include Her Majesty in her private capacity;

“bodies governed by public law” means bodies that have all of the following characteristics:—

(a)they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b)they have legal personality; and
(c)they have any of the following characteristics:—

(i)they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law;
(ii)they are subject to management supervision by those authorities or bodies; or
(iii)they have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.

We have developed a Self-Determination Questionnaire to help you decide if your organisation qualifies.  It can be found here.

The Department of Finance for Northern Ireland provide a list of organisations that are subject to the Display Energy Certificate (DEC) requirements in Northern Ireland.

For these purposes, public authorities and institutions would include, for example:

  • NHS Trusts
  • healthcare centres (but not private care/nursing homes)
  • hospitals (but not private hospitals unless NHS patients are admitted as well)
  • leisure centres (but not private health clubs)
  • schools and higher education authorities, including universities (but not private schools)
  • large central post offices
  • police stations, prisons and courts
  • public libraries and
  • museums and art galleries sponsored by public authorities

Energy Savings Opportunity Scheme (ESOS)

For the Energy Savings Opportunity Scheme (ESOS) a Public Authority is clearly defined as an organisation with a registered office in England, Wales or Northern Ireland that is subject to Regulation 3 of the Public Contracts Regulations 2006 for the first compliance period, replaced by Regulation 2(1) of the Public Contracts Regulations 2015 for the second and subsequent compliance periods.

Under the Energy Savings Opportunity Scheme (ESOS), Public Authorities are defined to be organisations subject to Regulation 3 of the Public Contracts (Scotland) Regulations 2012 in Scotland for the first compliance period, replaced by Regulation 2(1) of the Public Contracts (Scotland)
Regulations 2015 for the second and subsequent compliance periods.

For the Energy Savings Opportunity Scheme (ESOS) a Public Authority is clearly defined as an organisation with a registered office in England, Wales or Northern Ireland that is subject to Regulation 3 of the Public Contracts Regulations 2006 for the first compliance period, replaced by Regulation 2(1) of the Public Contracts Regulations 2015 for the second and subsequent compliance periods.

For the Energy Savings Opportunity Scheme (ESOS) a Public Authority is clearly defined as an organisation with a registered office in England, Wales or Northern Ireland that is subject to Regulation 3 of the Public Contracts Regulations 2006 for the first compliance period, replaced by Regulation 2(1) of the Public Contracts Regulations 2015 for the second and subsequent compliance periods.