Organisations are often surprised when they discover that they are subject to the requirement to obtain a Display Energy Certificate (DEC). In fact, in the context of modern public service delivery, the term “Public Authority” is actually very misleading. Many organisations that would not normally be considered councils or authorities actually require DECs.
If, as an organisation, you are unsure as to whether or not you are a Public Authority for the purposes of these regulations you should seek you own legal advice. When considering if your not-for-profit or charity is subject to these regulations the key would normally be in deciding if you are a body “governed by public law”. We have development the questionnaire below to help you decide.
Public Authority Self-Determination Questionnaire
Are you listed in Schedule 1 of The Public Contracts Regulations 2015 (click to view) or Schedule 1 of The Freedom of Information Act 2000 (click to view), a regional authority or a local authority (county, borough, district, town, parish councils etc.)?
If your organisation is one of these then you are a “Public Authority” and will require DECs on the premises you occupy if the floor area and public visitation requirements are also met. If you are not listed you should continue to Question 2 to see if you are subject to the regulations through the additional criteria.
Do you have a legal personality for the purposes of the regulations? In effect, are you a legal body other than an individual?
Typical examples could include a Limited Liability Company (including charitable companies), Public Limited Company (PLC), Limited Liability Partnership (LLP), Community Interest Company (CIC), Charitable Incorporated Organisation (CIO), Co-operative Society (Co-op), Community Benefit Society (BenCom) and Financial Mutual. If your organisation is any of these you may be a “Public Authority” and should continue to Question 3. If not, you probably have no legal personality in this sense and so are not subject to mandatory Display Energy Certificates.
Is your organisation established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character?
A traditional business exists to make wealth (money) for distribution to its owners, investors and shareholders. In other words, it has industrial or commercial character and would not be considered a “Public Authority” hence you are not subject to mandatory Display Energy Certificates. In contrast, public bodies in this sense exist to meet the general needs of society or of communities. They often provide services like health, social care, education, child care and recreation etc on a not-for-profit basis. They typically use any profits they make from business activities to reinvest in the provision of these services. They may also have a legal “asset lock” preventing the distribution of any profits or assets to members or shareholders. If you are a public body then you may be a “Public Authority” and should continue to Question 4.
Does the majority of your finance come from the State, regional or local authorities or other bodies governed by public law?
If the majority of your organisation’s funding comes from the government, regional authorities, local councils or other public bodies (likely to include grants from charities etc) then you are a “Public Authority” and will require Display Energy Certificates for the premises you occupy if the floor area and public visitation requirements are also met. If not, continue to Question 5.
Are you subject to management supervision from the State (including central government departments), regional or local authorities or other bodies governed by public law?
A simple way of determining this is to consider if you are free to run your organisation as you wish or whether you have to account for decisions that are made or actions taken to another organisation. For example, most organisations receiving public money have to report upon the activities funded directly or indirectly back to the funding organisation, i.e. they are subject to supervision to ensure the money is spent as intended. Registered Charities are subject to the supervision of the Charity Commission which is part of the State. Similarly NHS practices are subject to supervision from the Department of Health through NHS Trusts and schools, colleges and academies are subject to supervision by the Department of Education through OfSTED. If you are subject to management supervision then you are a “Public Authority” and will require Display Energy Certificates on the premises you occupy if the floor area and public visitation requirements are also met. If not, continue to Question 6.
Please Note: Educational establishments should remember that students are considered to be members of the public under these regulations.
Do you have an administrative, managerial or supervisory board with more than half its members appointed by the State (including central government departments), regional or local authorities or other bodies governed by public law?
If your organisation does then it is a “Public Authority” and will require Display Energy Certificates on the premises it occupies if the floor area and public visitation requirements are also met. If not, you are probably not a “Public Authority” and so will not require mandatory DECs on the premises you occupy. However, “Public Authorities” are exempted from ESOS and so you will be subject to the requirements of the Energy Savings Opportunities Scheme (ESOS) if you meet the other qualifying criteria.