Falsified EPCs created by an Assessor - urgency to do something...

ComicGeek

Robbo66 said:

adviseforumthanks said:

Yes, am perfectly happy if landlord insulates or applies of exemptions.

Just seems obvious flaw to continue advertising something as correct by a government regulated "accreditation centre" when they have indicated it can't be right. 

If the BEIS or DLUHC are impossible to contact then I assume the only remediation (?) is with the EA's and their legal requirements under  the - Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008? (if have been told something is wrong, they have to investigate and do something). Currently they are not doing anything.  

...unless I am missing something?

Until the relevant body has investigated and ruled upon their finding they don't have to do anything as currently there is only a suspicion that the EPC is incorrect being raised by a random member of the public.

Absolutely - it is also extremely rare for an EPC to be quite so wrong as this appears to be, and also very rare for the EPC rating to be any significant factor in someone buying/renting a property, so this is probably a situation that hasn't arisen many times before.

There is a process, which albeit slow does need to be completed. I submitted yet another audit myself this morning, and the typical turnaround from the accreditation body for their part of the audit is 30 days....

adviseforumthanks

ComicGeek said:

There is a process, which albeit slow does need to be completed. I submitted yet another audit myself this morning, and the typical turnaround from the accreditation body for their part of the audit is 30 days....

Feels like the process is setup for owner-occupiers/landlords who are unhappy with their low rating, not for a falsified highly rated EPC which has been created and reported by a third party - under those circumstances is seems valid to void the suspect EPC pending investigation to prevent impacts to any transactional parties?

MH1927

Very few E&W laws work on the basis you propose (Guilty until proven innocent essentially), Judges tend to hate them with a passion and will happily pass judgements rendering them ineffective.

Plus if the landlord is an individual it will probably be in breach of Article 6(2) of the Human Rights Act 1988.

adviseforumthanks

MH1927 said:

Very few E&W laws work on the basis you propose (Guilty until proven innocent essentially), Judges tend to hate them with a passion and will happily pass judgements rendering them ineffective. Plus if the landlord is an individual it will probably be in breach of Article 6(2) of the Human Rights Act 1988.

Think that's guilt and innocence of a person. This is more about process that is trying to be rigorous, but permitting an accreditation agency to published an EPC as valid when the accreditation agency themselves are saying on the balance of probabilities its invalid.

Section62

MH1927 said:

Very few E&W laws work on the basis you propose (Guilty until proven innocent essentially), Judges tend to hate them with a passion and will happily pass judgements rendering them ineffective.

In criminal law perhaps.  But what the OP is proposing is within civil law, and I think rests specifically in contract law, because the EPC is a document that is produced by one party, on behalf of a second party, which a third party may rely on when entering into a contract with the first party.

There are lots of examples of where the law in England and Wales works on that basis.  If the EPC were 'voided' by a court rather than the accreditation body then it could be a form of injunctive relief, something which is commonplace - with courts blocking or suspending certain actions until it is possible for the issues to be properly examined.

It is also a daily occurrence that judges remand 'innocent' people to jail - assuming a level of guilt, but balancing the harm to the 'innocent' individual against the need to protect others.

At a lower level it isn't unusual for contractual conditions or regulatory requirements to enable the reversal of a (financial) transaction on the say-so of one party, pending an investigation. These situations are not uncommon at all.

What the OP is proposing (voiding or suspending an EPC where there is doubt about its accuracy) is a form of consumer protection.  If a case went to court challenging the voiding of an EPC then the first question a judge is likely to consider is who is the (potential) victim here?  More than anything judges tend to consider the plight of (potential) victims - and it doesn't take a lot of thought to realise that the principal 'victim' in a contractual situation where inaccurate information has been provided is the person who relied (or would rely) on that information to make the decision they did.

MH1927 said:

Plus if the landlord is an individual it will probably be in breach of Article 6(2) of the Human Rights Act 1988.

I don't see how.  Article 6(2) as per the 1998 Act relates to people charged with a criminal offence.


(INAL)

MH1927

The OP mentioned the the falsified EPC is in breach of the CCR's, breaches of which are Criminal offences. 

The fact that there are never criminal prosecutions is irrelevant as long as it remains a criminal offence.

An EPC voided by a court is fine, but that is not what the OP suggested. He stated that EPC's should be suspended upon receipt of a complaint.

Section62

MH1927 said:

The OP mentioned the the falsified EPC is in breach of the CCR's, breaches of which are Criminal offences. 

The fact that there are never criminal prosecutions is irrelevant as long as it remains a criminal offence.

An EPC voided by a court is fine, but that is not what the OP suggested. He stated that EPC's should be suspended upon receipt of a complaint.

It is possible in some circumstances that a criminal offence might have been committed, but I don't recall the OP suggesting that the production and/or use of an erroneous EPC should lead to conviction without a fair trial.

'Suspension' of an EPC on receipt of a complaint would not be a conviction, nor would it prejudice the trial of someone charged with an offence in relation to the production or use of it.  The 'suspension' would be a neutral act.

EPCs are produced under a scheme of regulations and accreditation.  If the regulations allowed for an EPC to be immediately suspended or voided (by the accreditation body or (say) the local authority) on receipt of a complaint, there would be no need for a court to be involved, other than perhaps as part of an appeals process.

Like the OP, I'm surprised there is no mechanism in place already to promptly alert interested people that an EPC is under review/audit, or to remove it from use until an investigation has been completed.

Robbo66

adviseforumthanks said:

ComicGeek said:

There is a process, which albeit slow does need to be completed. I submitted yet another audit myself this morning, and the typical turnaround from the accreditation body for their part of the audit is 30 days....

Feels like the process is setup for owner-occupiers/landlords who are unhappy with their low rating, not for a falsified highly rated EPC which has been created and reported by a third party - under those circumstances is seems valid to void the suspect EPC pending investigation to prevent impacts to any transactional parties?

Again you use the word falsified but you have no proof it has been falsified. When an assessor produces an EPC some aspects of the property are assumed in fact quite a few, it is a tick box exercise and once the info is inputted in to the computer the system they use produces the report. Whilst I agree one of them is incorrect it could have been the original one and the new one is possibly close to what it is. 

Section62

Robbo66 said:

adviseforumthanks said:

ComicGeek said:

There is a process, which albeit slow does need to be completed. I submitted yet another audit myself this morning, and the typical turnaround from the accreditation body for their part of the audit is 30 days....

Feels like the process is setup for owner-occupiers/landlords who are unhappy with their low rating, not for a falsified highly rated EPC which has been created and reported by a third party - under those circumstances is seems valid to void the suspect EPC pending investigation to prevent impacts to any transactional parties?

Again you use the word falsified but you have no proof it has been falsified. When an assessor produces an EPC some aspects of the property are assumed in fact quite a few, it is a tick box exercise and once the info is inputted in to the computer the system they use produces the report. Whilst I agree one of them is incorrect it could have been the original one and the new one is possibly close to what it is. 

That's possible of course, but see ComicGeek's comments about the way assumptions are used in the process, and what that might lead someone to conclude from a quick comparison of the two.

I agree there is no proof that the EPC has been 'falsified', and I've already commented on the OP's use of that word.

However, that shouldn't diminish the point that if the new EPC (on the balance of probabilities or whatever) is clearly incorrect, that it should be withdrawn/voided/suspended without delay and, failing that, anyone who might rely on the EPC in making a decision should be made aware that the accuracy of the EPC is under review.

adviseforumthanks

Section62 said:

However, that shouldn't diminish the point that if the new EPC (on the balance of probabilities or whatever) is clearly incorrect, that it should be withdrawn/voided/suspended without delay and, failing that, anyone who might rely on the EPC in making a decision should be made aware that the accuracy of the EPC is under review.

Totally right. But who can suspend it? The accreditation scheme? - don't know if they have the access as it looks like the assessor is in control of what is on the register and they may get suspended - no idea who has the actual ability to take the EPC of the register until things are sorted (motivation to do it is another matter)?