Freesteel Blog » My written evidence on EPCs to Parliament

My written evidence on EPCs to Parliament

Friday, June 24th, 2011 at 11:04 pm Written by:

I have had some long running FOI disputes about the handling of Energy Performance Certificates (EPCs) because they are pointlessly kept confidential, unlike the amount you paid for your house, the name of your mortgage company, or any planning applications you have taken out on your property.

My campaign took a turn when I went to an afternoon talk by Luciana Berger MP about government climate change policy and what was going on with the new Energy Bill. I read the text of the Bill off my phone while the meeting was getting going.

Bingo!

Here is Clause 73:

Access to register of energy performance certificates etc: England and Wales

(1) The Secretary of State may make regulations for the purpose of authorising the person keeping a register to disclose, in accordance with the provision made in the regulations, the documents or data entered onto the register.

(2) The power under subsection (1) may be exercised, in particular, to make provision—

    (a) excluding a document or data, or a specified part of a document or data, from disclosure where the document or data relates to a specified description of buildings;
    (b) excluding a document or data, or a specified part of a document or data, from disclosure to a specified description of persons;
    (c) restricting the number of disclosures made to a specified description of persons;
    (d) for a disclosure made to a specified description of persons to be subject to specified conditions;
    (e) as to the sanctions for non-compliance with any condition specified by virtue of paragraph (d) (including sanctions preventing or restricting future disclosures);
    (f) in consequence of any provision which is made by virtue of paragraphs (a) to (e).

(3) In subsection (1) “a register” means a register maintained under Part 6 of the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 (S.I. 2007/991S.I. 2007/991).

(4) In subsection (2) “specified” means specified in the regulations made under this section.

(5) Regulations under this section may make different provision for different cases or circumstances or for different purposes.

(6) Regulations under this section are subject to the negative procedure.

(7) For the purposes of this section a reference to the disclosure of a document or data includes a reference to disclosure of information derived from the document or data.

Basically, in keeping with the consultation documents, the government was going to loosen up access a little bit, but not so much that any of the information could possibly be used or something.

I stood up and said my piece about why can’t they be public documents for the benefit of market forces. Luciana replied that I should send her further information. My email to her bounced back because I am not one of her constituents. I argued with her assistant about it and got it past. Then I ran into her again a couple of months later on the night of the local election count. She recognized me and remembered what I was talking about. I sent her a suggestion for an amendment to the Bill. No reply came back. I looked on the Parliamentary website for any further news. Then, very fortunately, I discovered this section.

Holey Moley, why didn’t anyone show me.

Have your say

The Bill is being scrutinised by the Energy Bill Committee and there is a call for written evidence.

Do you have relevant expertise and experience or a special interest in the Government’s Energy Bill? If so, you can submit your views in writing to the House of Commons Public Bill Committee which is going to consider this Bill.

I stayed up late that night and produced my testimony. I got a form letter back from the Scrutiny Unit. A week later (yesterday) I had a look, and was pleased to see it was there!:

Memorandum submitted by Julian Todd (EN 25)

1. Summary: Information about the energy performance of buildings is now virtually unavailable to the housing market and is likely to remain so in spite of the passage of Clause 72 of the Energy Bill. Unless this information becomes properly accessible it is unlikely that energy efficient buildings will command the price differential that they deserve.

2. Parliament should use this opportunity to move control of the database of Energy Performance Certificates from the Department of Communities and Local Government to the Land Registry where the information can be disseminated to the market in the same way that house price sales, mortgage details and flooding risks currently are.

3. About me. My name is Julian Todd and I am currently CTO of ScraperWiki Ltd, an open source data technology platform. I am writing this submission entirely in my own capacity. I have long held an interest in the gathering and re-use of government data sets. This particular data set was brought to my attention by a colleague in the green energy industry. It represents one of the worst cases of unnecessarily lost opportunity among all the government data sets I have encountered.

4. Details. Under the current regulations[1] it is an offence to disclose information derived from an Energy Performance Certificate of a building to someone who is not legitimately connected to the decision to purchase that building.

5. This prevents comparisons from being made between the performance of houses that are of similar original design in the same area. It also prevents energy performance companies from contacting home owners in order to offer them deals regarding the improvement of their homes.

6. The DCLG has just concluded a consultation in which they restated the view that EPCs constitute private personal data that cannot be disclosed under the Data Protection Act.[2] Their argument appears to rely on the fact that an EPC lists an address to which a person’s name can be associated using the electoral register.

7. This is an unusual determination which appears to have been made without any reference to the handling of other information related to private dwellings, such as planning applications and property sales. These are entirely accessible to interested parties in the market. Indeed, fears and concerns that were put forward in the DCLG’s privacy impact screening[3] could have been put into perspective on the consideration of the handling of this other data.

8. For example, many enterprises in the building industry rely on making unsolicited calls to properties that have just changed hands or have had a planning application made. People also receive calls from gas companies and electricity companies enticing them to change their provider in order to benefit from a cheaper deal. Those who object to these approaches are able to register with the telephone preference service. There is little sign of any widespread dissatisfaction or legal challenge to this state of affairs. There is nothing about an EPC to suggest it is special in relation to any of the other available house based data.

9. In the course of a long running Freedom of Information Request (now under review by the Information Commissioner), the DCLG has not been able to produce the authoritative legal basis which holds that EPCs constitute private personal data.[3]

10. Meanwhile, the Land Registry holds and sells house sale information as well as property extents and surface access.[4] This is the place that estate agents go to in order to inform their property valuations in a varied and changing market. If it is seen as desirable for a home owner’s investment in the energy efficiency of their property to be reflected in the market price for that house in comparison to houses that have not been improved, then this information should be disclosed in the same manner to the same parties.

11. Clause 72 of the Energy Bill states that the Secretary of State shall make regulations for disclosure some statistical information from the register of energy performance certificates. This does not appear to be a change in the current law by virtue of the fact that the Secretary of State has already made such regulations in 2007. There is no doubt that the regulations are going to be in accordance with the department’s consultation.

12. I urge the committee to cause a review of the department’s questionable handling of what should be a strategic data set for the purpose of rapidly improving the energy performance of the nation’s building stock. At the very least, the privacy implications of this data set should be considered by an expert legal professional who will have to take account of the handling of similar classes of house related information when he makes his determination.

[1] The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 — http://www.legislation.gov.uk/uksi/2007/991/regulation/14/made

[2] Making better use of Energy Performance Certificates and data: Consultation (2 March 2010) — http://www.communities.gov.uk/publications/planningandbuilding/epceffectivenessconsult

[3] EPC privacy impact screening FOI request 26 June 2010 — http://www.whatdotheyknow.com/request/epc_privacy_impact_screening

[4] Find A Property, Land Registery — https://www.landregistry.gov.uk/www/wps/portal/FindAPropertyTermsAndConditions

June 2011

Even more cool, I got a mention in the transcript:

Luciana Berger (Liverpool, Wavertree, Labour)

The Business Council for Sustainable Energy put forward the recommendation in its submission in response to the call for evidence seeking views on how to improve the energy performance of buildings in support of the green deal, issued by the Department of Energy and Climate Change and the Department for Communities and Local Government in December 2010, that legislation should include strong enforcement

    “to ensure prospective tenants/owners have access to up-to-date EPCs.”

Julian Todd, the chief technical officer of ScraperWiki Ltd, highlights in written evidence submitted to the Committee that

    “it is an offence to disclose information derived from an Energy Performance Certificate…to someone who is not legitimately connected to the decision to purchase that building.”

As I have said, that prevents comparisons from being made between the performances of houses that are of a similar design in the same area, and means that properties with high energy efficiency might not command the price differential that they deserve.

Pretty neat, eh?

I am still waiting on an FOI appeal to the Information Commissioner on the legal basis for keeping these documents confidential.

I have not lost sight of the objective, which is to make sure that if you have a badly insulated inefficient house you get tut-tutted at by your neighbours, and dodgy builders phone you up at all hours of the day offering to put it right.

That is the way this is going to have to work.

1 Comment

  • 1. Freesteel&hellip replies at 22nd July 2011, 7:46 am :

    […] I am in pursuit of the bizarre determination that the EPC database constitutes private personal information. […]

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