Guidance on ESOS Enforcement and penalties
The scheme compliance bodies will have the authority to apply civil penalties against an organisation/group found to be required to participate in ESOS and found to be non-compliant with its requirements.
• For all non-compliances, the compliance bodies will have the power to publish information on non-compliance on their website such that this information is available to the public. This will include:
−the name of the ESOS participant;
−details of the failure in respect of which a civilpenalty has been imposed; and
−the penalty amount.
• For failure to notify the Scheme Administrator of compliance by the required date and/or failure to provide basic details as part of notification, there will be a fixed penalty and an additional penalty for each day of non-compliance. This is in order to encourage compliance as soon as possible. For failure to do so, the compliance bodies may impose some or all of the penalties outlined below:
−a fixed penalty of up to £5,000; and/or
−an additional £500 for each day starting on the day after the date of compliance until the notification is completed, subject to a maximum of 80 days; and/or
−publication of details of non-compliance by the compliance bodies.
• For failure to maintain adequate records to demonstrate compliance with ESOS the penalty which can be applied is:
−a fixed penalty of up to £5,000; and/or
−the cost to the compliance body for undertaking sufficient auditing activity to confirm that an organisation has complied with ESOS; and/or
−publication of details of non-compliance.
• For failure to undertake an ESOS Assessment there will be a discretionary penalty allowing the compliance body to require the participant to take a number of steps toward compliance and a fixed monetary penalty. Failure to comply with any aspect of an ESOS Assessment (not using sufficient data, not using a Lead Assessor etc.) would be considered failure to comply. Where non-compliance is explained under ‘comply or explain’ provisions then the compliance body will consider whether the justification given is reasonable before determining whether to impose a penalty. The penalty is:
−a requirement to conduct an ESOS Assessment by a date specified by the compliance body; and/or
−a penalty of up to £50,000; and/or
−an additional £500 per day penalty for each day starting on the day after the compliance date that the organisation remains non-compliant, subject to a maximum of 80 days; and/or
−publication of details of non-compliance.
• Failure to comply with an enforcement, compliance or penalty notice will incur a fixed penalty and an additional penalty for each day of non-compliance. This in order to encourage compliance as soon as possible. The penalties are:
−a fixed penalty of up to £5,000; and/or
−an additional £500 for each day starting on the day after the date of compliance until the notification is completed, subject to a maximum
of 80 days; and/or
−publication of details of non-compliance.
• For making a statement which is false and misleading there will be a monetary penalty that is flexible enough to take account of the nature of the misdemeanour and large enough that it can act as a deterrent to this offence. The penalty is:
−a monetary penalty of up to £50,000; and
−publication of details of non-compliance.
The compliance bodies (environment agency) will be able to pursue corrective action and will also have the power to reduce and waive penalties after issuing them to participants.
