Unfortunately the current regulations in England & Wales provide no clear definition of the term “Public Authority”. 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) 2012 regulations 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 set 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;
Public Authority – Self Determination Questionnaire
If, as an organisation, you are unsure as to whether or not you are a “public authority” 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”. The following steps may help your trustees/directors to decide:
- 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 step 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 limited companies (including charitable companies), limited liability partnerships (LLP), community interest companies (CIC), charitable incorporated organisations (CIO), co-operative societies (Co-op), community benefit societies (BenCom) and financial mutuals. If your organisation is any of these you may be a “public authority” and should continue to step 3. If not, you probably have no legal personality in this sense and so are not subject to mandatory DECs.
- 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 DECs. 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 step 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 DECs on the premises you occupy if the floor area and public visitation requirements are also met. If not, continue to step 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 DECs on the premises you occupy if the floor area and public visitation requirements are also met. If not, continue to step 6. [NB: 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 DECs 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 may be subject to the requirements of the Energy Savings Opportunities Scheme.