On 18 May 2020, the Ministry of Housing Communities and Local Government (MHCLG) wrote to all social housing residents in England (residents).
Can we prevent tenants taking out the Green Deal or can we place conditions on consent?
From a landlord perspective, you will often want to prevent your stock from having non-standard fixtures. Green Deal measures are likely to be classed as improvements under tenancy agreements, for which landlords usually cannot unreasonably withhold consent. We haven’t had any cases yet about what ‘reasonable’ and ‘unreasonable’ means in a Green Deal context. It will be interesting to see how this aspect of landlord and tenant law interplays with the landlord consent which is required to the Green Deal plan (ie. the charge on the electricity meter).
Ultimately, it appears that landlords can refuse the Green Deal plan under the Green Deal regulations but will not usually have the right to unreasonably refuse an improvement. If you are minded to consent to improvements and the associated Green Deal plan, that consent may need to be on condition that a warranty is received for the installation. The warranty should be reviewed from a legal perspective and the expenses for this and your administration can be charged as part of giving consent.
Are we allowed to recommend one or two trusted Green Deal providers in our areas to our tenants?
You would need to consider how you arrive at a position where you can endorse one particular provider over any other. How much control would you want or need over the endorsed provider? If the landlord is receiving some benefit and also has extensive control over the works being carried out, it begins to look like a public works contract and other contractors that haven’t been ‘endorsed’ might challenge on the basis that you have not gone through the proper procurement process. An even more pressing point relates to your reputational issues if the endorsed provider does not perform. The landlord will have only limited control over the quality of the advice provided to its tenants or the quality of the works being implemented. Your tenants will be looking for you to sort out problems if things go wrong with a provider endorsed by you, whether it is your legal liability or not.
How can we most actively participate in the Green Deal?
If you provide works or services in-house and you have spare capacity, you might think about becoming a registered installer or assessor and working as a sub-contractor for your local Green Deal providers.
If you have more ambitious plans for creating economic activity in your area (covering owner occupiers or private landlords' stock as well), then how about creating a Green Deal business? This may involve partnering with a contractor or utility service and this might also attract additional government funding. Be aware of the procurement challenges (you might need to run an OJEU competition for any work or services delivered by the partner) and any trading implications for your charitable status. You are also likely to need your funders’ consent. However, these hurdles will be well worth it if you can help your community flourish by maximising the opportunities for creating training and jobs, and reducing the instances of people living in under-heated homes.
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