Failure to provide Energy Performance Certificates by landlord of Pauling House, Spencer Road, Eastbourne.

James Plant made this Freedom of Information request to East Sussex County Council

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by East Sussex County Council.

Dear East Sussex County Council,

Please provide the following information requested under The Freedom of Information Act 2000.

The landlord of Pauling House, 2, Spencer Road, Eastbourne, has never provided an Energy Performance Certificate for any of the 8 flats there as required to do by law.

Has this been reported to you by the Environmental Health Department of Eastbourne Borough Council? They discovered that this was the situation last May.

In the event that details were passed to you:

1) what action has been taken to ensure that the Energy Performance Certificates will be obtained by the landlord?

2) Has any action been taken against the landlord for the failures to supply these certificates over a long period of time and repeatedly?

3) Will any action be taken against the landlord in the future?

4) Will the landlord be prosecuted and/or fined in respect of these failures?

Yours faithfully,

James Plant

Freedom of Information, East Sussex County Council

 

Dear Mr Plant

 

EIR Request ref:  4221/Energy Performance Certificate

 

Thank you for your request for information about the above. Your request
was received on 14/07/2014and I am dealing with it under the terms of the
Environmental Information Regulations 2004.

We always aim to respond as quickly as possible, and in this case will do
so no later than 11/08/2014, which is the 20 working day deadline. The
deadline is counted from the first working day we receive it, not the date
a letter is written / posted or an email sent.

In some circumstances a fee may be payable and if that is the case, I will
let you know. A fees notice will be issued to you, and you will be
required to pay before we proceed in dealing with your request.

Please quote the above reference number in any communication regarding
this request.

 

Yours sincerely

 

 

 

Janice Evans

Customer Information Adviser

 

East Sussex County Council

Communities, Economy and Transport

W1D, County Hall

St Anne’s Crescent

Lewes

East Sussex BN7 1UE

 

Phone: 01273 482913
Fax: 01273 481208

email: [1][East Sussex County Council request email]   web: [2]www.eastsussex.gov.uk/foi

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Freedom of Information, East Sussex County Council

Dear Mr Plant

 

EIR Request ref:  4221/Energy Performance Certificate

 

Thank you for your request for information about the above, which has been
dealt with under the terms of the Environmental Information Regulations
2004. Your request and our response are set out below. Please note that
any information we provide is subject to the copyright and reuse of
information terms and conditions set out at the bottom of this email.

 

REQUEST

 

The landlord of Pauling House, 2, Spencer Road, Eastbourne, has never
provided an Energy Performance Certificate for any of the 8 flats there as
required to do by law.

 

Has this been reported to you by the Environmental Health Department of
Eastbourne Borough Council? They discovered that this was the situation
last May.

 

In the event that details were passed to you:

 

1) what action has been taken to ensure that the Energy Performance
Certificates will be obtained by the landlord?

 

2) Has any action been taken against the landlord for the failures to
supply these certificates over a long period of time and repeatedly?

 

3) Will any action be taken against the landlord in the future?

 

4) Will the landlord be prosecuted and/or fined in respect of these
failures?

 

RESPONSE

 

Thank you for your request for information, which has been dealt with
under the terms of the Environmental Information Regulations 2004 (EIR).

Regulation 12(5)(e) EIR provides that a public authority may refuse to
disclose information where;

·    The information is commercial or industrial in nature.

·    Confidentiality is provided by law.

·    The confidentiality is protecting a legitimate economic interest.

·    The confidentiality would be adversely affected by disclosure.

We have assessed your request and have concluded that the above exception
is engaged.

The Information Commissioner’s (ICO) guidance states that a commercial
activity will generally involve the element of trade, e.g. for goods or
services.  The information that has been requested relates to commercial
activity in that the premises concerned are rented out by the landlord for
income. The information is commercial or industrial in nature.

 

Contracts of employment for East Sussex County Council employees contain
an express obligation of confidentiality regarding information that they
come into possession of during the course of their duties. Furthermore,
even in the absence of an express contractual duty of confidentiality, a
duty of trust and confidence is implied into the employment contract under
common law.  Disclosure of confidential information that is not otherwise
in the public domain would be considered a breach of the implied duty of
trust and confidence.

 

The ICO Guidance states that a key issue to consider is whether the
information has the necessary quality of confidence. We have concluded
that the information is not trivial and is not in the public domain. This
information is considered to have the essential quality of confidence, and
officers of the County Council are therefore expressly required by their
contract of employment to maintain the confidentiality of that
information. Confidentiality is provided by law.

 

In order to satisfy the third element of the test, disclosure of the
confidential information would have to adversely affect a legitimate
economic interest of the person the confidentiality is designed to
protect. It is our view that providing specific information regarding the
alleged non compliance of this business would disproportionately harm
their commercial interests when balanced against the full context of the
situation. This includes factors such as the reason for any non
compliance, the actions taken by Trading Standards to support the business
to achieve compliance, the traders efforts to put matters right and the
low level of impact on the consumer in relation to this non compliance. We
have concluded that the confidentiality is protecting a legitimate
economic interest.

 

With regard to whether or not the confidentiality would be adversely
affected by disclosure, the ICO Guidance states as follows:

 

“Although this is a necessary element of the exception, once the first
three elements are established the Commissioner considers it is inevitable
that this element will be satisfied.  Disclosure of truly confidential
information into the public domain would inevitably harm the confidential
nature of that information by making it publicly available, and would also
harm the legitimate economic interests that have already been identified.”

 

Consequently, we have concluded that the fourth element of the exception
is made out.

 

Regulation 12(5)(e) EIR, is not absolute. Before we can rely upon it, we
are required to decide, despite our assessment of the information, whether
or not it is in the public interest to make the information available.

We have carried out this public interest test. We acknowledge that there
is a public interest in transparency and accountability in the activities
of public authorities. Also, that such transparency promotes public
understanding. An informed and involved public helps to promote good
decision making by public authorities. We acknowledge that there is also a
certain level of public interest in ensuring that businesses adhere to
regulation and law in their activities.

However, given that disclosure under the EIR is considered to be made to
the public at large and not just to the individual requester, we have
taken into account that the requester’s private interests are not in
themselves the same as the public interest and that what may serve those
private interests does not necessarily serve a wider public interest. We
consider that it is not in the public interest to harm the confidential
nature of the information by making it publicly available, or to harm the
legitimate economic interests that have already been identified. To do so
would be disproportionate, as we have identified above in our argument
covering the third element of the exception.

 

Therefore, we believe that the public interest in maintaining the
exemption outweighs the public interest in favour of disclosure and the
information will not be provided.

 

 

If you believe that the County Council has not complied with the EIR in
responding to your request, you may ask for an internal review. If you
wish to do so, please set out the grounds of your appeal in writing to:

 

Philip Baker, Assistant Director, Legal and Democratic Services, East
Sussex County Council, County Hall, St Anne’s Crescent, Lewes, East
Sussex. BN7 1UE.

or by email to him at [1][email address]

 

Please quote the EIR reference number in any communication regarding this
particular request.

 

If you are not content with the outcome of the internal review, you then
have the right to apply directly to the Information Commissioner for a
decision. Generally, the Information Commissioner cannot make a decision
unless you have exhausted the County Council’s internal review procedure
as described in the previous paragraph. The Commissioner can be contacted
at: Information Commissioner's Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF. Tel: 0303 123 1113.  [2]www.ico.org.uk

 

Yours sincerely

 

 

Jeremy Coleman

Customer Information Officer

East Sussex County Council

Communities, Economy and Transport Directorate

W1D, County Hall

St Anne’s Crescent

Lewes

East Sussex BN7 1UE

 

Phone: 01273 482913
Fax: 01273 481208

email: [3][East Sussex County Council request email]   web: [4]www.eastsussex.gov.uk/foi

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not give you an automatic right to re-use those documents in a way that
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E-mail is not a secure communications medium. Please be aware of this
when replying. All communications sent to or from the County Council
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Although East Sussex County Council has taken steps to ensure that this
e-mail and any attachments are virus free, we can take no responsibility
if a virus is actually present and you are advised to ensure that the
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References

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1. mailto:[email address]
mailto:[email address]
2. http://www.ico.org.uk/
3. mailto:[East Sussex County Council request email]
4. http://www.eastsussex.gov.uk/foi

Dear East Sussex County Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of East Sussex County Council's handling of my FOI request 'Failure to provide Energy Performance Certificates by the landlord of Pauling House, Spencer Road, Eastbourne.'.

You have refused to provide the information requested stating the information is, "commercial or industrial" and that you are required to maintain, "confidentiality" in relation to this.

For the record, Pauling House, Spencer Road, Eastbourne, is owned by Queen Alexandra Cottage Homes of 557 Seaside, Eastbourne. This landlord fails to comply with many of the statutory regulations in relation to let property as far as the conditions in Pauling House are concerned. Despite Eastbourne Borough Council being asked to apply regulations and do a Housing Health and Safety Rating System inspection of the property, the Environmental Health Department declines to comply with its duties under the Housing Act 2004.

I cannot concur with your stance in refusing to comply with the Freedom of Information Act in relation to the failures to provide Energy Performance Certificates by this landlord. Given the repeated, serious failures to comply with regulations, the fact that a number of serious hazards exist in the properties there, it is in the public interest for this information to be provided. At the same time, I dispute you contention that the information is covered by the description, "Industrial, or commerical". The activity in question does not come under either of these categories. Confidentiality is not a valid reason to decline this request either.

It is open to speculation why the authorities concerned fail to comply with their statutory duties and see that hazards are dealt with, plus regulations met in relation to this property.

The failures by the landlord have existed for many years and the health of residents there has been put at risk with actual harm having occurred to some. So, how have they been able to flout the various regulations that apply to let properties for so long?

Failure to reconsider this and supply information will result in this being referred to the ICO. It is in the public interest to provide this as it is of great concern why this situation is permitted to continue.

Eastbourne Borough Council were aware of the fact that Energy Performance Certificates had not been given to residents in May 2014 and it appears no action has been taken to rectify this.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/f...

Yours faithfully,

James Plant

Freedom of Information, East Sussex County Council

 

Dear Mr Plant

 

EIR Request ref:  4221/Energy Performance Certificate

 

We have received your request for an internal review. It was received on
1/8/2014 and I am dealing with it under the terms of the Environmental
Information Regulations 2004

 

We always aim to respond as quickly as possible but we are permitted up to
40 working days to carry out an internal review. We therefore aim to
provide you with our response by 29/9/2014, which is the 40 working day
deadline.

 

Yours sincerely

 

Jeremy Coleman

Customer Information Officer

East Sussex County Council

Communities Economy and Transport Directorate

W1D, County Hall

St Anne’s Crescent

Lewes

East Sussex BN7 1UE

 

Phone: 01273 482913
Fax: 01273 481208

email: [1][East Sussex County Council request email]   web: [2]www.eastsussex.gov.uk/foi

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email

 

This message is intended for the use of the addressee only and may
contain confidential or privileged information. If you have received it in
error please notify the sender and destroy it. You may not use it or copy
it to anyone else.

E-mail is not a secure communications medium. Please be aware of this
when replying. All communications sent to or from the County Council
may be subject to recording and/or monitoring in accordance with
relevant legislation.

Although East Sussex County Council has taken steps to ensure that this
e-mail and any attachments are virus free, we can take no responsibility
if a virus is actually present and you are advised to ensure that the
appropriate checks are made.

You can visit our website at http://www.eastsussex.gov.uk

References

Visible links
1. mailto:[East Sussex County Council request email]
2. http://www.eastsussex.gov.uk/foi

Dear Freedom of Information,

I requested an Internal Review of your decision in relation to my request under The Freedom of Information Act.

In your response you stated that you would provide a reply etc before 29 September 2014. This date has long expired and the full response from you is outstanding. Will you please arrange to deal with this and comply with the time limits set out in Freedom of Information Act.

Yours sincerely,

James Plant

Freedom of Information, East Sussex County Council

4 Attachments

Dear Mr Plant,

Thank you for your email received 19/11/2014.

I can confirm that a response has already been sent out to yourself by post on 7 October 2014. I have attached a copy to this email.

Yours sincerely,

Amilia Holland
Customer Information Adviser

East Sussex County Council
Communities Economy and Transport Directorate
W1D, County Hall
St Anne’s Crescent
Lewes
East Sussex BN7 1UE

Phone: 01273 482913
Fax: 01273 481208

show quoted sections

Dear Ms Holland,

Thank you for your response dated 19 November 2014.

It is with great interest I note you claim to have sent me a response by post on 7th October 2014. I should like to know how you were able to do this since you do not have my address? Needless to say there was no communication via the post from you whatsoever.

I put it to you that East Sussex County Council has failed to comply with the provisions of The Freedom of Information Act regarding this matter. It appears to have made false statements in an attempt to evade admitting the failures here.

The refusal to supply the information which the public interest requires to be available, will be referred to The Information Commissioner. At the same time, the conduct of ESCC will be subject of a complaint to that body.

Yours sincerely,

James Plant

Freedom of Information, East Sussex County Council

Dear Mr Plant,

Please accept my apologies for the typing mistake in my last email. It was meant to read: sent out to yourself by email on 7 October 2014. Therefore I can confirm that a response to your internal review was sent to yourself via email ([email address]) on 7 October 2014.

Yours sincerely,

Amilia Holland
Customer Information Adviser

East Sussex County Council
Communities Economy and Transport Directorate
W1D, County Hall
St Anne’s Crescent
Lewes
East Sussex BN7 1UE

Phone: 01273 482913
Fax: 01273 481208

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Dear Ms Holland,

I refer to your response dated 25 November 2014.

This seems to compound the serious failures by ESCC in relation to this FOI request. It also adds to the number of false statements made by ESCC in replies.

You do not have either my address, or E-Mail address, so your claim to have sent a reply to me by E-Mail on 7 October 2014 is as false as your earlier claim to have sent this by post.

This reflects very badly on the integrity of ESCC and will be pursued via the ICO.

Yours sincerely,

James Plant

Freedom of Information, East Sussex County Council

2 Attachments

 

Dear Mr Plant,

 

Thank you for your email. I would like to apologise again for the mistake
made where I used the word ‘post’ rather than ‘email’.

 

An email was sent to the email address:
'[email address]' on 7 October 2014, as was
your second internal review for FOI Reference number: 4738. I have
included the email sent to you from Caroline Hodge below and I have also
attached both of the internal review responses to this email.

 

Yours sincerely,

 

Amilia Holland

Customer Information Adviser

 

East Sussex County Council

Communities Economy and Transport Directorate

W1D, County Hall

St Anne’s Crescent

Lewes

East Sussex BN7 1UE

 

Phone: 01273 482913
Fax: 01273 481208

 

 

From: Caroline Hodge
Sent: 07 October 2014 10:01
To: '[email address]'
Subject: Request for Internal Review - ref 4221 - Energy Performance
Certificate
Importance: High

 

Dear Mr Plant

 

Please find attached response regarding the above and attachments.

 

Best wishes

 

Caroline Hodge        
Team Support Officer
Chief Executive's Office
PA to Philip Baker    Assistant Chief Executive
East Sussex County Council,
C3E,  County Hall, St Annes Crescent,
Lewes, East Sussex, BN7 1SW
Tel No. 01273 482160
Email:[email address]
(Working Hours - 8.30am - 5pm Monday - Friday)

 

This message is intended for the use of the addressee only and may
contain confidential or privileged information. If you have received it in
error please notify the sender and destroy it. You may not use it or copy
it to anyone else.

E-mail is not a secure communications medium. Please be aware of this
when replying. All communications sent to or from the County Council
may be subject to recording and/or monitoring in accordance with
relevant legislation.

Although East Sussex County Council has taken steps to ensure that this
e-mail and any attachments are virus free, we can take no responsibility
if a virus is actually present and you are advised to ensure that the
appropriate checks are made.

You can visit our website at http://www.eastsussex.gov.uk

Dear Madam,

Thank you for your latest responses dated 26 November 2014.

The replies dated 7 and 22 October 2014 have not been posted on this site. Since you have claimed they were sent to me by E-Mail, once again, I can advise you that this would not have been possible here. The only method of providing a response to a Freedom of Information request on this site is to post this on the site itself. There is no means of replying direct to the person making the request in the absence of a personal postal address, or E-Mail address. In this case, you did not possess either of my personal addresses and you did not post responses on this site. It can be concluded that your claims to have responded and the letters etc you have dated in October 2014 to support your claims, are nothing short of fraud.

It is apparent that you did not respond within the time limits as you have claimed.

Yours sincerely,

James Plant

Freedom of Information, East Sussex County Council

Dear Mr Plant,

Thank you for your email but it would seem that you don’t understand how the website Whatdotheyknow.com works.

When a requester submits a request via the site, it generates a unique email address associated only with that specific request and sends an email to the relevant public authority. This is how we receive requests from members of the public who choose to make their request via that service. We don’t monitor the site and wait for requests to be posted on it for us. We receive an email in our inbox in the same way that any other email is delivered. When we respond to a request sent to us in this way, we merely send an email using the unique email address associated with that request. We don’t post it on the site. This is done automatically by Whatdotheyknow.com when the site receives the email from us.

My colleague initially (incorrectly) told you that our response had been posted to you because when she looked at it in the relevant outlook folder it was in the form of a letter rather than an email. She wrongly assumed that this meant it had been posted to you, when in fact it had been sent as an email attachment.

Where an applicant makes more than one request via Whatdotheyknow.com, each request is given a different email address by the site. Even though it is from the same person. This is to ensure that email responses are posted to the correct request on the site as and when they are received (via email) from the relevant public authority. You made more than one request and we therefore had more than one email address for you that were each associated with your separate requests. One of our responses was sent to an email address associated with another of your requests. But it should still have found it's way to your account. My colleague has now resent these responses to you and they should be available for you on the site. I am sorry for any confusion caused.

Yours sincerely

Jeremy Coleman
Customer Information Officer

East Sussex County Council
Communities, Economy and Transport Directorate
W1D, County Hall
St Anne’s Crescent
Lewes
East Sussex BN7 1UE

Phone: 01273 482913
Fax: 01273 481208
email: [East Sussex County Council request email]   web: www.eastsussex.gov.uk/foi
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Dear Mr Coleman,

Thank you for your reply of 28 November 2014.

It seems that it is East Sussex County Council who are not familiar with the operation of this site and the manner in which replies are dealt with.

You attempt to excuse the failure to deal with this request with yet another spurious reason. Again, this is a false statement on your part.

You claim to have replied to this request yet nothing has been posted on the site as you claim. After advising that you sent me the information by post, then saying that you had sent me this by E-Mail, you now claim that you posted the information on the response to another FOI request that I made. There is no attempt at an apology, rather you try to put the onus for the failure on me by saying that I should have picked this up via a message from the site. I would contend that the onus is on ESCC to ensure that replies are sent timeously and to the post in question.

I can assure you that no message was received to the effect that you had put this information on another of my posts on What Do They Know? In reality, the situation appears to be that no response was made by ESCC either on this post, or on any other.

I think that the manner in which ESCC has dealt with this gives cause for serious concern. It is unacceptable to fail to comply with the provisions of the FOI Act, then to engage in a series of false statements in order to cover this up.

The fact that ESCC doesn't apologise for the failures and tries to smear, plus blame me, indicates that their standards are beneath abysmal.

This will be pursued via the ICO.

Yours sincerely,

James Plant

Freedom of Information, East Sussex County Council

Dear Mr Plant,

Thank you for your email, the contents of which I note. I am sorry that you do not feel able to accept the explanation that my colleague, and subsequently, I provided. We will of course fully cooperate with any investigation the ICO may choose to conduct.

Yours sincerely

Jeremy Coleman
Customer Information Officer

East Sussex County Council
Communities, Economy and Transport Directorate
W1D, County Hall
St Anne’s Crescent
Lewes
East Sussex BN7 1UE

Phone: 01273 482913
Fax: 01273 481208
email: [East Sussex County Council request email]   web: www.eastsussex.gov.uk/foi
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