39.—(1) In any case where the relevant compliance body is satisfied that a responsible undertaking is liable to a civil penalty under this Part, it may serve a notice on that responsible undertaking (a “penalty notice”) imposing the penalties and other requirements set out in this Part.
(2) A penalty notice must—
(a)be in writing,
(b)be served on the person to whom it is addressed,
(c)specify—
(i)the breach of these Regulations in respect of which the penalty is imposed,
(ii)the steps that must be taken to remedy the breach,
(iii)the nature of the penalty, and
(d)include information about appeals under Part 9.
(3) A penalty notice imposing a financial penalty must specify—
(a)where no daily penalty applies or the total amount of the daily penalty can be determined at the date of service of the notice—
(i)the total amount due,
(ii)where applicable, how it has been calculated, and
(iii)to whom, and the date by which, it must be paid,
(b)where a daily penalty applies and the total amount of the daily penalty cannot be determined at the date of service of the notice—
(i)the amount of the initial penalty,
(ii)details of the applicable daily penalty, and
(iii)to whom the penalty must be paid.
(4) Where a notice has been served under paragraph (3)(b) and the total amount of the daily penalty can be determined after the date of service of the notice, the compliance body must serve a further notice on the responsible undertaking which complies with paragraph (3)(a).
(5) The daily penalty rate must be calculated by reference to working days.
(6) The compliance body must remit to the Secretary of State any financial penalty received.
40.—(1) Where—
(a)an initial penalty applies,
(b)the total amount of the daily penalty can be determined at the date of service of the notice,
the financial penalty is due 60 working days after notice of that penalty is given.
(2) If unpaid, a financial penalty is recoverable as a civil debt by the compliance body.
41.—(1) The “publication penalty” means publication on the scheme administrator’s webpage, or another compliance body’s website, of the following information in relation to a penalty notice—
(a)the name of the responsible undertaking and, where different, of the participant,
(b)details of the breach of these Regulations in respect of which the penalty notice has been issued, and
(c)details of any financial penalty imposed.
(2) The information in paragraph (1) must be published for a minimum period of one year, and may be published for such longer period as the scheme administrator or the compliance body (as the case may be) determines.
(3) A publication penalty may not take effect until the period specified for any appeal against the penalty has expired.
42.—(1) Where the compliance body considers appropriate, it may—
(a)waive a civil penalty,
(b)allow additional time to pay any financial penalty,
(c)impose a lower financial penalty, or substitute a lower financial penalty where one has already been imposed, or
(d)modify the application of a publication penalty.
(2) Where, at any time before a financial penalty is due to be paid, the compliance body ceases to be satisfied that the responsible undertaking is liable for that penalty, it may serve a further notice on that undertaking—
(a)withdrawing the penalty notice, or
(b)modifying the penalty notice.
43.—(1) The penalties in paragraph (2) apply where a responsible undertaking fails to notify the scheme administrator of its compliance, contrary to regulation 29.
(2) The penalties are—
(a)the financial penalties of—
(i)an initial penalty of up to £5,000, and
(ii)a daily penalty of up to £500 for each working day the responsible undertaking remains in breach, starting on the day after the service of the penalty notice subject to a maximum of 80 working days, and
(b)the publication penalty.
44.—(1) The penalties in paragraph (2) apply where a responsible undertaking fails to maintain records, contrary to regulation 28.
(2) The penalties are—
(a)the financial penalties of—
(i)an initial penalty of up to £5,000, and
(ii)a sum representing the cost to the compliance body of confirming the responsible undertaking has complied with the Scheme, and
(b)the publication penalty.
(3) The penalty notice may specify the steps the compliance body requires the responsible undertaking to take to remedy the breach.
45.—(1) The penalties in paragraph (2) apply where a responsible undertaking fails to carry out an audit, contrary to Chapter 3 of Part 4, where the alternative routes to compliance in Part 6 do not apply.
(2) The penalties are—
(a)the financial penalties of—
(i)an initial penalty of £50,000, or such lesser amount as the compliance body may determine, and
(ii)a daily penalty of up to £500 for each working day the responsible undertaking remains in breach, starting on the day after the service of the compliance notice subject to a maximum of 80 working days, and
(b)the publication penalty.
(3) The penalty notice may specify the steps the compliance body requires the responsible undertaking to take, including conducting or completing an ESOS assessment, to remedy the breach, and the date by which such steps must be taken.
46.—(1) The penalties in paragraph (2) apply where a responsible undertaking fails to provide information, or to take steps, required by a compliance notice, an enforcement notice or a penalty notice.
(2) The penalties are—
(a)the financial penalties of—
(i)an initial penalty of up to £5,000, and
(ii)a daily penalty of up to £500 for each working day the responsible undertaking remains in breach, starting on the day after the service of the penalty notice subject to a maximum of 80 working days, and
(b)the publication penalty.
47.—(1) The penalties in paragraph (2) apply where a responsible undertaking makes a statement which is false or misleading when notifying information to the scheme administrator or a compliance body, or when providing information required by a compliance notice, an enforcement notice or a penalty notice.
(2) The penalties are—
(a)£50,000, or such lesser amount as the compliance body may determine, and
(b)the publication penalty.