The Energy Savings Opportunity Scheme (Amendment) Regulations 2023

Statutory Instruments

2023 No. 1182

ENERGY

The Energy Savings Opportunity Scheme (Amendment) Regulations 2023

Made

at 10.38 a.m. on 7th November 2023

Laid before Parliament

at 3.30 p.m. on 7th November 2023

Coming into force

29th November 2023

The Secretary of State makes these Regulations in exercise of the powers conferred by sections 254 to 260 and 263 of the Energy Act 2023(1).

In accordance with section 263(1) of that Act, the Secretary of State has consulted such persons likely to be affected by the regulations as the Secretary of State considers appropriate.

In accordance with section 263(8)(b)(iii) of that Act, the Secretary of State has consulted with the Department for the Economy in Northern Ireland.

Citation and commencement

1.—(1) These Regulations may be cited as the Energy Savings Opportunity Scheme (Amendment) Regulations 2023.

(2) These Regulations come into force on the 21st day after the day on which these Regulations are laid before Parliament.

Amendments to the Energy Savings Opportunity Scheme Regulations 2014

2.  The Energy Savings Opportunity Scheme Regulations 2014(2) are amended in accordance with the following provisions.

Regulation 2 amended (interpretation)

3.  In regulation 2(1) at the appropriate places insert—

““areas of significant energy consumption” has the meaning given in regulation 25(2);”

““energy intensity ratio” has the meaning given in regulation 25C(2);”

““energy saving category” means one of the following methods by which a participant can improve its energy efficiency—

(a)

an energy management practice,

(b)

a behaviour change intervention,

(c)

training,

(d)

a control,

(e)

capital investment, or

(f)

a method not falling within paragraph (a) to (e);”

““energy saving measure” has the meaning given in regulation 27A(7)(d);”

““energy saving opportunity” has the meaning given in regulation 27(1)(c);”

““ESOS action plan” has the meaning given in regulation 34A(3);”

““ESOS progress update” has the meaning given in regulation 34B(2);”

““ESOS report” has the meaning given in regulation 27A(4);”

““kWh” means kilowatt hours;”

““organisational purpose” means one of the following purposes for which energy is consumed by assets held, or activities are carried on, by a participant—

(a)

for transport,

(b)

for an industrial process,

(c)

for buildings, or

(d)

for any other purpose not falling within paragraph (a) to (c);”

““reference period” has the meaning given in regulation 22(5);”

““significant energy consumption” has the meaning given in regulation 25(4);”

““standard industrial classification” means the Office for National Statistics’ “UK Standard Industrial Classification of Economic Activities 2007 (SIC 2007)”(3);”.

Regulation 4 amended (compliance periods)

4.  In regulation 4, for paragraph (4), substitute—

“(4) The “compliance date” means—

(a) in relation to the compliance period beginning on 6th December 2019—

(i) for the purposes of regulations 10 (publication of information), 22(3) (exclusion of assets no longer held on the compliance date), 26(4) (period of energy audit), 27A (ESOS report), 29 (notification of compliance) and paragraphs 7 and 7A of Schedule 2 (groups of undertakings - change of group), 5th June 2024,

(ii) for the purposes of regulations 33 (compliance with ISO 50001) and 34 (display energy certificates and green deal assessments), either 5th December 2023 or 5th June 2024, as the participant elects, and

(iii) for all other purposes, 5th December 2023, and

(b) in relation to all other compliance periods, the 5th December on which that compliance period ends.”

Regulation 8 amended (Notification System)

5.  In regulation 8, in paragraph (1), for “establish”, substitute “ensure the establishment of”.

Regulation 10 amended (publication of information)

6.  In regulation 10—

(a) the existing text becomes paragraph (1);

(b) in that paragraph—

(i) in the words before sub-paragraph (a), after “the following information”, insert “to the extent that it is”;

(ii) in sub-paragraph (a), after “the Scheme”, insert “excluding Part 6A”;

(iii) in sub-paragraph (b), omit “or have notified information under paragraph 1(f) or (h) of Schedule 3”;

(iv) after sub-paragraph (b), insert—

“(c) the information specified in column 3 of Tables A to I in Schedule 3,

(d) each ESOS action plan, and

(e) each ESOS progress update.”;

(c) after that paragraph, insert—

“(2) The scheme administrator must publish the information referred to in—

(a) paragraph (1)(a), (b) and (c), within the period of 6 months beginning with the compliance date for the compliance period to which the information relates, or within the period of 6 months beginning with the date of notification of the information using the Notification System, whichever is the later,

(b) paragraph (1)(d), within the period of 6 months beginning with the date by which the responsible undertaking must notify the ESOS action plan in accordance with regulation 34A(6), or within the period of 6 months beginning with the date of notification of the information using the Notification System, whichever is the later, and

(c) paragraph (1)(e), within the period of 6 months beginning with the date by which the responsible undertaking must notify the ESOS progress update in accordance with regulation 34B(6), or within the period of 6 months of beginning with the date of notification of the information using the Notification System, whichever is the later.”

Regulation 17 amended (participants)

7.  In regulation 17—

(a) in paragraph (1)(b), after “7”, insert “, 7A, 7B,”;

(b) in paragraph (2), after “7”, insert “, 7A, 7B,”.

Regulation 19 amended (determination of the responsible undertaking)

8.  In regulation 19—

(a) in paragraph (4), after “7”, insert “, 7A, 7B,”;

(b) in paragraph (6), after “7” insert “, 7A, 7B,”.

Regulation 21 amended (role of the lead assessor)

9.  In regulation 21, after paragraph (2), insert—

“(3) This regulation does not apply in relation to a participant whose total energy consumption as calculated in accordance with Chapter 2 is less than 40,000 kWh of energy.”

Regulation 21A inserted (estimates)

10.  In Chapter 1, after regulation 21, insert—

“Estimates

21A.— (1) Where a responsible undertaking uses an estimate in accordance with these Regulations it must record details of the method used to make the estimate.

(2) Where a responsible undertaking uses an estimate in accordance with regulations 23(7), 25A(2), 25B(3) or 26(7)(b) it must—

(a) notify the scheme administrator that an estimate was used, and

(b) record in the evidence pack, the reasons why an estimate was used.”

Regulation 22 amended (duty to calculate total energy consumption)

11.  In regulation 22, in paragraph (1), omit “, unless regulation 33(3) applies,”.

Regulation 23 amended (energy consumption - general)

12.  In regulation 23, in paragraph (7)—

(a) in sub-paragraph (a), omit “, and”;

(b) omit sub-paragraph (b).

Regulation 25 amended (identification of areas of significant energy consumption)

13.  In regulation 25—

(a) in paragraph (1), for “Chapter 3”, substitute “Chapters 2A and 3”;

(b) in paragraph (2), for “90%”, substitute “95%”;

(c) after paragraph (2), insert—

“(3) Where the responsible undertaking elects to identify the participant’s areas of significant energy consumption, the responsible undertaking must calculate the participant’s significant energy consumption.

(4) In these Regulations “significant energy consumption,” in relation to a participant, means the amount of the participant’s total energy consumption that is accounted for by the participant’s areas of significant energy consumption.”

Regulation 25A inserted (conversion into kWh units)

14.  After regulation 25, insert—

“Conversion into kWh units

25A.— (1) Where a participant’s total energy consumption, or, if applicable, significant energy consumption, as calculated in accordance with this Chapter, is not measured in kWh, the responsible undertaking must convert the participant’s total energy consumption, or significant energy consumption into kWh.

(2) The conversion under paragraph (1) must—

(a) where reasonably practicable, be based on verifiable data, or

(b) otherwise, be based on a reasonable estimate of the amount of energy consumed in kWh.”

Regulations 25B and 25C inserted as new Chapter in Part 4 (calculations related to organisational purposes)

15.  After regulation 25A, insert—

“Chapter 2A Calculations related to organisational purposes

Amount of energy consumption related to organisational purposes

25B.— (1) After calculating the participant’s total energy consumption in accordance with Chapter 2, the responsible undertaking must calculate—

(a) in any case where the responsible undertaking has elected to identify the participant’s areas of significant energy consumption, the amount of the participant’s significant energy consumption that is attributable to each organisational purpose expressed in kWh, or

(b) in any other case, the amount of the participant’s total energy consumption that is attributable to each organisational purpose, expressed in kWh.

(2) When added together, the results of the calculations—

(a) under paragraph (1)(a) must equal the participant’s significant energy consumption, or

(b) under paragraph (1)(b) must equal the participant’s total energy consumption.

(3) The calculations under paragraph (1)(a) or (b) must—

(a) where reasonably practicable, be based on verifiable data, or

(b) otherwise, be based on a reasonable estimate of the amount of the participant’s significant energy consumption or the amount of the participant’s total energy consumption, as the case may be, that is attributable to the organisational purpose.

Energy Intensity Ratio

25C.— (1) After carrying out the calculations referred to in regulation 25B(1)(a) or (b), the responsible undertaking must calculate at least one energy intensity ratio in relation to each organisational purpose.

(2) Paragraph (1) does not apply in relation to an organisational purpose if the result of the calculation carried out under regulation 25B(1) in respect of the organisational purpose is zero.

(3) In these Regulations, an “energy intensity ratio” in relation to an organisational purpose, is a ratio which expresses A in relation to B, where—

“A” is the result of the calculation carried out under regulation 25B(1) in respect of the organisational purpose, and

“B” is a quantifiable factor associated with assets held, or activities carried out by the participant for the organisational purpose, over the reference period.”

Regulation 26 amended (duty to carry out an energy audit)

16.—(1) In regulation 26—

(a) after paragraph (3), insert—

“(3A) An energy audit must include visits to sites that the responsible undertaking considers are representative of how energy is used by the assets held, and activities carried on, by the participant during the 12 month period referred to in paragraph (3).”;

(b) omit paragraph (8);

(c) at the end, insert—

“(9) The responsible undertaking must record details of how it has carried out each energy audit in accordance with this Chapter including—

(a) the period during which the energy audit was carried out,

(b) the 12 month period to which the energy audit relates,

(c) as measured in accordance with paragraph (3)—

(i) the participant’s energy consumption in relation to its areas of significant energy consumption, or

(ii) where paragraph (1)(b) applies, the participant’s total energy consumption,

(d) the number of sites at which the participant holds assets, or carries on activities, to which the energy audit relates,

(e) the number of sites visited for the energy audit,

(f) the reasons why the sites visited for the energy audit are considered to be representative of how energy is used by the range of assets held, and activities carried on, by the participant during the 12 month period to which the energy audit relates, and

(g) where paragraph (7)(a) applies, details of the extent to which, and the reasons why, 12 months’ verifiable data was not used.”

Regulation 27 amended (identification of energy saving opportunities)

17.—(1) In regulation 27, in paragraph (1)—

(a) after sub-paragraph (c) omit “and”;

(b) for sub-paragraph (d), substitute—

“(d) in respect of each energy saving opportunity—

(i) identify the organisational purpose to which the energy saving opportunity most closely relates,

(ii) identify the energy saving category to which the energy saving opportunity most closely relates,

(iii) identify any considerations relevant to the implementation of the energy saving opportunity, including, if applicable—

(aa) any considerations arising from an obligation of any person under Part 3 of the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015(4), in relation to any buildings used by the participant, and

(bb) information on any schemes under which grants or public funds from the United Kingdom Government, Scottish Government, Welsh Government or Northern Ireland Government may be available to support implementation of the energy saving opportunity,

(iv) estimate, in pounds, the costs and benefits of implementing the energy saving opportunity,

(v) identify any other non-financial costs and benefits that are not included in the estimate referred to in sub-paragraph (iv),

(vi) estimate the annual reduction in energy spend and the annual reduction in energy consumption which would be achieved as a result of implementing the energy saving opportunity, and

(vii) calculate the payback period for the energy saving opportunity, and”;

(c) after sub-paragraph (d), insert—

“(e) recommend a programme for implementation of the energy saving opportunities (if any), including—

(i) a timescale for implementation of the energy saving opportunities,

(ii) the estimated costs and benefits of implementing the programme, and

(iii) the payback period calculated for the programme.”

(2) In regulation 27, after paragraph (6), insert—

“(7) In these Regulations—

“payback period” in relation to an energy saving opportunity or programme means the period of time in years calculated as—

where—

• “a” is the estimated cost of implementing the energy saving opportunity or programme, and

• “b” is the estimated reduction in energy costs per year from implementing the energy saving opportunity or programme.”

Regulations 27A, 27B and 27C inserted as new Chapter in Part 4 (ESOS Report)

18.  After regulation 27, insert—

“Chapter 3A ESOS Report

ESOS Report

27A.— (1) A responsible undertaking must produce an ESOS report in relation to each ESOS assessment.

(2) Paragraph (1) does not apply in relation to an ESOS assessment carried out for a compliance period ending on or before 5th December 2019.

(3) The ESOS report must be produced before the compliance date for the compliance period to which the ESOS assessment relates.

(4) In these Regulations, an “ESOS report” is a written record containing—

(a) the information required by paragraph (5),

(b) where the responsible undertaking has conducted an energy audit under Chapter 3, the information required by paragraph (6),

(c) where the participant is deemed to have complied with Chapter 3 by virtue of Part 6, the information required by paragraph (7),

(d) the information specified in column 1 of Tables A, C and E in Schedule 3,

(e) where the responsible undertaking is one of two or more relevant undertakings complying with the Scheme as one participant, the information specified in column 1 of Table B in Schedule 3, and

(f) where a lead assessor is required to be appointed under regulation 21, the information specified in column 1 of Table D in Schedule 3.

(5) An ESOS report must include—

(a) the participant’s total energy consumption,

(b) where the responsible undertaking has elected to identify the participant’s areas of significant energy consumption, the participant’s significant energy consumption, expressed in kWh, and the percentage of the participant’s total energy consumption it represents,

(c) the energy intensity ratios calculated in accordance with regulation 25C, and

(d) an estimate of energy savings achieved by the participant, produced in accordance with regulation 27B(1).

(6) Where a responsible undertaking has conducted an energy audit under Chapter 3, the ESOS report must include in relation to the energy audit—

(a) the information required to be recorded in accordance with sub-paragraphs (a) to (f) of regulation 26(9),

(b) a description of the analysis carried out in accordance with regulation 27(1)(a),

(c) the information referred to in sub-paragraphs (b) to (e) of regulation 27(1),

(d) the sum of all the estimates made in accordance with regulation 27(1)(d)(vi) (annual reductions in energy spend and energy consumption),

(e) for each organisational purpose, the sum of the estimates made in accordance with regulation 27(1)(d)(vi) in respect of energy saving opportunities that are identified in accordance with regulation 27(1)(d)(i) as most closely relating to that organisational purpose, and

(f) for each energy saving category, the sum of the estimates made in accordance with regulation 27(1)(d)(vi) in respect of any energy saving opportunities that are identified in accordance with regulation 27(1)(d)(ii) as most closely relating to that energy saving category.

(7) Where the participant is deemed to have complied with Chapter 3 by virtue of Part 6, an ESOS report must include—

(a) where compliance is by virtue of regulation 33 (compliance with ISO 50001), information on which assets held, or activities carried on by the participant fall under the certified energy management system,

(b) where compliance is by virtue of regulation 34 (display energy certificates and green deal assessments), information on which assets held, or activities carried on by the participant are connected to a building referred to in regulation 34(1),

(c) the percentage of the participant’s total energy consumption that falls within regulation 33(2) or 34(2),

(d) any way in which the participant can improve its energy efficiency that is recommended to the participant through its method of deemed compliance with Chapter 3 (“an energy saving measure”),

(e) to the extent that the participant has obtained the information through its method of deemed compliance with Chapter 3—

(i) the organisational purpose and the energy saving category to which each energy saving measure most closely relates,

(ii) the estimated annual reduction in energy spend and energy consumption from implementing each energy saving measure,

(iii) the sum of all the estimates made in accordance with paragraph (ii),

(iv) for each organisation purpose, the sum of the estimates made in accordance with paragraph (ii) in respect of any energy saving measures that are identified in accordance with paragraph (i) as most closely relating to that organisational purpose, and

(v) for each energy saving category, the sum of the estimates made in accordance with paragraph (ii) in respect of any energy saving measures that are identified in accordance with paragraph (i) as most closely relating to that energy saving category,

(f) considerations relevant to the implementation of each energy saving measure, including, if applicable—

(i) any considerations arising from an obligation of any person under Part 3 of the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015(5), in relation to any buildings used by the participant, and

(ii) information on any existing schemes under which grants or public funds from the United Kingdom Government, Scottish Government, Welsh Government or Northern Ireland Government may be available to support implementation of the energy saving measure, and

(g) a programme, including a timescale, for implementation of the energy saving measures (if any).

(8) In this regulation—

(a) references to a participant’s method of deemed compliance with Chapter 3 mean—

(i) where compliance is by virtue of regulation 33, the certified energy management system referred to in that regulation,

(ii) where compliance is by virtue of regulation 34(1)(a), the display energy certificate referred to in that regulation,

(iii) where compliance is by virtue of regulation 34(1)(b), the qualifying Green Deal assessment referred to in that regulation.

(b) references to a participant’s total energy consumption are references to the participant’s total energy consumption, in kWh, as calculated in accordance with Chapter 2.

Energy savings since the previous compliance date

27B.— (1) In preparation of an ESOS report under regulation 27A, a responsible undertaking must produce an estimate of energy savings achieved by the participant in the period beginning immediately after the previous compliance date and ending on the compliance date for the compliance period to which the ESOS report relates.

(2) The responsible undertaking must also—

(a) estimate the proportion of the energy savings referred to in paragraph (1) that most closely relates to each organisational purpose,

(b) identify, where reasonably practicable, the measures implemented by the participant to achieve the energy savings referred to in paragraph (1), and

(c) for each measure identified in accordance with sub-paragraph (b)—

(i) identify the energy saving category to which the measure most closely relates, and

(ii) calculate the payback period for the measure.

(3) Paragraph (2)(c) does not apply to a measure unless the energy saving category to which the measure most closely relates, and the payback period for the measure, has been previously identified and calculated, as the case may be, in an energy audit under Chapter 3.

(4) In this regulation, “payback period” has the same meaning in relation to a measure as it has in regulation 27(7) in relation to an energy saving opportunity or programme.

Disclosure of information to group undertaking

27C.— (1) Subject to paragraphs (2) and (3), where there is any group undertaking in relation to the responsible undertaking on the qualification date for the compliance period to which the ESOS report relates, the responsible undertaking must disclose to the group undertaking those parts of the ESOS report and the evidence pack relevant to the group undertaking.

(2) The responsible undertaking is not required to disclose any part of the evidence pack to the group undertaking unless the participant is deemed to have complied with Chapter 3 by virtue of Part 6.

(3) To the extent that disclosure of those parts of the ESOS report or the evidence pack relevant to the group undertaking is prohibited by law—

(a) paragraph (1) does not apply, and

(b) the responsible undertaking must notify the scheme administrator using the Notification System identifying—

(i) the parts of the ESOS report or the evidence pack that the responsible undertaking is prohibited from disclosing to the group undertaking, and

(ii) the reasons why the responsible undertaking considers that disclosure of those parts of the ESOS report or the evidence pack is prohibited by law.

(4) For the purposes of this regulation, the parts of an ESOS report and evidence pack relevant to a group undertaking are those parts identifying—

(a) where the responsible undertaking has conducted an energy audit under Chapter 3—

(i) any energy saving opportunity which relates to energy consumed, assets held, or activities carried on by the group undertaking,

(ii) the estimated costs and benefits of implementing any such energy saving opportunity,

(iii) any considerations relevant to the implementation of any such energy saving opportunity, and

(iv) any analysis of energy consumption and energy efficiency carried out in accordance with regulation 27(1)(a), including any energy consumption profiles produced in accordance with regulation 27(2) and (3) which relates to energy consumed, assets held, or activities carried on by the group undertaking, and

(b) where the participant is deemed to have complied with Chapter 3 by virtue of Part 6—

(i) where compliance is by virtue of regulation 33, any information under an ISO50001 energy management system as defined in that regulation relating to energy reviews which may relate to such group undertaking,

(ii) where compliance is by virtue of regulation 34, any display energy certificate as defined in that regulation which may relate to such group undertaking,

(iii) documented outputs of qualifying Green Deal assessments as defined in regulation 34 which may relate to such group undertaking,

(iv) any energy saving measure which relates to energy consumed, assets held, or activities carried on, by the group undertaking, and

(v) any considerations relevant to the implementation of any such energy saving measure.”

Regulation 28 amended (evidence packs)

19.—(1) In regulation 28, in paragraph (1)—

(a) in sub-paragraph (c), after “7”, insert “, 7A, 7B”;

(b) after sub-paragraph (d) omit “and”;

(c) in sub-paragraph (e), for the words from “in accordance with” to the end, substitute “in accordance with regulation 21A(1), 27(6)(b), 34A(5)(b) or 34B(5)(b)”;

(d) after sub-paragraph (e) insert—

“(f) any ESOS report,

(g) the information notified to the scheme administrator in accordance with regulation 29,

(h) any ESOS action plan, and

(i) any ESOS progress update.”

(2) In regulation 28, for paragraph (2), substitute—

“(2) The evidence pack must be kept—

(a) in relation to the initial compliance period, until at least 5th June 2024, and

(b) in relation to any other compliance period, for at least two subsequent compliance periods following the compliance period to which it relates.”

Heading of Part 5 amended

20.  For the heading to Part 5, substitute, “Notification and confirmation requirements for ESOS Assessments”.

Regulation 29 amended (notification of compliance)

21.  In regulation 29—

(a) the existing text becomes paragraph (1);

(b) in paragraph (1), for sub-paragraph (a), substitute—

“(a) where the responsible undertaking has conducted an energy audit under Chapter 3 of Part 4, the information specified in column 2 of tables A, C and E, F, G and H in Schedule 3,

(aa) where the participant is deemed to have complied with Chapter 3 of Part 4 by virtue of Part 6—

(i) to the extent not already provided under sub-paragraph (a), the information specified in column 2 of tables A, C, E, F, and H in Schedule 3,

(ii) to the extent that the information is obtained by the participant through its method of deemed compliance with Chapter 3 of Part 4, the information specified in column 2 of Table G in Schedule 3, and

(iii) the information specified in column 2 of Table I in Schedule 3,

(ab) where the responsible undertaking is one of two or more relevant undertakings complying with the Scheme as one participant, the information specified in column 2 of Table B in Schedule 3,

(ac) where a lead assessor is required to be appointed under regulation 21, the information specified in column 2 of Table D in Schedule 3, and”;

(c) after paragraph (1), insert—

“(2) In paragraph (1)(aa)(ii), references to the participant’s “method of deemed compliance with Chapter 3 of Part 4” have the same meaning as references to “method of deemed compliance with Chapter 3” in regulation 27A(8).”

Regulation 30 amended (responsible officers)

22.  In regulation 30, after paragraph (3), insert—

“(3A) In any case where a lead assessor is not required to be appointed by virtue of regulation 21(3), two responsible officers must be nominated.”

Regulation 31 amended (confirmation to be given by responsible officer)

23.  In regulation 31, in paragraph (a)—

(a) in sub-paragraph (ii), for “the Scheme”, substitute “Parts 4 to 6,”;

(b) for sub-paragraph (iii) substitute—

“(iii) the information provided under regulation 29(a) to (ac) is correct, and”.

Regulation 33 amended (compliance with ISO 50001)

24.  In regulation 33—

(a) in paragraph (1), for “compliance period”, substitute “relevant period”;

(b) in paragraph (3), for “Part 4 of these Regulations”, substitute—

“(a) the duty to carry out an energy audit in regulation 20,

(b) regulation 21, and

(c) Chapter 3 of Part 4,”;

(c) in paragraph (4), in sub-paragraph (c), omit “and”;

(d) in paragraph (4), after sub-paragraph (d), insert—

“(e) “relevant period” means—

(i) in the case of the compliance period beginning on 6th December 2019, the period beginning on that date and ending on the compliance date,

(ii) in any other case, the compliance period.”

Regulation 34 amended (display energy certificates and green deal assessments)

25.  In regulation 34—

(a) in paragraph (1)—

(i) in sub-paragraph (a) for “compliance period”, substitute “relevant period”;

(ii) in sub-paragraph (b) for “compliance period”, substitute “relevant period”;

(b) in paragraph (4), after sub-paragraph (b), insert—

“(c) “relevant period” has the same meaning as in regulation 33(4)(e).”

Part 6A inserted (ESOS action plan and ESOS progress update)

26.  After regulation 34, insert—

“Part 6A ESOS action plan and ESOS progress update

ESOS action plan

34A.— (1) Following a notification by a responsible undertaking under regulation 29(1) in relation to a compliance period, the responsible undertaking must produce an ESOS action plan. 

(2) Paragraph (1) does not apply to a notification made under regulation 29(1) in relation to a compliance period ending on or before 5th December 2019.

(3) An “ESOS action plan” is a written record—

(a) setting out—

(i) each measure to improve its energy efficiency that the participant proposes to implement before the end of the relevant compliance period,

(ii) whether the measure was recommended by an energy audit in accordance with regulation 27(1)(c),

(iii) the date by which the participant proposes to implement the measure,

(iv) an estimate of the total energy savings that the participant reasonably expects to achieve during the relevant compliance period by implementing the measure, in energy measurement units,

(v) an estimate of the amount of the energy savings referred to in paragraph (iv) that the participant reasonably expects to achieve in relation to each organisational purpose, in energy measurement units, and

(vi) the method used to calculate the estimate under paragraph (iv), or

(b) containing a statement that there is no measure to improve its energy efficiency that the participant proposes to implement before the end of the relevant compliance period.

(4) Where the ESOS action plan contains an estimate in accordance with paragraph (3)(a)(iv), the responsible undertaking must identify whether the estimate is based on—

(a) the estimated benefits calculated as part of the energy audit carried out in accordance with regulation 27(1)(d),

(b) estimated energy savings calculated through a method of deemed compliance with Chapter 3 of Part 4, or

(c) another reasonable estimation method.

(5) Where an estimate is based on another reasonable estimation method by virtue of paragraph 4(c), the responsible undertaking must—

(a) record a brief description of the method used to estimate the energy savings, and

(b) record the reason for using this method in the evidence pack.

(6) Using the Notification System, the responsible undertaking must notify the scheme administrator of the ESOS action plan by providing—

(a) the ESOS action plan, and

(b) the confirmation required by paragraph (8).

(7) The notification required by paragraph (6) must be provided—

(a) in relation to the compliance period beginning on 6th December 2019 by 5 December 2024, and

(b) in relation to all other compliance periods, within the period starting on the first day of the relevant compliance period and ending on the day before the one-year anniversary of that date.

(8) The notification required by paragraph (6) must include confirmation that—

(a) the responsible officer is satisfied to the best of their knowledge that the responsible undertaking has complied with paragraphs (1) to (5), and

(b) the responsible officer has seen and considered the ESOS action plan.

(9) In paragraph (4)(b), references to the participant’s “method of deemed compliance with Chapter 3 of Part 4” have the same meaning as references to “method of deemed compliance with Chapter 3” in regulation 27A(8).

(10) In this Regulation “relevant compliance period” means the compliance period following the compliance period to which the notification referred to in paragraph (1) relates.

ESOS progress update

34B.— (1) Following notification of an ESOS action plan under regulation 34A(6) (“the latest ESOS action plan”), the responsible undertaking must produce—

(a) an ESOS progress update during the period starting on the one year anniversary of the first day of the relevant compliance period and ending on the day before the two year anniversary of the first day of the relevant compliance period (“an initial progress update”), and

(b) an ESOS progress update during the period starting on the two year anniversary of the first day of the relevant compliance period and ending on the day before the three year anniversary of the first day of the relevant compliance period (“a further progress update”).

(2) An ESOS progress update is a written record identifying any action taken by or on behalf of the participant since the relevant event to implement measures to improve the participant’s energy efficiency.

(3) An ESOS progress update must include—

(a) information identifying—

(i) any measure set out in the latest ESOS action plan that the participant has implemented since the relevant event,

(ii) whether such measure was implemented by any date specified for it in the latest ESOS action plan, and

(iii) any measure set out in the latest ESOS action plan that the participant has not implemented by any date specified for it in the latest ESOS action plan, and

(b) an estimate for the reduction in energy consumption that has been, or will be achieved during the relevant reporting period as a result of the actions identified in the ESOS progress update, calculated in energy measurement units, and

(c) the method used to produce the estimate in accordance with sub-paragraph (b).

(4) In relation to the estimate referred to in paragraph (3)(b), the responsible undertaking must identify whether the estimate is based on—

(a) an estimate of the reduction in energy consumption produced as part of an energy audit carried out in accordance with regulation 27(1)(d)(vi),

(b) an estimate included in the latest ESOS action plan, or

(c) another reasonable estimation method.

(5) Where an estimate is based on another reasonable estimation method by virtue of paragraph 4(c), the responsible undertaking must—

(a) record a brief description of the method used to estimate the reduction in energy consumption, and

(b) record the reason for using this method in the evidence pack.

(6) Using the Notification System, the responsible undertaking must notify the scheme administrator of the ESOS progress update by providing—

(a) the ESOS progress update, and

(b) the confirmation required by paragraph (7)

within the relevant reporting period.

(7) The notification required by paragraph (6) must include confirmation that—

(a) the responsible officer is satisfied to the best of their knowledge that the responsible undertaking has complied with paragraphs (1) to (5), and

(b) the responsible officer has seen and considered the ESOS progress update.

(8) In this Regulation—

“relevant compliance period” has the same meaning as in regulation 34A(10),

“relevant event” means—

(a)

in the case of an initial progress update, the notification of the latest ESOS action plan under regulation 34A(6);

(b)

in the case of a further progress update, the notification of the initial progress update under paragraph (6).

“relevant reporting period” means—

(a)

in the case of an initial progress update, the period referred to in paragraph (1)(a);

(b)

in the case of a further progress update, the period referred to in paragraph (1)(b).”

Schedule 2 amended (Groups of undertakings - Change of group)

27.  In Schedule 2, after paragraph 7 insert—

“7A.   Any undertaking which is a member of a highest parent group, or of a participant formed in accordance with paragraph 3(b) or (c), on the compliance date, and ceases to be part of that group or participant before the last date by which an ESOS action plan is required to be notified under regulation 34A(6)—

(a) may agree in writing with the highest parent that it will comply with regulations 34A and 34B as if it were still a member of that group or participant,

(b) may agree in writing with the highest parent of another highest parent group that it will comply with regulations 34A and 34B as a member of that group, or

(c) in the absence of an agreement made in accordance with sub-paragraph (a) or (b), must—

(i) comply with regulations 34A and 34B on its own behalf, and

(ii) be the responsible undertaking in relation to its compliance with those regulations.

7B.   Any undertaking which is a member of a highest parent group, or of a participant formed in accordance with paragraph 3(b) or (c), on the last date by which an ESOS action plan is required to be notified under regulation 34A(6), and ceases to be part of that group or participant before the last date by which an ESOS progress update is required to be notified under regulation 34B(6)—

(a) may agree in writing with the highest parent that it will comply with regulation 34B as if it were still a member of that group or participant,

(b) may agree in writing with the highest parent of another highest parent group that it will comply with regulation 34B as a member of that group, or

(c) in the absence of an agreement made in accordance with sub-paragraph (a) or (b),, must—

(i) comply with regulation 34B on its own behalf, and

(ii) be the responsible undertaking in relation to its compliance with that regulation.”

Schedule 3 amended (information, notification and publication requirements)

28.  For Schedule 3, substitute—

Regulations 10, 27A and 29

“Schedule 3 Information to be included in ESOS report, to be notified to scheme administrator and to be published by scheme administrator

Table A

Information in relation to responsible undertaking

Information in relation to responsible undertaking	Column 1 - to be included in ESOS report under regulation 27A(4)	Column 2 - to be notified to the scheme administrator under regulation 29	Column 3 - to be published by the scheme administrator under regulation 10
name	yes	yes	yes
email address and telephone number	no	yes	no
registered office (where applicable)	no	yes	yes
principal place of activity, where the responsible undertaking has no registered office	no	yes	yes
company registration number (where applicable)	no	yes	yes
trading or other name by which the responsible undertaking is commonly known (where applicable)	no	yes	yes
name, postal address, email address and telephone number of at least two individuals who will act as contacts for the responsible undertaking, one of whom is the responsible officer	no	yes	no
where the responsible undertaking has a parent undertaking to which these Regulations do not extend (the “global parent”), the name of the global parent, and the trading or other name of the group of undertakings of which the global parent is the parent	no	yes	yes
standard industrial classification code or other equivalent industrial classification of the responsible undertaking and (where different) of other relevant undertakings where complying as one participant	no	yes	yes
reasons for classification of the responsible undertaking as a large undertaking, or small or medium undertaking as determined in accordance with Schedule 1	no	yes	yes

Table B

Information in relation to the participant where the responsible undertaking is one of two or more relevant undertakings complying with the Scheme as one participant

Information in relation to the participant	Column 1 - to be included in ESOS report under regulation 27A(4)	Column 2 - to be notified to the scheme administrator under regulation 29	Column 3 - to be published by the scheme administrator under regulation 10
the number of relevant undertakings comprising the participant	yes	yes	yes
the names and companies house registration numbers (where applicable) of the relevant undertakings comprising the participant	no	yes	>yes
where paragraph 1 of Schedule 2 applies, the fact that an agreement under paragraph 2 of Schedule 2 has been made, and the names of the relevant highest parents	no	yes	yes
the name of any relevant undertaking that has ceased to be part of the participant since the qualification date by virtue of paragraph 3 or 7 of Schedule 2	no	yes	yes
corporate group structure chart or other information setting out the relationship between the relevant undertakings complying with the Scheme as one participant, including the responsible undertaking, any franchisees, any relevant undertaking that has ceased to be part of the participant since the qualification date by virtue of paragraph 3 or 7 of Schedule 2 and any parent undertaking of the responsible undertaking to which these Regulations do not extend	yes	yes	yes

Table C

Information in relation to the responsible officer

Information in relation to the responsible officer	Column 1 - to be included in ESOS report under regulation 27A(4)	Column 2 - to be notified to the scheme administrator under regulation 29	Column 3 - to be published by the scheme administrator under regulation 10
name	yes	yes	no
full title or position in the participant or relevant undertaking	yes	yes	yes
contact details	no	yes	no
date on which the responsible officer considered the recommendations of the audit in accordance with regulation 31(b)	no	yes	yes

Table D

Information in relation to lead assessor where one is required under regulation 21

Information in relation to lead assessor	Column 1 - to be included in ESOS report under regulation 27A(4)	Column 2 - to be notified to the scheme administrator under regulation 29	Column 3 - to be published by the scheme administrator under regulation 10
name	yes	yes	no
the approved register	yes	yes	yes
whether the lead assessor is employed by the participant or by an undertaking which is a group undertaking in respect of the participant	no	yes	yes

Table E

Information in relation to all other people who have carried out a significant proportion of site visits or data gathering for the energy audit, or drafted significant parts of the ESOS report

Information in relation to a specified person	Column 1 - to be included in ESOS report under regulation 27A(4)	Column 2 - to be notified to the scheme administrator under regulation 29	Column 3 - to be published by the scheme administrator under regulation 10
name of each natural person who has carried out a significant proportion of the site visits required by regulation 26(3A), gathered a significant amount of the data used for carrying out the energy audit, or drafted significant parts of the ESOS report (a “specified person”)	yes, where recorded	yes, where recorded	no
whether the specified person is employed by the participant, or an undertaking which is a group undertaking in respect of the participant	no	yes, where recorded	no

Table F

Information in relation to the ESOS assessment

Information in relation to the ESOS assessment	Column 1 - intentionally left blank	Column 2 - to be notified to the scheme administrator under regulation 29	Column 3 - to be published by the scheme administrator under regulation 10
whether, and if so to what extent, the participant has relied on Part 6 in complying with the Scheme	-	yes	yes
details of estimates produced in accordance with Part 4 and required to be notified under regulation 21A	-	yes	yes
details of site visits required to be recorded under regulation 26(9)(e) and (f).	-	yes	yes
where applicable, that the energy audit does not include an analysis based on energy consumption profiles (as defined in accordance with regulation 27(3))	-	yes	no
where applicable, information relating to non-disclosure of information to a group undertaking as specified in regulation 27C(3)(b)	-	yes	no
where applicable, details of the extent to which and the reasons why 12 months’ verifiable data was not used as required to be recorded under regulation 26(9)(g)	-	yes	no

Table G

Information related to the participant’s energy consumption

Information related to the participant’s energy consumption	Column 1 - intentionally left blank	Column 2 - to be notified to the scheme administrator under regulation 29	Column 3 - to be published by the scheme administrator under regulation 10
the participant’s total energy consumption in kWh calculated in accordance with Chapter 2 of Part 4	-	yes	yes
the amount of the participant’s total energy consumption that is attributable to each organisational purpose as calculated in accordance with regulation 25B(1)(b)	-	yes	no
where applicable, the participant’s significant energy consumption in kWh	-	yes	yes
where applicable, the amount of the participant’s significant energy consumption in kWh that is attributable to each organisational purpose as calculated in accordance with regulation 25B(1)(a)	-	yes	no
where applicable, the percentage of the participant’s total energy consumption that is accounted for by the participant’s areas of significant energy consumption	-	yes	yes
the energy intensity ratios calculated in accordance with regulation 25C	-	yes	yes

Table H

Information related to energy saving opportunities identified through an energy audit in accordance with regulation 26

Information related to energy saving opportunities	Column 1 - intentionally left blank	Column 2 - to be notified to the scheme administrator under regulation 29	Column 3 - to be published by the scheme administrator under regulation 10
the sum of all the estimates made in accordance with regulation 27(1)(d)(vi) (annual reductions in energy spend and energy consumption).	-	yes	yes
for each organisational purpose, the sum of the estimates made in accordance with regulation 27(1)(d)(vi) in respect of any energy saving opportunities that are identified in accordance with regulation 27(1)(d)(i) as most closely relating to that organisational purpose	-	yes	no
for each energy saving category, the sum of the estimates made in accordance with regulation 27(1)(d)(vi) in respect of any energy saving opportunities that are identified in accordance with regulation 27(1)(d)(ii) as most closely relating to that energy saving category	-	yes	no
the estimate of energy savings achieved, as produced in accordance with 27B(1)	-	yes	yes
the estimates of the proportion of the energy savings that relate to each organisational purpose, in accordance with 27B(2)(a)	-	yes	no

Table I

Information relating to compliance with the Scheme under regulations 33 or 34 (alternative routes to compliance)

Information	Column 1 - intentionally left blank	Column 2 - to be notified to the scheme administrator under regulation 29(ab)	Column 3 - to be published by the scheme administrator under regulation 10
where compliance is by virtue of regulation 33 (ISO 50001 certification), the details specified in regulation 27A(7)(a) and (c)	-	yes	yes
where compliance is by virtue of regulation 34 (Display Energy Certificates and Green Deal Assessment), the details specified in regulation 27A(7)(b) and (c)	-	yes	yes
the estimate of energy savings achieved, as produced in accordance with regulation 27B(1)	-	yes	yes
the estimates of the proportion of the energy savings that relate to each organisational purpose, as produced in accordance with 27B(2)(a)	-	yes	no
for each organisational purpose the sum of the estimates made in accordance with regulation 27A(7)(e)(ii) in respect of any energy saving measures that are identified in accordance with regulation 27A(7)(e)(i) as most closely relating to that organisational purpose	-	yes	no
the sum of the estimates made in accordance with regulation 27A(7)(e)(ii) in respect of all the energy saving measures identified in accordance with regulation 27A(7)(d)	-	yes	yes
for each energy saving category, the sum of the estimates made in accordance with regulation 27A(7)(e)(ii) in respect of any energy saving measures that are identified in accordance with regulation 27A(7)(e)(i) as most closely relating to that energy saving category	-	yes	no”

Schedule 5 amended (Modification of the application of these Regulations in relation to certain relevant trust assets)

29.—(1) Schedule 5 is amended as follows.

(2) In paragraph 2, after sub-paragraph (2) insert—

“(2A) In regulation 21(3) for “participant” there is substituted “relevant trust asset”.”

(3) In paragraph 2 in sub-paragraph (8)(b), for “90%” substitute “95%”.

(4) In paragraph 2, after sub-paragraph (8) insert—

“(8A) Regulation 25A applies with the modifications that any reference to the energy consumption, the total energy consumption, or the areas of significant energy consumption, of a participant is to be read as if it were a reference to the energy consumption, the total energy consumption, or the areas of significant energy consumption (as the case may be) of the relevant trust asset.

(8B) Regulation 25B applies with the modifications that any reference to the energy consumption, the total energy consumption, or the areas of significant energy consumption, of a participant is to be read as if it were a reference to the energy consumption, the total energy consumption, or the areas of significant energy consumption (as the case may be) of the relevant trust asset.

(8C) Regulation 25C applies with the modifications that any reference to the areas of significant energy consumption, or the total energy consumption, of a participant is to be read as if it were a reference to the areas of significant energy consumption or the total energy consumption (as the case may be) of the relevant trust asset.””

(5) In paragraph 2, in sub-paragraph (10), after paragraph (c) insert—

“(ca) in paragraph (1)(d)(iii)(aa) for “used by the participant” there is substituted “used by or that constitutes the relevant trust asset”.”

(6) In paragraph 2, after sub-paragraph (10), insert—

“(10A) Regulation 27A applies with the modifications that any reference to the total energy consumption or significant energy consumption of the participant is to be read as if it were a reference to the total energy consumption or significant energy consumption (as the case may be) of the relevant trust asset.

(10B) Regulation 27B applies with the modifications that any reference to the energy savings, or the estimated energy savings of the participant is to be read as if it were a reference to the energy savings, or the estimated energy savings (as the case may be) of the relevant trust asset.

(10C) Regulation 27C applies with the modifications that any reference to the energy consumption of the participant is to be read as if it were a reference to the energy consumption of the relevant trust asset.”

(7) After paragraph 3, insert—

“4.— (1) Part 6 applies with the following modifications—

(a) regulation 34A applies with the modification that any reference to “participant” should be read as a reference to relevant trust asset;

(b) regulation 34B applies with the modification that any reference to “participant” should be read as a reference to relevant trust asset.

5.— (1) Schedule 3 applies with the following modifications—

(a) in Table F for “the participant” there is substituted “the relevant trust asset”;

(b) Table G applies with the modification that any reference to the participant is to be read as a reference to the relevant trust asset.”.

Callanan

Parliamentary Under Secretary of State

Department for Energy Security and Net Zero 

at 10.38 a.m. on 7th November 2023

Explanatory Note

(This note is not part of the Regulations)

These Regulations make changes in relation to the Energy Savings Opportunity Scheme (ESOS) which was established under the Energy Savings Opportunity Scheme Regulations 2014 (the 2014 regulations). ESOS is an energy assessment scheme which requires large organisations in the UK and their corporate group to carry out an audit of the energy used by their buildings, industrial processes and transport in relation to four-year compliance periods. These Regulations introduce a number of changes intended to enhance and standardise ESOS reporting and publication requirements in relation to the compliance period which began on 6 December 2019, and subsequent compliance periods, with the aim of encouraging participants to take action to make energy savings.

The Regulations make the following changes to the 2014 regulations (references to Parts and Chapters below refer to the 2014 regulations).

Part 2, Chapter 1 is amended to update the compliance date for the compliance period beginning on 6 December 2019 to 5 June 2024 for some purposes. Part 2, Chapter 2 is amended to extend the requirement that a scheme administrator must publish certain types of information held on the Notification System.

Part 4, Chapter 1 is amended to clarify that a lead assessor does not need to be appointed by undertakings that consume less than 40,000kWh over the annual reference period. New regulation 21A is inserted to provide for how details of estimates used under ESOS must be recorded and notified. Part 4, Chapter 2 is amended to clarify that all participants have a duty to calculate total energy consumption. It is also amended to update the definition of “areas of significant energy consumption” to be not less than 95% of the undertaking’s total energy consumption and insert a new definition of “significant energy consumption”. New regulation 25A is inserted to require that in some circumstances a participant’s total energy consumption, or significant energy consumption must be converted into kWh units. In a new Chapter 2A, new regulation 25B is inserted to require responsible undertakings to identify the proportion of energy consumption that relates to a organisational purpose of transport, industrial processes, buildings and other. New regulation 25C is inserted to require responsible undertakings to calculate an energy intensity ratio for applicable organisational purposes. In Part 4, Chapter 3, regulation 26 is amended to specify requirements as to site visits and additional record-keeping in relation to the energy audit. Regulation 27 is amended so that the requirement to identify energy saving opportunities is extended to require responsible undertakings to conduct further analysis and to identify considerations for implementation of energy saving opportunities and recommend a programme for implementation. In a new Chapter 3A, new regulation 27A is inserted to establish the requirement for a responsible undertaking to produce an ESOS report, that is the written record of the energy audit conducted by the undertaking which must include information specified in that regulation. New regulation 27B is inserted to require a responsible undertaking to estimate energy savings made by the participant since the preceding compliance date. New regulation 27C is inserted to require that responsible undertakings share relevant information with group undertakings. Regulation 28 is amended to extend the information that is required to be included in the evidence pack and in specified circumstances, extend the period that the evidence pack must be held for.

Part 5 is amended to extend the categories of information that a responsible undertaking is required to include in their notification of compliance. Regulation 30 is amended to clarify that where a lead assessor is not required to be appointed, two responsible officers must be nominated. Regulation 31 is amended to extend the categories of information that a responsible officer is required to confirm.

Part 6 is amended so as to apply the requirement to produce an ESOS report to participants relying wholly or partly on an alternative compliance route.

New Part 6A is inserted so as to require all participants to produce an ESOS action plan under new regulation 34A and ESOS progress update under new regulation 34B, and these are also applied to those participants relying wholly or partly on an alternative compliance route via amendments to Part 6.

Schedule 2 is amended to update the rules for disaggregation to clarify who is the responsible undertaking for when changes to participant groups occur between the relevant dates for the action plan and progress update.

Schedule 3 is replaced to insert tables A to I that provide detail of the information that is to be included in the ESOS report, notified to the scheme administrator and to be published by the scheme administrator. In Tables A to I, column 1 provides detail of administrative information required to be included in the ESOS report under regulation 27A(4). In some tables column 1 is intentionally left blank where the requirement to include that information is specified elsewhere in the Regulations. Column 2 details information that is required to be notified to the scheme administrator by regulation 29. Column 3 provides detail of the information that is required to be published by the scheme administrator under regulation 10.

Schedule 5 is amended to update the application of the ESOS scheme to trust assets.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector has been published alongside these Regulations and is available from legislation.gov.uk or from the Department for Energy Security and Net Zero, 3-8 Whitehall Place, London SW1A 2EG.

(1)

2023 c. 52

(2)

S.I. 2014/1643 as amended by S.I. 2018/1342; there are other amending instruments but none is relevant.

(3)

Published by the Office of National Statistics. For information on how to obtain a hard copy, contact the Office for National Statistics, Classifications and Harmonisation Unit, Government Buildings, Cardiff Road, Newport, South Wales, NP10 8XG. For an electronic copy, see https://www.ons.gov.uk/methodology/classificationsandstandards/ukstandardindustrialclassificationofeconomicactivities/uksic2007

(4)

S.I. 2015/962, as amended by S.I. 2019/595; there are other amending instruments but none is relevant.

(5)

S.I. 2015/962 as amended by S.I. 2019/595; there are other amending instruments but none is relevant.