The Energy Bills Discount Scheme (Northern Ireland) Regulations 2023

• (a) the amounts which are the subject of arrangements it makes with, or requirements it imposes, on any customer in connection with the payment (or assurance of payment) or collection of charges under a supply contract, are amounts calculated by reference to the discounted supply price;

• (b) where a customer takes its supply through a prepayment meter, the prepayment meter is set or reset, or other arrangements are made, as soon as reasonably practicable after the scheme introduction date, and thereafter whenever required, to ensure that the amounts paid by the customer over each scheme period reflect charges at the discounted supply price for supply in the scheme period.

• (6) Arrangements and requirements referred to in paragraph (5)(a) include (without limitation) arrangements or requirements for advance payment, payment by direct debit, payment by instalments, security or credit cover for payment.

Consequences of change in contract categorisation

31

Where the categorisation of a supply contract under regulation 11 is revised, either by agreement of the contract parties or by determination of the Secretary of State under these Regulations, the supplier must—

• (a) redetermine the amount of any charges for energy supplied under the contract prior to the date of such revision on the basis of the discounted supply price applicable to the contract as re-categorised,

• (b) determine the amount by which any such charges already included in any invoice or statement of account are to be revised to reflect such redetermination,

• (c) notify the customer of its determinations under paragraphs (a) and (b), and

• (d) take the necessary steps to ensure the amount in paragraph (b) is credited or debited to the customer by way of credit note, or adjustment of an existing invoice or statement of account, or inclusion in a future invoice or statement of account.

PART 3 — Discount recovery

CHAPTER 1 — Entitlements in respect of discount recovery

Entitlements in respect of discount recovery

32

• (1) A supplier is entitled to recover from the Secretary of State, as provided in this Part, the amount by which, in any period, its charges to customers under supply contracts are reduced by the application of discounts in accordance with Part 2 and Part 4.

• (2) The amount (the “base recovery amount”) which a supplier is entitled to recover from the Secretary of State in respect of energy supplied in any period under a supply contract is the quantity supplied multiplied by the discount.

• (3) In order to obtain discount recovery a supplier must submit a claim in accordance with Chapter 4 (a “discount recovery claim”).

• (4) The Secretary of State is entitled to recover from a supplier any amount paid to the supplier under this Part that exceeds what the supplier is entitled to recover under this Part.

Determination of amounts subject to discount recovery

33

• (1) For each supply contract, the “supply contract recovery amount” is the amount that is payable to or by the supplier in respect of a discount recovery claim, and is calculated as the sum of—

• (a) the base recovery amount, in respect of energy supplied in the period of supply specified in the claim, and

• (b) each of the following, so far as it qualifies under paragraph (2)—

• (i) any adjustment of a base recovery amount for an earlier period of supply arising as a result of energy reconciliation;

• (ii) any adjustment of a base recovery amount for an earlier period of supply arising as a result of supply redetermination event;

• (iii) any adjustment of a base recovery amount in respect of an earlier period of supply arising as a result of the correction of any error in the calculation of that amount in accordance with the discount recovery rules;

• (iv) any adjustment of the base recovery amount in respect of an earlier period of supply arising as a result of failure to apply (or to apply correctly) any of regulations 49, 54, 58 or 63 in the determination under sub-paragraph (a) of the base recovery amount for that earlier period of supply;

• (v) any adjustment of the base recovery amount in respect of an earlier period of supply where the customer has given an opt-out notice effective from a date before the notice was given;

• (vi) any adjustment in consequence of a determination of the Secretary of State under regulation 73 or 74 or a reconsidered decision of the Secretary of State under regulation 75.

• (2) An amount in paragraph (1)(b) qualifies for inclusion in a discount recovery claim where it was not taken into account in the supply contract recovery amount under any prior discount recovery claim.

• (3) In paragraph (1)(b), an amount which is—

• (a) payable to the supplier, is counted as a positive amount;

• (b) payable to the Secretary of State, is counted as a negative amount.

• (4) The period of supply specified for any supply contract in a discount recovery claim—

• (a) must be a period ending before the date on which the claim is submitted;

• (b) must not include any day which falls in the period of supply specified for that supply contract in any earlier claim.

• (5) A supplier may not claim discount recovery in respect of a supply contract unless it has complied with regulation 11(1) in relation to the contract.

• (6) For any supply contract, where any of the amounts referred to in paragraph (1)(b) is an amount payable to the Secretary of State, the supplier must—

• (a) submit a discount recovery claim in accordance with Chapter 4 in the first claim window which starts after such amount has been determined;

• (b) include those amounts in the supply contract recovery amount in that discount recovery claim.

• (7) The amount payable by the Secretary of State to a supplier in respect of a discount recovery claim may be adjusted in accordance with regulation 41(2).

• (8) Amounts under paragraph (1)(b) continue to be determined and payable by or to a supplier after the scheme end date in accordance with regulation 39.

• (9) Where a customer gives an opt-out notice in respect of a supply contract, this Part continues to apply in relation to the amounts referred to in paragraph (1)(b) for any period of supply under the supply contract before the day from which the opt-out notice was effective.

Payment of amounts in respect of discount recovery

34

• (1) The amount payable in respect of a supplier’s discount recovery claim as a whole (“the recovery claim amount”) is, subject to the application of regulation 41, the sum of—

• (a) the supply contract recovery amounts payable in respect of each of its supply contracts, and

• (b) any amount carried forward from the preceding discount recovery claim under paragraph (3)(b).

• (2) The recovery claim amount is payable—

• (a) to the supplier, or

• (b) as the case may be, to the Secretary of State, subject to paragraph (3)(b),

no later than the 10th business day after the last day of the claim window in which the claim was submitted.

• (3) If (in respect of a discount recovery claim) the recovery claim amount is negative—

• (a) that amount is payable (disregarding its negative sign) by the supplier to the Secretary of State, but

• (b) the Secretary of State may, by notice to the supplier, elect that such amount is to be carried forward and deducted in calculating the recovery claim amount under the next following discount recovery claim submitted by the supplier.

• (4) Where any amount is owing and unpaid by a supplier to the Secretary of State under either the electricity scheme or the gas scheme, the Secretary of State may set that amount off against any amount which is payable to the supplier by the Secretary of State under either the electricity scheme or the gas scheme.

• (5) Where any amount is owing and unpaid by a supplier to the Secretary of State under either the scheme or EBRS, the Secretary of State may set that amount off against any amount which is payable to the supplier by the Secretary of State under either EBRS or the scheme.

• (6) If an amount payable by a supplier or the Secretary of State under this regulation is not paid by the due date, simple interest is payable on the unpaid amount, from the day following the due date until the day on which the amount is paid in full, at a rate calculated as base rate plus 2% per annum.

• (7) An amount payment of which is withheld by the Secretary of State under regulation 37 is not an amount payable by the Secretary of State for the purposes of paragraph (5) unless and until the amount is released under regulation 38.

• (8) An amount payable to a supplier or the Secretary of State under this regulation is recoverable as a civil debt by the person to which it is payable.

Assignment of rights in respect of payment

35

A supplier may not assign, transfer or otherwise deal with its right to receive payment of amounts in respect of discount recovery under this Part except with the consent of the Secretary of State.

Absolute right of Secretary of State to recover

36

The Secretary of State may at any time (including after the reconciliation cut-off date) require a supplier to pay any amount which has been paid to the supplier in excess of what the supplier is entitled to be paid under the scheme.

CHAPTER 2 — Withholding of payments in respect of discount recovery

Rights of Secretary of State to withhold payment

37

• (1) The Secretary of State may withhold payment of all or part of the amount payable to a supplier in respect of a recovery claim amount in the following circumstances—

• (a) if the Secretary of State has reasonable grounds to believe that paragraph (2) applies in relation to the supplier or a customer of the supplier;

• (b) if the Secretary of State has reasonable grounds to believe that, as a result of the application of Part 4, any significant amounts are payable and unpaid or (if Part 4 were complied with) would become payable to the Secretary of State;

• (c) if, in relation to any discount recovery claim—

• (i) the supplier has failed to provide (as required under Chapter 4) supporting information, or

• (ii) the Secretary of State has reasonable grounds to believe that the supporting information provided is incorrect,

and as a result the Secretary of State is unable to verify any of the amounts claimed;

• (d) if paragraph (4) applies;

• (e) if an event of insolvency has occurred in relation to the supplier and the Secretary of State considers that any amounts will in future become payable by the supplier to the Secretary of State under the scheme;

• (f) if, not more than 30 days before the scheme end date, the Secretary of State considers it appropriate to establish a reserve in respect of the amounts that may become payable by the supplier after the scheme end date by the operation of regulation 39.

• (2) This paragraph applies if, in connection with the scheme, a supplier or a customer has acted dishonestly, provided materially misleading information, or failed to take proper measures to prevent or report actual or anticipated fraud or corruption.

• (3) Where paragraph (2) applies as a result of the acts or omissions of a customer, only that part of the recovery claim amount referable to that customer’s supply contract may be withheld under paragraph (1)(a).

• (4) This paragraph applies if—

• (a) the Secretary of State considers that a supplier is failing to meet acceptable standards in the submission of discount recovery claims under the discount recovery rules,

• (b) the Secretary of State has given notice to that effect to the supplier, giving reasons for the Secretary of State’s view, and requiring the supplier to take measures to remedy such failings by a date specified in the notice, and

• (c) the supplier does not, by that date, satisfy the Secretary of State that it has taken those measures.

• (5) For the purposes of paragraph (1)(e), “event of insolvency” means any of the following in relation to a supplier—

• (a) it is, or is deemed for the purposes of section 103(1)e or 103(2) of the Insolvency Northern Ireland Order 1989¹⁷ to be, unable to pay its debts as they fall due;

• (b) it admits its insolvency or its inability to pay its debts as they fall due;

• (c) it suspends making payments on any of its debts or announces an intention to do so;

• (d) by reason of actual or anticipated financial difficulties, it begins negotiations with any creditor for the rescheduling or restructuring of any of its indebtedness;

• (e) a moratorium is declared in respect of any of its indebtedness;

• (f) any step is taken with a view to a moratorium or a composition, compromise assignment or arrangement with any of its creditors, including but not limited to a voluntary arrangement, scheme of arrangement or a restructuring plan;

• (g) a meeting of its shareholders, directors or other officers is convened for the purpose of considering any resolution to appoint a liquidator or administrator, or to petition for or to file documents with a court or any registrar for its winding-up, administration or dissolution or any such resolution is passed;

• (h) any person presents a petition, or files documents with a court or any registrar for its winding-up, administration or dissolution or seeking relief under any applicable bankruptcy, insolvency, company or similar law other than any such petition or filing which is frivolous or vexatious and is discharged, stayed or dismissed within 15 business days beginning on the date when the petition was presented or the filing made;

• (i) any liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets;

• (j) its shareholders, directors or other officers request the appointment of, or give notice of their intention to appoint, a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer in respect of it or any of its assets;

• (k) any other analogous step or procedure is taken in any jurisdiction (whether Northern Ireland, Scotland, England and Wales or elsewhere).

Release of amounts withheld

38

• (1) Paragraph (2) applies if—

• (a) the Secretary of State withholds payment under regulation 37(1)(b), and

• (b) the amounts (if any) payable to the Secretary of State as a result of the application of Part 4 are—

• (i) agreed or determined by the supplier under any provision of Part 4, or

• (ii) determined by the Secretary of State under regulation 74 or 75.

• (2) Where this paragraph applies, the Secretary of State must release the amount withheld, or so much of it as exceeds any amount agreed or determined to be payable, within a reasonable time after the agreement or determination.

• (3) If—

• (a) the Secretary of State withholds payment under regulation 37(1)(c), and

• (b) the supplier provides the supporting information or (as the case may be) correct supporting information,

the Secretary of State must, within a reasonable time, release the amount withheld or so much, if any, of it as is shown (by such supporting information) to be payable by the Secretary of State.

• (4) If—

• (a) the Secretary of State withholds payment under regulation 37(1)(d), and

• (b) the supplier demonstrates to the satisfaction of the Secretary of State that the supplier has taken the measures referred to in regulation 37(4)(b),

the Secretary of State must, within a reasonable time, release the amount withheld, less any amount established not to be payable by the Secretary of State.

• (5) If the Secretary of State withholds payment under regulation 37(1)(e)—

• (a) simple interest at base rate runs on the amount withheld from the day following the day when such amount was otherwise due for payment to the supplier to the day on which it is paid;

• (b) the Secretary of State must release the amount withheld, together with the accrued interest or so much, if any, of it as exceeds the amounts finally determined as payable by the supplier, when those amounts are finally determined.

• (6) If the Secretary of State withholds payment under regulation 37(1)(f)—

• (a) simple interest at base rate runs on the amount withheld from the day following the day when such amount was otherwise due for payment to the supplier to the day on which it is paid;

• (b) the Secretary of State must keep under review the amount withheld in comparison with the amounts which are payable in consequence of regulation 39 by the supplier or the Secretary of State;

• (c) the Secretary of State may release a part of the amount withheld where, on the basis of the review under sub-paragraph (b), the Secretary of State considers the amount held in reserve exceeds what is appropriate;

• (d) the Secretary of State must release the amount withheld, or so much of it as remains withheld, together with accrued interest, within the period of 5 business days beginning with the reconciliation run-off date.

CHAPTER 3 — Reconciliation run-off

Reconciliation run-off

39

• (1) This regulation provides for reconciliation and adjustment to continue, after the scheme end date, in respect of claims for discount recovery in respect of periods of supply within either scheme period.

• (2) The provisions of this Part continue to apply, on the basis set out in paragraph (3), with effect from the scheme end date until the reconciliation run-off date.

• (3) No day after the scheme end date is counted in any period of supply in respect of any supply contract, and accordingly there is no base recovery amount in respect of any period after the scheme end date.

• (4) Unless otherwise permitted by the Secretary of State, a supplier must submit a discount recovery claim in each claim window in the reconciliation run-off period.

• (5) The Secretary of State must determine, in respect of each supplier or some or all suppliers collectively, the date after which it is not likely that any material amounts will be calculated under regulation 33(1)(b) (such date, in respect of a supplier, “the reconciliation run off date”), and give notice to the supplier or suppliers of that date.

• (6) In this regulation—

• (a) the “reconciliation run-off period” is the period beginning with the day after the scheme end date and ending with the reconciliation run-off date;

• (b) the “scheme end date” is—

• (i) in relation to a supplier who ceases to hold an electricity supply licence or gas supply licence, the date on which the supplier ceases to hold that licence;

• (ii) in relation to any other supplier, the last day of the second scheme period.

CHAPTER 4 — Procedure for discount recovery

Submission of a valid discount recovery claim

40

• (1) A supplier may apply for discount recovery by submitting a discount recovery claim to the Secretary of State, setting out—

• (a) the date on which the claim is submitted;

• (b) the supply contracts in respect of which discount recovery is claimed;

• (c) for each such supply contract—

• (i) the period of supply to which the claim relates, and

• (ii) the supply contract recovery amount;

• (d) any amount carried forward from the preceding discount recovery claim under regulation 34(3)(b);

• (e) the details required under regulation 42 in respect of any supply contract;

• (f) details of any opt-out notice which has been given or withdrawn by a customer since—

• (i) the preceding discount recovery claim, or

• (ii) in the case of the first such claim, the scheme introduction date,

• (g) the recovery claim amount.

• (2) A supplier may submit only one discount recovery claim, relating to all supply contracts for which it claims discount recovery, in any claim window.

• (3) But paragraph (2) does not prevent the supplier from submitting a replacement discount recovery claim as provided in regulation 41(1) in any claim window.

• (4) A valid discount recovery claim is one that meets—

• (a) the requirements in this regulation, and

• (b) the further requirements for a valid discount recovery claim set out in the discount recovery rules.

Invalid, erroneous or absent discount recovery claims

41

• (1) Where the Secretary of State considers that a claim submitted by a supplier is not a valid discount recovery claim, the Secretary of State may—

• (a) decline to make any payment in respect of it, or

• (b) elect to pay part only of the amount claimed,

until the invalidity is corrected or the claim is replaced by a valid discount recovery claim.

• (2) Where the Secretary of State considers that a discount recovery claim is valid but any amount set out in the claim is erroneously stated—

• (a) the Secretary of State, after taking reasonable steps to resolve the matter with the supplier, may adjust the amount of the claim to reflect what the Secretary of State considers to be the correct amount;

• (b) the amount payable under regulation 34 by or to the Secretary of State in respect of the discount recovery claim is the adjusted amount under sub-paragraph (a).

• (3) If in a claim window a supplier does not submit a discount recovery claim, and the Secretary of State considers that, if a claim had been submitted on the last day of the claim window, the recovery claim amount, calculated disregarding any base recovery amount, would be an amount payable to the Secretary of State—

• (a) the Secretary of State may give notice to the supplier setting out that recovery claim amount and details of how it was calculated;

• (b) the notice is to be treated as a valid discount recovery claim for the purposes of this Chapter.

Reporting details of Part 4 arrangements

42

• (1) A supplier must include, in each discount recovery claim that it submits—

• (a) each declaration received from a customer under regulation 48(1)(b), 53(1)(b) or 62(1)(b) or sent to or received from a customer under regulation 57(2) since the preceding discount recovery claim (or in the case of the first, since the scheme introduction date);

• (b) details of any customer to which, since the preceding discount recovery claim (or in the case of the first, since the scheme introduction date), the supplier has given notice under regulation 48(2)(b), regulation 53(2)(b) or regulation 62(2)(b) unless the customer has either sent a declaration (as referred to in sub-paragraph (a)) or confirmed to the supplier in writing that the Chapter under which the supplier gave that notice does not apply.

• (2) A supplier must include, in each discount recovery claim that it submits, the following matters in respect of the period of supply to which the discount recovery claim relates, and any other period of supply for which such matters have not been included in a prior discount recovery claim—

• (a) in relation to any supply contract in respect of which Chapter 1, 2 or 4 of Part 4 applies, details of each declaration submitted by the customer, and each calculation or determination made by the supplier, under regulation 49(2), 54(3) or 63(2);

• (b) in relation to any supply contract in respect of which Chapter 3 of Part 4 applies, details of each notice given or received by the supplier under regulation 58(1)(b)(ii) and confirmation that the requirements in regulation 58(1)(c) are being complied with.

Discount recovery rules

43

• (1) The Secretary of State must make rules about discount recovery.

• (2) Rules made under paragraph (1) may in particular make provision about—

• (a) establishing arrangements for the making of payments to and by suppliers under this Part, including the notification of bank account details;

• (b) the means by which and the form in which a supplier may submit a discount recovery claim, and any other requirements to be met in respect of the claim for it to be a valid discount recovery claim;

• (c) the supporting information that a supplier must submit with a discount recovery claim;

• (d) the review and validation of the discount recovery claim and initial verification of the supporting information;

• (e) any adjustment of the amount of the claim under regulation 41(2);

• (f) the payment of recovery claim amounts;

• (g) the investigation of discount recovery claims and verification of supporting information after payment has been made;

• (h) the correction of errors identified by such further investigation and verification.

• (3) Subject to paragraph (4), rules made under paragraph (1) must specify the claim windows.

• (4) The rules may provide, in respect of claim windows starting after the end of the second scheme period, that such windows, instead of being set out in the rules, are to be determined and published by the Secretary of State at intervals decided by the Secretary of State.

Claim windows

44

• (1) Regardless of whether claim windows are specified under regulation 43(3) or published under regulation 43(4)—

• (a) the first claim window must start not more than 20 business days after the scheme introduction date;

• (b) each claim window must have a duration of not less than 8 business days;

• (c) the last claim window must start not less than 24 months after the second scheme period ends (but this is without prejudice to the determination by the Secretary of State of the reconciliation run-off date in respect of any supplier, and subject to paragraph (3));

• (d) after the first claim window, at least one claim window must start in each month of a scheme period;

• (e) after the second scheme period ends, each claim window must start not later than 6 months after the start of the previous claim window.

• (2) The dates of claim windows determined under regulation 43(4) must be published at least 15 days in advance of each such claim window.

• (3) Where claim windows are published under regulation 43(4), after the Secretary of State has determined and published the last reconciliation run-off date in respect of any supplier, the Secretary of State need not determine and publish any claim window that starts after that date.

Delegation of functions related to discount recovery

45

• (1) The Secretary of State may delegate to any person the performance of any of the Secretary of State’s functions under the discount recovery rules.

• (2) Where, in performing those functions, the delegate is required to make or receive any payment or give or receive any communication to or from suppliers, the Secretary of State must publish a notice of the delegation identifying the functions which the delegate is to perform.

• (3) A notice under paragraph (2) may specify that paragraph (4) applies in relation to the delegate.

• (4) Where this paragraph applies, subject to any limitations or conditions in the notice, and without prejudice to any provision of any contract between the delegate and any person, the delegate is not liable in damages for anything done or omitted to be done by it in the exercise or purported exercise of the functions delegated to it.

PART 4 — Adjustment of discount or supply quantity in certain cases

CHAPTER 1 — Arrangements in respect of customer’s financial exposure to wholesale price

Interpretation of this Chapter

46

• (1) For the purposes of this Chapter—

• “arrangement benefit” has the meaning given in regulation 49(1)(a);

• “balancing services” means a customer varying its consumption of energy in order to provide a service— to a person holding a transmission licence, in connection with the balancing of flows of electricity onto and off a transmission system, or to a gas transporter, in connection with the balancing of flows of gas into and out of a pipe-line system;

• “Chapter 1 arrangement” means an arrangement of the kind described in regulation 47(1)(b);

• “contract financial exposure” has the meaning given in regulation 47(1)(b);

• a “declaration period” is the period between the initial declaration date and the first periodic declaration date, or between a later periodic declaration date and the next periodic declaration date;

• “effective financial exposure” has the meaning given in regulation 47(1)(b);

• the “initial declaration date” in respect of a supply contract is— the scheme introduction date, if on that date the customer has made a Chapter 1 arrangement and is party to the supply contract; in any other case, the date on which the customer— enters into the supply contract, having already made a Chapter 1 arrangement, or makes a Chapter 1 arrangement, being already a party to the supply contract;

• “periodic declaration dates” are dates chosen by the supplier, falling at intervals of not more than 31 days, of which the first must be not more than 31 days after the initial declaration date and the last must be the last day of the second scheme period.

• (2) In paragraph (1)(b)—

• “gas transporter” and “pipe-line system” have the meanings given to them in the Gas (Northern Ireland) Order1996¹⁸;

• “transmission licence” and “transmission system” have the meanings given to them in the Electricity Act (Northern Ireland) Order 1992¹⁹.

Application of this Chapter

47

• (1) This Chapter applies in respect of a supply contract where—

• (a) it may reasonably be expected that—

• (i) the quantity of energy supplied to the customer at the premises to which the supply contract relates in the 12-month period starting on 1st April 2023 will exceed 0.5 gigawatt hours, or

• (ii) the maximum rate at which energy is supplied under the contract at any time will exceed 0.5 megawatts, and

• (b) the customer has made arrangements, otherwise than in a supply contract, by virtue of which the customer’s overall financial exposure to the wholesale price of energy supplied to it in any period within a scheme period (the “effective financial exposure”) differs from its financial exposure in that period to the contracted wholesale price under the supply contract (the “contract financial exposure”).

• (2) The ways in which a customer may make an arrangement of the kind described in paragraph (1)(b) include entering into—

• (a) financial instruments in respect of the wholesale price of energy;

• (b) arrangements under which the customer obtains a benefit from the provision of balancing services;

• (c) in connection with the electricity scheme, arrangements under which the customer obtains a benefit by exporting electricity to an electricity system.

Customer declaration where this Chapter applies

48

• (1) A customer must, as soon as practicable and in any event within the period of 21 days beginning with the initial declaration date—

• (a) determine whether this Chapter applies in respect of a supply contract to which it is party;

• (b) if it so determines, send to the supplier a declaration to that effect.

• (2) A supplier must in accordance with paragraph (3)—

• (a) determine whether either of the circumstances in regulation 47(1)(a) applies;

• (b) if so, give the customer notice of that determination, drawing this Chapter to the attention of the customer, unless the customer has already sent a declaration under paragraph (1)(b).

• (3) A supplier must comply with paragraph (2)—

• (a) when it enters into a supply contract, or

• (b) in the case of a supply contract entered into before the scheme introduction date, within the period of 45 days beginning with the scheme introduction date.

Adjustment of discount

49

• (1) In respect of any period and supply contract in respect of which Chapter 1 arrangements apply—

• (a) subject to paragraph (d), the “arrangement benefit” is the amount calculated as—

$$CFE-EFE$ Where— CFE is the contract financial exposure EFE is the effective financial exposure;$

• (b) the “unit arrangement benefit” (expressed in p/kWh) is the arrangement benefit (expressed in pence) divided by the supply quantity in respect of that period;

• (c) the reference wholesale price applicable to the supply contract in that period is determined as—

$$RWP'-UAB$ Where— RWP’ is the price that would otherwise be determined (under regulation 9 or in accordance with regulation 10) as the reference wholesale price; UAB is the unit arrangement benefit;$

• (d) in relation to a variable price contract, if the term {CFE – EFE} in paragraph (a) is negative, the arrangement benefit in respect of that period is zero.

• (2) Where this Chapter applies in respect of a supply contract—

• (a) the supplier must, as soon as practicable after receiving the customer’s declaration under regulation 48(1)(b), give notice to the customer of each periodic declaration date and the declaration period for each such date;

• (b) the customer must, as soon as practicable and in any event within the period of 14 days beginning with each periodic declaration date, determine and send to the supplier a declaration of the amount of the arrangement benefit in respect of the relevant declaration period, unless the arrangement benefit is less than £100 per day of the declaration period;

• (c) the supplier must, on the basis of the arrangement benefit declared in each such declaration—

• (i) calculate the unit arrangement benefit for the declaration period;

• (ii) calculate the reference wholesale price under paragraph (1)(c);

• (iii) calculate the base discount under regulation 28 on the basis of that wholesale reference price;

• (iv) determine or redetermine its charges for energy supplied in the declaration period on the basis of that discount.

• (3) Where this Chapter applies and the customer is party to more than one supply contract, the effect of the Chapter 1 arrangements is to be determined in respect of the supply contracts collectively and the arrangement benefit is to be allocated between the supply contracts on an appropriate basis.

• (4) The contract parties may agree a basis on which—

• (a) an estimate of the arrangement benefit will be used in determining charges for a billing period before the steps in paragraph (2) are completed, and

• (b) a subsequent reconciliation will be made when those steps are completed.

Rules in relation to this Chapter

50

• (1) The Secretary of State may make rules about Chapter 1 arrangements.

• (2) Rules made under paragraph (1) may in particular make provision about—

• (a) the kinds of arrangements which fall, or factors which indicate whether arrangements fall, within regulation 47(1)(b);

• (b) the basis on which contract financial exposure or effective financial exposure is to be determined;

• (c) the basis on which arrangement benefit is to be allocated between supply contracts under regulation 49(3);

• (d) the form and content of any declaration to be made by the customer.

CHAPTER 2 — Arrangements for customer to deliver electricity to the grid

Interpretation of this Chapter

51

• (1) For the purposes of this Chapter—

• (a) “Chapter 2 arrangement” means an arrangement of the kind described in regulation 52(1)(b);

• (b) a “declaration period” is the period between the initial declaration date and the first periodic declaration date, or between a later periodic declaration date and the next periodic declaration date;

• (c) the “initial declaration date” in respect of a supply contract is—

• (i) the scheme introduction date, if on that date the customer has made a Chapter 2 arrangement and is party to the supply contract;

• (ii) in any other case, the date on which the customer—

• (aa) enters into the supply contract, having already made a Chapter 2 arrangement, or

• (bb) makes a Chapter 2 arrangement, being already a party to the supply contract;

• (d) “periodic declaration dates” are dates chosen by the supplier, falling at intervals of not more than one month, of which the first must be not more than 31 days after the initial declaration date and the last must be the last day of the second scheme period;

• (e) references to the storage of electricity include the use of electricity to create potential energy which is used at a different time to generate electricity.

Application of this Chapter

52

• (1) Subject to paragraph (2), this Chapter applies in respect of a supply contract where—

• (a) it may reasonably be expected that—

• (i) the quantity of energy supplied to the customer at the premises to which the supply contract relates in the 12 month period starting on 1st April 2023 will exceed 0.5 gigawatt hours, or

• (ii) the maximum rate at which energy is supplied under the contract at any time will exceed 0.5 megawatts, and

• (b) the customer has made arrangements under which—

• (i) gas supplied to the customer under the supply contract may be used for the purpose of generating electricity (whether or not in conjunction with the production of heat), or

• (ii) electricity supplied to the customer under the supply contract may be stored by or for the customer, and

some or all of the electricity generated or stored, may be delivered to an electricity system (such electricity being “grid-delivered”).

• (2) This Chapter does not apply where—

• (a) the capacity of the facility in which electricity supplied to the customer under the supply contract and generated or stored as described in paragraph (1)(b) is not material;

• (b) the quantities in which that electricity is or may be delivered to an electricity system are not material;

• (c) the application of this Chapter would be disproportionate, having regard to the complexity of determining ineligible quantities and to the capacity or quantities referred to in sub-paragraphs (a) or (b).

Customer declaration where this Chapter applies

53

• (1) A customer must, as soon as practicable and in any event within the period of 21 days beginning with the initial declaration date—

• (a) determine whether this Chapter applies in respect of a supply contract to which it is party;

• (b) if it so determines, send to the supplier a declaration to that effect.

• (2) A supplier must in accordance with paragraph (3)—

• (a) determine whether either of the circumstances in regulation 52(1)(a) applies, and

• (b) if so, give the customer notice of that determination, drawing this Chapter to the attention of the customer, unless the customer has already sent a declaration under paragraph (1)(b).

• (3) A supplier must comply with paragraph (2)—

• (a) when it enters into a supply contract, or

• (b) in the case of a supply contract entered into before the scheme introduction date, within the period of 45 days beginning with the scheme introduction date.

Determination of ineligible quantity

54

• (1) Where this Chapter applies in respect of a supply contract, that part of—

• (a) the quantity of gas supplied in any period which was used to generate grid-delivered electricity, or

• (b) the quantity of electricity supplied in any period which, having been stored, was grid-delivered, together with a corresponding proportion of the electricity used or lost in storage,

is an “ineligible quantity” for the purposes of the scheme.

• (2) In paragraph (1)(b) the corresponding proportion is the proportion of all of the electricity stored and not used or lost in storage that corresponds to the amount of grid-delivered electricity.

• (3) Where this Chapter applies in respect of a supply contract—

• (a) the supplier must as soon as practicable after receiving the customer’s declaration under regulation 53(1)(b) give notice to the customer of each periodic declaration date and the declaration period for each such date;

• (b) the customer must, as soon as practicable and in any event within the period of 14 days beginning with each periodic declaration date, determine and send to the supplier a declaration of the quantity of electricity supplied in the relevant declaration period which is an ineligible quantity;

• (c) the supplier must, on the basis of the ineligible quantity declared in each such declaration—

• (i) determine the amount of the supply quantity for the declaration period to which the discounted supply price is to apply;

• (ii) determine or redetermine its charges for energy supplied in the declaration period accordingly.

• (4) The contract parties may agree a basis on which—

• (a) an estimate of the ineligible quantity will be used in determining charges for a billing period before the steps in paragraph (3) are completed, and

• (b) a subsequent reconciliation will be performed when those steps are completed.

Rules in relation to this Chapter

55

• (1) The Secretary of State may make rules about Chapter 2 arrangements.

• (2) Rules made under paragraph (1) may in particular make provision about—

• (a) the kinds of arrangements which fall or do not fall, or factors which indicate whether arrangements fall or do not fall, within regulation 52(1)(b);

• (b) the circumstances in which, by virtue of regulation 52(2), this Chapter does not apply;

• (c) the method by which it is to be determined what part of the quantity of electricity or gas supplied is an ineligible quantity;

• (d) the basis on which a corresponding proportion (as referred to in regulation 54(2)) is to be determined;

• (e) the form and content of a declaration to be made by the customer.

CHAPTER 3 — Abuse of scheme

Interpretation of this Chapter

56

In this Chapter—

• “abusive arrangement” means an arrangement of the kind described in regulation 57(1);

• “benefit of the scheme” means the amount by which the charges to a customer for energy supplied under a supply contract are reduced under the scheme.

Application of this Chapter and declaration of abusive arrangement

57

• (1) This Chapter applies in respect of a supply contract if either or both of the customer or the supplier is party to an arrangement the purpose or main purpose of which is to achieve an increase in the benefit of the scheme (an “abusive arrangement”).

• (2) Where this Chapter applies in relation to a supply contract, each contract party which is party to the abusive arrangement must send to the other contract party a declaration to that effect.

• (3) The declaration must be sent as soon as practicable and in any event within the period of 21 days beginning with—

• (a) the date on which the abusive arrangement is made, or

• (b) if the abusive arrangement was made before the scheme introduction date, the scheme introduction date.

Reduction of discount

58

• (1) If in relation to a supply contract either the customer or the supplier is party to an abusive arrangement—

• (a) the base discount and (in the case of an ETII supply contract) the increased discount is to be reduced by such amount as will ensure that the benefit of the scheme is not increased by that arrangement;

• (b) the party specified in paragraph (2) must promptly and as frequently as is required to give effect to this regulation—

• (i) determine the reduction in the discount required under sub-paragraph (a);

• (ii) give notice of that reduction to the other contract party;

• (c) the supplier must—

• (i) reduce the base discount and (in the case of an ETII supply contract) the increased discount by the amount determined under sub-paragraph (a);

• (ii) determine or redetermine its charges for energy supplied accordingly.

• (2) The party is—

• (a) the supplier, if it is party to the abusive arrangement;

• (b) otherwise, the customer.

Rules in relation to this Chapter

59

The Secretary of State may make rules about—

• (a) the kinds of arrangements which are or are not, or factors which indicate whether arrangements are or are not, abusive arrangements;

• (b) the determination of the amount by which the benefit of the scheme is increased by an abusive arrangement;

• (c) how the discount is to be reduced to ensure such increase is not achieved.

CHAPTER 4 — Declarations to be made where customer is making energy available to end users outside Northern Ireland

Interpretation of this Chapter

60

For the purposes of this Chapter—

• (a) a “declaration period” is the period between any periodic declaration date and any subsequent periodic declaration date;

• (b) the “initial declaration date” in respect of a supply contract is the later of—

• (i) the scheme introduction date, and

• (ii) the date on which the relevant arrangements are put in place;

• (c) “periodic declaration dates” are dates chosen by the supplier, falling at intervals of not more than one month, of which the first shall be not more than 31 days after the initial declaration date and the last shall be the last day of the second scheme period;

• (d) “relevant arrangement” has the meaning given in regulation 61(3).

Application of this Chapter

61

• (1) This Chapter applies in respect of a supply contract, subject to paragraph (2), where —

• (a) it may reasonably be expected that—

• (i) the quantity of energy supplied to the customer at the premises to which the supply contract relates in the 12-month period starting on 1st April 2023 will exceed 0.5 gigawatt hours, or

• (ii) the maximum rate at which energy is suppled under the contract at any time will exceed 0.5 megawatts, and

• (b) arrangements are in place under which—

• (i) energy supplied to the customer under the supply contract may be made available to an end user at premises located outside Northern Ireland, or

• (ii) heating, cooling, hot water or electricity may be made available, using energy supplied under the supply contract, to an end user at premises located outside Northern Ireland.

• (2) This chapter does not apply where—

• (a) the quantities in which or rates at which—

• (i) energy (as provided in paragraph (1)(b)(i)), and

• (ii) heating, cooling, hot water or electricity (as provided in paragraph (1)(b)(ii)) may be made available to end users outside Northern Ireland are not material, and

• (b) the application of this Chapter would be disproportionate, having regard to the complexity of determining non-qualifying quantities and to the quantities and rates referred to in sub-paragraph (a).

• (3) Any arrangement of the kind described in paragraph (1)(b) is a “relevant arrangement” for the purposes of this Chapter.

Customer declaration where this Chapter applies

62

• (1) A customer must, as soon as practicable and in any event within 21 days after the initial declaration date—

• (a) determine whether this Chapter applies in respect of a supply contract to which it is party, and

• (b) if it so determines, send to the supplier a declaration to that effect.

• (2) A supplier must, when it enters into a supply contract, or for a supply contract which it has entered into before the scheme introduction date, within 45 days after the scheme introduction date—

• (a) determine whether either of the circumstances in regulation 61(1)(a) applies,

• (b) if either circumstance applies, give the customer notice of that determination, and

• (c) draw this Chapter to the attention of the customer, unless the customer has already sent a declaration under paragraph (1)(b).

Determination of non-qualifying quantity

63

• (1) Where this Chapter applies in respect of a supply contract, that part of the quantity of electricity or gas supplied (in any period)—

• (a) which was made available to end users at premises located outside Northern Ireland, or

• (b) which was used to make available heating, cooling, hot water or electricity to end users at premises located outside Northern Ireland,

is a “non-qualifying quantity” for the purposes of the scheme.

• (2) Where this Chapter applies in respect of a supply contract—

• (a) the supplier must as soon as practicable after receiving the customer’s declaration under regulation 62(1)(b) give notice to the customer of each periodic declaration date and (for each such date) the declaration period;

• (b) the customer must, as soon as practicable and in any event within 14 days after each periodic declaration date, determine and send to the supplier a declaration of the quantity of electricity or gas supplied in the relevant declaration period which is a non-qualifying quantity;

• (c) the supplier must on the basis of the non-qualifying quantity declared in each such declaration—

• (i) determine the amount of the supply quantity for the declaration period to which the discounted supply price is to apply;

• (ii) determine or redetermine its charges for energy supplied in the declaration period accordingly.

• (3) The contract parties may agree a basis on which an estimate of the non-qualifying quantity will be used in determining charges for a billing period before (and with a subsequent reconciliation when) the steps in paragraph (2) are completed.

Rules in relation to this Chapter

64

The Secretary of State may make rules about—

• (a) the basis on which it is to be determined what part of the quantity of gas or electricity supplied is a non-qualifying quantity;

• (b) the circumstances in which, by virtue of regulation 61(2), this Chapter does not apply;

• (c) the form and content of a declaration to be made by the customer

PART 5 — Further provisions

CHAPTER 1 — Duties of suppliers in connection with the scheme

Increases in charges and other changes in relation to supply contracts

65

• (1) A supplier must not, in respect of energy supplied under a supply contract, unreasonably—

• (a) increase the rates at which it charges any amounts payable by the customer under the supply contract,

• (b) expose a customer to any additional risk, or

• (c) change any of the following so they are less favourable to the customer—

• (i) the terms of the supply contract;

• (ii) the terms on which the supplier offers to enter into supply contracts;

• (iii) the process by which prices or charges payable under supply contracts are set;

• (iv) the way in which the supplier exercises its rights under its supply contracts.

• (2) For the purposes of determining whether a supplier has behaved unreasonably in doing any of the things referred to in paragraph (1)(a) to (c)—

• (a) a supplier’s conduct is, in particular, unreasonable if, and to the extent that, the conduct, or the supplier’s ability to retain the customer as a customer while engaging in it, is facilitated by the existence or operation of the scheme;

• (b) it is, in particular, reasonable for a supplier to increase its charges—

• (i) to its customers collectively, by an amount that in aggregate does not exceed the efficiently incurred costs of complying with these Regulations;

• (ii) to any customer, by an amount that does not exceed its fair and reasonable share of such efficiently incurred costs.

CHAPTER 2 — Deemed terms of supply contracts

Deemed terms of supply contracts

66

• (1) Subject to paragraphs (3) and (4), terms to the following effect are implied into a supply contract—

• (a) that in respect of energy supplied under the contract during a scheme period, the supply price is reduced by the discount as required under Part 2 and Part 4;

• (b) that where the application of the Regulations changes the discount or a quantity of energy to which the discount applies, the rights and obligations of the supplier and customer in respect of payment for energy supplied are determined, or as necessary redetermined, so as to reflect such change in discount or quantity;

• (c) that no term of the contract, and no act or omission on the part of the customer, is to be construed as entitling the supplier to require the customer—

• (i) to pay a greater amount than the supplier would have been entitled to require it to pay if acting in accordance with the Regulations, or

• (ii) to be otherwise subject to terms that it would not have been lawful under the Regulations for the supplier to have included in a supply contract,

in respect of any energy supplied by the supplier in a scheme period;

• (d) that nothing done by the supplier or the customer in order to comply with these Regulations or rules made under them, or in following guidance issued by the Secretary of State in relation to the scheme, is a breach of any provision of the contract;

• (e) that the coming into force of the Act, the making of these Regulations or rules under them, and the issuing of guidance by the Secretary of State in relation to the scheme, do not constitute—

• (i) a change in the law for the purposes of any provision (however expressed) of the contract which permits the supplier to increase its prices or charges or take any other action in consequence of a change in the law;

• (ii) an event or circumstance which under any provision of the contract (however expressed) excuses the supplier or the customer from performance of its obligations, or from liability for failure to perform its obligations, under the contract.

• (2) In paragraph (1)(b), the reference to—

• (a) the application of the Regulations includes the making or revision of any determination or other decision under the Regulations;

• (b) changes include a change applying in respect of energy already supplied to the customer;

• (c) rights and obligations include rights and obligations for adjustment of charges already made or paid.

• (3) Paragraph (1) does not apply to an excluded fixed price contract or a supply contract for which an opt-out notice has been given under regulation 4(3), and has not been withdrawn, under regulation 4(4).

• (4) None of the terms listed in paragraph (1) is to be construed as preventing a supplier from increasing its charges to a customer in order to recover the costs of complying with Parts 2 and 3 if and to the extent it is permitted to do so under the terms of—

• (a) its supply contract,

• (b) its electricity supply licence or gas supply licence, and

• (c) regulation 65(2)(b).

CHAPTER 3 — Reporting, information requests and audit

Regular reporting by suppliers

67

• (1) The Secretary of State may by notice require suppliers to provide to the Secretary of State at specified intervals a report about the operation of the scheme as respects the supplier and its customers.

• (2) The notice must specify—

• (a) the matters which are to be included in the report;

• (b) the dates when the report is to be provided.

• (3) The Secretary of State may by further notice modify, revoke or replace a notice given under paragraph (1).

• (4) A supplier must provide reports as required by the notice.

Information requests

68

• (1) Where the Secretary of State considers it necessary or expedient to do so for any of the purposes set out in regulation 70, the Secretary of State may give notice to any supplier, customer, provider or certified ETII operator requiring it, by a time specified in the notice—

• (a) to produce to the Secretary of State or a person nominated by the Secretary of State any document specified, or of a description specified, in the notice that is held by that supplier or customer, or

• (b) to provide to the Secretary of State or a person nominated by the Secretary of State, such information as may be specified or described in the notice.

• (2) A person that receives a notice under paragraph (1) must respond to it, within the period specified in the notice, by producing the document or providing in writing the information as required by the notice.

• (3) Where the Secretary of State considers it necessary or expedient to do so for any of the purposes set out in regulation 70, the Secretary of State may give notice to any network operator requiring it, by a time specified in the notice, to provide to the Secretary of State or a person nominated by the Secretary of State, such information as may be specified or described in the notice.

• (4) A person’s duty under paragraph (2) is owed to the Secretary of State, and enforceable in civil proceedings—

• (a) for an injunction, or

• (b) for any other appropriate remedy or relief.

• (5) No person is to be compelled under this regulation to produce any document which they could not be compelled to produce in civil proceedings in the court or to provide any information which they could not be compelled to give in evidence in any such proceedings.

Audit

69

• (1) Where the Secretary of State considers it appropriate to do so for the purposes set out in regulation 70(a), (b) or (d), the Secretary of State may by notice to a supplier require that an audit of the books, records, systems, processes and methodologies of the supplier is performed by a suitably qualified person appointed by the Secretary of State.

• (2) Where the Secretary of State requires an audit to be performed under paragraph (1)—

• (a) the supplier must procure for the person appointed by the Secretary of State access to its personnel, books, records, systems, processes and methodologies sufficient for performance of the audit;

• (b) the audit must be performed so far as practicable without causing disruption to the supplier in carrying on its business;

• (c) the costs of the person appointed by the Secretary of State are to be borne by the Secretary of State.

Purposes for which powers under this Chapter may be exercised

70

The purposes are—

• (a) ascertaining whether any provision of the Regulations is being or has been complied with;

• (b) ascertaining whether pursuant to any provision of Part 3 or Part 4, any significant amount—

• (i) is payable to, or

• (ii) upon that provision being complied with, would become payable to, or would not be payable by,

the Secretary of State;

• (c) ascertaining whether any person is in Chapter 3 default, and if so the default benefit amount;

• (d) otherwise ensuring the proper accounting for, tracing or control of public money in discount recovery;

• (e) obtaining information in connection with any review, including a review under section 11(5) of the Act, by the Secretary of State of the operation and effects of the scheme;

• (f) otherwise obtaining information in connection with the exercise of any of the functions of the Secretary of State in or under these Regulations.

Application of data protection legislation

71

• (1) Nothing in these Regulations authorises or requires a disclosure of information if the disclosure would contravene the data protection legislation, as defined in section 3 of the Data Protection Act 2018²⁰.

• (2) In determining whether a disclosure would contravene that legislation, the powers conferred and duties imposed by these Regulations are to be taken into account.

CHAPTER 4 — Certain determinations made under the Regulations

Interpretation of this Chapter

72

• (1) In this Chapter—

• “affected person” in relation to a regulation 22 matter means— the provider who determines that matter, and the certified ETII operator or (if it is not that provider) certified heat supplier, as the case may be;

• “applicant” in relation to a review request, means the person making the request;

• “Part 2 or Part 4 matter” means any matter other than a regulation 22 matter which is to be determined or declared in relation to a supply contract by a supplier or customer under Part 2 or Part 4;

• “Part 3 decision” means a decision by the Secretary of State— under regulation 37, to withhold payment to a supplier of any amount in respect of a recovery claim amount; under regulation 38, as to the release of an amount withheld under regulation 37; under regulation 39, as to the reconciliation cut-off date in relation to any supplier; under regulation 41(1), to decline to make payment (in whole or part) in respect of a discount recovery claim on the grounds of invalidity; under regulation 41(2), to adjust the amount of a discount recovery claim; under regulation 41(3), to give a notice that is to be treated as a discount recovery claim;

• “other party” in relation to a review request under regulation 75(1), means the contract party which is not the applicant;

• “reconsidered decision” has the meaning given in regulation 75(6)(e)(i);

• “regulation 22 matter” means the ETII proportion or QHS proportion to be determined by a provider in respect of a benefit calculation period under regulation 22;

• “relevant decision” in relation to a review request, means the determination or decision in respect of which the request is made;

• “review request” means a request made to the Secretary of State under regulation 75(1), (2), (3) or (4).

• (2) In this Chapter, reference to a “determination” includes a redetermination.

• (3) For the purposes of this Chapter a referral under regulation 73 or a review request does not meet the applicable threshold if—

• (a) it is vexatious or frivolous,

• (b) the financial consequences—

• (i) for the applicant or (where applicable) the other party of a determination under regulation 73(3), or

• (ii) for the applicant or (where applicable) the other party or any affected person of a reconsidered decision,

would not be material, or

• (c) the referral or review request is not made within a period which is reasonable in all the circumstances after—

• (i) the customer was notified or otherwise informed of the supplier’s determination referred to in regulation 73(1)(a), or

• (ii) the relevant decision was made.

Referrals in respect of disagreement between contract parties

73

• (1) Where, in relation to a supply contract, the customer disagrees with a determination made by the supplier in respect of a Part 2 or Part 4 matter—

• (a) the customer may, within a reasonable time after the supplier gave notice to or otherwise informed the customer of the determination, give notice to the supplier setting out what it disagrees with and explaining the reasons for its disagreement;

• (b) following such notice the customer and the supplier must endeavour to resolve the disagreement, but this does not require or entitle the supplier to make any determination which is not consistent with these Regulations.

• (2) If the disagreement is resolved, the supplier must, if such resolution so requires, redetermine the matter in question and give a revised notice to or otherwise inform the customer of such redetermination accordingly.

• (3) If the disagreement is not resolved within a reasonable time after the notice was given—

• (a) the supplier’s determination remains effective, and the relevant matter is determined on the basis of what is said in the notice, pending any determination pursuant to a reference under sub-paragraph (b);

• (b) the supplier or the customer may refer the matter for determination by the Secretary of State;

• (c) subject to paragraph (4), the Secretary of State must determine the matter and give notice of the determination to the contract parties;

• (d) the Regulations apply in relation to the supply contract on the basis of the determination made by the Secretary of State and the contract parties must comply with that determination.

• (4) The Secretary of State may decline to determine a matter referred under this regulation where the Secretary of State considers that the referral does not meet the applicable threshold, by giving notice to that effect to the contract parties setting out the reasons for so considering.

Power of the Secretary of State to make determinations

74

• (1) This regulation applies if the Secretary of State considers that, in relation to a supply contract—

• (a) a determination by the supplier of, or declaration by the customer in respect of, any Part 2 or Part 4 matter, is not in conformity with the Regulations or is otherwise incorrect,

• (b) a determination by the supplier or declaration by the customer which should have been made in respect of a Part 2 or Part 4 matter has not been made, or

• (c) a determination by a provider of a regulation 22 matter is not in conformity with regulation 22 or the requirements of the applicable pass-through regulations.

• (2) Where this regulation applies the Secretary of State may determine—

• (a) the Part 2 or Part 4 matter in question by giving notice of such determination to the contract parties, or

• (b) the regulation 22 matter in question by giving notice of such determination to each affected person.

• (3) Before making a determination under this regulation the Secretary of State must—

• (a) give notice to the contract parties or (as the case may be) each affected person—

• (i) setting out the matter in question;

• (ii) setting out the reasons for which the Secretary of State proposes to make a determination;

• (iii) setting out the determination which the Secretary of State proposes to make;

• (iv) inviting the contract parties or (as the case may be) any affected person to make representations in respect of the proposal by a time specified in the notice;

• (b) consider any representations made by either contract party or (as the case may be) any affected person by that time.

• (4) The Regulations apply, in relation to the supply contract, on the basis of the determination made by the Secretary of State and the contract parties or (as the case may be) the provider must comply with that determination.

Review of decisions of the Secretary of State

75

• (1) A supplier or a customer may request the Secretary of State to review a determination made by the Secretary of State under regulation 73 or 74 in respect of a Part 2 or Part 4 matter.

• (2) A supplier may request the Secretary of State to review a Part 3 decision.

• (3) An ETII applicant or QHS applicant may request the Secretary of State to review a decision—

• (a) not to issue to it an ETII certificate or (as the case may be) a QHS certificate;

• (b) to revoke an ETII certificate or (as the case may be) a QHS certificate issued to it.

• (4) An affected person may request the Secretary of State to review a determination made by the Secretary of State under regulation 74 in respect of a regulation 22 matter.

• (5) The Secretary of State may decline to review a relevant decision where the Secretary of State considers that the request does not meet the applicable threshold, by giving notice to that effect to the applicant setting out the Secretary of State’s reasons for so considering.

• (6) Except as provided in paragraph (5), upon receiving a review request, the Secretary of State must—

• (a) where the request relates to the determination of a Part 2 or Part 4 matter, give the other party a reasonable opportunity to make representations in respect of the determination;

• (b) where the request relates to the determination of a regulation 22 matter, give each other affected person a reasonable opportunity to make representations in respect of the determination;

• (c) consider any representations so made;

• (d) reconsider the relevant decision;

• (e) give notice to the applicant and (where applicable) the other party or each affected person of—

• (i) the outcome of the reconsideration (the “reconsidered decision”), and

• (ii) the reasons for the reconsidered decision.

• (7) The reconsidered decision is final and binding on the applicant and (where applicable) the other party or (as the case may be) each other affected person, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review.

• (8) The Regulations apply, in relation to the supply contract, on the basis of the reconsidered decision and each affected person must comply with it.

Rules in relation to this Chapter

76

• (1) The Secretary of State must, no later than the scheme introduction date, make rules setting out procedures for—

• (a) a supplier or customer to make a referral under regulation 73;

• (b) the Secretary of State to determine a matter referred under regulation 73;

• (c) the Secretary of State to determine a matter under regulation 74;

• (d) a supplier or customer to request a review under regulation 75(1);

• (e) a supplier to request a review under regulation 75(2);

• (f) an ETII applicant or QHS applicant to request a review under regulation 75(3);

• (g) an affected person to request a review under regulation 75(4);

• (h) the Secretary of State to reconsider a relevant decision under regulation 75.

• (2) The rules may specify—

• (a) time periods within which any step to be taken in respect of a referral or review request must be taken;

• (b) thresholds of materiality for the purposes of regulation 72(3)(b).

CHAPTER 5 — Enforcement

Supplier obligations enforceable as relevant requirements

77

• (1) The obligations of suppliers under the following provisions are enforceable by the Northern Ireland Regulator as if they were relevant requirements on a regulated person for the purposes of Articles 41A and 41B of the Energy (Northern Ireland) Order 2003²¹—

• (a) Part 2;

• (b) Part 4;

• (c) Chapter 1 and Chapter 3 of this Part, but not regulation 68.

• (2) Paragraph (1) applies in respect of a person which has been a supplier during a scheme period but ceased to hold an electricity supply licence or gas supply licence.

• (3) For the purposes of considering whether a supplier has contravened any obligation enforceable under paragraph (1), the Northern Ireland Regulator may not call into question—

• (a) a determination of the Secretary of State under regulation 73 or 74;

• (b) a reconsidered decision of the Secretary of State under regulation 75.

• (4) The obligations of network operators under regulation 68 are enforceable by the Northern Ireland Regulator as if they were relevant requirements on a regulated person for the purposes of section 41A and 41B of the Energy (Northern Ireland) Order 2003.

• (5) Where it appears to the Secretary of State that a person may be contravening, or may have contravened, any of the requirements referred to in paragraph (1) or (4) the Secretary of State may inform the Northern Ireland Regulator.

• (6) The Northern Ireland Regulator must keep the Secretary of State informed of the number of matters that it is currently considering in respect of its enforcement obligations under these Regulations.

Requirement to apply for a QHS certificate

78

• (1) A qualifying heat supplier is subject to civil enforcement action—

• (a) of the kind described in Schedule 4 to the Heat Network (Metering and Billing) Regulations 2014²²;

• (b) in the circumstances described in that Schedule.

• (2) For the purposes of paragraph (1), that Schedule applies with the modifications set out in Schedule 1.

Civil penalties for customers

79

• (1) A customer is liable to the civil penalty referred to in paragraph (4) where the customer fails to make a relevant declaration by the required time.