The Energy Bills Discount Scheme (Northern Ireland) Regulations 2023

• (2) But the customer is not liable to that civil penalty, if the customer demonstrates to the satisfaction of the Secretary of State that it had a reasonable excuse for failing to make the relevant declaration by the required time or (in the case of paragraphs (4)(b) and (c)) within the specified period after the required time.

• (3) For the purposes of paragraph (2) it is not a reasonable excuse that a supplier did not inform the customer of a determination under regulation 48(2)(b), 53(2)(b) or 62(2)(b) or send a declaration under regulation 57(2).

• (4) For the purposes of paragraph (1) the civil penalty is—

• (a) £1,000 for failure to make a relevant declaration by the required time;

• (b) an additional £1,000 for failure to make a relevant declaration within the period of 28 days beginning with the required time;

• (c) an additional civil penalty equal to 10% of the default amount, for failure to make a relevant declaration within a further 30 days after that 28 days.

• (5) A customer is liable to the civil penalty referred to in paragraph (7) where the information in a relevant declaration made by the customer is defective.

• (6) But the customer is not liable to that civil penalty if the customer demonstrates to the satisfaction of the Secretary of State that it took reasonable care to ensure that the information in the relevant declaration was not defective.

• (7) For the purposes of paragraph (5) the civil penalty is 10% of the default amount.

• (8) If the Secretary of State considers that a customer is liable to the civil penalty referred to in paragraph (4) or (7) the Secretary of State must impose the civil penalty on the person by giving a notice to the customer.

• (9) The penalty notice must set out—

• (a) the grounds for liability;

• (b) the amount of the penalty;

• (c) the date by which the penalty must be paid (the “due date”), which must not be less than 28 days after the day on which the notice is given;

• (d) how payment may be made;

• (e) information about rights of appeal.

• (10) The customer to whom a penalty notice is given must pay the civil penalty set out in the notice on or before the due date.

• (11) A civil penalty imposed by a penalty notice is recoverable by the Secretary of State as a civil debt.

• (12) A customer may appeal to the court against the imposition of a civil penalty.

• (13) An appeal under paragraph (12) must be brought within the period of 28 days beginning with the date on which the penalty notice was given that imposed the civil penalty appealed against.

• (14) On an appeal under paragraph (12) the court may—

• (a) allow the appeal and cancel the penalty,

• (b) if it determines that the Secretary of State has erred in calculating the default amount, allow the appeal and vary the amount of the penalty, or

• (c) dismiss the appeal.

• (15) An appeal under paragraph (12)—

• (a) suspends the effect of paragraphs (10) and (11) in respect of the penalty to which it relates until it is determined,

• (b) is to be a re-hearing of the Secretary of State’s decision to impose a penalty, and

• (c) may be determined having regard to matters of which the Secretary of State was unaware.

• (16) In this regulation—

• “default amount” means the amount by which the charges for energy supplied to the customer in the specified period are increased as a result of the application of Part 4 following the making of the relevant declaration or the correction of the defective declaration;

• “defective” in relation to a declaration means that the declaration is false, materially misleading or incomplete;

• “penalty notice” means a notice given under paragraph (8);

• “relevant declaration” means a declaration required to be made by a customer— under Part 4; under rules made under regulation 11(6)(c), if those rules— entitle the customer to elect the treatment of a supply contract that is referred to in that regulation, and require the declaration to be made by a customer that makes that election;

• “required time” means the time by which, under the relevant provision of Part 4, a customer was required to make a relevant declaration;

• the “specified period” is the period which— begins at the required time or (as the case may be) when a defective declaration is made, and ends at the time when the declaration was made or (as the case may be) a declaration which is not defective was made, or (if earlier) the end of the second scheme period.

Civil penalties for defaulting persons

80

• (1) A defaulting person is liable to the civil penalty referred to in paragraph (3) in respect of the Chapter 3 default.

• (2) But the defaulting person is not liable to that civil penalty if, in the case of a Chapter 3 default within regulation 26(1)(a), the defaulting person demonstrates to the satisfaction of the Secretary of State that it took reasonable care to ensure that no statement in its ETII application or QHS application was materially incorrect or misleading.

• (3) The civil penalty is the greater of—

• (a) £2,000, and

• (b) 50% of the default benefit amount.

• (4) If the Secretary of State considers that a defaulting person is liable to the civil penalty referred to in paragraph (3) the Secretary of State must impose the civil penalty on the person by giving a notice to the person.

• (5) The penalty notice must set out—

• (a) the grounds for liability;

• (b) the amount of the penalty;

• (c) the date by which the penalty must be paid (the “due date”), which must not be less than 28 days after the day on which the notice is given;

• (d) how payment may be made;

• (e) information about rights of appeal.

• (6) The defaulting person to whom a penalty notice is given must pay the civil penalty set out in the notice on or before the due date.

• (7) A civil penalty imposed by a penalty notice is recoverable by the Secretary of State as a civil debt.

• (8) A defaulting person may appeal to the court against the imposition of a civil penalty.

• (9) An appeal under paragraph (8) must be brought within the period of 28 days beginning with the date on which the penalty notice was given that imposed the civil penalty appealed against.

• (10) On an appeal under paragraph (8), the court may—

• (a) allow the appeal and cancel the penalty,

• (b) if it determines that the Secretary of State has erred in calculating the default benefit amount, allow the appeal and vary the amount of the penalty, or

• (c) dismiss the appeal.

• (11) An appeal under paragraph (8)—

• (a) suspends the effect of paragraphs (6) and (7) in respect of the penalty to which it relates until it is determined,

• (b) is to be a re-hearing of the Secretary of State’s decision to impose a penalty, and

• (c) may be determined having regard to matters of which the Secretary of State was unaware.

• (12) In this regulation “penalty notice” means a notice given under paragraph (4).

CHAPTER 6 — Notices, EBRS actions, amendment of EBRS Regulations

Notices

81

• (1) Any notice or other communication to be given by the Secretary of State, a supplier or a customer under these Regulations must be given in writing.

• (2) Any notice to be given by the Secretary of State under the Regulations (unless it is to be given to a particular supplier or customer) may be given by the Secretary of State publishing the notice in such manner as the Secretary of State considers appropriate.

EBRS actions

82

Any decision, communication or other action made, given or taken, before the scheme start date, for the purposes of EBRS, by the Secretary of State, a supplier or a customer, under any of the provisions of the EBRS Regulations set out in the first column of the table in the Schedule 2 shall be treated as if it had been made, given or taken for the purposes of the scheme under the corresponding provision of these Regulations set out in the second column.

Amendment of EBRS Regulations

83

In regulation 34 of the EBRS Regulations, for paragraphs (2) and (3) substitute—

(2) In respect of the period after 14th April 2023— (a) the discount recovery rules may provide— (i) for the dates of claim windows to be determined and published by the Secretary of State at intervals determined by the Secretary of State, and (ii) that after the Secretary of State has given notice under regulation 29(5) of the last reconciliation run-off date in respect of any supplier, the Secretary of State need not determine and publish the dates of any claim window that starts after that date; (b) in determining the dates of claim windows under paragraph (a)(i), the Secretary of State may allow up to 6 months to elapse between the dates on which successive claims windows start; (c) the requirement in paragraph (1)(b) does not apply, but each claim window must be a period of at least 8 business days. (3) The dates of claim windows determined in accordance with a rule made under paragraph (2)(a)(i) must be published at least 15 days in advance of the end of each such claim window.

SCHEDULE 1 — Modification of Schedule 4 of the Heat Network (Metering and Billing) Regulations 2014 for the purposes of regulation 78(1)

1

In paragraph 1, omit the words “, an enforcement undertaking”.

2

After paragraph 1, insert—

(1A) In this Schedule— - “authorised person” means the Secretary of State; - “EBDS NI Regulations” means the Energy Bills Discount Scheme (Northern Ireland) Regulations 2023; - “intermediary’s agent” means a person who has acted or is acting as agent for a qualifying heat supplier in connection with its application for a QHS certificate under regulation 17(4) of the EBDS Regulations, or who appears to an authorised person to have acted or to be acting in that capacity; - “QHS certificate” has the meaning given in the EBDS NI Regulations; - “qualifying heat supplier” has the meaning given in the EBDS NI Regulations. (1B) This Part applies where an authorised person has reasonable grounds to suspect that a person is— (a) an intermediary within the meaning of section 19(1) of the Energy Prices Act 2022; or (b) in connection with the power to require the production of information in paragraph 1C only, an intermediary’s agent. (1C) Before imposing a compliance notice on a person for failing to comply with the duty of a qualifying heat supplier to apply for a QHS certificate under regulation 17(4) of the EBDS NI Regulations, the authorised person may give notice to the person mentioned in paragraph 1B requiring that person to provide the authorised person with the information specified in the notice. (1D) (1) A notice under paragraph 1C must be in writing and must specify that the information is required— (a) if the notice was served in reliance upon paragraph 1B(a), to determine if the person is a qualifying heat supplier; or (b) if the notice was served in reliance upon paragraph 1B(b), to determine the identity of the qualifying heat supplier for whom that person is an intermediary’s agent. (2) The notice may specify— (a) the time within which and the manner in which the person to whom it is given must comply with it; and (b) the form in which information must be provided. (3) The notice may require— (a) the creation of documents, or documents of a description, specified in the notice; and (b) the provision of those documents to the authorised person. (4) A requirement to provide information or create a document is a requirement to do so in a legible form. (5) A notice under paragraph 1C does not require a person to provide any information or create any documents which the person would be entitled to refuse to provide or produce—in proceedings in the High Court on the grounds of legal professional privilege or confidentiality of communications. (6) In sub-paragraph (5), “communications” means— (a) communications between a professional legal adviser and the adviser’s client; or (b) communications made in connection with or in contemplation of legal proceedings or for the purposes of those proceedings. (1E) A person who does not comply with the requirement to provide the authorised person with the information specified in a notice under paragraph 1C is subject to civil enforcement action under this Schedule.

3

In paragraph 2—

• (a) for sub-paragraph (1) substitute—

(1) This paragraph applies where an authorised person has reasonable grounds to believe that a person has failed to comply with the duty under regulation 17(4) of the EBDS NI Regulations.

• (b) in sub-paragraph (2), for “offence does not continue or recur” substitute“intermediary complies with that duty”;

• (c) omit sub-paragraph (3).

4

Omit paragraphs 8 to 13.

5

In paragraph 14—

• (a) for sub-paragraph (1) substitute—

(1) The authorised person may serve a notice imposing a monetary penalty (“a non-compliance penalty”) on a person who does not comply with— (a) a notice under paragraph 1C, or (b) the duty under regulation 17(4) of the EBDS NI Regulations.

• (b) in sub-paragraph (2) omit the words “or enforcement undertaking”;

• (c) in sub-paragraph (2), for the words from “be a percentage” to the end substitute “not exceed £5,000 in respect of each non-compliance identified in a compliance notice and not exceed £5,000 in respect of failure to comply with a notice given under paragraph 1C”;

• (d) omit sub-paragraphs (3) and (5);

• (e) after sub-paragraph (7), insert—

(8) A non-compliance penalty is recoverable by the authorised person as a civil debt.

6

In paragraph 17 omit sub-paragraph (5).

7

The requirement in paragraph 18 (consultation on guidance) does not apply to any guidance that an authorised person intends to publish under paragraph 17 about the use of civil sanctions in connection with these Regulations.

8

In paragraph 19—

• (a) in sub-paragraph 1(a) omit “; and”;

• (b) omit sub-paragraph (1)(b).

SCHEDULE 2 — Actions under EBRS which are treated as done under the scheme

Provision of EBRS Regulations	Provision of these Regulations	Person by whom decision, communication or action made, given or taken	Description of decision, communication or action (by reference to provisions of the EBRS Regulations, where relevant)
4(4)	4(4)	A customer	Giving opt-out notice
4(5)	4(5)	A customer	Giving notice withdrawing opt-out notice
11(4)(a)	10(4)(a)	A supplier	Establishing methodology for determining reference wholesale price for flexible supply contracts
14(1)(a)	11(1)(c)	A supplier	Determination to treat a supply contract as comprising more than one supply contract
14(1)(b)	11(1)(a)	A supplier	Determination whether a supply contract is a fixed price contract, flexible price contract or variable price contract
14(1)(c)	11(1)(b)	A supplier	Determination in relation to a fixed price contract of price fix date, and whether it is an excluded fixed price contract
14(2)	11(3)	A supplier	Giving notice of determinations under regulation 14(1)
16(a)	12(a)	A supplier	Establishing a methodology for determinations under regulation 14
38(1)(b)	48(1)(b)	A customer	Sending a declaration that Chapter 1 of Part 4 applies to a supply contract
38(2)	48(2)	A supplier	Determining and giving notice of whether either circumstance in regulation 37(1)(a) applies
43(1)(b)	53(1)(b)	A customer	Sending a declaration that Chapter 2 of Part 4 applies to a supply contract
43(2)	53(2)	A supplier	Determining and giving notice of whether either circumstance in regulation 42(1)(a) applies
47(2)	57(2)	A customer or a supplier	Sending a declaration that Chapter 3 of Part 4 applies to a supply contract
52(1)	62(1)	A customer	Determining and sending a determination that Chapter 4 of Part 4 applies to a supply contract
52(2)	62(2)	A supplier	Determining and giving customer notice where either circumstance in regulation 51(1)(a) applies
53(2)	63(2)	A supplier	Give notice to the customer of each periodic declaration date and the declaration period where Chapter 4 of Part 4 applies and make the necessary declarations
53(2)	63(2)	A customer	Determining and sending a declaration of the non-qualifying quantity
68(3)(b)	73(3)(b)	Secretary of State	Determination of a Part 2 or Part 4 matter referred to the Secretary of State
69(2)	74(2)	Secretary of State	Determination of a Part 2 or Part 4 matter
70(4)(c)	75(6)(e)	Secretary of State	Reconsidered decision

Signed

Amanda Solloway — Parliamentary Under Secretary of State — Department for Energy Security and Net Zero — 24th April 2023

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations, which apply in Northern Ireland, establish the Energy Bills Discount Scheme for Non-Domestic Customers in Northern Ireland (“EBDS”). EBDS is a scheme for reducing the costs, to non-domestic customers, of being supplied with electricity or gas (“energy”) by a supplier that holds a supply licence under the Electricity (Northern Ireland) Order 1992 ²³ or Gas (Northern Ireland) Order 1996²⁴.

The Regulations require suppliers to reduce, in accordance with Part 2 of the Regulations, the prices that they charge customers for energy during two “scheme periods” (the first running from 1st April 2023 to 30th September 2023 and the second from 1st October 2023 to 31st March 2024). Suppliers are entitled to recover the amount of these reductions from the Secretary of State.

Part 1 (introductory) defines key terms and parameters of EBDS. With certain exceptions, EBDS applies in respect of all contracts for the supply of energy by licensed suppliers to non-domestic customers during the scheme periods. However, the detail of its application to any given contract (including how discounts are calculated) depends on how prices are set under it, and, in some cases, on the use that is made of the energy supplied under it.

Part 2 (discounted supply price) sets out how the discounts that are to be applied by suppliers are to be calculated, based on wholesale energy prices. Chapter 1 of Part 2 sets out how the figures to be used in calculating discounts are derived. Chapter 2 of Part 2 describes how suppliers must assign each contract to the correct category based on how prices are set under it. Chapter 3 of Part 2 sets out the procedures for identifying where the energy supplied under a contract is used in certain ways, either by persons carrying out particular economic activities, or in heat networks that meet certain criteria. Where this is the case, the customers under the contracts concerned are known as “ETII” and “QHS” customers respectively. Chapter 4 of Part 2 describes how suppliers must calculate discounts for the different categories of contract and customer, reduce their charges to customers accordingly, and provide them with related information.

Part 3 (discount recovery) deals with the process by which each supplier is entitled to be paid by the Secretary of State an amount equal to the charges it has foregone in applying discounts under Part 2. In specified circumstances, the amount that a supplier receives in response to its claim for payment of an amount in respect of discounts is adjusted. Where such adjustments result in a negative sum, the customer must pay that sum (as a positive amount) to the Secretary of State. Amounts claimed by suppliers may be withheld in certain cases, for example where a supplier has acted dishonestly or failed to take proper measures to prevent fraud.

Part 4 (adjustment of discount or supply quantity in certain cases) makes provision to prevent suppliers or customers from deriving greater benefit from EBDS than is intended in certain scenarios. The Regulations provide for the benefits that customers and suppliers receive from the scheme to be reduced to take account of their entry into specified kinds of arrangements.

Part 5 (further provisions) deals with a number of different matters. Regulation 65 prohibits unreasonable increases in suppliers’ charges and other changes adverse to the customer. Regulation 66 implies terms relating to the scheme into non-domestic supply contracts. Regulations 67 to 71 impose information and reporting obligations. Regulations 72 to 76 make provision about the resolution of disputes arising from the operation of the scheme. Regulation 77 provides that specified obligations of suppliers under the regulations are enforceable by the Northern Ireland Regulator. Regulations 79 and 80 provide for the Secretary of State to impose civil penalties on those who fail to comply with certain provisions of Part 3 or Part 4. Regulation 82 provides that things done under certain provisions of the Energy Bill Relief Scheme (Northern Ireland) Regulations 2022 are to be treated as if done under corresponding provisions of the Regulations. Regulation 83 makes an amendment to regulation 34 of the Energy Bill Relief Scheme Regulations 2022²⁵.

A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Department for Energy Security and Net Zero at 1 Victoria Street, London, SW1H 0ET and is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.

Footnotes

Editorial notes