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The Energy Bills Discount Scheme (Northern Ireland) Regulations 2023

Type Statutory-Instrument

Publication 2023-04-24

Last updated 2024-03-27

State In force

Department King's Printer of Acts of Parliament

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(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;

(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;

(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.

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) Order1996[^f00018];

“transmission licence” and “transmission system” have the meanings given to them in the Electricity Act (Northern Ireland) Order 1992[^f00019].

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;

$$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;

(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;

(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;

(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;

(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;

(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;

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;

(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;

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

(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;

(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

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;

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;

(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 2018[^f00020].

(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

(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;

(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;

(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 2003[^f00021]—

(a) Part 2;

(b) Part 4;

(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 2014[^f00022];

(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.

(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

(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

(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

(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

(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”;

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 [^f00023] or Gas (Northern Ireland) Order 1996[^f00024].

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 2022[^f00025].

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

[^f00001]: 2022 c. 44.

[^f00002]: 1998 c. 11.

[^f00003]: 1971 c. 80.

[^f00004]: 1992, No. 231 (N.I. 1), Schedule 6, paragraph 3. Schedule 6 was substituted by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007 No. 321), regulation 5(2) and Schedule 1, but the core definition regarding “deemed contracts” remains unchanged.

[^f00005]: 2011 c. 6, section 12.

[^f00006]: S.I. 2022/1106.

[^f00007]: Article 3 has been amended by S.R. 2007 No. 321.

[^f00008]: Article 8 has been amended by regulation 17(1) of Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013 No. 92).

[^f00009]: Article 10(1)(bb) was inserted by regulation 19(a) of the Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011 No. 155).

[^f00010]: S.I. 2022/1105.

[^f00011]: Articles 41A and 41B were inserted by regulation 76 of the Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011 No. 155).

[^f00012]: Defined in section 12(2) and 12(5) of the Energy Prices Act 2022.

[^f00013]: 2000 c. 17.

[^f00014]: 1972, c. 9. The Act was amended by the Local Government (Boundaries) Act (Northern Ireland) 2008 (c. 7), sections 3(1), 5(3); S.R. 2013 No. 238, articles 2, 3(1), 4(1), 5(1) (with articles 3(2), 4(2), 5(2)-(4) (as amended (31.3.2015) by S.R. 2015 No. 210, article 2)).

[^f00015]: (SIC 2007) published by the Office for National Statistics in December 2009 with ISBN number 978-0-230-21012-7.

[^f00016]: S.I. 2014/3120, amended by S.I. 2015/855 and 2020/1221.

[^f00017]: S.I. 1989/2405 (N.I.19).

[^f00018]: S.I. 1996/275 (N.I. 2).

[^f00019]: S.I. 1992/231 (N.I. 1).

[^f00020]: 2018 c. 12; relevant provisions of section 3 were amended by S.I. 2019/419.

[^f00021]: Articles 41A and 41B were inserted by regulation 76 of the Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011 No. 155).

[^f00022]: S.I. 2014/3120, amended by S.I. 2015/855 and 2020/1221.

[^f00023]: 1992, No. 231 (N.I. 1), Part 2, Article 10(1)(c), Article 10(1)(c) was substituted by the Electricity Regulations (Northern Ireland) 2007 (S.R. 2007 No. 321), regulations 1(2) 6(1).

[^f00024]: 1996 No. 275 (N.I. 2), Part 2. Article 8(1)(c). Article 8(1)(c): “semicolon” substituted for “full stop” (12.4.2013) by the Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013 No. 92), regulation 17(1).

[^f00025]: S.I. 2022/1100.

Editorial notes

[^key-a311296d14b89933b27237a59a997cd5]: Reg. 1 in force at 26.4.2023, see reg. 1(1)

[^key-0acb181b0460f85254ac387e51cc4268]: Reg. 2 in force at 26.4.2023, see reg. 1(1)

[^key-923b3ac4101dbf1cf7f949b2580bf961]: Reg. 3 in force at 26.4.2023, see reg. 1(1)

[^key-c9e62fb22285b60cf99299cd5e323148]: Reg. 4 in force at 26.4.2023, see reg. 1(1)

[^key-864a063128cd9ed09c3dc2776fe64446]: Reg. 5 in force at 26.4.2023, see reg. 1(1)

[^key-1840e647225218fd6fa28eccfb1c4299]: Reg. 6 in force at 26.4.2023, see reg. 1(1)

[^key-c04da3ee9a43692ab1e95efc3e28af86]: Reg. 7 in force at 26.4.2023, see reg. 1(1)

[^key-a71718b9590c39d362491eebbbfcf726]: Reg. 8 in force at 26.4.2023, see reg. 1(1)

[^key-315001acd8fa448b8cf867149be9691b]: Reg. 9 in force at 26.4.2023, see reg. 1(1)

[^key-b2ee95d8132e10ccd735dd118430c7b2]: Reg. 10 in force at 26.4.2023, see reg. 1(1)

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The Energy Bills Discount Scheme (Northern Ireland) Regulations 2023

CHAPTER 3 — Reconciliation run-off

Reconciliation run-off

39

CHAPTER 4 — Procedure for discount recovery

Submission of a valid discount recovery claim

40

Invalid, erroneous or absent discount recovery claims

41

Reporting details of Part 4 arrangements

42

Discount recovery rules

43

Claim windows

44

Delegation of functions related to discount recovery

45

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

Application of this Chapter

47

Customer declaration where this Chapter applies

48

Adjustment of discount

49

Rules in relation to this Chapter

50

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

Interpretation of this Chapter

51

Application of this Chapter

52

Customer declaration where this Chapter applies

53

Determination of ineligible quantity

54

Rules in relation to this Chapter

55

CHAPTER 3 — Abuse of scheme

Interpretation of this Chapter

56

Application of this Chapter and declaration of abusive arrangement

57

Reduction of discount

58

Rules in relation to this Chapter

59

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

Interpretation of this Chapter

60

Application of this Chapter

61

Customer declaration where this Chapter applies

62

Determination of non-qualifying quantity

63

Rules in relation to this Chapter

64

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

CHAPTER 2 — Deemed terms of supply contracts

Deemed terms of supply contracts

66

CHAPTER 3 — Reporting, information requests and audit

Regular reporting by suppliers

67

Information requests

68

Audit

69

Purposes for which powers under this Chapter may be exercised

70

Application of data protection legislation

71

CHAPTER 4 — Certain determinations made under the Regulations

Interpretation of this Chapter