![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Farmiloe, R (on the application of) v Secretary of State for Business Energy and Industrial Strategy & Anor [2019] EWHC 2981 (Admin) (07 November 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2981.html Cite as: [2019] EWHC 2981 (Admin) |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
33 Bull St, Birmingham, B4 6DS |
||
B e f o r e :
____________________
THE QUEEN on the application of DANIEL JUSTIN FARMILOE |
Claimant |
|
- and - |
||
(1) SECRETARY OF STATE FOR BUSINESS ENERGY AND INDUSTRIAL STRATEGY (2) THE GAS AND ELECTRICITY MARKETS AUTHORITY |
Defendants |
____________________
Jason Coppel QC and Stephen Kosmin (instructed by the Government Legal Department) for the First Defendant and (instructed by Ofgem Office of the General Counsel) for the Second Defendant
Hearing dates: 29 & 30 July 2019, 3 October 2019
____________________
Crown Copyright ©
Mrs Justice Lang :
History
Estimated annual heat load (from the EPC) | 229,413 kWh |
SPF | 4.79 |
Current heat pump tariff rate (September 2017) | 19.64 p/kWh |
Estimated annual heat load (total heat demand x (1 – 1/SPF): |
229,413 kWh x (1-1/4.79) = 181,519 kWh |
Total annual Domestic RHI payment (tariff x estimated annual heat load): |
181,519 kWh x 20.89 p/kWh = £35,650.30 |
Quarterly Domestic RHI payment | £35,650.30 ÷ 4 = £8,9125.58 |
"During my audit report review I've not found any issues with the information declared on the participant's EPC and all the characteristics used to model it match the EPC site notes provided during manual review. It appears that the participant's EPC is correctly representing the property at the time of its assessment. This is also supported by the auditor's draft EPC which has no discrepancies except for the mentioned heating system.
Furthermore, in the past we have not penalised participants who have their old heating system on the EPC they applied with.
However as the quarterly payments are quite high …. We would like DA to make a decision on whether we can accept the deemed heat demand of the participant's EPC."
"From our experience reviewing site audits, we still strongly confirm the fact that this isn't a new case in terms of circumstances, but among the same cases it is particular for the heat demand discrepancy and the money figures at stake. Furthermore, in my personal experience, this is the first time we have at disposal an auditor's draft EPC which is a 100% replica of the accredited EPC, as usually auditor's draft includes the current RHI accredited heating technology, and we find more justification in discrepancies than solely the software updates."
"Proposed options
1) In the past we have not penalised participants who have their old heating system on the EPC they applied with. We are quite satisfied the EPC submitted at application was correct at the time. We should therefore consider accrediting the application with the heat demand of 226,783 kWh.
2) We have a duty to protect the public purse and we are satisfied the EPC submitted with the application is higher than our auditors estimation. We should ask the applicant to get a new EPC to satisfy ourselves of the correct (and likely lower) heat demand. Risk: this isn't consistent and if we are audited/challenged we may lose the case. This case has also been in review since September 2017 so that would likely cause aggrievance"
" – We have the power to request for a new EPC after accreditation where we believe it is necessary, as per the definition of 'relevant EPC' in reg 2.
- We may treat accreditations differently as its circumstantial. So afar we have treated this application differently due to the high value payments and we conducted a pre-accreditation site audit. Our site audit found a new EPC may have a much lower heat demand and we should act on this information.
- We believe the EPC submitted in the application was correct, and our precedent is to accept EPC's with the original heating system on, however we have a duty to protect the public purse and doing nothing may not be appropriate – we considered how an external auditor would view this.
- Heat demand limits came into force 6 days after their application date.
Proposed decision: we should take a proactive rather than reactive approach and request for a new EPC. This new EPC will become the 'relevant EPC' for us to base payments on."
"We have requested you to provide us with a new Energy Performance Certificate (EPC) related to your property in order to allow us to proceed with your application to the Domestic RHI.
……
Please note that failure to provide any information requested in this letter within the time frame advised may lead to rejection of accreditation under Regulation 22(1)(d)"
"Following the site audit carried out by Ricardo Energy and Environment on 13/3/2018, I am writing to inform you that your installation has been given an audit rating of weak.
Your installation has been awarded this assurance rating because the following non-compliances and observations identified upon inspection;
Non-compliance: Your Energy Performance Certificate (EPC) heat demand is overestimated
What is the issue?
During the recent site visit on your property, the auditor completed a full EPC assessment in order to confirm the accuracy of your EPC….The auditor modelled two versions, once with the current heating system and related controls (ground source heat pumps) and the other one with the same heating system used in your EPC (electric storage heaters) in order to produce an exact copy of your certificate. Both the certificates produced by the auditor show a space heating demand which is considerably lower than the one declared on your EPC, which is 226,783 kWh.
For these reasons we believe that the heat demand specified in your EPC is overestimated.
Your Domestic RHI support payments are based upon the total heat demand figure from your EPC and we require an EPC that represents adequately the heat demand of your property.
As stated in regulation 26, we have duty [sic] to make payments to the participant of the RHI scheme. In making payments we are also required to aim to ensure that public funds are disbursed appropriately.
What action is required?
Under Regulation 17(2)(b) as read with para 2(m) of Part 2 of Schedule 4, for the reasons explained above, we require a new EPC certificate.
You will need to get a new EPC completed by a new EPC assessor to accurately describe your property. They will need to issue you with a new EPC which adequately represents the heat demand of the property and modelled with the current heating system installed consisting of the ground source heat pumps and their related control system.
….."
"The EPC that you provided with your RHI application …. lists Storage Heaters as the main heating source for your property. Your property is now heated by a ground source heat pump, and the EPC is therefore incorrect. Following the audit of your installation, we determined that this had a very large effect on the heat demand for the property. It is for this reason that we asked for a new EPC to be provided.
You indicated in your letter that you expect the heat demand for a new EPC to go down, as the EPC methodology has changed. This was taken into account when we made the decision to ask for a new EPC, as we agree that for most applicants who made an application when you did, the methodology in place at the time of the application would be used for the EPC. However, as the audit indicated that the heat demand of your property was vastly different with the heat pump compared to the storage heaters, we could not use the original EPC as the heat demand would have been inaccurate. Any new EPC will, by necessity, have to use the current methodology."
" | Main heating system | RdSAP version | EPC heat demand figure (space heating and hot water) in kWh | Annual payments | Total payments over up to 7 years' support available under DRHI |
Electric storage heaters | 9.92 | 229,413 | £37,919.28 | £265,434.96 | |
Ground source heat pump | 9.92 | 179,619 | £29,688.92 | £207,822 | |
Electric Storage heaters | 9.93 | 193,313 | £31,952.38 | £223,666.66 | |
Ground Source heat pump | 9.93 | 143,519 | £23,722.01 | £166,054.07 | |
Ground source heat pump | 9.93 | Capped to 30,000 | £4,958.65 | £34,710.55 |
1. The calculation in respect of a ground source heat pump using RdSAP v.9.92 was not modelled by Ricardo. No other EPC reflects a ground source heat pump using RdSAP v.9.92. The 179,619 kWh heat demand figure is therefore only an outline indication: it uses the 49,794 kWh difference between the ground source heat pump and electric storage main heating systems as assessed using RdSAP v.9.93 (193,313 – 143,519kWh) and applies that difference to the 229,413 figure for electric storage heaters as assessed under RdSAP v.9.92 and reflected in the EPC submitted by the Claimant with his application. Because there are likely to be differences between versions v.9.92 and v.9.93 of RdSAP that have not been fully addressed in the evidence, these figures can be illustrative only.
2. The figures for electric storage and ground source heat pump heating systems are the basis for the £8,230.36 figure identified at paragraph 5.b. of David Fletcher's Second Witness Statement (i.e. annual payments of £31,952.38, less £23,722.01 total £8,230.37). The penny difference is attributable to a calculation error: see the footnotes below for full details of calculations.
3. A tariff of £0.2089 and SPF value of 4.79 is used for all of the calculations."
Statutory framework
Grounds of challenge
The Claimant's case
i) Ground 1: The 2014 Regulations did not confer any power to require the Claimant to provide a new EPC in the circumstances of his case and so Ofgem's decision was ultra vires.ii) Ground 2: The Claimant had a legitimate expectation that his application would be determined on the basis of the EPC which he submitted in support of his application, in accordance with the 2014 Regulations, and/or representations in Ofgem's published guidance, and/or its past practice in respect of other applications. He relied upon the representations in the 2014 Regulations, Ofgem's published guidance, and past practice when he decided to install the ground pump heating system, to his detriment. Ofgem's decision was in breach of those representations and/or departed from past practice.
iii) Ground 3: Ofgem delayed the processing of the Claimant's application unreasonably, thereby causing him prejudice. His subsidy payments were unexpectedly delayed, causing him financial difficulties. By the date of Ofgem's decision, a revised methodology for EPC assessments had come into force (v.9.93) which was less favourable to the Claimant than v.9.92 which was in force when his March 2017 assessment was undertaken.
iv) Ground 4: The Claimant was discriminated against, and singled out for different treatment, because of the potentially high level of his subsidy. Other applicants have not been required to commission new EPCs to reflect either a change in their heating systems or a change in the RdSAP methodology.
The Defendants' response
The unlawful review
Ground 1: statutory power to require a new EPC
i) The requirement in regulation 17(2)(a) and paragraph 1(i) of Part 1 of Schedule 4, to provide the most recent EPC, issued less than 24 months before the date on which the application was made, in accordance with paragraph 1(2)(b) of Schedule 3.ii) The requirement in regulation 17(2)(b) to comply with such of the information specified in Part 2 of Schedule 4 as Ofgem may require, which may include, under paragraph 2(h):
"a copy of any Energy Performance Certificate for the property including, if applicable, any Energy Performance Certificate issued on after the RHI date for the plant."iii) The requirement in regulation 18(1)(b) which provides:
"(b)that the applicant provides details of a further Energy Performance Certificate … if the Authority has reason to believe that the applicant has not provided details of the most recent Energy Performance Certificate;"iv) The requirement in regulation 18(1)(c) which provided:
"(c)that the applicant provide details of a further Energy Performance Certificate for the eligible property if –(i)the applicant declares that … insulation cannot be installed in the property because of a reason set out in paragraph 1(4) of Schedule 3; and(ii)the Authority is not satisfied that the … insulation recommended in the recommendation report cannot be installed and has requested a new Energy Performance Certificate in which that insulation is no longer recommended in the recommendation report;".
"a copy of any Energy Performance Certificate for the property including, if applicable any Energy Performance Certificate issued on or after the RHI date for the plant".
"such other information as the Authority may require to enable it to consider the applicant's application for accreditation or to enable evaluation of the operation of the domestic RHI scheme".
In my view, an EPC is clearly "information" within the meaning of sub-paragraph 2(m).
"Where the Authority gives a notice under regulation 18(1), the applicant must comply with that request within—
(a) three months of the date of the notice if the information is a new Energy Performance Certificate and regulation 18(1)(c) applies;
(b) three months of the date of the notice if the heat generated by the plant for which accreditation is being sought must be metered under regulation 13 and the information is evidence that the metering requirements are met; or
(c) 28 days of the date of the notice in any other case."
"21. Ofgem requested a new EPC even though I just got a new one; can I refuse?
At Ofgem, we administer the Domestic RHI scheme on behalf of DECC. To help protect the public purse, we carry out desk and site audits to verify that evidence and declarations are accurate. If we have reason to believe that the information on your EPC is incorrect, we may ask you to provide us with a new EPC. Should this occur, we'll be happy to explain to you our reasons why we believe a new EPC is needed."
……
"23. I have been asked to get a new EPC; how much time do I have to get one?
It depends on what we are asking you for.
If we ask you to follow the recommendations on your domestic EPC to add loft and/or cavity wall insulation, you need to send us a new domestic EPC within 3 months.
For any other reason you need to send us a new domestic EPC within 28 days.
……"
Ground 2: Legitimate expectation
i) Accept an EPC that was up to 24 months old at the date of application;ii) Accept an EPC based upon a previous non-renewable heating system, and not the renewable heating system which was the basis of the application;
iii) Calculate the subsidy due based upon that EPC;
iv) Not ask an applicant to submit a new EPC based upon the renewable heating system which was the basis of the application, provided the EPC which was submitted with the application met the eligibility criteria;
v) Not ask an applicant to submit a new EPC because of a RdSAP methodology change.
"These cases illustrate the pressing and focussed nature of the kind of assurance required if a substantive legitimate expectation is to be upheld and enforced. I should add this. Though in theory there may be no limit to the number of beneficiaries of a promise for the purpose of such an expectation, in reality it is likely to be small, if the court is to make the expectation good. There are two reasons for this, and they march together. First, it is difficult to imagine a case in which government will be held legally bound by a representation or undertaking made generally or to diverse class. As Lord Woolf MR said in Ex p. Coughlan (paragraph 71):
"May it be … that, when a promise is made to a category of individuals who have the same interest it is more likely to be considered to have binding effect than a promise which is made generally or to a diverse class, when the interests of those to whom the promise is made may differ or, indeed, may be in conflict?"
The second reason is that the broader the class claiming the expectation's benefit, the more likely it is that a supervening public interest will be held to justify the change of position complained of. In Ex p Begbie I said this (1130G — 1131B):
"In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear … In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players … The case's facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes.""
"….it is more difficult for the appellants to elevate a practice into an assurance to taxpayers from which it would be abusive for the revenue to resile and to which under the doctrine it should therefore be held. "The promise or practice … must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy's continuance is assured": R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, para 43, per Laws LJ. The result is that the appellants need evidence that the practice was so unambiguous, so widespread, so well-established and so well-recognised as to carry within it a commitment to a group of taxpayers including themselves of treatment in accordance with it."
"By no stretch of the imagination, however, can the representations relied on by the taxpayers be characterised as "devoid of relevant qualification". To the contrary, the guidance is permeated with qualifications relating to tax avoidance."
The Defendants submitted that substantially the same observation should be made with regard to the Ofgem guidance.
"This guide is designed to provide most of the information about the scheme that applicants will need. It doesn't give full information about certain aspects of the scheme; instead you'll see links to the relevant section in our detailed Domestic RHI Reference Document."
Additionally, page 22 of the 2016 Guidance referred to Ofgem's power to seek further information, including an updated EPC.
"The information provided in this document is … intended to provide assistance with the interpretation of certain provisions of the Domestic RHI Regulations [hyperlink] but does not cover all the provisions and is not necessarily representative or applicable in all situations that may arise. Also, this document should be read in conjunction with the Regulations and should not be regarded as a substitute for them. If you have any questions or need further clarification, our Applicant Support Centre is available at …."
"21. Ofgem requested a new EPC even though I just got a new one; can I refuse?
At Ofgem, we administer the Domestic RHI scheme on behalf of DECC. To help protect the public purse, we carry out desk and site audits to verify that evidence and declarations are accurate. If we have reason to believe that the information on your EPC is incorrect, we may ask you to provide us with a new EPC. Should this occur, we'll be happy to explain to you our reasons why we believe a new EPC is needed."
……
"23. I have been asked to get a new EPC; how much time do I have to get one?
It depends on what we are asking you for.
If we ask you to follow the recommendations on your domestic EPC to add loft and/or cavity wall insulation, you need to send us a new domestic EPC within 3 months.
For any other reason you need to send us a new domestic EPC within 28 days.
……
If you can't provide us with a new EPC within this timeframe you need to let us know as soon as possible or we may reject or revoke your application."
i) In Image 2:
"IMPORTANT: The estimated Domestic RHI payments provided by this calculator may not reflect the actual payments you might receive through the Domestic RHI."
ii) At paragraph 3 of guidance accompanying the calculator entitled 'About the Domestic Renewable Heat Incentive
(Domestic RHI) payment calculator':
"Are Domestic RHI payment calculator estimates taken into account when applying for the scheme with Ofgem?
Although sponsored by Government, this calculator and the estimates it gives you has no bearing on Ofgem's decisions regarding payments or other elements of eligibility to the Domestic RHI scheme. The calculator should just be seen as an indication, not a guarantee, of what someone's payments might be."
iii) The Q&A document provided:
"Am I guaranteed to get these tariffs when/if I apply?
No. This is just an estimate of the payments you could receive through the domestic RHI scheme, based on the tariff applicable at the time.".
Ground 3: Delay
"You have outlined that you believe Ofgem to be 'gaming' your accreditation by deliberately delay the accreditation. I am sorry that you feel this way, but I can assure you that this is not the case.
I acknowledge that your application has taken us longer to process than the majority of applications that we receive. That is because you are due to receive a much higher than average RHI payment. We therefore carry out additional checks compared to applications with lower expected payments which necessarily will take us longer to carry out. You submitted your application on 14 September 2017. This was just before a regulation change on 20 September 2017, which introduced 'Heat Demand Limits', which effectively cap the amount of RHI payments that can be made to individual properties, As a result of this regulation change, we received a large volume of applications, many of which were for larger properties which, as I have outlined above, require a more in depth review. This large volume took us a while to process, which also contributed to the longer than usual review time for your application.
……
We asked you to provide information on 19 September, which you sent to us on 30 October 2017. On 15 February 2018 we notified you that your installation had been selected for an audit. We then notified you of the outcome of the audit on 21 August 2018. It took us this length of time to complete the audit, as we wanted to make sure that we came to the right decision when asking you to provide a new EPC. This decision was not taken lightly and we consulted with several different departments before confirming this to you."
Ground 4: Discrimination
"….the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law."
Lord Sumption agreed, and added that the principle of equality was no more than a particular application of the ordinary requirement of rationality imposed on public authorities (at [50]).
Conclusion
Domestic Renewable Heat Incentive
Scheme Regulations 2014 (as amended by SI 2016 No. 257) as at 14 September 2017 (historic version obtained from Westlaw)
2. Interpretation
…
"Energy Performance Certificate" has the meaning given by—
(a) in relation to a property in England and Wales, regulation 2(1) of the Energy Performance of Buildings (England and Wales) Regulations 2012;
(b) in relation to a property in Scotland, regulation 2(1) of the Energy Performance of Buildings (Scotland) Regulations 2008;
…
[ "relevant EPC" means—
(a) on the date on which an accredited domestic plant providing heat to an RHI property is given accreditation, the most recent Energy Performance Certificate for that property for which details have been provided to the Authority; or
(b) if, after the date on which an accredited domestic plant providing heat to an RHI property is given accreditation, the Authority has requested a new Energy Performance Certificate for that property, the most recent Energy Performance Certificate for that property for which details have been provided to the Authority pursuant to such a request; ] [2]
…
17.— Accreditation applications
(1) An owner of a plant which meets the eligibility criteria may apply to the Authority for that plant to be given accreditation if that person owns or occupies the [ eligible ] [3] property to which the plant provides heat.
(2) Accreditation applications must include—
(a) all of the information specified in Part 1 of Schedule 4;
(b) such of the information specified in Part 2 of Schedule 4 as the Authority may require;
…
18.— Powers of the Authority when considering an accreditation application
(1) The Authority may by notice request—
(a) that information about the plant or any eligible meters installed in relation to it be provided—
(i) by the certified installer who was responsible for the installation of the plant;
(ii) by the certified installer who was responsible for, or checked, the installation of the meters; or
(iii) by the applicant and verified by the relevant certified installer referred to in paragraph (i) or (ii) as applicable;
(b) that the applicant provide details of a further Energy Performance Certificate for the eligible property if the Authority has reason to believe that the applicant has not provided details of the most recent Energy Performance Certificate;
(c) that the applicant provide details of a further Energy Performance Certificate for the eligible property if—
(i) the applicant declares that loft insulation or cavity wall insulation cannot be installed in the property because of a reason set out in paragraph 1(4) of Schedule 3; and
(ii) the Authority is not satisfied that the loft insulation or cavity wall insulation recommended in the recommendation report cannot be installed and has requested a new Energy Performance Certificate in which that insulation is no longer recommended in the recommendation report; and
(d) that the applicant provide such other information specified in Part 2 of Schedule 4 as the Authority may require.
(2) The Authority may arrange for a site inspection to be carried out in order to satisfy itself that the plant should be given accreditation.
19. Time limits for provision of information
Where the Authority gives a notice under regulation 18(1), the applicant must comply with that request within—
(a) three months of the date of the notice if the information is a new Energy Performance Certificate and regulation 18(1)(c) applies;
(b) three months of the date of the notice if the heat generated by the plant for which accreditation is being sought must be metered under regulation 13 and the information is evidence that the metering requirements are met; or
(c) 28 days of the date of the notice in any other case.
20. Conditions of accreditation
The Authority may make an accreditation subject to any conditions it considers to be appropriate.
21.— Accreditation
(1) Where paragraph (2) applies, subject to regulation 22, the Authority must—
(a) give accreditation for the plant;
(b) notify the participant that the accreditation application has been successful;
(c) enter on the central register the participant's name and such other information as the Authority considers necessary for the proper administration of the domestic RHI scheme;
(d) notify the participant of any conditions attached to the accreditation;
(e) provide the participant with a written statement (a "statement of eligibility") including the following information—
(i) the RHI date for the plant;
(ii) the applicable initial tariff and details of how subsequent tariffs will be calculated;
(iii) details of the frequency and timetable for payments;
(iv) the tariff lifetime and tariff end date;
(v) if the plant is a heat pump, the seasonal performance factor for the heat pump; and
(vi) the deemed annual heat generation for the plant; and
…
(2) This paragraph applies where—
(a) an accreditation application has, in the Authority's opinion, been properly made in accordance with regulation 17;
…
22.— Rejection of accreditation applications
(1) The Authority may reject an accreditation application if—
(a) the Authority is not satisfied that the accreditation application has been properly made in accordance with regulation 17;
(b) the Authority is not satisfied that the plant meets the eligibility criteria;
(c) the Authority has reason to believe that one or more of the applicable ongoing obligations will not be complied with; or
(d) subject to paragraph (2), information requested by the Authority is not provided within the time limit specified in regulation 19.
(2) The Authority must not reject an accreditation application on the basis that information has not been provided in accordance with regulation 19(c) if—
(a) the applicant contacted the Authority before the 28 day period expired—
(i) stating that the information sought is not yet available;
(ii) stating that the information cannot be provided; or
(iii) providing alternative information; and
(b) fewer than three months have passed since the date of the first notice in which the Authority requested the information.
(3) Where the Authority decides to reject an accreditation application it must notify the applicant that the application has been rejected, giving reasons.
…
…
29.— Calculation of deemed annual heat generation
(1) The amount of heat in kWh which an accredited domestic plant is deemed to generate every 12 months (the "deemed annual heat generation") is calculated in accordance with this regulation.
…
(5) If the accredited domestic plant is a heat pump which provides both space heating and domestic hot water heating to the RHI property, the deemed annual heat generation is calculated in accordance with the following formula—
where—
(a) A is the heat demand for space heating and water heating specified in the relevant EPC for that property;
(b) B is the seasonal performance factor for the heat pump.
…
39. Ongoing obligations: general
A participant ("P") must comply with the following ongoing obligations, as applicable—
(a) if the accredited domestic plant is a biomass plant, upon a request by the Authority P must provide to the Authority evidence as to the type of fuel purchased and used in that plant for any period specified in the request during which P was a participant;
(b) P must not receive any grant from public funds for any of the costs of the purchase or installation of the accredited domestic plant other than any grant which was notified to the Authority when the accreditation application was made;
(c) P must ensure that the accredited domestic plant continues to meet the eligibility criteria;
(d) P must comply with any condition attached to P's accreditation;
(e) P must keep the accredited domestic plant in good working order;
(f) if P is not the owner of the RHI property, P must provide a copy of any notification under regulation 40(1)(i) or 40(1)(j) to the owner or owners of that property;
(g) P must repay any overpayment in accordance with any notice served under regulation 60;
(h) P must not move the accredited domestic plant to a new location;
(i) P must comply with such other administrative requirements that the Authority may specify in relation to the effective administration of the domestic RHI scheme;
(j) on receipt of a request for access under regulation 56 or regulation 63(3)(b), P must—
(i) allow the Secretary of State, the Authority or the Authority's authorised agent, as applicable, access to the RHI property [ and any related property ] [4] to carry out any of the activities described in those regulations; and
(ii) offer reasonable cooperation to that person;
(k) P must comply with any other requests by the Secretary of State under regulation 63(3)(c);
(l) if P does not live in the RHI property P must have, at all times, agreement from all occupants of [ the RHI property and any related property ] [5] that those occupants will allow the Secretary of State, the Authority or the Authority's authorised agent reasonable access in the event of a request under regulation 56 or regulation 63(3)(b) and will co-operate with such a request; and
(m) P must not seek accreditation under the Renewable Heat Incentive
Scheme Regulations 2011 [6] for an accredited domestic plant, or any other plant which provides heat to the same RHI property as an accredited domestic plant.
40.— Ongoing obligations: changes affecting accredited domestic plants
(1) A participant ("P") must notify the Authority if, at any time in the tariff lifetime—
(a) P becomes aware that any of the information provided in support of the accreditation application for P's accredited domestic plant is incorrect;
(b) the accredited domestic plant no longer generates heat for the RHI property;
(c) a replacement plant is installed which generates heat for the RHI property;
(d) any other plant is installed which generates heat for the RHI property;
(e) the RHI property is occupied for less than 183 days in any 12 month period after the RHI date for the plant, unless the Authority has provided a metering statement for the plant;
(f) the accredited domestic plant no longer provides heat for an eligible purpose;
(g) P becomes aware that P will not be able to comply with an ongoing obligation;
(h) P ceases to comply with an ongoing obligation;
(i) P, or another owner of the accredited domestic plant, intends to transfer ownership of all or part of the accredited domestic plant within 28 days;
(j) any change in ownership of all or part of the accredited domestic plant has taken effect;
(k) there is any other change in circumstances which may affect P's eligibility to receive RHI payments; or
(l) any meter which is required under a metering statement for the accredited domestic plant is moved, is replaced, is reset or ceases to operate, be in good working order or be an eligible meter, or any eligible meters are added or removed.
(2) A notification under this regulation must be made within 28 days of P becoming aware of the circumstances to which the notification relates.
…
Regulations 4 and 18
1.—
(1) The requirements set out in this Schedule in relation to a property are that an Energy Performance Certificate ("EPC") has been issued for the property on the basis that it consists of a dwelling and—
(a) the property is an eligible new-build property; or
(b) the requirements in—
(i) sub-paragraph (2) are met; and
(ii) either sub-paragraph (3) or (4) are met.
[ (2) The requirements referred to in sub-paragraph (1)(b)(i) are that—
(a) the property was first occupied before the first commissioning date for the plant; and
(b) the period between the date on which the EPC was issued and the RHI date is less than 24 months. ] [7]
(3) The requirements referred to in sub-paragraph (1)(b)(ii) are that the EPC—
(a) does not include a recommendation report; or
(b) includes a recommendation report which does not recommend that loft insulation or cavity wall insulation be installed.
…
Regulations 17, 18, 45, 48 and 69
1.
The information referred to in regulation 17(2)(a) is—
…
(i) the unique reference number for the Energy Performance Certificate for the property to which the plant for which accreditation is sought provides heat which is the most recent Energy Performance Certificate for the property on the date on which the application is made [.] [8]
[…] 8
2.
The information referred to in regulation 17(2)(b) is—
(a) information to enable the Authority to satisfy itself as to the identity of the individual completing the application;
(b) where an individual is making an application on behalf of the applicant, evidence which satisfies the Authority that the individual has authority from that person to make the application on its behalf;
(c) details of the plant for which accreditation is sought, including its make, model and cost;
(d) evidence regarding the value of any grant from public funds and details of the body from which the grant was given;
(e) any information held by the applicant about the plant's certification in accordance with regulation 8;
(f) details of the property to which the plant for which accreditation is sought provides heat, including evidence that the applicant owns or occupies the property;
…
(h) a copy of any Energy Performance Certificate for the property including, if applicable, any Energy Performance Certificate issued on or after the RHI date for the plant;
…
(k) details regarding any other plant which provides heat to the same property as the plant for which accreditation is sought;
(l) evidence as to any of the other matters for which the applicant has given a declaration; and
(m) such other information as the Authority may require to enable it to consider the applicant's application for accreditation or to enable evaluation of the operation of the domestic RHI scheme.
…
Note 1 State Aid No SA.35766 (2013/N) – United Kingdom. Extension of the Note 2 Definition substituted by Note 3 Word inserted by Domestic Note 4 Words inserted by Domestic Note 5 Words substituted by Domestic Note 6 Amended by S.I. 2012/1999, S.I. 2013/1033, S.I. 2013/2410 and S.I. 2013/3179.
[Back] Note 7 Substituted by Note 8 Revoked by Renewable Heat Incentive
(RHI) to the domestic sector [Back]
Renewable Heat Incentive
Scheme and Domestic
Renewable Heat Incentive
Scheme (Amendment) Regulations 2016/257 Pt 3 reg.16(f) (March 24, 2016)
[Back]
Renewable Heat Incentive
Scheme (Amendment) Regulations 2015/143 reg.11(2) (February 5, 2015)
[Back]
Renewable Heat Incentive
Scheme (Amendment) Regulations 2015/143 reg.13(a) (February 5, 2015)
[Back]
Renewable Heat Incentive
Scheme (Amendment) Regulations 2015/143 reg.13(b) (February 5, 2015)
[Back]
Renewable Heat Incentive
Scheme and Domestic
Renewable Heat Incentive
Scheme (Amendment) Regulations 2016/257 Pt 3 reg.26 (March 24, 2016)
[Back]
Renewable Heat Incentive
Scheme and Domestic
Renewable Heat Incentive Scheme (Amendment) Regulations 2016/257 Pt 3 reg.27 (March 24, 2016)
[Back]