The Energy Bills Discount Scheme (Northern Ireland) Regulations 2023

CHAPTER 4 N.I. Certain determinations made under the Regulations

Interpretation of this Chapter N.I.

72.—(1) In this Chapter—

“affected person” in relation to a regulation 22 matter means—

(a)

the provider who determines that matter, and

(b)

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—

(a)

under regulation 37, to withhold payment to a supplier of any amount in respect of a recovery claim amount;

(b)

under regulation 38, as to the release of an amount withheld under regulation 37;

(c)

under regulation 39, as to the reconciliation cut-off date in relation to any supplier;

(d)

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;

(e)

under regulation 41(2), to adjust the amount of a discount recovery claim;

(f)

under regulation 41(3), to give a notice that is to be treated as a discount recovery claim;

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

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

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

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

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

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

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

(a) it is vexatious or frivolous,

(b) the financial consequences—

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

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

would not be material, or

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

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

(ii) the relevant decision was made.

Commencement Information

I1 Reg. 72 in force at 26.4.2023, see reg. 1(1)

Referrals in respect of disagreement between contract parties N.I.

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.

Commencement Information

I2 Reg. 73 in force at 26.4.2023, see reg. 1(1)

Power of the Secretary of State to make determinations N.I.

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.

Commencement Information

I3 Reg. 74 in force at 26.4.2023, see reg. 1(1)

Review of decisions of the Secretary of State N.I.

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

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

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

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

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

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

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

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

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

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

(c) consider any representations so made;

(d) reconsider the relevant decision;

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

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

(ii) the reasons for the reconsidered decision.

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

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

Commencement Information

I4 Reg. 75 in force at 26.4.2023, see reg. 1(1)

Rules in relation to this Chapter N.I.

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

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

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

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

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

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

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

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

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

(2) The rules may specify—

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

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

Commencement Information

I5 Reg. 76 in force at 26.4.2023, see reg. 1(1)