Is Ofgem being fair?

[noah]

My 5.5kw hydro was installed and Ofgem accredited in mid 2009.
I had more water capacity which would provide 10kw reliably or up to 15kw intermittently. At that time the FITs limit for hydro was 10kw so it made more financial sense to go for a 10kw system and get the higher FIT as long as Ofgem would accredit the two systems independently. Not knowing the parameters for I emailed Ofgem and asked if the two turbines would be classed as one or two generating stations. (Each supplies a different house with different MPANs so going for the 2 seperate systems would make house selling less problematic).
Ofgem replied that the two would be seperate and each needed to be accredited independently.
I have waited over a year for accreditation of 2nd installation (comissioned in Feb 2010) and now Ofgem is saying that (because of shared civil works) the two stations must be lumped together as one.
I have pointed out that I proceeded only after advice from Ofgem staff (in writing- or at least email) and that this decision would cost around £2k a year in lost revenue.
Ofgem seem unwilling to take any responsibilty for the action of their staff  and that `the only way forward` is to accept their position.
What do you think?

[DonL]

I cannot comment on your particular case, but one thing I notice is the increasing use of get out clauses on the bottom of emails that basically say something equivalent to this is not worth the paper it is written on because it does not commit us. Unfortunately, this means that the only way you can proceed with real confidence is to go to the actual legislation and attempt to decipher it 
I had a similar problem with two PV installations and got incorrect advice before finally establishing the correct actions from the legislation with the help of Ted.

[GavinA]

solicitor >>> threatening letter >>> court / offgem rethink?

[BruceB]

It sounds like you are being shafted.

Is OFGEM relying on the definition of 'site':

“Site” means the premises to which are attached one or more
Accredited FIT Installations or Eligible Installations in
close geographical proximity to each other, to be
determined as required by the Authority by reference to:
(a) the relevant Meter Point Administration Number
for electricity supply;
(b) street address;
(c) OS grid reference;
and any other factors which the Authority at its discretion
views as relevant;

in particular that get out clause at the bottom which appears to give them a lot of discretion.

OFGEM has a complaints procedure.
http://www.ofgem.gov.uk/About%20us/OurService/Pages/ourservice.aspx
It will start a process that probably involves different people from those you have dealt with.

If you really want to mess them around, then after you have exhausted the complaint procedure, accept their decision under protest then take them to the small claims court for a few years worth of your loss.  Provided you have the evidence of their advice and keep it to the small claims track then you are only putting a small court fee and your time at risk.

Regards
Bruce

[Ted]

You need legal advice as to whether you have a valid claim under 'estoppel' and then to make a judgement as to whether it would be an economic proposition to fight it.

OFGEM have rather a lot to learn about handling customers.

[noah]

The email I have from Ofgem has no get-outs attached.

I`ll investigate the Ofgem complaints process, thanks.
They are basing their decision on the rule that hydro installs may not shhare any civil works. I have no particular problem with the rules, only that their misleading advice led me to a possibly costly decision.
I`ve used the small claims court successfully in the past and may try that if all else fails.
How I love a courtroom drama!

[Ted]

Did either you or OFGEM raise the point about shared civil works before you decided on the capacity?

If not then I can see OFGEM using that as a get-out for their earlier advice when they may not have been in possession of all the material facts.

[BruceB]

Where is the rule about not sharing civil works?
Regards
Bruce

[noah]

My question to Ofgem referred to both turbines `being in the same shed`. This is in fact not accurate as they are physically seperated by 20 yards or so and in different buildings. I would think that a knowledgeable person would infer at least the possibilty of shared civil works. Of course the enquiry was to establish whether there were in fact any rules that covered the situation and the reply was unambiguous.
Ofgem seem to think that I should somehow have known that their staff should not give advice and therefore I should have disregarded same. The logical consequence being that in order to find out if there were any suitable regulations I would need to download all available documentation from Ofgem and search it line by line: no shortcuts being available as, by definition, no directions could be accepted from Ofgem staff.
My Ofgem accreditation application clearly shows the extent of shared civils (including a map) but in the 14 months I have been waiting no one from Ofgem pointed this out.

Ofgem sent this re rules:

“hydro generating station” means a generating station driven by water (other than a generating station driven by tidal flows, waves, ocean currents or geothermal sources) and includes all turbines supplied with water by or from the same civil works, except any turbine driven by a compensation flow supplied by or from those civil works in a natural water course where there is a statutory obligation to maintain that compensation flow in that water course (in which case that turbine and associated infrastructure is to be regarded as a separate hydro generating station);

“civil works”, in relation to a hydro generating station, are to be regarded as all man-made structures, and man-made works for holding water which are located on the inlet side of a turbine (turbine A), excluding any such structures or works which supply another turbine before water is supplied to the structures and works which supply turbine A;

without a link to the original material. However, the existance of a rule is not actually relevant: my complaint is with the misleading information given out and Ofgem`s unwillingness to take any responsibility.

[Ted]

Those definitions, that apply for FiTs hydro, are inherited from the Renewables Obligation Order 2009 http://www.legislation.gov.uk/uksi/2009/785/made

[BruceB]

That definition is in the renewable obligation order 2002, SI 914/2002, perhaps elsewhere as well. Ted beat me to it

But I regret that does not bear on your bad advice point.  I am not a lawyer, but I think you are in tricky territory as regards liability of OFGEM.  I think it would turn on whether they had a duty of care in the advice that they gave you, if they did then did they fail to discharge that duty properly, and did you suffer a loss that can be quantified.  My personal view is that if you were dealing with them as an non-specialist consumer rather than as an experienced professional in the field, and they did not give adequate disclaimers, then you could reasonably expect to rely on their advice.  Small claims court tend to be quite sympathetic to consumers from what I read.  Also as often as not the defending party fails to either submit a defence or turn up on the day, so you get judgement by default.  If you can find a solicitor that will give a free half hour of advice then worth going that route.

Regards
Bruce

[Quakered]

Not sure you can use the Small Claims Court. If you are claiming a loss of £2k pa, the limit on the Small Claim value is less then £5k or two and a half years. I assume you are looking to claim the loss over 20 years.

Who regulates the regulators? Perhaps there is an OFREG!

[noah]

I think one could argue that `duty of care` should pertain to  any government agency which has information which is open for public use/scrutiny.
If a civil servant goes against the policy of the department this seems to me to be prima facie evidence of a malpractice.
An experienced professional would no doubt be expected to know their stuff but even they have to make a start somewhere.
I have sued for £15k+ in the small claims court (called `fast track` for up to £25k)
(case dropped as defendant bankrupt)

[Ivan]

I'm quite concerned about Ofgem's roles in FITs and RHI. Ofgem should stay at arm's length - so that they can act as arbitrator in the event of disputes. Now the situation is that ofgem are totally over-whelmed by demand, and hence very ineffective and slow (I've experienced this personally), but as the regulator, there's noone to investigate ofgem in the event of complaints.

(Imagine Ofcomm suddenly entering the broadband market - it wouldn't be that dissimilar to what's going on with Ofgem)

[Ted]

Agreed, and unfortunately things are likely to get even worse as OFGEM's role is central in RHI.