Office of Gas and Electricity Markets

3. Mr A complains that OFGEM has not applied its guidance on the closure of the FIT scheme in a manner that is fair and in the spirit of the scheme. He also complains that OFGEM accepted there was a need to provide further clarification on the guidance issued in December 2018, but that was not provided until 21 March 2019, ten days before the closure deadline.

4. Mr A tells us that he was to be entitled to £2,000 per annum for twenty years on the scheme, and he has now lost that.

5. Mr A tells us that he would like OFGEM to reconsider its decision.

6. Mr A had his Solar PV equipment installed at premises he owned. The plan was for him to register for an annual payment through the FIT scheme. This is a Government programme designed to promote the uptake of renewable and low-carbon electricity generation technologies.

7. There were two administrative aspects to the scheme: the installation of the equipment and the filing of the commissioning certificate under the Microgeneration Certification Scheme (MCS) with OFGEM.

8. The work was completed on 27 March 2019 and the installer (Mr U) went on to file the MCS certificate on 5 April 2019. When they submitted the paperwork on Mr A’s behalf, they were told that Mr A did not qualify as the MCS paperwork had been submitted after the deadline of 31 March 2019, as set out in the guidance issued by OFGEM.

9. Mr U complained to OFGEM in May 2020, on behalf of Mr A, explaining that they believed they had ten days to file the MCS certificate and that the installation had been put in in time. They received a response in June 2020, explaining that they had not met the deadline and there was nothing further that could be done.

10. Mr U wrote back to OFGEM a few days later and said: ‘Most notably that the updated regs were only issued on the 21st March 2019, 10 days before the deadline, this was during a period of time that we and numerous other Solar PV installers were exceptionally busy making sure our clients had a commissioned Solar PV array in time for the closure of the scheme’. He asked that the complaint be reviewed, in line with OFGEM’s complaint process.

11. OFGEM responded in July 2020, and explained that the deadline had been proposed and published in July 2018, and then agreed in December 2018.

12. Mr U then brought Mr A’s complaint to our Office as his representative.

The decision to decline the application was unfair and not in the spirit of the legislation

15. The FIT scheme was a Government programme designed to promote the uptake of renewable and low-carbon electricity generation technologies. The scheme was renewed on an annual basis from its introduction on 1 April 2010 up until 31 March 2019, when it was ended. The Government published a consultation which stated that it intended to close the FIT scheme to new applicants from 1 April 2019. The Feed-in Tariffs (Closure, etc) Order 2018 was laid in Great Britain on 18 December 2018 to close the scheme to new generating capacity from 1 April 2019. The only exceptions were a small number of time-limited extensions for school and community projects that are not relevant to Mr A’s application.

16. OFGEM has told us that it can apply discretion in a different type of scheme, where the applicant has made an effort to register an eligible application, but that as a result of an issue at OFGEM (usually referring to IT issues that prevent the applicant registering online) they have been unable to do so. It is important to note that at the time of the failed attempt the application must be eligible. In other words, if the IT system had been working the criteria would all be met, including the deadline. This is not applicable in the case of Mr A, nor for the type of scheme he was applying for.

17. We reviewed the legislation and can confirm it offers no discretion in the deadlines it set, and it would require an amendment to be passed by Parliament for any changes to be made. One such amendment was passed (The Feed-in Tariffs (amendment) (coronavirus) Order 2020) that extended a deadline for those previously mentioned school and community type projects that had been impacted in meeting an existing deadline by the effects of COVID-19. This was not applicable to Mr A’s installation.

18. We acknowledge that the intention of Mr A was to install and operate an installation that was designed to be consistent with Government policy and objectives associated with the FIT Scheme.

19. However, in OFGEM’s role it must consider the regulations, and guidance drawn from those regulations, that ensure the scheme is applied consistently. If an applicant does not adhere to the guidance and regulations, no matter how well intentioned they were, then OFGEM has no option but to decline the application. The responsibility remains with the applicant to proceed in line with the regulations and guidance, and in this case the deadline for submission was not met.

20. There is no indication of maladministration (fault) by OFGEM in this aspect of the complaint and as such we will take no further action.

Lack of clarity and a late amendment

21. A letter was sent to FIT generators, licensed electricity suppliers and other interested parties from the OFGEM Renewable Electricity Policy Team, dated 19 December 2018. It said that the purpose of the letter was to inform recipients that the draft guidance ‘Feed-in Tariffs: Essential guide to closure of the scheme’ was being published that same day for an eight week comment period.

22. Workshops and online webinars were offered to discuss the guidance, and these required sign up by the participant.

23. After the consultation on the proposed guidance, the guidance was updated and reissued on 21 March 2019 as ‘Feed-in Tariffs: Guidance for Licensed Electricity Suppliers (Version 11) March 2019’.

24. We have reviewed the relevant parts of this guidance which say:

‘4.3. MCS scale (≤50 kW) installations which commission and have an MCS certificate issued on or before 31 March 2019 have until 31 March 2020 to apply to their FIT licensee for accreditation.’

25. This is the type of installation Mr A has. This extract sets out clearly that an installation must both be commissioned and have an MCS certificate issued on or before 31 March 2019.

26. The rules by which MCS accredited installers operate include that they must register the MCS certificate with MCS within ten days of the installation being commissioned.

27. In this complaint to OFGEM, Mr U explained that the installation had been commissioned to MCS standards on 31 March 2019, which was within the OFGEM deadline for commissioning, and that he had completed and registered the MCS certificate within the ten days allowed by MCS.

28. It seems evident from this statement that there was confusion on Mr U’s part in regard to the deadline for the submission of the certificate to OFGEM and he tells us there was further confusion in the guidance where it says:

‘MCS Accreditation

4.69. MCS installations must commission and have an MCS issue date on or before 31 March 2019 in order to be eligible for accreditation, with the exception of pre-registered community installations. Applications can be made until 31 March 2020, as long as the installations commission on or before 31 March 2019. Pre-registered community and school applications retain their standard 12-month validity periods.’

29. He understood this to mean that the application for Mr A could be made until 31 March 2020, and he knew he had commissioned the installation on 31 March 2019.

30. While we can understand how Mr U might have found the information confusing, this was not new information, and it reflected the existing guidance that was issued in previous years. The only difference on this occasion was that the installation owner could not request to be accredited for the following year as the scheme was closing.

31. When the announcement was made on 19 July 2018 that the Government planned to close the scheme to new entrants from 1 April 2019, OFGEM also published a document that provided an FAQ on the implications for consumers and installers. In that document it said:

‘I’m thinking about making an application. If BEIS introduce these proposals, what would I need to do and by when?

This depends on the type of application you intend to make to the FIT scheme.

Small installations (solar photovoltaic and wind installations with a Declared Net Capacity (DNC) of 50kW or less and all micro combined heat and power (CHP) installations) would need to commission and have a Microgeneration Certification Scheme (MCS) certificate issued on or before 31 March 2019. An www.ofgem.gov.uk July 2018 Feed-in Tariff application for accreditation would then need to be made to a FIT licensee by 31 January 2020. Please note that an MCS certificate can only be issued once the installation has been installed and commissioned.’

32. We understand that OFGEM’s decision would have been very disappointing for Mr A. He installed an environmentally friendly solution to electricity generation in the belief that the Government would financially support him in that decision for twenty years. The fact that the criteria for acceptance were not met is not an indication of maladministration on the part of OFGEM, who the evidence shows adhered to the guidance in place at the time and did so fairly.

33. With regard to the timing and clarity of the information provided, we cannot see any indication that OFGEM has failed to act in line with our Principles of Good Administration, which say that organisations: ‘should give people information and, if appropriate, advice that is clear, accurate, complete, relevant, and timely. Public bodies should be open and truthful when accounting for their decisions and actions. They should state their criteria for decision making and give reasons for their decisions.’ The guidance as written appears clear about the need for both the installation and certification before making the application, and if Mr A or Mr U were not completely sure about their responsibilities, it was open to them to clarify this directly with OFGEM. We cannot see any evidence they did so.

34. There is no indication of maladministration in this aspect of the complaint and as such we will take no further action.

1. We have carefully considered Mr A’s complaint about the Office of Gas and Electricity Markets (OFGEM), and we appreciate that he remains frustrated by the outcome of his complaint so far. Having looked carefully at his complaint, we have seen no indication that OFGEM did not adhere to its policies and guidance when considering his application for the Feed-in Tariff (FIT) Scheme.

2. We hope the statement below clearly explains how we have reached our views in this case and provides him with reassurance that his complaint has been considered independently and robustly.