Office of Gas and Electricity Markets

3. Mr E complains about Ofgem. He says it refused his four applications under the Non-Domestic Renewable Heat Incentive Scheme (NDRHI) as it did not accept evidence he provided regarding planning permission. NDRHI is a government environmental programme that provides financial incentives to increase the uptake of renewable heat by businesses, the public sector and non-profit organisations.

4. He says that as a result his business has not been able to expand to its full potential and he has ‘a vast amount’ of machinery that is not being used.

5. Mr E would like Ofgem to grant his four applications for the full period of the scheme. He would also like it to accept it discriminated against his applications.

6. Mr E applied for the NDRHI on 21 November 2018. On 23 November, Ofgem emailed him explaining the further evidence it needed from him by 5pm on 26 November. This included a request for the following:

‘Please provide copies of planning permission relevant to your plant or official confirmation from your local planning authority that planning permission is not required’.

7. It said that failure to provide the requested information by 26 November 2018 may result in his application being ‘not properly made’. It stated that if this information is not supplied to it in time, then his application may be at risk of rejection.

8. Ofgem wrote to Mr E rejecting his application on 29 November 2018. It said if he wanted to request a formal review of the decision, he needed to do this within 28 days.

9. Mr E emailed Ofgem on 29 November 2018. He said he had contacted Ofgem before the stated deadline, saying planning permission had not been required for his property. He attached a printout from a government website which stated that planning permission was not needed ‘to use buildings already on your land for farming purposes’ or ‘to change the inside of a building’. He said his system had gone into an existing agricultural building for agricultural use and asked Ofgem to clarify why, based on the information on the government website, this was not an accepted reason for the lack of planning permission.

10. Mr E emailed Ofgem again on 13 December stating he had not received a reply. He said he had spoken to the local authority (LA) who had verbally confirmed that his understanding was correct (in that he did not need planning permission). He said the LA had agreed to put this in writing but there would be a charge for this. He said this may take ‘a day or two’ but, in the meantime, he enclosed a copy of a receipt from the LA to show he had requested this information. He said this would help him to meet Ofgem’s additional deadline of 21 December 2018.

11. On 21 December 2018, Mr E emailed Ofgem and asked it to review its decision to reject his application. He gave Ofgem copies of his previous emails. Ofgem responded on 24 December and said it was considering his review request. It sent him a further email on 23 January 2019 to say the consideration was still ongoing.

12. On 4 February 2019, Mr E emailed Ofgem again. He attached an email he had received from the LA (dated 28 January 2019) which, he said, confirmed that he did not need planning permission.

13. On 20 February 2019, Ofgem issued the outcome of its formal review and said it was upholding its original decision to reject Mr E’s application. It said this was because he had not given evidence from the relevant planning authority that planning permission was not needed (either in his original application or in response to its request for further information dated 23 November 2018). Ofgem said if he wished to request a second review (also known as a Statutory Review) of the decision, he should do this within 28 days.

14. On 18 March 2019, a solicitor contacted Ofgem on Mr E’s behalf. It said some issues had come to light which it needed to investigate and asked Ofgem to extend its review request deadline for 14 days. Ofgem responded the following day and agreed to extend the deadline until 29 March 2019.

15. Mr E emailed Ofgem on 19 March 2019. He said he was unclear why the solicitor had requested the extension on his behalf. He said he was now submitting the formal review request himself and did not need an extension to the deadline. He gave Ofgem details of information he had submitted previously, including the information he had received from the LA.

16. On 2 April 2019, a different solicitor contacted Ofgem on Mr E’s behalf and submitted a Freedom of Information (FOI) request. It asked for anonymised details of any cases where Ofgem had granted an NDRHI application despite not having received a planning permission letter or a letter from the planning authority confirming that such permission was not needed.

17. On 16 April 2019, Ofgem wrote to Mr E with the outcome of its second formal review of its decision to reject his applications under the NDRHI. It said it had seen no evidence that Mr E had supplied the needed evidence about planning permission either with his original application or in response to the request for further information. As such, it was satisfied the decision to reject his application had been correct. It invited Mr E to request a Statutory Review within 28 days if he was still unhappy.

18. On 19 April 2019, Mr E’s solicitors submitted an FOI request for anonymised details of successful NDRHI applications where the applicant had not given a planning permission letter or letter from the relevant planning authority that planning permission was not needed.

19. On 2 May 2019, Ofgem responded to Mr E’s solicitors’ FOI request. It said that, although it held the requested information, under the relevant data protection legislation, it was not required to provide it (so had decided not to ). It said the solicitor could request a review of that decision.

20. On 7 May 2019, Mr E’s solicitors emailed Ofgem and said they would be requesting a Statutory Review of its decision to refuse his NDRHI application. However, they requested an extension of time as they were still pursuing the FOI request which, in their view, would be important to the NDRHI decision.

21. On 9 May 2019, Mr E’s solicitor asked for a review of the FOI decision. On the same day, Ofgem responded to the request to extend the NDRHI review time limit and agreed to extend until seven days after Ofgem had responded to the FOI issue.

22. On 5 July 2019, Ofgem upheld its refusal of Mr E’s FOI request and informed him of his right to appeal to the Information Commissioners Office (ICO) if he was not satisfied with the outcome of its reconsideration.

23. On 8 July 2019, Mr E’s solicitor contacted Ofgem again. It said it still wished to request a Statutory Review. However, as Mr E was still intending to pursue his FOI request, the solicitor requested a further 60 days extension to submit the request. Ofgem responded on 9 July 2019. It noted that it had already responded to the FOI issue and asked why the solicitor needed more time to submit an NDRHI Statutory Review request. Ofgem said it had already granted an extension in this case.

24. On 10 July 2019, Mr E’s solicitors wrote to the ICO requesting a review of Ofgem’s response to his FOI request. It also sent a copy of this request to Ofgem. On 16 July 2019, Ofgem responded to the solicitor. It agreed to extend the deadline for submission of the NDRHI Statutory Review request until 14 August 2019.

25. On 13 August 2019, Mr E’s solicitor submitted a Statutory Review request. It referred to the information Mr E had given Ofgem previously (including information from the LA and said this was evidence he had not needed planning permission.

26. On 16 August 2019, Ofgem noted receipt of the Statutory Review request. It also asked the solicitor to provide it with details Mr E had provided to the LA when asking whether planning permission had been needed. The solicitor provided that information on 21 August 2019 (this included copies of an email exchange between Mr E and the LA).

27. On 9 September 2019, Ofgem provided its response to its Statutory Review of its decision. Ofgem said it was upholding the original decision to reject the application. It said Mr E had not given the relevant evidence about planning permission either when he first applied or when asked to do so by the required deadline. Ofgem referred to the exchanges between Mr E and the LA but noted they had not specifically related to Mr E’s property (instead, it had been a general view about whether farmers needed planning permission to change the use of farm buildings). Ofgem explained that the Statutory Review marked the final stage of its internal review process. It stated that, should Mr E be dissatisfied with its response, he could take his complaint to the Parliamentary and Health Service Ombudsman.

28. On 10 November 2020, Mr E’s solicitors wrote to Ofgem again (it had been pursuing its FOI request, first through the ICO and then through the court system). It said it had discovered that Ofgem had approved a large number of applications in the absence of planning permission and asked it to reconsider Mr E’s case because of this. Ofgem responded and said it had given its final response to the Statutory Review request and was not prepared to revisit the matter. It noted the solicitor’s comment about other applications being granted the applications and invited the solicitor to share that information so Ofgem could comment on it.

30. The law (the Parliamentary Commissioner Act 1967 – the Act) says a person needs to make their complaint to an MP in writing within a year of becoming aware of the problem. We cannot investigate complaints brought to an MP after one year, unless we consider there is a good reason to.

31. In this case, Mr E knew in November 2018 that Ofgem had rejected his application and knew the reasons for that decision (his date of knowledge). He also knew, as early as September 2019, that Ofgem had issued a final response to his concerns and had advised him to bring the matter to us. However, he did not complain in writing to his MP until 25 October 2021, almost three years after his date of knowledge and two years after Ofgem advised him to come to us.

32. We asked Mr E the reasons for his delay in raising this complaint with his MP in writing. We also considered the time Ofgem took to respond to him.

33. Mr E told us most of the time was taken up in pursuing the FOI issue which had been a lengthy process. He said that in May 2020 he had discovered new information which is why in November 2020 his solicitor had asked Ofgem to reconsider the matter.

34. Mr E told us that after Ofgem refused, he instructed a barrister about whether he ‘was correct to pursue the case with the Ombudsman’. He said that this was ‘just as the whole country went into lock-down’. He said that after the barrister ‘went through the masses of previous correspondence which showed our complaint was justified’, the barrister directed him to contact his MP.

35. Having carefully considered what Mr E has told us, we have seen no good reason to set our time limit aside. Ofgem’s final review letter clearly directed Mr E to bring his concerns to us. However, rather than approaching us, Mr E chose to pursue his complaint through the ICO. This was a decision he and his solicitor were entitled to make, but it is not a good reason for us to set our time limit aside in this case.

36. We should explain that making and pursuing an FOI request and making and pursuing a complaint are two separate processes and are done in different ways. We can see no reason why the two could not have operated at the same time. We accept that Mr E may feel the information he had requested from Ofgem may have been important to his complaint. However, under the Act, we have the legal power to request any information we feel will help our investigation. As such, if Mr E had thought this information was important for us to see, we may have been able to get it ourselves, if we felt this was necessary. For that reason, we cannot say the time taken to pursue the FOI issue was a good reason to delay making a complaint to Mr E’s MP.

37. We have also noted Mr E’s decision to consult a barrister about his complaint and the reasons given for the delay in getting the barrister’s advice. This again is not a good reason for us to set the time limit aside. As we have said, Mr E knew in November 2018, he had cause to complain about Ofgem’s decision to reject his application. As such, by the time he chose to consult a barrister, his complaint was already out of time for our purposes. In any event, he had no need to consult a barrister to make a complaint to an MP. He could, and should, have done so directly. His decision not to do so, despite Ofgem advising him to, meant we have no good reason to set our time limit aside.

38. Having carefully considered the timeline of events and Mr E’s explanation, we have decided not to set the time limit aside. We are sorry that this will be disappointing for Mr E.

39. Even if we had set the time limit aside in this case, it is unlikely the case would have had the result Mr E was hoping for. It is important to note that, in looking at complaints such as this one, we have no power to overturn Ofgem’s decision to reject the application. We can look only at whether there were flaws in the decision-making process.

40. In this case, it appears Ofgem rejected Mr E’s application because he had not complied with an administrative process. Namely, he had not given Ofgem evidence, from a relevant planning authority within a set timescale, that he did not need planning permission.

41. We do not necessarily dispute Mr E’s claim that he did not need such permission (although we should make clear we have not taken a view on this either way). However, the key point, which Ofgem pointed out several times, was whether he had given appropriate evidence of that when he needed to.

42. We can see that Mr E gave Ofgem a screenshot from a website which suggested that, in general, people in his circumstances would likely not need planning permission. However, Ofgem had made clear Mr E needed to give evidence specific to his application and from a specific source. If we were to look at this matter further, we would be unlikely to say Ofgem acted unreasonably by rejecting the screenshot as appropriate evidence.

43. We have also noted Mr E’s argument that he later provided this specific information (namely the email from the LA). We have not taken a view on whether this was specific enough to meet Ofgem’s requirements. However, the evidence we have seen suggests that, regardless of the merits of this information, he did not provide it until 4 February 2019, outside of the dates Ofgem had set for a response (26 November 2018 and 21 December 2018). As such, if we were to look at this complaint further, we would be unlikely to say Ofgem acted unreasonably by saying, either in its original decision or subsequent reviews, that Mr E had not done what had been asked of him.

44. We hope that this further explanation is helpful for Mr E to understand how we would have approached his complaint had we looked at it further.

45. In summary, we have decided to take no further action on Mr E’s complaint. We realise this is unlikely to be the outcome he was looking for when he approached us. We thank him for bringing his concerns to our attention.

1. We have carefully considered Mr E’s complaint about the Office of the Gas and Electricity Markets (Ofgem).

2. We have decided that his complaint falls outside of our time limit and that it would not be reasonable for us to set this aside. We are sorry that this will not be the outcome Mr E was hoping for when raising this complaint with us.