Judge blasts renewable energy regulator over secret email wrangle

by Search Gate staff. Published Thu 19 Dec 2013 15:33
Wrangle could mean homeowners could lose out on FiT payments

The consumer watchdog for the renewable energy industry has been criticised by a judge after it lost an 18-month legal battle to keep internal emails secret.

Administrators REAL and the Office of Fair Trading were warned the documents must now be handed over after a judge expressed his “surprise” at the “low level of competence and efficiency” shown at the OFT.

And Judge Andrew Bartlett QC said he found the views of REAL chief executive Virginia Graham “unimpressive” and described the circumstances that led to changes to the organisation's code of conduct as “peculiar”.

The stack of secret emails and meeting minutes contains details of the discussions that led to the OFT providing preliminary approval to REAL's revised code of conduct, which removed the requirement to investigate complaints fairly and quickly.

Some companies complained that the changes were designed as a power grab that allowed the REAL executive to arbitrarily decide on their ability to operate within the Feed-in Tariff scheme without any proper explanation or justification.

Seeking to prevent the release of the information, REAL had unsuccessfully tried to argue that handing over information about rule changes would cause it commercial damage.

But the appeals panel this week said REAL held a “near monopoly position” as regulator of the renewable energy scheme and therefore the prospect of harming its commercial interests was “very small”.

And it accused the Office of Fair Trading of not telling the truth by claiming the changes to the REAL Code of Conduct had been approved, when in truth they hadn't.

In a further damaging blow to REAL's credibility, the judge said its conduct “clearly calls for explanation”.

The legal wrangle centres around changes in the June 2017 version of the REAL Assurance Scheme, the consumer protection code designed to protect consumers and investigate complaints.

Changes to the code made by REAL, which is a wholly-owned subsidiary of the Renewable Energy Association (REA), included the removal of the requirement for the organisation to investigate complaints “quickly and fairly”.

This meant that the quality of investigations was governed only by REAL bye laws, which were not part of the code itself and were not required to have OFT approval.

This week's ruling said it was clear the OFT had been “bounced” by REAL into giving preliminary approval after a series of behind-the-scenes discussions. It then took the OFT until 2013 to untangle the mess and finally grant approval for the new consumer code.

John Oddi of South East based Crystal Windows and Doors had mounted a series of information requests to unravel the reason behind the unilateral rule changes.

Judge Barlett QC said Mr Oddi was “not unnaturally” alarmed at the actions of REAL and noted that Crystal Windows and Doors had commenced proceedings in the High Court, Queens Bench Division, against both REAL and REA.

The judge also confirmed that in dealing with Mr Oddi’s enquiries the OFT “did not provide an adequate explanation of the justification for the changes”.

Earlier this year in a separate High Court hearing, it was suggested that if changes were found to have been made to REAL’s consumer code in June 2017 without OFT approval it would result in affected consumers not having an entitlement to Feed-in Tariff payments and that this could give rise to scores of damages claims.

According to this week's ruling, it was revealed that one application by Crystal Windows and Doors for information was rejected by the OFT on the unlikely grounds it did not hold the information.

In its 18-page judgement, the Information Rights Tribunal, concluded: “We find surprising the low level of competence and efficiency shown by OFT in its initial failure to react appropriately to the publication of the unapproved code.

“As we understand it, OFT’s decision to give approval on 12 July 2017 was rational and lawful only because it was considered to be the least bad option available in the circumstances.

“In addition, the conduct of REAL... clearly calls for explanation.”

However, the panel only allowed some of the documents to be released. It claimed “public interest in maintaining the exemption outweighed the public interest in disclosure” by allowing some of the disputed information to continue to be withheld.

The Office of Fair Trading has been given 28 days to comply with the order, which was delayed from being published after it expressed concern about the wording of criticisms against it.

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