Defining TIC

[Worcester]

@TedM many thanks for that, based on those responses. - which in my book doesn't properly relate to the TIC as defined in the legislation - interesting to note they don't quote the words from it I reckon it still leaves them open to legal challenge if anyone has the wherewithal or possibility of significant loss to do it, especially if they decide to try to apply this retrospectively.

 

[Gavin A]

I'd think that the very process of them issuing new guidance where none had previously existed would mean that it would obviously not be legal for them to apply it retrospectively.

 

[BruceB]

Ted asked them to explain how their definition of TIC corresponds with the legal definition of TIC (to paraphrase) and effectively what they are saying is that it just does because we say it does. It is an arrogant reply.

I suppose the next question is what do they intend to do when they discover an 'incorrect' TIC. Options would include:
- Ignore as a historic anomaly
- Use 'correct' TIC going forward
- Backdate 'correct' TIC and clawback overpayments
- De-register installation from FIT database
The latter options would be painful.

One of my customers has already been discovered with an 'incorrect' TIC. It was an east/west/south arrangement on a new-build following a demolition. I had been up front on the number of panels with the DNO because there has been a discussion about the 16A limit, which I convinced them we would remain under wherever the sun was. His FIT provider, British Gas, recently asked him in a routine audit how many panels he had of what power. He answered truthfully and it was not an issue because the new build sub 4kW rate and 4-10kW rate were the same, so no monetary implication. The MCS register was corrected.

I am wondering what those of you with customers now in an uncomfortable position are going to do? Do you warn them off? Perhaps give them the gist of the FOI reply? The last time I looked the route through the various complaints procedures, ombudsmen and to law were complex and different depending on whether you were an end customer or an installer.

@Gavin, I suspect they would not agree with your point. Their whole thrust is that this is NOT a change in policy or rules, hence no formal consultation. Therefore they will feel free to apply the 'existing' rules 'correctly'.

It is all very messy. Not sure what, if anything, to do.

 

[TedM]

One of the critical facts for me is the answer to 5.

It appears from this that it was actually MCS who raised the issue in the first place. There must have been a reason for that. And why have MCS decided not to issue any notification to their members about all this?

Under the FOI I had previously thought that asking for a copy of any legal advice received was 'out of bounds' but, having looked in to it in more detail, it seems that this generally only applies to legal advice given to ministers on policy matters or where any (non-governmental) 'third party' involved has a reason to expect confidentiality. I can also ask for copies of minutes or emails if that might help.

 

[Gavin A]

10-15 installers chuck £1k in a pot, or at least pledge to if any of them have customers who're threatened with this being retrospectively applied.

Then ensure that Ofgem and DECC are aware that if they attempt to retrospectively apply this new guidance, then they will be taken to judicial review on the entire issue, and we have the means to do it.

I already have the legal opinion to accompany such a threat.

It's also possible that mine, and maybe others PI insurance would cover the costs.

 

[SolarCity]

The logical thing for Ofgem and DECC to do would be to ignore the current anomalies as they are clearly problematic legally going by the ambiguous Ofgem definition of TIC.

As Bruce points out, these two options: - Backdate 'correct' TIC and clawback overpayments - De-register installation from FIT database would be a nightmare. Presumably there would be enough people affected by enough money for them to consider legal action. And presumably Ofgem and DECC would anticipate this problem.

 

[BruceB]

To pick up Ted's question, MCS had a couple of drivers making them ask the question I suspect. DECC asked them to include the TIC field so they were probably asked by a few installers what to put there. Also I think MCS was one of the organisations Gavin asked when he had a customer involved in a dispute on the TIC point.

It is important to remember that MCS have no particular axe to grind. They are just a firm of consultants running the scheme and trying to make money. They will be asking any questions and taking whatever action is necessary to protect their commercial position.

The guidance they issued on 29 Jan 13 is attached. I cannot find anything subsequently.

Their current help document (v 5.1) for the database on their website offers nothing more of any substance.

View attachment Important Updates to the MCS Databasex.pdf

 

[BruceB]

Insurance could be a tricky point. As a general rule you normally have to inform your insurance company as soon as you become aware of circumstances that might result in a claim. Often the terms of a policy would mean you must take no action which could prejudice the position of your insurance company. Although instinctively an installer might feel he is on the side of the customer on the TIC issue, any initial dispute is likely to be between the customer and the FIT supplier, at arm's length from MCS/OFGEM/DECC. If an installer becomes involved it could be because the customer has been through the customer side processes to resolve the dispute, failed, and then decides to make a claim against the installer, pitting the installer against the customer.

Quite when installers should talk to their insurers I do not know.

It would be nice to know what DECC intend to happen when installations are found with a 'incorrect' TIC as I outlined in an earlier post. It would not surprise me to find that they shrug their shoulders and say it is a matter for each individual FIT supplier.

 

[Gavin A]

To pick up Ted's question, MCS had a couple of drivers making them ask the question I suspect. DECC asked them to include the TIC field so they were probably asked by a few installers what to put there. Also I think MCS was one of the organisations Gavin asked when he had a customer involved in a dispute on the TIC point.

View attachment 20935

correction - my customer contacted EST before contacting me, who then contacted MCS and potentially set this whole process in motion - well, Julian also had a situation at the same time and pretty much took over the discussions with Ofgem.

I had a feeling this would come back to bite us again at some point if we didn't nip it in the bud then.

 

[TedM]

I'm happy to follow this up with DECC via FOI if there is any more information you think will assist.

It may even be appropriate to go direct to DECC (disregarding the FOI) and attempt to start a dialogue. The FOI response I have is from a James R. Marsh who describes himself as "Policy Adviser, Feed-in Tariff team" at DECC.

 

[TedM]

These are his contact details (will save me digging through documents if I need to find it again)

[FONT=Century Gothic, serif]TelNo: 0300 068 6168
Email: [email protected][/FONT]