Is Ofgem institutionally prejudiced?

Challenger Symbio Energy highlights possible Ofgem of Institutional Prejudice and Abuse of Powers.

Symbio Energy believes in the concept of Low & Fair Prices for Electricity. With this idea, since March 2019, Symbio Energy started offering the UK with the Lowest Priced Electricity Tariffs to all Households and Businesses. Symbio Energy works with its customers and communities to educate climate and social issues faced throughout the globe. As a challenger supplier, Symbio Energy has stayed ahead of its competitors by automating their processes and taking advantage of emerging technologies to offer low prices.

Symbio Energy has successfully powered over 40,000 customers within the UK, both domestic and non-domestic, by providing the Lowest Priced Electricity across the country. Their customer base has significantly grown as the UK citizens have realised that the Big 6 companies (British Gas etc) overcharge with default tariffs and penalise loyalty.

There is public conjecture about Ofgem’s notice of threatening Symbio Energywith £100,000 fine over late payments to renewable energy schemes. In the interest of openness and transparency, Symbio Energy would like to set the record straight.

As an Energy Supplier in the UK, Symbio Energy is obligated by Ofgem to collect and contribute towards decarbonisation via the Renewable Obligation Certificate (ROC) scheme.

Renewable Obligation Certificates (ROCs) are certificates issued to operators of accredited renewable generating stations (solar and wind farms etc.) for the eligible renewable electricity they generate. Suppliers have to purchase sufficient ROCs to demonstrate that they have met their obligation to decarbonisation. Each supplier participating in the Renewable Obligation (RO) scheme must make an annual payment to Ofgem regarding its RO commitments. The final deadline for this payment is 31st October. In the absence of a payment being made, Ofgem publishes specific notices on its website to identify suppliers who have failed to meet their RO obligations.

The primary date of payment is the 31st of August of each year, with legislation allowing for payment to be legally deferred until 31st October of each year subject to interest being levied on the amount owed. Over 12 companies chose to delay until 31st October 2020 including UK energy companies such as Flow Energy Limited, MA Energy Limited, Nabuh Energy Limited; Robin Hood Energy Limited including Symbio Energy, were issued with notices that declared that these companies would likely not pay their debt. This is despite Symbio providing evidence to the contrary.

Symbio Energy had written to Ofgem prior to August 31st 2020, that Symbio would pay by the 10th November 2020, 10 days after the final designated date. The delay being directly attributable to COVID 19 and the decision by the UK government to offer payment relief to customers. Despite this Ofgem continued to issue publicly damaging notices as opposed to offering support. Symbio Energy requested information as to the metrics or rationale applied by Ofgem. This request was denied with Ofgem stating was a discretionary power. In other words, they are unaccountable for their decisions. Payment of the RO including interest was made by Symbio Energy on the 10th November 2020 as initially indicated – that too was only 15% of the total liability that was remaining to pay. Prior to this 85% had already been paid. This was only 10 days late but given Ofgem had issued directions to UK suppliers not to chase customers for debt due to COVID 19, one would expect the same to be entirely understandable.

In March 2020, as per the Ofgem guidelines, with the advent of the global pandemic in March 2020, the Secretary of State for Business and Energy acknowledged the situation. They released a statement supporting the UK citizens going through financial difficulties and assured that the government would continue to supply energy during these difficult times. Hence energy companies were advised not to chase the customers who could not pay for the electricity they consumed. It is logical and entirely appropriate that similar grace should be afforded to energy suppliers in their payments. Instead, in breach of their mandate as a regulator, they chose to penalise Symbio.

Logically, if you ask suppliers not to chase payment, they will face problems with their own payments to the government. Ofgem could and should have sensibly allowed a similar grace period. Instead, they chose to publicly attack a small supplier using discretionary powers. In a stage of global crisis, Ofgem would rather focus on fining a small supplier rather than help?

In January 2021, Ofgem decided to publicly investigate Symbio for late payments amounting to no more than a month in total compared with the 5-month moratorium they had afforded the UK public. As a result, Symbio Energy has filed an appeal against Ofgem’s actions and proposed penalty. It has been noticed that Ofgem is not in favour of helping the small energy players within the UK, thus causing a trend for smaller companies to dissolve or cease to operate or in the alternate as Symbio Energy has sought accountability from the regulator, there is overt abuse of powers to force Symbio Energy out of the market.

Is Ofgem the Last Bastion of Institutional Racism?

Under the Freedom of Information (FOI) Act 2000, Symbio Energy had mrequested information detailing senior management appointments within Ofgem from the BAME & LGBTQ+ communities. Upon contact, Ofgem informed Symbio Energy that due to Commercial or Industrial Information Confidentiality, they do not hold such information and cannot provide the same. As per FOI, only two people from the LGBTQ+ community have ever held senior positions at Ofgem in the past twenty years. Is this something they should be proud of?

There are only two companies in the UK in the last 20 years that are run by or owned by BAME/LGBTQ+ parties including Symbio Energy. There is no proportionate representation in senior positions within Ofgem. Is there unconscious bias? The UK government has quite rightly declared their government is the most culturally diverse. Ofgem, the regulator does not reflect this, and their actions are at best open to enquiry.

Transparency is the best method of preventing injustice. If Symbio Energy is wrong then Ofgem will have no issue with internal reflection but if we are right and there are structural deficiencies in the regulator, they need addressing. Unaccountability of power results in abuse of power and Symbio is unequivocally stating Ofgem is abusing its powers as a regulator. To the independent reader, the action of the regulator is unreasonable at best.

The full unfiltered FOI report can be viewed herein.

Request for information under Environmental Information Regulations 2004(“EIR”) and Freedom of Information Act 2000 (“FOIA”)

Thank you for your email of 1 October 2020 in which you requested the following information:

  • detailed minutes both under GDPR subject matter rules and the legal entitlement for the minutes of the Enforcement [Decision] Panel and the documentation from the enforcement [case] team with respect to Symbio Energy.
  • terms of extension provided to Robin Hood Energy Limited and Bristol Energy in Ofgem acceptance of extension of RO beyond 31st October 2017, 2018 and 2019 RO obligations and the decisions by Ofgem to grant
  • Can you detail the number of UK energy suppliers or generators whose shareholding or Directorship is from a BAME & LBGQT+ background within the last 20 years please.
  • Can you confirm the number of people from BAME & LBGQT+ backgrounds who work within Ofgem in the Enforcement Division including the Enforcement Panel. Could you detail have many candidates have held posts at any time over the last 20 years please
  • Could you detail the total number of BAME & LBGQT+ backgrounds who have worked within Ofgem in total within the last 20
  • Could you detail the total number of BAME and LBGQT+ candidates who have been Directors of Ofgem within the last 20 years and in what capacity

We have considered questions 1 and 2 under the EIR as they relate to environmental information and questions 3 to 6 under FOIA.

We can disclose some, but not all, of the requested information to you.

The Office of Gas and Electricity Markets

10 South Colonnade, Canary Wharf, London, E14 4PU Tel 020 7901 7000

www.ofgem.gov.uk

Disclosure

We have addressed each part of your request below under the relevant applicable legislation:

1)    “detailed minutes both under GDPR subject matter rules and the legal entitlement for the minutes of the Enforcement [Decision] Panel and the documentation from the enforcement [case] team with respect to Symbio Energy.”

  • “the terms of extensions provided to Robin Hood Energy Limited and Bristol Energy in Ofgem acceptance of extension of RO beyond 31st October 2017, 2018 and 2019 RO obligations and the decisions by Ofgem to grant ” 

In making this request you have cited, ‘GDPR subject matter rules and legal entitlement’.

The General Data Protection Regulation (“GDPR”) does not apply to this request, as subject access requests can be made only by individuals for personal information held about themselves. As a company, the GDPR does not apply to Symbio’s request.

We hold information you have requested, but we have decided we are unable to disclose to you the information requested under questions 1 and 2.

The information that you requested is subject to a number of exceptions under the EIR.

  1. Regulation 12(4)(e) states:

“(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—

(e) the request involves the disclosure of internal communications.”

Some of the information requested relates to internal communications and we consider this exception to be applicable. However, the Authority has published a Notice of proposal to issue a final order against Symbio that sets out the EDP decision and the rationale for that decision.1

In addition, we held a conference call with you on 30 September 2020 during which we gave you some details of the decision making process of the EDP and the rationale for the decision. We followed this up by supplying you with a note of the conference call.

  1. Regulation 12(5)(b) states:

“(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—

(b) the course of justice, the ability of a person to receive a fair trial

or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;”

  • Regulation 12(5)(e) states:

“(e) the confidentiality of commercial or industrial information where such

confidentiality is provided by law to protect a legitimate economic interest;”

Some of the information requested relates to or includes commercial information of other energy companies. Confidentiality is provided by section 105 of the Utilities Act 2000, which provides that information obtained by the Authority in carrying out its statutory functions may not be disclosed except in specific circumstances, none of which apply in this case.
https://www.ofgem.gov.uk/system/files/docs/2020/10/notice_of_proposal_to_issue_a_final_order_-_symbio_01_october_2020.pdf

We advised previously, in an email of 1 October 2020, that the Authority has no discretion or jurisdiction to grant any extensions beyond the statutory deadlines, as the deadlines for payment in respect of the Renewables Obligation are set out in legislation.

You will note from the published Notice of decision not to make a final order on Robin Hood Energy Limited (Robin Hood), dated 29 October 2019 that Robin Hood discharged its obligation under the Renewables Obligation by making the full payment of its outstanding balance before the 31 October 2019 deadline.2

The factors we considered in deciding where the public interest lay are shown in the table below:

Factors in favour of disclosure Factors in favour of withholding the information
Enhances transparency about the way that the Authority works Disclosure would adversely affect the ability of the Authority to conduct an inquiry of a disciplinary nature
Disclosure would prejudice the ability of the EDP to carry out enforcement investigations
Disclosure would prejudice the outcome of investigations and the decision making process
Disclosure would adversely affect legitimate economic interests of third parties

 

We consider that the balance does not lie in favour of disclosure of the information sought.

3)  “Can you detail the number of UK energy suppliers or generators whose shareholding or Directorship is from a BAME & LBGQT+ background within the last 20 years please.”

Ofgem does not hold this information.

4)  “Can you confirm the number of people from BAME & LBGQT+ backgrounds who work within Ofgem in the Enforcement Division including the Enforcement Panel. Could you detail have many candidates have held posts at any time over the last 20 years please.”

We do not hold this information in full as data on the ethnicity and sexual orientation of Ofgem staff is collected on a voluntary basis and we have not routinely asked for this information over the full 20 years. Furthermore, restructuring of the Enforcement Division over the years will have had an effect on the data.

Of the staff that have disclosed this information, who work or have worked within in the Enforcement Division, including the Enforcement Panel and for whom we hold this information, in total over the last 20 years:

BAME: 15

LBGQT+: 4

2 https://www.ofgem.gov.uk/system/files/docs/2019/10/robin_hood_-_decision_not_to_make_a_fo.pdf

5)  “Could you detail the total number of BAME & LBGQT+ backgrounds who have worked within Ofgem in total within the last 20 years.”

We do not hold this information in full as data on the ethnicity and sexual orientation of Ofgem staff is collected on a voluntary basis and we have not routinely asked for this information over the full 20 years.

Of the staff that have revealed this information and for whom we hold this information, who work or have worked within Ofgem in total over the last 20 years:

BAME: 659

LBGQT+: 64

6)  “Could you detail the total number of BAME and LBGQT+ candidates who have been Directors of Ofgem within the last 20 years and in what capacity please.”

We do not hold this information in full as data on the ethnicity and sexual orientation of Ofgem staff is collected on a voluntary basis and we have not routinely asked for this information over the full 20 years.

Of the staff that have revealed this information and for whom we hold this information, who have been Directors of Ofgem within the last 20 years:

BAME: 7

LBGQT+: 2

We cannot provide further information in regards to their capacity as this would reveal identifying information about specific members of staff. In withholding information requested in this part of your question, we consider s.40(2) FOIA is engaged.

Section 40(2) exempts personal information from disclosure if that information relates to someone other than the applicant, and if disclosure of that information would, amongst other things, contravene one of the data protection principles in Article 5(1) of the General Data Protection Regulations and section 34(1) of the Data Protection Act 2018.

In this case, we believe disclosure would contravene the first data protection principle, which provides that processing of personal data is lawful and fair. We have considered the legitimate interests of all parties in disclosure of this information and have found that, on balance, there is not an overriding legitimate interest in disclosure that outweighs the reasonable expectations of privacy of the individual(s) concerned.

Section 40(2) is an absolute exemption and Ofgem is not obliged to consider whether the public interest favours disclosing the information.

Representations and reconsideration

If you are dissatisfied with the handling of your requests, you have the right:

  1. Under the EIR, to make representations in respect of the environmental information Under regulation 11(2) of the EIR, you must make representations no later than 40 working days after the date of this letter.
  2. Under FOIA, to ask for an internal review of the requests for information that do not fall under the Your request for an internal review should be submitted within two months of the date of this letter.

If you propose to make any such representations and/or request an internal review, please contact us at information.rights@ofgem.gov.uk or by writing to us at 10 South Colonnade, Canary Wharf, London E14 4PU.

If you are not content with the outcome of the reconsideration and/or internal review, you have the right to apply directly to the Information Commissioner for a decision.

You may contact the Information Commissioner at: Information Commissioner’s Office

Wycliffe House,
Water Lane, Wilmslow, Cheshire SK9 5AF
https://www.ico.org.uk/

Please remember to quote the reference number above in any future communications. Yours sincerely,

Emily Hardisty

Information Rights and Correspondence Manager

PR Fire 10 Broomfield Lane, Hale,
Altrincham, Cheshire, WA15 9AQ