Getting an order from Ofgem
If you think a supplier or transporter may be in breach of an enforcement matter, contact Citizens Advice consumer service or Consumer Scotland in the first instance. Ofgem may investigate a breach and has a duty to consider information supplied by consumer advocacy bodies.1s25 CEARA 2007 If satisfied that there has been a breach, and that supplier should have co-operated, Ofgem (supporting the Gas and Electricity Markets Authority (GEMA)) may make either a ‘provisional order’ or ‘final order’. Making a provisional order is quicker than a final order, so you should press for the former.2Sch 3 EA 2023 Ofgem has powers to obtain compensation on your behalf and must consider this when making a final order. In deciding the form of final order and compensation available, Ofgem is required to consider whether you are likely to sustain loss or damage while waiting for the order to be made.3s25(3) EA 1989 Ofgem cannot make an order if:
•it thinks that its general duties laid down by the Acts do not allow it; or
•the breaches in question are trivial; or
•it is satisfied that the supplier or transporter has agreed to, and is taking all steps necessary to, comply with its obligations.
Ofgem possesses powers to extend the range of energy industry functions and activities that it may regulate and licence, including the activities of third parties (eg, consumer switching sites) subject to approval by the Secretary of State and a resolution of the House of Commons.4s143 EA 2013 Ofgem must tell you if it decides not to make an order. In deciding whether to make an order, Ofgem must take into account, in particular, your lack of other remedies and the loss or damage which you might suffer during the consultation period, which has to take place before a final order is made. If you would otherwise be without a supply, a provisional order will normally be appropriate.
If a provisional order is made and complied with, Ofgem only confirms it as a final order if further breaches are likely to occur.
Before making a final order or confirming a provisional order, Ofgem must serve you and the supplier/transporter with a copy of the proposed order and allow 28 days for representations. If it wants to modify the original proposal, Ofgem must either get the consent of the supplier/transporter or serve copies and allow a further 28 days. A similar procedure must be followed to revoke a final order.
Ofgem must also comply with the ordinary legal rules about natural justice which govern public or government organisations (see here). In one case, a decision by Ofgas, a former gas regulator, was quashed by the High Court because it did not tell a consumer that it had interviewed an important witness, nor did it give the consumer a chance to reply to what the witness had said.5R v Director-General of Gas Supply ex parte Smith CO/1398/88, 31 July 1989, unreported (QBD) You are entitled to a copy of any order when it is made.
A supplier/transporter can appeal to the High Court (Court of Session in Scotland) against the making of an order. Although you would not necessarily be directly involved, you can be added as a third party – this is a technical procedure for which you need to get legal advice.
The supplier has a duty to obey any order. This means you can sue for a breach of statutory duty if Ofgem does not enforce its own order. Ofgem can also enforce its orders by ordinary civil action against the supplier/transporter, which would be easier and cheaper for you, if you cannot obtain legal aid funding to do this yourself (see here). Each case is decided on its merits. Cases rarely, if ever, reach this stage because suppliers want to avoid formal (and public) action.
Determinations by Ofgem are final, and once a determination has been made you cannot sue a supplier or transporter over the same matters.