Daniel Farmiloe v Gas and Electricity Markets Authority

Under the Domestic Renewable Heat Incentive Scheme, Ofgem’s powers before accreditation extend beyond checking the plant itself. They include a sufficiently broad power to obtain information and conduct a site inspection addressing the accuracy of an Energy Performance Certificate where that information is relevant to subsidy entitlement.

The duty to accredit does not arise merely because the application documents have been submitted and the plant appears eligible. Ofgem may first gather information and decide whether accreditation conditions are required. A legitimate expectation based on a statutory interpretation requires a representation that is clear, unambiguous and devoid of relevant qualification.

The claimant sought judicial review of Ofgem’s decision to require a further site inspection of his property in connection with his application for accreditation under the Domestic Renewable Heat Incentive Scheme. He also challenged Ofgem’s continuing failure to accredit the ground source heat pump installation.

The claimant argued that the inspection power was confined to the plant and that Ofgem had to accredit once the specified application and eligibility requirements were met. He also relied on proportionality, legitimate expectation and procedural grounds. The claim followed an earlier judicial review concerning the same application, in which Lang J rejected materially similar arguments: R (Farmiloe) v Secretary of State for Business, Energy and Industrial Strategy [2019] EWHC 2981 (Admin).

1. Claim dismissed. The claimant’s challenges to the site inspection and the failure to accredit were rejected.
2. The claimant was bound by the earlier decision on materially identical issues through issue estoppel. Independently, a High Court judge was required to follow another High Court judge’s decision unless convinced that it was wrong. The court considered the earlier reasoning correct and persuasive: R v HM Coroner for Greater Manchester ex p. Tal [1985] QB 67 (paras [22], [30]).
3. Read as a whole, the 2014 Regulations conferred powers enabling Ofgem to check information supporting an application and obtain further information where required. The purpose of the scheme, including protection of substantial public expenditure, supported a broad construction of regulation 18(2). That provision permitted a site inspection directed not only to the plant but also to the accuracy of the annual heat-demand figure in the EPC (paras [23]-[26]).
4. The discrepancy between the two EPCs, including the apparently surprising higher heat-demand figure after installation of the more responsive system, provided a proper basis for the inspection. Ofgem therefore exercised its power for a proper statutory purpose. The post-accreditation entry powers in regulation 56 did not constrain the pre-accreditation powers (paras [25]-[28]).
5. The power in regulation 20 to impose conditions showed that accreditation was not a binary decision. Regulation 21 did not impose an absolute duty to accredit merely because the application documents were submitted and the plant met the eligibility criteria. Ofgem could gather information before deciding whether accreditation or conditions were appropriate (paras [24], [31]-[33]).
6. The legitimate-expectation ground failed because there was no representation supporting the claimant’s interpretation of regulation 21. Any such representation would have needed to be clear, unambiguous and devoid of relevant qualification, applying R (Donald) v Secretary of State for the Home Department [2024] EWHC 1492 (Admin) (para [34]).
7. The proportionality issues under Article 8 and Article 1 of Protocol 1 were unnecessary to decide because of the claimant’s concessions. In any event, any interference would have been lawful and proportionate to the legitimate aim of ensuring that public subsidies were limited to those provided for by law (paras [29], [33]).

The judgment itself is a first-instance judicial review decision. It records an earlier judicial review concerning the same accreditation application, in which Lang J dismissed the substantive challenge in R (Farmiloe) v Secretary of State for Business, Energy and Industrial Strategy [2019] EWHC 2981 (Admin), after a procedural concession.