Content

1. Introduction
2. Definitions
3. Duties of Appeals Panel Members
4. Independence and conflicts of interest
5. Appealing to the Appeals Panel
6. Evidence before the Appeals Panel
7. Adjourning an Appeals Hearing
8. Burden and standard of proof at an Appeals Hearing
9. Appeals Hearings
10. Order of proceedings at an Appeals Hearing
11. Matters the Appeals Panel shall take into account in making an Appeals Decision
12. Matters the Appeals Panel shall take into account in relation to sanctions
13. Appeals Decisions
14. Publication and recording of Appeals Decisions
15. Taking effect of Appeals Decisions
16. Transitional Provisions

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1. Introduction

1. The Appeals Panel is an independent Panel comprised of Panel Members appointed by the Joint Protocol Signatories and convened under the Bye-Laws for the purposes of considering and deciding upon any appeals against Determinations of the Non-Compliance Panel. This includes deciding whether the Code Member's appeal should be upheld in part or in whole; or subject to fulfilment of Conditions or sanctions; or whether the appeal should be dismissed and the Determination upheld; and determining any issue as to costs, and dealing with any applications in connection with these Rules.

2. Definitions

1. The definitions used in these Rules are the same as those in the Bye-Laws. In addition the following definitions are used:

   Charge(s) the provision(s) of the Code, Bye-Laws, relevant Conditions and/or Consent Order that the Executive alleges have been breached and the acts or omissions that have given rise to the alleged breach(es).

2. In these Rules, references to Panel Members attending Appeals Hearings are references to those Panel Members appointed to the Appeals Panel and who, in each case, have been invited to and confirmed their availability to attend the Appeals Hearing in question. The requirements for the constitution of Appeals Hearings are set out in clause 17.14 of the Bye-Laws. There is no requirement for all Panel Members to attend all Appeals Hearings.

3. Duties of Appeals Panel Members

1. Panel Members shall attend Appeals Hearings for the purposes in the Bye-Laws and these Rules.
   
2. Panel Members shall at all times in the discharge of their duties:
   
   1. have regard to the best interests of the Renewable Energy Consumer Code, and the effective implementation of the Code and Bye-Laws;
      
1. act in accordance with the principles of natural justice in reaching Appeals Decisions; and
   
2. have regard to proportionality in determining any sanctions to be applied.

4. Independence and conflicts of interest

1. Appeals Panel Members shall be independent of, and may not be representatives of, Code Members, the Executive or the Board.
   
2. Where a Code Member is, or is to be, the subject of discussion at an Appeals Hearing:
   
   1. if any Panel Member (including the Chairman) is aware of any conflict of interest in his or her personal or professional position with the Code Member, then as soon as the Panel Member becomes aware of the conflict of interest he or she must declare it and ask to be replaced by another Panel Member in relation to that matter; or
      
   2. if the Code Member raises a concern in relation to a conflict of interest with a Panel Member or Panel Members (including the Chairman), the Panel Members shall as soon as reasonably practicable thereafter consider in all the circumstances whether a conflict arises and whether the Panel Member(s) in question should be required to stand aside in relation to that matter. The Panel Member(s) concerned may provide information to assist the Panel in the consideration of their position but is not entitled to vote on the matter. Following this consideration, the remaining Panel Members will determine in their absolute discretion whether the Panel Member(s) in question should be required to stand aside.
      
3. Where a Panel Member asks to be replaced or is required to stand aside in relation to that matter, the Executive shall arrange for a replacement as soon as reasonably practicable. The Chairman (or, where the Chairman is the Panel Member replaced or standing aside, the remaining Panel Members) shall decide whether an adjournment of the Appeals Hearing is necessary taking into account the requirements for constitution of Appeals Hearings in clause 17.14 of the Bye-Laws.
   
4. Where a conflict of interest is raised, a decision in accordance with this rule 4 as to whether the Panel Member in question is to be replaced or required to stand aside in relation to that matter must be made before discussions about the Code Member at the Appeals Hearing can continue or be commenced.

5. Appealing to the Appeals Panel

1. A Code Member has a right of appeal against a Determination of the Non-Compliance Panel in accordance with the procedure in clause 11 of the Bye-Laws.
   
   Notice of Appeal
   
2. An appeal shall only be accepted by the Executive if, within 14 Days of the Non-Compliance Panel issuing its Determination in writing in accordance with clause 10.11 of the Bye-Laws, the Code Member has:
   
   1. sent a written notice of appeal addressed to the Panels Secretary, Appeals Panel, with a copy to the Executive, at the address for the Renewable Energy Consumer Code published on the Website. The written notice of appeal should include a statement setting out the grounds for the Code Member’s appeal and where relevant, and subject to rule 6.2, highlight any documents already submitted to the Non-Compliance Panel on which the appeal is based. The Code Member must not include or refer to any new evidence which was not submitted to the Non-Compliance Panel;
      
   2. advised within the written notice of appeal the names and roles of the representatives who will attend the Appeals Hearing on its behalf;
      
   3. enclosed with the written notice of appeal the appeals fee of £1,500 plus VAT; and
      
   4. paid any costs ordered against it by the Non-Compliance Panel in accordance with clause 12 of the Bye-Laws, save where a stay of the costs order has been granted by the Non-Compliance Panel.
      
3. If the Code Member, within 14 Days of the Non-Compliance Panel issuing its Determination in writing in accordance with clause 10.11 of the Bye-Laws, fails to:
   
   1. send a notice of appeal which complies with these Rules and clause 11.2 of the Bye-Laws; and/or
      
   2. pay the appeals fee and applicable VAT in cleared funds; and/or
      
   3. pay any costs ordered against the Code Member by the Non-Compliance Panel in cleared funds (save where a stay of the costs order has been granted by the Non-Compliance Panel);
      the right to appeal will be lost and the Determination issued by the Non-Compliance Panel (including as to sanctions and costs) will continue in full force and effect.
      
      
Executive's Response
4. The Executive shall, no later than 15 Days after the Non-Compliance Panel has issued its Determination, verify whether the Code Member has complied with rule 5.2 and if so, shall accept the Code Member's appeal. Within 7 Days of accepting the Code Member's appeal, the Executive will:
   
   1. acknowledge acceptance of the appeal and receipt of the notice of appeal in writing to the Code Member;
      
   2. send to the Code Member the Executive's written submissions (if any) in response to the Code Member's notice of appeal, which will, where relevant and subject to rule 6.2, highlight any documents already submitted to the Non-Compliance Panel on which the Executive wishes to rely. The Executive must not include or refer to any new evidence which was not submitted to the Non-Compliance Panel;
      
   3. provide the Code Member with a copy of these Rules, the Code and the Bye-Laws either in hard or soft copy or by reference to a link on the Website; and
      
   4. mark the Determination published on the Website to specify that it is subject to appeal.
      

Code Member's Right to Reply

5. Where the Executive provides written submissions in response to the Code Member's notice of appeal, the Code Member is entitled to provide written submissions in reply. Any such written submissions in reply must be sent to the Executive within 7 Days of receipt of the Executive's written submissions in response and, subject to rule 6.2, these written submissions (if any) may highlight any further documents previously submitted to the Non-Compliance Panel on which the Code Member wishes to rely.
   
   Appeals Hearing Date
   
6. Within 7 Days of the Executive's acknowledgment of the appeal in accordance with rule 5.4 above, or as soon as practicable thereafter, the Executive will write to the Code Member to confirm:
   
   1. the names of the Panel Members forming the Appeals Panel;
      
   2. the date on which the Appeals Panel will convene to consider the appeal in an Appeals Hearing. This shall not be less than 28 Days from the date on which the Executive acknowledged the Code Member's appeal in accordance with rule 5.4, and the Code Member shall be provided with at least 14 Days' notice of the date unless the Code Member agrees to shorter notice;
      
   3. the time and location of the Appeals Hearing; and
      
   4. that a typed copy of the transcript of the Non-Compliance Panel Hearing from any recording made has been requested. A copy will be submitted to the Code Member as soon as it is completed.
      

Appeals Panel Documentation
7. At least 7 Days before the Appeals Hearing, the Executive will:
   
   1. submit the Code Member’s notice of appeal, the Executive's written submissions in response (if any), and the Code Member's written submissions in reply (if any) to the Appeals Panel; and
      
   2. provide the Appeals Panel with copies of all documentation which was before the Non-Compliance Panel which made the Determination being appealed, a copy of the Non-Compliance Panel's Determination, a copy of any transcript of the Non-Compliance Panel Hearing from any recording made, evidence that the Code Member has been notified of the Appeals Hearing in according with 5.6.2, any claims for costs made before the Non-Compliance Panel, and any correspondence between the parties.
      

Costs

8. If the Executive or the Code Member wishes to make a claim for its costs of the Appeals Hearing, they must, at least 24 hours before the Appeals Hearing, send (serve) details of the costs claimed on the other party and on the Panels Secretary, Appeals Panel, copied to the Executive. Claims for costs are governed by clause 12 of the Bye-Laws.
   
   Service of Documentation
   
9. Clause 13 of the Bye-Laws applies in relation to service of any documentation referred to in these Rules.
   
   Variation
   
10. The deadlines and procedures referred to in this rule 5 may be varied by:
    
    1. agreement between the Executive and the Code Member; or
       
    2. the Chairman of the Appeals Panel following an application from either the Executive or the Code Member. Any such application should be addressed to the Panels Secretary of the Appeals Panel, and sent to the address for the Executive on the Website, and a copy sent to the other party. Any such application shall be granted when, in the discretion of the Chairman, it is necessary in the interests of justice; or
       
    3. the Chairman acting at his sole discretion where the Chairman considers it necessary in the interests of justice.
       
11. The Chairman may make such directions as he thinks appropriate.

6. Evidence before the Appeals Panel

1. In accordance with rule 5.7, the Appeals Panel will be provided with: copies of all documentation which was before the Non-Compliance Panel, a copy of any transcript of the Non-Compliance Panel Hearing from any recording made, the Code Member's notice of appeal, the Executive's written submissions in response (if any), the Code Member's written submissions in reply (if any), , any claims for costs made before the Non-Compliance Panel, and a copy of any correspondence between the parties.
   
2. At the Appeals Hearing, the Appeals Panel will conduct a review of the Determination of the Non-Compliance Panel. The Appeals Hearing will not be a re-hearing of the case against the Code Member. Neither the Code Member nor the Executive is permitted to provide new evidence to the Appeals Panel.

7. Adjourning an Appeals Hearing

1. Prior to an Appeals Hearing, the Chairman may adjourn the Appeals Hearing if he considers it appropriate in all the circumstances to do so either of his own volition or on the application of either the Code Member or the Executive, or both.
   
2. At any stage during an Appeals Hearing the Chairman may adjourn the Appeals Hearing either on the application of the Code Member or the Executive, or of both, or of his own volition, provided the Chairman considers it appropriate in all the circumstances to do so following discussion with the other Panel Members.
   
3. Where an Appeals Hearing is adjourned until another day, the Executive will inform the Code Member in writing of the date, time and place of the resumed Appeals Hearing.
   

8. Burden and standard of proof at an Appeals Hearing

1. The burden of proof shall be on the Code Member bringing the appeal.
   
2. Where the Appeals Panel must determine issues of fact the standard of proof shall be on the balance of probabilities.
   
3. The strict rules of evidence do not apply to Appeals Hearings.
   
4. The Appeals Panel will take into account any limits on the reliability of the evidence in making its Appeals Decision and considering the appropriate weight to attach to evidence.

9. Appeal Hearings

1. If the Code Member is neither present nor represented at the Appeals Hearing, the Appeals Hearing may proceed at the discretion of the Appeals Panel, provided that the Panel Members are satisfied that the Code Member has been properly notified of the Appeals Hearing in accordance with rule 5.6 above.
   
2. The Code Member has the right to appear in person before the Panel and may, if it so wishes, be represented or accompanied by any organisation or individual of its choice or by a lawyer. The Code Member must inform the Executive of the names and roles of the representatives and/or lawyers who will attend the Appeals Hearing on its behalf in accordance with rule 5.2.2.
   
3. The Executive also has the right to appear in person and may, if it so wishes, be represented or accompanied by any organisation or individual of its choice or by a lawyer. The Executive shall confirm to the Code Member the names and roles of the representatives and/or lawyers who will be attending the Appeals Hearing on the Executive's behalf as soon as reasonably practicable but not less than 7 Days before the date of the Appeals Hearing.
   
4. The Panels Secretary will attend Appeals Hearings. The Panels Secretary will provide such assistance to the Appeals Panel as is required in preparation for, during, or after an Appeals Hearing, for example in drawing up and issuing any Appeals Decision. An independent legal assessor may also be instructed to assist the Appeals Panel if the Chairman requires it.
   
5. Whilst both the Code Member and the Executive are entitled to be represented or accompanied by a lawyer at an Appeals Hearing, the appeals process is intended to be straightforward and to enable Code Members to represent themselves without the need to incur the expense of a lawyer. The Executive will usually represent itself and will not usually instruct a lawyer unless the Code Member intends to instruct a lawyer. A legal assessor is not usually instructed unless the Code Member intends to instruct a lawyer. The Executive will inform the Code Member if it intends to instruct a lawyer to represent it at an Appeals Hearing. The Code Member is also required to inform the Executive in accordance with rule 5.2.2 if it intends to instruct a lawyer to represent it at an Appeals Hearing.
   
6. An audio recording shall be made of the Appeals Hearing unless the Appeals Panel orders otherwise. A transcript will be provided following the Appeals Hearing if requested by either party at the cost of that party.
   
7. All Appeals Hearings will be held in public. The date of the Appeals Hearing and the name of the Code Member will be published on the Website.
   
8. The Appeals Panel may in its discretion rule on any application made orally at the Appeals Hearing by the Executive or Code Member, including on whether to hear such application.

10. Order of proceedings at an Appeals Hearing

1. The order of proceedings at an Appeals Hearing shall be as follows:
   
   1. The Panel Secretary shall read out the Determination of the Non-Compliance Panel (or the parts of it which the Code Member is challenging);
      
   2. The Chairman shall ask the Code Member to detail the grounds for the appeal of the Non-Compliance Panel's Determination in accordance with clause 11.8 of the Bye-Laws, and subject to rule 6.2, to present any relevant evidence in support;
      
   3. The Chairman shall invite the Executive to present its case as to why the Non-Compliance Panel's Determination should be upheld, and, subject to rule 6.2, to present any relevant evidence in support;
      
   4. The Chairman shall then invite both parties to address the Appeals Panel further if they so wish;
      
   5. The Appeals Panel shall, in the absence of the parties, make its findings; in accordance with these rules and clause 11 of the Bye-Laws.
      
   6. The Chairman shall then reconvene the Appeals Hearing before the parties and announce the Appeals Panel’s Decision as to whether, in accordance with clause 11.9 of the Bye-Laws, the Appeals Panel has decided:
      
      1. to uphold the Code Member's appeal in whole or in part; or
         
      2. to uphold the Code Member's appeal in whole or in part subject to fulfilment of Conditions or sanctions to be stipulated by the Appeals Panel; or
         
      3. to alter the Conditions or sanctions or costs imposed by the Non-Compliance Panel; or
         
      4. to dismiss the Code Member's appeal and uphold the Determination of the Non-Compliance Panel.
         
   7. The Chairman shall also announce the Appeals Panel's Decision as to costs of the appeal, in accordance with clause 12 of the Bye-Laws.
      
   8. If the Appeals Panel allows the Code Member's appeal in part the Chairman must explain to the Code Member which part of its appeal has been successful and which of the Charges are being upheld (if any), and any related sanctions for these Charges.
      
   9. If the Appeals Panel allows the Code Member's appeal subject to fulfilment of Conditions or sanctions, the Chairman shall stipulate the Conditions required (including the timeframe for their fulfilment) or sanctions (including the timeframe, if any, for compliance with each sanction).
      
2. If there is insufficient time to complete all the steps in rule 10.1 on the day of the Appeals Hearing, or if the Chairman considers it appropriate following an application from one or both of the parties, the Chairman may adjourn the Appeals Hearing, and direct that any remaining steps be completed via written submissions and specify the deadline by which any such written submissions shall be due.
   
3. Any evidence or submissions in relation to the Code Member's appeal referred to in these Rules as being presented or made by the Executive or by the Code Member may alternatively be made by a representative appearing on the Executive or Code Member's behalf in accordance with rules 9.2 or 9.3.

11. Matters the Appeals Panel shall take into account in making an Appeals Decision

1. The Appeals Panel will take the following matters into account in its Appeals Decision, depending upon the Code Member’s reasons for disputing the Non-Compliance Panel's Determination and the evidence it provides:
   
   1. the conduct of the Code Member as recorded in the Determination; and
      
   2. substantive issues such as whether the Code Member and the Executive complied with the procedures in the Bye-Laws in relation to the matters under consideration;
      
   3. proportionality in relation to any sanctions imposed by the Non-Compliance Panel; and/or
      
   4. the fairness and reasonableness in the circumstances of any costs imposed.
      
2. In addition to the matters in the Bye-Laws, in reaching an Appeals Decision, the Appeals Panel shall take into account each matter raised in:
   
   1. the written submissions provided to it (if any), by the Executive and by the Code Member;
      
   2. any documentation that was before the Non-Compliance Panel that was relied upon by the Executive or the Code Member in relation to the appeal;
      
   3. oral submissions made by the Executive and by the Code Member (if applicable);
      
   4. any further discussions that have taken place at the Appeals Hearing (if any); and
      
   5. any mitigating or aggravating circumstances.
      
3. Where the Appeals Panel is required to decide an issue:
   
   1. the matter shall be put to a vote;
      
   2. no Panel Member shall be allowed to abstain; and
      
   3. the matter shall be decided by a simple majority.
      
4. An appeal will only be upheld if it is found by the Appeals Panel on the balance of probabilities that:
   
   1. the Non-Compliance Panel’s Determination or part thereof was irrational, and/or based on a fundamental error of fact and/or based on a clear misinterpretation of the Code or the Bye-Laws; and/or
      
   2. there has been a serious procedural irregularity; and/or
      
   3. the sanction(s) imposed are not in reasonable proportion to the findings made by the Non-Compliance Panel; and/or
      
   4. the costs imposed (if any) were not fair and reasonable in the circumstances.

12. Matters the Appeals Panel shall take into account in relation to sanctions

1. The sanctions available to the Appeals Panel are the same as those available to the Non-Compliance Panel as set out in the Bye-Laws. The Appeals Panel will consider all available sanctions in any particular case. In determining if additional or varied sanctions should be imposed, or whether the sanctions imposed by the Non-Compliance Panel should be amended or removed, the Appeals Panel should consider the following:
   1. the seriousness of the breach(es) of the Code, Bye-Laws, Conditions, and/or Consent Order;
      
   2. the duration, frequency or number of the breach(es);
      
   3. the impact on Consumer(s);
      
   4. whether the breach(es) demonstrate serious or systemic weaknesses in the Code Member's business model which adversely affect, or could adversely affect, Consumers;
      
   5. any effect or potential effect on public confidence in the small-scale renewable heat and power industry and/or the Code as a result of the breach(es);
      
   6. whether the Code Member has benefited from its breach(es) to the detriment of Consumers;
      
   7. any remedial steps taken by the Code Member to address the breach(es) including their promptness;
      
   8. the Code Member's previous disciplinary record (if any) either as a Code Member or as a member of any other CTSI approved code; and
      
   9. any other matters the Chairman may, in his discretion, consider appropriate.

13. Appeals Decisions

1. The Appeals Panel (or the Panels Secretary on its behalf) shall issue its Appeals Decision by written notice to the Code Member and the Executive as soon as practicable following the Appeals Hearing, and within 14 Days, subject to the need for the Chairman to direct any written submissions under clause 10.2 in which circumstances the Appeals Panel shall issue its Appeals Decision within 14 days of the deadline for written submissions set by the Chairman.
   
2. If the Appeals Panel dismisses the Code Member's appeal and upholds the Determination of the Non-Compliance Panel, the sanctions imposed by the Non-Compliance Panel, and any costs order which has been stayed by the Non-Compliance Panel, will come into immediate effect on the sooner of the Appeals Panel announcing its Appeals Decision in accordance with rules 10.1.6 and 10.1.7 or the Appeals Panel issuing its written Appeals Decision in accordance with rule 13.1. Where the appeal is dismissed, the Appeals Panel will not remove, alter or amend the sanctions or Conditions or costs ordered by the Non-Compliance Panel in its Determination, and will not impose additional sanctions or Conditions, although the Appeals Panel will be entitled to award costs of the appeal in accordance with clause 12 of the Bye-Laws.
   
3. If the Appeals Panel upholds the Code Member's appeal in whole or in part only, it may modify the sanctions and/or costs imposed by the Non-Compliance Panel and it may also impose new sanctions or Conditions or costs, provided that the Appeals Panel does this in accordance with clauses 10.15 – 10.21 and 12 of the Bye-Laws.

14. Publication and recording of Appeals Decisions

1. Decisions of the Appeals Panel will be published on the Website and recorded on the Executive's database unless the Appeals Panel orders otherwise.
   
2. The Executive will amend the marking of the Determination of the Non-Compliance Panel which had been subject to appeal published on the Website to remove reference to it being subject to appeal. Where the appeal was upheld in whole or in part, the Executive will mark the Determination accordingly on the Website. .

15. Taking effect of Appeals Decisions

1. Once issued in writing or, if sooner, announced by the Chairman at an Appeals Hearing, all Decisions of the Appeals Panel shall take immediate effect unless the Appeals Panel directs otherwise.
   
2. The Code Member will not have any right of appeal against an Appeals Decision, which shall be final and binding.

16. Transitional Provisions

1. These Rules come into effect on the date on which they are published on the Website.
   
2. The version of the Code that applies to any disciplinary matter being considered by the Appeals Panel shall be the version of the Code in force at the date to which the Charge(s) relate.
   
3. The version of the Bye-Laws or these Rules which applies to any disciplinary matter being considered by the Appeals Panel shall be the version in force at the date on which the Executive notifies the Code Member of its decision to invoke non-compliance action as part of the disciplinary procedure pursuant to clause 9.1 of the Bye-Laws, save that in determining an appeal regarding any Charge as to a breach of the Bye-Laws, the applicable Bye-Laws will be the Bye-Laws in force at the date to which the Charge relates.