Content

1. Introduction
2. Definitions
3. Duties of Non-Compliance Panel Members
4. Independence and conflicts of interest
5. Non-Compliance Panel Meetings
6. Referral to a Non-Compliance Panel Hearing
7. Adjourning a Hearing
8. Non-Compliance Panel Hearing
9. Burden and standard of proof
10. Order of proceedings at Non-Compliance Panel Hearing
11. Determinations of the Non-Compliance Panel
12. Matters the Non-Compliance Panel shall take into account in making a Determination
13. Matters the Non-Compliance Panel shall take into account in determining sanction
14. Publication and recording of Determinations
15. Taking effect of Determinations

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1. Introduction

1. The Non-Compliance 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:
1. considering and deciding upon disciplinary matters where a Code Member is suspected of failing to comply with the Code, Bye-Laws, Conditions and/or a Consent Order;
2. deciding whether a Code Member has committed a breach of the Code, Bye-Laws, relevant Conditions and/or a Consent Order; and
3. if the Code Member is held to have committed a breach, deciding upon the appropriate sanction (if any) and/or costs order (if any) in accordance with the disciplinary procedures set out in the Bye Laws and these Rules.

2. Definitions

1. The definitions used in these Rules are the same as those in the Bye-Laws. In addition the following definition is 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 Non-Compliance Panel Meetings and/or Hearings are references to those Panel Members appointed to the Non-Compliance Panel and who, in each case, have been invited to and confirmed their availability to attend the Meeting or Hearing in question. The requirements for the constitution of Non-Compliance Panel Meetings and Hearings are set out in clauses 17.10 and 17.11 of the Bye-Laws. There is no requirement for all Panel Members to attend all Meetings or Hearings.

3. Duties of Non-Compliance Panel Members

1. Panel Members shall attend Non-Compliance Panel Meetings and 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;
2. act in accordance with the principles of natural justice in reaching Determinations; and
3. have regard to proportionality in determining any sanctions to be applied.

4. Independence and conflicts of interest

1. Non-Compliance 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 a Non-Compliance Panel Meeting or disciplinary proceedings at a 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 convene a Non-Compliance Panel Meeting to 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 or to be counted as part of the quorum for the Meeting. 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 Non-Compliance Panel Meeting or Hearing is necessary taking into account the requirements for constitution of Non-Compliance Panel Meetings and Hearings in clauses 17.10 and 17.11 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 Non-Compliance Panel Meeting or disciplinary proceedings against the Code Member at the Hearing can continue or be commenced.

5. Non-Compliance Panel Meetings

1. The Executive or the Chairman of the Non-Compliance Panel may convene a Non-Compliance Panel Meeting in order for the Non-Compliance Panel to consider any matters that may be required in accordance with the Bye-Laws or these Rules, for example to consider draft amendments to these Rules or to deal with any applications which are not made during a Hearing.
2. The Chairman of the Non-Compliance Panel may adjourn a Non-Compliance Panel Meeting, and instruct the Executive to take such steps as are necessary for a Non-Compliance Panel Meeting to be adjourned.
3. Non-Compliance Panel Meetings may be in person or by conference call or may make use of other communications technology.
4. Neither the Executive nor any Code Member may attend or be represented at a Non-Compliance Panel Meeting (or the relevant part of that Meeting) at which disciplinary matters or non-compliance action relating to any specific Code Member(s) is being discussed. The Executive (or any other person or entity) may attend any Non-Compliance Panel Meeting or part thereof only if invited to do so by the Non-Compliance Panel, for example, in order to discuss proposed alterations to the Bye-Laws, these Rules or other applicable procedures or related issues.
5. The Panel Secretary will attend Non-Compliance Panel Meetings to provide such assistance to the Non-Compliance Panel as is required.

6. Referral to a Non-Compliance Panel Hearing

1. The Executive may convene a Hearing in the circumstances referred to in clause 10.6 of the Bye-Laws.
2. Where the Executive has convened a Hearing in accordance with clause 10.6 of the Bye-Laws, the Chairman may if he thinks it appropriate and in accordance with the Bye-Laws or these Rules:  
1. adjourn that Hearing, and may instruct the Executive or the Panels Secretariat to adjourn that Hearing, and/or
2. convene any further or other Hearing required, for example following an adjournment or in the circumstances described in the Bye-Laws and these Rules.
3. Once instructed to do so, or in the circumstances set out by the Bye-Laws, the Executive or the Panels Secretariat shall fix (or cooperate to fix) the date, time and place for the Hearing. Whether or not a Hearing is urgent and should be arranged on less than 21 Days' notice to the Code Member shall be determined by the Chairman taking into account all the circumstances. If the Chairman determines that a Hearing is urgent, he will direct alternative deadlines to those set out in this rule 6.
4. Once the date, time and place are fixed, the Executive will write to the Code Member to:
1. set out the Charges, being the provision(s) of the Code, Bye-Laws, Conditions and/or Consent Order that it alleges have been breached and the acts or omissions that have given rise to the alleged breach(es);
   
2. give the Code Member notice of the Hearing which shall not, save in urgent cases, be less than 21 Days from the date of the notification;
   
3. inform the Code Member of the date, time and place of the Hearing (if it has not been possible to finalise the exact venue details, notice will still be effective if it gives sufficient notice of the place, for example "central London", provided exact venue details are notified to the Code Member at least 24 hours before the Hearing);
   
4. provide the Code Member with a copy of these Rules, the Code and the Bye-Laws (together with any previous versions which are applicable pursuant to rule 16) either in hard or soft copy or by reference to a link on the Website;
   
5. provide the Code Member with a list and a copy of all documents, on which it intends to rely when presenting its case;
   
6. inform the Code Member of its right of response and the deadline for this response in accordance with rule 6.5;
   
7. request the Code Member to confirm the names and roles of those people who will be attending the Hearing on its behalf, and the names and roles of anyone they intend to give oral witness evidence on its behalf, and to provide this confirmation at least 14 Days before the Hearing;
   
8. subject to rule 6.4.9, confirm the names and roles of those people who will be attending the Hearing on the Executive's behalf, and the names and roles of anyone the Executive intends to ask to give oral witness evidence on its behalf; and
   
9. either inform the Code Member that the Executive intends to represent itself, and request the Code Member to confirm if it intends to instruct a lawyer (in which case the Executive will also reserve the right to do so and will notify the Code Member of the lawyer's details in accordance with rule 6.6.3), or inform the Code Member that the Executive intends to instruct a lawyer to represent it. .
5. The Code Member is entitled to submit a response to the Executive's submission in accordance with rule 6.4. Any such response must be in writing and should include a list of the documents on which the Code Member intends to rely when presenting its case and a copy of any documents not already provided by the Executive in accordance with rule 6.4.5. This response (if any), together with confirmation of the names and roles of those people attending the Hearing in accordance with rule 6.4.7 and/or 6.4.9, must be submitted to the Executive at least 14 Days before the Hearing.
6. At least 7 Days before the Hearing the Executive:
1. may provide to the Code Member a written response and additional documentation/evidence (if any) in response to the Code Member's submission submitted in accordance with 6.5;
   
2. shall provide to the Panel Members and the Panel Secretary attending the Hearing all the documentation and submissions provided to or by the Code Member in accordance with this rule 6. The Non-Compliance Panel shall only receive information or documentation that has also been provided to or by the Code Member; and
   
3. shall confirm to the Code Member the name of any lawyer instructed by the Executive to attend the Hearing, where this has not already been confirmed in accordance with rule 6.4.
7. If new evidence comes to the Executive's attention, or (further) Complaints about a Code Member are referred to the Executive after the date of the Executive's communication to the Code Member setting out the Charges in accordance with rule 6.4, the Executive may seek the consent of the Code Member for such further evidence or Complaints to be submitted for consideration at the Hearing. Should the Code Member refuse to consent or fail to respond to the Executive, the Executive may apply to the Chairman for permission for such further evidence or Complaints to be submitted for consideration at the Hearing. The Executive may also apply to the Chairman for any adjournment it considers necessary. The Chairman will grant any such application(s) when in his discretion he considers this to be necessary in the interests of justice. The Chairman may make such other directions as he thinks appropriate.
8. If the Executive or the Code Member wishes to make a claim for its costs at the Hearing, at least 24 hours before the Hearing they must send (serve) details of the costs claimed on the other party, and provide a copy to the Non-Compliance Panel at the Hearing. Claims for costs are governed by clause 12 of the Bye-Laws.
9. Clause 13 of the Bye-Laws applies in relation to service of any documentation referred to in these Rules.
10. The deadlines and procedures referred to in this rule 6 may be varied by:
1. agreement between the Executive and the Code Member; or
   
2. the Chairman following an application from either the Executive or the Code Member. Any such application should be addressed to the Panels Secretariat of the Non-Compliance 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.

7. Adjourning a Hearing

1. Prior to a Hearing, the Chairman may adjourn the 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 a Hearing the Chairman may adjourn the 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 a Hearing is adjourned until another day, the Executive will inform the Code Member in writing of the date, time and place of the resumed Hearing.

8. Non-Compliance Panel Hearing

1. If the Code Member whose case is being considered by a Hearing is neither present nor represented at the Hearing, the Hearing may proceed at the discretion of the Non-Compliance Panel, provided that the Panel Members are satisfied that the Code Member has been properly notified of the Hearing in accordance with rules 6.4 or 7.3 above.
   
2. The Code Member whose case is being considered at a Hearing has the right to appear in person before the Panel or may, if it so wishes, be represented or accompanied by any organisation or individual of its choice or by a lawyer.
   
3. The Executive also has the right to appear in person at the Hearing and may, if it so wishes, be represented or accompanied by any organisation or individual of its choice or by a lawyer.
   
4. The Panels Secretariat will attend Hearings. The Panels Secretariat will provide such assistance to the Non-Compliance Panel as is required in preparation for, during, or after a Hearing, for example in drawing up and issuing any Determination. An independent legal assessor may also be instructed to assist the Non-Compliance 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, the non-compliance 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 in accordance with rule 6.4 or 6.6 if it intends to instruct a lawyer to represent it. The Code Member is also required to inform the Executive in accordance with rule 6.5 if it intends to instruct a lawyer to represent it.
   
6. An audio recording shall be made of the Hearing unless the Non-Compliance Panel orders otherwise. A transcript will be provided following the Hearing if requested by either party at the cost of that party.
   
7. All Hearings will be held in public. The date of the Hearing and the name of the Code Member will be published on the Website.
   
8. The Non-Compliance Panel may in its discretion rule on any application made orally at the Hearing by the Executive or Code Member, including on whether to hear such application.

9. Burden and standard of proof and evidence

1. The burden of proof shall be on the Executive.
   
2. Where the Non-Compliance 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 Non-Compliance Panel Hearings.
   
4. The Non-Compliance Panel does not have the power to compel witnesses to attend, to give evidence under oath, or to be cross-examined. Formal witness statements are not required. The Non-Compliance Panel will take into account any limits on the reliability of the evidence in making its Determination and considering the appropriate weight to attach to evidence.

10. Order of proceedings at Non-Compliance Panel Hearing

1. The order of proceedings at a Hearing shall be as follows:
1. The Panel Secretary shall read out the Charge(s).
   
2. The Chairman shall ask the Code Member or its representative (if any) if any matters are admitted, and if so admitted the Non-Compliance Panel shall find the facts proved. Where matters are admitted, the Panel will proceed to consider whether or not those matters amount to a breach in accordance with rule 10.1.6.
   
3. The Chairman shall invite the Executive or its representative to present its case against the Code Member and to present any relevant evidence in support of that case, including any witness evidence and questions if witnesses are present.
   
4. The Chairman shall invite the Code Member or its representative (if any) to present any relevant evidence in relation to the Charge(s), including any witness evidence and questions if witnesses are present. The Code Member is not required to make oral submissions at the Hearing and, should it choose not to do so, this will not be held against the Code Member.
   
5. The Chairman shall then invite both parties to address the Panel further if they so wish.
   
6. The Panel shall, in the absence of the parties, make its findings as to facts and whether or not such findings amount to breach(es) of the Code, Bye-Laws, Conditions and/or the Consent Order.
   
7. The Chairman shall then announce the Panel’s findings as to the facts and whether or not such findings amount to breach(es) of the Code, Bye-Laws, relevant Conditions and/or the Consent Order together with the Panel’s reasons for those decisions. If no breaches are found the matter will be discharged. If breaches have been found the Chairman shall then invite the parties present to address the Panel as to seriousness of the breach(es), the appropriate sanction(s), if any, and any application for costs, and to adduce any evidence as to any previous disciplinary record held by the Executive and any mitigation.
   
8. The Panel shall then in the absence of the parties make its Determination in relation to seriousness, any sanction to be imposed and to costs.
   
9. The Chairman shall then reconvene the Hearing before the parties present and announce the Panel’s Determination and reasons as to sanction and its decision as to costs.
10. The Chairman shall invite the parties to address the Panel should they wish to:
1. apply for (or resist) a stay of any sanction, pending an appeal being lodged in accordance with clause 11.2 of the Bye-Laws, or to enable any Consumer issues to be addressed before the Code Member's Code Membership is terminated, or otherwise; or,
   
2. apply for (or resist) a stay of any costs order, pending an appeal in relation to costs being lodged in accordance with clause 11.2 of the Bye-Laws and/or pending the final decision of the Appeals Panel in relation to any appeal brought by the Code Member in relation to costs, or otherwise; or,
   
3. where Conditions, or a Period of Enhanced Monitoring has been ordered, to apply for (or resist) an order from the Non-Compliance Panel that the Code Member is not identified on the Website as being subject to these sanction(s).
11. The Panel shall consider any such application made in accordance with rule 10.1.10 in the absence of the parties and shall make its decision on each application in the interests of justice. In determining whether there should be a stay of any costs order, the Panel will take into account in its considerations any reasonable concerns raised by either party in response to the application that the party ordered to pay costs may fail to do so or that a party may fail to repay costs awarded to it if the Panel's order is altered by the Appeals Panel on appeal. Where a party has applied for a stay of any costs order, the Non-Compliance Panel will consider whether it would be appropriate to order alternative arrangements instead of a stay which the Non-Compliance Panel considers are reasonable to meet the parties' concerns, for example an order that the Code Member pay costs awarded against it to the Executive provided that REAL undertakes to hold those costs in a separate account. Any order recording such stay should make clear the circumstances in which the stay or alternative arrangement will come to an end, for example if no appeal is lodged, or if an appeal is lodged but not in relation to costs, or until further order of the Appeals Panel.
    
12. The Chairman shall then reconvene the Hearing before the parties present and announce the Panel's ruling on the application(s), which shall be recorded in the Determination.
2. If there is insufficient time to complete all the steps in rule 10.1 on the day of the Hearing, or if the Chairman considers it appropriate following an application from one or both of the parties, the Chairman may adjourn the Hearing and direct that any remaining steps be completed via written submissions including setting the time frame in which the submissions shall be made.
   
3. Any evidence or submissions 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 8.2 or 8.3.
   

11. Determinations of the Non-Compliance Panel

1. The Non-Compliance Panel (or the Panels Secretariat on its behalf) shall issue its Determination by written notice to the Code Member and the Executive as soon as practicable following the Hearing, and within 14 Days.
2. If the Non-Compliance Panel finds that the Charges are not proven, the notice will set out the Non-Compliance Panel's findings which led it to conclude that the provision(s) of the Code, Bye-Laws, Conditions and/or the Consent Order in question had not been breached.
3. If the Non-Compliance Panel finds that the Code Member has breached the Code, Bye-Laws, Conditions and/or the Consent Order, the Determination will set out:
1. the provision(s) of the Code, Bye-Laws, Conditions and/or the Consent Order that the Code Member has breached;
   
2. the Non-Compliance Panel's factual findings which led it to conclude that such provisions had been breached in sufficient detail to enable the Code Member, the Executive and any Appeals Panel to understand the basis for the findings;
   
3. the sanctions, if any, which the Non-Compliance Panel is imposing on the Code Member in respect of its findings of breach;
   
4. the costs, if any, ordered against the Executive or the Code Member in accordance with clause 12 of the Bye-Laws; and
   
5. the Code Member's right to appeal to the Appeals Panel in accordance with clause 11 of the Bye-Laws.
4. The Determination will record the outcome of any application made by the Executive or Code Member in accordance with rule 10.1.10.

12. Matters the Non-Compliance Panel shall take into account in making a Determination

1. In reaching a Determination, the Non-Compliance Panel shall take into account each matter raised in:
   
   1. the documentation including written submissions provided to it (if any), by the Executive and by the Code Member;
      
   2. oral submissions made by the Executive and by the Code Member (if any);
      
   3. any further discussions that have taken place at the Hearing (if any), including evidence from any witnesses called; and
      
   4. any mitigating or aggravating circumstances.
      
2. Where the Non-Compliance 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.
      
3. In making a Determination, the Panel Members shall not be permitted to take into account new matters of which either the Executive or the Code Member did not have notice in accordance with rule 6 prior to the Hearing unless:
   
   1. both the Executive and the Code Member agree that the matter should be included; or
      
   2. the Panel has decided that the matter should be taken into account either following an application to this effect from the Executive or the Code Member, or of its own volition.  

13. Matters the Non-Compliance Panel shall take into account in determining sanction

1. The sanctions available to the Non-Compliance Panel are set out in the Bye-Laws. The Panel will consider all available sanctions in any particular case.
   
2. In deciding the appropriate sanction to impose (if any), in addition to the matters identified at rule 12 above, the Panel will consider:
   
   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; and
      
   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.

14. Publication and recording of Determinations

1. Determinations of the Non-Compliance Panel will be published on the Website and recorded on the Executive's database unless the Non-Compliance Panel orders otherwise.

15. Taking effect of Determinations

1. Once issued, all Determinations of the Panel shall take immediate effect unless the Non-Compliance Panel directs otherwise.
   
2. Either the Executive or the Code Member may apply to the Panel at the Hearing (or as ordered by the Chairman in accordance with rule 10.2) for a stay of any sanction or order for costs coming into effect in accordance with rule 10.1.10.
   
3. In the event of an appeal being lodged by the Code Member in accordance with clause 11.2 of the Bye-Laws, there will be an automatic stay of sanctions until the determination of the appeal. There will be no automatic stay of the order to pay costs where an appeal is lodged unless the Non-Compliance Panel has ordered otherwise in accordance with rule 10.1.10.

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 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 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 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.