npower, Ofgem and Consumer Focus

Cardew

Sterling wrote: »

Also, I cannot understand why, bearing in mind that Ofgem released its press release on 13th February, that here we are – close to the end of March, and still waiting around for Ofgem.

Ofgem are awaiting legal clearance of the decision document!

1carminestocky

I wonder who Paul Kitcher has upset in npower to be given DD's FOI request. Poor bloke, lol.

Sterling

Here is a copy of my complaint to Ofgem referred to in the main ‘npower gas sculpting’ thread (#1174, p59). The original was delivered by Royal Mail recorded “special delivery” on 29th April.

Due to the document’s length – and the restricted length of posts, it has been necessary to divide it over eight posts.

Complaint Document


In the Formal Complaint against Ofgem by

[Sterling]






Regarding: Ofgem’s investigation - into the Energywatch complaint against npower dated 7th March 2008 – concerning

• changes by npower in April and November 2007 to its methodology, for charging gas customers on its first tier of two tier charges

• the resulting overcharging of affected customers; and

• the associated lack of any or sufficient notice and transparency afforded by npower to its customers

Particulars of the Complaint
Of [Sterling] against Ofgem

Introduction

My complaint against Ofgem concerns its investigation into the above Energywatch complaint of 7th March 2008 and comprises two parts.

Part 1 –I submit that npower gave material information to Ofgem during the said investigation which was deliberately or otherwise false or misleading; and which caused that investigation to be fundamentally flawed and the result invalid.

Part 2 – I submit that the Ofgem investigation into the said Energywatch complaint was seriously mishandled by Ofgem and that the process was therefore fundamentally flawed and the result perverse.

If either (or both) of the above submissions can be reasonably substantiated then I further submit that the original investigation by Ofgem must be set aside, and a fresh investigation conducted without delay.

The principle documents that I shall refer to are

• The said Energywatch letter of complaint to Ofgem dated 7th March 2008 (hereinafter referred to as – “EW.1”), and

• Ofgem’s document sent to Consumer Focus on 7th April 2009 entitled “NPOWER TWO TIER TARIFFS – DECISION BY OFGEM TO CLOSE CASE” (hereinafter referred to as – “OFG.1”). In the introduction to that document it says it, “….describes the nature of the investigation and the basis for Ofgem’s decision to close the case.”

For ease of reference, the above two documents are reproduced at the end of this document in Appendices 1 and 2 respectively.

Taking the above two parts of my complaint in order:

Part 1

(I submit that npower gave material information to Ofgem during the said investigation which was deliberately or otherwise false or misleading; and which caused that investigation to be fundamentally flawed and the result invalid.)

When Ofgem questioned npower about the Energywatch complaint (set out in document EW.1), npower admitted it had ‘billed’ its affected two tier gas customers by more than the maximum figure published (by npower) of 4572 high tier units over any period of 12 months.

For the record, the customers concerned (numbering an estimated 2.2 million) were of course affected by one or both changes made by npower in 2007 to the way npower apportioned such high tier units to each calendar month over a twelve month cycle.

However, as can be seen from OFG.1, npower put forward the following two submissions by way of defence.

1. The “tariff year”

To quote from OFG.1

“It also stated that it [npower] had applied the concept of a “tariff year” (i.e. that the accumulation of consumption towards the 4572 threshold stops/restarts whenever a tariff change occurs).”

2. The Price Reduction

Again, to quote from OFG.1

“The second change was a reduction in the price of the follow on units”

Before I address the validity of above two issues in detail, I must firstly point out the obvious fact that as defences they are mutually contradictory; and if that is the case, simple logic dictates that at least one of them must be false. That in turn would mean that npower gave at least one false defence to Ofgem in the course of the said investigation.

In case the mutually contradictory nature of the above two defences requires any further explanation, let me demonstrate their two respective viewpoints in turn.

Firstly, from the viewpoint that “the tariff year” was a valid concept or defence; if that had been the case then clearly there would have been no need for npower to compensate customers – since no compensation of customers would have been necessary.

Secondly, from the viewpoint that the “price reduction” was claimed to provide full compensation for customers, and therefore was a valid defence; if that had been the case then clearly there would have been no need for npower to plead “the tariff year” defence, since customers had already been compensated.

npower cannot have it both ways.

Thus we see that the above two defences are indeed mutually contradictory, and that therefore one of them (at least) is false – that being the case, I submit that the investigation should be set aside as invalid and begun afresh.

End of Part 1

Sterling

Part 2

Nevertheless, let us take a closer look at the validity each of the above two ‘defences’ in turn.

1. The “tariff year”

Bearing in mind that as this defence was put forward by npower, it is not up to me or anyone else to disprove its existence, but rather - it is up to npower to prove it exists. This would appear to be impossible, bearing in mind that the evidence against its existence is overwhelming, as can be seen by the following.

a) For this defence to have any legal effect at all, that is to say, for it to give npower the valid and legal right to exceed the stated maximum of 4572 high tier units in any twelve month period, it would have to be contained - prior to changes complained of - in one or more of the following,

i. npower’s published terms and conditions

ii. any published amendment by npower to the said terms and conditions

iii. any published literature by npower (on paper or electronic media via its website) describing its tariffs and so forth that could reasonably be said to form part of the contract between customer and supplier

b) In fact no such condition has ever appeared in npower’s terms and conditions, or published literature of any kind whatever. I therefore submit that the said ‘concept’ cannot and does not have any contractual validity; and is consequently null and void.

c) I submit that npower must have been well aware of the above when it put forward the “tariff year” defence to Ofgem, and that consequentially it was also aware that such a defence was spurious and invalid in English law.

d) On 2nd July 2008, Npower provided Ofgem with further information and confirmed that there was no definition of a ‘tariff year’ given to customers. This of course can only mean (and reaffirms) that the so-called ‘tariff year’ had no legal basis whatever.

e) I therefore submit that upon any of the above grounds Ofgem should not have accepted the tariff year argument as valid at all, let alone at face value; and that (as the official regulator and investigator in this matter) Ofgem’s failure to realise this was negligence in the extreme.

2. The Price Reduction

As we see from document OFG.1, npower claimed that its reduction (of the price of its low tier units) on 1st May 2007 (being the same date as the first of the two said changes of methodology in 2007) acted as compensation for its affected customers.

Again, it is for npower to demonstrate the truth of this claim, not for me or anyone else to prove otherwise. True, the two events happened on the same day. However, where a tariff methodology change, and an unrelated price reduction, are planned to occur in the near future, it makes perfect sense (from a billing perspective) to introduce them on the same date. So the fact that two such changes occurred on 1st May 2007 is by no means conclusive evidence that the two events are related.

On the other hand, there is evidence that indicates that the two events were not related and that therefore the said price reduction would have occurred even if the tariff methodology change had not taken place.

a) When customers complained, npower relied on the “tariff year” excuse rather than simply referring to the alleged compensatory price reduction. Remember, these two main excuses are mutually contradictory. The fact that npower did not mention the said price reduction in dealing with such complaints clearly indicates that npower hadn’t thought of it as an excuse at that time.

b) If the said price reduction had been linked to the change in methodology on 1st May 2007 then surely npower would have been only too pleased to inform its customers that it was compensating them accordingly at the time, by issuing a notice to every affected customer.

c) Yet here are npower’s very written words attempting to fend off a customer complaint, as they appear in a standard letter from npower to a customer who placed the content of that letter on the moneysavingexpert website forum thread in April 2008

“The first 4572 kwhsused are charged at the higher rate during the year, this is then divided out over the months. If there is a price increase the 4572 will start again”.

There is no mention of a compensatory reduction in the price of the low tier units in response to this customer’s enquiry.

d) In fact there was no such notice of compensation to customers. I therefore submit that the said price reduction was never intended to act as any form of compensation, and should not have been accepted as such by Ofgem.

End of Part 2

Sterling

Part 3

e) If npower had intended to fully compensate its affected customers, it could have done so much more simply in a variety of ways - that were unmistakeable. It could for example have simply

i. added a credit to affected customers’ bills at the end of the billing year concerned. In that way every customer could have received the correct refund for having paid for too many units at the high tier rate.

ii. timed its two methodology changes in 2007 differently. The said changes occurred at the beginning of May and November of that year. That gave npower the maximum financial advantage over its customers, because affected customers were deprived of their summer light-weight ‘seasonally adjusted’ months of apportioned high tier units. The ‘flat rate’ period between the said two changes could have been timed to occur earlier or later in 2007 so as to minimise or even neutralise any over-billing of high tier units.

f) In fact if one was drawing up a list of possible ways of providing compensation for affected customers, reducing the price of the low tier units would surely come at the very bottom of the list of possible options. It is hard to imagine a method less targeted or well suited to that objective.

g) On the other hand, seen as a simple price reduction, the position becomes much clearer. Because npower kept its said changes well disguised or hidden completely, existing and potential new customers thought their npower gas bills would be less than was the case. I believe that even the comparison websites had no idea of the true cost of gas from npower (on tariffs with a two tier structure) as a result of the two said changes in 2007. Consequently, the calculations performed by such websites as to the cost of npower’s gas over a year, gave answers that were significantly lower than was actually the case. This can of course be checked by Ofgem. I submit that npower must have been well aware of what was happening, and nevertheless allowed this misrepresentation to continue unchecked. I submit it had nothing to do with compensation whatever; it was simply a device to make the cost of its gas appear more favourable than it actually was – and to claw back the cost of this price reduction from unwary, and uninformed, gas customers affected by the two said changes in 2007.

h) Following on from the previous point, I submit that, far from being compensation (as npower now alleges), the said price reduction by npower on 1st May 2007 was in fact merely a commercial (and necessary) marketing expedient for competing with other gas suppliers, especially British Gas, with the sole intention of gaining an increase in market share, and would have happened anyway – and that it had nothing to do with compensation.

i) I submit that npower must have been well aware of the misrepresentation situation mentioned in point g) above when it put forward the “compensation” defence to Ofgem, and that consequentially it was also aware that such a defence (of compensation) was spurious and invalid.

j) I therefore submit that the totality of the above points shows the complete fallaciousness of npower’s claim that an unconnected price reduction should be regarded as compensation, and that Ofgem should have not accepted this claim as valid let alone at face value and that its failure to realise this (as the official regulator and investigator in this matter) was negligence in the extreme.

k) For the sake of completeness, I should mention that npower also informed Ofgem that it had increased its duel fuel direct debit discount, and claimed that this was also compensation. This of course would be a very strange compensation indeed, since it would only apply to duel fuel customers, and of those – only the ones paying by direct debit. Again, such a change was of course a mere marketing expedient. I submit that any attempt by npower to claim it as compensation is indeed spurious. It should have been immediately rejected by the Ofgem investigation as false and invalid.

Part 2

(I submit that the Ofgem investigation into the said Energywatch complaint was seriously mishandled by Ofgem and that the process was therefore fundamentally flawed and the result perverse.)

For ease of reference the points I wish to make are in numbered order

1. On 7th March 2008 Energywatch wrote to Ofgem by way of formal complaint (document EW.1 – reproduced in Appendix 1 hereto) outlining the nature of the complaint against npower, and requested Ofgem’s consideration of it.

End of Part 3

Sterling

Part 4

2. The said document EW.1 sets out the complaint sufficiently well enough that I do not propose to embark upon a separate explanation, but I will refer to document EW.1 in what follows. However, the following words from Energywatch in EW.1 encapsulate the issue.

“It appears to us that during the period of 1st May 2007 and 31st October 2007, the changes effected by npower to the way in which they apportioned their first (higher price) tier of charges resulted in a detriment to the consumer”

3. As can be seen from EW.1, the said complaint by Energywatch also mentioned the fact that 2.2 million npower gas customers had been affected by one or both changes made by npower to its said methodology in 2007. The amount of money that the said 2.2 million customers appear to have overpaid could approach or even exceed £100million. This matter was therefore no trivial issue.

4. There was also the clearly foreseeable possibility that beyond the said 2.2 million npower gas customers already affected (across the country), the actions of npower could potentially be repeated by that company, or any other energy supply company, in future; and that this complaint by Energywatch had far wider implications than simply the matter in hand.

5. No doubt that is why Energywatch saw fit to add the words

“Importance: High”

at the very top of its complaint document (EW.1.).

6. It is indicated in EW.1 that Energywatch had originally raised the issue directly with npower, but that despite npower’s responses, Energywatch still felt there was a case to answer, and referred to matter to Ofgem for investigation and consideration.

7. It is fair to say Energywatch found it impossible to accept the answers given to it by npower as a valid defence. For example here are three extracts from EW.1

i. “npower suggest that they were under no obligation to inform their 2.2 million customers affected of this as they had reduced their prices (of the second tier) at the same time. We would suggest that this is a spurious argument, burying detriment in amongst a price reduction…. an underhand way of introducing a measure that is detrimental to consumers without them knowing.”

ii. “the fact that the two changes to the first tier structure were applied in the same 12 month period, must result in consumer detriment.”

iii. “we are concerned that the npower first tier of more expensive units does not relate to a period covering a year, ie 12 months, but covers the 'tariff year’. They define the ‘tariff year’ as being the period 12 months from any tariff change. Thus in 2007….. That represents 3 "years" in less than actual 12 months period.”



8. The said Energywatch complaint ends with the sentence beginning “I would formally request Ofgem to investigate this matter…”

9. The Concise Oxford English Dictionary defines “investigate” as “to carry out a formal or systematic enquiry into (an incident or allegation) so as to establish the truth”.

10. Yet it is clear from document “OFG.1” (reproduced in Appendix 2) – a document which describes the nature of Ofgem’s investigation - that Ofgem simply accepted at face value the same statements from npower that Energywatch found it so hard to accept.

11. Indeed the fact that Ofgem accepted npower’s excuses at face value is beyond doubt, since OFG.1 (being as stated a description of the nature of the Ofgem investigation) makes no mention whatever of any challenge, question or concern by Ofgem regarding the said statements from npower.

12. I submit that, had the so-called investigation by Ofgem been properly conducted, it would have placed the onus upon npower to establish beyond any reasonable doubt the veracity of npower’s said statements that it made to Energywatch and Ofgem.

13. I further submit that bearing in mind the overwhelming evidence to the contrary, as stated in Part 1 above, that it would have been impossible for npower to satisfy any properly conducted enquiry as to the truth of either of its two said defences.

14. However, instead of a thorough and rigorous investigation of this matter on behalf of the consumer, we had a damp squib – a meek acceptance by Ofgem of everything that npower said as fact, without any serious investigation of it whatever – a rubber stamping exercise.

14. This lack of any scepticism of any kind by Ofgem is so staggering that it is defies belief. If this were a criminal matter, it would be as if the police had brought an accused before the court for trial, only to watch the judge accept at face value the accused’s plea of ‘not guilty’, and order the immediate release the accused without bothering to hear the case against him at all.

16. In other words this so-called ‘investigation’ by Ofgem into the said Energywatch complaint was a complete and utter sham. It was the investigation that never was.

End of Part 4

Sterling

Part 5

17. It should have been obvious to the Ofgem investigating team that npower’s ‘compensation’ claim was spurious (as indeed was pointed out by Energywatch in EW.1).

18. If the ‘compensation’ excuse had been genuine, there would have been no need for npower to dream up the ‘tariff year’ excuse – an idea that was retrospective to the events of 2007.

19. It should also have been obvious that the ‘tariff year’ itself was at worst a complete and utter falsehood, or at best something that should not have been accepted by Ofgem unless npower had been able to offer irrefutable evidence of its veracity.

20. There is no doubt that Ofgem was well informed of the shortcomings of the ‘tariff year’ excuse. In Ofgem’s document (OFG.1) it states

“On 2 July 2008, Npower provided further information and confirmed that there was no definition of “tariff year” given to customers”

Surely the only conclusion that can be drawn from that admission by npower is that the ‘tariff year’ had no legal basis whatever. Furthermore, Ofgem should have realised this immediately and rejected it completely.

21. If (as I submit) the said ‘tariff year’ and ‘compensation’ excuses put forward by npower are both invalid, then npower has of course no defence to the Energywatch complaint whatever, and has overcharged its affected customers in the order of perhaps £100million in total.

22. In that event, npower should have been obliged by Ofgem (using a court order if necessary – see later) to repay each and every one of the 2.2 million customers who had been overcharged by npower, regardless of the administrative cost to npower.

23. Anything less than full reimbursement for every affected customer (many of whom are frail and vulnerable) would be a shameful failure by Ofgem to carry out its prime function of protecting consumers, by (here) getting their overpayments back for them.

24. In any event, as the said two excuses or defences are mutually contradictory (as I explained in Part 1 of this document) neither should have been accepted at face value by Ofgem; and that both should have been subjected to the highest scrutiny and scepticism by Ofgem.

25. I therefore submit that Ofgem’s acceptance of npower’s above two defences at face value was negligence in the extreme and a gross dereliction of duty; and led to a result that was a perverse travesty for the consumer, and an affront to common sense.

26. Yet protecting consumers is precisely what Ofgem was created for. Indeed its own website clearly states

_________“Protecting consumers is our first priority”.



27. It has been revealed in information given by Ofgem to an enquirer under The Freedom of Information Act, that Ofgem was even well aware that at least one npower customer had taken npower to court over the very issue embodied in the Energywatch complaint – and despite npower defending the claim, the customer was victorious. This would indicate that the court did not accept that npower had a valid defence in either its ‘tariff year’ excuse, or that its price reduction on 1st May 2007 was compensation.

28. Interestingly enough, all other county court cases against npower have been settled out of court by npower. The fact that there are such instances, and the probable amount in total paid out by npower in preference to going back into court speaks for itself.

29. Although the above county court case is mentioned in OFG.1, Ofgem’s wording deliberately avoids mentioning that the customer won his case. Yet there is no denying that Ofgem was well aware of this fact – and the significance it should have had to its investigation.

30. Thus in addition to the obvious scepticism of Energywatch (made clear in EW.1) as to npower’s excuses, Ofgem also had the benefit of knowing that a county court judge or registrar (in either event a highly qualified and independent legal expert) had found against npower in favour of the customer, and npower was ordered to pay compensation to the said customer by the amount he had been overcharged plus costs. Yet it would appear that Ofgem ignored this fact completely in assessing npower’s defence statements.

31. It was of course open to npower to lodge an immediate appeal against the above-mentioned county court verdict, but it declined to do so. Again this was known by Ofgem, and should also have caused Ofgem not to take npower’s excuses at face value.

32. But in OFG.1, Ofgem says

“The investigation focused on whether Npower should have notified customers of changes to its two tier tariffs.”

One has to ask “Why?” As can be seen from EW.1, this was not the main thrust of the Energywatch complaint, but rather of secondary concern.

33. Furthermore, the moment Ofgem had “focused” on the secondary issue of notification, and ignored the central thrust of the Energywatch complaint, the Ofgem investigation became inherently flawed, and restricted to mere technicalities.

End of Part 5

Sterling

Part 6

34. In criminal terms, this was as if a gang of bank robbers had made off with £100million, and finding upon being caught, that the only offence they were being charged with was parking outside the bank on double yellow lines.

35. The said erroneous focusing also unnecessarily narrowed the remedies Ofgem could impose on npower to the point of non-existence; and it was left with having to seek npower’s “agreement” to repay around ten per cent of its affected customers (whose claims were nominal) a total of £1.2million out of a possible £100million that customers overpaid to npower, leaving npower with a possible £98.8million in pocket.

36. It is clear from OFG.1 that if Ofgem had not restricted its investigation to the question of notification, but had instead considered the matter in full and adjudicated it correctly; it would have had sufficient powers to oblige npower to pay back all affected customers - aided by a court order if necessary. To quote from OFG.1

“Ofgem also considered whether its powers under the Enterprise Act 2002 to enforce consumer protection legislation could be used in this case. These powers require Ofgem to give a company the opportunity to address a failure to comply with the legislation. If the company does not do so, Ofgem may apply to the court for an order requiring action by the company. If the company subsequently fails to comply with an order, the court can take action, including levying a fine.”

37. We then have the utterly shameful and ridiculous statement by Ofgem in OFG.1 as follows

“For the avoidance of doubt, at no time has Ofgem formed a view on whether there may have been a breach of contract between Npower and individual customers.”

It is hard to imagine a more ridiculous statement from an organisation whose stated first priority is consumer protection, in response to a complaint (by Energywatch) that customers were overcharged. Also, one has to ask why Ofgem didn’t form a view on such an important matter under its overall care and responsibility.

38. That sentence in OFG.1 is immediately followed by the equally shameful

“Ofgem’s position on this matter does not preclude individual customers pursuing cases with Npower or subsequently with the energy ombudsman or a court if appropriate.”

In other words - to all you 2.2 million affected gas customers out there, you are on your own; there will be no consumer protection from Ofgem.

39. Of those 2.2 million customers a great many (perhaps a quarter) will be too vulnerable or frail to bring any kind of claim against npower. These are precisely the sort of people Ofgem is there to protect.

40. Finally in OFG.1 we have the quite astonishing statement

“Ofgem’s powers do not extend to requiring compensation for customers.”

Bearing in mind “the Enterprise Act 2002” referred in OFG.1 by Ofgem (see above), it would seem beyond doubt, that if (as mentioned earlier) Ofgem had considered the matter in full and adjudicated it correctly, the fact that it had no direct power to order compensation for customers would have presented no difficulty. Ofgem merely needed to inform npower that it would

a) allow npower the opportunity to put matters right by repaying its affected customers in full, failing which Ofgem would

b) apply to the court for an order requiring such action by npower

41. Such a remedy is by no means impossible or impracticable for npower to carry out. After all, npower has already “agreed” to do exactly that for 200.000 customers. Clearly, if it can be done for those, it can be done for all concerned.

42. If, as I submit, it turns out that npower gave Ofgem false information during the first investigation, Ofgem must clearly take that into account (as extremely serious), and decide if a fine would serve the public interest in addition to the above. I submit that it would not, provided the said order for repayment is properly carried out by npower – within a set period of (say) six months (and fully monitored by Ofgem at npower’s expense). The administrative cost will no doubt hurt as much as any fine.

End of Part 6

Sterling

Part 7

43. OFG.1 concludes with a list of five bullet points under the heading “Decision” which for the reasons set out above are entirely based on the (false) premise that npower’s excuses are valid. I submit that for the reasons given above each and every one of them is therefore incorrect. For convenience they are reproduced here

“Ofgem’s decision was based on the following factors –

• The fact that the issue related to notification to customers in May 2007 and the past nature of the issue.

• Ofgem’s investigation team’s view that the Authority would be unable to impose a financial penalty in this case.

• Npower’s position on compliance and the consequent need to follow the full administrative procedure for consideration of a breach without the option of imposing a penalty.

• The inability to take enforcement action under consumer protection legislation, and Npower’s subsequent action.

• Ofgem’s understanding that £1.2m would be paid to those affected.”

44. OFG.1 then closes with the following

“Ofgem also noted that any individual consumers who were unhappy with the way Npower dealt with their individual cases would be invited by Npower to contact them.”

There are several internet forums where npower customers exchange views and information. The forum site that is perhaps the most widely known has attracted around 86,000 visits (and rising) can be accessed via the link below.

http://forums.moneysavingexpert.com/showthread.html?t=822299&page=54


An inspection of that site (in particular the feedback from customers who have complained to npower) will quickly reveal that npower has (I submit) done its utmost to put off, misdirect and stall customers who complain. Despite the above wording in OFG.1 (which implies a willingness by npower to settle such claims) npower has continued unabashed with the same misleading tactics as before. It has (I submit) therefore given a misleading impression to Ofgem of its future intentions in this respect.

45. I submit that, if it is found that npower has not been entirely truthful to Ofgem, then that of course alone would justify setting aside the Ofgem investigation in favour of a fresh and properly conducted investigation of the Energywatch complaint.

46. I further submit that the large number of points made in this document concerning npower’s statements to Ofgem point overwhelmingly to the fact that npower has misled Ofgem during its investigation.

47. It must also be remembered that the timing of the said changes in 2007 gave npower the maximum financial advantage. Had it made these changes over a winter, customers would not have been adversely affected at all.

48. Because npower kept its said changes well disguised or hidden completely,

a. I believe that even the comparison websites had no idea of the true cost of gas from npower (on tariffs with a two tier structure) over a year.

b. Consequently, the calculations performed by such comparison websites as to the cost of npower’s gas over a year, gave answers that were significantly lower than was actually the case.

c. This can of course be easily checked.

d. I submit that npower must have been well aware of what was happening.

e. I submit that this was a clear and serious breach of npower’s licence and consumer protection law, which should have been considered by the Ofgem investigation, whether or not it was specifically mentioned by Energywatch.

49. Ofgem must remember that it has been entrusted with the responsibility of consumer protection in the area of energy supply. It is therefore in the position of a trustee, and must act as such at all times; that is to say, it must carry out its public duty to the highest possible standards at all times. Anything less is a breach of that trust.

50. I submit that the totality of the above points and comments is an overwhelming indication that Ofgem has failed lamentably to achieve that standard on this occasion; and that the said complaint from Energywatch must be completely (and speedily) reinvestigated without delay.

End of Part 7

Sterling

Part 8

51. I further submit that the process adopted by Ofgem in this matter is not ‘fit for purpose’. I say this because with a complaint of this nature, it is necessary for Ofgem to make a judgement on the weight of the evidence produced by its investigation. In other words the process in cases where Ofgem must decide whether the trade practices of an energy supplier have breached either its licence or consumer protection law (or both) is a judicial or semi judicial one.

a) It is of course a fundamental principal of natural justice that any investigation of a judicial or quasi-judicial nature must allow equal representation to both sides of the argument.

b) However, while Ofgem seems to have had no shortage of dialogue with npower in the course of its investigation, the public have had no right of access or response whatsoever in order to rebut or any way challenge the statements made to Ofgem by npower (and which Ofgem took at face value).

c) This method of investigation is therefore a denial of natural justice for the consumer, and for that reason is an unfair and unacceptable process, and which should be changed forthwith.

d) Energywatch and its subsequent replacement Consumer Focus should have been kept fully informed as to the representations being put forward to Ofgem by npower, and been given the right to respond on behalf of the consumer accordingly during the investigation.

e) There was no transparency by Ofgem during this investigation. If the courts can decide cases involving large commercial companies in full public view, there seems little justification for the covert way Ofgem conducted this investigation and reached its erroneous decision.

52. Finally, it must surely be the public duty of every licensedenergy supply company to act at all times with the utmost integrity, honestly and good faith towards its customers and also in its dealings with Ofgem. I submit that the totality of the above strongly indicates that npower has seriously failed to comply with that duty in either respect.

I ask Ofgem to consider my complaint (and the grounds for the same) as set out in this document, and the matter generally as soon as possible.


[Sterling]

28th April 2009


Appendix 1

Energywatch Original Complaint to Ofgem


The said Energywatch letter of complaint to Ofgem dated 7th March 2008 (referred to above as – “EW.1”),

[Please see the main npower gas sculpting thread – post #1135, page 57 – where this document appears]

Appendix 2

Ofgem’s document sent to Consumer Focus on 7th April 2009

Entitled “NPOWER TWO TIER TARIFFS – DECISION BY OFGEM TO CLOSE CASE” (referred to above as – “OFG.1”).

[Please see the main npower gas sculpting thread – post #1124, page 57 – where this document appears]

END