RHI boiler owners expected to launch legal action after farmer payment victory

Moves to revoke a poultry farmer’s membership of the botched Renewable Heat Incentive scheme and recoup more than £50,000 in payments are to be quashed, the High Court ordered today. Thomas Paul secured the outcome in a challenge to the sanctions imposed by energy regulator Ofgem. With the Department for the Economy set to foot the legal bill for the case, scores of other boiler operators in Northern Ireland are also expected to press ahead with similar actions.

Mr Paul, who runs a farm near Coleraine, was identified as a test case among those disputing decisions to rescind their accreditations to the green energy initiative and demand repayment of subsidies. The steps were taken against them after reducing their level of usage when tariff rates were cut. Set up to encourage businesses and other non-domestic users to switch to environmentally friendly wood pellet burning systems, the RHI scheme was plunged into controversy when the potential cost to taxpayers emerged. It became known as the “cash for ash” scandal because subsidies were higher than fuel costs and led to the collapse of Stormont’s power-sharing Executive in January 2017. Under revised tariff rates introduced later that year, payments made to scheme members were substantially reduced. Boiler owners have since been locked in a separate legal battle over the huge cuts, claiming they were given cast-iron assurances on the rate of return when they invested in the green energy incentive back in 2012. Along with other poultry farmers and businesses, Mr Paul issued judicial review proceedings against the department for upholding decisions by Ofgem to revoke their biomass boilers accreditation for the scheme. They also challenged steps taken to recover periodic support payments. Proceedings were resolved on the basis that Ofgem did not have the legal power to seek recoupment from participants. Counsel for Mr Paul, John Larkin KC, told the court that the same issue will apply in any other cases where the energy regulator was involved. Tony McGleenan KC, for the department, said more time was needed to establish the wider situation. “We have to untangle cases that are recoupment cases only from cases that are recoupment and revocation, and then take stock of what the overall profile is,” he added. Based on the concessions made in Mr Paul’s challenge, Mr Justice Humphreys confirmed: “I will make an order that the decision made on October 13, 2022 by the respondent to revoke the accreditations belonging to the installations from the RHI Scheme be quashed. “The decision to recoup a portion of the periodic support payments made to the applicant, in the total sum of £53,660 will also be quashed.” Outside court, Mr Paul’s solicitor acknowledged that he reduced his use of his biomass boilers following the reduced tariffs introduced in April 2017. Brian Moss said: “He is adamant that he did not have any other option, as the cut in the tariff was effectively an increase in the price of fuel, and therefore the applicant had to find other ways to maintain the required level of heat in his poultry houses. “The applicant maintains that he has not been responsible for any wrongdoing and he remains determined for his name to be cleared.” Mr Moss added: "It is expected that the outcome of this case will affect many other cases where Ofgem has served a scheme participant with a notice of recoupment of periodic support payments paid under the scheme.”

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