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In accordance with The Electricity Capacity Regulations 2014 Regulation 47, the Settlements Body, Electricity Settlements Company Ltd (ESC) must maintain a register (“the non-payment register”) which sets out the names of and details relating to suppliers and capacity providers who have not paid an invoice issued under the The Electricity Capacity Regulations 2014 or the Electricity Capacity (Supplier Payment etc.) Regulations 2014 by 5.00 p.m. on the payment due date
Suppliers and capacity providers who have been issued an invoice for payment pursuant to the The Electricity Capacity Regulations 2014 or the Electricity Capacity (Supplier Payment etc.) Regulations 2014 which has not been paid by the payment due date.
The non-payment register will be published in the form of a simple spreadsheet detailing:
- The name of the payer
- The payer’s EMR ID
- Payment due date
- Category of payer (i.e. supplier or capacity provider)
- Type of invoice in respect of which the payer is in default
- Amount owed
- Current status of payment (Paid, partially paid, Unpaid) and the date(s) on which any payment has been made
- Whether any dispute has been raised by the payer
- If the payer has raised a dispute, whether the dispute has been determined and, if so, the determination
ESC uses data given to it by its settlement agent EMR Settlement Limited (EMRS) to populate the non-payment register. Please see their website for more information.
ESC has published the non-payment register on its website and will update the register in accordance with Regulation 47
In accordance with Regulation 45 and 47 of The Electricity Capacity Regulations 2014 (as amended), any late payment of any invoices issued under The Electricity Capacity Regulations 2014 or the Electricity Capacity (Supplier Payment etc.) Regulations 2014 will be covered. Herein a ‘payer’ refers to a party who has not paid an invoice issued under The Electricity Capacity Regulations 2014 or the Electricity Capacity (Supplier Payment etc.) Regulations 2014.
Please note that only the settlement cost levy will apply until late 2016 at the earliest.
Once a payer is entered onto the register the entry will remain on the register for 12 months from the due date for payment or, in the case of a disputed payment determined in the payer’s favour under Chapter 2 of Part 10 of the Electricity Capacity Regulations 2014, the date of such decision.
Once a party has made a late payment, even if the full payment has been made, that entry will be recorded as paid but it will remain on the register for 12 months.
The ESC is obliged to retain the data contained in the non-payment register for five years after the relevant entry register is made. If the entry is removed after 12 months, ESC will keep details of the entry internally for a further four years before the entry is permanently removed.
Until further notice for administrative efficiency ESC will apply a materiality limit in relation to publication of a non-payment on the non-payment register. This is for operational reasons and will not affect or limit a payer’ obligations to pay all amounts due from them by the relevant due dates (plus interest on any outstanding amount). It also in no way affects ESC’s rights to recover monies which are due. The materiality limit has been set at an aggregated value of £100.00.
Where a supplier or capacity provider has not paid the invoiced amount to ESC in full the supplier or capacity provider must pay ESC simple interest on the outstanding balance of the invoiced amount from the due date for payment until the date of payment. This is in accordance with Regulation 11(3) of The Electricity Capacity (Supplier Payment etc.) Regulations 2014 and Regulation 46(2) of the Electricity Capacity Regulations 2014. Late payment interest applies on the full unpaid amount regardless of any materiality limit being applied for operational reasons in relation to publication in the non-payment register.
Late payment interest is calculated in accordance with Regulation 11(5) and 11(6) of The Electricity Capacity (Supplier Payment etc.) Regulations 2014 and Regulation 46(4) and 46(5) of the Electricity Capacity Regulations 2014. The rate at which late payment interest is payable is 5 percent per annum over the Bank of England base rate in force on the 30th June (in respect of interest which starts to run between 1 July and 31 December) or the 31st December (in respect of interest which starts to run between 1 January and 30 June) immediately before the date on which the interest starts to run.
If a payer thinks they have been invoiced incorrectly in the first instance they should contact EMRS, the settlement agent, at Contact@emrsettlement.co.uk.
EMRS will check the invoice in question and in the event of any errors a new invoice will be issued.
If, after raising a query with EMRS the payer is still not satisfied they may in accordance with Chapter 2 of Part 10 of The Electricity Capacity Regulations 2014 raise a dispute with ESC in relation to any calculation or determination made by ESC. A dispute may be raised by emailing a disputes notice to email@example.com. The dispute notice must set out the matters giving rise to the dispute and the outcome sought by the disputing party and must be given not later than 28 days after the disputing party receives notice of the calculation or determination giving rise to the dispute.
Upon receipt of a disputes notice ESC will review the dispute notice and decide whether to appoint an independent person to assist with its determination of the dispute. Once ESC has reviewed all the information (including any report or audit provided by the independent person, if applicable) it will make a determination and notify the disputing party of its decision and the reason for the decision.
While a dispute determination is ongoing, the relevant entry on the non-payment register will be marked as ‘under dispute’. If the outcome of the determination is that the payment was not due, the entry will be removed from the non-payment register. If the outcome of the determination is that the relevant payment should have been made then the entry will no longer be marked as ‘under dispute’ and will remain on the register for 12 months from the payment due date.
ESC (through its settlement agent, EMRS) will contact the payer and remind them of their obligation to pay.
In the event of continued failure to meet payment, ESC will consider its options for recovering payment in accordance with its duty under Regulation 33 of The Electricity Capacity (Supplier Payment etc.) Regulations 2014, as amended, to exercise its functions in the manner best calculated to ensure the collection of all amounts which are required to be paid by electricity suppliers under the Regulations.
Credit Cover can be drawn down if a Supplier fails to meet its obligations to provide the funding to ensure Capacity Providers can receive their payments. Draw down can be used for non-payment of monthly Supplier charges, mutualisation and reconciliation payments and interest owed, but excludes the Settlement Cost Levy.
These frequently asked questions and responses (“FAQs”) have been prepared by Low Carbon Contracts Company Ltd ("LCCC") in response to queries raised by stakeholders in relation to the content of the Contract for Difference (“CFD”), which is comprised of the CFD Agreement and CFD Standard Terms and Conditions (“Conditions”), as published by the Department of Energy & Climate Change on 29 August 2014. The FAQs are also applicable to Investment Contracts (“ICs”) but users of this website are advised to fully review the equivalent clauses in their ICs as there are differences between the CFD and the IC.
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- The FAQs do not supersede or replace the provisions of the CFD or IC and are not intended to and do not constitute legal, investment, commercial or operational advice and should not be relied upon as such. Users of this website should not place reliance upon these FAQs and should refer to the full terms of the CFD or IC, and/or consult their professional advisors where they require information or advice on matters relating to the CFDs or ICs generally and/or any CFD or IC to which they are a party.
- The FAQs reflect the current thinking and approach of LCCC and should not be viewed as in any way as binding on LCCC.
- It is our intention to keep the FAQs under review and to publish revised issues from time to time.
Defined terms used in the FAQs but not defined therein have the meanings prescribed to them in the CFD or IC (as applicable) and the Energy Act 2013.