Campa v Icon Retail Investments Limited (ABN 23 074 371 207) and AGL Act Retail Investments Pty Ltd (ABN 53 093 631 586) Trading as ActewAGL Retail (ABN 46 221 314 841) - [2019] ACAT 69

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CAMPA v ICON RETAIL INVESTMENTS LIMITED (ABN 23 074 371 207) AND AGL ACT RETAIL INVESTMENTS PTY LTD (ABN 53 093 631 586) TRADING AS ACTEWAGL RETAIL (ABN 46 221 314 841) (Energy and Water) [2019] ACAT 69

EW 0286/2018
Catchwords: ENERGY AND WATER COMPLAINTS – complaint against utility – gas customer retail contract – billing dispute – billing estimation

Legislation cited: National Energy Laws Act (South Australia) 2011

Subordinate

Legislation cited: Gas Supply (Gas Meters) Regulations 2002 cl 3
National Energy Retail Rules r 21

Tribunal:Senior Member A Anforth

Date of Orders:  30 July 2019
Date of Reasons for Decision:     30 July 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          EW 0284/2018

BETWEEN:
ALFONSO CAMPA
Applicant

AND:

ICON RETAIL INVESTMENTS LIMITED (ABN 23 074 371 207) AND AGL ACT RETAIL INVESTMENTS PTY LTD (ABN 53 093 631 586) TRADING AS ACTEWAGL RETAIL (ABN 46 221 314 841)
Respondent

TRIBUNAL:Senior Member A Anforth

DATE:30 July 2019
ORDER

The Tribunal orders that:

The complaint application is dismissed.
The applicant owes the amount of $2,482.63 to the respondent, less any amounts paid after 5 July 2019 in respect of the final account with ActewAGL.
The applicant is to pay the respondent $120.00 per fortnight commencing on 30 July 2019 continuing until the debt is repaid.

………………………………..
Senior Member A Anforth

REASONS FOR DECISION

Overview

This matter concerns a dispute between Mr Alfonso Campa (the applicant) as a consumer of gas supply and ActewAGL Retail (ActewAGL or the respondent).
The applicant was a residential gas customer with ActewAGL. The applicant received gas invoices varying significantly in magnitude. The gas bills varied from an average of approximately $300 to $360 per quarter to successive bills of approximately between $1,200 and $1,800 per quarter.[1] The essence of the complaint is that there is an error in the billing or with the meter.
[1] Hearing documents attachment B21, bills and invoices 2015-2019 dated 22 March 2019
ActewAGL is an energy retail provider, which relies upon the supply and gas usage data from the gas distributor (Jemena). Jemena are the actual gas supplier and provides metering data.
The essence of the complaint is that there is an error with the usage charges provided by the respondent, either erroneous invoices or incorrect gas meter readings. Under rule 21 of the National Energy Retail Rules (NER Rules), the respondent gas retailer is obliged to only complete one actual read in a 12 month period. The additional bills may be derived from estimations.
There was no evidence that there was an error with meter. The problem lay with the estimation process, which may result in retail energy customers receiving proportionally high bills due to lower estimates in previous periods requiring a ‘catch-up’ invoice. The applicant has changed their gas service to another retail provider during the complaint process and similar magnitude of gas consumption is being invoiced over a year.
The complaint was dismissed as there was insufficient evidence to conclude that there were erroneous bills or there was a fault with the meter.

History of the matter

On 19 April 2018 the applicant lodged a complaint with the tribunal concerning the gas consumption reported in invoices from ActewAGL. An excerpt from an ActewAGL bill, a photograph of the household gas meter, a Gas Meter Test Certificate and an email from Branco Boilers (Branco) were annexed to the email.[2]
[2] Hearing documents attachment A7, email from Mr Campa dated 19 April 2018
The applicant claims that their residential gas bills in 2016 and 2017 were averaging $300 to $360 per quarter for the winter months, but the subsequent summer periods were approximately $1200 and $1800 respectively. The applicant sought a test of the gas meter. The meter test showed no fault. In the alternative, the applicant contended that the gas consumption reported by ActewAGL was beyond any flow his gas heater was capable of maintaining.
On 4 December 2017, Jemena issued a Gas Meter Test Certificate. The certificate certified that the gas meter, serial number C107684, was operating accurately within the meaning of Clause 3 of Gas Supply (Gas Meters) Regulations 2002 (now repealed). ‘Inaccurate gas meter’ means a gas meter:
(a)that over-registers the flow of gas by more than 2%; or
(b)that under-registers the flow of gas by more than 3%.
The gas appliances that are being used at the residential property were Rinnai instant gas water systems and a Branco boilers hydronic inslab heating system.
On 20 April 2018 the Tribunal notified ActewAGL of the customer complaint by email and ActewAGL was invited to respond by 7 May 2018.
On 17 May 2018 the respondent filed its response to the complaint. The essence of the response was both that:
(a)ActewAGL is a retail provider and relies upon meter information provided by the gas distributor; and
(b)meter information provided by the gas distributor concluded that the gas meter was operating within acceptable standards. A copy of the metering data was attached to the email. The relevance of the metering data is addressed below.
The respondent noted in correspondence to the applicant that some of the gas usage by the applicant in 2016 were based on estimates. For this reason, the invoice issued on 25 January 2017 is a catch-up for periods that was underestimated in 2016. The respondent further noted that the respondent was unable to explain the high gas usage.
On 21 May 2018 the applicant phoned the Tribunal to discuss the email correspondence that the applicant had received from ActewAGL. The applicant submitted that the gas consumption provided on the gas bills was greater than the flow possible through the pipes and greater than the specifications of the gas meter.
On 5 July 2018 the Tribunal made interim orders that the applicant pay the undisputed June 2018 gas account of $569.57 by 22 July 2018. The applicant was further ordered to pay $120.00 per fortnight on the outstanding gas account, commencing 12 July 2018.[3]
[3] Hearing documents attachment A75, ACAT Orders dated 5 July 2018
Further orders required the respondent to investigate the correctness of the account issued 6 December 2017. If the parties did not reach an agreement, the matter was to be listed for a directions hearing.
On 9 July 2018 the respondent emailed the Tribunal a copy of the invoice issued on 2 June 2018.[4] The full amount of the gas bill was $6,721.05.
[4] Hearing documents attachment A81, email from ActewAGL dated 9 July 2018; hearing documents attachment A79, ActewAGL invoice dated 2 June 2018
On 18 July 2018 the applicant emailed the Tribunal a photograph of the gas meter reading.[5] The photograph evidences the meter reading of 11,985 cubic metres.
[5] Hearing documents attachment A83, photograph of gas meter sent via email dated 18 July 2018
On 24 July 2018 the respondent issued a final gas invoice to the applicant.[6] The final invoice was for the amount of $5,692.20 as the customer had moved their gas account to Origin Energy (Origin).
[6] Hearing documents attachment A91, ActewAGL invoice dated 24 July 2018
On 25 July 2018 the respondent notified the Tribunal that the final invoice for the application had been reduced from $6,721.05 to $5,962.20.[7] The respondent explained that the meter reading had been incorrect and re-issued the last three invoices. The respondent further noted that the applicant had not complied with the orders made on 5 July 2018.
[7] Hearing documents attachment A97, email from ActewAGL dated 25 July 2019
On 27 July 2018 the Tribunal notified the parties to the matter that ActewAGL had allowed $1,028.85 for the incorrect meter reading in the December 2017 bill.[8] The Tribunal noted that the applicant’s self-reading on 5 July 2018 indicates that a high level of gas consumption was continuing at the property.
[8] Hearing documents attachment A99, email from ACAT dated 27 July 2018
The correspondence noted that the applicant has not complied with Order 1 and Order 2 from 5 July 2018 and if the applicant did not make payments in accordance with the orders, the Tribunal would dismiss the application.
On 27 July 2018 the applicant telephoned the Tribunal concerning the email from the Tribunal of 27 July 2018.[9] The applicant said that there was confusion with the deadline for payments (pursuant to the Orders made 5 July 2018) and submitted that his self-reading suggests low gas consumption.
[9] Hearing documents attachment A101, file note dated 27 July 2018
On 27 July 2018 the applicant emailed the Tribunal advising that payment had been made for the amount of $596.67.[10] The applicant advised that fortnightly payments would continue while the matter was continuing.
[10] Hearing documents attachment A103, email from Mr Campa dated 27 July 2018
Within the email, the applicant contended that the gas usage in 2017 was higher proportionately than the eight months following. In 2017 there was approximately 6,500 cubic metres of gas consumed compared with approximately 1,200 in the following eight month period. The applicant explained that the period covers some colder months of the year and that new residents moved into the attached property in February 2018.
The applicant’s hydronic heater supplier suggested to the applicant that a meter may be installed on the gas hydronic heating boiler. The hydronic heater supplier did not believe it is possible that a daily gas usage of 216 cubic metres may be achievable at the 9 cubic metres per hour of volume as tested by Jemena.
On 28 August 2018 the respondent called the Tribunal to advise that the applicant had “churned”[11] to Origin on 22 May 2018.[12] The bill issued on 24 July 2018 is the last bill from ActewAGL.
[11] This is a term from the industry which was used by the parties.
[12] Hearing documents attachment A105, file note dated 28 August 2018
On 31 August 2018 the applicant emailed the Tribunal and the respondent attaching a partial copy of a gas bill, issued by Origin.[13] The bill provided by Origin is for the amount of $1,598.96, which included a discount of $208.10 for payment on time.
[13] Hearing documents attachment A113, email from Mr Campa dated 31 August 2018
The applicant explained that for 10 months usage, the gas meter shows of usage of approximately 1,800 cubic metres. The applicant contends that this volume is much less than 6,500 cubic metres, which was estimated to be consumed with ActewAGL per annum. The applicant concluded that ActewAGL have incorrectly billed for gas usage and the amount of gas usage is not possible.
On 3 September 2018 the respondent emailed the Tribunal a copy of the Origin gas bill issued on 28 August 2018.[14]
[14] Hearing documents attachment A121, email from Mr Campa dated 3 September 2018
On 10 September 2018 the Tribunal emailed the applicant that it was satisfied that ActewAGL’s revised invoices were correct and the final invoice of $5,692.20 was also correct.[15] The Tribunal invited the applicant to respond by 18 September 2018 and either withdraw the complaint or proceed to hearing.
[15] Hearing documents attachment A123, email from ACAT dated 10 September 2018
The applicant elected to proceed to hearing. On 14 September 2018, the Tribunal made orders for the applicant to file any further evidence on or before 12 October 2018 and the respondent to file any further evidence on or before 9 November 2018. On 22 February 2019 the Tribunal made further orders for the parties to file and serve evidence.
On 22 March 2019 the applicant filed an email addressing that he was challenging two ActewAGL invoices, dated 1 December 2016 and 25 February 2017.[16] The first invoice is for the amount of $1,619.16 as an estimate for gas usage. The later invoice is for the amount of $1,864.80 being the actual usage based upon a meter read.
[16] Hearing documents attachment B23, email from Mr Campa dated 22 March 2019
On 23 April 2019 the respondent emailed the applicant and the Tribunal responded to the following issues raised by the applicant.[17]
(a)Bills over 2016/17 for the summer period.
(b)Meter capacity on Gas Meter Test Certified by Jemena.
(c)Expert evidence provided by Branco Boilers.
(d)Spreadsheets previously provided to ACAT showing gas usage before and after the original gas meter was removed.
[17] Hearing documents attachment D5, email from ActewAGL dated 23 April 2019
The respondent detailed an explanation for the two bills in question of the 2016/17 summer period. The consumption and supply charges for the invoice issued on 1 December 2016 for the period of 27 August 2016 to 23 November 2016 totalled $353.68, which was an estimate. The remainder of the total bill, being for the amount of $1,265.27 is the accumulation of the charges at the time and an accumulation of a previous unpaid invoice.
The consumption and supply charges for the invoice issued on 31 August 2016 for the period of 16 May 2016 to 26 August 2016 totalled $1,265.21. The bill reflected an actual meter read but the previous invoice was based upon an estimation of gas usage. The respondent contended that it is possible that the previous invoice to 31 August 2016 was under-estimated, which would result in a ’catch-up’ invoice. The respondent relies upon the customer invoices and the raw data from the provider.
The second point and third points were responded to together, using actual readings from the two gas meters and expert evidence provided by Branco. Based upon the data provided by the gas supplier for both gas meters, there was approximately 13% difference between two winter periods. The applicant submitted that gas consumption with the new meter was “not radically different” from the old meter.
The final issue was addressed by the respondent. The respondent acknowledged a previous error with consumption data, which was caused by a data migration error. Corrected data was provided and the final invoice was reduced from $1,730.95 to $702.19.
On 7 June 2019 the applicant emailed the Tribunal and respondent with information in regard to the appliances that consume gas.[18] The appliances that are consuming gas at the residence are an in-slab hydronic heating system and two Rinnai Infinity 26 hot water systems. The in-slab heating operates on a schedule of 5.30am to 8.00am in the morning and 3.30pm to 8.00pm in the evening, set at a temperature of 21 degrees. The Rinnai hot water systems services upstairs and downstairs of the residence.
[18] Hearing documents attachment C11, email from Mr Campa dated 7 June 2019
On 5 July 2019 the matter was heard by the Tribunal. Mr Campa appeared as the applicant and Ms Truesdale appeared for the respondent.
The Tribunal noted that the question to be answered during the hearing is whether the bills from ActewAGL were erroneous.
The applicant explained that based upon the expert evidence from Branco that it was not possible for the gas boiler to consume the volume of gas that is reflected in invoices from ActewAGL. The applicant has since churned the gas service to Origin and the gas consumption has not changed significantly. The gas consumption is still following the same pattern of high in winter and lower in summer.
The applicant argued that the bills from ActewAGL should be higher with Origin as the applicant has rented out their attached granny flat to friends. The applicant said that there were four additional people living in the house (two adults and two children) and that the bill from Origin was lower during this period than from ActewAGL in an earlier period.
The applicant was unable to produce any evidence of an error with the gas meter. The catch-up bills are high as the previous estimates are low. The applicant’s argument continues on the premise that the in slab gas boiler is unable to consume the quantity of gas that has been invoiced.
At the end of the hearing, the Tribunal informed the parties that it was not convinced that the meter was defective or that the bills from ActewAGL were erroneous. An issue appeared to be the unsatisfactory nature of the estimating process and how it can cause problems for people. The respondent replied that ActewAGL complies with the National Energy Retail Rules. Energy retailers for retail customers are only required to complete one actual meter read in a year. Recent changes allow for customers to provide self reads.[19]

Legislation

[19] Rule 21

The National Energy Customer Framework (NECF) is a national scheme implemented through South Australian Legislation – the National Energy Retail Law (South Australia) Act 2011 (NERL). This South Australian Act is applied as legislation of the ACT by the National Energy Retail Law (ACT) Act 2012, with the ACT Act applying some modifications for the purposes of the Territory.
The NERL Rules are set out in a Schedule of the NERL and contain specific regulatory requirements in relation to small energy retail customers. Of relevance to this complaint is rule 21:
21     Estimation as basis for bills (SRC and MRC)
(1)     A retailer may only base a small customer’s bill on an estimation of the customer’s consumption of energy where:
(a)the customer consents to the use of estimation by the retailer; or
(b)the retailer is not able to reasonably or reliably base the bill on an actual meter reading; or
(c)metering data is not provided to the retailer by the responsible person or metering coordinator (as applicable).
(2)     Where estimations are permitted to be used as the basis for a small customer’s bill, the estimations must be based on:
(a)the customer’s reading of the relevant meter (which may be a customer read estimate, as defined in subrule (3A)); or
(b)historical metering data for the customer reasonably available to the retailer; or
(c)the average usage of energy by a comparable customer over the corresponding period, if there is no historical metering data for the customer.
(3)     The retailer must inform the small customer, on the bill, that the bill is based on an estimation, and (if applicable) that the estimation is based on the customer’s reading of the relevant meter under subrule (2)(a).
(3A) If:
(a)a small customer receives a bill based on an estimate, other than a customer’s reading of the relevant meter; and
(b)where the bill under paragraph (a) is for the supply of electricity, the consumption of electricity at the customer’s premises is not recorded by an interval meter, being a meter that records consumption derived from interval metering data, the small customer may request an adjusted bill based on the customer’s reading of the relevant meter (a customer read estimate) by providing the retailer with the customer read estimate before the due date for payment of the bill under paragraph (a).
(3B)   On each occasion when the conditions in subrules (3A)(a) and, as applicable, (b) are met, the retailer must inform the small customer in writing:
(a)that the customer may request an adjusted bill in accordance with subrule (3A); and
(b)of any changes to the customer’s payment obligations if the customer makes such a request; and
(c)how the customer can obtain the information under subrule (3C).
(3C) A retailer must make available to small customers at no charge and in clear, simple and concise language for the purposes of subrule (3A):
(a)guidance on how to read the customer’s meter; and
(b)the types of information the customer is required to provide when lodging the customer read estimate; and
(d)instructions on the methods by which the customer can lodge the customer read estimate.
(3D) Where:
(a)a small customer requests an adjustment to a bill based on an estimate in the circumstances set out in subrule (3A) by providing the retailer with a customer read estimate; and
(b)the retailer receives the customer read estimate before the due date for payment of the bill; and
(c)the customer read estimate is provided in accordance with the guidance and requirements provided by the retailer under subrule (3C), the retailer must, promptly and at no extra charge, provide the small customer with an adjusted bill based on the customer read estimate.
(3E) If:
(a)the customer read estimate was received on or after the due date for payment of the bill; or
(b)the customer read estimate is not provided in accordance with the guidance and requirements provided by the retailer under subrule (3C),
the retailer may reject the customer read estimate and, if it does so, must promptly notify the small customer in writing of the specific reasons for its decision.
Note:
For example, specific reasons that a retailer might provide for rejecting a customer read estimate for the purposes of subrule (3E)(b) include:
•the number value of the customer read estimate provided for cumulative energy consumed is smaller than a previous actual read of the meter; or
•where the customer read estimate is provided in the form of a photograph of the meter, that the meter display is not clearly visible or the photograph does not show the correct meter installed at the small customer’s premises.
(3F) The retailer must set out a process under its standard complaints and dispute resolution procedures for a small customer to attempt to rectify a customer read estimate that is not accepted under subrule (3E)(b).
(3G) If the retailer does not accept the customer read estimate under subrule (3E), the retailer must inform the small customer in the same notice required to be provided under that subrule, that the customer may:
(a)lodge a dispute with the energy ombudsman where the customer is not satisfied with the retailer’s decision after the customer has followed the process under subrule (3F); and
(b)separately, request the retailer to review the bill under rule 29.
(3H) If under subrule (3B)(b) a retailer has advised a small customer of changes to the customer’s payment obligations, and those changes include a new date for payment of the customer’s bill, any benefits provided under the retailer’s contract with the customer for payments made by the due date must be applied with respect to the new date for payment.
(4)     Without affecting rule 20 (2), if the retailer has issued the small customer with a bill based on an estimation and the retailer subsequently issues the customer with a bill that is based on an actual meter reading or on metering data:
(a)the retailer must include an adjustment on the later bill to take account of any overcharging of the customer that has occurred; and
(b)unless the actual meter reading or metering data could not be obtained as a result of an act or omission by the customer, the retailer must, if requested to do so by the customer, offer the customer time to pay any undercharged amount by agreed instalments, over a period being no longer than:
(i)the period during which an actual meter reading or metering data was not obtained, where that period is less than 12 months; or
(ii)in any other case, 12 months.
Note:
This subrule is a civil penalty provision for the purposes of the Law. (See the National Regulations, clause 6 and Schedule 1.)
(5)     Where an attempt to read the small customer’s meter is unsuccessful due to an act or omission of the customer, and the customer subsequently requests a retailer to replace an estimated bill with a bill based on an actual meter reading, the retailer must comply with that request but may pass through to that small customer any costs it incurs in doing so.
(6)     Application of this rule to standard retail contracts
This rule applies in relation to standard retail contracts.
(7)     Application of this rule to market retail contracts
This rule applies in relation to market retail contracts (other than prepayment meter market retail contracts), but only to the extent (if any) a contract provides for estimation as the basis for the small customer’s bill.

Consideration of the issues

The Tribunal found no error in the gas readings. There is no evidence to say that the gas meter is inaccurate. Because of the respondent’s “right to estimate”, it is within their rights to bill the applicant in this way.
The applicant is to pay the respondent $2,482.63 by instalments of $120 per fortnight.
The Tribunal is sympathetic to the applicant’s ‘predicaments’. The process of estimating the usage from three of the four annual quarters, including for the colder winter months, has led to the applicant receiving unexpectedly very high bill in the warmer months.
The issue was compounded by very low estimates in the colder months that were clearly not based on any historical cold month usage.
Consumers on moderate incomes do not necessarily have the capacity to budget for billing patterns of this kind and then very large bills can cause hardship and anxiety.
If estimates are to be used for three of the four quarters in a year, then the estimates should be realistic.
………………………………..
Senior Member A Anforth

HEARING DETAILS

FILE NUMBER:	EW 0286/2018
PARTIES, APPLICANT:	Alfonso Campa
PARTIES, RESPONDENT:	ICON Retail Investments Limited (ABN 23 074 371 207) and AGL Act Retail Investments Pty Ltd (ABN 53 093 631 586) Trading as ActewAGL Retail (ABN 46 221 314 841)
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member A Anforth
DATES OF HEARING:	5 July 2019