Hardship Applicant 9642 v Origin Energy Ltd (Energy and Water)

[2017] ACAT 40

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HARDSHIP APPLICANT 9642 v ORIGIN ENERGY LIMITED (ENERGY & WATER) [2017] ACAT 40

EW 2016/0408

EW 2016/0409

Catchwords:              ENERGY & WATER - hardship client – hardship protection given for gas and electricity supply – hardship application subsequently dismissed for failure to comply with conditions set by ACAT E&W – whether the dismissal should be set aside – jurisdiction and powers of ACAT – power to order utility not to withdraw supply – power to set conditions for maintenance of supply – power to discharge debt – circumstances relevant to exercise of powers by ACAT

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 s 60

Utilities Act 2000 ss 172, 179, 180, 183

Tribunal:Senior Member P Sutherland

Member L Mayes

Date of Orders:  5 May 2017

Date of Reasons for Decision:         22 May 2017

AUSTRALIAN CAPITAL TERRITORY  ) EW 2016/0408

CIVIL & ADMINISTRATIVE TRIBUNAL       ) EW 2016/0409

BETWEEN:

HARDSHIP APPLICANT 9642

Applicant

AND:

ORIGIN ENERGY LIMITED

Respondent

TRIBUNAL:Senior Member P Sutherland

Member L Mayes

DATE:5 May 2017

APPLICATION TO SET ASIDE

NOTICE OF COMPLAINT APPLICATION

Section 56(C) ACT Civil and Administrative Tribunal Act 2008

Section 116(1)(C) National Energy Retail Rules

Section 5(f) National Energy Retail Regulations

Application No. :            2016/0408
Applicant:  Hardship Applicant 9642
Premises:  Charnwood
Respondent Utility:          Origin Energy
Utility Service:                 Electricity - Customer 900000219163

(1)ACT Civil and Administrative Tribunal – Energy and Water (the “Tribunal”) is satisfied that:

(a)the Applicant has made an Application to the Tribunal to set aside a Tribunal Order issued on 23/04/2017;

(b)     the Tribunal considered the application on 05/05/2017; and

(c)     the Application to set aside is Agreed.

(2)Being satisfied of the above matters, the Tribunal hereby gives notice to the Respondent Utility that this Complaint remains unresolved.

DIRECTION

MAINTENANCE OF UTILITY SERVICE UPON CONDITIONS

Section 179, Utilities Act 2000

Application No. :            2016/0408
Applicant:  Hardship Applicant 9642
Premises:  Charnwood
Respondent Utility:          Origin Energy
Utility Service:Electricity - Customer 900000219163

(1)ACT Civil and Administrative Tribunal – Energy and Water (the “Tribunal”) is satisfied that:

(a)the Applicant has made an Application to the Tribunal that the Respondent Utility proposes to withdraw the Utility Service from the Premises;

(b)the proposed withdrawal of the Utility Service is because of failure to pay a customer debt in relation to residential premises; and

(c)the withdrawal of the Utility Service would cause substantial hardship to the Applicant.

(2)Being satisfied of the above matters, the Tribunal gives a Direction that the Respondent Utility must maintain the Utility Service at the Premises.

(3)The Tribunal gives the direction in paragraph (2) on condition that the Complainant will:

(a)pay the amount of $120.00 per fortnight starting by 19/05/2017; and

(b) meet with the Tribunal to review these conditions when required to do so by notice in writing.

(4)If the Applicant fails to comply with the conditions set out in paragraph (3), the Respondent Utility may apply to the Tribunal for revocation of this Direction.

(5)The Respondent Utility must not commence or maintain any civil enforcement or other recovery action in respect of this customer debt while this Direction is in force.

(6)This Direction remains in force until it is revoked by Order or Direction of the Tribunal.

APPLICATION TO SET ASIDE

NOTICE OF COMPLAINT APPLICATION

Section 56(C) ACT Civil and Administrative Tribunal Act 2008

Section 116(1)(C) National Energy Retail Rules

Section 5(f) National Energy Retail Regulations

Application No. :            2016/0409
Applicant:  Hardship Applicant 9642
Premises:  Charnwood
Respondent Utility:          Origin Energy
Utility Service:                 Gas - Customer 900000219171

(1)     ACT Civil and Administrative Tribunal – Energy and Water (the “Tribunal”) is satisfied that:

(a)the Applicant has made an Application to the Tribunal to set aside a Tribunal Order issued on 23/04/2017;

(b)the Tribunal considered the application on 05/05/2017; and

(c)the Application to set aside is Agreed.

(2)     Being satisfied of the above matters, the Tribunal hereby gives notice to the Respondent Utility that this Complaint remains unresolved.

DIRECTION

MAINTENANCE OF UTILITY SERVICE UPON CONDITIONS

Section 179, Utilities Act 2000

Application No. :            2016/0409

Applicant:Hardship Applicant 9642

Premises:Charnwood

Respondent Utility:          Origin Energy

Utility Service:                 Gas - Customer 900000219171

(1)ACT Civil and Administrative Tribunal – Energy and Water (the "Tribunal") is satisfied that:

(a) the Applicant has made an Application to the Tribunal that the Respondent Utility proposes to withdraw the Utility Service from the Premises;

(b) the proposed withdrawal of the Utility Service is because of failure to pay a customer debt in relation to residential premises;

(c) the withdrawal of the Utility Service would cause substantial hardship to the Applicant.

(2)Being satisfied of the above matters, the Tribunal gives a Direction that the Respondent Utility must maintain the Utility Service at the Premises.

(3)The Tribunal gives the direction in paragraph (2) on condition that the Complainant will:

(a)pay the amount of $50.00 per fortnight starting by 19/05/2017; and

(b) meet with the Tribunal to review these conditions when required to do so by notice in writing.

(4)If the Applicant fails to comply with the conditions set out in paragraph (3), the Respondent Utility may apply to the Tribunal for revocation of this Direction.

(5)The Respondent Utility must not commence or maintain any civil enforcement or other recovery action in respect of this customer debt while this Direction is in force.

(6)This Direction remains in force until it is revoked by Order or Direction of the Tribunal.

…………Signed …………..

Senior Member P Sutherland

REASONS FOR DECISION

1.The applicant made a hardship application under Part 12 of the Utilities Act 2000 (the Utilities Act) on 27 September 2009 to a predecessor agency, the Essential Services Community Council (ESCC). She was allocated client number 9642 and has been a hardship client of the ESCC and subsequently ACAT Energy and Water (ACAT E&W), at various times since then.

2.On 8 March 2017, ACAT E&W dismissed her current hardship applications because of her failure to comply with conditions imposed by ACAT E&W. These applications related to the supply by Origin Energy Limited (Origin Energy) of electricity (Application No 2016/0408) and gas (Application No 2016/0409) to her residential premises in Charnwood.

3.On 23 April 2017, the applicant applied by email to have her hardship protection restored. Her email was accepted as an application to set aside the dismissal orders. The applicant attended a hearing on 5 May 2017 and discussed her circumstances with a panel comprising Senior Member Peter Sutherland and Member Leasa Mayes (the Tribunal).

4.The Tribunal agreed to the two applications to set aside and directed her electricity and gas retailer, Origin Energy, to maintain utility supply to her premises on condition that the applicant make fortnightly payments of $120.00 on the electricity and $50.00 on the gas.

5.On 8 May 2017, Bianca Henschel, Specialist Consultant, Origin Energy enquired by email why another direction was being raised for the applicant. ACAT E&W accepted this email as a request for written reasons for decision under section 60 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). Because of the private nature of the evidence, the Tribunal considers it preferable that the reasons for decision should not disclose the name and address of the applicant.

Background information

6.The applicant made a hardship application to the ESCC in September 2006, referred by her retailer, but she did not attend the original hearing. In May 2010, she made a further hardship application, and hardship protection was ordered on condition that she pays $70.00 per fortnight (p/f) on her electricity account. At that time, her electricity debt was approximately $1,600.00.

7.Since this initial hardship protection order, the applicant has continued to be engaged with the ACAT E&W hardship assistance process, but on a very interrupted basis, with significant periods where her hardship protection was dismissed for failure to comply with conditions set by ACAT E&W.

8.In early 2015, the applicant’s son suffered from a very serious medical condition requiring significant treatment in a Sydney hospital. ACAT E&W discharged $2,500.00 from her electricity account on special circumstances compassionate grounds under section 180 of the Utilities Act. At that time, the applicant’s electricity payments were $180.00 p/f , usage of $180.00 p/f, and she owed a significant electricity debt.

9.In May 2015, the applicant became eligible for Debt Horizon Discharge and an initial discharge of $150.00 was approved by ACAT E&W. In December 2015, the applicant’s protection was dismissed as payments had ceased.

10.On 30 May 2016, the applicant advised ACAT E&W that she had become a customer of Origin Energy and that she was unable to agree on a payment arrangement with their hardship team. She was now in a premises in Charnwood and was in debt of approximately $1,000.00 on both electricity and gas. At this time, she stayed in the Origin Energy hardship process and no ACAT E&W hardship protection orders were issued.

11.On 31 August 2016, the supply of gas to the applicant’s premises was disconnected. ACAT E&W made an interim order to restore the gas supply and conducted a hearing on 14 September 2016 in relation to both electricity and gas. ACAT E&W ordered maintenance of supply on the following basis: Electricity payment of $75.00 p/f and usage of $54.00 p/f with a debt of $1,310.00. Gas payments of $25.00 p/f and usage of $19.00 p/f with a debt of $470.00.

12.The applicant made payments regularly until November 2016. Her payments became irregular in November and ceased after 9 December 2017. On 17 February 2017, Origin Energy expressed concern that the applicant’s arrears were increasing, and on 8 March 2017 Origin Energy requested dismissal of protection “so we can commence collection activity to engage the customer to pay”. At this point, the applicant’s electricity debt was $3,521.26 and her gas debt was $1,725.72.

13.On 8 March 2017, ACAT E&W dismissed the applicant’s hardship protection. On 23 April 2017, she made an application to set aside which was heard by the Tribunal on 5 May 2017.

The Legislative Framework

14.ACAT has jurisdiction to receive a hardship application under item 3, Table 172 in Part 12 of the Utilities Act (see Attachment A). The applicant is a consumer who is likely to suffer substantial hardship if her utility services are withdrawn.

15.If a complainant is likely to suffer substantial hardship because of withdrawal of a residential utility service, ACAT has power under section 179 of the Utilities Act (see Attachment A) to order the utility not to withdraw supply, and may set conditions for the maintenance of supply.

16.If ACAT is satisfied that payment of a utility customer debt in relation to residential premises would cause substantial hardship, ACAT has power under section 180 of the Utilities Act (see Attachment A) to discharge debt up to an amount of $10,000. Section 183 provides that the amount discharged is reimbursed to the utility by the ACT Government.

Circumstances of the applicant

17.At the hearing on 5 May 2017, the applicant described her circumstances on an Energy & Water hardship assistance update form and met with the Tribunal to discuss her circumstances in a confidential environment. The Tribunal had a summary of the applicant’s electricity and gas accounts for the previous year (including account balance, amounts billed, amounts paid, and an estimate of annualised fortnightly electricity usage). The Tribunal also had access to the applicant’s ACAT E&W file which contains a detailed history of her interaction with ACAT E&W.

18.The account summary showed that there had been no electricity payment since December 2016 and electricity usage of $135.00 per fortnight and a debt of $3,008.54. There had been no gas payments since December 2016 and gas usage of $82.00 per fortnight with a debt of $1,632.41.

19.The applicant lives in a private rental house in Charnwood, with electricity bills of $1,099.00 (9 September 2016) and $801.00 (6 December 2016) and gas bills of $186.00 (20 September 2016) and $1,288.00 (9 December 2016). The bills suggest that the household uses both electric and gas heating and that the September 2016 gas account may have been based on an estimate.

20.The applicant explained that she had separated from her partner in 2016 and she now could not afford to pay the whole cost of private rent ($826.00 p/f) from her income, which comprises only parenting payment and FTB for three children. Her housing situation is difficult and she is in contact with support agencies.

21.The applicant explained that she had recently given birth to her third child prematurely and that this child is still in hospital. She is under great stress because of this circumstance. Fortunately, her older son is now in good health.

22.The applicant discussed her appliance use in the house, advising that:- there is no granny flat;- there is no dryer, pool or air conditioning, and her fridge is new;- there are three small electric column heaters and gas wall heaters in the dining room and kitchen;- the hot water system is gas;- the house is very drafty.

23.The applicant advised that the Origin Energy hardship team offered a payment plan of $216.00 p/f for electricity and $110.00 p/f for gas. She could not afford this.

Consideration and Findings

24.The Tribunal accepts the evidence given by the applicant and finds that she would suffer substantial hardship if her electricity or gas supplies were withdrawn. The particular circumstances of hardship are those concerning her high private rental and her premature child (see [19] and [20] above).

25.The applicant is a very high user of both electricity and gas, and has probably made poor choices about heating her house in Winter 2016. That said, the house is most likely difficult to heat and expensive to heat even if the householder was very careful about utility use. The high Summer and Autumn electricity bills are hard to explain.

26.The applicant simply cannot afford the installment plan offered by Origin Energy. It is substantially above usage: Electricity payments of $216.00 p/f and usage of $135.00 pf/. Gas payments of $110.00 p/f and usage of $82.00 p/f. The amounts requested appear to focus primarily on debt recovery rather than meeting usage, with a reasonable additional payment towards debt reduction.

27.The Tribunal directed maintenance of electricity and gas supply on condition that the applicant paid $120.00 p/f on electricity and $50.00 p/f on gas. The Tribunal considered that the applicant could not afford any more than this level of payment and that the focus of hardship case management should be on reducing her usage, particularly in Winter 2017, so that her current payments would become higher than usage.

28.The Tribunal deferred consideration of Under Consumption Discharge as this should be considered only once the applicant has demonstrated that she is committed to meeting the payments directed by the Tribunal.

………………………………..

Senior Member P Sutherland
Delivered for and on behalf of the Tribunal

ATTACHMENT A

LEGISLATION

Utilities Act 2000

172ACAT applications

A person (the complainant) mentioned in table 172, column 2 may apply to the ACAT in relation to a matter (the complaint) mentioned in column 3 in relation to the complainant.

Table 172ACAT applications

column 1 item	column 2 complainant	column 3 complaint
1	consumer affected by contravention	contravention of customer contract, or customer retail contract or customer connection contract made under the National Energy Retail Law (ACT), by a utility
2	consumer affected by contravention	contravention of an industry code dealing with utility service standards by a utility
3	consumer	a utility fails to provide a utility service to consumer or withdraws a utility service from consumer, and failure or withdrawal causes substantial hardship, or is likely to cause substantial hardship, to consumer
4	person affected by contravention	contravention of s 51 (Protection of personal information) by a utility
5	person affected by contravention	contravention by a utility or a regulated utility of an obligation in relation to its network operations under this Act or the Utilities (Technical Regulation) Act 2014
6	person affected by act or omission	act or omission of an authorised person for a utility or regulated utility in relation to its network operations under this Act or the Utilities (Technical Regulation) Act 2014
7	person on whom charge imposed	capital contribution charge imposed under s 101

179Continuity of utility services—non-payment of customer debt

(1)This section applies to a complaint about the actual or potential withdrawal of a utility service because of a failure to pay a customer debt in relation to residential premises.

(2)If the ACAT is satisfied that the withdrawal of the utility services causes, or would cause, substantial hardship for a consumer, the ACAT may give the respondent a written direction—

(a)not to withdraw the service; or

(b)if the service has been withdrawn—to restore the service as soon as practicable and, in any event, within 24 hours after the direction is given to the respondent.

(3)A direction may contain ancillary directions, for example, that the service not be withdrawn—

(a)during a stated period; or

(b)unless the consumer fails to comply with a stated condition.

Note 1See the national energy retail rules, pt 6 (De-energisation (or disconnection) of premises—small customers).

Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

180Discharge of customer debt

(1)If the ACAT is satisfied that payment of a customer debt in relation to residential premises would cause substantial hardship for the customer, the ACAT may, in writing, declare that the debt is discharged in whole or to a stated extent.

(2)The declaration may provide that the discharge is conditional on payment by the customer of a stated amount or amounts in accordance with the declaration.

(3)A declaration has effect for all purposes according to its terms.

(4)The amount of the debt discharged by a declaration may not be more than—

(a)$10 000; or

(b)if another amount is prescribed by regulation—the prescribed amount.

183Reimbursement of utilities for customer debts discharged

If a customer debt owed to a utility is discharged under section 180 (Discharge of customer debt), the amount discharged is a debt due to the utility by the Territory.

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2008

60Statement of reasons

(1)This section applies if—

(a)the tribunal makes an order on an application; and

(b)within 14 days after the day the order is made, a party asks for a statement of reasons for the making of the order.

(2)The tribunal must give the party a written statement of reasons or a transcript of an oral statement of reasons for the making of the order.

(3)The statement of reasons must set out—

(a)any principles of law relied on by the tribunal; and

(b)the way in which the tribunal applied the principles of law to the facts.

NoteFor what must be included in a statement of reasons, see the Legislation Act, s 179.

(4)This section does not apply to an order under section 53 (Interim orders) or an order of a procedural nature.

HEARING DETAILS

FILE NUMBER:

EW 2016/0408

EW 2016/0409

PARTIES, APPLICANT:

Hardship Client 9642

PARTIES, RESPONDENT:

Origin Energy Limited

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBERS:

Senior Member P Sutherland

Member L Mayes

DATES OF HEARING:

5 May 2017