Hardship Client 7722 v Origin Energy Pty Ltd (Energy and Water)
[2017] ACAT 46
•12 April 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HARDSHIP CLIENT 7722 v ORIGIN ENERGY PTY LTD (Energy and Water) [2017] ACAT 46
EW 88/2017
Catchwords: ENERGY & WATER - hardship client – application for hardship protection for electricity supply – 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 53, 60
Utilities Act 2000 ss 172, 179, 180, 183
List of
Texts/Papers cited: Under-Consumption Debt Discharge
Tribunal: Member A-M Delahunt (Presiding)
Member L Mayes
Date of Orders: 12 April 2017
Date of Reasons for Decision: 16 June 2017
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
Energy and Water
DIRECTION
MAINTENANCE OF UTILITY SERVICE UPON CONDITIONS
BETWEEN:
HARDSHIP CLIENT 7722
Applicant
AND:
ORIGIN ENERGY ELECTRICITY LTD
Respondent
DATE:12 April 2017
Application NO: 2017/0088
The Tribunal orders that:
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.
Being satisfied of the above matters, the Tribunal gives a Direction that the Respondent Utility must maintain the Utility Service at the Premises.
The Tribunal gives the direction in paragraph (2) on condition that the Complainant will:
(a)pay an amount of $50.00 per fortnight starting by 30/06/2017; and
(b)meet with the Tribunal to review these conditions when required to do so by notice in writing – in approximately 3 months time.
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.
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.
This Direction remains in force until it is revoked by Order or Direction of the Tribunal.
……………Signed……..
Anne-Marie Delahunt
Presiding Member
ACT Civil and Administrative Tribunal – Energy and Water
REASONS FOR DECISION
Background Information
On 23 November 2015, the applicant made contact with the ACT Civil and Administrative Tribunal Energy and Water area (the ACAT E&W), via telephone, in relation to his debt with his electricity retailer, Origin Energy. He explained that he was financially stressed, having recently had his full-time employment cut back to part-time. ACAT E&W made an interim order under section 53 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) that his electricity supply be maintained pursuant to section 179 of the Utilities Act 2000 (the Utilities Act). The applicant was referred by ACAT E&W to the Origin Energy hardship program.
On 18 December 2015, the applicant phoned ACAT E&W and explained that he had entered a payment arrangement under the Origin Energy hardship program. Accordingly, ACAT E&W revoked the interim order it had made. At that time, the applicant’s electricity debt was approximately $1,300.00.
On 22 March 2017, the applicant contacted ACAT E&W for hardship assistance and ACAT E&W issued an interim order under section 53 of the ACAT Act to Origin Energy requiring the utility to maintain the applicant’s electricity supply.
The applicant attended a hearing on 12 April 2017 and discussed his circumstances with a panel comprising Presiding Member Anne-Marie Delahunt and Member Leasa Mayes, (the Tribunal).
The Tribunal agreed to the application for hardship protection and directed Origin Energy to maintain utility supply to the applicant’s premises on condition that the applicant makes fortnightly payments of $50.00 on his electricity account, commencing on 30 June 2017.
On 8 May 2017, Bianca Henschel, Specialist Consultant, Origin Energy enquired by email whether it was possible to come to a different arrangement so that the applicant would cover his usage. ACAT E&W accepted this email as a request for written reasons for decision under section 60 of 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.
The Legislative Framework
The ACT Civil and Administrative Tribunal (the 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 his utility services are withdrawn,
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.
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.
ACAT E&W have issued guidelines for the exercise of its power to discharge utility debts under section 180. The relevant Guideline in this case was the Under-Consumption Debt Discharge issued by ACAT E&W in February 2015 and revised in December 2016 (see Attachment B).
Circumstances of the applicant
At the hearing on 12 April 2017, the applicant described his circumstances on an ‘Energy & Water Hardship Assistance Application Form’ and also gave oral evidence in a confidential setting. The Tribunal had a summary of the applicant’s electricity 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 contained a detailed history of his previous interactions with ACAT E&W.
At the time of the hearing, the applicant’s electricity debt was $4,016.73 and his annualised fortnightly usage was $115.00 per fortnight. His previous electricity bills were $978.36 (24/8/16), $507.54 (6/12/16) and $685.00 (23/2/17). The applicant had not made any payments on his account for at least one year.
The applicant explained his circumstances that included that he has suffered mental illness but is now attending regularly with a doctor and a psychiatrist, which is helpful. The applicant stated that he was in dire financial straits but had commenced working with a financial counsellor. The applicant also stated that he was trying to limit his energy use.
The applicant explained that his work was decreased from full-time to part-time in 2015 and that he is now employed on a casual basis as a taxi driver earning, on average, $1200-$1400 per fortnight. His expenses include $800 per fortnight for private rental of a house in Monash.
The applicant noted that his finances were a mess but that he was now engaged with a financial counsellor to develop a budget and a strategy for addressing his debt.
The applicant advised that his adult son was suffering an illness, received no independent income and was fully dependent on him.
Consideration and findings
The Tribunal accepts the evidence given by the applicant and finds that he would suffer substantial hardship if his electricity supply was withdrawn. The circumstances of particular hardship are those concerning his private rental and his mental illness.
The applicant is a moderate user of electricity.
The Tribunal directed maintenance of electricity supply on condition that the applicant paid $50.00 per fortnight on electricity. 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 to enable the applicant to work with his financial counsellor to address his debt, and his with his medical support workers, over the next three months, at which time the Tribunal will review the orders.
The Tribunal determined that the ‘Under Consumption Discharge’ was appropriate at this time (see the guideline set out in Attachment B). This means that the Tribunal will discharge the difference between the cost of consumption and his payments and therefore his debt will not increase during the three month period until the next review of his circumstances by the Tribunal.
………………………………..
Member A-M Delahunt
Delivered for an on behalf of the Tribunal
Attachment A
Continuity of utility services—nonpayment 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).
Discharge 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.
Division 12.2 Applications to ACAT
ACAT 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 |
Attachment B
UNDER-CONSUMPTION DEBT DISCHARGE
What is Under-Consumption Debt Discharge?
ACAT E&W recognises that some utility customers in the ACT genuinely cannot afford to pay for the amount of utilities consumed in the household. In most cases, this inability to pay for usage is short-term, however in some cases the inability may be long-term because of highly individual circumstances in the affected household.
In such cases, ACAT E&W may authorise "Under-Consumption Debt Discharge", that is discharge will be authorised for the amount which the client spends on utility services which is in excess of the amount ordered by ACAT E&W to be paid by the client for the relevant period. In special cases, under-consumption discharge may be for the total amount of the account· because, at an ACAT E&W hearing, an assessment is made that the client has no current capacity to pay for utilities.
Who can it help?
Under-consumption discharge will be considered for all ACAT E&W clients who are in situations of extreme hardship. Under-consumption discharge can be for either a short period (generally 6- 13 weeks) or for longer periods, depending on individual circumstances.
Short-term Under-consumption Debt Discharge
There are a range of household circumstances where short-term under-consumption discharge will be considered, including where:
• there is extremely high usage in a low income household which requires investigation and/or modification of household behaviour;
• there is a short-term issues with income and ACAT E&W has. agreed that no payment is required during this period;
• ACAT E&W has made a referral for financial counselling and, again, has agreed that no payment is·required during this period.
Long-term Under-consumption Debt Discharge
Under-consumption discharge on a long-term basis will be ordered only in very special circumstances and will be reviewed at least every six months to ensure that eligibility circumstances have not changed. ACAT E&Wwill require the client to provide appropriate evidence substantiating long-term assistance, for example a medical certificate, a pharmacy report or an aged care assessment report. Circumstances for long-term/on-going under consumption debt discharge may include where:
• there is extremely high usage in a household and that usage is genuinely required because of special circumstances in the household such as disability, medical conditions including brain tumours and mental health problems, and life support equipment;
• there are unusually high and genuinely unavoidable household costs, for examp1e children receiving medical treatment in Sydney, unusually high pharmaceutical costs, etc, and this makes utilities unaffordable for the household.
Under-consumption Debt Discharge Not Appropriate
There are a number of circumstances where under-consumption discharge is not appropriate,·including where:
• the client requests a staged introduction of increased payments in circumstances where ACAT E&W considers that an amount of payment above consumption is currently manageable;
• payments below consumption are approved because the client has a realistic expectation of future income or a capital receipt which will allow payment of the accrued debt (eg. a forthcoming personal injury compensation payment or an employment or business-related lump sum payment).
Water and sewerage debts
Under-consumption discharge can be applied to water and sewerage debts in appropriate circumstances. However, consideration should always be given to ordering an amount which is less than consumption, but not discharging the under-consumption portion of the debt. Water debt is attached to the land and Icon Water can ultimately recover a water/sewerage debt when the property is sold. In some cases (eg. medium-high income earners), under-consumption discharge of water and sewerage debts may result in an unfair accretion to the client's asset base.
HEARING DETAILS
FILE NUMBER: | EW 88/2017 |
PARTIES, APPLICANT: | Hardship Client 7722 |
PARTIES, RESPONDENT: | Origin Energy Pty Ltd |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Member A-M Delahunt (Presiding) Member L Mayes |
DATES OF HEARING: | 12 April 2017 |
0
0
0