Jamiel v ActewAGL Retail (Energy and Water)
[2014] ACAT 10
•24 February 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JAMIEL v ACTEWAGL RETAIL (Energy and Water) [2014] ACAT 10
EW 2013/1156
Catchwords: ENERGY AND WATER – Complaint against utility – electricity customer retail contract – billing dispute – high bills
Legislation:Utilities Act 2001, s 172
National Energy Retail Rules, rules 20, 24, 25 and 29
Tribunal: Mr P. Sutherland – Senior Member
Date of Orders: 24 February 2014
Date of Reasons for Decision: 24 February 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL EW 2013/1156
BETWEEN:
YARUB JAMIEL
Applicant
AND:
ACTEW RETAIL LTD (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: Mr P. Sutherland – Senior Member
DATE: 24 February 2014
ORDERS
In relation to Complaint B:
1.The complaint application is dismissed.
2.The Applicant owes the amount of $5,069.23 to the Respondent in respect of the two bills which are the subject of Complaint B.
3.In respect of this debt, the Applicant must pay the Respondent $850 per month commencing no later than 28 February 2014 and continuing until the debt is repaid.
4.The Applicant must pay each subsequent bill when it becomes due and payable.
5.Time to pay the bill issued on 14 January 2014 in the amount of $1,619.64 is extended to 14 March 2014.
6.The Order for payment of an interim amount made on 20 November 2013 is vacated.
7.If the Applicant fails to comply with Order 3 or Order 4, the Respondent has liberty to apply to the Tribunal for an order that the unpaid amounts are immediately due and payable.
………………………………..
Mr P. Sutherland
Senior Member
REASONS FOR DECISION
The Complaint
Dr Jamiel, the Applicant, is a resident of South Canberra. On 16 November 2013, the Applicant, through an authorized intermediary, made an oral complaint to ACAT (the Tribunal) in relation to an electricity bill of $17,813 rendered on or around 20 May 2013. The Tribunal accepted the complaint as an application under section 172 (item 1, Table 172) of the Utilities Act 2000 (the Utilities Act), being an allegation of a contravention of a customer retail contract by the Respondent, ActewAGL Retail. The nature of the complaint is described nationally as a "high bill" complaint and a process for resolving such complaints is set out in rule 29 "Billing Disputes" of the National Energy Retail Rules (the NER Rules).
In a letter dated 25 November 2013, the Applicant included in the ambit of the complaint two further bills: a bill for $4,073.69 issued 5 September 2013 for the period 17 April to 10 July 2013; and a bill for $3,395.54 issued 12 October 2013 for the period 10 July to 8 October 2013.
Complaint Resolution Process
In accordance with its standard energy and water complaint procedures, the Tribunal attempted to resolve the complaint by facilitating communication between the Applicant and the Respondent. The first step in this process was to invite the Respondent to respond in writing to the complaint.
After a series of letters and emails from both parties, the essential elements of the dispute were clarified, with the Respondent relying on a meter test conducted on 31 October 2013 which showed that the meter was accurate in relation to all three bills and the Applicant contending that the level of usage represented by the bills was unreasonably high and must be the result of metering issues. The Applicant also raised other issues relating to the backdated nature of the original bill and removal of a meter from the property while the complaint was under investigation.
The Applicant made no payments towards the bills because of the dispute. In order to ensure that some payments occurred, on 20 November 2013 the Tribunal ordered him to pay $600 per fortnight to the Respondent. On 25 November 2013, the Applicant made an application to have the payment reduced to $150.00 per fortnight.
The Tribunal held a Directions Hearing on 12 December 2013 to consider the application for reduction in the amount of payment and to clarify how the complaint would be progressed to a hearing. The Applicant was not present but was represented by his son. The Respondent was represented by Mr Ian Male (Deputy General Counsel), Ms Jane Corkhill (Manager, Customer Services), Ms Pilly Jele (Customer Liaison Supervisor), and Mr Christian Bustamante (Customer Liaison Manager, ActewAGL Distribution).
From the documentation on file and at the Directions Hearing, it became apparent that the facts and fundamental issues raised by the first bill were different from those raised by the subsequent two bills. The first bill raises questions about whether there was a customer account for the period of usage billed and whether backdating provisions and other requirements of the NER Rules were complied with. The subsequent bills raise only the issue of whether the bills were properly calculated and issued in reliance on a properly functioning meter.
The Tribunal directed that the complaint about the high bill of $17,749 rendered in April 2013 (Complaint A) be treated as a separate application from the complaint in respect of high bills of $3,395.54 and $4,073.69 (Complaint B).
In relation to Complaint A, the Tribunal made orders for the Respondent to file certain documents relevant to the complaint by 28 February 2014. The Tribunal also requested the Respondent to review its position in relation to the quantum of the debt, given a possible non-compliance by the utility with NER Rules, which could have the effect of making a significant part of the bill uncollectible.
The Tribunal dismissed the application for reduction of the amount of fortnightly payment and directed that the Applicant pay $600 per fortnight commencing by close of business Monday 16 December 2013. The Tribunal drew attention to the hardship assistance provisions in Part 12 of the Utilities Act and gave leave to the Applicant to seek such assistance in respect of this order.
The amount of $600 per fortnight was set by the Tribunal based on the average usage of the Applicant between 17 April and 8 October 2013. The Tribunal agreed with a suggestion made on behalf of the Applicant that the amount could be reviewed if the next bill (due in January) changed significantly.
The Applicant made his first payment of $600 on 18 December 2013 and has since made payments on 2 January 2014, 14 January 2014 and 4 February 2014, a total of $2,400.
In an email dated 3 February 2014, the Applicant requested reduction of the payment to $450 each fortnight on the basis that the January bill was $1,619.64, reducing the average fortnightly consumption approximately to the lower figure suggested by the Applicant.
On 7 February 2014, the Respondent opposed any reduction in the amount of the payment. It noted that the January 2014 bill was not in dispute and should be paid in full by the due date of 3 February 2014. The Tribunal has not considered the Applicant's request for reduction of the payment because it has all the evidence necessary to finalise Complaint B. The Tribunal does not consider it necessary or desirable to order additional payments in relation to Complaint A. The whole of that bill is in dispute and the Applicant is already required to pay substantial amounts to the Respondent to address his confirmed debt. It is noted however, that any order finalising Complaint A will be additional to the orders made in respect of Complaint B.
Legislation
The Tribunal's jurisdiction to consider Complaint B is found in section 172 (item 1 in Table 172) of the Utilities Act. The Applicant is a consumer affected by an alleged contravention of a customer contract by the Respondent utility.
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 National Energy Retail Rules (NER Rules) are set out in a Schedule to the NERL and contain specific regulatory requirements in relation to small energy retail customers. Of relevance to this complaint is Division 4 (Customer retail contracts – billing) (rules 20-35), in particular rule 20 (Basis for bills), rule 24 (Frequency of bills), rule 25 (Content of bills) and rule 29 (Billing disputes).
The legislation covering meters and metering data is Chapter 7 of the National Electricity Rules, which are made by the South Australian Minister under section 90 of the National Electricity Law. The National Electricity Rules regulate the operation of the National Electricity Market, including Registered participants (Chapter 1), Market rules (Chapter 3), Power system security (Chapter 4), Network connection, planning and expansion (Chapter 5), Electricity connection for retail customers (Chapter 5A), Economic regulation of distribution services (Chapter 6) and Chapter 7 (Metering). Chapter 7 provides very detailed rules about metering installations, collection and provision of metering data, accuracy of metering installations and inspection, testing and audit requirements for meters.
The relevant legislation is set out in Attachment A.
Evidence, Findings and Decision in Complaint B
The Tribunal received and relied upon the following evidence in determining Complaint B:
i.The Applicant's complaint application and associated documents concerning the Respondent’s investigation of the complaint.
ii.The bills issued by the Respondent in respect of the property;
iii.A copy of the report on the meter test carried out on meter No 315834 on 31 October 2013 which shows that the meter met accuracy standards.
iv.An email from the Respondent, dated Friday 1 November 2013, which summarises the utility's contact with the Applicant between 29 April and 31 October 2013.
v.An Order of the Tribunal dated 20 November 2013 requiring the Applicant to pay $600 per fortnight on a interim basis.
vi.An Application for Interim Orders by the Applicant, dated 25 November 2013, and associated documents;
vii.A letter dated 6 December 2013 from the Applicant.
viii.Evidence given at the Directions Hearing on 12 December 2013.
ix.Submissions by the Applicant dated 10 January 2014 raising various issues about meters at the property.
x.An email from the Applicant dated 4 February 2014 which requested a reduction in the fortnightly payment to $450 per fortnight because of a reduced consumption shown in a bill issued on 14 January 2014.
xi.An email from Mr Ian Male, on behalf of the Respondent, on 7 February 2014, which opposed the requested reduction in payment amount.
xii.An email from the Applicant, dated 8 February 2014, responding to Mr Male's email and raising issues about hardship and lack of independence in meter testing.
There is other evidence available to the Tribunal, including interval data for the meter in the Respondent's property and copies of the computer records recording the utility's interactions with the Applicant. The Tribunal did not refer to this evidence in considering Complaint B, because, for reasons described below, it was not relevant. This evidence may be relevant to the consideration of Complaint A.
In his submission dated 6 December 2013, the Applicant suggested that the level of consumption billed was unreasonable – it was too high to be an accurate reflection of a domestic household's usage. He stated that he had never previously received a bill greater than $600 and that his house is new with a 6 star energy rating and energy efficient appliances.
This submission misunderstands the method on which electricity is billed under the NER Rules. The utility is required by rule 20 to base a small customer's electricity bill "on metering data provided for the relevant meter … in accordance with the metering rules …". Rule 21 relating to estimated readings is not relevant in this case. There is no requirement that the utility prove that the customer consumed the electricity billed, and in fact such a requirement would be impossible to fulfil as the electricity retailer has no right to enter the property to determine whether electricity is being used in a wasteful or an energy efficient manner and what appliances are using electricity.
In his letter dated 10 January 2014, the Applicant raised several issues concerning electricity meters at his property. He stated that Meter No. 315835 was removed from the property without adequate written explanation and that this may provide evidence or information why his electricity readings were so high. On 1 November 2013, the Respondent advised that this meter was removed because it was not connected to the property and was not used. The two bills issued in September and October 2013 confirm that no consumption was charged in respect of this meter.
The Applicant also contended that his solar panels may have been connected backwards into the electricity meter, causing an incorrect reading of consumption. The two bills issued in September and November 2013 show that the solar renewable energy generator payments are calculated by reference to a separate meter (Meter No. 339790) and therefore have no connection to Meter No. 315834. In any case, such a problem would most likely be attributable to the customer's electrician, who was responsible for installing the solar system, and not to the electricity distributor, which is responsible for the operation of the meter.
The Applicant also complained that the meter test was performed by ActewAGL itself “through its wholesale department”, and there was a conflict of interest in ActewAGL confirming the accuracy of its own meters. The Tribunal shares the Applicant's concern about this conflict of interest but does not accept that this unfortunate situation invalidates the meter test undertaken on Meter No. 315834. The national regulators have authorised the electricity distributor in the ACT, ActewAGL Distribution, to undertake electricity meter tests, and this company undertakes meter tests for all electricity retailers in the ACT, including its associate ActewAGL Retail. This contrasts with water, where tests are carried out by the Brisbane City Council on contract to Actew Corporation, and gas, where tests are carried out in an AGL facility in Melbourne. The Tribunal intends to raise its concern with the Australian Energy Regulator to see if a more independent arrangement for electricity meter testing can be achieved in the ACT.
On the basis of the evidence in [20] above, I find the following in relation to Complaint B:
i)The Applicant was a small electricity customer on a standard retail contract for the relevant property.
ii)The bill for $4,073.69 issued on 5 September 2013 appears to have been issued two months after the billing period, in possible breach of the NER Rules, however this delay did not adversely impact on the Applicant as he had a strong price signal from the previous high bill and the delay may have arisen from the billing dispute process already underway.
iii)The contents of the two bills under review adequately comply with rule 25.
iv)The two bills under review are based on actual readings of Meter No 315834, show an appropriate progression of readings and are correctly calculated in relation to the applicable tariff.
v)A meter test of Meter No 415834, conducted on 31 October 2013, shows that the meter was functioning in accordance with the metering standards
On the basis of the findings below, Complaint B is not substantiated and is therefore dismissed.
Payment of Debt in Complaint B
As a result of this decision, the Applicant owes the amount of $5,069.23 to the Respondent ($7,469.23 less interim payments of $2,400.00). In all of the circumstances considered, the Tribunal determines that this amount should be paid by the Applicant over a period of six months, which is the consumption period for the two bills in dispute.
The Tribunal accepts the submission of Mr Male, made on 7 February 2014, that the current invoice for $1,619.64 is not in dispute and should be paid in full by the due date (NER Rule 29(4)(b)). As the due date has now passed, the Tribunal will extend the due date to 14 March 2014, to allow the Applicant time to pay this invoice and the monthly debt repayment within a four week period. All future invoices must be paid within the standard terms of the retail electricity contract.
The orders for repayment have been set on the basis of a reasonable level of debt recovery for the Respondent utility, and without specific consideration of the Applicant's capacity to pay these amounts. This approach appears reasonable given that the Applicant resides in a large new house in a high value Canberra suburb, and apparently has substantial business interests.
If the Applicant believes that he cannot afford to pay the amounts ordered, he is entitled to apply for hardship assistance under Part 12 of the Utilities Act. Part 12 authorises the Tribunal to order a payment plan which is reflective of a customer's actual capacity to pay their electricity bills. It should be noted, however, that this assistance is based on substantial financial hardship and is approved only after a detailed examination of the customer's financial position and of the financial position of other persons residing in the property. This investigation involves full disclosure not only of personal income and expenditure, but also of assets and liabilities, and other means of support through family companies, family trusts, business activities, etc.
………………………………..
Mr P. Sutherland
Senior Member
ATTACHMENT A – RELEVANT LEGISLATIVE PROVISIONS
UTILITIES ACT 2001
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.
NoteIf a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.
Table 172ACAT applications
NoteItems 3 to 5 do not apply to NERL retailers (see s 75B).
| 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 of an obligation under this Act in relation to its network operations |
| 6 | person affected by act or omission | act or omission of an authorised person for a utility in relation to network operations |
| 7 | person on whom charge imposed | capital contribution charge imposed under s 101 |
NATIONAL ENERGY RETAIL RULES
20Basis for bills (SRC and MRC)
(1)A retailer must base a small customer’s bill for the customer’s consumption of:
(a) electricity:
(i)on metering data provided for the relevant meter at the customer’s premises provided by the responsible person and determined in accordance with the metering rules and rule 21; or
(ii)on any other method agreed by the retailer and the small customer.
(b) gas:
(i)on an actual reading of the relevant meter at the customer’s premises provided by the responsible person and determined in accordance with the metering rules; or
(ii)on metering data provided for the relevant meter at the customer’s premises provided by the responsible person and determined in accordance with the metering rules; or
(iii)on an estimation of the customer’s consumption of energy, as provided by rule 21; or
(iv)on any other method agreed by the retailer and the small customer.
(2)The retailer must use its best endeavours to ensure that actual readings of the meter are carried out as frequently as is required to prepare its bills consistently with the metering rules and in any event at least once every 12 months.
(3)Despite subrules (1) and (2), if there is no meter in respect of the customer’s premises, the retailer must base the customer’s bill on energy data that is calculated in accordance with applicable energy laws.
24Frequency of bills (SRC)
(1)A retailer must issue bills to a small customer at least once every 3 months.
Note:
This subrule is a civil penalty provision for the purposes of the Law. (See the National Regulations, clause 6 and Schedule 1.)
(2)A retailer and a small customer may agree to a billing cycle with a regular recurrent period that differs from the retailer’s usual recurrent period where the retailer obtains the explicit informed consent of the small customer.
(3)Application of this rule to standard retail contracts
This rule applies in relation to standard retail contracts.
(4)Application of this rule to market retail contracts
This rule does not apply in relation to market retail contracts.
Contents of bills (SRC and MRC)
(1)A retailer must prepare a bill so that a small customer can easily verify that the bill conforms to their customer retail contract and must include the following particulars in a bill for a small customer:
(a) the customer’s name and account number;
(b) the address of the customer’s premises for the sale of energy and the customer’s mailing address (if different);
(c) the meter identifier;
(d) the billing period;
(e) the pay-by date for the bill and the bill issue date;
(f) the total amount payable by the customer, including amounts of any arrears or credits;
(g) tariffs and charges applicable to the customer;
(h) the basis on which tariffs and charges are calculated;
(i) whether the bill was issued as a result of a meter reading or an estimation and, if issued as a result of a meter reading, the date of the meter reading;
(j) the values of meter readings (or, if applicable, estimations) at the start and end of the billing period;
(k) particulars of the average daily consumption during the billing period;
(l) if a bill was issued by the same retailer for the corresponding billing period during the previous year, particulars of the average daily consumption during that previous billing period;
(m) the estimated date of the next scheduled meter reading (if applicable);
(n) details of consumption or estimated consumption of energy;
(o) for residential customers—energy consumption benchmarks in accordance with Part 11;
(p) any amount deducted, credited or received under a government funded energy charge rebate, concession or relief scheme or under a payment plan;
(q) if the customer has provided a security deposit, the amount of that deposit;
(r) details of the available payment methods;
(s) reference to the availability of government funded energy charge rebate, concession or relief schemes;
(t) a telephone number for account enquiries, the charge for which is no more than the cost of a local call;
(u) a telephone number for complaints (which may be the same as that for account enquiries), the charge for which is no more than the cost of a local call;
(v) a separate 24 hour telephone number for fault enquiries and emergencies, the charge for which is no more than the cost of a local call, being the telephone number for the distributor and giving the name of the distributor;
(w) contact details of interpreter services in community languages;
(x) any proportionate billing information in accordance with rule 22.
Note:
This subrule is a civil penalty provision for the purposes of the Law. (See the National Regulations, clause 6 and Schedule 1.)
29Billing disputes (SRC and MRC)
(1)A retailer must review a bill if requested to do so by the small customer.
Note:
This subrule is a civil penalty provision for the purposes of the Law. (See the National Regulations, clause 6 and Schedule 1.)
(2)The retailer must conduct the review in accordance with the retailer’s standard complaints and dispute resolution procedures, including any time limits applicable under those procedures.
(3)The retailer must inform the small customer of the outcome of the review as soon as reasonably possible but, in any event, within any time limits applicable under the retailer’s standard complaints and dispute resolution procedures.
(4)The retailer may require the small customer to pay:
(a) the lesser of:
(i)that portion of the bill under review that the customer and the retailer agree is not the subject of review; or
(ii)an amount equal to the average amount of the customer’s bills in the previous 12 months (excluding the bill in dispute); and
(b) any other bills that are properly due.
(5)If the small customer requests that, in reviewing the bill, the meter reading or metering data be checked or the meter tested:
(a) the retailer must, as the case may require:
(i)arrange for a check of the meter reading or metering data; or
(ii)request the responsible person to test the meter; and
(b) the customer must pay for the cost of the check or test (which the retailer may request be paid in advance); and
(c) if the meter or metering data proves to be faulty or incorrect, the customer must be reimbursed for the cost of the check or test; and
(d) if a retailer is required to reimburse an amount paid in advance for a meter check under paragraph (c) and that amount has been paid by the retailer to the distributor (or responsible person) to undertake the test, the distributor must reimburse the retailer for that amount.
(6)Where, after conducting a review of the bill, the retailer is satisfied that it is:
(a) correct, the retailer may require the small customer to pay the amount of the bill that is still outstanding; or
(b) incorrect, the retailer:
(i)must adjust the bill in accordance with rule 30 or 31, as the case requires; and
(ii)may require the customer to pay the amount (if any) of the bill that is still outstanding; and
(iii)must refund (or set off against the amount in subparagraph (ii)) any amount paid in advance under subrule (5).
(7)The retailer must inform the small customer that the customer may lodge a dispute with the energy ombudsman after completion of the retailer’s review of a bill, where the customer is not satisfied with the retailer’s decision in the review and the retailer’s action or proposed action under subrule (6).
Note:
This subrule is a civil penalty provision for the purposes of the Law. (See the National Regulations, clause 6 and Schedule 1.)
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