Rafferty v ActewAGL Retail Pty Ltd (Energy &Water)
[2022] ACAT 61
•1 July 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
RAFFERTY v ACTEWAGL RETAIL PTY LTD (Energy &Water) [2022] ACAT 61
EW 425/2021
Catchwords: ENERGY AND WATER – billing complaint – complaint against electricity retailer for failure to meet obligation to customer – customer’s solar array did not generate any electricity for export to the grid for several billing periods - electricity bills recorded that customer’s solar panels did not generate any solar credits – customer claims utility had obligation to separately advise them that solar panels were not generating solar credits – no contraventions in electricity bills rendered by the utility to the customer – no additional requirement to inform the customer because of representations made by utility – no contravention of Consumer Protection Code 2020 (ACT) – complaint dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 9
National Energy Retail Law (ACT) Act 2012 ss 6, 7
National Energy Retail Law (South Australia) Act 2011 s 12
Utilities Act 2000 s 172
Subordinate
Legislation cited: National Energy Retail Regulations s 5
Utilities (Consumer Protection Code) Determination 2020 ss 2.1, 5
Tribunal:Senior Member P Sutherland
Date of Orders: 1 July 2022
Date of Reasons for Decision: 1 July 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) EW425/2021
BETWEEN:
TERRY RAFFERTY
Applicant
AND:
ACTEWAGL RETAIL ABN 46 221 314 841
Respondent
TRIBUNAL:Senior Member P Sutherland
DATE:1 July 2022
ORDER
The Tribunal orders that:
Application EW 425/2021 is dismissed.
………………………………..
Senior Member P Sutherland
REASONS FOR DECISION
On 20 September 2021, Mr Terry Rafferty (the applicant) made a complaint application, through the ACAT website, that ActewAGL Retail (the respondent) had charged him twice for the same electricity service.
The respondent utility, ActewAGL Retail ABN 46 221 314 841, a partnership of AGL ACT Retail Investment Pty Ltd and Icon Retail Investments Limited, is an authorised electricity retailer in the ACT pursuant to the National Energy Retail Law.
Jurisdiction to hear this complaint application is conferred on the ACAT by section 172 of the Utilities Act 2000 (Utilities Act), which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008.
The complaint application was initially investigated by the Energy and Water section of the ACAT (ACAT EW), pursuant to its function as energy ombudsman for the ACT. ACAT EW obtained further information from the respondent utility and engaged in an iterative process with the parties which attempted to seek resolution of the complaint.
The complaint application could not be resolved through ACAT EW’s energy ombudsman processes, and the applicant asked that the application be adjudicated in a formal hearing process by the ACAT.
Senior Member Sutherland held a formal, in-person, hearing of the complaint application on 10 March 2022. At the request of the respondent, the matter was reserved so that written reasons for decision could be prepared and issued together with the decision in the matter.
In these reasons, a reference to “ACAT” refers to the ACT Civil and Administrative Tribunal generally, whereas “Tribunal” refers to the senior member who heard the complaint application.
Legislation
Jurisdiction to accept and hear this complaint application is conferred by items 1 and 2 in Table 172 in section 172 of the Utilities Act 2000, which states:
172 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 172 ACAT 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
…
ACAT EW performs the function of energy ombudsman in the ACT pursuant to the National Energy Retail Regulations, made under the National Energy Retail Law and section 12 of the National Energy Retail Law (South Australia) Act 2011, which are applied to the ACT by sections 6 and 7 of the National Energy Retail Law (ACT) Act 2012. Regulation 5 of the National Energy Retail Regulations states:
5—Energy ombudsman
For the purposes of the definition of energy ombudsman in section 2(1) of the Law, each of the following bodies or persons is prescribed as an energy ombudsman:
…
(f) for the Australian Capital Territory—the ACT Civil and Administrative Tribunal established under section 88 of the ACT Civil and Administrative Tribunal Act 2008 of the Australian Capital Territory;
The Independent Competition and Regulatory Commission (ICRC) has made the Utilities (Consumer Protection Code) Determination 2020 (CPC), which is an industry code under Part 4 of the Utilities Act. Section 5(1) of the CPC, which applies generally to utilities providing energy and water services in the ACT (section 2.1(2) of the CPC), states:
5 Conduct of utilities
(1) A Utility must act ethically, fairly and honestly in all dealings with a Customer or Consumer.
The parties submitted that the Australian Consumer Law should not be considered in relation to the matter. The Tribunal accepted this submission.
Relevant facts
In the course of the investigation of the complaint application, new aspects of the dispute between the parties emerged and relevant facts were clarified. The following summary of facts in the matter includes only those facts and issues which were relevant to the hearing of the complaint application.
The applicant had been an electricity customer of the respondent utility at a property in Weston Creek since 1999. He arranged for solar panels to be installed at the property and negotiated a customer contract with the respondent which included payments for solar credits (“renewable energy generator payments”) based on the number of kWh of electricity exported to the grid in each billing period.
For reasons that are not certain, but probably related to failure of the solar system’s inverter, the applicant’s solar system stopped exporting electricity to the grid in late 2019. As a result, no solar credits were credited to the applicant’s electricity account between December 2019 and February 2020.
An electricity bill issued on 27 November 2019 showed that the applicant’s account was credited with the amount of $147.73 for the supply of 1343 kWh of exported solar power for the period 24 August to 26 November 2019. The next bill issued on 1 March 2020 for the period 26 November 2019 to 27 February 2020 showed that no electricity was exported and no solar credits were paid. Page 3 of the electricity bill issued by the respondent utility contained the following information about solar credits:
Renewable energy generator payment (credit)
Information in similar form was included in the applicant’s electricity bills in 2019 and in subsequent periods in 2020. The information was in a small, but fully legible, typeface towards the end of each bill. The electricity bills issued in May 2020 and September 2020 showed some solar credits being paid to the applicant.
In March 2020, the applicant became aware that the solar system had failed in some respect. The inverter was replaced in late March 2020, however it appears the system was still faulty and problems continued with the export of electricity to the grid until 11 September 2020, when repairs had been completed and a new smart meter was installed. After that, solar credits were paid to the applicant’s account, to the applicant’s satisfaction.
An incorrect solar credit rate of $0.11 was paid in respect of a number of periods, however, on 6 March 2020, this error was corrected by account adjustments to a rate of $0.2276. This rebilling of the account would have caused some uncertainty about the overall billing of the account, but this was not material to the ultimate outcome of the complaint application.
When the applicant’s original solar tariff plan expired, he discussed a new plan with the respondent utility. The terms of the new ‘Solar Solution’ plan were set out in a customer contract and the applicant also received an email from “Ankit, Customer Contact Specialist” of the respondent, the date of which is uncertain from the available documentation. The email included the following representation:
5. Peace of mind knowing you’ll continue to receive the maximum benefit from your solar power system.
Your new feed-in-tariff and your savings will start the day your smart meter is installed
At the hearing, the applicant gave evidence that he was away from the property for much of the period in question, and that he did not read the electricity bills. He had arranged for another person to pay the bills for the property on his behalf.
Contentions of the parties
Applicant
The applicant stated in strong terms that the respondent utility had acted unfairly by “surreptitiously confiscating accumulated credits and charging twice for the same service”.
The applicant pointed to the representation made by ‘Ankit', as grounds for the respondent to ensure that the applicant received the solar credits to which he was entitled. The applicant contended that “common courtesy and consumer protection law should oblige ACTEWAGL to inform the customer of a failed meter when the meter is read. Failure to inform the customer at this point of the billing cycle is a breach of trust, or in my case, a breach of trust, and a breach of their contractual obligations to provide me with: “Peace of mind ... maximum benefit ... from day one”.
The applicant submitted that the customer contract made between the respondent utility and the applicant was the bedrock of a contractual obligation to provide peace of mind and benefits from day one. This should be factored in when calculating the bill consistent with the National Energy Retail Rules. The respondent failed to deliver their personalised contractual obligations to the applicant.
The applicant also submitted that the respondent’s corporate behaviour was inconsistent with section 5(1) of the CPC. A denial of natural justice had occurred in the respondent’s conduct when dealing with the applicant’s complaint.
The applicant quantified their loss as $900.
Respondent utility
The respondent utility contended that it had no responsibility for the solar array on the property, or its inverter. The utility’s responsibility commenced at the electricity meter for the property and included providing accurate billing based on meter readings from that meter.
The respondent submitted that the applicant received the standard information about their electricity supply, including information about solar plans and arrangements for the purchase of exported energy. The respondent was obliged to comply with the relevant regulatory framework, and they did so.
The respondent strongly denied the allegation of “stolen” solar credits, and stated that they had paid all amounts properly due under the agreed customer contract. When a solar system was not generating, there was no entitlement to solar credits.
Consideration
The applicant contended that the respondent utility had an obligation to inform their customer of a failed meter when their meter is read, for example by the meter reader leaving a note at the meter box or in the customer’s letterbox. The Tribunal considers that such an obligation would arise only if the meter failure is evident, or should be evident, to the meter reader. If there is an evident failure of the meter, the utility should inform the customer of this by a note left at the premises, or by a timely, specific written communication to the customer at their nominated address for service.
In cases like this where the failure is not evident, and in fact is caused by a failure of the customer’s equipment on their side of the meter, it is neither reasonable nor practicable to place a notification obligation on the utility. The meter reader of an old-style analog meter is actually employed by the distributor, not the retailer, and their task is simply to read the consumption number (or numbers) recorded on the meter. They have no training as an electrician and would not be permitted to examine the operation of the meter for safety reasons. Where meters are read manually, the main information that the retailer receives from the distributor is the number recorded by the meter reader, and this is provided through an electronic download from the distributor’s IT system. Where the customer has a smart meter, there is no meter reader who attends the property – meter data is transmitted automatically to the retailer from the smart meter on the property.
The retailer is in a position to observe that the amount of a customer’s solar credit is nil in a particular billing period (although necessarily by an automated system inquiry, and not by manual interrogation of the bill), and to communicate this to their customer. However, this communication would be a matter of customer service and preferred business practice, and not something that should be a regulatory requirement on the retailer. The obligation of a retailer is to provide a bill to the customer which meets regulatory requirements, and which provides clear, readable information on the bill about the customer’s electricity usage, credits and charges.
In the Tribunal’s opinion, in this case the bills given to the customer appeared to comply with regulatory requirements under the National Energy Retail Rules, and sufficiently clearly conveyed to the applicant that no solar credits had been earned during the billing period. It is reasonable to expect the customer to read their own electricity bill, and to draw any necessary inferences from the information provided.
The applicant contended that there was an additional obligation placed on the respondent utility by the representations described in paragraph [19] above. The Tribunal does not agree. The Tribunal considers that the representation is general in terms, and does not extend to compensating the applicant for the results of failure of their own equipment, or to removing a reasonable requirement that the applicant read the bill rendered by the respondent utility.
The applicant also raised the application of section 5(1) of the CPC, namely that the respondent utility had not acted ethically, fairly or honestly in its dealings with the applicant. The Tribunal considers that section 5(1) has wide application and empowers ACAT EW to examine whether a utility has acted “fairly” in its dealings with a customer, including whether the utility has followed reasonable industry practice. In this case, the Tribunal does not accept the applicant’s contentions that the respondent utility acted “surreptitiously” or in breach of trust. In addition, the Tribunal does not agree that the utility acted unfairly by not communicating the absence of solar credits paid to the account. A utility could adopt such a business practice, but it is not required to do so as a matter of fairness or, in this case, as a result of specific representations made to the applicant as their customer.
It is appropriate to dismiss the complaint application.
………………………………..
Senior Member P Sutherland
| Date(s) of hearing: | 10 March 2022 |
| Applicant: | In person |
| Solicitors for the Respondent: | Mr I Male, ActewAGL Retail |
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