Shaw v Icon Distribution Investments Ltd (ABN 83073025224) and Jemena Networks (ACT) Pty Ltd (ABN 24 008 552 663) Trading as ACTEWAGL Distribution (ABN 76670568688) and Ors (Energy and Water)
[2016] ACAT 15
•7 March 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SHAW v ICON DISTRIBUTION INVESTMENTS LTD (ABN 83073025224) AND JEMENA NETWORKS (ACT) PTY LTD (ABN 24 008 552 663) TRADING AS ACTEWAGL DISTRIBUTION (ABN 76670568688) & ORS (Energy and Water) [2016] ACAT 15
EW 0794/2014
Catchwords: ENERGY AND WATER – complaint about readings for electricity meters and related billing – application of Consumer Protection Code 2009, Consumer Protection Code 2012, National Energy Retail Rules and Metrology Procedure Part B March 2008 –Tribunal’s jurisdiction to hear the complaint under Table 172 of the Utilities Act 2000 – whether there was contravention of customer contract, industry code and/or laws in regard to metering and billing, and if so what is the most appropriate compensation – scope of Tribunal’s powers to make orders
Legislation cited: Utilities Act 2000, ss 172, 174,176, 178
ACT Civil and Administrative Tribunal Act 2008, s 32
List of Papers
/Texts Cited: National Energy Retail Rules, r 21(1)
National Energy Retail Rules (SA), r 5(f)
Consumer Protection Code July 2009
Consumer Protection Code July 2012
Electricity Customer Transfer Code, June 2003
Metrology Procedure: Part A, National Electricity Market, July 2008
Metrology Procedure: Part B, National Electricity Market, March 2008
Cases cited:Stoney v ACTEWAGL Distribution (Energy and Water) [2014] ACAT 7
Tribunal: Senior Member L Beacroft
Date of Orders: 7 March 2016
Date of Reasons for Decision: 7 March 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL EW 2014/0794
BETWEEN:
STEPHEN SHAW
Applicant
ICON DISTRIBUTION INVESTMENTS LTD (ABN 83073025224) AND JEMENA NETWORKS (ACT) PTY LTD (ABN 24 008 552 663) TRADING AS ACTEWAGL DISTRIBUTION (ABN 76670568688)
First Respondent
AND:
ENERGY AUSTRALIA PTY LTD
(ABN 99 086 014 968)
Second Respondent
AND:
ICON RETAIL INVESTMENTS LTD (ABN 23074371207) AND AGL ACT RETAIL INVESTMENTS PTY LTD (ABN 53 093 631 586) TRADING AS ACTEWAGL RETAIL (ABN 46 221 314 841)
Third Respondent
TRIBUNAL: Senior Member L Beacroft
DATE: 7 March 2016
ORDERS
The Tribunal Orders:
Compensation is payable to the complainant under subsection 178(2) and 181 Utilities Act 2000 as follows:
(a)$0.20 payable by ACTEWAGL Distribution, (the first respondent), to the complainant for the use of electricity for the meter test that was agreed by the first respondent to be at no cost to the complainant; and
(b)$215.41 payable by ACTEWAGL Retail (the third respondent) for a contravention in the bill issued 11 February 2008, which did not show a meter reading for 30 October 2007 as an estimate contrary to clause 13.5 (1) (d) and (e) Consumer Protection Code 2009 (repealed 1 July 2010).
The complainant’s application that the Tribunal grant him a power to conduct readings under section 178(2)(b)(ii) and rule 21(1)of the National Energy Retail Rules is dismissed.
The complainant’s application that the Tribunal make various declarations under section 178(2)(b)(ii) and (iii) Utilities Act2000 about meter readings is dismissed.
The complainant’s application that the Tribunal refer the matter as a systemic problem under section 174 (2)(a) and (b) Utilities Act2000 to the Independent Competition and Regulatory Commission, ACT and relevant Ministers is dismissed.
………………………………..
General President L Crebbin
for and on behalf of
Senior Member L Beacroft
REASONS FOR DECISION
Background
On 8 October 2014 Mr Shaw (‘the complainant’) filed a complaint in the ACT Civil and Administrative Tribunal (‘the Tribunal’) that raised issues about electricity meter readings for his electricity meters and associated billing.
The electricity was purchased by the complainant between 30 October 2007 and the date of the hearing. Over this period the complainant was initially a customer of Icon Retail Investments Ltd and AGL ACT Retail Investments Pty Ltd trading as ACTEWAGL Retail (‘ACTEWAGL Retail’ or ‘third respondent’) and then later a customer of TRU Energy (now ‘Energy Australia’ or ‘second respondent’). Icon Distribution Investments Ltd And Jemena Networks (ACT) Pty Ltd trading as ACTEWAGL Distribution (‘ACTEWAGL Distribution’ or ‘first respondent’), was the registered metering data provider for the complainant’s meters and was required to collect, process and deliver the metering data according to relevant laws, codes and procedures.
Hearing
A hearing was conducted on 14 October 2015. The applicant appeared in person, Ms Flowers (Legal Counsel, ACTEWAGL) and Mr Male (Chief Legal Counsel, ACTEWAGL) appeared for the first and third respondent, and Ms Mielczarek (Senior Stakeholder Resolutions Consultant, Energy Australia) appeared by telephone for the second respondent.
Before the Tribunal were documents provided by each of the parties which had been shared with each other party prior to the hearing. The documents included submissions filed by each party in response to an order and directions dated 26 June 2015. On the date of the hearing the Tribunal heard oral submissions from all parties. At the hearing an additional spreadsheet showing a comparison of data provided for readings for the off-peak meter (number 78970) between 2008 and 2014 was submitted by the first and third respondent (Exhibit R1), and copies of the more recent bills were provided by the second respondent (Exhibits R2 and R3).
Following the hearing the parties were at liberty to file further submissions and all parties did so. The first and third respondents argued that an email filed by the complainant following the hearing should not be accepted into evidence; similarly the complainant argued that the further submissions of the first and third respondents filed after the hearing should not be accepted into evidence. The Tribunal issued an order dated 25 November 2015 with the effect that the post-hearing submissions and emails filed by the parties were accepted into evidence insofar as they did not introduce new evidence. Following the hearing the Tribunal obtained clarification from the parties on the period of time and amount of charges that Energy Australia had written off, and current names of the entities of the first and third respondents.
A significant number of matters emerged as uncontested, as documentary evidence was submitted and not contested by all parties. These matters are set out below.
(a)The complainant contacted ACTEWAGL Retail on 30 October 2007 and moved into the property where the meter was located shortly afterwards, becoming a customer of the third respondent from 30 October 2007 to 11 March 2009.
(b)Meter readings used for final billing of the complainant by ACTEWAGL Retail for certain dates were not actual readings, the most contested readings being as follows: 30 October 2007 when the complainant became a customer of ACTEWAGL Retail at the property; a scheduled meter reading conducted on 4 February 2009; and the final special meter read for ACTEWAGL Retail’s account on 11 March 2009.
(c)In regard to the reading for 30 October 2007, there was no actual reading conducted on that date. A letter from Ms Corkhill, Manager of Customer Service, ACTEWAGL to the complainant dated 17 September 2013 shows the dates of actual readings after the complainant became a customer, the first being 6 November 2007.[1] ACTWAGL calculated the reading from prior and later readings[2]. The bill issued 11 February 2008 did not show the reading for 30 October 2007 as an estimate.[3]
[1]Letter from Ms Corkhill, Manager Customer Service, ACTEWAGL to the complainant dated 17 September 2013, Attachment 3, Complainant’s Complaint Submission filed for hearing
[2]Page 8, ACTEWAGL Retail’s Submission filed for hearing
[3]ACTEWAGL Electricity Account Tax Invoice issued 11 February 2008, Attachment 10, Complainant’s Complaint Submission filed for hearing
(d)On 11 March 2009 the complainant became a customer of Tru Energy, later Energy Australia. The retailers, the second and third respondents, were subject to certain transfer procedures.[4] Despite this transfer, the complainant was invoiced by ACTEWAGL Retail in bills issued on 22 July 2009 and 30 July 2009 for usage after the date of transfer to the second respondent.[5]
(e)The bill issued by ACTEWAGL Retail on 22 July 2009 showed a peak meter reading on 6 May 2009 of 20245. The second next bill issued on 30 July 2009 showed a reading for the same peak meter of 20687 taken on 11 March 2009, which was not shown in the prior bill. In these bills there was inconsistency about the date of meter readings and the readings went downwards over time. These readings were subject to validation testing.[6] The readings didn’t fail validation tests applicable at that time until August 2009.[7] After the complainant raised various concerns with the third respondent in late July 2009, an adjusted bill was issued by ACTEWAGL Retail on 25 September 2009. The bill was accompanied by a covering letter from Ms Corkhill, Billing and Data Manager, dated 24 September 2009 which stated that adjustments to meter readings for 4 February and 11 March 2009 had been made and set out the nature of the adjustments.[8]
(f)Energy Australia issued its first bill to the complainant on 29 March 2012 for electricity usage from 11 March 2009 onwards.[9] Due to the lateness of its billing, under the terms of guaranteed service levels for timely billing applicable at that time, the electricity consumption charges for a period of time (the period of time was disputed) were credited to the complainant.[10]
(g)Meter readings that were provided by Energy Australia in the proceedings before the Tribunal and in bills issued to the complainant, particularly those from 8 February 2008 to 7 May 2010, did not match the readings provided to the Tribunal by the first respondent, the meter collection agency.[11] For example, in a bill for $351.59 issued by TruEnergy on 29 March 2012, the readings for the meters taken on 31 January 2010 differ to the data provided by ACTEWAGL Distribution.[12]
(h)The complainant’s analogue peak meter (number 112666) and analogue off-peak meter (number 78970) were tested on 2 October 2014 and found to be within the allowable tolerances for accuracy, with the testing indicating the meters were running slow.[13] They were replaced by a single electronic meter (number 381214) at no charge to the complainant, and this new meter has a Certificate of Conformity dated 11 June 2014.[14]
(i)The pre-testing meter reading for the complainant’s peak meter when it was replaced on 2 October 2014 is recorded as 52527 on the testing report, and the final reading that was used for billing the complainant is recorded as 52528.[15]
(j)ACTEWAGL Distribution began to provide data on the complainant’s meters to the metering regulator, Australian Energy Market Operator (AEMO), on 2 August 2009 for the period starting 11 March 2009 onwards.[16]
(k)The complainant has limited financial loss from the issues he raises because the first and second respondents have adjusted down or written off money due for electricity consumption as follows.
i. ACTEWAGL has written-off the final adjusted bill for the period from 2 November 2008 to 11 March 2009 in the sum of $341.60.[17]
ii. Due to the delayed billing by Energy Australia, electricity consumption charges for a period from 11 March 2009 were credited to the complainant, in the sum of $2,969.34.[18]
[4]Electricity Customer Transfer Code, June 2003
[5]ACTEWAGL Electricity Account Tax Invoices issued 22 July 2009 and 30 July 2009, Attachment 11, Complainant’s Complaint Submission filed for hearing
[6]Metrology Procedure: Part A National Electricity Market, 31 July 2008 cited on page 3 ACTEWAGL Distribution’s Submission 13 November 2015
[7]Email to complainant from Danielle Tyrrell, Customer Support Officer, ACTEWAGL dated 15 January 2014, Attachment to Complainant’s Complaint Submission filed for hearing
[8]Attachment J, ACTEWAGL Retail’s Submission 13 November 2015
[9]TRU Energy Electricity Account issued 29 March 2012, Attachment to Complainant’s Complaint Submission filed for hearing
[10]TRU Energy Electricity Account issued 12 April 2012 shows a credit/adjustment for “guaranteed service level standards” of $2969:34, for electricity consumption, Attachment to Letter from Energy Australia submitted to Tribunal dated 5 October 2015 and this credit sum was confirmed in an email from Energy Australia, dated 28 January 2016, which also set out further details of how the credit was calculated in an Account Summary
[11]Page 5-6 and Attachments O and P, ACTEWAGL Retail’s Submission filed for hearing
[12]Compare ACTEWAGL Distribution data, Tribunal Hearing Folder documents E3 and Attachment to Letter from Energy Australia, dated 15 October 2015, TRU Energy Invoice dated 29 March 2012
[13]Attachment A, ACTEWAGL Distribution’s Submission filed for hearing
[14]A27, Tribunal’s Hearing Folder
[15]Refer to Attachments A and O, ACTEWAGL Distribution’s Submission filed for hearing
[16]Page 9, ACTEWAGL Retail’s Submission filed for hearing
[17]Page 4 and Attachment D, ACTEWAGL Retail’s Submission filed for hearing
[18]See footnote 10 above
The contested issues are set out below.
(a)Does the complaint come within the Tribunal’s jurisdiction to hear such complaints (section 172 of the Utilities Act 2000)?
(b)Is there a contravention of a customer contract, industry code and/or laws by any of the respondents? In particular, are there contraventions in regard to the complainant’s meters and/or billing?
(c)If there is a contravention, what is the remedy and are the orders that the complainant seeks within the powers of the Tribunal to make?
Legislation
Commencing on 1 July 2012, the National Energy Retail Law (ACT) Act 2012 adopts the National Energy Retail Law (NERL) as set out in a schedule to a South Australian Act[19] as legislation of the ACT. Regulation 5(f) of the NERL Regulations (SA) prescribes the Tribunal as an energy ombudsman for the purposes of NERL. The National Energy Law (Consequential Amendments) Act 2012 amended section 172 of the Utilities Act 2000 (the Utilities Act) and provided for the jurisdiction of the Tribunal in relation to contravention of contracts made under the NERL (ACT). Section 172 of the Utilities Act permits a ‘consumer affected’ by a ‘contravention of a customer connection contract’ or ‘contravention of an industry code’ to apply to the Tribunal.
[19]National Energy Retail Law (South Australia) Act 2011
The Tribunal may dismiss a complaint for a range of reasons including “the complaint relates to a matter, or the last of a series of matters, that happened more than 1 year before the day the complaint was made”, or it is “otherwise appropriate to do so.”[20] The Tribunal may also dismiss a matter if it is frivolous or vexatious.[21] Where the Tribunal is satisfied that the respondent has ‘contravened a customer contract’ or an ‘industry code’, it may give written directions to remedy the matter and where there is loss or damage the Tribunal may order the payment of compensation.[22]
[20]See section 176(1)(a) to (h) of the Utilities Act
[21]Section 32 of the ACT Civil and Administrative Act 2008
[22]See sections 178(2) and 181 of the Utilities Act
The complaint raises issues over an extensive period of time, from 30 October 2007 to the date of the hearing. From 30 October 2007 to 30 June 2012 the Utilities Act and a Code made under Part 4 of the Utilities Act (the Consumer Protection Code 2009) were applicable. These apply to the entire period when the complainant was a customer of ACTEWAGL Retail, and for part of the period when the complainant was a customer of Energy Australia. From 1 July 2012 the National Energy Retail Law(ACT) Act 2012 and the Consumer Protection Code 2012 apply.
Since 1 July 2012 the AEMO is the regulatory authority responsible for metering procedures and standards, and has policies and audit procedures in place to ensure the integrity of meters and metering data. Prior to this, various metering procedures and codes were applicable. As the registered metering data provider for the complainant’s meters, ACTEWAGL Distribution was subject to these requirements.
Key relevant sections of legislation and codes are extracted at the end of these reasons for decision.
Complainant’s Contentions
The complainant’s submissions against the three contested issues listed in paragraph seven above are summarised below.
Issue 1: Does the complaint come within the Tribunal’s jurisdiction to hear such complaints (section 172 of the Utilities Act)?
The complainant contended that the complaint was a contravention of a contract and/or of a code, under items 1 and 2 section 172 of the Utilities Act.
Issue 2: Is there a contravention of a customer contract, code and/or laws by any of the respondents?
The complainant contended that the fact that there are many versions of the history of his meter readings raises issues about the quality of the data and demonstrates a systemic problem with the metering system. The complainant contended that there are metering issues from 30 October 2007 to the replacement of his analogue meter (on 2 October 2014); for example, see the situation regarding the ACTEWAGL bills issued 22 and 30 July 2009 set out in paragraph 6(e) above. The complainant contended that issues arose after the analogue meters were replaced with a digital meter; for example, discrepancies about a reading taken on 5 February 2015.[23] In addition, the complainant contended that the meter data provided to the regulator, AEMO, is not consistent in some respects with that provided by the first respondent to the Tribunal for the proceedings.[24]
[23]Page 9 and Attachment 2, Complainant’s Submission, filed for hearing
[24]Page 4, Complainant’s Submission, filed for hearing
The complainant further contended that the bills issued by the first and third respondents did not always properly reflect that some of the readings were not ‘actual’ readings, and the complainant contended that the manner in which these non-actual readings have been estimated or substituted has not been explained or agreed by the complainant. Most controversially, the bill issued 11 February 2008 by ACTEWAGL did not show the reading for 30 October 2007 as an estimate. It was not disputed by the third respondent that it, ACTEWAGL Retail, calculated the reading for 30 October 2007 from prior and later readings (refer to paragraph 6(c) above and paragraphs 26-27 below).
The complainant contended that the initial bills issued by Energy Australia, use ‘actual’ readings. Yet some of the readings provided by the second respondent do not match the readings that ACTEWAGL Distribution, the meter data collection agency, advises it provided to Energy Australia (refer to paragraph 6(g) above).
18.Further, the complainant contended that the billing by both the first and second respondents was at times unacceptably delayed which made it difficult for the complainant to identify and complain about issues with meter readings until sometime after the readings had been taken. ACTEWAGL Retail delayed sending an account for the final billing period to 11 March 2009 until July 2009; Energy Australia delayed sending any accounts until 29 March 2012, that is over three years after the transfer to Energy Australia of the complainant’s account on 11 March 2009[25](refer to paragraph 6(f) above). The complainant further complained that the basis for credit for untimely billing by Energy Australia was not made clear and may be insufficient given the laws that applied:. “The value of the write off was $2969.34. The period “[of the credit therefore] was [from] 11 March 2009 to somewhere between 29 Mar 2011 and 12 Apr 2011”[26].
[25]Page 8, Complainant’s Submission filed for hearing
[26]Complainant’s emailed response to query from Tribunal, dated 11 January 2016
The complainant contended that the issues with the meter readings and billing summarised above amount to a breach of the customer contract, codes and laws.
Issue 3: If there is a contravention, what is the remedy and are the orders that the complainant seeks within the powers of the Tribunal?
The complainant claimed monetary compensation under section 181 of the Utilities Act as follows:
(a)$0.20 due to a discrepancy between the meter read for the peak meter prior to testing on 2 October 2014 and the final meter read when the meter was changed (ie the use of electricity for the test was included in the invoice for the complainant and he claims compensation for this, (refer to paragraph 6(h) above and paragraph 33 below); and
(b)$215.41 for compensation for the unsatisfactory billing by ACTEWAGL Retail for the period 30 October 2007 to 8 February 2008 when the nature of the meter readings on 30 October 2007, being estimates, were not disclosed on the bill issued 11 February 2008, which was confirmed after the complainant had complained sometime later (refer to paragraph 6(c) above and paragraph 30 below).
The complainant also sought declarations under section 178(2)(b)(ii) and (iii) Utilities Act about the following:
(a)which of the meter readings from 2007 to 2015 were “unmodified and accurate”;
(b)what were the “...reasons for the differences in all versions of meter readings provided by the respondents...; and
(c)if possible make a determination about which respondent is responsible for each of the differences.”[27]
[27]Page 11, Complainant’s Submission, filed for hearing
The complainant contended that the “large number of different versions of metering data” provided by the respondents “clearly shows there is a systemic problem”, and that the “demonstrated inability of …the respondents to self-correct the problems with metering data [which] shows that these problems will continue into the future”.[28] On this basis the complainant contended that the Tribunal, under section 174(2) of the Utilities Act, should advise the Independent Competition and Regulatory Commission, ACT (ICRC) and also each Minister responsible of a systemic problem.
[28]Page 12, Complainant’s Submission, filed for hearing
The complainant sought an order that he be responsible for his meter readings under the National Energy Retail Rules (clause 21(1)(b)) and section 178(2)(b)(ii) of the Utilities Act.
Respondents’ Contentions
The contentions of ACTEWAGL Distribution and Retail against the three issues listed in paragraph 7 above are summarised below. Energy Australia, provided limited submissions and otherwise relied on submissions by the ACTEWAGL Distribution and Retail.
Issue 1: Does the complaint come within the Tribunal’s jurisdiction to hear such complaints (section 172 of the Utilities Act)?
The first and third respondents contended that the Tribunal did not have jurisdiction for a range of reasons, including reasons already considered and dismissed by the Tribunal in the case of Stoney.[29] An additional reason contended by the respondents was that the complaint related to a matter or series of matters that happened more than one year prior to ACTEW Retail being made a party to the proceedings.[30]
[29]Stoney v ACTEWAGL Distribution (Energy and Water) [2014] ACAT 7
[30]Page 3, Submission by ACTEWAGL Retail filed for hearing, citing section 176(1)(c) of the Utilities Act
Issue 2: Is there a contravention of a customer contract and/or legislative requirements by any of the respondents?
The respondents contended that there has been no contravention of a contract, code or laws. In summary, the first and third respondents contended that any readings used for final billing of the complainant that were not actuals were lawful and compliant with relevant codes, procedures and customer contracts. In regard to the most controversial examples provided by the complainant of issues with readings, the respondents’ contentions are set out below.
The complainant contacted ACTEWAGL on 30 October 2007 to set up an account and he moved into the property shortly afterwards. Since the previous tenant had not notified ACTEWAGL that they had moved out, there was no final read done upon their leaving. ACTEWAGL therefore invoiced the complainant for peak and off-peak electricity by “calculating the average daily usage for the period of 1 August to 6 November”, the later two dates being when actual reads were taken.[31]
[31]Page 8, Submission ACTEWAGL Retail, filed for hearing
The meter reads on 4 February 2009 and 11 March 2009 were ‘mis-reads’, that is, the analogue meters were manually mis-read by the meter readers. An adjusted invoice later issued on 25 September 2009 such that the complainant was not over-charged.[32] The adjusted invoice was accompanied by a letter from Jane Corkhill, ACTEWAGL Retail which explained that “the final two accounts were based on an ADU [average daily usage] of 11.”[33]
[32]Page 11, Submission ACTEWAGL Retail, filed for hearing
[33]Page 7 and Attachment J, ACTEWAGL Retail Submission, filed for hearing
ACTEWAGL Retail contended that the readings used in final billing as set out in paragraph 27 and 28 above were consistent with the applicable Consumer Protection Code and the relevant technical code (cl 13.1 (2), (3) and (4) Consumer Protection Code 2009 and the Electricity Metering Code 2003 Part A and Part B), and also consistent with the relevant clauses in the then standard customer contract (cl 8.5 to 8.6).
In summary, clause 13.5 (1) (d) and (e) of the Consumer Protection Code 2009 required an account to have information contained as to whether the account was based on a current and previous readings or estimates (if applicable). ACTEWAGL Retail contended that they satisfied this requirement by providing the customer with a letter from Jane Corkhill dated 25 September 2009 (refer to paragraph 6(e) above) setting out that the final two accounts were based on ADU of 11[34].
[34]Pages 2, 7, ACTEWAGL Retail Submission filed for hearing
Furthermore, the respondents contended that these provisions allowed ACTEWAGL Retail to “estimate … electricity… or calculate the consumption based on an adjacent period.”[35] In the alternative ACTEWAGL Retail contended that clause 13.1(4) of the Consumer Protection Code 2009 allowed ACTEWAGL Retail “to agree with the customer on a means of calculating the customer’s account”, and further contended that the complainant was “consulted during the process of calculating the …final bill.”[36]
[35]Page 2-3, ACTEWAGL Retail Submission, filed for hearing
[36]Page 3, ACTEWAGL Retail Submission filed for hearing
The two bills issued by the third respondent in 2008, which were inconsistent about when meter readings had been conducted and shared readings that went backwards over time, didn’t fail validation tests until August 2009. The third respondent contended that “the mis-reads were not picked up…due to the mis-read being minor and not triggering the validation parameters.”[37] The first and third respondents contended that the relevant validation requirements applicable at that time were met.[38]
[37]Page 14 ACTEWAGL Distribution Submission, filed for hearing
[38]Metrology Procedure: Part B, National Electricity Market, March 2008 cited page 2, ACTEWAGL Distribution Submissions filed for hearing
In regard to the discrepancy between the pre-test meter reading for the peak meter on 2 October 2014 and the final meter read when the meter was changed, the first and third respondents contended that this was not an error; it is due to the electricity for the test being included in the bill issued to the complainant.
In regard to the discrepancies about meter readings from 8 February 2008 to 7 May 2010 as separately provided to the Tribunal and the complainant by Energy Australia and the meter data collector, ACTEWAGL Distribution (refer to paragraph 6(g) above), Energy Australia provided no explanation for these discrepancies.
In regard to the discrepancies about meter readings on bills issued by Energy Australia on 26 January and 12 February 2015, the respondents contended that while the billing was split between two bills by Energy Australia, the consumption values used by each of the respondents was the same.[39]
[39]Page 11, Submission by ACTEWAGL Retail and Energy Australia, dated 13 November 2015
ACTEWAGL Distribution contended that the final data supplied by it to ACTEWAGL Retail, Energy Australia and AEMO was identical and any historical discrepancies occurred where bills were re-issued and readings adjusted for the reasons set out earlier (refer to paragraphs 6(c), (d) and (e) above).
The third respondent contended that the lateness of its billing in 2008 was due to a delay in the transfer of the complainant’s account to TRU Energy.[40] Energy Australia provided no explanation for the lateness of its billing of the complainant.
[40]Page 10, ACTEWAGL Retail Submission filed for hearing
Issue 3: If there is a contravention, what is the remedy and are the orders that the complainant seeks within the powers of the Tribunal?
The respondents contended that any contravention which may have occurred has been remedied by the credits already provided to the complainant by the retailers (refer to paragraph 6(j) above); the complainant’s total credit was $3310.94.
The respondents acknowledged that the National Energy Retail Rules (rule 21(1)(b)) allows the retailer in their discretion to base a reading on a customer reading when an estimation is required. However, they contended that it is not within the Tribunal’s powers to give a special ongoing power to the complainant to conduct readings. Meter reading agencies are regulated under the National Energy Rules and ACTEWAGL Distribution is the relevant meter agency for the complainant’s meter.
Findings and Decision
Issue 1: Does the complaint come within the Tribunal’s jurisdiction to hear such complaints (section 172 of the Utilities Act)?
The Tribunal finds that the complaint against each respondent is within the jurisdiction of the Tribunal. The complainant complained that he is a ‘consumer affected’ by a ‘contravention of a customer connection contract’ or ‘contravention of an industry code’[41] in regard to the second and third respondents, and that he is a ‘consumer affected’ by a ‘contravention of an industry code’ in regard to the first respondent.
[41]Stoney v ACTEWAGL Distribution (Energy and Water) [2014] ACAT 7
The Tribunal declines to dismiss the complaint on the basis of it being out of time, as contended by ACTEWAGL Retail (refer to paragraph 25 above; section 176(1)(c) of the Utilities Act). Even on the evidence provided by ACTEWAGL Retail, the complainant began to complain to ACTEWAGL in July 2009, and he was concerned about settling the matter until he had received a bill from TRU Energy[42] which belatedly issued in 2012. Given this delay in obtaining the latter, and the nature of and complexity of issues and data, the complainant was justified in taking time to consider the issues and his options, ultimately lodging a complaint with the Tribunal on 8 October 2014.
[42] Page 4, ACTEWAGL Retail Submission filed for hearing
The Tribunal finds that it is not within the Tribunal’s powers to give a special power to the complainant to conduct readings under rule 21(1) of the National Energy Retail Rules.
Issue 2: Is there a contravention of a customer contract, Code and/or laws by any of the respondents and if so what are the remedies?
The Tribunal accepts that there have been issues with the complainant’s meter readings. He suffered more than one mis-read of a meter. It is of concern that the validation requirements employed by ACTEWAGL Distribution were such that the mis-reads were not picked up before the bill issued in July 2008, and the complainant was required to identify the issues and follow up.
The Tribunal does not accept the contention by ACTEWAGL Retail and Distribution that validation requirements at that time were met (refer to paragraph 32 above). The requirements including testing whether the current reading was greater or equal to the prior reading, and in this the case the relevant readings failed this test.[43]
[43]Metrology Procedure: Part B, National Electricity Market, March 2008, clause 11
Of concern are the unexplained discrepancies in data provided by Energy Australia compared with that provided by the meter data collection agency, ACTEWAGL Distribution, for a lengthy time period until 2010 (refer to paragraphs 6(e) and 34 above).
46.The complainant has been credited a significant sum by the respondents in the course of this complaint; the complainant’s total credit is $3310.94 for electricity consumption (refer to paragraph 6 (k) above). The Tribunal notes that the complainant raised a late query about whether the Energy Australia credit of $2,969.34 was compliant with laws and requirements. Under clause 13.10(4) Consumer Protection Code 2009, applicable at that time, Energy Australia could not recover charges beyond 12 months from the bill’s issue date. The first Energy Australia bill issued on 29 March 2012. Applying the complainant’s own calculations this means that the payments were credited up to a date between late March to mid-April 2011 (refer to paragraph 18). The Tribunal concludes that Energy Australia has complied with the Code’s requirements in regard to late billing. Further, the Tribunal finds that contraventions which occurred during this latter period (November 2008 to mid-2011) as set out in paragraphs 43 to 45 above, were corrected by the respondents and the complainant has been adequately compensated for loss or damage by the credits already provided to him.
However two contraventions have not been compensated for by credits provided to date, and the Tribunal orders compensation be paid to the complainant as follows:
(a)$0.20 payable by ACTEWAGL Distribution to the complainant due to a discrepancy between the meter read for the peak meter prior to testing on 2 October 2014 and the final meter read when the meter was changed, that is, the use of electricity for the test was included in the invoice for the complainant (refer to paragraph 6(h) above). While it may be the usual practice of ACTEWAGL to charge the electricity used for the testing to the customer[44], in this case the testing was agreed by the first respondent to be at no cost to the complainant. On this basis the cost of the electricity used for the testing should be borne by ACTEWAGL Distribution;
[44]Page 10, Submission by ACTEWAGL Retail and Energy Australia, dated 13 November 2015
(b)$215.41 payable by ACTEWAGL Retail to the complainant for compensation for the non-compliant billing by ACTEWAGL Retail for the period 30 October 2007 to 8 February 2008, when the estimated nature of the reading for 31 October 2007 was not disclosed on the bill issued 11 February 2008. It is not adequate under the Consumer Protection Code 2009 for ACTEWAGL Retail’s representative to formally advise the complainant that this reading was an estimate in September 2009, which was after the complainant had complained (refer to paragraph 6(c) above). On this basis the third respondent contravened a code and the contract (Items 1 and 2, Table 172 of the Utilities Act) and is liable for compensation for the resulting loss and damage (section 181 of the Utilities Act). The compensation that the complainant has claimed is an amount equal to the non-compliant bill ($215.41), which the complainant has paid. The Tribunal finds that this is an appropriate amount of compensation in this case and is not punitive.[45]
[45]Section 181 of the Utilities Act
The Tribunal is unable to make any determination about meter readings where actuals are not now available as requested by the complainant (refer to paragraph 21 above), for the same reasons that the respondents cannot. The Tribunal accepts that the estimated readings which were calculated and then used as substitutes for actual readings by the respondents were calculated in compliance with relevant requirements.
It is not clear if there is a systemic problem as contended by the complainant (refer to paragraph 22 above), given the Tribunal has only this complaint, that is, one application and not many applications of this nature before it. The Tribunal declines to refer this matter under section 174(2) of the Utilities Act to the Independent Competition and Regulatory Commission ACT and relevant Ministers. The Tribunal notes that it appears the system of transfer between retailers in this case, a transfer that occurred in 2009, was less than efficient. It appears to have contributed to multiple issues arising for the complainant about meter readings. These reasons for decision will be published, and the complainant and any regulator are able to access them as necessary.
………………………………..
General President L Crebbin
for and on behalf of
Senior Member L Beacroft
HEARING DETAILS
FILE NUMBER: | EW 2014/0794 |
PARTIES, APPLICANT: | Mr Shaw |
PARTIES, RESPONDENT: | R1:Icon Distribution Investments Ltd (ABN 83073025224) and Jemena Networks (Act) Pty Ltd (ABN 24 008 552 663) Trading As ACTEWAGL Distribution (ABN 76670568688) R2: Energy Australia Pty Ltd (ABN 99 086 014 968) R3: Icon Retail Investments Ltd (ABN 23074371207) And AGL ACT Retail Investments Pty Ltd (ABN 53 093 631 586) Trading As ACTEWAGL Retail (ABN 46 221 314 841) |
SOLICITORS FOR APPLICANT | Self-Represented |
SOLICITORS FOR RESPONDENT | Ms Flowers (Legal Counsel, ACTEWAGL) and Mr Male (Chief Legal Counsel, ACTEWAGL) for R1 and R3 |
TRIBUNAL MEMBERS: | Ms L. Beacroft – Senior Member |
DATES OF HEARING: | 14 October 2015 |
Schedule
Utilities Act 2000
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 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 |
ACAT decisions
(1)This section applies if the ACAT is satisfied, in relation to a complainant, that—
(a)the respondent has—
(i)contravened a customer contract; or
(ii)contravened section 51 (Protection of personal information); or
(iii)contravened an obligation under this Act in relation to its network operations; or
(b)the respondent has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility service; or
(c)an authorised person for the respondent has acted improperly in relation to network operations; or
(d)a capital contribution charge, of an amount of not more than $10 000, imposed by the respondent is excessive.
(2)Without limiting the orders the ACAT may make, the ACAT may—
(a)for a complaint that a capital contribution charge is excessive—give a direction under section 182 (Reviewable capital contribution charges); or
(b)in any other case—
(i)give the written directions to the respondent that it considers necessary requiring the respondent to remedy the matter mentioned in subsection (1); or
(ii)give another direction under this division; or
(iii)make a declaration under this division.
(3)A respondent must comply with a direction given to it under this division.
Payment for loss or damage
(1)If the ACAT is satisfied that a complainant suffered loss or damage because of an act by the respondent, or an authorised person for the respondent, of a kind mentioned in section 178 (ACAT decisions), the ACAT may give the respondent a written direction to pay a stated amount to the complainant for the loss or damage.
(2)The direction may not be given in relation to a punitive amount.
(3)The amount payable under the direction is a debt due to the complainant in whose favour the direction is given.
(4)In giving the direction, the ACAT must take account of the extent (if any) to which the complainant—
(a)caused, or contributed to, the loss or damage; or
(b)obstructed, or interfered with, the exercise of the respondent’s functions under this Act.
(5)The amount stated in a direction may not be more than—
(a)$10 000; or
(b)if another amount is prescribed by regulation—the prescribed amount.
(6)The registrar must, if asked by the complainant in whose favour a direction is made, give the complainant a copy of the direction certified by the registrar.
NoteFor how documents may be given, see the Legislation Act, pt 19.5.
METROLOGY PROCEDURE: PART B: METERING DATA VALIDATION, SUBSTITUTION AND ESTIMATION PROCEDURE FOR METERING TYPES 1 – 7
11.1 Application of Clause 11
11.1.1 The requirements of clause 11.2 are applicable to Metering Data Providers accredited for the provision of metering data services for metering installations type 6.
11.2 Validations to be performed for Type 6 Metering Installations
11.2.1 The Metering Data Provider must undertake the following validations on metering data within the metering data services database:
(a) Check against a nominated minimum value of metering data collected from the metering installation.
(b) Check against a nominated maximum value of metering data collected from the metering installation. This is to be applied to both the metering data collected from the metering installation and the calculated energy consumption values.
(c) The current value of metering data collected from the metering installation >= previous value of metering data collected from the metering installation.
(d) The current value of metering data collected from the metering installation is numeric and >= 0.
(e) The current date that metering data is collected from the metering installation > the previous date that metering data was collected from the metering installation.
(f) Check for null (no values) metering data in the metering data services database for all metering data streams. i. The aim of this check is to ensure that there is a 100% metering data set (and substitution for any missing metering data is undertaken).
Consumer Protection Code 2009
Customer accounts
13.1 Utility may issue customer accounts
(1) A Utility may issue a Customer Account to a Customer for the consumption of Utility Services at the Customer’s Premises.
(2) Unless the Customer gives explicit informed consent, a Utility must base a Customer Account on a reading of the Customer’s meter, as defined in the relevant Technical Code.
(3) Despite clause 13.1(2), if a Utility is not able to reasonably or reliably base a Customer Account on a reading of the Customer’s meter, the Utility may provide the Customer with an account based on estimated consumption, as provided in the relevant Technical Code.
(4) Nothing in this clause shall be taken to prevent a Utility and a Customer agreeing upon a means of calculating the Customer’s Account otherwise than as prescribed under this clause.
13.5 Content of customer accounts
(1)A Customer Account must contain the following information:
(a)the name and bill number of the Customer, the address of the Premises of the Customer and any relevant mailing address;
(b)the date on which the Account period begins and ends;
(c)the Utility Service (or any particular or additional goods or services) to which the Account relates;
(d)the dates of current and previous meter readings or estimates (if applicable);
(e)current and previous meter readings or estimates (if applicable);
(f)current and comparative consumption data (if applicable);
(g)the Customer’s National Metering Identifier and Checksum, in the case of an Electricity Supplier;
(h)the Customer’s Distribution Point Identifier, in the case of a Gas Supplier;
(i)the Charges payable (fixed and variable), specifying the particular Utility Service they are for, and whether they are Utility Service related Charges or Charges for other goods and services;
(j)any amount deducted, credited or received under:
(i)a Territory Government sponsored rebate or concession scheme; or
(ii)an instalment plan which applies to the Customer;
(k)the amount of any arrears or credit standing to the Customer’s name;
(l)the amount of any payments received from the Customer during the Account period;
(m)the total amount due;
(n)the due date for payment;
(o)a summary of payment methods;
(p)the address to which payment is to be made or the alternative mode of payment options (see clauses 13.7 (2) and (3));
(q)in the case of electricity and gas supply:
(i)the amount of greenhouse gas emissions associated with the electricity or gas supplied, as per the “Guidelines for Greenhouse Gas Disclosure on Customer Accounts”; and
(ii)any other information specified by the ICRC in the “Guidelines for Greenhouse Gas Disclosure on Customer Accounts”;
(r)in the case of electricity, to the extent that the data is available, the contribution of accredited Green Power electricity generation to the Customer’s electricity consumption;
(s)contact details for a 24-hour telephone number for faults, difficulties and emergencies;
(t)a referral telephone number for an interpreter service (set out in the five most common non-English languages used in the Territory);
(u)a telephone number for the Customer to call for any queries relating to:
(i)the Customer Account;
(ii)the complaints handling procedures of the Utility;
(iii)how to claim a rebate from the Utility if the Minimum Service Standards in Schedule 1 of this Code are not met;
(iv)how to make a hardship complaint to the ACAT; or
Note:Complaints (including ‘hardship complaints’) to the ACAT as provided in s 172 of the Utilities Act are not covered by the definition of ‘Complaint’ in the Dictionary to this Code.
(v)how to apply for a Territory Government sponsored rebate or concession that the Utility provides.
(2)A Gas Supplier or an Electricity Supplier is not required to include the information referred to in sub-clauses 13.5(1)(u)(iv) and (v) in the Accounts of Large Non-Franchise Customers.
13.10Undercharging
(3)If a Utility becomes aware that it has undercharged a Customer as a result of a review of a Customer Account or by any other means, the Utility may recover the undercharge.
(4)The amount to be recovered must be listed separately and explained on the Customer Account and interest may not be charged on the amount being recovered.
(5)The Utility must give the Customer a period of time to pay the undercharge that is at least equal to the period during which the undercharging occurred, if requested by the Customer.
(6)Despite clause 13.10(1), a Utility may not recover the undercharge if it occurred more than 12 months previously.
(7)Clause 13.10(4) does not apply to the extent that the undercharging by the Utility was caused or contributed to by the Customer, or by dishonesty or deceit against the Utility, or by the unreasonable failure of the Customer to provide to the Utility information for the purpose of calculating Charges.
National Energy Retail Rules
21 Estimation as basis for bills (SRC and MRC)
(1) A retailer may 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.
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