Guidance note 2 (2020): Clear and unambiguous information or advice for residential customers anticipating or facing payment difficulties

This guidance was published on 7 October 2020.

This guidance was published prior to the Energy Retail Code becoming a code of practice under Part 6 of the Essential Services Commission Act 2001 and is subsequently being restructured. The obligations that are the subject of this guidance note (previously located in clauses 89 and 111A of the Energy Retail Code) can now be found in clauses 141 and 187 of the Energy Retail Code of Practice, section 40SM of the Electricity Industry Act 2001 and section 48DO of the Gas Industry Act 2000.

Following a number of referrals by the Energy and Water Ombudsman (Victoria), the commission considered the content and meaning of the phrase ‘clear and unambiguous information [or advice] about the assistance available’ under Part 3 of the Energy Retail Code (v12 to v17 inclusive) and its interaction with the disconnection process set out in Part 6 of the code. Part 3 of the code is titled 'Assistance for residential customers anticipating or facing payment difficulties', and sets out a retailer’s obligations in relation to the payment difficulty framework.

Subclause 89(1)(b) is part of the Payment Difficulty Framework in Part 3 of the Energy Retail Code. It provides:

A retailer must:

(b) at all times when it is relevant to do so, including on being contacted by a residential customer, give the customer in a timely manner clear and unambiguous information about the assistance available under this Part…

Clause 89(1)(b) applies at all times where the provision of information about the assistance available under Part 3 is relevant.

Clause 111A(1) of the code further requires compliance with clause 89(1)(b) prior to arranging any disconnection. Clause 111A(1) explicitly requires retailers to provide information about the assistance available under Part 3 at specific instances as part of a disconnection process*:

Within 21 business days of the pay-by-date where a residential customer has not paid their bill by the pay-by-date and has arrears of more than $55, under clause 80(2) of the code: cl 111A(a)(i).
When the retailer issues a disconnection warning notice under clause 110(2)(ba)(ii) of the code: cl 111A(1)(a)(iii).
As part of the obligation on the retailer to use its best endeavours to contact the customer in relation to the matter after issuing a disconnection warning notice, and, in so doing, provide clear and unambiguous information about the assistance available under Part 3: cl 111A(1)(a)(iv).

The intent of the provisions requiring retailers to provide customers with ‘clear and unambiguous’ information about their entitlements under Part 3 is to ensure customers facing payment difficulty understand their rights and that disconnection is a measure of last resort. This understanding promotes the outcome of customers contacting their retailer and arranging the assistance which best suits their circumstances, including at specified points during the disconnection process.

The obligation to provide ‘clear and unambiguous’ information should be applied with regard to the following considerations:

The information must be accurate and not misleading.
The information must be expressed in plain language, legible, and presented clearly and appropriately having regard to its nature.**
The information must not have any major omissions of the assistance available under Part 3: it should clearly identify the forms of standard assistance made available by the retailer in accordance with clause 76(2), as well as the tailored assistance measures in clause 79(1) of the code.

The code does not prescribe the words to be used to provide the “‘clear and unambiguous information [or advice]’” but they should be sufficient to inform the customer of their entitlements for standard assistance (clause 76) and for tailored assistance (clause 79).  By way of example only, refer to further information for energy consumers and this fact sheet.

Framing the assistance available as an entitlement

When a retailer provides information about the assistance available under Part 3, it will be misleading for retailers to frame such assistance as an option which the retailer has discretion to provide or for which the customer ‘may be eligible’. The assistance set out in Part 3 of the code are minimum standards of assistance to which residential customers anticipating or facing payment difficulties are entitled.***

Retailers must therefore frame Part 3 assistance as an ‘entitlement’ or ‘right’ which the customer has, and which the retailer ‘will’ or ‘must’ offer. We consider that language which implies Part 3 assistance is at the discretion of, or a form of kindness provided by the retailer, is misleading and non-compliant with the requirements of Part 3 of the code.

Is a different level of information required at each stage?

In addition to these three specific points outlined above, there will likely be other points in time at which a retailer opts to contact a customer with information about payment assistance. There is a discretion for retailers to determine the level of detail regarding a customer’s entitlements to be presented at additional points, provided that both the objective of Part 3 and the mandatory requirements of the code are met.

Distinguishing between electronic and hard copy communications

Where the customer has provided explicit informed consent to receiving communications electronically****, a retailer may provide summary information about the assistance in the body of an email accompanied by a web link directing to more detailed information, provided the retailer complies with the relevant requirements of the code.

* Retailers must also give the customer information about the assistance available if the customer contacts the retailer: clause 89(1)(b).

** Clause 87(1) of the code.

*** Clauses 71, 74 and 77 of the code.

**** In accordance with clause 87(2) of the code.

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