MSE News: O2 to hike its prices by 2.7% - can you leave your contract penalty-free?

Thank you for your reply re: my complaint about O2 not complying with Ofcom General Condition 9.6.

I would like to clarify that my original complaint is not regarding the O2 price rises in line with RPI, the complaint is that O2 have increased their international call charges by 50%, which is of material detriment to me, and O2 have not given me the option to withdraw from the contract without penalty (as per Ofcom GC 9.6). I do not accept the contract changes, and I invoke my right to cancel the contract without penalty.

Your email indicates that "The new Ofcom guidance applies to contracts taken out by consumers and small businesses on or after 23rd January 2014. For customers who were in a contract prior to 23 January 2014, we cannot apply the new guidance."

Please note, my complaint wasn't related to the new Ofcom Guidance at all. My complaint was about O2 not complying with Ofcom General Condition 9.6, which has been in force since 25/05/2011, hence it applies to my O2 contract.

For your reference, below is the General Condition 9.6:
9.6 The Communications Provider shall:
(a) give its Subscribers adequate notice not shorter than one month of any modifications likely to be of material detriment to that Subscriber; (O2 have informed me of our contract modification, which is of material detriment to me: apart from RPI increase, international call charges are up by 50%! I do not accept this materially detrimental change, and I invoke my right to cancel the contract without penalty)
(b) allow its Subscribers to withdraw from their contract without penalty upon such notice; and (O2 have refused to comply with this, and in their communications are refusing to even acknowledge GC 9.6)
(c) at the same time as giving the notice in condition 9.6 (a) above, shall inform the Subscriber of its ability to terminate the contract without penalty if the proposed modification is not acceptable to the Subscriber. (O2 have failed to inform me of my ability to terminate the contract without penalty, in breach of GC 9.6).

And as you are aware Ofcom have not changed the General Condition 9.6 in January 2014 - their latest Guidance merely clarifies/simplifies the definition of material detriment (i.e. any price increase). GC 9.6 still applies to my contract, as the huge 50% international call price increase is of material detriment to me and will prevent me from using my mobile phone for international calls when needed (in March-May 2014).

In your email you also quote the O2 contract, which states the following:
5.3 You can end this Agreement without having to pay the Monthly Subscription Charges up to the end of any Minimum Period you have left, if:
(b) we increase any of our Charges (apart from for Additional Services) in such a way that would have increased your total bill for the immediately previous month by more than 10% (if the increase(s) had applied for the whole of that month).

The above O2 T&C's 5.3 simply implies what "material detriment" is according to O2. This is clearly in breach of Unfair Terms in Consumer Contracts Regulations (UTCCRs). O2 cannot give itself the sole right to determine what “material detriment” means:
UTCCRs Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:
(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.

Given O2 have taken it upon themselves (in contravention of Schedule 2, paragraph 1 (m) of the UTCCRs) to give themselves the exclusive right to interpret what is of material detriment to me, can they please clearly explain what criteria they have used and which of my personal circumstances have been taken into consideration when they reach this conclusion?

Additionally as stated in my first email under Universal Service Directive 2002/22/EC of the European Parliament I have a right to withdraw from my contract (without penalty) upon notice of proposed modifications in the contractual conditions.

I still contend that this contract change is of material detriment to me and request that you further pursue my complaint and assist me to terminate my contract penalty free as per GC 9.6 and USD 2002/22/EC. I do not accept the contract changes.

Please reconsider your decision taking the above into account.

parrysite wrote: »

I've just received a voicemail from the Ombudsman saying the email I received was in error and that they need to speak to me over the phone! Will update when I've spoken to them..

For anyone else that complained and may get a call, it was an 0192 number.

Dear Mr xxxxxx

Thank you for your email received on 13 February 2013 about O2.

We have further reviewed the information that you have provided.

As O2’s price rises are in line with the Retail Price Index and your contract began prior to 23
January 2014, we are unable to investigate your complaint.

You may wish to discuss this matter with the industry regulator Ofcom on 0330 123 3333 who
will be able to clarify the elements that you have raised such as Ofcom’s General Condition 9.6.

Ofcom regulates the communications industry and sets the general conditions that all providers
must meet. Provided it operates within this framework, a provider is entitled to make commercial
decisions about how it does business and what products it offers.

For more information about Ombudsman Services visit our website
https://www.ombudsman-services.org

Yours sincerely

Thank you for your email received on 17 February 2014 about O2.
After reading your email we can confirm that we would be able to look at the customer service issues surrounding the cancellation of your contract. However, before we can become involved O2 has up to eight weeks to try to sort out your problem for you. We can become involved before eight weeks if the company writes to you with its final position. This is often called a deadlock letter and will refer you to our service.
We have looked at the information you provided and it appears that you have not given the company this time to try to resolve the complaint for you.
The company will have a complaints code of practice which is available on its website or you can ask for a copy to be sent to you free of charge. You should follow this procedure, keep a record of what happens and let us know if you get a deadlock letter or eight weeks pass and you remain unhappy.
See our website for further information https://www.ombudsman-services.org
Yours sincerely
Gayle Stanton Enquiry Officer