Mobile Phone Contract - Price Rise Refunds

RandomCurve wrote: »

If I remember correctly you should get an email (auto reply) with a case reference number. If you have not got that then try again - or call CISAS.


I recommend that you send the attachments (evidence -Appendix 1 - X) in a separate email as attaching them with the claim seems to be a bit hit and miss.

I sent as a reply to the email I got automatically from CISAS... Also attached old bill with it! I didnt attach the template but instead sent it as the body of the email instead!

Now time to play the waiting game...

Hi, this is the reply to my claim by t mobile/EE. Sent to me via CISAS today at 12:00 after 16 days..........

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
REFERENCE: 21214****
BETWEEN
MR ****** ****** Claimant
and
EE LIMITED trading as T-MOBILE
Respondent
DEFENCE
1. The Respondent denies that it is liable to the Claimant as pleaded or at all.
2. The Respondent is a mobile telecommunications network operator that enters
into Service Agreements with its customers to enable its customers to access its
network. The Claimant is one such customer of the Respondent.
3. Access to the Respondent’s network is granted to the customer by way of the
issuance to the customer of a SIM card which is issued subject to the
Respondent’s then applicable conditions for telephone service.

4. The Claimant has been a customer of the Respondent’s since 24 April 2013.
Upon connection, the Claimant was registered as a consumer and allocated the
account number ******** (“the Account”) and the mobile telephone number
***** ****** (“the Mobile Number”), which is currently active on the
Account.
5. The Claimant entered in an Agreement (“the Agreement”) with the Respondent
on 24 April 2013 via the Respondent’s telesales department. The Claimant was
made aware that the Agreement was subject to terms and conditions which
were offered to the Claimant prior to entering into the Agreement and were
available for viewing on the Respondent’s website. A copy of the terms and
conditions were subsequently despatched to the Claimant.
6. The Respondent maintains a paperless environment with regards to Service
Agreements entered into with its customers but does not retain a copy.
However, the Respondent maintains a record of the applicable terms and
conditions that govern each Service Agreement entered into.
7. At Schedule 1 attached hereto is a copy of the Terms and Conditions for
Telephone Service and Equipment – Conditions Version 58. The Respondent
submits that such terms and conditions relate to the original terms and
conditions to the Agreement.
8. At Schedule 2 attached hereto is a copy of the amended terms and conditions –
Conditions Version 58C, subject to the Agreement as of the 26 March 2014.

9. The Respondent submits that this dispute, as per the Claimant’s application,
arises from the Respondent’s amendment of the terms of the Agreement
between the Claimant and Respondent. The amendment changed the
circumstances in which a price rise gives the Claimant an automatic right to
terminate the Agreement, without paying a cancellation charge. The
amendment was introduced in light of comments expressed by Ofcom
regarding the Respondent’s terms and conditions - Condition Version 58 (at
Schedule 1) with the intention of increasing certainty for consumers and is to
the Claimant’s benefit.
10. As to the substance of this complaint, the Respondent’s position is that it has a
general right to change the terms of the Agreement, as per the terms and
conditions exhibited at Schedule 1. That right is subject to the right of the
Claimant under the terms of the Agreement and the regulatory scheme to
terminate the Agreement if the change is of material detriment to the Claimant.
However, in the present case, the change is not of detriment to the Claimant at
all, alternatively any detriment is marginal and not material. On the contrary, it
is to the Claimant’s benefit, and accordingly there is no right of termination.
11. The Respondent submits that they also consider that this dispute falls outside
CISAS’ remit on the grounds that (i) it does not fall within CISAS rule 2a;
and/or (ii) it falls within CISAS rule 2b.
12. This response addresses the following:
a) The change to the Agreement;
b) The Respondent’s right to change the terms of the Agreement;

c) The Claimant’s right to terminate following a change if the change is of material detriment;
d) Why the change is not of material detriment to the Claimant;
e) Why the dispute falls outside CISAS’ remit and/or is not appropriately resolved by CISAS.
THE CHANGE TO THE CONTRACT
13. The Agreement provides for a specific right for the Respondent to vary its
charges for services provided under the Agreement. The change about which
complaint is made concerns the terms which provide for when increases to the
Claimant’s price plan (the main recurring monthly charge) gives a right to
terminate without paying a cancellation charge.
14. The Respondent confirms that between the 29 January 2014 and 14 February
2014 the Claimant was notified by SMS as to the amendment of the original
terms and conditions (at Schedule 1) to the amended terms and conditions (at
Schedule 2). Following the 14 February 2014 the SMS delivery data was then
analysed by the Respondent and letters confirming the amendments were then
sent out to the registered addresses of any customers whose notification SMS
had either failed or not been delivered. The Respondent confirms that the
sending of the above said notification letters to the remaining un-notified
customers was completed by the 21 February 2014. The Respondent submits
that this entire process was of course in compliance with the relevant notice
requirement as per the original terms and conditions.

The Contract prior to the Change
15. The Respondent is referred to the terms and conditions at schedule 1, CVN58.
16. Prior to the changes in question, point 7.1.4 of the Contract provided:
7.1.4. We can increase any Price Plan Charge. We will give You
Written Notice 30 days before We do so. The change will then apply
to You once that notice has run out.
17. The Agreement further provided that the Claimant has a right to terminate the
Agreement without paying a cancellation charge where a price increase notified
under point 7.1.4 was of material detriment to the Claimant (point 7.2.3.2) or
exceeded the rate of inflation (point 7.2.3.3).
7.2.3. A Cancellation Charge won’t apply if You are within the
Minimum Term and:
7.2.3.2. You are a Consumer and the change that We gave You
Written Notice of in point 2.11.2 or 7.1.4 above is of material
detriment to You and You give Us notice to immediately cancel this
Agreement before the change takes effect; or
7.2.3.3. The change that We gave You Written Notice of in point 7.1.4
is: (i) an increase in Your Price Plan Charge (as a percentage)
higher than any increase in the Retail Price Index (also calculated as
a percentage) for the 12 months before the month in which We send
You Written Notice and You give Us notice to immediately cancel this
Agreement before the change takes effect.

17. Point 7.2 is referred to below as “the Old Term”.
18. The effect of point 7.2.3.3 in CVN58 was that the Claimant would only have a
right to terminate the Agreement if the price increase was higher than the retail
price index (“RPI”).
The Agreement after the Change
19. The Respondent refers to the terms and conditions as at Schedule 2, CVN58C.
20. The revised Agreement provides as follows:
7.2.3.3. We have given You Written Notice of an increase in a Price
Plan Charge under point 7.1.4 and (i) the increase in Your Price
Plan Charge (as a percentage) is higher than the annual percentage
increase in the Retail Price Index (RPI) published by the Office for
National Statistics (calculated using the most recently published RPI
figure before we give you Written Notice under 7.1.4); and (ii) You
give Us notice to immediately cancel this Agreement before the
change takes effect.
21. The effect of this term (“the New Term”) is that the Claimant has a right to
terminate the Agreement if the price increase is higher than RPI, calculated
using the most recently published RPI figures.
22. The clause specifically refers to RPI and not Consumer Price Index (‘CPI’).
CPI and RPI are measured in different ways and takes into account different
factors in determining the figure for the relevant month. CPI figures can indeed
be higher than the RPI figures. The Respondent has historically relied only

upon the RPI figure and not CPI. The Respondent’s business decision to rely
solely upon the RPI as a measure creates certainty to the Claimant as to which
measure will be used. In any event, the Respondent submits that even if the
CPI figure had been used as a measure that an increase by a CPI measure would
not be regarded as an increase which would constitute a material detriment to
the Claimant.
23. This change increases certainty for customers and reduces the scope for
disputes regarding whether a price change gives rise to a right to cancellation.
The Respondent’s right to change the terms of the Agreement
24. The Respondent is entitled to revise its contract terms pursuant to point 2.11 of
the Agreement, which provides as follows:
2.11. We will make a copy of Our current version of these term and
conditions available on Our website. We can change these terms and
conditions for any good reason, for instance, if We want all customer
on the same conditions. We will tell You about the change
beforehand, as explained here.
2.11.1 We will make a copy of Our current version of these terms and
conditions available on Our website. We can change these terms and
conditions for any good reason, for instance, if We want all
customers on the same conditions. We will tell You about the change
beforehand, as explained here:

The Claimant has a right to terminate only if the change is of material detriment
25. The Agreement further provides that where a change notified under point
2.11.1 is of material detriment to the Claimant, the Claimant has a right to
terminate the Agreement without paying a cancellation charge. However, if the
change notified is not of material detriment and the Claimant is within their
minimum term, the Claimant does not have such right of termination.
26. Points 2.11 and 7.2 provide (so far as material) as follows:
2.11.2. If You are a Consumer and the change of terms and
conditions is not of material detriment to You or You are not a
Consumer, We will send You Written Notice 30 days before the terms
and conditions are due to change. The new terms and conditions will
automatically apply to You once that notice has run out.
2.11.3. If You are a Consumer and the change is of material
detriment to You, We will send You Written Notice 30 days before the
terms and conditions are due to change. The new terms and
conditions will apply to You once that notice has run out, unless You
terminate Your Agreement with Us within that notice period. If You
do this You won’t have to pay any Cancellation Charge that would
otherwise apply, see point 7.2.3.2.
7.2. Your termination rights
7.2.1. You can give Us notice to terminate this Agreement, to take
effect on or after the end of the Minimum Term. However (except as
set out in point 7.2.3 and 7.2.4) if, in our total discretion, We accept
notice from You to terminate this Agreement within the Minimum

Term, You will have to pay Us a Cancellation Charge and, if
applicable, the Additional Commitment Service Cancellation Charge.
7.2.3. A Cancellation Charge won’t apply if You are within the
Minimum Term and:
7.2.3.2. You are a Consumer and the change that We gave You
Written Notice of in point 2.11.2 or 7.1.4 above is of material
detriment to You and You give Us notice to immediately cancel this
Agreement before the change takes effect; or
27. Point 2.11 implements General Condition 9.6, imposed by Ofcom on
Communications Providers under s.45 of the Communications Act 2003, which
provides for Communications Providers to give subscribers one month’s notice
of “any modifications likely to be of material detriment” and to allow
subscribers to withdraw from the contract without penalty.
The Change is not of material Detriment
28. The Change is not of material detriment for the following reasons.
29. Under both the Old Term and the New Term, the Claimant may cancel, without
incurring a cancellation charge, if the price increase notified by the Respondent
exceeds the rate of inflation as measured by RPI. In substance, the Claimant’s
rights of cancellation have therefore not been affected and the Claimant has
suffered no detriment whatsoever.
30. On the contrary, the effect of the changes is to benefit the Claimant. The
changes make clear and certain the specific published measure of inflation
which may be used for the purposes of this comparison. Out of date and

potentially confusing references to other statistical measures of inflation have
been removed. The changes therefore will enable the Claimant to identify when
a right of cancellation arises.
31. Alternatively, if and to the extent that the Claimant has suffered any marginal
detriment, such detriment is not material.
31.1. The only circumstance in which it could be said that the Claimant has
suffered detriment would be if it were established that the Old Term
allowed the Claimant to terminate, without incurring a cancellation
charge, in circumstances where the price rise notified was less than RPI,
but higher than some other statistical measure of inflation.
31.2. In order to demonstrate that the change was of material detriment, the
Claimant would need to (i) identify such other statistical measure of
inflation which it is said would qualify under the Old Term; (ii) identify
the difference over the period of the Claimant’s minimum term between
price rises which would be calculated according to RPI and price rises
which would be calculated according to the alternative measure of
inflation and (iii) establish that the difference between such price rises
qualifies as material detriment under point 7.2.3.2.
31.3. The Claimant has not identified such an alternative measure of inflation.
31.4. Further or alternatively, it is submitted that the difference, over the
course of the Claimant’s minimum term between any two measures of
inflation which would qualify under point 7.2.3.2 is not sufficient to be
material.

31.5 Further or alternatively, it is submitted that the difference between any
two measures of inflation which would qualify under point 7.2.3.2 is not
sufficient to be material when applied to the amount of the Claimant’s
bills over the course of the Claimant’s remaining minimum term.
31.6 In particular and by way of illustration, a historic comparison of RPI to
CPI shows that the difference between the two is not typically material
the following table sets out, for each of the last 24 months:-
(A) the percentage change in CPI over the previous 12 month
period;
(B) the percentage change in RPI over the previous 12 month
period;
(C) the difference, in percentage points, between the percentage
change in CPI and RPI over the previous 12 month period; and
(D) the average of the difference in the percentage changes in CPI
and RPI, calculated over the 24 months period1
Month A. % change in CPI over previous 12 month period
B. % change in RPI over previous 12 month period
C. Difference in percentage points
Mar 2012 3.5 3.6 0.1 Apr 3.0 3.5 0.5 May 2.8 3.1 0.3 Jun 2.4 2.8 0.4 Jul 2.6 3.2 0.6
1 The figures in this table have been obtained from Gov Website: ********************************************* indices/february-2014/consumer-price-inflation-reference-tables.xls>.

Aug 2.5 2.9 0.4 Sep 2.2 2.6 0.4 Oct 2.7 3.2 0.5 Nov 2.7 3.0 0.3 Dec 2.7 3.1 0.4 Jan 2013 2.7 3.3 0.6 Feb 2.8 3.2 0.4 Mar 2.8 3.3 0.5 Apr 2.4 2.9 0.5 May 2.7 3.1 0.4 Jun 2.9 3.3 0.4 Jul 2.8 3.1 0.3 Aug 2.7 3.3 0.6 Sep 2.7 3.2 0.5 Oct 2.2 2.6 0.4 Nov 2.1 2.6 0.5 Dec 2.0 2.7 0.7 Jan 1.9 2.8 0.9 Feb 2014 1.7 2.7 1.0 D. Average difference between % change in CPI and RPI over previous 12 month period 0.5
31.7 Accordingly, applied to a typical monthly bill of £30, the average
difference between the maximum price rise under the New Term (i.e. a
price rise which does not trigger a right to termination) and the
maximum price rise under the Old Term, calculated by reference to CPI
would be 0.5% x £30 per month = 15 pence per month. Even taken over
the longest possible period of 24 months2, the total detriment would
amount to only £3.60 compared to total bills of £720 over the period. It
is likely that the detriment would be less than this. It is submitted that
such a small difference is not capable of being material. Further, it is
difficult to envisage any detriment which could be less material and if
this change were found to be material, it would deprive the materiality
condition of any meaning whatsoever.
2 24 months is the longest initial commitment period permissible under General Condition 9.4

THE DISPUTE FALLS OUTSIDE CISAS’ REMIT
32. The dispute cannot be settled by CISAS under Rule 2 of the CISAS Rules
insofar as it concerns whether the Claimant is entitled to cancel the Agreement
by reason of the Respondent’s amendments to terms 7.1.4 and/or 7.2.3.3 terms
and conditions on the grounds that those amendments are modifications likely
to be of material detriment to the Claimant. The Material Detriment Issue does
not relate to any of the matters set out in Rule 2a and/or involves a complicated
issue of law.
33. The Material Detriment Issue does not relate to any of the matters set out in
Rule 2a.
33.1. Bills: It does not relate to any bill issued by the Respondent to the
Claimant.
33.2. Customer Service: It does not relate to the quality of customer service
provided by the Respondent to the Claimant.
33.3. Communications Services: For the reasons further set out below, the
reference in Rule 2a to “Communications services provided to customers”
relates to the physical provision of electronic communications services
and/or does not relate to regulatory issues such as the Material Detriment
Issue. Rule 2a is intended to implement General Condition 14.5 (“GC
14.5”) which requires the Respondent to “implement and comply with a
Dispute Resolution Scheme, … for the resolution of disputes …in relation
to the provision of Public Electronic Communications Services.”
Electronic Communications Services are defined in s.32 of the

Communications Act 2003 to mean “a service consisting in, or having as
its principal feature, the conveyance by means of an electronic
communications network of signals”. That indicates that the focus of the
dispute resolution scheme is on the service actually provided to
customers.
34. Further or alternatively, the Material Detriment Issue constitutes a complicated
issue of law.
34.1. A proper resolution of the case would require CISAS to consider (i) the
proper construction of the Old Term, as a matter of contract; (ii) the
proper construction of the New Term, as a matter of contract; (iii) the
proper construction of the term “material detriment”; and (iv) whether,
in light of those matters, the change from the Old Term to the New
Term was of such material detriment. Each of points (i), (iii) and (iv)
involves complicated issues of law.
34.2. As noted above the proper construction of the Old Term may not be
easy to establish. It does not make clear which statistical measures of
inflation may be used for the purposes of comparison.
34.3. Further, the meaning of material detriment needs to be established both
as a matter of contractual construction and by reference to the regulatory
context. The term is not defined explicitly in the Agreement or in
GC9.6. The fact that Ofcom has recently published guidance on the
issue of material detriment in respect of price change clauses indicates
that absent such guidance, the issue of material detriment is unclear; and

that the considerations applicable to determining material detriment can
be complicated.
34.4. The application of the material detriment test to the change of terms is
doubly complex. It is not sufficient simply that it is theoretically
possible that the change could be of some detriment to the customer.
Rather it is necessary that the Claimant identify the degree to which the
Old and New Terms would differ, if applied to him, and to establish that
that difference is material.
35. For the reasons stated above the Respondent denies that the Claimant as at all
entitled, whether contractually or otherwise, to terminate his Agreement without
charge, either for the reasons as indicated within his application or any other such
reason. Therefore, the Respondent submits that the Claimant is subject to the
standard contractual termination clauses as per the applicable terms and
conditions.
36. The Respondent notes that the Claimant has made no complaint as to customer
services and in any event, the Respondent submits that the Claimant was
provided with a good level of customer services at all times and that any
dissatisfaction on the part of the Claimant simply stems from the fact that the
matter was not resolved as he had hoped, which in any event related to a
proposed remedy that he was not entitled to. The Respondent confirms that it has
responded to the Claimant’s complaint at all times, clarifying its position
regarding the above.

37. The Respondent submits that it will provide the Claimant with a Port
Authorisation Code (“PAC”) to enable the Claimant to transfer his number to
another provider and to cancel the Agreement upon request, however it is the
Respondent’s position that the Claimant will remain liable for a cancellation
charge upon cancellation of the Agreement, currently the sum of £298.30,
reducing on a daily basis.
38. The Claimant claims the sum of £100.00 in compensation. The Respondent
denies that the Claimant is entitled to compensation in the sum of £100.00 as
pleaded or at all. If the Claimant had suffered actual loss he would have pleaded
that damage as a quantified sum and furthermore provided evidence to support
such a claim. The Claimant has not done so and as a consequence is not entitled
to any compensation. The Claimant is hereby put to strict proof as to his
purported loss.
39. The Respondent submits that they have acted well within the parameters of their
terms and conditions and entirely in compliance with any obligations and
therefore, any liability to the Claimant is entirely denied.
The Respondent believes that the facts stated in this form are true. I am duly
authorised by the Respondent to sign this statement.
Dated the 15 May 2014

(Text removed by MSE Forum Team) Legal Counsel
For and on behalf of the Respondent whose address for service is at:
EE Limited Legal Department (Text removed by MSE Forum Team)

Requested my PAC from O2 today,given with no attempt to retain me after I gave my reason.
I told the operative to inform her managers of my reason.
I also told her this. O2 tell us that 2.7% increase is of no great significance a matter of 70p per month on the average bill. I said if that's the case ask your bosses for a 2.7% pay rise and watch them then. You'll be called a greedy so and so. Which basically is what 02 is.

Mikmonken wrote: »

I'd love to know how much of that 2.7% is actually going on increase profits, rather than increase costs!! 25.1m customers at £0.70 increase is £1.75m

All of it is. O2's costs have actually dropped 5.1% in the last year as revealed in figures disclosed to their shareholders

http://www.telefonica.com/en/shareholders_investors/pdf/rdos14t1-eng.pdf

delboy9 wrote: »

Hi, this is the reply to my claim by t mobile/EE. Sent to me via CISAS today at 12:00 after 16 days..........

Snipped all EE's nonsense

Hopefully that means I'll get my response soon. Not had anything yet today, but there's still time. If not, perhaps Monday.

The response is about what we expected really!