Tmobile price increase

RandomCurve

Stoney73

24. The Respondent denies that Clause 7.2.3.3, or any other Clause referred to above, is an unfair term in breach of the Unfair Terms in Consumer Contract Regulations 1999 or otherwise. The terms were clear and unambiguous and clearly stated within the Respondent’s Agreement. They were not hidden. Furthermore, the Claimant could have chosen to enter into an agreement for mobile phone services with an alternative service provider, he was not obligated to enter into the Agreement with the Respondent, he did so of his own free will and in doing so is therefore subject to the terms and conditions applicable to the Agreement. Furthermore, the Respondent denies that the terms and conditions set out within the Agreement are in breach of the OFT guidelines relating to plain and intelligible language.

Forgot to mention it does not matter if they are hidden it matter that they were not

" As such they are acceptable, provided the details are clearly and adequately drawn to the consumer's attention"

Barnicle_Fiend

stoney73 wrote: »

I received a response from Cicas earlier this morning:

...

Any help in forming a reply/adding comments would be greatly appreciated

Ok, here's how I might go about responding to this one (first draft). Let me know your thoughts.


1. The Respondent submits that the issue at the heart of the Claimant’s Claim relates to a business decision taken by the Respondent to increase its prices. - The issue at the heart of the claimant's claim is the way the respondent appears to be deliberately manipulating the terms of the contract agreed between the claimant and the respondent to avoid its obligations under said contract. Whether these actions where the result of a business decision or any other determining factor is not of interest to the claimant.

2. Rule 2(g) of the CISAS Scheme Rules (“the Rules”) provides that the CISAS Scheme (“the Scheme”) can be used to settle disputes about
i) bills and/or;
ii) communication services provided to the Respondent’s customers.

3. Rule 2(j) of the Rules provides that the dispute must not involve a complicated issue of law.

4. The Respondent submits that the cause of action pleaded by the Claimant is neither directly related to bills or communication services and therefore represents a dispute which falls outside the remit of Rule 2(g) and therefore is a matter which is not within the jurisdiction of the Scheme - The dispute is regarding an imposed price increase (to the claimants bills) and a refusal to terminate communication services in line with the mutually agreed contract - it therefore clearly concerns both bills and communication services.

5. Further the dispute, as pleaded, necessitates the consideration of the legal interpretation of clauses contained within the service agreement entered into between the Claimant and Respondent, applied as against facts, to ascertain whether a legal right of termination exists. The Respondent submits that such issues of legal interpretation and consideration requires evaluation and application of areas of law concerning contractual interpretation which are by their very nature complex and complicated. - the claimant believes that the case is very straight forward. Further to this, the claimant would like point out that in this case, affecting many customers, the respondent directly financially benefits from the case appearing more complex than it is. This is because added complexity dissuades customers from seeking to assert their rights.

6. Therefore, the Respondent respectfully submits that the Claimant’s claim as pleaded cannot be dealt with under the Scheme and that pursuant to the Rules an adjudicator is not therefore able to consider the Claimant’s claim. - the claimant disagrees. The claiment would like to point out that if the CISAS decided they are unable to arbitrate in relation to this case, other avenues are more complex, time consuming and expensive. Due to the number of customers affected by this issue, the respondent will significantly benefit from this situation for the same reasons as stated above.

7. The remainder of this Defence is pleaded without prejudice to the above.
RESPONDENT’S DEFENCE

8. The Respondent submits that the supporting document provided by the Claimant as part of his CISAS application relates not only to his account with the Respondent but also relates to several other customers of the Respondent which it appears he has obtained from various sources and research on the internet . - many customers are affected by this issue and it has prompted significant outrage on the internet and elsewhere. Of course joint cases cannot be submitted to the CISAS. Despite this, the claimant does not recognise what relevance any online research or discussion, carried out by the claimant, has in relation to the respondents defence.

9. The Respondent denies that it is liable to the Claimant as pleaded or at all.

10. The Respondent is a mobile telecommunications network operator that enters into service agreements with its customers to enable its customers to access the services. The Claimant is one such customer of the Respondent.

11. Access to the Respondent’s network is granted to the customer by way of the issuance to the customer of SIM card which is issued subject to the Respondent’s then applicable conditions for telephone service.

12. The Claimant has been a customer with the Respondent since a while ago in respect to account number *******. The Claimant has two active mobile number being my number (“the First Mobile Number”) and her number (“the Second Mobile Number”). Collectively referred to hereinafter as the Mobile Numbers.

13. On a certain date the Claimant entered into the Service Agreements (“the Agreement”) in respect to the Mobile Numbers with the Respondent via an authorised third party retailer of the Respondent . The Claimant was provided with the terms and conditions applicable to the Agreement at the point of entering into the Agreement.

14. Attached hereto at Schedule 1 is an extract from the Respondent’s billing system which shows the information captured on the Respondent’s billing system at the point of sale in respect to the Mobile Numbers which states that the applicable terms and conditions applicable to the Agreements are Conditions Version Number 58 (“CVN 58”).

15. The Claimant refers to Conditions Version Number 59 (“CVN59”) within his supporting document (referred to in the document as POST OCT 2012 CONTRACTS) however as such terms are not applicable to the Agreements between the parties the Respondent’s defence will deal only with the applicable terms, being CVN58. The Claimant’s Agreement is not subject to CVN59 and therefore not applicable to the dispute between the parties. - The respondents contracts, terms & conditions, service agreements and particularly the number of terms, language used to describe them and different iterations of similar contracts is complex and difficult to follow. However, the respondent is happy for the claim to be made on the basis of the applicable documentation agreed at the time of sale.

16. At Schedule 2 attached hereto is a copy of CVN58 applicable to the Agreement entered into between the Claimant and the Respondent. The terms and conditions governing the Agreement contains amongst other things the following;-
(i) Clause 2.5.1 - Unless We agree otherwise, a new Minimum Term will apply. Once that Minimum Term is over this Agreement will continue until terminated;
(ii) Clause 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;
(iii) Clause 7.2.2. You can only give Us notice to terminate this Agreement by calling customer services. Your Agreement will terminate 30 days from when We receive Your call, although You are free to change Your mind and call Us to withdraw Your notice of termination at any time during that period. You will be responsible for all Charges up to and including the date that this Agreement terminates;
(iv) Clause 7.2.3 - A Cancellation Charge won’t apply if You are within the Minimum Term and:
(a) Clause 7.2.3.3 - The change that We gave You Written Notice of in point 7.1.4 is 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. Pursuant to Clause 7.1.4 on or about the 2-8 April 2013 the Respondent issued to the Claimant (together with all of its pay monthly customers) written notice (“the Written Notice”) advising of a 3.3% increase in price plan monthly charges that would take effect as from 10 May 2013. The Respondent submits that adequate Written Notice was provided to the Claimant for the purposes of Clause 7.1.4.

18. The Respondent denies that the price increase of 3.3% is an increase above the Retail Price Index (‘RPI’) (when calculated as a percentage) for the 12 months before the month in which the Respondent issued the Claimant with the Written Notice. - the claimant disagrees with this statement and believes that 3.3% is higher than the RPI, see full explanation in point 20 below.

19. The Respondent further denies that such increase in charges is an increase which entitles the Claimant to terminate the Agreement without paying a cancellation charge. - if 3.3% in point 18 is indeed above the relevant rate of RPI then the claimant has the right to terminate the Agreement without penalty as made clear by Clause 7.2.3.3 listed above.

20. As the Written Notice was issued in the month of April 2013 then the relevant month’s RPI figure for the purposes of Clause 7.2.3.3 of the Agreement is the RPI figure as published by the Office of National Statistics (“ONS”) representing March 2013; being the month before the month in which the Written Notice was issued. The March RPI figure, published by the ONS Statistics was 3.3%. By way of the Monthly Statistical Bulletin (“the Bulletin”) published by the ONS the following is stated:-
The RPI 12-month rate for March [2013] stood at 3.3%

This is not the first time the respondent has imposed price increases, in 2012 The respondent imposed a 3.7% price increase on the following basis:
1. Feb RPI published March 20th 2012 (3.7%)
2. The respondent sent letters between 28th March and 3rd April (letters received early April) imposing a 3.7% price increase.
3. Price rise effective 9th May.

The rate of RPI used as the basis for the increase was February (3.7%) not March's rate (3.6%) published in late April.

The 2013 price increase was sent on the following basis:
1. Feb RPI published March 19th (3.2%).
2. The respondent sent letters between 2-8th April (letters received early April) imposing a 3.3% price increase.
3. Price rise effective 10th May.

This is clearly an increase of 0.1% above the rate of RPI allowing contract termination without penalty under Clause 7.2.3.3.

The claimant disputes the fact that respondent can use a different interpretation of which RPI figure is relevant having themselves set a precedent.

The claimant admits that adopting an unusual interpretation of the terms could potentially be agreed in advance via clear explanation, however this did not happen. The letter received did not outline or even hint at this significant change. The change has been misleading to customers, has caused significant confusion and in the claimants view the respondent cannot have it both ways. They set the precedent, they cannot expect customers to guess that they are changing their interpretation without clearly outlining the change. This is especially true when the new interpretation is very strange and requires both the claimant and the respondent to predict / await a future, unreleased RPI figure.

It should be pointed out that if the respondant in fact used the RPI figure for March (published in April) in 2012 (3.6%) then they would have been required to inform all of the customers subject to the above inflation price increase that they were eligible for penalty free termination (this requirement is very clearly stated in Clause 9.6 (c) of the General Conditions of OFCOM). This did not happen.

The Bulletin is a lengthy document so has not annexed to this Defence but can be made available to CISAS upon request.

21. The following is a summary of the RPI figures issued by the ONS month by month for the period January 2013 to March 2013.

RPI Month RPI Percentage RPI Publication Date
December 2013 3.1% 15 January 2013
January 2013 3.3% 12 February 2013
February 2013 3.2% 19 March 2013
March 2013 3.3% 16 April 2013

22. As the increase in charges of 3.3% set out within the Written Notice is not higher than the RPI figure published for the month before the month in which the Written Notice was issued (March 2013) of 3.3% the Claimant, by way of Clause 7.2.3.3 or otherwise, is not entitled to cancel the Agreement without paying a cancellation charge. - The claimant disputes this point on the basis of the points made in #20. of this document.

23. The Respondent denies that it issued Written Notice to its customers on 1 March 2013. The Respondent submits that the press publication issued on 1 March 2013 referred to by the Claimant was merely an indication as to what the Respondent’s future intention may have been but that such did not constitute actual written notice for the purposes of Clause 7.1.4. - the claimant alleges that this act had the effect of further increasing the confusion surrounding the respondents new interpretation of the terms on the basis of predicting the future.

24. The Respondent denies that Clause 7.2.3.3, or any other Clause referred to above, is an unfair term in breach of the Unfair Terms in Consumer Contract Regulations 1999 or otherwise. The terms were clear and unambiguous and clearly stated within the Respondent’s Agreement. They were not hidden. Furthermore, the Claimant could have chosen to enter into an agreement for mobile phone services with an alternative service provider, he was not obligated to enter into the Agreement with the Respondent, he did so of his own free will and in doing so is therefore subject to the terms and conditions applicable to the Agreement. Furthermore, the Respondent denies that the terms and conditions set out within the Agreement are in breach of the OFT guidelines relating to plain and intelligible language.

This price increase then must be accompanied by a right to penalty free termination to avoid being deemed unfair in the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR), Schedule 2 (1) (l) …allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;..”

The Office of Fair Trading has published guidance on the UTCCRs. On the issue of price variation clauses, OFT’s guidance states that:
“12.1 ...A clause allowing the supplier to increase the price – varying the most important of all of the consumer’s contractual obligations – has clear potential for unfairness.
12.2 Any purely discretionary right to set or vary a price after the consumer has become bound to pay is obviously objectionable........It also applies to rights to increase payments under continuing contracts where consumers are “captive” – that is, they have no penalty-free right to cancel.
12.3 A price variation clause is not necessarily fair just because it is not discretionary.......Suppliers are much better able to anticipate and control charges in their own costs than consumers can possibly be. In any case, such a clause is particularly open to abuse, because consumers can have no reasonable certainty that the increases imposed on them actually match net cost increases.” This guidance clearly calls into question the fairness of the contract under the UTCCRs.

25. The RPI figure of 3.2% published by the ONS on 19 March 2013 as referred to by the Claimant within his application relates to the RPI figure for February 2013. The RPI figure published by the ONS in a given month relates to the preceding month and not the actual month of publication. Therefore the figure referred to by the Claimant as published on 19 March 2013 is actually the RPI figure for February 2013 and not the RPI figure for March 2013. The Respondent is not seeking to rely upon the RPI figure for February 2013. - The claimant believes that the respondent set a precedent for understanding which particular RPI is relevant. It is not 100% clear in the terms and the respondent themselves amended the terms in CVN59 (post October 2012) referred to above to make them more clearly relate to a 'published' RPI rate, further refuting the argument made above.

26. The Respondent avers that published RPI figure for March 2013 is the correct figure to use when applying the strict interpretation of Clause 7.2.3.3. Clause 7.2.3.3 specifically refers to the ‘Retail Price Index (also calculated as a percentage) for the 12 months before the month in which we send You Written Notice. (emphasis added). It follows, in line with the strict interpretation of Clause 7.2.3.3, that the Written Notice being issued in April 2013 relates to RPI figure for March 2013. Whilst the March RPI figure was not issued until after the date of the Written Notice such does not affect the construction and interpretation of the Clause 7.2.3.3. - The claimant believes that this particular interpretation (relying on unpublished future rates of RPI) was not clear to customers, was not the interpretation used by the respondent in 2012 when they set a precedent and was also not explained in relation to the price increase imposed and is therefore not relevant to the claim.

27. It is denied that the fact that March 2013 RPI figure had not been published at the time the Written Notice was given restricts the Claimant’s ability to give notice to cancel as pleaded or at all. Clause 7.2.2.3 provided that notice to cancel (no such right being admitted) was required to be given prior to the new charge taking effect. The new charge was to take effect on 10 May 2013. March 2013 RPI figure was published on 16 April 2013. The Claimant therefore still had ample opportunity if the relevant RPI rate gave grounds to cancel (none being admitted) to give notice before the new charge took effect. - the claimant maintains that basing a price increase and therefore the customers right to cancel their contract on an unpublished and unknown number is confusing, misleading, not transparent and unnecessary. It made it more difficult for consumers to cancel their contract and perhaps this was the respondents intention. The claimant would like to point out that this issue affected millions of customers and the respondent therefore had a responsibility to behave in a responsible and businesslike manner, especially when doing something as controversial as imposing extra fees on a large proportion of their customer base.

28. Whilst the Respondent acknowledges the Claimant’s request to terminate his Agreement within the minimum term period pursuant to Clause 7.2.2 the Respondent submits that in processing the termination the Claimant would be liable for the cancellation charge for the remainder of the minimum term period. As at today’s date such figure would be £a lot per each Mobile Number (being a total of £even more) reducing on a daily basis. - the claimant disagrees for the reasons outlined above.

29. Pending the outcome of the Claimant’s claim the Respondent has not processed the Claimant’s request for termination; however it remains the Respondent’s view that in doing so the Claimant remains liable for the cancellation charge. The Respondent submits that in the event that the adjudicator finds in the Respondent’s favour and the Claimant does not elect subsequently to retract the termination request that it will process the Claimant’s request to terminate the Agreement and back date such request to 30 days from receipt of the notice, subject to the Claimant paying the cancellation charge.

The Respondent will also provide the Claimant with the requested Porting Authorisation Code (‘PAC’) to enable him to transfer the Mobile Numbers to another network provider. It should be noted that prior to receipt of the Claimant’s claim that the Claimant has not previously requested a PAC code and that his request for such on the application form is the first such request. The Respondent submits that it would however also accept the Claimant’s withdrawal of their request to terminate the Agreement, should she so wish to withdrawn such request.

30. The Respondent denies that it has breached its Agreement and/or breached its duty of care to the Claimant. The Respondent has provided a response to the Claimant in a timely fashion and that such response has been consistent. Whilst the Claimant’s appears to dislike the content of such response it does not follow that the Respondent has breached its duty of care to the Claimant. - I cannot argue this, I don't know enough of the relevant details regarding response times to complaints etc. etc. in this particular case.

31. The Respondent further denies that the Claimant is entitled to seek damages in the sum of £100 as per the supporting documents and/or £a little as per his application form. The Claimant has not provided any evidence in support of such purported losses and in any event the Respondent submits that such sums are disproportionate to the value of the claim. - the claimant being forced to escalate this case to the CISAS has suffering significant losses and depending on the outcome of the case, evidence of time & monies spent will be made available in full. As the case is still in progress, it is not possible to fully monetize the damages at this stage - only agree a pro-rata cap on the amount per unit of time / money expended (& subsequently proved).

32. The Respondent denies liability to the Claimant as pleaded or at all, either contractually or otherwise.
The Respondent believes that the facts stated in this form are true. I am duly authorised by the Respondent to sign this statement. "

RandomCurve

And the winner is :

How funny is that!

anna2007

Barnicle_Fiend wrote: »

Ok, here's how I might go about responding to this one (first draft). Let me know your thoughts.

Well argued comments Barnicle. TM's defence to my own complaint wasn't nearly as detailed and complicated as Stoney's - in fact TM offered no defence at all to my claim for breach of contract, instead insisting on the business decision argument (they submitted their defence before CISAS did the u-turn and started accepting cases again).

I took the same approach as you, commenting on each point in turn, which I think makes it easier (and less likely to miss something).

anna2007

stoney73 wrote: »

26. The Respondent avers that published RPI figure for March 2013 is the correct figure to use when applying the strict interpretation of Clause 7.2.3.3. Clause 7.2.3.3 specifically refers to the ‘Retail Price Index (also calculated as a percentage) for the 12 months before the month in which we send You Written Notice. (emphasis added). It follows, in line with the strict interpretation of Clause 7.2.3.3, that the Written Notice being issued in April 2013 relates to RPI figure for March 2013. Whilst the March RPI figure was not issued until after the date of the Written Notice such does not affect the construction and interpretation of the Clause 7.2.3.3.

TM have omitted "any increase in" from the start of their quote from 7.2.3.3 - I wondered if this was intentional (given that "any" opens up a whole new bag of interpretations, which probably weakens TM's case re: fairness of the term). Might be worth commenting on the additional ambiguity created by the use of "any" in the clause?

RandomCurve

stoney73 wrote: »

I received a response from Cicas earlier this morning:

"07 June 2013
Dear Mr stoney73
CISAS
Case No: ******* - stoney73 v T-Mobile (UK) Limited
We acknowledge receipt of the company’s response to claim, a copy of which is attached for the customer’s attention.


T-mobiles defence:
"
1. The Respondent submits that the issue at the heart of the Claimant’s Claim relates to a business decision taken by the Respondent to increase its prices.
2. Rule 2(g) of the CISAS Scheme Rules (“the Rules”) provides that the CISAS Scheme (“the Scheme”) can be used to settle disputes about
i) bills and/or;
ii) communication services provided to the Respondent’s customers.
3. Rule 2(j) of the Rules provides that the dispute must not involve a complicated issue of law.
4. The Respondent submits that the cause of action pleaded by the Claimant is neither directly related to bills or communication services and therefore represents a dispute which falls outside the remit of Rule 2(g) and therefore is a matter which is not within the jurisdiction of the Scheme
5. Further the dispute, as pleaded, necessitates the consideration of the legal interpretation of clauses contained within the service agreement entered into between the Claimant and Respondent, applied as against facts, to ascertain whether a legal right of termination exists. The Respondent submits that such issues of legal interpretation and consideration requires evaluation and application of areas of law concerning contractual interpretation which are by their very nature complex and complicated.
6. Therefore, the Respondent respectfully submits that the Claimant’s claim as pleaded cannot be dealt with under the Scheme and that pursuant to the Rules an adjudicator is not therefore able to consider the Claimant’s claim.

The CISAS rules on what CISAS can and can not deal with also includes at clause 2L:

l) If the dispute is about something that is not covered by these rules, the company can agree to use the scheme but does not have to.

Might be worth reminding CISAS (and therefore TM) of 2L and asking why TM are so worried about CSAS making a ruling - is it as Barnacle Fiend has said -that TM don't want a quick ruling as it is in their commercial interests to drag this out and make it as difficult as possible to "scare" other customers away from taking the same approach?

I would not include the above if it can be construed as being "new evidence"

RandomCurve

Not sure if this is of any relevance to the contract, but helps the TM "misleading" us case and being "unreasonable" - so entitled to damages(?):

The Price rise letter said "Current RPI rate"
Current = Prevailing, extant, "in existence", "of the now"
Antonyms (opposites) of current = Past, Future, hypothetical, imaginary

So the use of the word CURRENT RPI in a letter sent between April 2nd and 8th can ONLY be referring the February 3.2% RPI.

Chimper

RandomCurve wrote: »

Not sure if this is of any relevance to the contract, but helps the TM "misleading" us case and being "unreasonable" - so entitled to damages(?):

The Price rise letter said "Current RPI rate"
Current = Prevailing, extant, "in existence", "of the now"
Antonyms (opposites) of current = Past, Future, hypothetical, imaginary

So the use of the word CURRENT RPI in a letter sent between April 2nd and 8th can ONLY be referring the February 3.2% RPI.

To back that up, their website says:-

Where did this increase come from?

We've used the Retail Price Index (RPI) which is currently at 3.3%. This is a measure of the increase in prices for consumers and businesses on average across the country over the last 12 months.

As the increase came in on 9 May 2013, this would have had to be the current rate 30 days before the 9th May.

RandomCurve

stoney73 wrote: »

I received a response from Cicas earlier this morning:


17. Pursuant to Clause 7.1.4 on or about the 2-8 April 2013 the Respondent issued to the Claimant (together with all of its pay monthly customers) written notice (“the Written Notice”) advising of a 3.3% increase in price plan monthly charges that would take effect as from 10 May 2013. The Respondent submits that adequate Written Notice was provided to the Claimant for the purposes of Clause 7.1.4.

As I received the Orange and the T-Mobile price letters it seems EE are getting a little confused!

The TM price rise is effective 9th May - Orange is effective 10th April and uses January RPI - 3.3%. As TM have quoted 10th May above it may be worth pointing this out as further evidence that TM are in a bit of muddle - it all helps to paint a picture of bad customer service and of a company in disarray!

RandomCurve

CISAS time rules below.

TM should have no more than 21 days to respond then an adjudicator should review based on your facts only. If your 21 days have passed why not email CISAS and ask why they are still waiting for TM when TM are out of time? And if the response suggests more foul play copy it to Ofcom an Ed Vaizey.
The fact TM have asked for more time suggests exceptional circumstances -which again should alert Ofcom to the fact that something out of the ordinary is happening here!

c) When we receive a valid application we will send the company an electronic copy. The company then has 14 days from the date they receive the claim to send us an electronic copy of their response.
• If we post the application to the company, the date they receive the claim is considered to be two working days from the date of we posted it.
• If we send the application to the company by e-mail before 4pm, the date they receive the claim is considered to be the same day. If we e-mail the application after 4pm, the date they receive the claim is considered to be the next working day.
In exceptional circumstances, the company can ask us to extend the deadline for giving their response by a further seven days (so the company would have up to 21 days to give us their response).
If the company does not give us their response within the time allowed, we will appoint an adjudicator to consider only the information provided by the customer. We will write to the company and the customer to confirm the adjudicator’s decision.