Mobile Phone Contract - Price Rise Refunds

KARLITO

Hi RandomCurve ( or to anyone else, who can clearly help), This is what EE has sent to me, on the 23/06/14, as their defence, including the new terms and conditions CVN01B. Sorry to be a burden, but I need to know, before submitting my replay. Do I still refer to post 1013 and just add the paragraphs contained or do I also include the EE defence v2 (where applicable)? This seems to have extra paragraphs to deal with. As I mentioned, I only received a text, without mention of right to cancel for free, until I click on link, should I add a defence to this? Finally, which makes me laugh, on paragraph 44, they refer to me as a her, where as i'm a he! If they don't know the sex of a claimant, then they should clearly state so with, at least, her/he in the sentence, don't you think?. Thank you!


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(a) 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(b) 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(a) 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.
7. The remainder of this Defence is pleaded without prejudice to the above.
RESPONDENT’S DEFENCE
8. The Respondent denies that it is liable to the Claimant as pleaded or at all.
9. 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.
10. 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.
11. The Claimant has been a customer with the Respondent since 1 July 2013 in respect to account number 105628732. The Claimant has one mobile number being 07900 005867 (“the Mobile Number”).

12. The Respondent submits that this dispute, as per the Claimant’s application, arises from the notification of the increase in prices effective from 28 May 2014.
13. The Claimant seeks termination of the Agreement without charge and to transfer the Mobile Number to another network service provider and for the cancellation to be back dated to the date of his request for termination. In addition the Claimant also seeks an unlock code for an unspecified handset, but presumably the handset associated with the Mobile Number on the Claimant’s account.
14. Upon entering into the Service Agreement (“the Agreement”) in respect to the Mobile Number the Claimant would have been provided with the terms and conditions applicable at the point of entering into the Agreement. The applicable terms and conditions subject to the Agreement were available to the Claimant at that time via the Respondent’s website or by contacting the Respondent’s customer services at any time.

15. The Respondent confirms that prior to the 26 March 2014 the Agreement between the parties was subject to the terms and conditions CVN01A. From 29 January 2014 to 14 February 2014 the Respondent provided the Claimant with notice, pursuant to the Agreement at the time, that the Respondent’s terms and conditions would be updated and the new terms effective as of the 26 March 2014. Therefore, the Respondent submits that as from the 26 March 2014 the terms and conditions applicable to the Agreement between the parties and so governing the Claimant, is CVN01B.
16. Save that the Respondent denies that the change in terms effective 26 March 2014 gave the Claimant the right to terminate his Agreement without charge the Respondent submits that in any event the Claimant was required to give notice to terminate prior to the change of terms taking effect on 26 March 2014. The Respondent submits that the Claimant failed to give notice to terminate the Agreement prior to 26 March 2014 and therefore is bound by the terms of the Agreement effective 26 March 2014.
17. At Schedule 1 attached hereto is a copy of the terms and conditions being Conditions Version Number 01B (CVN01B) 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;-
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;
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;
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;
7.2.3 A Cancellation Charge won’t apply if You are within the Minimum Term and:
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.
18. Pursuant to Clause 7.1.4 between the 5-15 April 2014 the Respondent issued to the Claimant (together with all of its pay monthly customers) written notice (“the Written Notice”) advising of a 2.7% increase in price plan monthly charges that would take effect as from 28 May 2014.
19. As Written Notice was given between the 5-15 April 2014 the Respondent was required, for the purposes of Clause 7.2.3.3 to use the most recently published RPI figure before we give you Written Notice under 7.1.4. Therefore the correct RPI figure to use was the RPI figure for February 2014 which was published on 25 March 2014, being the most recently published RPI figure before Written Notice of the increase was given.
20. The RPI figure published as at the time the Written Notice was issued (being 5-14 April 2014) was the RPI figure for month of February 2014 which was published on 25 March 2014 which was 2.7%.
The RPI 12-month rate for February 2014 stood at 2.7%
21. The Respondent denies that the price increase of 2.7% is an increase above the RPI as provided for by way of Clause 4.3.1.
22. 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 as provided for by way of Clause 7.2.3 or indeed that such is a material detriment that entitles the Claimant to treat the Agreement as terminated without paying a cancellation charge.
23. As the increase in charges of 2.7% set out within the Written Notice is not higher than the RPI for February 2014 of 2.7% the Claimant is not entitled pursuant to Clause 7.2.3 of the Agreement or otherwise to cancel the Agreement without paying a cancellation charge.
24. The Respondent submits, if such is alleged, that it is not obligated to use any other method to calculate the price increase, such as the use of Consumer Price Index (“CPI”). The Respondent submits that the clause specifically refers to the use of RPI as a measure of calculation and therefore the use of any other measure, whether such be higher or lower, would not be in accordance with the terms of the Agreement. The Respondent has given certainty to the Agreement to specify RPI as the measure that it would use for the purpose of any increase and accordingly it is the RPI measure that must be used and not any measure, such as CPI.

25. The Respondent submits that the Claimant is free to cancel the Mobile Number by giving notice to cancel at any time. However, as the Claimant is within the minimum term period in respect to the Mobile Number he would be liable for a cancellation charge in the sum of £412.66 (reducing on a daily basis) should he terminate the Mobile Number within the minimum term period.
26. The Respondent denies that it has breached its Agreement and/or breached its duty of care to the Claimant. The Respondent remains of the view that the decision to increase its prices is a business decision and falls outside the remit of the Scheme. Accordingly, as the subject-matter of the complaint falls outside the remit of the Scheme the Respondent did not issue the Claimant with a deadlock letter. However, as above, the Respondent remains of the view that the decision to increase its prices is outside the remit of the Scheme.
27. 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. The Respondent denies that it has failed to address each aspect of the Claimant’s claim and that in any event the Respondent submits that its position remains unaltered and that it does not accept the Claimant’s arguments that such response entitles them termination without charge.
28. Save as is denied in any event, the Respondent submits that the Claimant’s only recourse should the increase be in excess of RPI is to termination of the Agreement without paying a cancellation charge. The Respondent submits that the Claimant is not entitled to seek an unlock code for any handset associated with the Agreement and such is not a remedy as provided for by way of the Agreement. The Respondent denies that it is liable to the Claimant with regards the facilitation of an unlock code for the handset, either as free of charge or chargeable. There is no contractual obligation to unlock a handset at any stage before, during or after termination of the Agreement and the Claimant is hereby put to strict proof thereof.
29. The Respondent denies that, if such is alleged, that it mis-sold the terms of the price plan to the Claimant. At the time of entering into the Agreement the Respondent did not have plans to increase its prices and that therefore the price quoted to the Claimant was the correct price at that time. The Respondent submits that it did not mis-sell or mis-lead the Claimant in respect to such charges. The Respondent submits that it was not a ‘fixed term contract’ and that the Respondent could increase its charges, as provided for by way of the Agreement. The Respondent has exercised its contractual right to increase charges and the Claimant is not entitled to the remedy sought.
General Condition 9.6 (GC9.6)
30. The Respondent further refers General Condition 9.6 (“GC 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 Agreement without penalty. The Respondent submits that he increase in charges at the rate of RPI is not of material detriment to the customer and the customer is hereby put to strict proof thereof.
31. The Claimant refers to a guidance note published by Ofcom on its website entitled “Protection for consumers against mid-contract price rise” published by Ofcom October 23 2013 (“the Guidance”) . The Guidance states that it only applies to agreements for new landline, broadband and mobile contracts (including in some cases bundled contracts) entered into after this date. The Guidance further states that “The new Guidance comes into effect three months from today. It will apply to any new landline, broadband, and mobile contracts (including in some cases bundled contracts) entered into after this date” The Guidance therefore only applies to agreements entered into on or after 23 January 2014.
32. The Claimant entered into the Agreement with the Respondent prior to 23 January 2014 and therefore the Guidance is not applicable to the Agreement.
33. In respect to agreements that were entered into prior to 23 January 2014 the Guidance adds that “[1.30] for existing contracts, GC9.6 will continue to apply as it does now. Any question regarding whether a price increase meets the material detriment requirement will be considered on a case by case basis.”
34. The Respondent submits that as the Agreement predates 23 January 2014, the question as to whether the price increase is or is not of material detriment must be considered only on the express terms applicable to the Agreement and the unique facts relating the Claimant’s circumstances rather than on the basis provisions contained within the Guidance.
35. In the absence of any definition of material detriment provided through the operation of General Condition 9.6 the Respondent submits that general definitions applied in the Oxford English Dictionary (“OED”) as to the interpretation of the words ‘material’ and ‘detriment’ should be applied. The OED applies the following definitions
Material - Significant; important:
Law (Of evidence or a fact) significant or relevant, especially to the extent of determining a cause or affecting a judgement
Detriment - The state of being harmed or damaged:
36. The Respondent submits, without prejudice to the express terms within the Agreement, that for the increase to be of material detriment to the Claimant, the Claimant must establish that it is both significant and capable of causing harm or damage to the Claimant. The Claimant has not provided any evidence to support the proposition that the increase causes the Claimant significant harm or damage.
37. In respect to the Agreement the effect of the increase, which was an increase equivalent to the prevailing RPI of 2.7%, in actual monetary terms was to increase the amounts payable per month by the sum of 97p (ex vat). The increase is in line with inflation and thus is in keeping with the general cost of living. In real terms the effect of the increase is cost neutral. The Respondent submits that the increase of 97p (ex vat) cannot be described as being significant and nor does it causes real harm or damage to the Claimant.
38. Further the Claimant has not provided any evidence to establish that the increase of 97p (ex vat) per month will cause the Claimant significant harm or damage.
39. The remainder of this defence is pleaded without prejudice to the above position.
40. Further or alternatively, the material detriment issue constitutes a complicated issue of law.
41. A proper resolution of the case would require CISAS to consider the proper construction of the term “material detriment” and the increase in charges is of material detriment.
42. 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.
43. The application of the material detriment test is doubly complex. It is not sufficient simply that it is theoretically possible that the increase in charges could be of some detriment to the Claimant. Rather it is necessary that the Claimant establish that that increase is of material detriment.
44. For the reasons stated above the Respondent denies that the Claimant as at all entitled, whether contractually or otherwise, to terminate her Agreement without charge, either for the reasons as indicated within her 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.
45. Furthermore, the Respondent denies the Claimant’s claim that that it applied an ‘annual inflation’ rate to the Claimant’s Account in March 2013. As at March 2013 the Claimant was not a customer on the Respondent’s EE brand. The Respondent avers that pursuant to Clause 7.1.4 it can increase any Price Plan charge so long as the requisite 30 days’ written notice is given. The Respondent denies that the Agreement implies a price change can only occur annually and submits that the Claimant is not a position to speculate as to the Respondent’s intention when drafting agreements.
46. 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.

ulaggy

I'd point out the mistake regarding gender - it shows a lack of duty of care.

RandomCurve

@KARLITO

I think I will re write the whole defence response based on your defence as this seems to be the way EE are heading. And it will address the change in T&Cs

traylerc

Hey Guys and big thank's to RC, got another Success in part here!

"The company shall terminate the customer’s contract without penalty (this being backdated to 15 June 2014) and provide the customer with a PAC code."

Only cancel and PAC, and little annoyed it's only backdated till just over last week, but a win is a win! Happy me

barrowvian

Just had my decision through from CISAS today ... unfortunately it failed. One of the points is that I should have cancelled during the notice period ... which was never identified to me by EE in the first place.

I've attached my response below;

This document is private and confidential. It must not be disclosed to any person or
organisation not directly involved in the adjudication unless this is necessary in order to
enforce the decision.
DECISION
by M.E.V. Ogden LL.B (Hons)
An adjudicator appointed by CISAS
under the Communications and Internet Services Adjudication Scheme.
Decision date: 24th June 2014
Adjudication Reference: 212142595
Between Mr XXX and EE Limited 2
· The claim is made by the customer, XXX, against a telecommunication and
internet services company, EE Limited.
· The claim, dated 13th May 2014, is for an apology and to provide me with my PAC penalty-free.
· The position of the company is explained in its 3rd June 2014 defence, which is disputed by the
customer’s undated comments.
· The customer’s claim is that the company’s price rise is to his material detriment.
· The company’s position is that the case falls outside CISAS, and the increase is justified by the
amended terms.
Decision
1. The claim does not succeed.
Main issues
2. I consider that the main issues in this adjudication are:
a. Whether the company has broken a term of the contract between it and the customer or
failed in its duty of care.
b. Whether the reasons given by the customer are sufficient to justify the remedies sought.
Background information
1
1Customer’s address for correspondence: xxx xxx
2 Company’s address for correspondence: Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10
9BW.3. In order to succeed in a claim against the company the customer must prove on a balance of
probabilities that the company has broken some term express or implied of the agreement
which existed between them, or failed in the duty of care which the company owed to the
customer and that as a result of this breach the customer has suffered loss. (A duty of care is a
responsibility or a legal obligation of the company to avoid acts or omissions which can be
reasonably foreseen to be likely to cause harm to others). If no such breach or loss is proved
the company will not be liable to pay compensation however disappointed or upset the
customer is.
4. The customer and the company are aware of the facts of this case. I do not propose to recount
all the facts in the same manner and order as the parties have done in their documents except
where it is necessary for the purposes of this decision. I have carefully considered all of the
documents submitted by the parties in support of their submissions which were presented to
me. The parties should also be reassured that if I have not referred to a particular document or
matter specifically, this should not be taken to mean that I have not considered it in reaching my
decision.
Customer’s and company’s positions
5. The customer has made the following submissions and representations:
a. The CPI is the official measure of inflation.
b. The recent price rise notified by the customer adopting the measure of the RPI, rather
than the CPI, is a real terms increase, and is, therefore, to the customer’s detriment.
c. Since the price increase is likely to be to the customer’s detriment, under General
Condition 9.6 (which implements USD 20/22) the customer is entitled to a penalty-free
cancellation.
d. OFCOM‘s guidance on GC 9.6 states that price rises are likely to be regarded as
materially detrimental where an increase to core subscription prices is included.
e. OFCOM’s guidance applies to contracts agreed to on or after 23rd January 2014. The
company’s new price variation clause was effective from 26th March 2014 and so the
clause was effectively agreed to post 23rd January 2014.
f. OFCOM have clarified a definition and this clarification must apply to all contracts as
GC9.6 cannot have two meanings.
g. Since the price rise is above the CPI, it is a reals terms increase, and is, therefore, to his
material detriment.
26. The company has provided the following explanations:
a. This case is outside the CISAS scheme by virtue of rule 2.g), as it relates neither to bills
nor communications services.
b. The customer first entered into an agreement with the company on 12th October 2013.
The customer was made aware that the contract was subject to terms and conditions.
c. Prior to 26th March 2014 the agreement between the parties was subject to terms and
conditions CVN01A.
d. From 29th January to 14th February 2014 the company provided the customer with
notice that the terms and conditions would be amended.
e. The amended terms and conditions, version CVN01B, were effective from 26th March
2014.
f. Although the company denies that a change in the terms gave rise to a right to terminate
the agreement without charge, the company submits that the customer was required to
give notice to terminate the contract prior to the increase in charges taking effect from
26th March 2014.
g. The customer failed to give notice prior to 26th March 2014 that he wished to terminate
the contract. Consequently, the customer is bound by the terms and conditions effective
from 26th March 2014.
h. Pursuant to clause 7.1.1.4 of the terms and conditions, between 5th and 15th April 2014
the company issued a notice advising of a 2.7% increase in the price plan monthly
charges that would take effect from 28th May 2014.
i. The most recently published RPI figure was that for February 2014 published on 25th
March 2014 of 2.7%.
j. The company denies that the price increase of 2.7% is an increase above the RPI.
k. The company denies, therefore, that such an increase is an increase which entitles the
customer to terminate the agreement without paying a cancellation charge, or that it is a
material detriment entitling the customer to treat the agreement as terminated without
paying a cancellation charge.
l. The company is not obligated to use any other method to calculate the price increase.
3m. The company denies that the contract was mis-sold to the customer.
n. The increase in charges at the rate of the RPI is not to the customer’s material detriment.
o. Further, or alternatively the ‘material detriment’ issue constitutes a complicated issue of
law for the purposes of rule 2.j).
p. The company denies that it has failed in its duty of care. All of the company’s responses
have been consistent and in a timely manner. The customer is not entitled to
compensation.
q. The customer is not entitled to a refund. In any event the increase did not take effect until
after the customer’s application.
r. The customer is not entitled to an unlock code by way of remedy under the agreement.
7. The customer makes the following comments on the company’s explanation:
a. The customer does not question the company’s business decision to increase its prices.
b. The customer disputes the company’s claim that the contract specifies use of the RPI;
the clause states that the RPI must not be exceeded.
c. GC 9.6 should take precedence over the contract terms.
d. The contract is subject to new terms and conditions with effect from 26th March 2014
and so the OFCOM guidance apples.
e. The company has breached GC 9.6.
f. The customer has not claimed that the contract was mis-sold.
g. The increase in line with the RPI is a real terms increase, and is, therefore, to his
material detriment.
h. The customer disputes that the matter is outside of the scope of CISAS and claims
additional compensation for the breach of a duty to act in good faith or the failure to draft
clear contract terms.
Adjudicator’s findings and reasons
8. I find that:
4a. The issue in question concerns billing and the terms of a contract for communication
services and is not, therefore, outside the scope of the CISAS scheme. Further, this does
not constitute complicated issues of law beyond the competence of a CISAS adjudicator.
b. It is not disputed that the customer attempted to cancel his contract without charge on
27th April 2014. This was in response to the notification by the company of a 2.7%
increase in the price plan charges.
c. In January and February 2014 the company notified its customers of an amendment to
its terms and conditions which would be effective from 26th March 2014. The
amendment permitted the company to increase its prices by an amount up to the level of
the retail prices index (RPI).
d. I find that the amended term in version CVNO1B of the terms and conditions is clear and
unambiguous.
e. Under the revised terms and conditions the applicable RPI in April 2014 figure was 2.7%.
f. The customer argues that he has a right to terminate the contract without charge in
accordance with General Condition 9.6 (GC 9.6) on the basis that the price increase is
not in line with a true measure of inflation, but is a real terms increase which is to his
material detriment.
g. In making this argument the customer has relied upon the guidance issued by OFCOM
regarding GC 9.6 which was published on 23rd October 2013. The guidance states that
where there is an increase to the core subscription price, a price rise is likely to be
regarded as materially detrimental. Since OFCOM’s guidance applies from 23rd January
2014, and the amended terms and conditions came into effect on 26th March 2014, the
customer claims that the guidance is relevant in this case.
h. Paragraph 1.28 of the OFCOM guidance states that the new guidance will come into
effect 3 months after publication. It specifically states, however, that the guidance only
applies to new contracts entered into on or after that date. Paragraph 1.30 states that for
existing contracts GC 9.6 will continue to apply without the new guidance. I do not accept
that the customer agreed to a new contract following notification by the company, he
merely agreed to amended terms. I find, therefore, that the guidance provided by
OFCOM does not apply to the amended term in this case.
i. The customer has argued that the intention of the Universal Directive USD 20/22 was to
give the consumer the choice to cancel their contract during a fixed period for any
modification that is made which they do not accept. A Directive is not, however, directly
5applicable as law in a member state; it only serves as a guide to interpretation. In view of
my finding in paragraph d. above, that there is no ambiguity in the amended term, then
there is no requirement to use the directive as an interpretative tool.
j. The customer has not argued that he did not receive notice in January or February 2014
that the terms and conditions were to be amended. The customer did not exercise his
right to terminate the agreement when he received notification of the amended term. The
customer’s claim to terminate his contract has been triggered by the notification of the
price rise.
k. I find, therefore, that in failing to give notice when he received notification of the
amended term, the customer is deemed to have accepted the change in his terms and
conditions. The customer has agreed, therefore, to accept price rises which do not
exceed the RPI. This is the determining factor in this case. I do not accept the customer’s
argument that a price increase, which is in accordance with the terms and conditions to
which he has agreed to be bound, is to his material detriment. While the price rise may
be to the customer’s detriment, it is not a material detriment.
l. I find, therefore, that the customer has failed to prove that he is entitled to cancel the
contract without charge.
m. The customer has not applied for an unlock code, and no application was made for
compensation on the application.
9. My conclusion on the main issues is that:
a. The customer has failed to prove that the company has breached the contract or failed in
its duty of care.
b. The customer has not justified the remedies sought.
10. Therefore, the claim fails.
M. E. V. Ogden LL.B (Hons).
Adjudicator

RandomCurve

9. My conclusion on the main issues is that:
a. The customer has failed to prove that the company has breached the contract or failed in
its duty of care.


The claim - had the adjudicator bothered to read it - was not that EE had breached the contract, but that they had breached OFCOM REGULATION GC 9.6 - I thought these adjudicators were supposed to be experts on telecommunication regulation!

RandomCurve

Another 2 emails have been sent o Ofcom - please everyone send that email as it will make a differnce (and will only take a few seconds of your time).


Also please stop PM'ing Helen at MSE - she has contacted me and we are discussing possibilities.


Thanks

RandomCurve

33-10


The reason for the loses seems to be the adjudicators relying on the contract and not the regulations (regulations take precedence)!
And our claim have only ever been based on the regulations, because that is what matters!

davalo

Got my decision today - Good news, the claim succeeded in part.
2 No contracts cancelled free of charge backdated to 16 April, £75 compensation for each contract.

Many thanks to all

Many thanks to all who have posted especially RC.

RandomCurve

Email for Vodafone customers to send re the recent "out of Bundle" price increase.


EMAIL 1 – please send BEFORE 28th June


[EMAIL="jeroen.hoencamp@vodafone.com"]jeroen.hoencamp@vodafone.com[/EMAIL]
CC, [EMAIL="Lynn.Parker@ofcom.org.uk"]Lynn.Parker@ofcom.org.uk[/EMAIL]
[EMAIL="info@fightmobileincreases.com"]info@fightmobileincreases.com[/EMAIL]


Date: XX/06/14

Ref: phone number 07XXX XXXXXX

Dear Mr Hoencamp,

RE: Out of Bundle Price Increases

Following the recent out of bundle price rise advised to me please accept this letter as my notice to terminate my contract penalty free with immediate effect as the change is likely to be of material detriment to me as per GC 9.6. Please issue my PAC by return, and refund any prepaid credit.

As Vodafone will be aware our contract is governed by the General Conditions of Entitlement, and under GC 9.6 should a change in our contract be of Material Detriment I am entitled to a penalty free cancellation.

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;

(b) allow its Subscribers to withdraw from their contract without penalty upon such notice; and

(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.


In the regulatory context Ofcom have clearly articulated what is meant by Material Detriment when explaining why the term was introduced into GC 9.6 by OFTEL and retained by Ofcom (from Ofcom publication“ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013”, paragraph 6.22)


"Our intention was to reflect our general duties and principles of good administration and proportionality in particular. We sought, in light of these, not to rule out contract variations altogether. For example, those beneficial to, or having a neutral impact on, a subscriber.”


It is clear from the above that under GC 9.6 ANY change that is neither to my benefit or neutral is of Material Detriment. In other words Material Detriment in the regulatory context simply means DETRIMENT.

This interpretation by Ofcom (although slightly more restrictive) clearly reflects the intentions of the Universal Service Directive (USD) USD 20/(22) for which Ofcom have a legal duty to incorporate into UK law and they have done so via GC 9.6. It is clear that the intention of USD 20/(22) was to give the CONSUMER the choice to cancel their contract during a fixed period for ANY modification that is made which they do not accept as follows:

USD 2002/22/EC
Chapter IV – End User Agreements
Article 20 – Contracts
Paragraph 4

4. Subscribers shall have a right to withdraw from their contracts without penalty upon notice of proposed modifications in the contractual conditions. Subscribers shall be given adequate notice, not shorter than one month, ahead of any such modifications and shall be informed at the same time of their right to withdraw, without penalty, from such contracts, if they do not accept the new conditions.

As this increase in prices is neither to my benefit nor neutral in its impact on me, I should be entitled to the penalty free cancellation under GC 9.6 as requested.

Whilst I am in the fixed period of my contract I am effectively trapped into my contract and therefore I cannot avoid the increase in prices that you have advised. I note that you have tried to place a time limit within the contract on when Material Detriment can be considered (comparing two 3 month periods chosen by Vodafone), however GC 9.6. (which takes precedence over our contractual terms) is not bound by time, and the only consideration is if over the course of the fixed period I am likely to suffer material detriment (which under the Ofcom definition = detriment) as a result of the change.

When deciding on which contract to take the price of ancillary service was taken into account as by virtue of being services available to phone users they are services that I am likely to use (regardless of if I have actually used them to date or not).

Under the price changes advised even one phone call to directory enquires could cost an additional £2.75p or 122% more, calls to "free phone" numbers an extra 6.4p or 45.7% more, and calls to mobile networks 5p more or 12.5%, these increases are clearly a change that is neither to my benefit nor neutral, i.e. under the regulatory definition of Material Detriment (which is detriment) I am entitled to a penalty free cancellation.

The fact that regulatory changes may have impacted on Vodafone’s income is not a consideration as Vodafone is required to pass on regulatory savings and has the option to pass on regulatory increases (the increases advised are not regulatory), Vodafone does not have an option (within the contract or under the General Conditions of entitlement) to recoup lost revenue via price increases (and indeed if there were such a right it would probably not pass the test of fairness under the Unfair Terms and Conditions in Consumer Contract Regulations).

For the sake of clarity I am familiar with the terms and conditions of our contract, and any response that simply repeats the contractual position will be deemed as Vodafone deliberately avoiding the question being asked and demonstrating a lack of duty of care when dealing with this matter For the avoidance of doubt my request for a penalty free cancellation is under the protection of GC 9.6 and NOT the contract terms.

Should Vodafone consider that the price increases are not of Material Detriment under GC 9.6 please fully explain the rationale and how that complies with GC 9.6. Also please advise me of the contact details of the adjudication scheme of which Vodafone is a member. Note that any respond which fails to address how Vodafone have complied with GC 9.6 will be considered inadequate and a sign that Vodafone is hiding behind its' contract rather than explaining how its price change complies with GC 9.6.


Regards.

A supporter of “Fight Mobile Increases” – a pressure group dedicated to assisting consumers use the protection of the UTCCRs and GC 9.6, and to monitor and highlight Ofcoms actions (inaction) in relation to the Mobile Phone Market.