Mobile Phone Contract - Price Rise Refunds

bobbyh1982

Tezza316 wrote: »

Just had confirmation from CISAS that they have received my notification of acceptance and EE have 4 weeks to action the adjudicators decision.

Now the waiting game...................

When did you send off your acceptance email?

Tezza316

bobbyh1982 wrote: »

When did you send off your acceptance email?

I sent my acceptance on the 18th June. Got auto reply saying they would respond within 5 working days. Today was the 5th working day.

falconlady

Tezza316 wrote: »

I sent my acceptance on the 18th June. Got auto reply saying they would respond within 5 working days. Today was the 5th working day.

Give them a ring. It seems to kick them into action!

SmartGuru

Hi All,
After mid-term contract price hike I called T Mobile several occasions and every time call connected to the South African call centres. Customer Service is really poor they are just not about to listen my side and started to argue with inflation increase is right and nothing they can do for me.
Then I just started goggling to find are any other customers also facing the same problem and I found this hidden treasure (Random Curve thread)
First of all thanks to Random Curve with all his hard work. After reading all the post in this thread I created my notes with all UK & European law to protect consumers from the unfair changes in the contract. Then I called T Mobile Leaver department (Call connected to the India) and explain them about how the price rise is unfair and what the law says the guy listen carefully what I said and ask me to hold on for 2 mins and then Surprise –Surprise he told me your price plan will remain same and because e of stress u had we are giving you extra 100mins each month.
Win Win situation

RandomCurve

Darn - I will need to split this post!!!

Refers to defence at post #1072
A brand new defence response document - it is a bit repetitive but I wanted to make it as clear as I possibly could that I was not interested in the contractual terms, but the Ofcom Regulation - now we wait!
I will upload a word document and the defence this relates to onto the Fight Mobile Increases site - but that might not happen until tomorrow.

EE seem to be ignoring the core basis of my claim. For clarity my claim is that under the protection afforded to me by Ofcom Regulation GC 9.6 - which takes precedence over any contractual terms that EE try to impose, as by definition if the regulations exist to protect me (the consumer) then EE cannot override those regulations by including contract terms that are inconsistent with the regulations.
To help simplify things my claim is that under BOTH the PRE and POST 23rd January 2014 Definitions of Material Detriment provided by Ofcom, an increase of RPI is “likely to be of Material Detriment”.

• EE are trying to pretend that my claim is based on Material Detriment as per the contract – it is not, it is based on Ofcom Regulation GC 9.6
• EE are claiming that because I never took action when EE changed the T&Cs effective 26th March 2014 that I have lost the protection of Ofcom Regulation GC 9.6 (this plainly cannot be correct)
  1. I will also demonstrate how EE did not comply with either GC 9.6 nor Schedule 2 Paragraph 1 (J) of the Unfair Terms in Consumer Contracts Regulations, and did not at in Good Faith when notifying me of the change in T&Cs. This has proved to be necessary due to EE considering the notification of the change to be of particular relevance.
• EE are claiming that there is no definition of Material Detriment provided by Ofcom for PRE January 23rd 2014 Contracts – this is not true Ofcom have clearly articulated that for PRE January 2014 contacts the term Material Detriment was included in GC 9.6:

“…..Ofcom and, before us, OFTEL has included a material detriment requirement in the relevant part of GC9. 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.”
(Please see my CISAS claim for clarification).

I also note that throughout EEs defence they are arguing two inconsistent points:

• That my (original) T&Cs (CVN01A) pre date 23rd January 2014 and therefore the new Ofcom definition of Material Detriment does not apply, and
• That my T&Cs are subject to CVN01B which came into effect 26th March 2014 (i.e after the new Ofcom definition)
  If I were subject to the pre March 26th T&Cs (CVN01A) then any increase higher than CPI (1.7%) would trigger my right under the contract to a penalty free cancellation, but obviously I cannot make a claim on this basis as my contractual terms are now CVN01B, which came into effect 26th March 2014 (i.e. after Ofcom revised the definition). As my original contract no longer exists, it cannot be subject to any regulation whatsoever, however my new contract which came into effect 26th March 2014, must (by definition) be subject to the regulation in force at the time (i.e. post 23rd January 2014 regulations).
  If I am legally bound to T&Cs that came into effect on 26th March 2014 and those T&Cs replace the Original T&Cs then those new T&Cs must be subject to the Ofcom regulations enforce at the time that those T&Cs were implemented, as my original contract no longer exists. Additionally the main clause that was changed is the core contractual term that purports to give EE an ability to increase the price and this is the very clause that Ofcom were seeking to address when they changed the regulatory definition of Material Detriment effective 23rd January 2014.

I would also like to point out that EE keep claiming that they do consider a 2.7% increase to be of Material Detriment, so why then have EE deeming that a purported 2.7% increase in its’ costs warrants EE going the trouble and expense of implementing a price rise (and as a pre cursor changing its &Cs)? This proves that EE must consider a change of 2.7% to be Material.

I ask the adjudicator to reference my actual claim throughout, but would also comment on the following paragraphs in EEs Defence Document:




Paragraphs 1-6
As clearly articulated in my CISAS claim my claim is NOT in connection with EEs business decision to increase prices, it is in connection with EEs failure to fulfil its obligations to me under GC 9.6and grant a penalty free cancellation.
The Case is clearly in connection with the bills in relation to the provision of telecommunication services
There are no complex issues of law and if there as per my CISAS calim:
“Should EE plead that this is a complex matter then I request that the adjudicator considers if this would warrant an additional compensation payment as EE would either:

• Not be acting in Good Faith by claiming that the matter is complex – when it is not OR

• If it considered too complex then EE have not applied the required duty of care when drafting the contract and its revisions.”

Paragraphs 13
I confirm the unlock code relates to the phone described.

Paragraph 14
At no point during the sales process was the price variation “Clearly and Adequately” drawn to my attention and I put EE to strict evidence thereof

Paragraph 15
EE openly admit that they changed the T&Cs applicable to my account effective 26th March 2014. This clearly supports my claim that as the change in T&Cs occurred AFTER Ofcom clarified the definition of Material Detriment from 23rd January 2014 then the new price rise term must be subject to that clarification, especially as the clarified definition of Material Detriment was specifically aimed at price variation clauses.

Paragraphs 15-16
EEs notification of a change to T&Cs should have NO BEARING on the protection afforded to me under GC 9.6 as my claim in connection with Ofcom Regulations and not the contract.

However as EE have deemed it important to assert that I should I have cancelled the contract when the T&Cs were changed it is only right the adjudicator is made aware of the way in which that change was notified:
When notifying me of the change in T&Cs EE never informed me of my right to a penalty cancellation as they are obliged to do under GC 9.6 if the change to the T&Cs is to my Martial detriment, and under the UTCCRS (Schedule 2 Paragraph 1 (J) All EE did was send a text that said they were “…making some changes to give me more clarty on the notification of price changes”, thereby implying that the change was to the notification methodology/timing and not the QUANTUM which could be applied. If EE had acted in good faith they would have said “…making some changes to give me more clarty on the notification of price changes including changes to the amount by which we can vary prices”.
This deliberately falsehood by EE has breached GC 9.6, and UTCCRS::
Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract.

There was no valid reason (other than to allow EE to implement a higher price increase).

UTCCRS Group 10 guidance also states that
10.1 A right for one party to alter the terms of the contract after it has been agreed, regardless of the consent of the other party, is under strong suspicion of unfairness. A contract can be considered balanced only if both parties are bound by their obligations as agreed.
10.2 If a term could be used to force the consumer to accept increased costs or penalties, new requirements, or reduced benefits, it is likely to be considered unfair …….
10.3Such a term is more likely to be found fair if:
(c) there is a duty on the supplier to give notice of any variation, and a right for the consumer to cancel before being affected by it, without penalty or otherwise being worse off for having entered the contract.
EE never informed me of my cancellation rights .

The change that EE have actually implemented gives them the contractual (not regulatory) right to increase prices by RPI, previously they were capped by RPI OR ANY OTHER MEASURE OF INFLATION (e.g. CPI – which is always lower) EE ought to have been aware of the likely material detriment and should have given the correct notification. For EE to claim that by misleading me when implementing the change to T&Cs I have lost the protection of GC 9.6 is clearly ridiculous.

RandomCurve

Paragraph 19 and 24
EE seem unable to interpret their own contract as they claim that the contract “REQUIRES” EE to use RPI under clause 7.2.2.3. This is obviously factually incorrect; the reference to RPI is simply a figure that EE must not exceed, which is entirely different to being a figure EE is “required” to use. However even if it was construed that EE were required to use RPI that is under their own contract and if EE have put a clause in their own contract that REQUIRES them to breach GC 9.6 (by applying a REAL TERMS increase which cannot be to my benefit nor neutral to me (as it is a real terms increase), then that is for EE to consider.
EE repeat a similar misunderstanding at Paragraph 24 where they claim that using any other measure than RPI (be it higher or lower than RPI) would not be in accordance with the terms of the agreement, and that RPI MUST be used.

Paragraph 19 to 24
My claim is that the use of RPI is of Material detriment under both the pre and post definitions of Material Detriment under Ofcom Regulation GC 9.6. It is irrelevant if 2.7% is the RPI rate allowed under the contract.
GC 9.6 Definition of Material Detriment PRE January 23rd 2014 contract:
Changes that are “not beneficial to or neutral on the consumer”
A real terms (or any) price increase is neither to my benefit nor neutral on me.
GC 9.6 Definition of Material Detriment POST January 23rd 2014 contract:
“Any change is likely to be of Material Detriment”

Paragraph 27
This is further evidence of EEs lack of duty of care to me. My dislike of EEs response has nothing to do with the fact they did not contain what I wanted to hear, my displeasure stems from the fact that they have refused to respond fully to the points I have raised even when my emails clearly stated that a response that did not address the points raised would not be considered an acceptable response. Further my claim for compensation is clearly articulated in my claim. I also note that EE refer to me as a “She” when I am a “He” – further evidence of the lack of care EE have taken in their dealings with me.


Paragraph 28
Yet again EE concentrate on the contract – my claim is under Ofcom Regulation General Condition 9.6, that an increase of RPI is of Material Detriment to me per Ofcom’s definitions:
GC 9.6 Definition of Material Detriment PRE January 23rd 2014 contract:
Changes that are “not beneficial to or neutral on the consumer”
A real terms (or any) price increase is neither to my benefit nor neutral on me.
GC 9.6 Definition of Material Detriment POST January 23rd 2014 contract:
“Any change is likely to be of Material Detriment”

Paragraph 29
I had not considered the possibility of EE having mis-sold the contract in the first place, but now that EE have challenged me on this point I must say that at no point during the sales process was the price variation “Clearly and Adequately” drawn to my attention and I put EE to strict evidence thereof. So yes EE may have mis sold this contract.

Paragraph 30
I have provided strict proof that the change is of Material Detriment under the Ofcom definition (both PRE and POST January 23rd 2014).
GC 9.6 Definition of Material Detriment PRE January 23rd 2014 contract:
Changes that are “not beneficial to or neutral on the consumer”
A real terms (or any) price increase is neither to my benefit nor neutral on me.
GC 9.6 Definition of Material Detriment POST January 23rd 2014 contract:
“Any change is likely to be of Material Detriment”
EE have not provided any evidence that an RPI increase is not of Material Detriment – other than to state that is not. Further if EE truly does not consider a change of 2.7% to be Material why are EE trying to recover a claimed increase of cost of 2.7%? This is conclusive proof that EE DOES CONSIDER 2.7% to a material change!

Paragraph 31
The publication referred to contains definitions of Material Detriment for BOTH PRE and POST 23rd January 2014 contrast – and I am surprised that EE have not mentioned the PRE January Definition.
Ofcom Material Detriment Definitions:
GC 9.6 Definition of Material Detriment PRE January 23rd 2014 contract:
Changes that are “not beneficial to or neutral on the consumer”
A real terms (or any) price increase is neither to my benefit nor neutral on me.
GC 9.6 Definition of Material Detriment POST January 23rd 2014 contract:
“Any change is likely to be of Material Detriment”

As EE changed the price variation clause in my contract (a core term and the term that the revised Ofcom definition was specifically designed to address) it then seems incredible that EE believes that the new term is not subject to the new regulation.
Can I make a claim against EE based on my Pre 23rd January Price Variation clause (a rate higher than RPI OR ANY OTHER measure of inflation gives rise to a penalty free cancellation)? – No because the term does not exist – Therefore it cannot be subject to the old regulation. By the same logic the current price variation clause did not exist until AFTER 23rd January 2014, therefore it was never subject to the old regulation and can only be subject to the new regulation, as the new regulation is specifically applicable to Price Variation Clauses.

So either my contract is subject to Ofcom regulation under the NEW definition of Material Detriment, in which case ANY change triggers my right to a penalty free cancellation.
OR
My contract is subject the old Ofcom regulation, in which case any change that is not to my benefit or Neutral triggers my right to a penalty free cancellation.


Paragraph 32.
The guidance that Material Detriment is anything that is not to my benefit or neutral was applicable prior to 23rd Januaty – an RPI increase is neither to my benefit nor neutral. Aslo EE contradict themselves my original T&Cs (CVN01A) were prior to 23rd January, however EE admit (Paragraph 15 of their defence document) that I am subject to CVN01B – which came into effect 23th March 2014. And therefore the new definition must be applicable.


Paragraph 33.
Please refer to my CISAS claim my contract WAS subject to the old GC 9.6 definition which is “changes that are not beneficial to, or neutral on the consumer” (i.e Material detriment = detriment), however my contract is now CVN01B which is effective from 26th March 2014 and is subject to the new definition.


Paragraph 34
My contract is CVN01B which is effective 26th March 2014 (see EE defence paragraph 15 for confirmation), and therefore does not pre date the guidance which is effective from 23rd January 2014. In any case even if I was on CVN01A I would be subject to the original Ofcom definition of G.C. 9.6 which is “changes that are not beneficial to, or neutral on the consumer” (i.e Material detriment = detriment). It is completely wrong and misleading of EE to suggest that only the terms of the contract should be considered and that somehow EE contracts (regardless of date) are not subject to Ofcom regulation, and is further proof of how EE try and manipulate my position which for clarity is my claim is under GC 9.6 and not the contract. Why are EE so keento divert the adjudicators attention away from regulation?


Paragraph 35
Material Detriment is clarified by Ofcom for pre 23rd January contracts (mine contract is CVN01B – post 23rd January) as being “changes that are not beneficial to, or neutral on the consumer”, therefore the OED definition is irrelevant. In any event even with the OED definition offered the subjective word “Material” is defined by two further subjective words “Significant” and “important” (what is significant or important to one person will be different to another person) – so no further clarity is gained.
Detriment however is not subjective “harmed or damaged” and any increase in my costs causes harm to me.


Paragraph 36
My claim is the regulatory context of GC 9.6 which takes precedence over the contract. Therefore EEs point is irrelevant however for the sake of clarity there is no EXPRESS term in the contract that I have to establish it is both significant and capable of causing harm or damage, and if it were it would more than likely be ruled unenforceable under the UTCCRs as the burden of proof must sit with EE. I draw the adjudicators attention to the fact that unlike paragraphs 17 to 22 of EEs defence EE have not indicated where this EXPRESS term is within the contract– and I ask that the adjudicator puts EE to strict proof thereof.


Paragraph 37
This is not true – the general cost of living and inflation rate is 1.7% - please refer to my CISAS case, and therefore RPI is not cost neutral. RPI is a flawed statistic which over estimates the percentage, and is no longer designated as a National Statistic. If EEs case is that if the increase was above inflation then it would be of Material Detriment – then they have just proved my case.

Paragraph 38
I do not need to provide any such evidence as Under GC 9.6 either I am still subject to contract version CVN01A (pre January 23rd T&Cs) in which case any change which is not to my benefit or neutral is of Martial Detriment, and 97p + VAT is neither to my benefit nor neutral to me; or I am on contract CVN01B (as EE state in paragraph 15 of their defence) in which case I am subject to the revised definition which is ANY increase is of Material Detriment – and 97p + VAT by virtue of not being zero is an increase.
In any case by EE deeming that a purported 2.7% increase in its’ costs warrants EE going the trouble and expense of implementing a price rise (and as a pre cursor changing its &Cs) proves that EE must consider a change of 2.7% to be Material.



Paragraphs 40-44
As per my CISAS claim:

“Should EE plead that this is a complex matter then I request that the adjudicator considers if this would warrant an additional compensation payment as EE would either:

[*]Not be acting in Good Faith by claiming that the matter is complex – when it is not OR

• If it considered too complex then EE have not applied the required duty of care when drafting the contract and its revisions.”

EE are clearly pleading that this matter is complex.

RandomCurve

SmartGuru wrote: »

Hi All,
After mid-term contract price hike I called T Mobile several occasions and every time call connected to the South African call centres. Customer Service is really poor they are just not about to listen my side and started to argue with inflation increase is right and nothing they can do for me.
Then I just started goggling to find are any other customers also facing the same problem and I found this hidden treasure (Random Curve thread)
First of all thanks to Random Curve with all his hard work. After reading all the post in this thread I created my notes with all UK & European law to protect consumers from the unfair changes in the contract. Then I called T Mobile Leaver department (Call connected to the India) and explain them about how the price rise is unfair and what the law says the guy listen carefully what I said and ask me to hold on for 2 mins and then Surprise –Surprise he told me your price plan will remain same and because e of stress u had we are giving you extra 100mins each month.
Win Win situation

Glad that worked for you and you received a resolution you were happy with.
Thanks for letting us know.

ulaggy

RandomCurve wrote: »

For all of you waiting to start a new claim based on the T&Cs and Price rise combined.


I am waiting to see how the discussions with MSE go regarding their willingness or otherwise to lend support/publicity - hopefully know relatively soon so I think we should hold of to gain maximum impact. I also think a new thread is required which I will start (unless MSE start one for us).

I wondered whether we should start a new topic the other day. It makes sense, as it's a whole new claim.

RedHeadPeter

I'm just waiting on the defence from EE (I signed contract July 2013) as response to my claim for cancellation based on information here.

I just want to say a huge ThankYou to RandomCurve for driving all this, and your latest efforts have made it easy for me to do my response to their defence and increased my chances of winning. So HUGE THANK YOU.

Quite why Which are being so wimpish about this I do not understand.

Swampsnake

My defence from EE is due back by close of business tomorrow (26th) so they are cutting it fine! It will be interesting to see what they are putting in their replies now, or whether they get an extension.

As always, thanks to RC for all the hard work.