Mobile Phone Contract - Price Rise Refunds

Pilotmic

RandomCurve wrote: »

Should be out on Thursday - if all goes well, thanks


I think you approach from afresh - unless the adjudicator has specifically stated that you should have cancelled when the T&Cs changed - in which case we will use that

Right so I have my reply from EE regarding latest appeal based on the ts&cs complaint i put in. Here we go:

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME REFERENCE: XXXXXXXX
BETWEEN
pilotmic
and
EE LIMITED t/a ORANGE
DEFENCE
Claimant
Respondent
1. The Respondent denies that it is liable to the Claimant as pleaded or at all.
2. The Respondent submits that the Claimant has already instigated a previous CISAS application (Reference XXXXXXXX) regarding the Respondent’s recent price increase implemented in May 2014. The Claimant submits that within the Decision in respect of that application (which confirmed that the Claimant’s claim did not succeed and a copy of which being attached hereto at Schedule 1) , the Adjudicator confirmed that he considered that the Claimant had lost any right to cancel the Agreement due to any change to the terms and conditions notified to the Claimant between 29 January 2014 and 14 February 2014 (the subject matter of which forms the basis of the Claimant’s current CISAS application and such right being denied by the Respondent in any
event) as no contact had been made by the Claimant with the Respondent requesting cancellation of the Agreement prior to the change to the terms and conditions being implemented by the Respondent on 26 March 2014.
3. By way of clarity, the email dated 9 April 2014 attached to the Claimant’s CISAS application relates to the CISAS application Reference XXXXXXXX relating to the Respondent’s price increase (as set out in the subject line of that email and such being included within the Claimant’s previous CISAS application) and the Respondent confirms that the email therefore does not relate in any way to the change to terms and conditions by the Respondent that forms the basis of the Claimant’s current CISAS application, such change being implemented on 26 March 2014.
4. It is clear from the Claimant’s CISAS application and the Respondent’s records that no contact was made with the Respondent regarding the change to the terms and conditions that was implemented by the Respondent on 26 March 2014, and that the only correspondence that has been sent to the Respondent regarding the issues raised within his current CISAS application is dated 20 June 2014. As such the Claimant has lost the right to cancel the Agreement for the reasons set out by the Claimant in his current CISAS application as the change to the terms and conditions were implemented on 26 March 2014 and no request for cancellation of the Agreement was provided to the Respondent by the Claimant prior to this date. The Claimant is put to strict proof as to his contention that he provided notice to cancel due to the change to terms and conditions implemented by the Respondent prior to 26 March 2014.
5. The remainder of the Respondent’s Defence is pleaded without prejudice to the above.
6. 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.
7. 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.
8. The Claimant has been a customer of the Respondent since 19 September 2012. The Claimant is registered with the Respondent as a consumer and was allocated account number XXXXXXX upon connection. The Respondent submits that the Claimant has one active mobile telephone number on the above account, being XXXXXXXXXXX (“The Mobile Number”).
9. Upon entering into the Service Agreement (“the Agreement”) in respect to the Mobile Number on 19 September 2012 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.
10. 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.
11. At Schedule 2 attached hereto is a copy of the Terms and Conditions applicable to the Claimant’s Agreement being the Orange Pay Monthly Network Terms and Conditions, version LEG300v14A. The Respondent submits that such terms and conditions relate to the original terms and conditions to the Agreement.
12. At Schedule 3 attached hereto is a copy of the amended terms and conditions – Version LEG300v14C, to be subject to the Agreement and take effect as of the 26 March 2014.
13. 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 LEG300v14A (at Schedule 2) with the intention of increasing certainty for consumers and is to the Claimant’s benefit.
14. 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 2. 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.
15. 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.
16. This response addresses below:
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 AGREEMENT
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 £26.00 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 2) to the amended terms and conditions (at Schedule 3) (“the Written Notice”). 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 point 19.9 which provides as follows:-
19.9 All notices to be served in accordance with your Agreement must be served by post or facsimile. We can in addition serve notice to you by voicemail, email, text or other form of electronic message. They will be deemed served 48 hours after they are sent, or on earlier proof of delivery. All invoices and notices served by post will be sent to the address given by you on Registration unless you notify us of a change to this address. Any waiver, concession or extra time we may allow you is limited to the specific circumstances in which it is given and does not affect our rights in any other way.
The Agreement prior to the Change
15. The Respondent refers to the terms and conditions at Schedule 2.
16. Prior to the changes in question, point 15.1 of the Agreement provided:
15.1 (a) We reserve the right to vary the terms of this Agreement from time to time, to restrict your right to cancel a change of Service Plan and to make changes to your Service Plan.
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 4.3.1 exceeded the rate of inflation as measured by RPI.
However this option to terminate without paying a cancellation charge does not apply if:
Old Term
4.3.1 we have increased the Charges by an amount equal to or less than the percentage increase in the All Items Index of Retail Prices published by the Central Statistical Office in the Monthly Digest of Statistics in any 12 month period.
18. That term (“the Old Term”) contained an out-dated reference to the Central Statistical Office, which was liable to confuse consumers. It also allowed the Respondent to select “any 12 month period” over which inflation could be measured.

The Agreement after the Change
19. The Respondent refers to the terms and conditions as at Schedule 3.
20. The revised agreement provides as follows:
4.3
You may also terminate your Contract if we give you written notice to vary its terms, resulting in an increase in the Charges or changes that alter your rights under this Contract to your material detriment. In such cases you would need to give us at least 14 days written notice prior to your Billing Date (and within one month of us giving you written notice about the changes). However this option to terminate without paying a cancellation charge does not apply if:
the increase in Charges (as a percentage) is equal to or lower than the annual percentage increase in the Retail Price Index (RPI) published by the Office for National Statistical (calculated using the most recently published RPI figure before we can give you Written Notice under Clause 4.3).
4.3.1
21. The effect of this term (“the New Term”) continue to be that the Claimant has right to terminate the Agreement without paying a cancellation charge if the
price increase notified under Point 4.3.1 exceeded the rate of inflation as measured by RPI.
22. However, the changes (i) to make the term clearer by updated it to refer to the Office for National Statistics; and (ii) to make the term more certain by making clear that only the most recent RPI figures may be used for these purpose.
The Respondent’s right to change the terms of the Agreement
23. The Respondent is entitled to revise its Agreement terms pursuant to point 15.1(a) as set out above.
The Claimant has a right to terminate only if the change is of material detriment
24. The Agreement further provides that where a change notified under point 15.1 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.
25. Points 4.3 and 15.1(b) provide (so far as material) as follows:
4.3 You may also terminate your Contract if we give you written notice to vary its terms, resulting in an increase in the Charges or changes that alter your rights under this Contract to your material detriment. In such cases you would need to give us at least 14 days written notice prior to your Billing Date (and within one month of us giving you written notice about the changes). However this
option to terminate without paying a cancellation charge does not apply if:
15.1(b) We acknowledge that if we do increase the Charges, withdraw Orange Additional Services or introduce new mandatory Charges - or if your Contractual rights are affected to your detriment - you may terminate your Agreement in accordance with Condition 4.3. If you do not give notice within one month of our notifying you of any change(s), you will be taken to have accepted the change(s).
26. The Written Notice provided to the Claimant 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 Agreement without penalty.
The Change is not of material Detriment
27. The Change is not of material detriment for the following reasons.
28. 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.
29. 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.
30. Alternatively, if and to the extent that the Claimant has suffered any marginal detriment, such detriment is not material.
30.1. 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.
30.2 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 15.1(a) and/or 15.1(b).
30.3 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.
30.4 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
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
1 The figures in this table have been obtained http://www.ons.gov.uk/ons/rel/cpi/consumer-price- indices/february-2014/consumer-price-inflation-reference-tables.xls.
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
30.6 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.
THE DISPUTE FALLS OUTSIDE CISAS’ REMIT
31. 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 4.3.1 and/or 15.1(a) 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.
32. The Material Detriment Issue does not relate to any of the matters set out in Rule 2a.
32.1 Bills: It does not relate to any bill issued by the Respondent to the Claimant.
32.2 Customer Service: It does not relate to the quality of customer service provided by the Respondent to the Claimant.
32.3 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
2 24 months is the longest initial commitment period permissible under General Condition 9.4

33.
indicates that the focus of the dispute resolution scheme is on the service actually provided to customers.
Further or alternatively, the Material Detriment Issue constitutes a complicated issue of law.
33.1 A proper resolution of the case would require CISAS to consider (i) the proper construction of the Old Term, as a matter of Agreement; (ii) the proper construction of the New Term, as a matter of Agreement; (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. 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.
33.2 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.
33.3 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 Clamant. 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.
34. For the reasons stated above the Respondent denies that the Claimant as at all entitled, whether contractually or otherwise, to terminate the 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. The Claimant has not contacted the Respondent regarding the change in terms and conditions until June 2014, some several months after having been notified of the changes and the Claimant has therefore lost the right to request cancellation of the Agreement due to the change of terms and conditions as set out above (such right being denied in any event).
35. 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.
36. Should the Claimant request a PAC code from the Respondent, one will be provided however the Claimant will remain liable for the cancellation charge of £42.60, reducing on a daily basis.
37. The Claimant claims the sum of £100 in compensation. The Respondent denies that the Claimant is entitled to compensation in the sum of £100 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.
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 23 July 2014
Helen Young Legal Assistant
For and on behalf of the Respondent whose address for service is at:
EE Limited
Legal Department Trident Place Mosquito Way Hatfield Hertfordshire AL10 9BW


Please let me know what you all think. I think the first part reads that they agree I complained about the ts & cs change.

Pilotmic

The Respondent maintains a paperless environment with regards to Service Agreements entered into with its customers but does not retain a copy.

Just noticed this. So they don't have a copy of a contract for any of us. We can all leave then I suppose.

Preeble

Haven't really been on here since I accepted my decision, anyone able to catch me up? by the looks of it i'm not the only one EE are failing to give a "backdated" cancellation to...
I accepted decision, recieved PAC code and have transfered old number, waited until the day after EE's deadline to comply, then emailed asking about the backdated payments and recieved this email in reply:[FONT=&quot]

[/FONT]
[FONT=&quot]Dear Sir [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I refer to the above and to your email of 23 July to the Executive Office, our CEO and Ofcom in respect to the decision in this matter. Please note that this matter is being dealt with by myself within the legal team.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I further refer to my email of 27 June, copy of which is attached. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]In accordance with the decision we have provided you with the PAC, which you have kindly acknowledge receipt. However, the adjudicator in the decision did not make an award for a refund of charges in the decision. Therefore there is no requirement to refund any charges. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]We have complied fully with the decision and will not be making any refund of payments. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Regards


My adjudicators decision was: The customer has made a claim for the company to “give a back dated penalty free cancellation and a PAC code. In light of all the findings above, I am satisfied that the company should have terminated the customer’s contract without penalty and provided him with a PAC code when he made the request on 9 April 2014. Based on the terms and conditions of the customer’s contract with the company, I note that the customer was required to provide 14 days written notice to terminate his contract without charge. As the customer provided notice of termination on 9 April 2014, I find that it is fair and reasonable that the contract be terminated without penalty, backdated to 23 April 2014. Consequently, I direct that the company terminates the customer’s contract, backdated to 23 April 2014 without penalty and provides the customer with a PAC code.

Whats the next step here? Even if it was for a penny, I'm not letting EE interpret their own decision to get out of this.
[/FONT]

rockstarzzz

blackaqua wrote: »

+1 victory, £60 comp, backdated cancellation to first letter, not initial complaint phone call as I didn't detail who I spoke to and an outline of the conversation.

I didn't follow RC templates, though he helped with a defence point, so thanks for that. My case rested on the fact that my price increase was greater than RPI as I had a discounted contract.

CISAS Decision point for others:
The customer has the right to cancel without paying a cancellation charge if the increase in his Price Plan Charge is more than the increase in RPI (clause 7.2.3.3). The term Price Plan Charge is defined at the beginning of the Terms and Conditions. It is the charge for the Price Plan Service, which includes the Monthly Charge for the price plan. The term Monthly Charge is defined as the amount the customer pays each month in advance for his price plan service. The customer actually pays £x per month for his price plan, not £x. An increase of £x per month is therefore an increase of 5.x%, i.e. an increase greater than the percentage increase in RPI. Given that the company gave notice to increase his price plan charge by more than RPI, the customer was entitled to cancel his contract without paying a cancellation charge. I therefore find that the company breached the contract between the parties by not allowing him to do so.

EE also stated that they changed my contract terms (26 March) in their defence letter. I hadn't received anything so I requested EE provide proof of receipt. CISAS ruled in light of EE providing no evidence, my old contract terms would be valid (minor point in my case as it didn't affect my argument) - good news for those going for the new T&C defences.

On my (and others) victory point regarding the lack of a discount clause - expect EE to issue new T&Cs as anyone with a loyalty discount could cancel after any price rise in theory? This clause would be detrimental, so anyone would be able to cancel following this.

I am on a discounted loyalty plus plan - The price plan that was meant to be £31 has been discounted to me and all I am meant to pay is £16. In line with your outcome, can I please get help with what you wrote as your defense? Currently I've submitted my claim according to RC's template and am expecting EE response tomorrow. It would be good if I can write defense in line with what you wrote and hopefully copy the paragraph above in my argument too?

sick_of_paying_more

RandomCurve wrote: »

see post #1431 - and the quote within it.


Basically write to CISAS stating
"I accept the decision on the basis that Back dated cancellation can mean nothing less than a refund from that date as from that date the contract is cancelled. Any service provided is not provided under a contract and therefore is past consideration which I am not willing to pay. If the above is not a correct interpretation can CISAS clarify EXACTLY what the adjudicator means by back dated and if it is not as above can he/she explain what the effect of "back dating" was meant to mean and what regulations/laws are being invoked? Please note this is a point of clarification I am seeking, and I am aware that CISAS has allowed EE to seek clarification from CISAS on this very - and have received replies direct from the adjudicator (via CISAS). Therefore in the sprit of fairness and justice CISAS should extend the same courtesy to me and I also would like a communication direct from the Adjudicator (via CISAS) and you expect the 6 weeks response timeframe to be extended whilst such clarification is sought."

have had the following response from cisas it would appear that i got my dates wrong!!:shocked: i am going to email cisas to get an an idea how long this is liable to take but it would appear that they are not going to move on the 6 week deadline!! hope this helps someone else, will update as i get any news back

quote from email from cisas
Thank you for your email. I have referred this matter back to the adjudicator for clarification.

However, please be advised the deadline for your acceptance or rejection cannot be extended under any circumstances and we must receive your acceptance or rejection of the decision on or before 29/07/2014.

We will revert back to you upon receipt of the adjudicator’s response.

Kind regards

amf

Swampsnake wrote: »

Please can I ask how long after you accepting the CISAS decision did you receive your PAC code? I'm off to Cornwall at the weekend and I don't particularly want to be messing around organising a new telco while I'm away, but also if they take a while I don't want to be waiting ages for a code after I get back after a couple of weeks.

I'm also looking for this info. I accepted the CISAS decision last week and received an e-mail from EE legal team 2 days ago saying PAC requested and would follow. They also confirmed that they would repay back to 20 April :beer:

rockstarzzz

RandomCurve wrote: »

Hopefully you included the green text which was within the CISAS template I provided earlier (see below). As I have not seen a defence from EE on this issue then if BLACKAQUA could share the EE defence and his/her response that would be really useful.
Ley me know if you omitted the green text below as if so then CISAS may rule any reference to this as new evidence and therefore not to be considered, but I think there is a way around this if you need it.


Without Prejudice(only use this if the your payment has increased above 2.7% e.g. Original payment £25.00 plus 2.7% (£25.00*2.7/100= £0.675p) so maximum new price = £20.67p)


The price rise applied to my account means that the actual net monthly core subscription price that I am paying to EE reflects an increase higher than the February RPI rate allowed under the contract, and as per our contract I am entitled to a penalty free cancellation








5. Without prejudice (Only to be used if the calculation shows a figure higher than 2.7% - even if it is 2.70001%)


The methodology used by EE to calculate the increase applied to my account results in the actual payment leaving my bank account each month relating to the core subscription price being in excess of the February RPI rate. In accordance with the contract if an increase is applied in excess of RPI then I am entitled to a penalty free cancellation (regardless of Material Detriment).


The figures are as follows Pervious monthly cost £XX.XXp. revised monthly cost £XX.XXp which is an increase of £X.XXp whereas a 2.7% increase would have resulted in a new monthly cost of £X.xxP, therefore under the terms of our contract as the net increase is in excess of RPI I am entitled to a penalty free cancelation





The quantum above RPI is irrelevant. Even if the increase was just 1p above 2.7% then EE must have applied a rate HIGHER than the published RPI rate which triggers my right to a penalty free cancellation as per the contract.

Hello RC!

Thanks for pointing this out. I have gone through the drafts of everything I've emailed. In my acutal case itself I don't think I had those blue lines. I thought the below part wasn't applicable to me as I wasn't aware of how they were calculating the 2.7% but only realised it is important now that I saw decision for blackaqua!
"5. Without prejudice (Only to be used if the calculation shows a figure higher than 2.7% - even if it is 2.70001%)"

I feel like a fool now that even though you had clearly prepared a template for this I didn't use it out of ignorance!

I have talked about price increase being more than RPI but haven't stated particular breakdown of my bill (as I wasn't aware if it should be original price or discounted) and have also sent appendix 2 where I've shown EE's email stating the rise wasn't more than RPI.

Can I survive this in case I get response today? Also today was deadline for EE to respond. If I don't hear anything back by 5pm today - do I have a stronger case to push for?

factor29

RandomCurve wrote: »

I think in your case another email to Voda is required (you may want to send them a copy of your full response from Ofcom)


Dear X


Thank you for your email dated X.


Please be advise that my dispute with you has nothing to do with your commercial decision to raise prices, it is to do with if your T&Cs are compliant under GC 9.6 and the UTCCRs. Ofcom have been contacted on this issue and their customer Contact Team have advised (under reference 1-265323635)


"On your second question, I can confirm that the Ombudsman Service can accept complaints relating to GC9 and The UTTCRs as they are within the scope of its scheme."


AS Ofcom have confirmed that this is within the scope of the ADR scheme then under GC 14 you are required to issue a deadlock letter. Unless you propose to fully answer the questions put to you 5 times already or are prepared to grant the penalty free cancellation requested, then I will include your non compliance with GC 14 within my compliant to the Ombudsman Service should a deadlock not be received within 7 days.


Regards

I received a deadlock letter.... yes a letter! today.

So can now send my complaint off.. however cant figure out how to send more info to the ombudsman service. You only get 2000 characters which isnt enough

The email address which Vodafone supplied for them has bounced back saying I need to fill in the form online

Troy_Tempest

25 July 2014



Dear Mr Tempest



Thank you for your further email of 21 July 2014.



Ofcom have read and considered carefully the 11 separate questions you ask but, having done so, Ofcom’s position is unchanged. All of the matters raised in your questions are covered by the detailed explanations Ofcom have previously given you of our position and, as indicated in the last letter, Ofcom are not going to engage in further correspondence on this matter.



As Ofcom also said in the last letter, if you remain dissatisfied with Ofcom’s response, you may complain about how we have handled this matter by writing to our Corporation Secretary, Graham Howell.



Yours sincerely



Jessica Eyles

Consumer Contact Team

rockstarzzz

RandomCurve wrote: »

The fact you have talked about the increase being more than RPI will be enough that it won't be classed as new evidence! Depends how EE respond to that part - if they ignore it then you address it again in your defence stating that you note that EE have declined to comment on the fact that the actual payment leaving your account has increased by more than 2.7% (and then show the calculations - just at the NET level). If they do respond to that point then see what BlackAqua has to offer.


As for timing if EE had until today to respond - you probably won't here anything from CISAS until Monday/Tuesday (unless they are working weekends).

Thanks RC! I received EE's defense just 2 minutes before 5pm. I will paste it here but will try to highlight the part where may be I can use blackaqua's defense if possible or anything you suggest to highlight that fact about it being more than RPI.

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
REFERENCE: 21092848
BETWEEN
Rockstarzzz
Claimant
and
EE LIMITED
trading as Orange
Respondent

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(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 in respect to account number 75021121 (“the Account”) since 14 November 2012. The Claimant has two active mobile numbers registered on the Account, namely is 0752xxxxxxx (“the First Mobile Number”) and 074xxxxxxxx (“the Second 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 Numbers 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. On 06 September 2013, the Claimant entered into two separate Service Upgrade Agreements (“the Agreements”) in respect to the First and Second Mobile Numbers the Claimant would have been provided with the terms and conditions applicable at the point of entering into the Agreements. 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 LEGv15. 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 LEG15A

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 LEG15A 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;-

4.3 You may also terminate your Contract if we give you written notice to vary its terms, resulting in an increase in the Charges or changes that alter your rights under this Contract to your material detriment. In such cases you would need to give us at least 14 days written notice prior to your Billing Date (and within one month of us giving you written notice about the changes). However this option to terminate without paying a cancellation charge does not apply if:

4.3.1 the increase in Charges (as a percentage) is equal to or lower than the annual percentage increase in the Retail Price Index (RPI) published by the Office for National Statistical (calculated using the most recently published RPI figure before we can give you Written Notice under point 4.3).

5.2 Termination of your Contract is subject to you paying us any money you owe us and us paying you any money we owe you. After termination, it is your responsibility to cancel any direct debit, standing orders, credit card mandates or other authorisations you may have given for periodic payments to be made to us by third parties.

19.9 All notices to be served in accordance with your Agreement must be served by post or facsimile. We can in addition serve notice to you by voicemail, email, text or other form of electronic message. They will be deemed served 48 hours after they are sent, or on earlier proof of delivery. All invoices and notices served by post will be sent to the address given by you on Registration unless you notify us of a change to this address. Any waiver, concession or extra time we may allow you is limited to the specific circumstances in which it is given and does not affect our rights in any other way.

18. 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 4.3.1 to use the most recently published RPI figure before we give you Written Notice under 4.3. 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%1 1.
1 http://www.ons.gov.uk/ons/rel/cpi/consumer-price-indices/february-2014/stb---consumer-price-indices---january-2014.html#tab-Retail-Prices-Index--RPI--and-RPIJ-

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 4.3.1 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 4.3.1 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 3.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 Numbers he would be liable for a cancellation charge in the sum of £423.70 for the First Mobile Number and £423.70 for the Second Mobile Number (reducing on a daily basis) should he terminate the Mobile Numbers 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 notaccept the Claimant’s arguments that such response entitles them termination without charge and/or compensation it the sum of £216.00.

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”2). 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. 1.

1. 2 http://media.ofcom.org.uk/2013/10/23/protection-for-consumers-against-mid-contract-price-rises
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.” 3
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

Material4 - Significant; important: 1.
3 http://stakeholders.ofcom.org.uk/consultations/price-rises-fixed-contracts/statement
4 http://www.oxforddictionaries.com/definition/english/material
Law (Of evidence or a fact) significant or relevant, especially to the extent of determining a cause or affecting a judgement

Detriment5 - 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 £0.98p for each mobile number . 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 £0.98p cannot be described as being significant and nor does it causes real harm or damage to the Claimant. 1.

5 http://www.oxforddictionaries.com/definition/english/detriment
38. Further the Claimant has not provided any evidence to establish that the increase of £0.98p 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.

THE CLAIMANT’S NOTICE TO TERMINATE THE AGREEMENT

44. The Respondent submits that, point 15.1(b) provided that notice to cancel (no such right being admitted) was required to be given prior to the change taking effect. The change was to take effect on 28 May 2014. By the Claimant’s own admission, he first brought his dispute and first gave notice to terminate the Agreements on 25 June 2014. The Respondent submits and confirms that it has no records that the Claimant requested to terminate the Agreement prior to the Claimant’s email dated 02 July 2014, attached hereto at Schedule 2 and the Claimant is put to strict proof thereof. The Respondent submits therefore that the Claimant still had ample opportunity if the change gave grounds to cancel (none being admitted) to give notice to terminate the Agreement without a cancellation fee before the change took effect. The Claimant having given notice to terminate the Agreement on 02 July 2014, he was entitled to terminate the Agreement subject to him paying a cancellation fee.

45. As the Claimant did not give notice to terminate the Agreement until 02 July 2014, the Claimant’s right has been extinguished in any event, as he would have been required to give notice to terminate the Agreement before the charge took effect on 28 May 2014.

46. 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.

47. 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.
Dated the 25 July 2014
Rue Kandi
Legal Executive
For and on behalf of the Respondent whose address for service is at:
EE Limited
1 Trident Place
Mosquito Way
Hatfield
Hertfordshire
AL10 9BW

***************************************************
Some points to note:

1. They have refused that their increase is more than RPI.
2. They have admitted that the increase is 98p per mobile number. This makes it 98p x 2 = £1.96 per month. I have to pay 18 months of my contract with this increase.
3. They have gone into arguing "material detriment" and GC9.6
4. They denied that contract thats not "fixed term" was mis-sold to me.
5. They ask for £423 per line as my termination fee. If I understand correctly termination fee is remainder of line rental in full. This makes it £23.5 per month for next 18 months. This isn't my line rental - Discounted or otherwise.
6. Discounts were applied to my plan and I have been paying only £16. So 2.7% of that should be 43p not 98p. For it to be 98p, they must have calculated my line rental as - £36.46
7. Although, that is my line rental in my very first agreement but my discounted line rental that appears on my bill that I submitted is £16 (after increase - £17).

Do we have a case?


Can I use any generic template from you? It feels like they've used all the possible arguements we've seen in past cases. Should I merge all the templates?


I have been given till 1st August to respond.