Mobile Phone Contract - Price Rise Refunds

Pilotmic

RandomCurve wrote: »

I would caution against reclaiming the DD as EE will pass the "debt" to a debt collection agency and trash your credit rating. I suggest you send them a "letter before action", they will then either agree or fight it in the courts (it should cost you no more £30 to take this court).

Already done, and advised them of a wish to proceed to SCC about it. Also contacted CISAS to tell them of disgust at them forcing payment without a contract.

Ash_McCloud

Hello RC and all. I've received this response from EE in defence. In error I didn't submit any of my email correspondence in the first instance, but CISAS say if I add them to my next email they'll be considered by the adjudicator and it won't matter that they weren't submitted before. Any idea if I have a case, or what I should say in response? My phone's fairly broken so I could do with getting out of the contract!

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 ********** since 4 May 2013. The Claimant’s mobile number
registered to the account is *********** (“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 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. Upon entering into the Service Agreement (“the Agreement”) in respect to
the Mobile Number via one of the Respondent’s authorised retailers, 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 LEG300v15.
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
LEG300v15A.
16. At Schedule 1 attached hereto is a copy of the terms and conditions being
LEG300v15A 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.
17. 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.
18. 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.
19. 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
20. 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.
21. 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.
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-RPIJ22.
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.
23. 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.
24. 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 £312.792 (reducing on a
daily basis) should he terminate the Mobile Number within the minimum
term period.
25. 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.
26. The Respondent has provided a response to the Claimant’s complaint dated
26 June 2014 (a copy of which being attached at Schedule 2) in a timely
fashion. Whilst the Claimant’s may dislike the Respondent’s response that he
is unable to cancel the Agreement without payment of a cancellation fee, it
does not follow that the Respondent has breached its duty of care to the
Claimant. The Claimant has made no complaint regarding the level of
customer service he received in respect of his complaint 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 to
termination without charge.
27. 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.
28. Whilst the Respondent denies that it is liable to the Claimant for the reasons
set out above, in any event the Claimant has failed to provide the Respondent
with notification of his request to terminate the Agreement before the price
increase took effect on 28 May 2014, as set out at Clause 4.3, and therefore
the Claimant has accepted the position and has lost the right to cancel the
Agreement in any event. It is clear from the Claimant’s correspondence at
Schedule 2 that he did not contact the Respondent until 26 June 2014
regarding his request to cancel the Agreement and he has therefore lost the
right to cancel in accordance with the terms set out above.
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.
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
1.
1. 2 http://media.ofcom.org.uk/2013/10/23/protection-for-consumers-against-mid-contract-pricerises
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:
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:
1.
3 http://stakeholders.ofcom.org.uk/consultations/price-rises-fixed-contracts/statement
4 http://www.oxforddictionaries.com/definition/english/material
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 91p excluding 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 91p excluding 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 91p excluding VAT per month will cause the Claimant significant
harm or damage.
3.
5 http://www.oxforddictionaries.com/definition/english/detriment
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 network.
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.
Dated the 30 July 2014
Helen Young
Legal Assistant
For and on behalf of the Respondent whose address for service is at:
EE Limited
1 Trident Place
Mosquito Way
Hatfield
Hertfordshire
AL10 9BW

Preeble

My response to CISAS's backward reasoning of that backdated means whatever EE want to do:

[FONT=&quot]Dear CISAS,

[/FONT]
[FONT=&quot]It is incorrect when you state "[/FONT][FONT=&quot]I made no direction regarding the refund of any payments incurred after the contract was cancelled is because no such remedy was specifically requested in the customer’s application form[/FONT][FONT=&quot]". In my application to CISAS I clearly stated "[/FONT]Action Required: Give a back dated penalty free cancellation and a PAC and unlock code" a BACKDATED penalty Free cancellation which by implication backdated means without charge since the date of termination, otherwise I would have requested an "immediate penalty free Termination" which is what has been given by EE and not what was requested OR the adjudicators decision I accepted in this case.


Paragraph G, page 4 / 5 of my decision states: "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."


Why would the adjudicator specificly state my decision is to be backdated to the 23rd April (14 days written notice from 9th april) if it was not his intention that all charges after this date were to be repaid?


Also from my decision paragraph G: "Consequently, I direct that the company terminates the customer’s contract, backdated to 23 April 2014 without penalty"

This is clearly another penalty being imposed on me due to EE's refusal to comply, for which I should not be punished.
EE INCORRECTLY refused to allow me to leave my conrtact with them on the 23rd April, any payments made after this date should never have been taken, as my contract would have ended on the 23rd April, had EE not shown a complete disregard for ofcoms rules, specificly general condition 9.6.

It is clear to me that EE recognize that the end of your contract can mean nothing less than the end of your billing. Upon recieving my PAC code from EE they stated: "The PAC number is valid until 1 August 2014. If you do not complete your number port within 30 days, your PAC code will expire. This means that you will remain online with EE and will continue to be billed and you will require a new PAC number." Overlooking the fact EE were imposing ADDITIONAL terms to the adudicators decision (That my PAC code MUST be used before they will cancel the contract), they show that "remaining online" with EE = continued billing, therefore according to EE, if a customer was "offline" as of the 23rd April this would clearly indicate no more bills should be taken, therefore any payments after this date should be returned.


I have also sent a copy of this email to EE and Ofcom.


Regards

I'll update when I hear a response back from someone, In the meantime I'm going to write up a letter before action for taking this to SCC. RC would it be reasonable to claim extra at SCC for your legal fees? if so how much would you like donating to haven house?

RandomCurve

Preeble wrote: »

My response to CISAS's backward reasoning of that backdated means whatever EE want to do:

[FONT=&quot]Dear CISAS,[/FONT]




..............


I have also sent a copy of this email to EE and Ofcom.


Regards

I'll update when I hear a response back from someone, In the meantime I'm going to write up a letter before action for taking this to SCC. RC would it be reasonable to claim extra at SCC for your legal fees? if so how much would you like donating to haven house?

A good letter - let us see what "excuse" they come up with next.
As regards SCC you can't claim compensation, and to claim "fees" you will need an invoice , but thanks for the offer.

Ash_McCloud

RandomCurve wrote: »

@Ash McCloud


The defence is the revised standard one the response can be found on the Fight Mobile Increases Website along with the defence it relates to so you all have to is match up the paragraph numbers:
http://fightmobileincreases.com/fight-ee/fight-the-march-2014-price-rise/
Documents "EE Defence Updated version from Mid June" and "EE defence response from 26-6-14" (both downloads near the bottom of the page).


The only bit missing is the timing issue - and I wrote something for that (posted on this forum, but I can't find it) it goes along the lines of:
Paragraph 28
"Please note that my claim is under GC 9.6 and not the contract terms. Under GC 9.6 there is no claim time limit imposed on me . GC 9.6 places a time restriction on EE to give at least 30 days of any change, but no time frame in which I have to respond. As GC 9.6 is a rule for the industry to follow - not the consumer - it is akin to the UTCCRs and other legal guidance where the time limit for action is six years and not 30 days. I put EE to strict evidence to prove where GC 96 places a 30 day time restriction upon me."


In light of same strange decisions on what "backdating" means you may also want to add:
"I would also like to clarify that my claim is for a backdated penalty free cancellation means that I would be seeking a refund of any sums taken from my account by EE from the termination date".

Cheers RC, I'll get on it tomorrow and let you know the outcome

barrowvian

Hi RC,

Is there any news of what we need to do moving forward for those of us who received the rejection letter? Thank you.

Mikmonken

barrowvian wrote: »

Hi RC,

Is there any news of what we need to do moving forward for those of us who received the rejection letter? Thank you.

A new forum has been start for this, RC is working on a CISAS case so follow the pointers from the first few posts and sit back and be patient as the case is developing and RC is just one man.

https://forums.moneysavingexpert.com/discussion/5021418

factor29

Has anyone on Vodafone heard back from the Ombudsman yet?

Still waiting to hear from them after I sent further details

RandomCurve

Mikmonken wrote: »

A new forum has been start for this, RC is working on a CISAS case so follow the pointers from the first few posts and sit back and be patient as the case is developing and RC is just one man.

https://forums.moneysavingexpert.com/discussion/5021418

Yep -just one of me.
I thought this would be quicker as I have the arguments all laid out from other cases, but the wording and trying to tie it all together is taking an age - bear with me

zcakg26

So looks like the decision was in my favour.

The claim was successful using RCs (MUCH THANKS couldn't have done it without you) amended template response to Tmobile's change in response. Long story short:

1) Claim succeeds

2) Contract shall be terminated immediately without the imposition of a cancellation fee.

3) Refund the customer all charges imposed after the original cancellation request on 1st May 2014.

4) Awarded compensation in the amount of £52.00.

5) Company shall provide the customer with his PAC code.

I haven't been paying attention to this forum as of late but I hope others have been successful and good luck to those who are still continuing.

My adjudicator was a Ms S E.

Just a few questions: where do I go from here to continue with this? or how do I continue with this? How do i accept this decision? Do i go straight to Tmobile?

If I want to change my number do I still take the PAC code but say I'm not going to use it?

I also saw that for some people Tmobile tried to be sneaky and not pay up (i.e. refund the the charges after a certain date) when even though the claimant won.

Much Thanks