Mobile Phone Contract - Price Rise Refunds

Savedotmoney

ulaggy wrote: »

The line manager is claiming that "Material Detriment" clauses in the T-Mob contract is for people who have been unable to meet payments on a regular basis, and because my credit rating is good with all payments met, I don't qualify.


Well... that's a new one on me.

Should also add that he wanted to set up a complaint via Ofcom (I think) and he also explained about the complaints process and how it would take 6-8 weeks before escalation. At this point, I did bring up my existing CISAS case and explained that it would be cheaper for T-Mob to let me go now than to be forced into it with compensation!

He repeatedly said that there is no procedure for penalty free cancellations anyway. I asked him to clarify how the procedure for people not paying their bills worked. If they are going to say Material Detriment clause is for people not paying their bills, then I want to know exactly how that procedure functions. They obviously have an ability to cancel a terminate a contract penalty free in that instance. Basically, I'm trying to trip them up!

Wow... what dribble... Did he read from the contract or just sound like he's making that up? Did you use the file I attached? You should read it word for word and let him take it all in. Quite frankly he's dodged the bullet here. You need to phone them back and start again. The fact of the matter you have the option to cancel your contract. I would go through it again until he gets it

ulaggy

Savedotmoney wrote: »

Wow... what dribble... Did he read from the contract or just sound like he's making that up? Did you use the file I attached? You should read it word for word and let him take it all in. Quite frankly he's dodged the bullet here. You need to phone them back and start again. The fact of the matter you have the option to cancel your contract. I would go through it again until he gets it

Oh believe me, I've gone through it so many times that I'm sure I heard him audibly sigh the last time I did! I've got the document off your website in one tab, Ofcom email in another and this forum open in a third. And I have my paper contract to hand. I've got everything, but they are just constantly evading!

He went away to talk to someone and came back with that dribble about material detriment. I'm now on hold while he finds out the procedure for his so-called non-bill paying material detrimentiers :P

Savedotmoney

ulaggy wrote: »

Oh believe me, I've gone through it so many times that I'm sure I heard him audibly sigh the last time I did! I've got the document off your website in one tab, Ofcom email in another and this forum open in a third. And I have my paper contract to hand. I've got everything, but they are just constantly evading!

He went away to talk to someone and came back with that dribble about material detriment. I'm now on hold while he finds out the procedure for his so-called non-bill paying material detrimentiers :P

Just tell him he is wrong. He needs to read what Ofcom have published and understand what your rights are.

Mikmonken

And ask for a copy of the phone call transcript as well

delboy9

Ok I sent the reply as Random Curve instructed at 12:30ish today and was shocked to receive a reply from EE via CISAS within an hour or so!!!

It seems I have been appointed Miss Justine Mensa-Bonsu as my adjudicator? Exactly as Random Curve predicted, EE have changed their defense as follows:

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
REFERENCE: 21214****
BETWEEN
MR ****************
Claimant
and
EE LIMITED
trading as T-MOBILE
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 change its terms and conditions and to increase its prices.
2. The Respondent denies that it is liable to the Claimant as pleaded or at all.
3. 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.
4. 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.
5. The Claimant has been a customer of the Respondent’s since 24 April 2013. Upon connection, the Claimant was registered as a consumer and allocated the account number ******** (“the Account”) and the mobile telephone number ***** ****** (“the Mobile Number”), which is currently active on the Account.
6. The Claimant entered in an Agreement (“the Agreement”) with the Respondent on 24 April 2013 via the Respondent’s telesales department. The Claimant was made aware that the Agreement was subject to terms and conditions which were offered to the Claimant prior to entering into the Agreement and were available for viewing on the Respondent’s website. A copy of the terms and conditions were subsequently despatched to the Claimant.
7. 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.
8. At Schedule 1 attached hereto is a copy of the Terms and Conditions for Telephone Service and Equipment – Conditions Version 58. The Respondent submits that such terms and conditions relate to the original terms and conditions to the Agreement.
9. At Schedule 2 attached hereto is a copy of the amended terms and conditions – Conditions Version 58C, subject to the Agreement as of the 26 March 2014.
THE CHANGE TO THE CONTRACT
10. The Respondent submits that this element of the 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 58 (at Schedule 1) with the intention of increasing certainty for consumers and is to the Claimant’s benefit.
11. 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 1. 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.
12. 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.
13. This response addresses the following:
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.
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 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 1) to the amended terms and conditions (at Schedule 2). 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 the original terms and conditions.
15. Save that the Respondent denies that the change in the terms and conditions 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 changes taking effect on 26 March 2014.
16. 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 new terms of the Agreement effective as at 26 March 2014.
The Contract prior to the Change
17. The Respondent is referred to the terms and conditions at schedule 1, CVN58.
18. Prior to the changes in question, point 7.1.4 of the Contract provided:
7.1.4. We can increase any Price Plan Charge. We will give You Written Notice 30 days before We do so. The change will then apply to You once that notice has run out.
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 7.1.4 was of material detriment to the Claimant (point 7.2.3.2) or exceeded the rate of inflation (point 7.2.3.3).
7.2.3. A Cancellation Charge won’t apply if You are within the Minimum Term and:
7.2.3.2. You are a Consumer and the change that We gave You Written Notice of in point 2.11.2 or 7.1.4 above is of material detriment to You and You give Us notice to immediately cancel this Agreement before the change takes effect; or
7.2.3.3. The change that We gave You Written Notice of in point 7.1.4 is: (i) an increase in Your Price Plan Charge (as a percentage) higher than any increase in the Retail Price Index (also calculated as a percentage) for the 12 months before the month in which We send You Written Notice and You give Us notice to immediately cancel this Agreement before the change takes effect.
19. Point 7.2 is referred to below as “the Old Term”.
20. The effect of point 7.2.3.3 in CVN58 was that the Claimant would only have a right to terminate the Agreement if the price increase was higher than the retail price index (“RPI”).
The Agreement after the Change
21. The Respondent refers to the terms and conditions as at Schedule 2, CVN58C.
22. The revised Agreement provides as follows:
7.2.3.3. We have given You Written Notice of an increase in a Price Plan Charge under point 7.1.4 and (i) the increase in Your Price Plan Charge (as a percentage) is higher than the annual percentage
increase in the Retail Price Index (RPI) published by the Office for National Statistics (calculated using the most recently published RPI figure before we give you Written Notice under 7.1.4); and (ii) You give Us notice to immediately cancel this Agreement before the change takes effect.
23. The effect of this term (“the New Term”) is that the Claimant has a right to terminate the Agreement if the price increase is higher than RPI, calculated using the most recently published RPI figures.
24. The clause specifically refers to RPI and not Consumer Price Index (‘CPI’). CPI and RPI are measured in different ways and takes into account different factors in determining the figure for the relevant month. CPI figures can indeed be higher than the RPI figures. The Respondent has historically relied only upon the RPI figure and not CPI. The Respondent’s business decision to rely solely upon the RPI as a measure creates certainty to the Claimant as to which measure will be used. In any event, the Respondent submits that even if the CPI figure had been used as a measure that an increase by a CPI measure would not be regarded as an increase which would constitute a material detriment to the Claimant.
25. This change increases certainty for customers and reduces the scope for disputes regarding whether a price change gives rise to a right to cancellation.
The Respondent’s right to change the terms of the Agreement
26. The Respondent is entitled to revise its contract terms pursuant to point 2.11 of the Agreement, which provides as follows:
2.11. We will make a copy of Our current version of these term and conditions available on Our website. We can change these terms and conditions for any good reason, for instance, if We want all customer on the same conditions. We will tell You about the change beforehand, as explained here.
2.11.1 We will make a copy of Our current version of these terms and conditions available on Our website. We can change these terms and conditions for any good reason, for instance, if We want all customers on the same conditions. We will tell You about the change beforehand, as explained here:
The Claimant has a right to terminate only if the change is of material detriment
27. The Agreement further provides that where a change notified under point 2.11.1 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.
28. Points 2.11 and 7.2 provide (so far as material) as follows:
2.11.2. If You are a Consumer and the change of terms and conditions is not of material detriment to You or You are not a Consumer, We will send You Written Notice 30 days before the terms and conditions are due to change. The new terms and conditions will automatically apply to You once that notice has run out.
2.11.3. If You are a Consumer and the change is of material detriment to You, We will send You Written Notice 30 days before the terms and conditions are due to change. The new terms and conditions will apply to You once that notice has run out, unless You terminate Your Agreement with Us within that notice period. If You do this You won’t have to pay any Cancellation Charge that would otherwise apply, see point 7.2.3.2.
7.2. Your termination rights
7.2.1. You can give Us notice to terminate this Agreement, to take effect on or after the end of the Minimum Term. However (except as set out in point 7.2.3 and 7.2.4) if, in our total discretion, We accept notice from You to terminate this Agreement within the Minimum Term, You will have to pay Us a Cancellation Charge and, if applicable, the Additional Commitment Service Cancellation Charge.
7.2.3. A Cancellation Charge won’t apply if You are within the Minimum Term and:
7.2.3.2. You are a Consumer and the change that We gave You Written Notice of in point 2.11.2 or 7.1.4 above is of material detriment to You and You give Us notice to immediately cancel this Agreement before the change takes effect; or
29. Point 2.11 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 contract without penalty.
The Change is not of material Detriment
30. The Change is not of material detriment for the following reasons.
31. 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.
32. 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.
33. Alternatively, if and to the extent that the Claimant has suffered any marginal detriment, such detriment is not material.
33.1. 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.
33.2. 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 7.2.3.2.
33.3. The Claimant has not identified such an alternative measure of inflation.
33.4. Further or alternatively, it is submitted that the difference, over the course of the Claimant’s minimum term between any two measures of inflation which would qualify under point 7.2.3.2 is not sufficient to be material.
31.5 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.
31.6 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
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

ulaggy

Not sure they are willing to do a transcript, but he's telling me about the different times I've contacted them.

I asked if they'd all read Ofcom guidelines, they said yes. But there is a definite difference of interpretation.

delboy9

CONTINUED AS POST WAS TOO LONG FOR A SINGLE REPLY

31.7 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
1 The figures in this table have been obtained (LINK NOT ALLOWED)
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
34. 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 7.1.4 and/or 7.2.3.3 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.
35. The Material Detriment Issue does not relate to any of the matters set out in Rule 2a.
35.1. Bills: It does not relate to any bill issued by the Respondent to the Claimant.
35.2. Customer Service: It does not relate to the quality of customer service provided by the Respondent to the Claimant.
2 24 months is the longest initial commitment period permissible under General Condition 9.4
35.3. 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 indicates that the focus of the dispute resolution scheme is on the service actually provided to customers.
36. Further or alternatively, the Material Detriment Issue constitutes a complicated issue of law.
36.1. A proper resolution of the case would require CISAS to consider (i) the proper construction of the Old Term, as a matter of contract; (ii) the proper construction of the New Term, as a matter of contract; (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.
36.2. 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.
36.3. 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.
36.4. 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 customer. 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.
37. For the reasons stated above the denies that it has any liability to the Claimant in respect to this element of the claim Furthermore, the Respondent denies that the Claimant is 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.
38. The Respondent notes that the Claimant has made no complaint as to customer services and in any event, the Respondent submits that the Claimant was provided with a good level of customer services at all times and that any dissatisfaction on the part of the Claimant simply stems from the fact that the matter was not resolved as he had hoped, which in any event related to a proposed remedy that he was not entitled to. The Respondent confirms that it has responded to the Claimant’s complaint at all times, clarifying its position regarding the above.
39. The Respondent submits that it will provide the Claimant with a Port Authorisation Code (“PAC”) to enable the Claimant to transfer his number to another provider and to cancel the Agreement upon request, however it is the Respondent’s position that the Claimant will remain liable for a cancellation charge upon cancellation of the Agreement, currently the sum of £298.30, reducing on a daily basis.
40. The Claimant claims the sum of £100.00 in compensation. The Respondent denies that the Claimant is entitled to compensation in the sum of £100.00 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.
41. 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.
THE PRICE INCREASE
42. As aforementioned, the Respondent confirms that prior to the 26 March 2014 the Agreement between the parties was subject to the terms and conditions CVN58. 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 (Paragraph 14 is repeated). 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 CVN58C.
2.5.1 Unless We agree otherwise, a new Minimum Term will apply. Once that Minimum Term is over this Agreement will continue until terminated;
7.1.4. We can increase any Price Plan Charge. We will give You Written Notice 30 days before We do so. The change will then apply to You once that notice has run out;
7.2.2. You can only give Us notice to terminate this Agreement by calling customer services. Your Agreement will terminate 30 days from when We receive Your call, although You are free to change Your mind and call Us to withdraw Your notice of termination at any time during that period. You will be
responsible for all Charges up to and including the date that this Agreement terminates;
7.2.3 A Cancellation Charge won’t apply if You are within the Minimum Term and:
7.2.3.3 We have given You Written Notice of an increase in a Price Plan Charge under point 7.1.4 and (i) the increase in Your Price Plan Charge (as a percentage) is higher than the annual percentage increase in the Retail Price Index (RPI) published by the Office for National Statistics (calculated using the most recently published RPI figure before we give you Written Notice under 7.1.4); and (ii) You give Us notice to immediately cancel this Agreement before the change takes effect.
43. Pursuant to Clause 7.1.4 between the 5-15 April 2014 the Respondent issued to the Claimant (together with all of its pay monthly customers) written notice (“the Written Notice”) advising of a 2.7% increase in price plan monthly charges that would take effect as from 28 May 2014.
44. As Written Notice was given between the 5-15 April 2014 the Respondent was required, for the purposes of Clause 7.2.2.3 to use the most recently published RPI figure before we give you Written Notice under 7.1.4. Therefore the correct RPI figure to use was the RPI figure for February 2014 which was published on 25 March 2014, being the most recently published RPI figure before Written Notice of the increase was given.
45. The RPI figure published as at the time the Written Notice was issued (being 5-14 March 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%3
46. 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.
47. The Respondent further denies that such increase in charges is an increase which entitles the Claimant to terminate the Agreement without paying a cancellation charge as provided for by way of Clause 7.2.3 or indeed that such is a material detriment that entitles the Claimant to treat the Agreement as terminated without paying a cancellation charge.
48. As the increase in charges of 2.7% set out within the Written Notice is not higher than the RPI for February 2014 of 2.7% the Claimant is not entitled pursuant to Clause 7.2.3 of the Agreement or otherwise to cancel the Agreement without paying a cancellation charge.
49. The Claimant claims that the use of the RPI measure is incorrect and that the Respondent should have used CPI. The Respondent denies that it is obligated to do so. The Respondent submits that the clause specifically refers to the use of (LINK NOT ALLOWED)
1. 3
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.
50. 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.
51. 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 the cancellation charge in the sum of £298.30 (reducing on a daily basis) should he terminate the Mobile Number within the minimum term period.
52. The increase in charges does not take effect until 28 May 2014 and therefore as at the date of the Claimant’s application and the Defence the Claimant has not been charged any additional charges and therefore a refund is not applicable, such being denied that the Claimant is entitled to such refund in any event.
53. The Respondent denies that it has breached its Agreement and/or breached its duty of care to the Claimant. As provided for by way of Annex 4 to General
Condition 14, the Respondent is not required to issue a written deadlock letter when requested by a complainant where the subject matter of the complaint is outside the jurisdiction of the Respondent’s Alternative Dispute Resolution scheme. The Respondent remains of the view, and as previously stated by CISAS, 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.
54. The Respondent has provided a response to the Claimant in a timely fashion and that such response has been consistent. Whilst the Claimant’s appears to dislike the content of such response it does not follow that the Respondent has breached its duty of care to the Claimant. The Respondent denies that it has failed to address each aspect of the Claimant’s claim and that in any event the Respondent submits that its position remains unaltered and that it does not accept the Claimant’s arguments that such response entitles them termination without charge and/or compensation it the sum of £100.00.
55. 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 termination of the Agreement without paying a cancellation charge. The Respondent submits that the Claimant is 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.
56. The Respondent denies that the Claimant is able to request that the prices are not increased. 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.
57. The Respondent further refers 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 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.
58. Further or alternatively, the material detriment issue constitutes a complicated issue of law.
59. 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.
60. 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.
61. 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 Claimant. Rather it is necessary that the Claimant establish that that increase is of material detriment.
62. For the reasons stated above the Respondent that it has any liability to the Claimant in respect of this element of the claim and further 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.
63. 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 19 May 2014
Ms Lamley Lamptey
Legal Counsel
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

delboy9

[FONT=&quot]FROM CISAS TODAY:
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]PRIVATE AND CONFIDENTIAL
19 May 2014
Dear **********
CISAS
Case No: 21214**** - ****** v T-Mobile (UK) Limited
We acknowledge receipt of comments on the company’s response to the claim from the customer. A copy is provided for the company’s information.
The parties are advised that Miss Justine Mensa-Bonsu has been appointed as adjudicator and that all of the case papers received have been forwarded for consideration.
Upon receipt, the Decision will be sent to both parties (usually within 3 weeks). In the meantime, we may contact you if the adjudicator requires any clarification or further information on the documents submitted.
When the Decision is issued the Customer will be given 6 weeks to advise us whether they accept or reject it.
Yours sincerely
Miss Poppy Baldwin
Case Administrator
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]AND
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Dear Mr **********,[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Thank you for your comments on the company’s defence. Please refer to the attached document.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]However, the company has filed an amended defence. A copy is attached [/FONT]
[FONT=&quot]for ease of reference. This amended defence has been forwarded to the appointed Adjudicator who has commented as follows:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]In the interests of justice I will accept the amended defence. This should be forwarded to the customer and 5 days allowed for comments.

Once all papers have been sent to CISAS I would like a copy of all papers submitted, including the original defence and the claimant’s original comments, a copy of which should be sent to the company for information only.
[FONT=&quot] [/FONT]
[FONT=&quot]We look forward to hearing from you by return.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Kind regards,[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Jean-Marie Sadio[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]CISAS [/FONT]

ulaggy

3 hours later and I'm still pretty much at square one. I'm awaiting a call back, at some point, from someone in Escalations (a manager I presume), which was the course of action settled on after my first round of phone calls.

The line manager of retentions pretty much gave me all that guff that I've previously posted. Don't think I'm going to be terribly successful over the phone - CISAS/small claims is probably going to be the way forward.

Talking of which, T-Mob need to get their !!!! in gear. I sent my CISAS stuff through on the same day as Delboy I think. Friday is deadline for T-Mob response.

Oh, I forgot to add earlier - One of the people I spoke to said the price rise was of a benefit to me because it's being used to improve infrastructure and their automated systems. Absolutely brilliant.

Savedotmoney

ulaggy wrote: »

3 hours later and I'm still pretty much at square one. I'm awaiting a call back, at some point, from someone in Escalations (a manager I presume), which was the course of action settled on after my first round of phone calls.

The line manager of retentions pretty much gave me all that guff that I've previously posted. Don't think I'm going to be terribly successful over the phone - CISAS/small claims is probably going to be the way forward.

Talking of which, T-Mob need to get their !!!! in gear. I sent my CISAS stuff through on the same day as Delboy I think. Friday is deadline for T-Mob response.

Oh, I forgot to add earlier - One of the people I spoke to said the price rise was of a benefit to me because it's being used to improve infrastructure and their automated systems. Absolutely brilliant.

I'm sorry the phone call didn't get you anywhere, it was worth a go definitely. Wish you the best of luck with your CISAS claim and onwards.