Mobile Phone Contract - Price Rise Refunds

ulaggy

glasgowm148 wrote: »

Hi,

My cousin got this letter back in the post (she emailed?) Not sure what's going on - are they just using post now to confuse people?

http://i.imgur.com/xyTkITf.png

What's the response to this? Is there anyway I can skip all this and go to CISAS before they notify me of CISAS?

Ta

Hi buddy,

I got the same letter a while back. If I remember right, you need to send the email in post#175 and CC in the Ofcom lady. When I did that, they sent me to CISAS.

Incidentally, to the other guy asking about having T-Mob defence from CISAS - I'm currently waiting for mine. They have until Friday 23rd (2 days away) to submit a defence.

I expect them to submit it on Friday, but what would happen if they didn't? I assume CISAS would take that as an insta-win for me?

Mikmonken

ulaggy wrote: »

Hi buddy,

I got the same letter a while back. If I remember right, you need to send the email in post#175 and CC in the Ofcom lady. When I did that, they sent me to CISAS.

Incidentally, to the other guy asking about having T-Mob defence from CISAS - I'm currently waiting for mine. They have until Friday 23rd (2 days away) to submit a defence.

I expect them to submit it on Friday, but what would happen if they didn't? I assume CISAS would take that as an insta-win for me?

Judging by RandomCurves earlier posts they can get a 3 day extension I think

RandomCurve

@Delboy9 - an updated response. It is the response to Paragraph 42 to 49 which is crucial - if you win on that then EVERYBODY wins!!!!!! - Keep us posted.




This defence clearly demonstrates EEs lack of care when dealing with this matter as it contains fundamental flaws – I will address these by Paragraph.

Despite the adjudicator giving EE a second chance to submit a defence that addresses the points raised in my cases I note that EE have still declined to comment on:

[*]If the EE new and T&C effective 26th March is subject to the clarified Ofcom definition of Material Detriment effective from 23rd January
[*]If a change in price above CPI represents a real terms increase – which is therefore of Material Detriment under GC 9.6 regardless of which Ofcom definition is used

• If Ofcom have only clarified the definition of Material Detriment and not the actual wording of GC 9.6 the definition applies to all contracts.

I also note that EE are still insisting that I am V58 of the contract. I have prepared my case and this response to the defence based on the fact that I must be on V59 as my initial contract was taken out after 30th October 2012. However should the adjudicator believe I am on V58 then I ask that the additional evidence I have included at the end of this response is taken into consideration as it adds a fundamental additional argument as to why this increase triggers my right to a penalty free cancellation which I would have used in my original case had I known that EEs record keeping was so poor that they cannot correctly identify which contract a customer is on – an error by EE for which I should not be penalised.

Paragraph 4-7 & 24 (contract term 2.11)
These paragraphs clearly state that I took out my contract on 24th April 2013, and confirm that was via EEs own telesales force, but EE then go on to say that I am on version V58 of the contract, this is simply not true. T-Mobile updated their terms and conditions on 30th October 2012 a full One Hundred and Seventy Six (176) days BEFORE I entered into my contract and I submit a copy of V59 of the contract which proves that I must be on V59. This is clear evidence of the lack of duty of care that EE has applied in its dealings with me and I cannot be held responsible for EEs inability to train its own staff to record the correct contract versions on its customer database. Also the contact states that I am able to rely on the contract as published on EEs website (clause 2.11) which is what I have done, even if EE seem unable to do the same!

Paragraph 8
EE openly admit that they changed the T&Cs applicable to my account effective 26th March 2014. This clearly supports my claim that as the change in T&Cs occurred AFTER Ofcom clarified the definition of Material Detriment from 23rd January 2014 then the new price rise term must be subject to that clarification. I note that EE have declined to dispute (or even address) this point.

Paragraph 9
This –again – is factually incorrect. Whilst it is fact that EE took the decision to change its T&Cs after 23rd January that has made one of the arguments of this claim possible, the actual dispute arises from EE not abiding by GC 9.6 and granting a penalty free cancellation when they notified me of a price increase rise in April 2014, which I consider to likely to be of Material Detriment to me under GC 9.6.

Paragraphs 14 to 31.6
These seem largely irrelevant to the claim I have made.

Paragraph 31.7
EE have provided the evidence that supports my claim - that an increase of RPI is indeed considerably higher than CPI (although the only relevant RPI/CPI comparison are the February 2014 rates which are CPI 1.7% and RPI 2.7% which is 58.8% higher than CPI ((2.7-1.7)=1/1.7=58.8%)). I note that EE do not contest that the difference between CPI and RPI is a REAL TERMS increase, and therefore even under the old Ofcom definition of Material detriment (not to my benefit or not neutral) the increase is of Material Detriment under the Ofcom definition (a REAL TERMS increase cannot be neutral).

Paragraphs 32-34.4
As per my CISAS claim:

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

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

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

EE are clearly pleading that this matter is complex.


Paragraph 34.3
EE appear to be indicating that as Material Detriment is not “defined explicitly in the Agreement” that this makes the matter complicated; on the contrary this makes things very simple - in such circumstance where a standard form contract has been drawn up then under the UTCCRs the definition most favourable to the consumer should be used, EE cannot rely on their bad drafting of the contract to defend their position and I request that as EE have admitted ambiguity then the adjudicator should find that the interpretation most favourable to me should be implied which (according to Ofcom) is that ANY price rise in core subscription prices is likely to be of material detriment.

Paragraph 36
This is further evidence of EEs lack of duty of care to me. My dislike of EEs response has nothing to do with the fact they did not contain what I wanted to hear, my displeasure stems from the fact that they have refused to respond fully to the points I have raised even when my emails clearly stated that a response that did not address the points raised would not be considered an acceptable response. Further my claim for compensation is clearly articulated in my claim. I also note that EE refer to a sum of £100, and whilst this may be higher than my original request given the response received from EE to my claim I request that the adjudicator considers if this is a more suitable sum.
Response to revised defence:

Paragraph 42
I will deal with this at the end of my response.

Paragraph 42 to 49
EE appear to be arguing that the contract allows the use of RPI, however my case is in regards to GC 9.6 (Which over rules my contract with EE as EE are required to comply with Ofcom General Conditions of Entitlement). An RPI increase is of Material Detriment under the old Ofcom definition of GC 9.6 (“Not to the consumers benefit or not neutral to the consumer” – i.e. Material Detriment = detriment) as it is a REAL TERMS increase as RPI(J) and CPI are the only official measures of UK inflation as per my case to CISAS.
Additionally as EE have changed the T&Cs effective 26th March 2014 which EE are at pains to point out in Paragraph 42 …“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.” This is clear evidence that if my contract is subject to NEW T&Cs applicable from 26th March 2014 (as EE admit), then those T&Cs MUST be subject to Ofcom regulations that were in force at the time the T&Cs were changed. As of 23rd January 2014 the new Ofcom definition of Material Detriment under GC 9.6 must apply to my contract – that new definition is that ANY increase in core subscription price is “likely to be of Material detriment”, and therefore triggers my right to a penalty free cancellation. In other words how can I be held to new T&Cs effective after my contract was originally agreed without at the same time the contract being subject to the Ofcom rules in force at the time EE made the change?

Paragraph 44 and 49
EE seem unable to interpret their own contract as they claim that the contract “REQUIRES” EE to use RPI under clause 7.2.2.3. This is obviously factually incorrect; the reference to RPI is simply a figure that EE must not exceed, which is entirely different to being a figure EE is “required” to use. However even if it was construed that EE were required to use RPI that is under their own contract and if EE have put a clause in their own contract that REQUIRES them to breach GC 9.6 (by applying a REAL TERMS increase which cannot be to my benefit nor neutral to me (as it is a real terms increase), then that is for EE to consider.
EE repeat a similar misunderstanding at Paragraph 49 where they claim that using any other measure than RPI (be it higher or lower than RPI) would not be in accordance with the terms of the agreement, and that RPI MUST be used.

Paragraph 50
I have already clearly explained in my case to CISAS (and in my emails to EE) that this case has nothing to do with EEs business decision to increases process, it is to do with EE breaching GC 9.6 and not allowing me the penalty free termination which GC 9.6 allows.

Paragraphs 51 and 52
I requested that the contact is terminated penalty free – the financial sum is purely an estimate of the remainder of my contract as I have no idea how long this process takes.

Paragraph 54
This has been addressed in my response to Paragraph 36

Paragraph 57
Under the old definition I have provided evidence in my CISAS case that the official UK measures of inflation are lower than RPI and therefore the use of RPI is a REAL TERM increase as RPI only “continues to be published for long-term indexation, and index-linked gilts” (ONS) – an annual price rise has nothing to do with either of these topics..
Further my contract – by virtue of EE applying new T&Cs from 26h March falls under the new definition of Material Detriment as aforementioned.

The above concludes my response if I am version 59 of the contract.

Paragraph 42 – V58 of the contract
EE have argued that I am on version 58 of the contract – and if that is so then I would ask that the adjudicator (in ADDITION to the above) considers the following:

The price rise applied to v58 T-Mobile contracts is of Material Detriment under GC 9.6. In March 2013 T-Mobile were most forceful (see legal representation from EE legal* office 3rd July 2013) insisting that the Annual RPI applied to my account of 3.3% related to the March 2013 RPI published in April 2013, whereas now EE are applying the February 2014 ANNUAL RPI rate to the same contract. Effectively EE are applying a 12 month inflation rate to an 11 month period, or put another way, EE are increasing my contract price more regularly than once a year. As the contract refers to the right to increase prices by the ANNUAL inflation rate, it is implied that the rate applied must reference a 12 month (ANNUAL) period between the RPI rates applied. To apply an ANNUAL RPI increase to my account EE would have to reference the March 2014 RPI figure which was 2.5% and not 2.7%. Therefore EE have applied a rate in excess of that allowed under the contract. It follows that as EE have applied a rate in excess of the correct annual RPI (regardless of materiality) then I should be entitled to a penalty free cancellation as per the terms of our contract.

*T-Mobile Defence to a CISAS case regarding the Annual RPI rate applied to my contract:

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME

REFERENCE: 212132298
BETWEEN
MR XXXXXXXX Claimant
and
EVERYTHING EVERYWHERE LIMITED
trading as T-Mobile Respondent
…………

19 As the Written Notice was issued in the month of April 2013 then the relevant month’s RPI figure for the purposes of Clause 7.2.3.3 of the Agreement is the RPI figure as published by the Office of National Statistics (“ONS”) representing March 2013; being the month before the month in which the Written Notice was issued. The March RPI figure, published by the ONS Statistics was 3.3%. By way of the Monthly Statistical Bulletin (“the Bulletin”) published by the ONS the following is stated:-

The RPI 12-month rate for March [2013] stood at 3.3%

The Bulletin is a lengthy document so has not annexed to this Defence but can be made available to CISAS upon request. …………

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 03 July 2013

Rue Kandi
Legal Executive
For and on behalf of the Respondent whose address for service is at:
Everything Everywhere Limited
Hatfield Business Park
Hatfield
Hertfordshire
AL10 9BW.

delboy9

Thank you very much Random Curve. I will send now and as always I will copy and paste a reply as soon as I get one.

ulaggy

I've not had any email from CISAS saying they are giving an extension to T-Mobile. Ridiculous that they can give them extensions though. We get 5 days to respond, T-Mobile get 10!

Mikmonken

what was the date the CISAS said you could expect a reply from them by? if it's well over that then phone them up.

I'd probably wait till they've exhausted possible extensions before i called though as that gives them less of an opportunity to cobble a response together if CISAS chase them.

ulaggy

Mikmonken wrote: »

what was the date the CISAS said you could expect a reply from them by? if it's well over that then phone them up.

I'd probably wait till they've exhausted possible extensions before i called though as that gives them less of an opportunity to cobble a response together if CISAS chase them.

Tomorrow is deadline day according to my CISAS email (received 9th May).

Mikmonken

ulaggy wrote: »

Tomorrow is deadline day according to my CISAS email (received 9th May).

well wait and see what tomorrow brings then....

this is what was on the CISAS website http://www.cisas.org.uk/CISASRules-12_e.html

c) Once the claim has been received by the company it has 10 working days in which to either:

Agree a settlement with the customer, should the parties wish to do so (this period cannot be extended); or
Send CISAS their response. (In exceptional circumstances, the company can ask CISAS to extend the deadline for giving their response by a further week)

ulaggy

Mikmonken wrote: »

well wait and see what tomorrow brings then....

this is what was on the CISAS website http://www.cisas.org.uk/CISASRules-12_e.html

c) Once the claim has been received by the company it has 10 working days in which to either:

Agree a settlement with the customer, should the parties wish to do so (this period cannot be extended); or
Send CISAS their response. (In exceptional circumstances, the company can ask CISAS to extend the deadline for giving their response by a further week)

It's bad form if they are going to ask for an extension right at the end of initial period! But this is EE/T-Mobile so I expect it. Wonder why they responded to one case (Delboy) so quickly but not anyone else.

Mikmonken

they may not ask for an extension as they're not out of time yet.

If i was in there shoes and saw a whole load of the same claims coming through, i'd wait to see the outcome of the first case and whether my defence holds up before i submit the next one, that way if you need to change tactics you can buy more time.

theres no point them bulk submitting a losing defence over and over again