Mobile Phone Contract - Price Rise Refunds

sunshinerise111

RandomCurve wrote: »

As previously mentioned not only am I trying to help as many people as possible escape their contracts I am also trying to pressure Ofcom into taking action. Can I ask that everyone following this forum (either actively or viewing from the side lines) sends the following email to:


[TEXT DELETED BY FORUM TEAM]


It will make a difference - thanks




Dear Ofcom,


Please log this email on your complaints monitoring systems which is in regards to EE (and its Brands) - and Ofcom.


Complaint 1
In February this year EE updated its T&Cs without fully informing customers of their potential right to a penalty free cancellation should they consider the change to be of Material Detriment, which is in breach of GC 9.6. I understand that Ofcom shared the view of EE that the change was not likely to be of Material Detriment. The independent adjunction scheme CISAS set up by Ofcom has been ruling against EEs view (and hence Ofcoms view) that the change was not of Material Detriment (in the vast majority of cases 91% of cases - excluding T-Mobile v58 contracts) and has gone as far as to include in its findings the following statements:


[TEXT DELETED BY FORUM TEAM] adjudicator:
i. Having carefully considered” the submissions and evidence provided by both parties I am satisfied that the new clause both ensures that price increases are imposed at a higher rate and restricts the means by which the customer can question any price increase imposed by the company.
j. I consider that this is a material change in favour of the company and therefore a change which causes material detriment to the customer. The change will directly affect the customer’s bills as well as limiting his right to cancellation as he will have fewer measures upon which to compare the price increase. The detriment is therefore both qualitative and quantitative.”


[TEXT DELETED BY FORUM TEAM] LL.B (Hons). Adjudicator:
I am persuaded that in clarifying the clause in question, the company has effectively removed the right of the customer to terminate the contract in any circumstance other than as a result of the price increase exceeding the RPI. I find, therefore, that the amendment to the clause can be said to operate to the customer’s detriment.
l. The company has argued that while it may be possible to argue that there is a detriment to the customer, such a detriment is marginal rather than ‘material’. The company submits that had the CPI been used as a measure of inflation the difference between the RPI rate and that of the CPI over the course of the contract would not be sufficient to be ‘material’.


m. The customer’s response to this point is that it is not the prerogative of the company to determine what is meant by the word ‘material’. The phrase ‘material detriment’ has been used by the company in its standard form contract. The phrase is ambiguous and unclear, and has not been defined by the company. The customer submits that, in these circumstances, the Unfair Terms in Consumer Contracts Regulations (UTCCR) Group 19 Regulation 7 provide that where in a standard contract there is any doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail.
n. Further, in his comments on the company’s defence, while disputing the relevance of the company’s point, the customer has provided an analysis of recent RPI and CPI figures.
The evidence shows that when a comparison is made of the two measures of inflation, the difference cannot be said to be insignificant.
o. I am satisfied that the customer has proved, on a balance of probabilities that the amendment made by the company is likely to be of material detriment to him. I find, therefore, that according to General Condition 9.6 the company should have accepted the customer’s notice to terminate the contract without penalty. I find that, in failing to permit the customer to terminate the contract in line with its obligations under General Condition 9.6, the company has failed in its duty of care.


[TEXT DELETED BY FORUM TEAM] – Adjudicator:
Having carefully considered the parties’ submissions and all the evidence provided to support these submissions. I find that the effect of the change is to restrict a customer’s right to terminate their contract without penalty in the event of a price increase by the company, in essence making it easier for the company to enforce any future price increases it imposes. Bearing in mind my findings discussed above, that the original clause was not enforceable against the customer, I find that the new clause is in and of itself such a material change in favour of the company, that it would be of material detriment to the customer.




Complaint 2


Ofcoms’ original assessment of EEs behaviour above is reminiscent of Ofcoms comments in May 2013 when T-Mobile applied an incorrect RPI rate to its contracts yet Ofcom announced “that they [EE] had acted reasonably”, after examining T-Mobile contracts, yet in 95% of cases CISAS ruled that EE had not acted reasonably (and hence Ofcoms assessment of the situation was incorrect) and had used an incorrect RPI rate.





Complaint 3


Ofcom is a designated enforcer of the UTCCRs yet last year Ofcom confirmed that in Ofcoms opinion T-Mobiles v59 contracts were compliant with UTCCRs regulations, when asked to review these. In the recent cases concerning the change of T&Cs EEs own legal department acknowledge the failings that those clause have under the UTCCRs


Dated the 23rd April 2014 -[TEXT DELETED BY FORUM TEAM] Legal Assistant - For and on behalf of the Respondent EE Limited Legal Department


“20. It was considered that the term was insufficiently clear in two respects in that it allowed the Respondent to select both the measure of inflation to be used and to select any measure of inflation within a reasonable period prior to the notification of the price increase.


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.


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.”


As a consumer who relies upon the protection of Ofcom I am seriously concerned at Ofcoms apparent lack of understanding of how EEs behaviour has transgressed both the Ofcom regulations (GC 9.6) and the UTCCRs. This has happened three times in the past 12 months which indicates that either Ofcoms procedures are not being applied correctly/are deficient, or that Ofcom lacks the impartiality/legal competence to discharge its statutory consumer protection obligations.


I would appreciate a detailed response as to how Ofcom scrutinises the actions of CPs, and what quality controls are in place to review outcomes of that scrutiny as it appears Ofcom have made no improvements in processes since May 2013 with EE continuing to flout regulations and Ofcom continuing to misunderstand consumers rights and its own regulations. Can you include details of the factors taken into account by Ofcom in each of the three cases highlighted above that led Ofcom to the incorrect conclusions:
Why Ofcom considered a change from CPI to RPI to not be of Material detriment when the average difference over the last 24 months has been 18%?
Why a price variation clause which is clearly ambiguous (as the drafter of the contract clearly agrees) was considered to be compliant with the UTCCRs? . And
How Ofcom were unable to understand that T-Mobile had applied an incorrect RPI rate in March 2013?


Can you also give me some indication of the enforcement action Ofcom intends to take against EE to protect the consumer now that Ofcoms initial assessment of the situations above has been proved wrong by an independent telecommunications adjudication service? (I.e. EE to reverse and repay sums taken under the 2012 and 2013 price increases imposed under unfair contract terms, EE to inform customers of their right to a penalty free cancellation due to the change in T&Cs).


I look forward to receiving your response, but should you require further information please email [EMAIL="info@fightmobileincreass.com"]info@fightmobileincreass.com[/EMAIL]



Regards








X

A supporter of “FightMobileIncreases” – a pressure group dedicated to assisting consumers use the protection of the UTCCRs and GC 9.6, and to monitor and highlight Ofcoms actions (inaction) in relation to the Mobile Phone Market.

RC,

ACTIONED BUT ....

This is an automated response from BBC Information.

We are sorry, but our email system can only receive your email if it is submitted using our pre-formatted webforms. We realise this is an inconvenience, but webforms allow us to manage the many emails we receive each day more efficiently and this makes best use of the Licence Fee.

sunshinerise111

See post 455, good luck !

sunshinerise111

03029174 wrote: »

Hi Everyone, i've had my reply from EE telling m to go to CISAS. Which is the current best post to use for submitting the CISAS info?

See post 455, good luck !

muse213

Hey everyone, just wondering what I should post as my defence to ee, probably had the same reply as Ulaggy did!

Thanks

Preeble

Been following this for a little while, currently in the process of replying to EE's defence, and wanted to join to express my thanks to randomcurve for all the work he's putting into this :beer:
And to bring up something thats been overlooked, the hyperlink removed from EE's defence by the forum, on my defence atleast, is a link to the ons.gov.uk website, specificly to the page for the CPI for feb 2014 and not RPI. Although in my defence that is the only metion of CPI, they've only defended that they must use RPI to increase prices.

Shaunyboy

RandomCurve wrote: »

As previously mentioned not only am I trying to help as many people as possible escape their contracts I am also trying to pressure Ofcom into taking action. Can I ask that everyone following this forum (either actively or viewing from the side lines) sends the following email to:


[TEXT DELETED BY FORUM TEAM]

It will make a difference - thanks




Dear Ofcom,


Please log this email on your complaints monitoring systems which is in regards to EE (and its Brands) - and Ofcom.


Complaint 1
In February this year EE updated its T&Cs without fully informing customers of their potential right to a penalty free cancellation should they consider the change to be of Material Detriment, which is in breach of GC 9.6. I understand that Ofcom shared the view of EE that the change was not likely to be of Material Detriment. The independent adjunction scheme CISAS set up by Ofcom has been ruling against EEs view (and hence Ofcoms view) that the change was not of Material Detriment (in the vast majority of cases 91% of cases - excluding T-Mobile v58 contracts) and has gone as far as to include in its findings the following statements:


[TEXT DELETED BY FORUM TEAM] adjudicator:
i. Having carefully considered” the submissions and evidence provided by both parties I am satisfied that the new clause both ensures that price increases are imposed at a higher rate and restricts the means by which the customer can question any price increase imposed by the company.
j. I consider that this is a material change in favour of the company and therefore a change which causes material detriment to the customer. The change will directly affect the customer’s bills as well as limiting his right to cancellation as he will have fewer measures upon which to compare the price increase. The detriment is therefore both qualitative and quantitative.”


[TEXT DELETED BY FORUM TEAM] LL.B (Hons). Adjudicator:
I am persuaded that in clarifying the clause in question, the company has effectively removed the right of the customer to terminate the contract in any circumstance other than as a result of the price increase exceeding the RPI. I find, therefore, that the amendment to the clause can be said to operate to the customer’s detriment.
l. The company has argued that while it may be possible to argue that there is a detriment to the customer, such a detriment is marginal rather than ‘material’. The company submits that had the CPI been used as a measure of inflation the difference between the RPI rate and that of the CPI over the course of the contract would not be sufficient to be ‘material’.


m. The customer’s response to this point is that it is not the prerogative of the company to determine what is meant by the word ‘material’. The phrase ‘material detriment’ has been used by the company in its standard form contract. The phrase is ambiguous and unclear, and has not been defined by the company. The customer submits that, in these circumstances, the Unfair Terms in Consumer Contracts Regulations (UTCCR) Group 19 Regulation 7 provide that where in a standard contract there is any doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail.
n. Further, in his comments on the company’s defence, while disputing the relevance of the company’s point, the customer has provided an analysis of recent RPI and CPI figures.
The evidence shows that when a comparison is made of the two measures of inflation, the difference cannot be said to be insignificant.
o. I am satisfied that the customer has proved, on a balance of probabilities that the amendment made by the company is likely to be of material detriment to him. I find, therefore, that according to General Condition 9.6 the company should have accepted the customer’s notice to terminate the contract without penalty. I find that, in failing to permit the customer to terminate the contract in line with its obligations under General Condition 9.6, the company has failed in its duty of care.


[TEXT DELETED BY FORUM TEAM] – Adjudicator:
Having carefully considered the parties’ submissions and all the evidence provided to support these submissions. I find that the effect of the change is to restrict a customer’s right to terminate their contract without penalty in the event of a price increase by the company, in essence making it easier for the company to enforce any future price increases it imposes. Bearing in mind my findings discussed above, that the original clause was not enforceable against the customer, I find that the new clause is in and of itself such a material change in favour of the company, that it would be of material detriment to the customer.




Complaint 2


Ofcoms’ original assessment of EEs behaviour above is reminiscent of Ofcoms comments in May 2013 when T-Mobile applied an incorrect RPI rate to its contracts yet Ofcom announced “that they [EE] had acted reasonably”, after examining T-Mobile contracts, yet in 95% of cases CISAS ruled that EE had not acted reasonably (and hence Ofcoms assessment of the situation was incorrect) and had used an incorrect RPI rate.





Complaint 3


Ofcom is a designated enforcer of the UTCCRs yet last year Ofcom confirmed that in Ofcoms opinion T-Mobiles v59 contracts were compliant with UTCCRs regulations, when asked to review these. In the recent cases concerning the change of T&Cs EEs own legal department acknowledge the failings that those clause have under the UTCCRs


Dated the 23rd April 2014 -[TEXT DELETED BY FORUM TEAM] Legal Assistant - For and on behalf of the Respondent EE Limited Legal Department


“20. It was considered that the term was insufficiently clear in two respects in that it allowed the Respondent to select both the measure of inflation to be used and to select any measure of inflation within a reasonable period prior to the notification of the price increase.


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.


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.”


As a consumer who relies upon the protection of Ofcom I am seriously concerned at Ofcoms apparent lack of understanding of how EEs behaviour has transgressed both the Ofcom regulations (GC 9.6) and the UTCCRs. This has happened three times in the past 12 months which indicates that either Ofcoms procedures are not being applied correctly/are deficient, or that Ofcom lacks the impartiality/legal competence to discharge its statutory consumer protection obligations.


I would appreciate a detailed response as to how Ofcom scrutinises the actions of CPs, and what quality controls are in place to review outcomes of that scrutiny as it appears Ofcom have made no improvements in processes since May 2013 with EE continuing to flout regulations and Ofcom continuing to misunderstand consumers rights and its own regulations. Can you include details of the factors taken into account by Ofcom in each of the three cases highlighted above that led Ofcom to the incorrect conclusions:
Why Ofcom considered a change from CPI to RPI to not be of Material detriment when the average difference over the last 24 months has been 18%?
Why a price variation clause which is clearly ambiguous (as the drafter of the contract clearly agrees) was considered to be compliant with the UTCCRs? . And
How Ofcom were unable to understand that T-Mobile had applied an incorrect RPI rate in March 2013?


Can you also give me some indication of the enforcement action Ofcom intends to take against EE to protect the consumer now that Ofcoms initial assessment of the situations above has been proved wrong by an independent telecommunications adjudication service? (I.e. EE to reverse and repay sums taken under the 2012 and 2013 price increases imposed under unfair contract terms, EE to inform customers of their right to a penalty free cancellation due to the change in T&Cs).


I look forward to receiving your response, but should you require further information please email [EMAIL="info@fightmobileincreass.com"]info@fightmobileincreass.com[/EMAIL]



Regards








X

A supporter of “FightMobileIncreases” – a pressure group dedicated to assisting consumers use the protection of the UTCCRs and GC 9.6, and to monitor and highlight Ofcoms actions (inaction) in relation to the Mobile Phone Market.

I think your last e-mail address is wrong!
Complaint gone in to Ofcom.

boatman

RandomCurve, any thoughts on the new Vodafone price increases, as I see it, they are saying as per their t&c's if your monthly bill increases by 10% or more you can leave, do you think this is a fair term of the contract?

https://forums.moneysavingexpert.com/discussion/4977498
http://www.vodafone.co.uk/campaigns/price-changes/pricechangesjuly14/pricingchanges1/index.htm?cid=vnty-vod-auto/azjujthumnthqs1

seaviewing

Voda base it on the previous 3 months being 10% increase mind

ulaggy

boatman wrote: »

RandomCurve, any thoughts on the new Vodafone price increases, as I see it, they are saying as per their t&c's if your monthly bill increases by 10% or more you can leave, do you think this is a fair term of the contract?

https://forums.moneysavingexpert.com/discussion/4977498
http://www.vodafone.co.uk/campaigns/price-changes/pricechangesjuly14/pricingchanges1/index.htm?cid=vnty-vod-auto/azjujthumnthqs1

Looks like Vodaphone took more care than T-Mobile did in drafting their contracts. They've actually attempted to clarify what their definition of Material Detriment is. Whilst not exactly the same as Ofcom's definition, I imagine it'd stand up a lot better in court.

muse213

Ulaggy, would it be okay if I use your defence as they have kinda said the same thing to you as they have to me?