Mobile Phone Contract - Price Rise Refunds

ulaggy

muse213 wrote: »

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?

I'd wait until RandomCurve just doublechecks it, but otherwise yeah go for it

corsaman2002

I have just posted my response to EE

All the paragraphs had different number to the numbers so it took some time to work though but it has been sent off now.

Will wait and see.

Thanks RC

RandomCurve

muse213 wrote: »

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?

Yes that should be fine there are a few scenarios happening here though so be careful.


1 - Most will be in this situation post
You are not on a T-Mobile pre 30th October 2012 contract and the price increase is not higher than 2.7% - Use the standard defence post #576
2 - This will probably be the next most common scenario:
As above on (1), but EE claim you are on V58 of the contract use post #576, but add in post #581
3 - No defence received for this yet so no response written
You are on a T-Mobile Pre 30th October 2012 contract
4 - No defence received for this yet so no response written
Your increase is higher than 2.7%

RandomCurve

The defence document and a copy of T-Mobile contract V59 are now on the FightMobileIncreases.com website.
http://www.fightmobileincreases.com/fight-ee/fight-the-march-2014-price-rise/


So is the email to send to Ofcom
http://www.fightmobileincreases.com/pressure-ofcom/


Cheers - RC

RandomCurve

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

Voda have applied the increase to out of bundle costs so the rules are different. Under GC 9.6 you won't stand a chance, but under the UTCCRs you may be able to have the price rise cancelled (not the contract) as the increases are not linked to a relevant inflation rate


OFT (UTCCRs) regulations:


Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:

(l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded.


Guidance:
12.1 The OFT's objections to variation clauses generally are set out under Group 10. If a contract is to be considered balanced, each party should be sure of getting what they were promised in exchange for providing the 'consideration' they agreed to provide. A clause allowing the supplier to increase the price – varying the most important of all of the consumer's contractual obligations – has clear potential for unfairness.
12.2 Any purely discretionary right to set or vary a price after the consumer has become bound to pay is obviously objectionable. That applies particularly to terms allowing the supplier to charge a price on delivery of goods that is not what was quoted to the consumer when the order was placed. It also applies to rights to increase payments under continuing contracts where consumers are 'captive' – that is, they have no penalty-free right to cancel.
12.3 A price variation clause is not necessarily fair just because is not discretionary – for example, a right to increase prices to cover increased costs experienced by the supplier. Suppliers are much better able to anticipate and control changes in their own costs than consumers can possibly be. In any case, such a clause is particularly open to abuse, because consumers can have no reasonable certainty that the increases imposed on them actually match net cost increases.29
12.4 A degree of flexibility in pricing may be achieved fairly in the following ways.30
• Where the level and timing of any price increases are specified (within narrow limits if not precisely) they effectively form part of the agreed price. As such they are acceptable, provided the details are clearly and adequately drawn to the consumer's attention.
• Terms which permit increases linked to a relevant published price index such as the RPI are likely to be acceptable, as paragraph 2 of Schedule 2 to the Regulations indicates, subject to the same proviso.
• Any kind of variation clause may in principle be fair if consumers are free to escape its effects by ending the contract. To be genuinely free to cancel, they must not be left worse off for having entered the contract, whether by experiencing financial loss (for example, forfeiture of a prepayment) or serious inconvenience, or any other adverse consequences.31

muse213

Im going to be using the response to defence v2 (if you are NOT on T-Mobile Pre 30thOctober 2012 Contract) from the fight the march price increase website, i took the contract out pre 30th october 2012 with orange though so it will be interesting what they say!

duk3nuk3m

CISAS told me that EE's deadline to respond to my case is tomorrow (27th May), but I am still yet to receive anything. Has anyone else with a similar deadline had a response from EE yet?

Also, if I upgraded my contract in January, which contract would I expect to be on?

Mikmonken

Yep I have, the letter says on or before the 27th, there's no reason for EE to rush it through, they gain nothing by submitting early. Expect it tomorrow unless we get lucky.

skuk21

Hi RC, Regarding the defence EE have submitted below, I will be sending off the defence below. Is this OK please?

I will in the main address EEs defence by reference to the paragraph numbers, but request that adjudicator refers to my CISAS claim. I would also like the adjudicator to note that EE appear to have declined to address the points raised in my cases in that they have not explained:


Why a new and T&C effective 26th March should not be subject to the clarified Ofcom definition of Material Detriment effective from 23rd January
Why a price rise above CPI is not a real terms increase – which is therefore of Material Detriment under GC 9.6 regardless of which Ofcom definition is used
How an Ofcom clarification of the definition of Material Detriment when the actual wording of GC 9.6 has not changed should not apply to our contract.
Paragraph 1
I have already clearly explained in my case to CISAS that this case has nothing to do with EEs business decision to increases prices, it is to do with EE breaching of GC 9.6 and not allowing me the penalty free termination which GC 9.6 allows. Further evidence of EE trying to frustrate my claim.

Paragraph 5, 30 to 33
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.”


As EE are clearly pleading that this is a complex issue of law I request that the adjudicator considers my request for additional compensation, and views EEs defence in this respect to be nothing more than a further attempt to frustrate my claim.




Paragraph 12
This is clear evidence and agreement from EE that my contract is subject to NEW T&Cs applicable from 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. If I am to be held to T&C amendments from the date of the amendment by EE, then EE must also be held to amendments to Ofcom Regulations when they make changes to T&Cs covered by that amendment. Therefore under the clarified definition of GC 9.6 ANY change to core subscription price will be considered likely to be of Material Determent and trigger my right to a penalty free cancellation.


Paragraphs 16 to 23
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.


Paragraph 18
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, and demonstrates the lack of care EE have displayed since I first contacted them on this matter. 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 lack of care at Paragraph 23 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, again this is (for increases lower than RPI) factually incorrect.


Paragraph 37
This is my evidence of EEs lack of duty of care to me. I do not “dislike” EEs response because “it did not contain what I wanted to hear”. I dislike the stress and inconvenience suffered when EE reply without responding 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 £75, 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 in light of my comments to EEs defence at Paragraphs 1, 5, 30-33, 12, 16, 23, 18 and 37.


Paragraph 24
If the price variation clause is unenforceable under the UTCCRS then I am able to request (and legally enforce) that the price is not increased, however my claim has nothing to do with UTCCRS nor mis-selling and I am at a loss to understand why EE would bring this into the defence other than to try and further complicate the issue.


Paragraph 26
I have provided “strict proof thererof” in my CISAS claim by clearly demonstrating that an increase of RPI is a real terms increase and under the old Ofcom Definition of Material Detriment a real terms increase cannot be neutral and therefore by Ofcom's definition is likely to be of Material Detriment to me (notwithstanding the fact that since EE changed my T&Cs in March 2014 our contract is subject to the revised Ofcom definition). This is yet further evidence of EEs lack of care as rather than addressing if an increase above CPI is a real terms increase they have chosen to ignore what I have submitted in my claim and make it sound as if I have not submitted evidence.

skuk21 wrote: »

EE have submitted their defence - any advice is now greatly appreciated.

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME

REFERENCE: xx

BETWEEN


xx
Claimant


and


EE LIMITED


Respondent

DEFENCE

1. The Respondent submits that the issue at the heart of the Claimant’s Claim relates to a business decision taken by the Respondent to increase its prices.
2. Rule 2(g) 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. 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(g) and therefore is a matter which is not within the jurisdiction of the Scheme.
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(g) and therefore is a matter which is not within the jurisdiction of the Scheme
5. 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.
6. The remainder of this Defence is pleaded without prejudice to the above.
RESPONDENT’S DEFENCE
7. The Respondent denies that it is liable to the Claimant as pleaded or at all.
8. 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.
9. 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.
10. The Claimant has two separate accounts with three individual mobile numbers with the Respondent on the EE network. This includes:-
(i) account number xxxxx with mobile number xxxxx (“the First Mobile Number”) and xxxxxxx (“the Second Mobile Number”); and
(ii) account number xxxxxxx with mobile number xxxxxx (“the Third Mobile Number”)

11. Upon entering into the Service Agreement (“the Agreement”) in respect to the Mobile Numbers 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.

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 termination 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 Numbers on the Claimant’s accounts.
14. The Respondent confirms that prior to the 26 March 2014 the Agreement between the parties was subject to the terms and conditions CVN01A. 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 CVN01B.

15. Save that the Respondent denies that the change in terms effective 26 March 2014 gave the Claimant the right to terminate his Agreement without charge the Respondent submits that in any event the Claimant was required to give notice to terminate prior to the increase in charges taking effect on 26 March 2014. The Respondent submits that the Claimant failed to give notice to terminate the Agreement prior to 26 March 2014 and therefore is bound by the terms of the Agreement effective 26 March 2014.
16. At Schedule 1 attached hereto is a copy of the terms and conditions being Conditions Version Number 01B (CVN01B) 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;-
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.
17. 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.
18. 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.
19. 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%
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 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.
22. 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.
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 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.
25. 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.
26. Further or alternatively, the material detriment issue constitutes a complicated issue of law for the purpose of Rule 2(j) of the Scheme.
27. The Material Detriment Issue does not relate to any of the matters set out in Rule 2a.
Bills: It does not relate to any bill issued by the Respondent to the Claimant.
Customer Service: It does not relate to the quality of customer service provided by the Respondent to the Claimant.
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.
28. 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.
29. 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 GC 9.6 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.
30. 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.
31. For the reasons stated above the Respondent denies that the Claimant as at all entitled, whether contractually or otherwise, to terminate his Agreement without charge, either for the reasons as indicated within his application or any other such reason. Therefore, the Respondent submits that the Claimant is subject to the standard contractual termination clauses as per the applicable terms and conditions.
32. 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.
33. 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 £411.84 for the First Mobile Number, £446.16 for the Second Mobile Number and £288.00 for the Third Mobile Number(reducing on a daily basis) should he terminate the Mobile Numbers within the minimum term period.
34. 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.
35. 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.
36. 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 £75.00.
37. 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 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.
38. 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

(Text removed by MSE Forum Team)

Savedotmoney

Today is the last day you can send your email to EE to challenge your price increase! Get it done!

I have just updated the website with a new layout and tidied the templates up as well. We have added new forums to the website so you can discuss your claim as well.

http://fightmobileincreases.com

Follow the steps, share it with your friends and family!