Mobile Phone Contract - Price Rise Refunds

Mick_Cranes_Sidestep

delboy9 wrote: »

SUCCESS!!!!!!!!!!!!!! Thank you RandomCurve I have just had the decision sent to me by email from CISAS stating that WE WIN!!!

In short it says:

1. The claim succeeds in part.

2. I direct that the company should: provide the customer with an apology; provide the customer with his PAC; cancel the customer’s contract without penalty, backdating such cancellation to ***** 2014, thereby waiving any charges incurred after this date and; pay the customer compensation in the sum of £100.00

RandomCurve would you like the whole of the letter copy and pasted on here for the benefit and help of others?.............

Justine Mensa-Bonsu was my Adjudicator

What happens next?

Thanks again

I have the same adjudicator appointed on Wednesday! Be interesting how mine goes as I am on T Mobile CVN 58.

davalo

Hi,

Firstly many thanks for all the help from everyone.

I have recieved ny response from CISAS today, but it seems a lot shorter than the ones previously shown on the forum. I have pasted it below any help would be greatly appreciated

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME

REFERENCE: xxxxxxxxxxx

BETWEEN


xxxxxxxxxx
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 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. Rule 2(j) of the Rules provides that the dispute must not involve a complicated issue of law.
4. The Respondent submits that the cause of action pleaded by the Claimant is neither directly related to bills or communication services and therefore represents a dispute which falls outside the remit of Rule 2(g) and therefore is a matter which is not within the jurisdiction of the Scheme
5. Further the dispute, as pleaded, necessitates the consideration of the legal interpretation of clauses contained within the service agreement entered into between the Claimant and Respondent, applied as against facts, to ascertain whether a legal right of termination exists. The Respondent submits that such issues of legal interpretation and consideration requires evaluation and application of areas of law concerning contractual interpretation which are by their very nature complex and complicated.
6. Therefore, the Respondent respectfully submits that the Claimant’s claim as pleaded cannot be dealt with under the Scheme and that pursuant to the Rules an adjudicator is not therefore able to consider the Claimant’s claim.
7. The remainder of this Defence is pleaded without prejudice to the above.
RESPONDENT’S DEFENCE
8. The Respondent denies that it is liable to the Claimant as pleaded or at all.
9. The Respondent is a mobile telecommunications network operator that enters into service agreements with its customers to enable its customers to access the services. The Claimant is one such customer of the Respondent.
10. Access to the Respondent’s network is granted to the customer by way of the issuance to the customer of SIM card which is issued subject to the Respondent’s then applicable conditions for telephone service.
11. The Claimant has been a customer with the Respondent since 12 March 2013 in respect to account number xxxxxxx. The Claimant has two mobile numbers being xxxxxxxx (“the First Mobile Number”) and xxxxxxx (“the Second Mobile Number”).

12. The Respondent confirms that prior to the 26 March 2014 the Agreement between the parties was subject to the terms and conditions CVN59. 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 CVN59A.

13. At Schedule 1 attached hereto is a copy of the terms and conditions being Conditions Version Number 59A (CVN59A) 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.
14. 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.
15. 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.
16. 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%
17. 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.
18. 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.
19. 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.
20. 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, 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. However, as above, the Respondent remains of the view that the decision to increase its prices is outside the remit of the Scheme.
21. The Respondent submits that the Claimant is not entitled to the remedy sought to seek an order to remain at the current prices and not to be affected by the price increase effective from 28 May 2014. The Claimant’s only remedy, save as is denied in any event, is to terminate the Agreement without paying a cancellation charge if such increase in charges were above the rate of RPI.
22. The Respondent submits that the Claimant is free to cancel the Mobile Number by giving notice to cancel at any time. The Claimant has not given such notice or requested termination of the Mobile Number. However, as the Claimant is within the minimum term period in respect to the First Mobile Number he would be liable for a cancellation charge in the sum of £177.07 and £510.49 in respect to the Second Mobile Number (reducing on a daily basis) should he terminate the Mobile Numbers within the minimum term period
23. 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.
24. 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 strongly denies that the Claimant is entitled to £xxxx compensation.
25. 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 Agreement entered into was a for minimum term period with a Monthly Recurring Charge of £xxx and £xxxx per month. 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.
26. 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 3 June 2014
Stacy Beer
Legal Counsel


For and on behalf of the Respondent whose address for service is at:
EE Limited 1 Trident Place Mosquito Way Hatfield Hertfordshire AL10 9BW

RandomCurve

Preeble wrote: »

Oh I didn't realize they recived a copy of it anyway, emailed one through, but feel free to publish what you need from it if it will help the rest of the cases.

Thanks Preeble.


Having read through the whole judgement I am a little confused. None of the points raised have been given any detailed reasoning, the only detail is as per what Preeble has already shared - that the adjudicator considers the change to be of Material Detriment, so on one hand I am a little worried for everyone else, but on the other hand.....


..... it could be that the judgement that the change is of Material Detriment was an easy judgement to make because the adjudicator accepts the argument that as EE changed the T&Cs after Ofcom changed the Material Detriment definition to ANY change in the core subscription price them the new definition does apply as per our case - but they do not expressly state that in the findings, if they had I would be very confident for everyone.


Delboy9 can you email me your result ASAP please - [EMAIL="info@fightmobileincreases.com"]info@fightmobileincreases.com[/EMAIL]

RandomCurve

davalo wrote: »

Hi,

Firstly many thanks for all the help from everyone.

I have recieved ny response from CISAS today, but it seems a lot shorter than the ones previously shown on the forum. I have pasted it below any help would be greatly appreciated

It seems EE have finally realised that they have been mixing up their price rise and change of T&C defences and have sought to simplify the response to give us less ammunition to beat them over the head with. In the past they have always tried to make things seem complicated in the knowledge that most people would not understand what was happening and would be unable to prepare a coherent response to the defence, seems they have now realised that that policy is now working against them!


The standard response is still applicable - you just need to change the paragraph numbers. EE are still not addressing any of the points made in the CISAS case, soon they will realise that avoiding the issue is costing them and they will rethink their defence, but at the moment EEs defence is the best evidence we have that they have no defence!!!


See here for the documents you need:
http://fightmobileincreases.com/fight-ee/fight-the-march-2014-price-rise/

pau1200

I have spent ages going through my response and have put the following comments to send to csis, I have added a 2 extra points as mine ee defense seemed very lengthy.


Does it look ok to send and should I send it to the [EMAIL="info@csis.org.uk"]info@csis.org.uk[/EMAIL] address.





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
• [FONT=Arial, serif]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.[/FONT]

[FONT=Arial, serif]Paragraph 1[/FONT]


[FONT=Arial, serif]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.[/FONT]














[FONT=Arial, serif]Paragraph 14[/FONT]


[FONT=Arial, serif]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.[/FONT]






[FONT=Arial, serif]Paragraphs 16 to 20 and 22 to 24[/FONT]


[FONT=Arial, serif]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.[/FONT]






[FONT=Arial, serif]Paragraph 18[/FONT]


[FONT=Arial, serif]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.[/FONT]


[FONT=Arial, serif]EE repeat a similar lack of care at Paragraph 24 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.[/FONT]






Paragraph 21
EE appear to be attempting to misled the adjudicator by referencing the dates as they have, The Price increase in 2013 was based on the MARCH 2013 RPI and effective 9th May 2013. the 2014 increase is based on FEBRUARY 2014 RPI and is effective 28th May 2014. Whilst EE have attempted to disguise the fact that they have applied a 12 month RPI rate to an 11 month period by selectively quoting the dates (yet more evidence of not acting in Good faith) as per my case to CISAS the contract implies by virtue of referring to the annual rate of inflation that the rate applied must be applied to a 12 month period. If EEs interpretation is allowed to stand then the contract would allow EE to increase the price by annual RPI every month if it so decided. It is also obvious that EE have not actually addressed the argument that the contract does not allow them to apply a 12 month inflation rate to an 11 month period.






[FONT=Arial, serif]Paragraph 25[/FONT]


[FONT=Arial, serif]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. [/FONT]






[FONT=Arial, serif]Paragraph 26[/FONT]


[FONT=Arial, serif]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 Ofcoms 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. [/FONT]










[FONT=Arial, serif]Paragraph 27,29 to 31[/FONT]


As per my CISAS claim:[FONT=Verdana, serif]
[/FONT]“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.”

[FONT=Arial, serif]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.[/FONT]






[FONT=Arial, serif]Paragraph 37[/FONT]


[FONT=Arial, serif]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 £50, 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, 27, 29-31, 17, 24, 37, and 26.[/FONT]










Paragraph 38
The document referred to was not sent to the receiver as a confidential document, and the person receiving the document has given their permission for its use. The document entirely relevant (as explained in my CISA case) as it is conclusive proof that EE applied the March 2013 RPI rate in 2013 meaning that in 2014 EE have applied an annual RPI rate to an 11 month period (the 12 month RPI rate being 2.5% and not 2.7%). It is interesting to note that rather than defend my point that the contract does not allow EE to apply a 12 month rate to an 11 month period they chose instead to question the documented proof -which originated from their own legal team! I put EE to strict proof that EE have not applied a 12 month rate to an 11 month period."

RandomCurve

pau1200 wrote: »

I have spent ages going through my response and have put the following comments to send to csis, I have added a 2 extra points as mine ee defense seemed very lengthy.


Does it look ok to send and should I send it to the [EMAIL="info@csis.org.uk"]info@csis.org.uk[/EMAIL] address.

"

Looks fine - there a few typos in the response at Paragraph 38 (sorry).
I can't recall the correct address to respond to - can anyone else help?

ulaggy

RandomCurve wrote: »

Looks fine - there a few typos in the response at Paragraph 38 (sorry).
I can't recall the correct address to respond to - can anyone else help?

Yup, it's info@cisas.org.uk to email in a response. I also included my case reference number in the subject line, just to try and clarify who it was from and what it was for.

pwillan

Hi,

I wanted to double check another thing, I have logged into my account on EE and seen that my new plan is £35.08 (without VAT) with VAT added that will be £42.096 but if you use EE website's calculator from the page they put up about the price increase it shows I will be paying £42.10 which is more.

Is it too late to say something now that I have submitted the comments on their defence (dealine is before or on today).

Mikmonken

does 42.10 mean that it is above 2.7% increase (i suspect it's just under by £0.00.7)
my contract was a £41 a month contract including VAT so their price shows a round number including VAT, much the same way that their picture messages cost £0.333 but the figure they state is £0.40 a picture message.

by using the VAT figure they are ensuring round numbers

pwillan

Maths isnt my strong point but I think so but this is confusing.

My old price with vat was £41 so 41+2.7% is £42.107, that would mean that the new price is below. However if they are stating online that my new contract (on "my plan" on my account) is £35.08+20% (for VAT) then that only works out as £42.096

Also if you look at the VAT Guide on HMRC website (HMRC Reference:Notice 700 (August 2013) 17.5 reads
"You may round down the total VAT payable on all goods and services shown on a VAT invoice to a whole penny. You can ignore any fraction of a penny. 17.5.1 Calculation based on lines of goods or services

If you wish to work out the VAT separately for a line of goods or services, which are included with other goods or services in the same invoice, you should calculate the separate amounts of VAT either by rounding:

• down to the nearest 0.1p - for example, 86.76p would be rounded down to 86.7p, or
• to the nearest 1p or 0.5p - for example, 86.76p would be rounded up to 87p.)"