Mobile Phone Contract - Price Rise Refunds

Mikmonken

pwillan wrote: »

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

that's true but you're old contract I'm guessing was called EE 41 4g (same contract as mine, and it's £41 after Vat so £34.166666667, so the fact that they are charing £42.10 sees them com in just under the 2.7%

pwillan

Mikmonken wrote: »

that's true but you're old contract I'm guessing was called EE 41 4g (same contract as mine, and it's £41 after Vat so £34.166666667, so the fact that they are charing £42.10 sees them com in just under the 2.7%

Yeah it was. Ive just been doing some more calculations (I dont know what I'm doing though haha) and yeah you are right, I was being a little stupid, sorry

pau1200

I have corrected the typos in paragraph 38, the only bit I don't follow is


I put EE to strict proof that EE have not applied a 12 month rate to an 11 month period.


Does this make sense, I'm not sure what we are asking/claiming

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?

Mikmonken

pwillan wrote: »

Yeah it was. Ive just been doing some more calculations (I dont know what I'm doing though haha) and yeah you are right, I was being a little stupid, sorry

I've been running those figures too trying to find a way that they have increased the price by more the 2.7% but they're always a fraction under, frustrating.

aye

Just putting my reply together for the defence against EE using the template from the fight mobile increases website. I've renumbered the paragraphs, but have a query. Any chance someone could look over this to ensure it is ok? The query is in my reply, under 'Paragraph 17'. This makes reference to a paragraph 20 about incorrect measurement of RPI. I don't seem to have anything about this in my reply from EE. Should I just delete?


EE 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. 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.

5. The remainder of this Defence is pleaded without prejudice to the above.

RESPONDENT’S DEFENCE

6. The Respondent denies that it is liable to the Claimant as pleaded or at all.

7. 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.

8. 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.

9. The Claimant has been a customer with the Respondent in respect to account
number xxx. The Claimant has one active mobile number registered to the
account, being xxx (“the Mobile Number”).

10. Upon entering into a Service Upgrade Agreement (“the Agreement”) in respect
to the Mobile Number on 2 June 2013, the Claimant would have been provided
with the terms and conditions applicable to the Agreement at the point of
entering into the Agreement. The applicable terms and conditions subject to the
Agreement were also available to the Claimant at that time via the Respondent’s
website or by contacting the Respondent’s customer services at any time.


11. 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.

12. The Claimant seeks termination of the Agreement without termination and to
transfer the Mobile Number to another network service provider and for the
cancellation to be back dated to the date of her request for termination. In
addition the Claimant also seeks an unlock code for an unspecified handset, but
presumably the handset associated with the Mobile Number on the Claimant’s
account.

13. The Respondent confirms that prior to the 26 March 2014 the Agreement
between the parties was subject to the terms and conditions LEG300v15. 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 LEG300v15A.

14. Save that the Respondent denies that the change in terms effective 26 March
2014 gave the Claimant the right to terminate her 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.

15. At Schedule 1 attached hereto is a copy of the terms and conditions being
Conditions Version Number LEG300v15A (LEG300v15A) 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;-
4.3 You may also terminate your Contract if we give you written notice to
vary its terms, resulting in an increase in the Charges or changes that
alter your rights under this Contract to your material detriment. In such
cases you would need to give us at least 14 days written notice prior to
your Billing Date (and within one month of us giving you written notice
about the changes). However this option to terminate without paying a
cancellation charge does not apply if:
4.3.1 the increase in Charges (as a percentage) is equal to or lower than the
annual percentage increase in the Retail Price Index (RPI) published by
the Office for National Statistical (calculated using the most recently
published RPI figure before we can give you Written Notice under Point
4.3).
5.2 Termination of your Contract is subject to you paying us any money you
owe us and us paying you any money we owe you. After termination, it is
your responsibility to cancel any direct debit, standing orders, credit
card mandates or other authorisations you may have given for periodic
payments to be made to us by third parties.
19.9 All notices to be served in accordance with your Agreement must be
served by post or facsimile. We can in addition serve notice to you by
voicemail, email, text or other form of electronic message. They will be
deemed served 48 hours after they are sent, or on earlier proof of
delivery. All invoices and notices served by post will be sent to the
address given by you on Registration unless you notify us of a change to
this address. Any waiver, concession or extra time we may allow you is
limited to the specific circumstances in which it is given and does not
affect our rights in any other way.

16. Pursuant to Clause 4.3 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.

17. As Written Notice was given between the 5-15 April 2014 the Respondent was
required, for the purposes of 4.3.1 to use the most recently published RPI figure
before we give you Written Notice under point 4.3. 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.

18. 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%1

19. The Respondent denies that the price increase of 2.7% is an increase above the
RPI as provided for by way of point 4.3.

20. 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 or indeed that such is a material detriment that entitles the Claimant to
treat the Agreement as terminated without paying a cancellation charge.

21. As the increase in charges for the price plan 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 point 4.3.1 of the Agreement or otherwise to cancel the
Agreement without paying a cancellation charge.
1.
1 http://www.ons.gov.uk/ons/rel/cpi/consumer-price-indices/february-2014/stb---
consumer-price-indices---january-2014.html#tab-Retail-Prices-Index--RPI--and-
RPIJ

22.
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.

23. 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.

24. 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 the increase in charges at the rate of RPI is not of
material detriment to the Claimant and the Claimant is hereby put to strict proof
thereof.

25. Further or alternatively, the material detriment issue constitutes a complicated
issue of law for the purpose of Rule 2(j) of the Scheme.

26. 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.

27. 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.

28. 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.

29. 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.

30. For the reasons stated above the Respondent denies that the Claimant as at all
entitled, whether contractually or otherwise, to terminate the Agreement without
charge, either for the reasons as indicated within her 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.

31. 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.

32. 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 she would be liable for a
cancellation charge in the sum of £412.52 for the Mobile Number (reducing on a
daily basis) should she terminate the Mobile Number within the minimum term
period.

33. The increase in charges did not take effect until 28 May 2014 and therefore as at
the date of the Claimant’s application and up to 28 May 2014 the Claimant has
not been charged any additional charges and therefore a backdated refund is not
applicable save as for 28 May 2014 onwards, such being denied that the
Claimant is entitled to such refund in any event.

34. 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.

35. 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 to termination
without charge and/or compensation it the sum of £148.

36. 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 not 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.

37. The Respondent denies liability to the Claimant as pleaded or at all, either
contractually or otherwise.

MY REPLY

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 25 to 29
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 13
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 15 to 22
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 17
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 20 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 35
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 £140, 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, 15, 20, 25, and 29.

Paragraph 23
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 24
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.

jogplc

Hi all,

Had an adjudicator assigned on 30th May (Ms Uju Obi) just waiting on the result now

Thanks

pau1200

Change the reference from 20 to 22.
They have just moved everything around a bit.

aye wrote: »

Just putting my reply together for the defence against EE using the template from the fight mobile increases website. I've renumbered the paragraphs, but have a query. Any chance someone could look over this to ensure it is ok? The query is in my reply, under 'Paragraph 17'. This makes reference to a paragraph 20 about incorrect measurement of RPI. I don't seem to have anything about this in my reply from EE. Should I just delete?


EE 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. 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.

5. The remainder of this Defence is pleaded without prejudice to the above.

RESPONDENT’S DEFENCE

6. The Respondent denies that it is liable to the Claimant as pleaded or at all.

7. 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.

8. 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.

9. The Claimant has been a customer with the Respondent in respect to account
number xxx. The Claimant has one active mobile number registered to the
account, being xxx (“the Mobile Number”).

10. Upon entering into a Service Upgrade Agreement (“the Agreement”) in respect
to the Mobile Number on 2 June 2013, the Claimant would have been provided
with the terms and conditions applicable to the Agreement at the point of
entering into the Agreement. The applicable terms and conditions subject to the
Agreement were also available to the Claimant at that time via the Respondent’s
website or by contacting the Respondent’s customer services at any time.


11. 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.

12. The Claimant seeks termination of the Agreement without termination and to
transfer the Mobile Number to another network service provider and for the
cancellation to be back dated to the date of her request for termination. In
addition the Claimant also seeks an unlock code for an unspecified handset, but
presumably the handset associated with the Mobile Number on the Claimant’s
account.

13. The Respondent confirms that prior to the 26 March 2014 the Agreement
between the parties was subject to the terms and conditions LEG300v15. 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 LEG300v15A.

14. Save that the Respondent denies that the change in terms effective 26 March
2014 gave the Claimant the right to terminate her 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.

15. At Schedule 1 attached hereto is a copy of the terms and conditions being
Conditions Version Number LEG300v15A (LEG300v15A) 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;-
4.3 You may also terminate your Contract if we give you written notice to
vary its terms, resulting in an increase in the Charges or changes that
alter your rights under this Contract to your material detriment. In such
cases you would need to give us at least 14 days written notice prior to
your Billing Date (and within one month of us giving you written notice
about the changes). However this option to terminate without paying a
cancellation charge does not apply if:
4.3.1 the increase in Charges (as a percentage) is equal to or lower than the
annual percentage increase in the Retail Price Index (RPI) published by
the Office for National Statistical (calculated using the most recently
published RPI figure before we can give you Written Notice under Point
4.3).
5.2 Termination of your Contract is subject to you paying us any money you
owe us and us paying you any money we owe you. After termination, it is
your responsibility to cancel any direct debit, standing orders, credit
card mandates or other authorisations you may have given for periodic
payments to be made to us by third parties.
19.9 All notices to be served in accordance with your Agreement must be
served by post or facsimile. We can in addition serve notice to you by
voicemail, email, text or other form of electronic message. They will be
deemed served 48 hours after they are sent, or on earlier proof of
delivery. All invoices and notices served by post will be sent to the
address given by you on Registration unless you notify us of a change to
this address. Any waiver, concession or extra time we may allow you is
limited to the specific circumstances in which it is given and does not
affect our rights in any other way.

16. Pursuant to Clause 4.3 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.

17. As Written Notice was given between the 5-15 April 2014 the Respondent was
required, for the purposes of 4.3.1 to use the most recently published RPI figure
before we give you Written Notice under point 4.3. 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.

18. 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%1

19. The Respondent denies that the price increase of 2.7% is an increase above the
RPI as provided for by way of point 4.3.

20. 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 or indeed that such is a material detriment that entitles the Claimant to
treat the Agreement as terminated without paying a cancellation charge.

21. As the increase in charges for the price plan 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 point 4.3.1 of the Agreement or otherwise to cancel the
Agreement without paying a cancellation charge.
1.
1 http://www.ons.gov.uk/ons/rel/cpi/consumer-price-indices/february-2014/stb---
consumer-price-indices---january-2014.html#tab-Retail-Prices-Index--RPI--and-
RPIJ

22.
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.

23. 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.

24. 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 the increase in charges at the rate of RPI is not of
material detriment to the Claimant and the Claimant is hereby put to strict proof
thereof.

25. Further or alternatively, the material detriment issue constitutes a complicated
issue of law for the purpose of Rule 2(j) of the Scheme.

26. 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.

27. 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.

28. 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.

29. 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.

30. For the reasons stated above the Respondent denies that the Claimant as at all
entitled, whether contractually or otherwise, to terminate the Agreement without
charge, either for the reasons as indicated within her 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.

31. 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.

32. 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 she would be liable for a
cancellation charge in the sum of £412.52 for the Mobile Number (reducing on a
daily basis) should she terminate the Mobile Number within the minimum term
period.

33. The increase in charges did not take effect until 28 May 2014 and therefore as at
the date of the Claimant’s application and up to 28 May 2014 the Claimant has
not been charged any additional charges and therefore a backdated refund is not
applicable save as for 28 May 2014 onwards, such being denied that the
Claimant is entitled to such refund in any event.

34. 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.

35. 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 to termination
without charge and/or compensation it the sum of £148.

36. 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 not 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.

37. The Respondent denies liability to the Claimant as pleaded or at all, either
contractually or otherwise.

MY REPLY

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 25 to 29
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 13
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 15 to 22
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 17
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 20 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 35
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 £140, 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, 15, 20, 25, and 29.

Paragraph 23
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 24
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.

delboy9

RandomCurve wrote: »

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

Done as requested RandomCurve

Mikmonken

Pilotmic wrote: »

Just had reply from CISAS. Adjudicator Mr Richard Stevens. Fingers crossed.

Just done a quick search through the forums and it seems this adjudicator doesn't award compensation, but does cancel the contracts, fingers crossed, i googled him adding Cisas, he looks like a nice enough chap!

corsaman2002

I have been appointed Ms Claire Andrews. I hope she is a good one.

Has anyone else had her ?