Mobile Phone Contract - Price Rise Refunds

ulaggy

Brilliant. EE can't even spell apologies XD

Further to our previous correspondence, please see below and attached the company's response to the adjudicator's direction:

'Please accept our apologises. This is an error in our defence where we have referenced an incorrect term of CVN58 when the customer was on CVN59.

EE gave notice of a change of terms that CVN59A which took effect from 26 March 2014.

The remainder of the defence is correct and the terms referred to in the defence are the same in CVN58C and CVN59A.

Attached is a copy of the CVN59A effective for this customer from 26 March 2014 which was applicable as at the date the notice of the increase in charges were issued.

Please accept our apologises for the error in the defence.'

We will revert back to you upon receipt of the adjudicator's decision.

So now I'm back to waiting for the adjudicator to make a decision. Least it's not been a long delay!

RandomCurve

Okay Vodafone people I think we have a 75% of getting you a penalty free cancellation:
http://fightmobileincreases.com/fight-vodafone/


SPREAD the word!!!

Maccadinho25

Got my adjudicator today so fingers crossed!

Shaunyboy

Maccadinho25 wrote: »

Got my adjudicator today so fingers crossed!

None for me yet, how long from sending in your response did you get an adjudicator?

boatman

RandomCurve wrote: »

Okay Vodafone people I think we have a 75% of getting you a penalty free cancellation:
http://fightmobileincreases.com/fight-vodafone/


SPREAD the word!!!

It has to be said, you are a star.

factor29

RandomCurve wrote: »

Okay Vodafone people I think we have a 75% of getting you a penalty free cancellation:
http://fightmobileincreases.com/fight-vodafone/


SPREAD the word!!!

Thanks, just sent the email, see where I get.

PeteM1967

Hi Guys,
I have received my defence from T-Mobile - pasted below. This arrived on the last day and based on points 3 & 4 being duplicated may have been prepared in a hurry. Perhaps one of those points was meant to say something else?

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 been a customer with the Respondent since 10 July 2012 in respect to account number xxxxxxxx. The Claimant has one mobile number being xxxxx xxxxxx (“the Mobile Number”).
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 compensation in the sum of £68.00, termination of the Agreement without charge 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 Number on the Claimant’s account.
13. Upon entering into the Service Agreement (“the Agreement”) in respect to the Mobile Number 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.
14. The Respondent confirms that prior to the 26 March 2014 the Agreement between the parties was subject to the terms and conditions CVN58. 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 CVN58C.
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 change of terms 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 58C (CVN58C) 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.

I will post my proposed response in my next post.
18. As Written Notice was given between the 5-15 April 2014 the Respondent was required, for the purposes of Clause 7.2.3.3 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 April 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
20. The Respondent denies that the price increase of 2.7% is an increase above the RPI as provided for by way of Clause 7.2.3.3.
21. The Respondent submits that the previous increase of charges in March 2013 does not prevent the increase in charges in May 2014. The Respondent submits that, in accordance with the terms of the Agreement that it can increase its charges providing that notice of such increase of charges is given to the Claimant. The Respondent submits that due notice was correctly given to the Claimant.
22. 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
1.
1http://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-
such is a material detriment that entitles the Claimant to treat the Agreement as terminated without paying a cancellation charge.
23. 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.
24. 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.
25. 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.
26. 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.
27. Further or alternatively, the material detriment issue constitutes a complicated issue of law for the purpose of Rule 2(j) of the Scheme.
28. 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.
29. 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.
30. 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.
31. The application of the material detriment test to the price increase 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.
32. 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.
33. 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.
34. 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 £3.95 (reducing on a daily basis) should he terminate the Mobile Number within the minimum term period.
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 £68.00.
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 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.
38. The Respondent avers that pursuant to Clause 7.1.4 it can increase any Price Plan charge so long as the requisite 30 days’ written notice is given. The Respondent denies that the Agreement implies a price change can only occur annually and submits that the Claimant is not a position to speculate as to the Respondent’s intention when drafting agreements.
39. 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 4 June 2014

PeteM1967

This is the response I intend sending to CISAS regarding the defense I have quoted in post #768. This is based on RandomCurve's CISAS response and I have attempted to renumber the paragraphs to match my T-Mobile defense however as post #553 on which the original response is based appears to have been removed my the moderators there is a certain amount of guess work involved when figuring out what aligns with what!

The one change I have made is in response to paragraph 23. My Full Monty contract was taken out at a promotional rate, however when T-Mobile applied the price rise they did this against the full cost of the non discounted rate and have not considered the discount, hence they have exceeded the RPI figure which they are so keen to quote!

Does this response appear correct?

Thanks

Peter

---

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 14 to 16
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 17 to 24
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 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.

Paragraph 23
This statement is factually incorrect. The monthly charge for the account in question has increased from £24 to £24.98 which is an increase of 2.88% and therefore is in excess of the quoted RPI value. The assertion that clause 7.2.3 cannot be invoked is incorrect, however my case is in regards to Ofcom GC 9.6.

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 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.

Paragraph 27, 31
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 36
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.

ulaggy

Looks like my case is delayed again! Sigh.

As I pointed out that T-Mobile/EE (referred to just as EE from now on) had claimed I was on an old version of the contract, 58, rather than 59, which I had photographic proof of, the adjudicator asked EE to clarify this. EE have now done so (as I posted further up this page). But I've now been given the opportunity to make further comments. So that'll run till the 16th, meaning I'm looking at July for a decision. Bah!

RandomCurve, is it worth me making any further comments and if so, what would you suggest? About all I can think to put is "This is further evidence of the lack of duty of care that T-Mobile/EE have shown me"

Thanks mate

Mikmonken

RandomCureve, re: the second letter to OFCOM when should we chase a response? I had a thank you email from Beverley Harris on the 2nd June