Mobile Phone Contract - Price Rise Refunds

RandomCurve

Just to keep everyone up to date I have been working with "SayNoToO2" behind the scenes.


A letter before action has been sent to O2. if they do not respond, or still refuse to refund the price rise then this is going to the SCC!

RandomCurve

A general update on your right to have your price rise refunded if you are on EE, T-Mobile or Orange.


Customers are currently fighting for penalty free cancellation due to the change in T&Cs that you would have been advised of in February. EEs defence clearly states that the current terms (the ones they used to increase your price) are UNENFORCABLE!


So if you want your money back you are pushing on an open door!!!!


Taken from EEs defence document:
18. The effect of Clause 7.2.3.3 was that the Claimant would only have a right to
terminate the Agreement if the price increase was higher than the retail price
index (“RPI”) or another statistical measure of inflation selected by the
Respondent. The purpose of including reference to another measure of inflation
was that, at the time of the drafting of this term, it was understood that the
Office for National Statistics was intending to cease publication of RPI.
19. It was considered that the term was insufficiently clear in two respects in that it allowed the Respondent to select both the measure of inflation to be used and to select any measure of inflation within a reasonable period prior to the notification of the price increase.


These "ambiguities" mean the price rise is unenforceable under the Unfair Terms in Consumer Contract Regulations, and therefore you can get your money back!


https://forums.moneysavingexpert.com/discussion/4888862 Post 617

RandomCurve

I will be posting here shortly how I think you can cancel your EE/Orange/T-Mobile contract.


Watch this space!!!

RandomCurve

There are a number of ways you MAY be able to get out of your contract as follows:

1. I think I have found a definition fof Material Detriment (that has been existence for years) so under GC 9.6 you should be able to cancel your contract, as the change is o Material Detriment to you
2. Ofcom clarified what Material Detriment means in October 2013, but said it only applies to new contracts, however the change was a definition clarification not a change therefore it should (legally) apply to the old contracts too -so again under GC 9.6 you should get a penalty free termination
3. By using RPI and not CPI the change is higher than the designated statistic for UK price inflation (by 58.8%) and so is of Material detriment as it is more than a real terms - so again a penalty free cancellation.
4. EE can only use the price rise clause if their costs have increased by RPI ,not just by RPI - so under the UTCCRs you should be able to avoid the price rise (but not escape your contract)
5. There are group of people fighting the change in T&Cs (see link below). If they win their claims then - EE never followed the correct procedure in notifying the change in T&Cs and therefore the change has not been made, as EE have admitted the old clause is unenforceable so depending on how you argue it you may be able to get a penalty free cancellation, or more likely stop the price rise (first case result due in 2 weeks).

I will post a template email for you to send EE later


https://forums.moneysavingexpert.com/discussion/comment/65180282#Comment_65180282


I doubt CISAS will rule in your favour on any of the above, but The SCC I think will, and I think I know how to by pass CISAS so you can go straight to the SCC.

g6jns_2

RandomCurve wrote: »

There are a number of ways you MAY be able to get out of your contract as follows:

1. I think I have found a definition fof Material Detriment (that has been existence for years) so under GC 9.6 you should be able to cancel your contract, as the change is o Material Detriment to you
2. Ofcom clarified what Material Detriment means in October 2013, but said it only applies to new contracts, however the change was a definition clarification not a change therefore it should (legally) apply to the old contracts too -so again under GC 9.6 you should get a penalty free termination
3. By using RPI and not CPI the change is higher than the designated statistic for UK price inflation (by 58.8%) and so is of Material detriment as it is more than a real terms - so again a penalty free cancellation.
4. EE can only use the price rise clause if their costs have increased by RPI ,not just by RPI - so under the UTCCRs you should be able to avoid the price rise (but not escape your contract)
5. There are group of people fighting the change in T&Cs (see link below). If they win their claims then - EE never followed the correct procedure in notifying the change in T&Cs and therefore the change has not been made, as EE have admitted the old clause is unenforceable so depending on how you argue it you may be able to get a penalty free cancellation, or more likely stop the price rise (first case result due in 2 weeks).

I will post a template email for you to send EE later


https://forums.moneysavingexpert.com/discussion/comment/65180282#Comment_65180282


I doubt CISAS will rule in your favour on any of the above, but The SCC I think will, and I think I know how to by pass CISAS so you can go straight to the SCC.

With respect not using the agreed disputes procedure before starting a Small Claims Track action is seldom a good idea. The Court will ask if the ADR procedure has been tried and if not why not. A claimant would need to have really exceptional grounds for not doing so. So far I have heard no valid grounds for doing so. However, if you have found a loophole I would be interested to hear what it is.

RandomCurve

g6jns wrote: »

With respect not using the agreed disputes procedure before starting a Small Claims Track action is seldom a good idea. The Court will ask if the ADR procedure has been tried and if not why not. A claimant would need to have really exceptional grounds for not doing so. So far I have heard no valid grounds for doing so. However, if you have found a loophole I would be interested to hear what it is.

You are right that it is best to use an ADR first, however if you write to EE requesting cancellation and they refuse you can then ask for a deadlock letter to take the mater to CISAS, when EE refuse to issue the deadlock you then send a "letter before action" which again offers them the choice to take it to an ADR, when they refuse then in your SCC application you can cite that you wanted to take it to ADR but EE refused - it then looks bad on them not you, and you could probably start SCC proceedings within 3 - 4 weeks rather than waiting 8 weeks for CISAS!

RandomCurve

I will post a template letter for you to send EE requesting a penalty free cancellation of your contract tomorrow.

diamonds

From 23rd Jan 2014 Ofcom ruled YOU CAN CANCEL PENALTY FREE:


http://media.ofcom.org.uk/2013/10/23/protection-for-consumers-against-mid-contract-price-rises/

RandomCurve

Below is a template email to send to EE (and Orange and T-Mobile) if you would like to try and have your contract cancelled penalty free (you get to keep the phone and receive a PAC so you can port your number to another network).


I am not legally trained, but have had many battles with Mobile phone companies and Ofcom over the past year. It is up to you if you use the template or not.


The email addresses to use are:

[EMAIL="executive.office@ee.co.uk"]executive.office@ee.co.uk[/EMAIL];
[EMAIL="Olaf.Swantee@ee.co.uk"]Olaf.Swantee@ee.co.uk[/EMAIL]


Dear Mr Swantee,

Thank you for your letter of early April informing me of EEs intention to increase the price of my Fixed term Contract.

Please accept this letter as my notice to terminate my contract PENALTY FREE under Ofcom Regulation GC 9.6 as the increase is likely to be of Material Detriment to me. Please also provide me with a PAC so that I can take my number to another network.

Without Prejudice.
The term “likely to be of Material detriment” in the regulatory context can be determined by understanding why the term was introduced into GC 9.6 by OFTEL and retained by Ofcom, and by reference to the source European documentation for GC 9.6 which is the Universal Service Directive (USD) USD 20/(22) for which GC 9.6 is the UK enactment. It is clear that the intention of USD 20/(22) was to give the CONSUMER the choice to cancel their contract during a fixed period for ANY modification that is made which they do not accept as follows:

USD 2002/22/EC
Chapter IV – End User Agreements
Article 20 – Contracts
Paragraph 4

4. Subscribers shall have a right to withdraw from their contracts without penalty upon notice of proposed modifications in the contractual conditions. Subscribers shall be given adequate notice, not shorter than one month, ahead of any such modifications and shall be informed at the same time of their right to withdraw, without penalty, from such contracts, if they do not accept the new conditions.

Further Ofcom GC 9.6 supports the USD implementation as the term "likely to be of material detriment" was introduced because:

"Our intention was to reflect our general duties and principles of good administration and proportionality in particular. We sought, in light of these, not to rule out contract variations altogether. For example, those beneficial to, or having a neutral impact on, a subscriber.” (from Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013”

As Ofcom's (and OFTEL before them) reasoning for introducing the term was to protect me - the consumer - from changes which are not to my benefit or at the very least are neutral then a price rise of any kind is clearly neither to by benefit, nor neutral, and are therefore likely to be of Material Detriment.

Without Prejudice
The price rise applied of 2.7% (RPI) is of likely to be of material detriment to me as it is a REAL TERMS increase in the cost of my contract. The UK National Statistic for price inflation is the CPI (1.7% for February 2014 – published in March 2014) therefore any increase above this rate under GC 9.6 is likely to be of material detriment to me, as a real terms increase cannot be either to my benefit OR have a neutral impact. By using RPI rather than CPI the increase applied to my account is 58.8% higher than it would otherwise be.

RPI lost its designation as a National statistic in March 2013 as the calculation methodology does not meet with international calculation standards and has been replaced with CPI which is the statistical measure of inflation now used by Government.


Without Prejudice
In the Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013. Ofcom defined “Likely to be of Material Detriment as follows:

Paragraph 6.22
“In particular, we consider guidance is needed as to price rises which we are likely to regard as materially detrimental (or likely to be materially detrimental) and invoking the requirements of GC9.6. Such price rises are likely to include any increase to core subscription prices.”

The above definition is to apply to contracts agreed to on or AFTER 23rd January 2014. However as EE updated its’ price variation clause effective 26th March 2014 (2 months after the date to which the definition applied) then this clause of the contract was effectively agreed to and signed up to post 23rd January and therefore as per the Ofcom guidance in regards to GC 9.6 the increase in core subscriptions price is likely to be of material detriment to me.

Without Prejudice
In the Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013. Ofcom defined “Likely to be of Material Detriment as follows:

Paragraph 6.22
“In particular, we consider guidance is needed as to price rises which we are likely to regard as materially detrimental (or likely to be materially detrimental) and invoking the requirements of GC9.6. Such price rises are likely to include any increase to core subscription prices.”

And whilst Ofcom have announced that this will only apply to contracts entered into on or after 23rd January all Ofcom have actually done is clarify a definition. They have not changed the words of GC 9.6. As they have only clarified a definition then the definition must apply to all contracts as it cannot be a legally correct position that two contracts subject to the same regulation with exactly the same wording (GC 9.6) can have two different meanings.

I look forward to receiving my PAC (penalty free) with immediate effect. Should EE not consider this to be an appropriate action then please clearly articulate why this is not the case with reference to each of the points above. Any response which fails to address the specific points above would not be acceptable to me and will be used as evidence of EE’s lack of duty of care and poor customer service in any subsequent CISAS claim.

Regards

baldyj

RC do you recommend those of us with pending CISAS cases regarding the change in T&Cs to send this template?

Thanks.