Mobile Phone Contract - Price Rise Refunds

Shaunyboy

Fail here. Gutted.

Adjudicator’s findings and reasons
8. I find that:
a. The company has submitted that the dispute falls outside the scope of the Scheme as it does not fall within Rule 2(g) stating that the dispute must be about bills, communication services, or the customer service provided. I do not accept this. Firstly the dispute relates
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to the customer’s future bills, specifically the price of the basic price plan. Secondly, determining material detriment in relation to this bill will also fit within the category of billing. I am also not persuaded that the issue of material detriment is a complicated issue of law. I shall therefore proceed to determine the dispute in full.
b. The company has updated its terms and conditions, effective 26 March 2014. Due notice of the change was provided between 29 January and 14 February 2014. I note that the customer did not request termination of the agreement at this point. Accordingly, I must find that, as the customer has not requested termination in line with the terms of the agreement (ie before the change takes effect) and he has therefore accepted the change to the terms and conditions. I am therefore satisfied that the terms and conditions applicable to the customer’s contract is Version 01B.
c. The customer submits that if the terms and conditions have been changed, then the Ofcom guidance relating to material detriment, effective to all contracts entered into after 23 January 2014, should apply to him. I do not accept this.
d. The change to the terms and conditions amounted to an amendment to an ancillary term, as opposed to a core term of the contract. The amendment was made in line with the terms themselves that allow for such changes. I find that the customer has accepted the updated terms and conditions but that as no other change has occurred to his contract, in particular to the end date of the minimum term, the amendment cannot be seen to amount to a new contract. I therefore find that the customer’s agreement is not automatically subject to the Ofcom guidance on material detriment applicable to new contracts.
e. The company has increased its prices in line with clauses 7.1.4 and 7.2.3.3 of the agreement. The price increase is of 2.7%. I note that clause 7.2.3.3 provides that a price increase will not give rise to the right to terminate without charge if the increase is not in excess of the RPI figure most recently published before notification of the price rise was given. As notice was given between 5 and 15 April 2014, the relevant RPI is that of February 2014, published on 25 March 2014.
f. In order to terminate the agreement without charge, the customer must show that the price increase is of material detriment. As above, the Guidance published by Ofcom is specifically not retroactive and does not apply to the customer’s agreement. I must therefore determine if the increase is of material detriment with regard to the evidence as a whole.
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g. I am mindful that the terms and conditions have always had a price variation clause and have made reference to the RPI as the limit to any such increase. The clause has the effect of putting the customer on notice that the price may increase during the minimum term of the agreement, and that if this increase is in excess of the RPI, it will give rise to a right to penalty-free termination.
h. The customer makes reference to the CPI being the accepted measure of inflation, and that an increase in excess of this will amount to a real terms increase and therefore will be material detriment. I do not accept this argument. The terms have provided for an increase that is no greater than the RPI and any such real terms increase in price must be viewed within this context.
i. I find that the terms and conditions provide the company with the right to implement a price increase up to the RPI. As the terms have always provided this right and the amended terms clarified rather than implemented this right, I find that any increase that is less than the RPI cannot be considered to be of material detriment unless the customer has individual, extenuating circumstances showing the effect of the increase would be materially detrimental to him. No such evidence has been provided.
j. I do not accept that the real terms increase amounts to material detriment within the context of the terms of the contract and that the agreement was entered into before the Ofcom guidance came into force. The customer was aware at the commencement of the agreement that the price could increase by no more than the RPI, and I find that this context is sufficient that any such increase cannot be considered to be of material detriment.
k. I do not accept that there is any material detriment in relation to the relevant RPI for the purpose of an annual increase. The contract commenced in September 2013 and the customer has therefore not been subject to any previous price rise.
l. I also acknowledge the customer’s individual illustration. However I find this example to be so exaggerated as to be unusable in determining if the price increase does amount to a detriment that is material as a consequence of the customer’s individual circumstances.
m. Accordingly, for the reasons detailed above, I am not persuaded that the price increase in line with the RPI, within the context of the agreement entered into prior to the Ofcom guidance coming into effect, amounts to material detriment. I find no failure of the company’s duty of care that would warrant the remedies requested. The customer’s claim is therefore unable to succeed.
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Conclusion
9. My conclusion on the main issues is that:
a. The company has not failed in its duty of care to the customer.
b. The reasons given by the customer are not sufficient to justify back-dated penalty free
termination, a PAC code, an unlock code and £82.00 compensation.
10. Therefore, my decision is that the claim does not succeed.

ShowMeTheMoola

RandomCurve wrote: »

@showmethemoola post 907

This is a significant change of tact by EE and will need 2 or 3 new paragraphs added to the defence response, I should be able to write them later this week if you can wait. If I don't respond in time send the standard defence but stress the PRE 23rrd JanuartGC 9,6 definition of not to your benefit or neutral.

Thanks again RC. I'll look out for it but re-jig the template just in case.

pau1200

Just my thoughts about the failures but surely by combining the failures of the t+c thread and this one we have proof that the systems put in place to protect the consumer doest work. Some of the t+c cases failed as there was not a material detriment change only the possibility of one. Now we have evidence that when there is change that is detrimental we should have left when the t+c changed. Coupled with the fact the adjudicators are not consistent there is clear proof that the system doesn't work.
Are people going down the SCC route?

proeleche

Hi All,

I'm so sorry to hear about the losses... :-(

I got appointed my adjudicator on Friday 13th June and got my decision yesterday.

My claim succeeds in part:

'The company shall terminate the customer's contract without penalty (backdated to 12th May) and provide the customer with a PAC code.'

I had originally contacted EE on the 13th April, and according to my contract, I can give 30 days notice to terminate, so the adjudicator concludes that back dating to 12th May is appropriate. He also concluded I did not provide evidence to warrant compensation and that EE are under no obligation to unlock my phone.

I have to be honest that I am pleased, I didn't get everything I asked for, but now I can escape EE - awful, awful company that I won't go near again!

Thanks to RC and everyone else for your help.

Tezza316

Received my decision yesterday evening.

Claim succeeds in part.

2no contracts to be cancelled penalty free and back dated to the 17th April, PAC codes to be issued and £50 compensation to be paid.

Unlock code does not have to be issued.

Over the moon with this result!! Cant thank RC enough, couldn't have done it without your help!!

ulaggy

pau1200 wrote: »

Just my thoughts about the failures but surely by combining the failures of the t+c thread and this one we have proof that the systems put in place to protect the consumer doest work. Some of the t+c cases failed as there was not a material detriment change only the possibility of one. Now we have evidence that when there is change that is detrimental we should have left when the t+c changed. Coupled with the fact the adjudicators are not consistent there is clear proof that the system doesn't work.
Are people going down the SCC route?

I'm not letting T-Mob/CISAS get away with this. It's the principle of the matter. I've been fuming since my result yesterday. Just hoping to hear from RC as to what I need to do

jocklatic

Got my decision yesterday with the dreaded words "Claim does not succeed. My reply was word for word the one which ClaireB1 posted on post #921 with the exact same adjudicator Alison Dablin.

Her main comments were:-
I didn't request termination of agreement at this point (29jan - 14feb)

She doesn't accept CPI as a measure of inflation, does not accept the real terms increase amounts to material detriment within context of the terms of the contract.
Disagrees that price rise is in excess of RPI

Claim does not succeed :-
A. Company has not failed in its duty of care!!!
B. Reason given by customer not sufficient to justify cancellation , PAC, apology or compensation.

Gutted with outcome & would be grateful of any advice on what to do next?

ulaggy

Like me, and some others, you'll have to head to the small claims court

pau1200

ulaggy wrote: »

I'm not letting T-Mob/CISAS get away with this. It's the principle of the matter. I've been fuming since my result yesterday. Just hoping to hear from RC as to what I need to do

Bloody right too, I've had a look at the SCC I believe that we have a case so should defiantly push on. I'm still waiting for my decision and it will be an interesting one. My adjudicator in the t+c cases rejected all claims as she claimed the change in t+c only allowed the possibility of material detriment and not detriment itself. So if my case fails like the one so far it opens a big hole of inconsistency up for CISAS that we should pursue. My adjudicator is also the Head of the Panel of Adjudicators which I assume means she is in charge.


In a way i'm surprised that some are failing as it highlights deficiencies in the process and that there are no guidelines to follow. These inconsistencies need to be addressed by OFCOM because as it stands EE can do what ever they like as the adjudicators decisions are not reliable and it seems some favor the companies rather than the customer. I can see why OFCOM clarified material detriment but they have failed consumer by not making sure it is retrospectively applied.

RandomCurve

I still only have access. Is phone, but feeling well and should be discharged today.

The losses are disappointing and show just how difficult this can be - I did say up front, and is why EE will fight every case.

Having taken EE to SCC before I will be able to help with that