EE.T-Mob.Orange. Change T&C From 26th March 2014

rachx21

hammersfaniow wrote: »

I had a reply today, from the same person. I think she is the case administrator though, going by the experiences people on here have had, once EE file their response/defense it then gets forwarded to an adjudicator for a ruling.

Thanks for your reply :-) is now the waiting game then

03029174

Hi all

I didnt receive my letter until the 7th of April about the increases and don't remember getting a text. Over the weekend i sent an initial email to executive.office@ee.co.uk, and Olaf.Swantee@ee.co.uk stating i wanted to cancel my contract. Have i sent the initial email to the right people? if so how long do you typically give them too reply before moving to the next step in the process?

nsabournemouth

I've tried to change things slightly in case we start getting copy and paste from CISAS.

In early February 2014 EE advised me of a change in T&Cs which I believe is LIKELY to be to my Material Detriment Under the T&Cs and Ofcom Regulation 9.6 which incorporates the Article 20(2) of the Universal Services Directive (“USD”) (Directive 2002/22/EC. The ONLY options for me now are to either accept the change or request a penalty free cancellation. I have decided that - for the reasons stated - the change is LIKELY to be of material detriment, and I wish EE to abide by the contract terms and Ofcom regulations (as I have) and grant a penalty free cancellation.
This case revolves solely around if the change in T&Cs is LIKELY to be of Material Detriment."


It must first be established that the modification is likely to be detrimental to the me.. Upon comparing the Old Term with the New Term, the Old Term allowed a customer to terminate the contract without penalty where a price increase that the company sought to implement exceeded either the increase in RPI or any other statistical measure of inflation. However, the New Term restricts the my right to terminate the contract without penalty only to those scenarios in which a price increase exceeds the most recently published RPI figure. The modification puts me in a more restricted position as regards my ability to cancel the contract without penalty in response to an inflationary price increase. I am likely to suffer a detriment as a result of the modification.


The definition of ‘material’, in its ordinary meaning, is, actual and substantial, or conversely not immaterial. I have provided evidence comparing the difference between the increase in RPI and the increase in CPI (being another measure of statistical inflation) for the six-month period from August 2013 to January 2014. The data shows that the increase in RPI has consistently exceeded the increase in CPI for this six-month period, and that the difference between these two rates is not insignificant. RPI is more likely than not to continue at a higher rate than the increase in CPI in future as per an abstract from the OBR:

Ruth Miller


Office for Budget Responsibility


Abstract


Between 1989 and 2011 Retail Prices Index (RPI) inflation tended to be around 0.7 percentage points higher than Consumer Prices Index (CPI) inflation on average. Recent developments suggest that the long-run difference between these measures may be significantly higher in the future. This paper decomposes the differences in RPI and CPI inflation and looks at the prospects for the evolution of the wedge between the two measures over the long term. Possible methodological developments to the CPI and RPI could have a substantial impact on the difference between RPI and CPI inflation, and constitute one of the main uncertainties surrounding the long-term difference between the two measures.


For a number of years a widely held view was that the long-run difference between RPIX and CPI inflation rates was around ¾ percentage points.2 Indeed, since around 1989, RPI and RPIX inflation have tended to be around 0.7 percentage points higher than CPI inflation, on average.


However more recent developments suggest that the long-run difference is likely to be significantly wider in the future. The March 2011 Economic and fiscal outlook (EFO) stated that the long-run difference is expected to be around 1.2 percentage points between RPI and CPI inflation. This was based on the assumption that recent rises in the ‘formula effect’, one of the components of the wedge between the RPI and CPI, will begin to stabilise and the larger contribution from the formula effect in 2010 will persist.


So according to the Independent Office of Budget Responsibility the Material Detriment to me of using RPI rather than CPI is likely to INCREASE over time (current difference is 1% point or 58.8%).


.As the New Term restricts my right to terminate the contract without penalty only where a price increase exceeds RPI, where previously this right could have been triggered if the price increase had exceeded the consistently lower rate of CPI.
The defendant has actually increased the costs of the service to me by 2.7% since the new terms were introduced, that is actual and substantial and falls under the Article 20(2) of the Universal Services Directive (“USD”) (Directive 2002/22/EC, as amended by Directive 2009/136/EC)31 which requires that:


“Member states shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions.”

|I did put it to EE /Orange that under the Universal Service Directive I am allowed to walk away with no fee but they kept referring to material detriment and the fact that they do not consider the change to be so despite advising me I am unable to come to am alternative conclusion. Even if EE / Orange continue to dispute this 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. 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.

RandomCurve

@ nsabournemouth


Looks okay to me - I would make a little more of the CPI v RPI argument by quoting the last six months figures and make it crystal clear that since you first contacted EE on this mater they have indeed tried to apply a price rise of RPI, which under the old contract terms would have lead to a penalty free cancellation, as REGARDLESS of whether or not the difference between CPI and RPI is material the contact would have allowed a penalty free cancellation - can cancel penalty free if EE use a rate higher then RPI OR ANY OTHER RATE, and 2.7% is higher than ANY OTHER RATE (CPI 1.7%).


So the arguments are no longer theoretical, under the old T&C if they imposed RPI 2.7% you could have obtained a penalty free cancellation, OR under the old term EE would have only been able to use CPI 1.7% increase, so the new T&C would allow them to use a rate 58.8% higher than the old contract.

rectangle

RandomCurve,

With regards to post #800, is it still good to send an email referencing Material Detriment; or would it be better to reference Likely Material Detriment?

Dear EE

RE: Telephone Number: 07xxx xxxxx

Pending the resolution of my outstanding claim regarding the change in terms and conditions, I would like it noted that I reject the price rise that you recently informed me of by letter, and request an immediate penalty free cancellation as the change is of Material Detriment to me.


Regards,

RandomCurve

What annoys me most about the is process is that the Adjudicators are supposed to be clever people with an indepth knowledge of Contract law, telecommunications related contracts, and Ofcom regulations. So why do we have to build cases? Surely we just need to say:


"Under the terms of my contract and GC 9.6 I believe the change in T&Cs is to my material Detriment" FULL STOP!


The adjudicator can look at the old and new T&Cs compare the changes in light of the T&Cs and GC 9.6 and make a decision. It not as if we are trying to provide "a motive" or an "alibi" we are just asking them to compare KNOWN FACTS against the regulations!


The reason it does not work this way is that it is stacked in favour of the companies - they are trying to trip you up knowing that in the majority of instances the consumer would not have a clue where to start, let alone be able to respond to the twisted half truths that the EE legal team spew out.


I am only able to assist as I can because I had to go through a painful learning curve to work out how "the beast" works, and now I have gone through that it seems a shame to just waste all that effort on my own case - hence why I am sharing the knowledge.

RandomCurve

rectangle wrote: »

RandomCurve,

With regards to post #800, is it still good to send an email referencing Material Detriment; or would it be better to reference Likely Material Detriment?

Dear EE

Pending the resolution of my outstanding claim regarding the change in terms and conditions, I would like it noted that I reject the price rise that you recently informed me of by letter, and request an immediate penalty free cancellation as the change is of Material Detriment to me.


Regards,

You could add "likely" as that is an easier thing to prove, but I don't think at that at tis stage it makes much difference as you are already fighting the T&C change and post #800 is just to make sure that if you lose, and don't want to go via SCC you still have an option to fight again on the price increase itself.

nsabournemouth

THe only difference in the defence I have is this compared to anyone else.

21. The clause specifically refers to RPI and not Consumer Price Index (‘CPI’).

CPI and RPI are measured in different ways and takes into account different

factors in determining the figure for the relevant month. CPI figures can indeed

be higher than the RPI figures. The Respondent has historically relied only

upon the RPI figure and not CPI. The Respondent’s business decision to rely

solely upon the RPI as a measure creates certainty to the Claimant as to which

measure will be used. In any event, the Respondent submits that even if the

CPI figure had been used as a measure that an increase by a CPI measure would

not be regarded as an increase which would constitute a material detriment to

the Claimant.

RandomCurve

Email below sent to Lynn at Ofcom and [EMAIL="compliants@idrs.ltd.uk"]compliants@idrs.ltd.uk[/EMAIL]

RandomCurve wrote: »

Dear Lynn,

I know Ofcom cannot get involved in the below, but I feel Ofcom should be aware of the poor standard of some of the adjudicators at CISAS (there seems to be no mechanism anywhere for logging this, please advise if there is a formal mechanism).

Regarding EEs change in T&Cs, of the 16 cases I am aware of to date 13 have won (i,e the change in T&Cs was likely to be of Material Detriment – so EE have not complied with GC 9.6), and 3 cases have been lost.

Of the 3 lost cases, 2 have logical and reasoned explanations of how the decision was arrived at, and there are no issues with this - the case will simply be pursued via Small Claims. The third case however is very worrying.

Background:
Under GC 9.6 the remedy available to a customer if a change in T&Cs is likely to be of Material detriment is a penalty free cancellation, and this is what the customer had argued, there is no option (for the customer or EE (except by mutual agreement) to leave the terms unchanged).

The adjudicator can only rule on the facts as presented – they should not bring other considerations into the process.

Anything that has yet to happen can only ever be theoretical.

The Ruling:
The adjudicator ruled against the consumer – without actually making a determination as to whether or not the change was likely to be of Material detriment had occurred - and the following are quotes from the decision:

“The customer’s arguments are [ONE] undermined in that he is does not seek to maintain the existing terms of the contract so that he would not be disadvantaged in the future (which he in any cases argues are unenforceable). [TWO] This raises the question as to why the customer entered the contract freely and willingly in the first place. Instead he seeks financial compensation and wishes to leave his contract without early termination charges being applied by the company. [THREE]I find the claims of the customer to be based on theoretical arguments of circumstances that may or may not happen in the future rather than on any real dispute whereby the customer has suffered or lost through real circumstances.

c. Overall I consider that the arguments presented by the customer are little more than opinions which are insufficiently supported by evidence. On that basis I find the claim fails

I have underlined the points of the adjudicator’s conclusion that clearly show:
ONE - the adjudicator has shown that they do not understand the remedies available under GC 9.6,
TWO - they have introduced irrelevant factors into the decision (a person’s motivate for entering into a contract has no bearing on of the change in T&Cs that EE have introduced is of Material Detriment or not)
THREE – The adjudicators are paid to weigh up the factors of theoretical and future situations to reach a logical conclusion.


The reasoning (rather than the actuals decision) brings the whole ADR process into disrepute, and appears to indicate that some adjudicators have a natural bias towards the CPs (on the facts presented the adjudicator could just as easily have said that EE had not offered the customer an opportunity to stay on the same terms which indicates the company stands to gain from the change, and is of material detriment to the customer).


Any advice on where a complaint against an adjudicator could be taken will be much appreciated.




Regards

RandomCurve

nsabournemouth wrote: »

THe only difference in the defence I have is this compared to anyone else.

21. The clause specifically refers to RPI and not Consumer Price Index (‘CPI’).

CPI and RPI are measured in different ways and takes into account different

factors in determining the figure for the relevant month. CPI figures can indeed

be higher than the RPI figures. The Respondent has historically relied only

upon the RPI figure and not CPI. The Respondent’s business decision to rely

solely upon the RPI as a measure creates certainty to the Claimant as to which

measure will be used. In any event, the Respondent submits that even if the

CPI figure had been used as a measure that an increase by a CPI measure would

not be regarded as an increase which would constitute a material detriment to

the Claimant.

"whilst the contract specifically mentions RPI it also refers to "OR ANY OTHER statistical measure of inflation" this is wide ranging, but can and does include CPI which is lower (see the abstract from the Office of Budget Responsibility) than RPI"


You could also mention that historically RPI was the official measure of UK inflation, but from March 2013 (11 months before EE changed the T&Cs) the RPI lost its designation as a National Statistic (due to flawed calculation methodologies which are not compliant with international standards), and was replaced with CPI.