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

RandomCurve

I may be unable to post again until Wednesday night, but I will be watching!!!


Baldyj - any chance of an updated score board?

nsabournemouth

Here's my take on what EE have responded with. I know RC has done some great work so what I've done is take most of what RC has come up with plus some responses from CISAS.

I've concentrated on material detriment and the USDs along with CPI and RPI as advised by RC. I'm concerned that as Orange seem to use the copy and paste function, CISAS may well do the same so I've tried to mix things up slightly.

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 and under the old term, the current 2.7% increase that will come in force in May this year proves that as CPI would have been 1.7%. Hiistorically 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.

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 an alternative conclusion that it is. 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.

Whilst EE have tried to “sell” this change as a benefit to me as it makes the terms clear, this very fact reduces my potential to challenge future price rises- which EE acknowledge .reduces the scope for disputes regarding whether a price change gives rise to a right to cancellation. If my potential rights to a penalty free cancellation are reduced the change is obviously not to my benefit – in fact it is of a significant material detriment. Additionally in their defence, EE concede that there may be a marginal determent “ ....to the extent that the claimant has suffered any marginal detriment, such detriment is not material”. EEs defence has clear evidence that the change is neither neutral or to my benefit and therefore as per Ofcom’s rationale for including the term “likely to be of Material detriment” at paragraph 3.6 of their publication any change which is neither neutral or not to my benefit is to my Material detriment. Therefore this change gives rise to my right to a penalty free cancellation under GC 9.6, as per my CISAS claim –the change is likely to be of Material Detriment to me regardless as to the fact that the USD gives me the right to walk away free from penalty.

As per the defence from EE, they appear to be relying on the fact that the term Material Detriment” “..is not defined explicitly in the agreement” However as we are now considering the contractual context of the term the protection of the UTCCRs is available. The UTCCRs are clear that in a standard form contract between a business and a consumer where a term is not written in plain and intelligible language the meaning most advantageous to the consumer should be used:


Under the UTCCRs Group 19 Regulation 7 states that:

(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under Regulation 12.


Given that EE have failed to define Material detriment in the standard form contract which they wrote (as admitted by EE) then the meaning of “Material Detriment” is a purely subjective meaning – we can all understand the words, but we may not be able to agree on their meaning. Therefore under UTCCRs regulation 7 the interpretation most favourable to me – the consumer - should prevail, and my interpretation of Material detriment is any change that is not to my benefit (which is a slightly higher test than that required under Ofcom’s rationale at GC 9.6, but is in line with USD 20/2) as to my mind even a change that appears to be neutral is in fact unlikely to be to my benefit as EE directors have a duty of care to the company and incurring expense to change a T&C for a neutral impact would not be consistent with discharging that duty of care. Despite EEs attempts to “sell” this as a change for my benefit it is actually a change for EEs benefit as it gives them a stronger position to defend future price increases. This is clearly not to my benefit (any benefit to me of having a clearer term is outweighed by the detriment of having a reduced scope to challenge a price increase). By applying the UTCCRs it is clear that this change should be considered to be likely to be of Material Detriment (as per my CISAS claim) and I should be allowed to leave the contract penalty free as per the contractual T&Cs.



Further EE claim that the change is to my benefit as they have made the T&C's clearer, however if EE were really concerned with making their terms clearer for my benefit then at the same time as making this change they would have removed the phrase "Material Detriment" which is clearly an unclear term (as EE are aware as per their defence document). This omission by EE must bring into question the real motive behind only making the price rise clause clearer and I suspect the change has more to do with giving EE a greater security of enforcement than it does to offering a benefit to me


EE state that they believe this falls outside of the remit of CISAS, however as the change in T&Cs will have a direct impact on the amount EE will bill me for the provision of telecommunications service it clearly is connected with both the billing for and provision of telecommunications services and therefore should fall within CISAS’ remit.

EE have referenced their right to amend T&Cs and this is not being disputed, however EE will be aware (and do reference in their defence) that with a fixed term standard form contract there are numerous legislative and regulatory safeguards to protect the consumer and just because EE has included Terms that allow it to change “T&Cs for any good reason” does not mean that these are necessarily enforceable,. Additionally as a Mobile phone contract Terms and condition are not only subject to the UTCCRs but also Ofcom General Conditions (and in particular GC 9.6) and where necessary the source documentation for GC 9.6 which is USD 20/2 (which clearly states that during a fixed term a modification to the T&Cs must give the consumer a corresponding right to withdraw from the contract penalty free).

Therefore I ask that CISAS find in my favour based on the points I have raised.

LoopLife

Hey guys,

I'm new to this forum and I've joined seeking advice.

I took out a T-mobile contract in November 2013. Since I've had the phone (iPhone 5S), I don't get much signal coverage in my house and rarely receive 3G, it's just usually GPRS and as you can imagine the speeds are absolutely terrible (I've got proof in the form of print screens from the speed test on my phone).

Also, when I took out the contract I agreed to £37.99 per month and the £3 charge of non direct debit, yet they've charged me £43.50 every month (I don't get itemised bills or anything else) which I'm yet to contest.

I didn't get a text/letter about them renewing the terms and conditions either, but I did get the 2.7% RPI letter last week.

Now, due to the three things mentioned above, I'm sure there must be grounds for me to be able to get out of my contract penalty free.

Just curious which way you guys think would be the best way to go about it?

Any help would be greatly appreciated, cheers!

PEllix

Hey folks, I posted this question a few days ago (post 1000 for the full text of their response) but haven't noticed any response to my query. Does anyone know what the advice would be for how to respond? (I have until the 16th to respond)

I have received T-Mobile's response through CISAS (I've been using the templates kindly provided here for this). I'm not sure if there has been a template drawn up for a response to this (in post #769 RandomCurve suggested that persil33 could respond with the templates from posts #688 and#689 - was this for the pre-October part of their response?)

Ghastous

Im new to this forum but today i got my letter saying im getting a price hike can any 1 please help so i can get outa my EE contract

Thanks

jakethepeguk

@ Phellix, posts 688 and 689, just apply the one applicable for your contract.
Make sure you check the paragraphs as EE will change the numbers to throw your claim off scent.

Keverso

Hi all,

I have a deadlock letter and am ready to apply to CISAS. Can someone please point me to the post that details the best way to do this and the RC template to use?

This thread is getting so long it's starting to get hard to find thins 20 or 30 pages back.

Thanks for all the help so far and fingers crossed for the claim.

Keverso.

rectangle

RC, could you make another summary post detailing the locations of all the letters to send? For the newbies :-)

50Twuncle

LoopLife wrote: »

Hey guys,

I'm new to this forum and I've joined seeking advice.

I took out a T-mobile contract in November 2013. Since I've had the phone (iPhone 5S), I don't get much signal coverage in my house and rarely receive 3G, it's just usually GPRS and as you can imagine the speeds are absolutely terrible (I've got proof in the form of print screens from the speed test on my phone).

Also, when I took out the contract I agreed to £37.99 per month and the £3 charge of non direct debit, yet they've charged me £43.50 every month (I don't get itemised bills or anything else) which I'm yet to contest.

I didn't get a text/letter about them renewing the terms and conditions either, but I did get the 2.7% RPI letter last week.

Now, due to the three things mentioned above, I'm sure there must be grounds for me to be able to get out of my contract penalty free.

Just curious which way you guys think would be the best way to go about it?

Any help would be greatly appreciated, cheers!

I would consider CHARGEBACK using DD guarantee (speak with your bank) to recover the overcharged DD (this will cost EE money !!).
Do you have any written evidence that EE have mischarged you ?
ie) Any paperwork from when you signed your life away ?
I would also be looking for billing evidence - ask EE for written/itemised bills ...
Your signal is going to be more difficult to use in your favour - why leave it so long before realising that the signal was inadequate or has it deteriorated recently ?

baldyj

03029174 wrote: »

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?

Yes they are the right addresses. Give a minimum of 7 days.