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EE.T-Mob.Orange. Change T&C From 26th March 2014
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Comments
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Not too sure where you will stand with this,
The ee website says ;
"The new terms and conditions affect all customers who joined or upgraded on or after 30 October 2012 and before 23 January 2014"
Probably best to see what RC has to say, as i'm sure there will still be an claim.
Did you upgrade over the phone? Were you told of the change in terms then?
No I wasn't, I upgraded in a Phones4U store.
I have double checked my T&C's and it clearly stipulates that any change in T&C's I have a right to terminate. I definitely got a text saying T&C conditions will change.
No price rise letter as of yet though.0 -
PenguinJoshy wrote: »No I wasn't, I upgraded in a Phones4U store.
I have double checked my T&C's and it clearly stipulates that any change in T&C's I have a right to terminate. I definitely got a text saying T&C conditions will change.
No price rise letter as of yet though.
23rd January - you could not have picked a more awkward day!
It will all boil down to if your new EE T&Cs are on the pre or post Ofcom rule change T&Cs.
Basically if you have received a PRICE RISE notification relating to the EE contract then you are on the OLD Ofcom rules (but EE often have incorrect information on their systems). So to be sure you need to see what the contract says re price increases if it is along the lines of:
Initial price A +RPI in Feb 2015 = price B, and then Price B + Feb 2016 RPI,
then it is a new contract - so you can't use this forum.
Otherwise it is an old contract and you should be able to use the forum (although you are over the 30 day limit, but I think that is okay). Alternatively try the price rise forum:
https://forums.moneysavingexpert.com/discussion/4818999
Added Info:
Just checked - your price rise clause should read:
7.2.3.3. The change that We gave You Written Notice of in
point 7.1.4 is: (i) an increase in Your Price Plan Charge (as a percentage) higher than any increase in the retail price index (also calculated as a percentage) or any other statistical measure of inflation published by any government body authorised to publish measures of inflation from time to time, and published on a date as close as reasonably possible before the date on which We send You Written Notice
Lets hope that it does AND that they have imposed a 2.7% price rise - as you can escape this one penalty free!!!0 -
I've just had my case rejected by CISAS (Alison Dablin):mad:
Used RC's templates and I know from previous posts that she has accepted others peoples claim so cant understand this, is it worth trying the price hike thread/claim?0 -
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I've just had my case rejected by CISAS (Alison Dablin):mad:
Used RC's templates and I know from previous posts that she has accepted others peoples claim so cant understand this, is it worth trying the price hike thread/claim?
What did she actually say? And did you follow up EE's evidence?0 -
Hello RC,
Thanks for all of your help in getting this far, was a bit surprised by the result.
im on a post oct EE contract, can paste her full reply but she seems to be in agreement that the change is likely to be of detriment to me, but I have failed to provide any quantifiable evidence of this in my claim so it is not judged to be of material detriment and therefore I am not entitled to end the contract early.
This seems ridiculous to me, surely I shouldn't have to jump through hoops and provide pages of evidence as they've already made the decision on several occasions that the change allows people to cancel so surely any evidence or perceived lack of evidence on my part is irrelevant?
Thanks
Just to add, I did reply to EE's defence with RC's template and had email confirmation of this when I was given an adjudicator0 -
I've just had my case rejected by CISAS (Alison Dablin):mad:
Used RC's templates and I know from previous posts that she has accepted others peoples claim so cant understand this, is it worth trying the price hike thread/claim?
I also has Alison Dablin. Whilst I did get my penalty free cancellation, she did not award me my compensation.
If anyone gets Alison Dablin, keep your fingers crossed.0 -
Hi RC,
You have been a real credit to this forum! I am a victim of EE's increase in price. I am on the contract pre Jan 2014 and used your initial first template for the email to the Executive Office about the change being of Material Detriment.
I then got the following response via post -
''Thank you for your email, received in the Executive Office, I have been asked to respond on behalf of EE.
I am sorry you are unhappy with the recent Price Increase. As a company we are committed to offering the best value for service which is why we have kept the increase to a minimum. The increase is a result of the rising costs to our business and is in line with the Retail Price Index (RPI), which is a measure of inflation.
We are obliged, as are all UK operators, to abide by General Condition 9.6 of the Ofcom. This condition sets out what we must do if a change is of material detriment to a customer, which is to provide 30 days' notice and allow a customer to end their agreement free of charge. When the changes are not of material detriment, the customer does not have the right to end their agreement. In the case of the price increase, the change is not of material detriment to customers.
The increase is in line with the Terms and Conditions of your contract specifically clause 7.1.4. As the increase is less than RPI should you wish to close the account early in accordance with clause 7.2.3.3 you would be subject to an early termination fee.
Whilst I understand this is not the outcome you were looking for, I trust I have clarified EE's position regarding this matter.
Yours Sincerely
Victoria Hunt''
I hope you can help me, I need some guidance on where to go next. Thank you so much.0 -
Defence received..COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
REFERENCE: **********
BETWEEN
*******
Claimant
and
EE LIMITED t/a ORANGE
(formerly EVERYTHING EVERYWHERE LIMITED)
Respondent
DEFENCE
1. The Respondent denies that it is liable to the Claimant as pleaded or at all.
2. The Respondent is a mobiletelecommunications network operator that enters
into Service Agreements with its customers to enable its customers to access its
network. The Claimant is one suchcustomer of the Respondent.
3. Access to the Respondent’s network is granted to the customer by way of the
issuance to the customer of a SIM card which is issued subject to the
Respondent’s then applicable conditions for telephone service.
4. The Claimant has been a customer of the Respondent since 7 March 2011. The
Claimant is registered with the Respondent as a consumer and was allocated
account number ****** upon connection. The Respondent submits that the
Claimant has one active mobile telephone number on the above account, being
*********** (“the Mobile Number”).
5. On 5 January 2013 the Claimant entered into a Service Upgrade Agreement
(“the Agreement”) with the Respondent inrespect of the Mobile Number via
one of the Respondent’s authorised retailers. The Claimant was provided with
the terms and conditions applicable to the Agreement at the point of entering
into the Agreement.
6. The Respondent maintains a paperless environment with regards to Service
Agreements entered into with its customers but does not retain a copy.
However, the Respondent maintains a record of the applicable terms and
conditions that govern each Service Agreement entered into.
7. At Schedule 1attached hereto is a copy of the Terms and Conditions for the
Supply of Orange Network Services – LEG300v15. The Respondent submits
that such terms and conditions relate to the original terms and conditions to the
Agreement.
8. At Schedule 2 attached hereto is a copy of the amended terms and conditions –
Terms and Conditions for the Supply of Orange Network Services –
LEG300v15A, to be subject to the Agreement and take effect as of the 26
th
March 2014.
9. The Respondent submits that this dispute, as per the Claimant’s application,
arises from the Respondent’s amendment of the terms of the Agreement
between the Claimant and Respondent. The amendment changed the
circumstances in which a price rise gives the Claimant an automatic right to
terminate the Agreement, without paying a cancellation charge. The
amendment was introduced in light of recent Ofcom comments with the
intention of increasing certainty for consumers and is to the Claimant’s benefit.
10. As to the substance of this complaint, the Respondent’s position is that it has a
general right to change the terms of the Agreement, as per the terms and
conditions exhibited at Schedule 1. That right is subject to the right of the
Claimant under the terms of the Agreement and the regulatory scheme to
terminate the Agreement if the change is of material detriment to the Claimant.
However, in the present case, the change is not of detriment to the Claimant at
all, alternatively any detriment is marginal and not material. On the contrary, it
is to the Claimant’s benefit, and accordingly there is no right of termination.
11. The Respondent submits that they also consider that this dispute falls outside
CISAS’ remit on the grounds that (i) itdoes not fall within CISAS rule 2a;
and/or (ii) it falls within CISAS rule 2b.
12. This response addresses below:
a) The change to the Agreement;
b) The Respondent’s right to change the terms of the Agreement;
c) The Claimant’s right to terminate following a change if the change is
of material detriment;
d) Why the change is not of material detriment to the Claimant;
e) Why the dispute falls outside CISAS’ remit and/or is not
appropriately resolved by CISAS.
THE CHANGE TO THE AGREEMENT
13. The Agreement provides for a specific right for the Respondent to vary its
charges for services provided under the Agreement. The change about which
complaint is made concerns the terms which provide for when increases to the
Claimant’s £41.00 price plan (the main recurring monthly charge) gives a right
to terminate without paying a cancellation charge.
14. The Respondent confirms that between the 29
th
January 2014 and 14
th
February
2014 the Claimant was notified by SMS as to the amendment of the original
terms and conditions (at Schedule 1)to the amended terms and conditions (at
Schedule 2) (“the Written Notice”). Following the 14
th
February 2014 the
SMS delivery data was then analysed by the Respondent and letters confirming
the amendments were then sent out to the registered addresses of any customers
whose notification SMS had either failed or not been delivered. The
Respondent confirms that the sending of the above said notification letters to
the remaining un-notified customers was completed by the 21
st
February 2014.
The Respondent submits that this entire process was of course in compliance
with the relevant notice requirement as per point 19.11 which provides as
follows:-
19.11 All notices to be served in accordance with your Contract must be
served by post or facsimile. We can in addition serve notice to you by
voicemail, email, text or other form of electronic message, such as
notice through Your Account. Theywill be deemed served 48 hours
after they are sent, or on earlier proofof delivery. We may also send
you „over the air‟updates to your Device which may make some minor
adjustments to the functionality or display on your Device. You’ll need
to accept these changes which may include doing anything reasonable
we request. All invoices and notices served by post will be sent to the
address given by you on Registration unless you notify us of a change to
this address. Any waiver, concession orextra time we may allow you is
limited to the specific circumstances in which itis given and does not
affect our rights in any other way.
The Agreement prior to the Change
15. The Respondent refers to the terms and conditions at Schedule 1.
16. Prior to the changes in question, Point 15.1 of the Agreement provided:
15.1 We acknowledge that if we give you written notice to increase
the Charges, or introduce new mandatory Charges, and such a change
is to your material detriment you may terminate your Contract in
accordance with Condition 4.3. If you do not give notice within one
month of our notifying you of any change(s), you will be taken to have
accepted the change(s).
17. The Agreement further provided that the Claimant has a right to terminate the
Agreement without paying a cancellation charge where a price increase notified
was of material detriment to the Claimant or exceeded the rate of inflation
(Point 4.3).
4.3 You may also terminate your Contract if we give you
written notice to vary its terms, resulting in an increase in the
Charges or changes that alter your rights under this Contract to your
material detriment. In such cases you would need to give us at least
14 days written notice prior to your Billing Date (and within one
month of us giving you written notice about the changes). However
this option does not apply if:
4.3.1 we give you written notice to increase the Charges (as a
percentage) by an amount equal toor less than the percentage
increase in the All Items Index of Retail Prices or any other
statistical measure of inflation published by any government body
authorised to publish measures ofinflation from time to time, and
published on a date as close as reasonably possible before the date
on which we send you written notice
18. Point 4.3 above is referred to below as “the Old Term”.
19. The effect of point 4.3 and 4.3.1 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.
20. 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.
21. It is not clear whether the Claimant contends that the Old Term allowed the
Claimant to cancel if the price increase notified was less than RPI but higher
than some other statistical measure of inflation. If and to the extent that the
Claimant does make such a contention, the Respondent’s position is that, on its
proper construction, point 4.3.1 allowed them to select the measure of inflation
which was to be used. Moreover, it would now be for the Claimant to identify
the statistical measure of inflation which it is said should apply under point
4.3.1.
The Agreement after the Change
22. The Respondent refers to the terms and conditions as at Schedule 2.
23. The revised terms provides as follows:
4.3 You may also terminate your Contract if we give you
written notice to vary its terms, resulting in an increase in the
Charges or changes that alter your rights under this Contract to your
material detriment. In such cases you would need to give us at least
14 days written notice prior to your Billing Date (and within one
month of us giving you written notice about the changes). However
this option does not apply if:
4.3.1 the increase in the Charges (as a percentage) is equal to or
lower 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 4.3)
24. The effect of this term (“the New Term”) is that the Claimant has a right to
terminate the Agreement if the price increase is higher than RPI, calculated
using the most recently published RPI figures.
25. This change increases certainty for customers and reduces the scope for
disputes regarding whether a price changegives rise to a right to cancellation.
The Respondent’s right to change the terms of the Agreement
26. The Respondent is entitled to revise its terms pursuant to Point 15.1 of the
Agreement as set out above.
The Claimant has a right to terminate only if the change is of material detriment
27. The Agreement further provides that where a change notified under Point 15.1
is of material detriment to the Claimant, the Claimant has a right to terminate
the Agreement in accordance with Point 4.3 without paying a cancellation
charge. However, if the change notified is not of material detriment and the
Claimant is within their minimum term, the Claimant does not have such right
of termination.
28. Points 4.3 and 15.1 provide (so far as material) as follows:
4.3 You may also terminate your Contract if we give you
written notice to vary its terms,resulting in an increase in
the Charges or changes that alter your rights under this
Contract to your material detriment. In such cases you
would need to give us at least 14 days written notice prior
to your Billing Date (and within one month of us giving
you written notice about the changes). However this
option does not apply if:
15.1 We acknowledge that if wegive you written notice to
increase the Charges, or introduce new mandatory
Charges, and such a change is to your material detriment
you may terminate your Contract in accordance with
Condition 4.3. If you do not give notice within one month
of our notifying you of any change(s), you will be taken to
have accepted the change(s).
29. The Written Notice provided to the Claimant implements General Condition
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 Change is not of material Detriment
30. The Change is not of material detriment for the following reasons.
31. Under both the Old Term and the New Term, the Claimant may cancel, without
incurring a cancellation charge, if the price increase notified by the Respondent
exceeds the rate of inflation as measured by RPI. In substance, the Claimant’s
rights of cancellation have therefore notbeen affected and the Claimant has
suffered no detriment whatsoever.
32. On the contrary, the effect of the changes is to benefit the Claimant. The
changes make clear and certain the specific published measure of inflation
which may be used for the purposes of this comparison. Out of date and
potentially confusing references to other statistical measures of inflation have
been removed. The changes therefore will enable the Claimant to identify when
a right of cancellation arises.
33. Alternatively, if and to the extent thatthe Claimant has suffered any marginal
detriment, such detriment is not material.
33.1. The only circumstance in which it could be said that the Claimant has
suffered detriment would be if it were established that the Old Term
allowed the Claimant to terminate,without incurring a cancellation
charge, in circumstances where the price rise notified was less than RPI,
but higher than some other statistical measure of inflation.
33.2. In order to demonstrate that the change was of material detriment, the
Claimant would need to (i) identify such other statistical measure of
inflation which it is said would qualify under the Old Term; (ii) identify
the difference over the period of the Claimant’s minimum term between
price rises which would be calculatedaccording to RPI and price rises
which would be calculated according to the alternative measure of
inflation and (iii) establish that the difference between such price rises
qualifies as material detriment under Point 4.3.
33.4 Further or alternatively, it is submitted that the difference between any
two measures of inflation which would qualify under point 4.3 is not
sufficient to be material when applied to the amount of the Claimant’s
bills over the course of the Claimant’s remaining minimum term.
33.5 In particular and by way of illustration, a historic comparison of RPI to
CPI shows that the difference between the two is not typically material
the following table sets out, for each of the last 24 months:-
(A) the percentage change in CPI over the previous 12 month
period;
(B) the percentage change in RPI over the previous 12 month
period;
(C) the difference, in percentage points, between the percentage
change in CPI and RPI over the previous 12 month period; and
(D) the average of the difference in the percentage changes in CPI
and RPI, calculated over the 24 months period
1
1
The figures in this table have been obtained ons.gov.uk/ons/rel/cpi/consumer-priceindices/february-2014/consumer-price-inflation-reference-tables.xls.
Month A. % change in CPI
over previous 12
month period
B. % change in RPI
over previous 12
month period
C. Difference in
percentage points
Mar 2012 3.5 3.6 0.1
Apr 3.0 3.5 0.5
May 2.8 3.1 0.3
Jun 2.4 2.8 0.4
Jul 2.6 3.2 0.6
Aug 2.5 2.9 0.4
Sep 2.2 2.6 0.4
Oct 2.7 3.2 0.5
Nov 2.7 3.0 0.3
Dec 2.7 3.1 0.4
Jan 2013 2.7 3.3 0.6
Feb 2.8 3.2 0.4
Mar 2.8 3.3 0.5
Apr 2.4 2.9 0.5
May 2.7 3.1 0.4
Jun 2.9 3.3 0.4
Jul 2.8 3.1 0.3
Aug 2.7 3.3 0.6
Sep 2.7 3.2 0.5
Oct 2.2 2.6 0.4
Nov 2.1 2.6 0.5
Dec 2.0 2.7 0.7
Jan 1.9 2.8 0.9
Feb 2014 1.7 2.7 1.0
D. Average
difference
between %
change in CPI
and RPI over
previous 12
month period
0.5
33.6 Accordingly, applied to a typical monthly bill of £30, the average
difference between the maximum price rise under the New Term (i.e. a
price rise which does not trigger a right to termination) and the
maximum price rise under the Old Term, calculated by reference to CPI
would be 0.5% x £30 per month = 15 pence per month. Even taken over
the longest possible period of 24 months
2
, the total detriment would
amount to only £3.60 compared to total bills of £720 over the period. It
is likely that the detriment would be less than this. It is submitted that
such a small difference is not capableof being material. Further, it is
difficult to envisage any detriment which could be less material and if
this change were found to be material, it would deprive the materiality
condition of any meaning whatsoever.
THE DISPUTE FALLS OUTSIDE CISAS’ REMIT
34. The dispute cannot be settled by CISAS under Rule 2 of the CISAS Rules insofar
as it concerns whether the Claimant is entitled to cancel the Agreement by reason
of the Respondent’s amendments to terms 4.3 and/or 15.1 on the grounds that those
amendments are modifications likely to be of material detriment to the Claimant.
The material detriment issue does not relate to any of the matters set out in Rule 2a
and/or involves a complicated issue of law.
35. The Material Detriment Issue does not relate to any of the matters set out in Rule
2a.
35.1. Bills: It does not relate to any bill issued by the Respondent to the
Claimant.
35.2. Customer Service: It does not relateto the quality ofcustomer service
provided by the Respondent to the Claimant.
35.3. Communications Services: For the reasons further set out below, the
reference in Rule 2a to “Communications services providedto 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
2
24 months is the longest initial commitment period permissible under General Condition 9.4
Dispute Resolution Scheme, … for the resolution of disputes …in relation
to the provision of Public Electronic Communications Services.”
Electronic Communications Servicesare 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.
36. Further or alternatively, the material detriment issue constitutes a complicated
issue of law.
36.1. A proper resolution of the case would require CISAS to consider (i) the
proper construction of the Old Term, as a matter of contract; (ii) the
proper construction of the New Term, as a matter of contract; (iii) the
proper construction of the term “material detriment”; and (iv) whether, in
light of those matters, the change from the Old Term to the New Term
was of such material detriment. Each of points (i), (iii) and (iv) involves
complicated issues of law.
36.2. As noted above the proper construction of the Old Term may not be easy
to establish. It does not make clear which statistical measures of inflation
may be used for the purposes of comparison.
36.3. 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 GC9.6.
The fact that Ofcom has recentlypublished guidance on the issue of
material detriment in respect of price change Points indicates that absent
such guidance, the issue of material detriment is unclear; and that the
considerations applicable to determining material detriment can be
complicated.
36.4. The application of the material detriment test to the change of terms is
doubly complex. It is not sufficient simply that it is theoretically possible
that the change could be of some detriment to the customer. Rather it is
necessary that the Claimant identifythe degree to which the Old and New
Terms would differ, if applied to him, and to establish that that difference
is material.
37. For the reasons stated above the Respondentdenies 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 points as per the applicable terms and
conditions.
38. The Respondent notes that the Claimant has made no complaint as to customer
services or any other issues and in any event, the Respondent submits that the
Claimant was provided with a good level ofcustomer services at all times and
that any dissatisfaction on the part of the Claimant simply stems from the fact
that he was unhappy with the information provided to him regarding the change
to the Respondent’s terms and conditionsand the Respondent’s confirmation to
the Claimant that he would not be ableto cancel the Agreement without payment
of a cancellation charge, which is a remedy to which he is not entitled due to the
change to the terms of the Agreement.
39. The Respondent submits that it will provide a Port Authorisation Code (“PAC”)
to the Claimant upon request, however it is the Respondent’s position that the
Claimant will remain liable for a cancellation charge in accordance with Points
4.2 and 4.3 of the Agreement, which is currently the sum of £281.27, reducing on
a daily basis.
13. The Claimant claims the sum of £100 in compensation. The Respondent
denies that the Claimant is entitled to compensation in the sum of £100 as
pleaded or at all. If the Claimanthad suffered actual loss he would have
pleaded that damage as a quantified sum and furthermore provided evidence to
support such a claim. The Claimant has not done so and asa consequence is
not entitled to any compensation. The Claimant is hereby put to strict proof as
to his purported loss.
40. The Respondent denies that it is liable tothe Claimant as pleaded or at all in
respect of this matter and submits that the Claimant’s claim should be dismissed
in its entirety.
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 23
rd
April 2014
Helen Young
Legal Assistant
For and on behalf of the Respondent whose address for service is at:
EE Limited
Legal Department
Trident Place
Mosquito Way
Hatfield
Hertfordshire
AL10 9BW
This is way over my head guys, am I OK to use RC's template with this defence?0
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