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

baldyj

Summary of progress so far (please review and correct if i have made any mistakes):

Bimmermad:
EE/Post Oct '12/Used RC's Template/Thomas Earley adjudicated.
WON! Contract terminated, full compensation figure awarded

SimonD316 (x2 Contracts):
Orange/Pre Oct '12/Edited RC's Template/Justine Mensa-Bonsu adjudicated.
WON! Contracts terminated, full compensation figure awarded

sshariff:
Orange/Pre Oct '12/Edited or didn't use RC's Template/Uju Obi adjudicated
WON! Contract terminated, full compensation figure awarded

BananaPilot:
EE/Post Oct '12/Edited or didn't use RC's Template/Thomas Earley adjudicated.
LOST!

23six (1/2):
T-Mobile/Post Oct '12/Used RC's Template (no response to EE defence submitted)/Clive Saunders adjudicated.
WON! Contract Terminated, partial compensation awarded

23six (2/2):
T-Mobile/Pre Oct '12/Used RC's Template (no response to EE defence submitted)/Clive Saunders adjudicated.
LOST!

Sunnyhaze (x2 Contracts):
EE/Post Oct '12/Edited or didn't use RC's Template/adjudicator not named yet.
WON! Contracts Terminated, no compensation requested or rewarded.

Nodding Donkey:
Orange/Pre Oct '12/Used RC's Templates/D Stoker adjudicated.
WON! Contract Terminated, full compensation awarded.

Jon1555:
Orange/Post Oct '12/Used RC's Templates/Clive Saunders adjudicated.
WON! Contract Terminated, partial compensation awarded.

Smeghead Dave Lister:
Orange/??/??/??
WON! Contract Terminated, ?? compensation.

jakethepeguk (1/2):
Orange/Post Oct '12/Used RC's Templates/Eisei Higashi adjudicated
WON! Contract Terminated, full compensation awarded.

Dils47:
EE/Post Oct '12/Used RC's Templates/Vidette Ogden adjudicated
WON! Contract Terminated, full compensation awarded.

Maddy2k11:
Orange/Post Oct '12/Used RC's Templates/M. Coombes Davies adjudicated
Lost!

baldyj:
T-Mobile/Post Oct '12/Used RC's Templates/Mark McGeoch adjudicated
WON! Contract Terminated, full compensation awarded.

Lynus2004:
Orange/?/Used RC's Templates/Andrew Walker adjudicated
WON! Contract Terminated, full compensation awarded.

Liam-1987:
EE/Post Oct '12/Used RC's Templates/D Griffiths adjudicated
WON! Contract Terminated, No compensation awarded.

ben1390:
EE/Post Oct '12/Used RC's Template/Vidette Ogden adjudicated.
WON! Contract terminated, full compensation awarded

Ispeers:
EE/Post Oct '12/Used RC's Template/D.M Curnow adjudicated.
WON! Contract terminated, full compensation awarded

token78 (x2 Contracts):
EE/Post Oct '12/Used RC's Template/M E V Ogden adjudicated.
WON! Contracts terminated, No compensation awarded

shafeeq:
Orange/Pre Oct '12/Used RC's Template/E Higashi adjudicated.
WON! Contract terminated, full compensation awarded

condor2378:
Orange/Post Oct '12/Used RC's Template/Uju Obi adjudicated.
WON! Contract terminated, full compensation awarded

matty538:
Orange/Pre Oct '12/Used RC's Template/Uju Obi adjudicated.
WON! Contract terminated, full compensation awarded

cravin Penut (x2 Contracts):
EE/Post Oct '12/Used RC's Template/E Higashi adjudicated.
WON! Contracts terminated, full compensation awarded

ed_209:
EE/Post Oct '12/Used RC's Template/Abigail Jennings adjudicated.
WON! Contract terminated, full compensation awarded

jakethepeguk (2/2):
T-Mobile/Post Oct '12/Used RC's Templates/Uji Obi adjudicated
WON! Contract Terminated, full compensation awarded.

Baggyj:
EE/Post Oct '12/Used RC's Template/Stacey Edgar adjudicated.
WON! Contract terminated, full compensation awarded

rectangle:
Orange/Post Oct '12/Used RC's Template/Alison Dablin adjudicated.
WON! Contract terminated, No compensation awarded

persil33 (x2 Contracts):
T-mobile/1x Post Oct '12, 1x Pre Oct '12/Used RC's Template/Dean Taylor adjudicated.
WON! Contracts terminated, full compensation awarded

Alonso33:
EE/Post Oct '12/Edited RC's Template/Alison Dablin adjudicated.
LOST!

30/34 wins so far, and i think in three of the cases that lost, two would have won if RC's template was used, and the other maybe could have won if a reply to the EE defence had been submitted!

Bimmermad

So I sent EE an email to remind them tht they have until the 12th may to comply with CISAS decision and I am still waiting for a reply. Just wondering whether anyone else had to send an email to remind them in order to receive their PAC code if so how long would it take?? Is there a point in calling customer service??

RandomCurve

Bimmermad wrote: »

So I sent EE an email to remind them tht they have until the 12th may to comply with CISAS decision and I am still waiting for a reply. Just wondering whether anyone else had to send an email to remind them in order to receive their PAC code if so how long would it take?? Is there a point in calling customer service??

Unless you have a real reason to leave immediately, then just leave it. They have to pay back anything they take - They have had the response from CISAS.

Ajan

Just seen your post #68! I've used this.

RandomCurve

Ajan wrote: »

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 hope you can help me, I need some guidance on where to go next. Thank you so much.

No problem - you need the price rice forum linked below - post #175 is the response to send.


https://forums.moneysavingexpert.com/discussion/4818999

dazz7400

RandomCurve wrote: »

You have not missed the boat (you have 30 days to request cancellation). I am a little confused as to why you only received a notification of the T&C change until April, was that notification actually the PRICE INCREASE notification or the change in T&Cs?
And can you confirm which email you sent?

Ok, I apologise. It was indeed a letter stating the RPI price change and not a notification of a change to the terms and conditions. I couldn't find the letter last night to confirm this but have it to hand now.

The email I sent was the one in post #44 to EE


Thank You

ghost3h

RandomCurve wrote: »

Price rise or change in T&Cs email?

the 1st email requesting cancellation, post #44

Should I re-send it?

Alonso33

Copy of my rejection (from Alison Dablin) decision below in case this helps anyone else.




[FONT=Arial,Arial][FONT=Arial,Arial] [/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]Decision
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]1. The claim does not succeed.
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]Main issues
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]2. I consider that the main issues in this adjudication are:
a. Whether the company has broken a term of the contract between it and the customer or failed in its duty of care.
b. Whether the reasons given by the customer are sufficient to justify termination of the agreement.
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[/FONT][/FONT] [FONT=Arial,Arial][FONT=Arial,Arial]Background information
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]3. In order to succeed in a claim against the company the customer must prove on a balance of probabilities that the company has broken some term express or implied of the agreement which existed between them, or failed in the duty of care which the company owed to the customer and that as a result of this breach the customer has suffered loss. (A duty of care is a responsibility or a legal obligation of the company to avoid acts or omissions which can be reasonably foreseen to be likely to cause harm to others). If no such breach or loss is proved the company will not be liable to pay compensation however disappointed or upset the customer is.
4. The customer and the company are aware of the facts of this case. I do not propose to recount all the facts in the same manner and order as the parties have done in their documents except where it is necessary for the purposes of this decision. I have carefully considered all of the documents submitted by the parties in support of their submissions and presented to me. The parties should also be reassured that if I have not referred to a particular document or matter specifically, this should not be taken to mean that I have not considered it in reaching my decision.
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]Customer’s and company’s positions
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]5. The customer states that he was sent a notification informing him of an alteration to the contract terms. The customer sent an email to cancel his agreement and refers to Directive 2002/22/EC, prescribing that ‘subscribers shall have the right to withdraw from their contracts without penalty upon notice of proposed modification in the contractual conditions’. The company has refused the request to terminate the agreement and stated that this was its final position.
6. The company submits that the case falls outside the scope of CISAS as it does not relate to bills, customer service or communication services provided to customers, and it involves a complicated area of law. The company changed a term of its contract as the old term was ‘insufficiently clear’. The change is not of material detriment; the customer retains the right to terminate the agreement without charge in the event a price exceeds the RPI rate. The company submits that the change is to the benefit of the customer as it makes the term clear and certain, removing out of date and potentially confusing references. If the customer has suffered detriment, this will be marginal and not material. The company denies that the customer is entitled to the remedies requested.
7. The customer has responded to the company’s defence submitting that the claim is within the scope of CISAS and that it is in relation to a consumer contract that must not be complex. The customer explores the definition of material detriment. He also reiterates the reasons for his
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[/FONT][/FONT] 　
[FONT=Arial,Arial][FONT=Arial,Arial]compensation claim. The customer submits that the old term was potentially unenforceable and the change to an enforceable term is therefore of material detriment. As per the CPI rates, the change means the customer is likely to experience material detriment.
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]Adjudicator’s findings and reasons
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]8. I find that:
a. The company has submitted that the case falls outside the scope of the CISAS Scheme. I do not accept this. I find that the issue of whether the customer is entitled to terminate the agreement without penalty flows from the interpretation of the contract between the parties and must therefore be considered an issue relating to the company’s provision of communication services, governed by the terms of that contract. I am also not persuaded that this is a complicated issue of law as it does not raise issues that are outside the competence of an adjudicator or that are outside the scope of the CISAS Scheme. I shall therefore proceed to determine the case.
b. I take this opportunity to remind the parties that new matters or evidence must not be introduced in the customer’s reply. I note that the customer has provided new submissions in relation to the CPI. Under Rule 4.3c of the CISAS Scheme, I must disregard this. My decision will therefore be based upon the evidence provided in the claim and the defence, and the comments made within the reply only.
c. The dispute flows from the company’s decision to change clause 4.3.1 in version LEG300v15 of its terms and conditions. For reasons of clarity, I have included the old and new versions of this clause below:
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]"4.3.1 we give you written notice to increase the Charges (as a percentage) by an amount equal to or 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 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; or" [/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial](the Old Term) [/FONT][/FONT]
[FONT=Arial,Arial][FONT=Arial,Arial] [/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]"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); or" [/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial](the New Term) [/FONT][/FONT]
[FONT=Arial,Arial][FONT=Arial,Arial] [/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]d. The customer submits that he is entitled under the Universal Service Directive 2003/22/EC to withdraw from the agreement without penalty upon notification of any
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[/FONT][/FONT] 　
[FONT=Arial,Arial][FONT=Arial,Arial]‘proposed modifications in the contractual conditions’. I note that this is a Directive and that it is therefore not directly applicable into English law. An item of English legislation is required in order to enable the Directive to be effective in English law. I find that the Directive and enabling legislation has been enshrined in the OFCOM General Conditions, 9.6.
e. The General Condition 9.6 provides:
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]"The Communications Provider shall:
(a) give its Subscribers adequate notice not shorter than one month of any modifications likely to be of material detriment to that Subscriber;
(b) allow its Subscribers to withdraw from their contract without penalty upon such notice; and
(c) at the same time as giving the notice in condition 9.6 (a) above, shall inform the Subscriber of its ability to terminate the contract without penalty if the proposed modification is not acceptable to the Subscriber."
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial] [/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]Accordingly, the customer is entitled to terminate the agreement without penalty in the event it can be established, on the balance of probabilities, that the change to the contract is likely to be of material detriment to the customer.
f. The General Conditions do not provide a definitive definition of what constitutes ‘material detriment’. However I am satisfied that on an ordinary reading of the condition, it is clear that for a change to constitute a material detriment, it must firstly be of detriment to the customer (ie not neutral or beneficial to him) and that detriment must be material (ie real, quantifiable, significant and not immaterial).
g. I accept the customer’s submission that the Old Term must be read such that the customer is entitled to terminate if the increase is in excess of any of the RPI or other such statistical measure. I reject the company’s interpretation that this term entitled it to choose the measure to refer to. Standard contract terms in consumer contracts must be read in the manner most beneficial to the consumer, and I find that the company’s interpretation is not readily apparent from an ordinary reading of the term, and furthermore would be unclear and unfair to the consumer and therefore would be unenforceable.
h. In view of the above, I am satisfied that the change from the Old Term to the New Term is likely to be of detriment to the customer as it restricts the right to terminate to only those instances where a price increase is in excess of the RPI. However it does not follow that a change that is of detriment to the customer will also be of material detriment.
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[/FONT][/FONT] 　
[FONT=Arial,Arial][FONT=Arial,Arial]The customer must show, on the balance of probabilities, that the detriment is real, significant and quantifiable.
i. The customer has not provided any evidence in his claim to show that the restriction of the termination right in the New Term will cause any quantifiable detriment to him. As above, I am not persuaded that the amendment to the term is, by itself, of material detriment. Accordingly, as the customer has not shown that he is likely to suffer a detriment that is material from the change to the New Term, I must find that he is not entitled to terminate the agreement without early termination fees applying.
j. I therefore find that the customer has not proven his claim on the balance of probabilities, and it is therefore unable to succeed.
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]Conclusion
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]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 for the company to termination of the agreement.
10. Therefore, my decision is that the claim does not succeed.
[/FONT][/FONT]

baldyj

Alonso33 wrote: »

Copy of my rejection (from Alison Dablin) decision below in case this helps anyone else.

By the sounds of it you didn't include the comparison of RPI vs CPI in RC's initial CISAS template, which is why you have lost.

Alonso33

thanks for the reply baldyj, thought I had used the right template but cant find the original email I sent so maybe I did send the wrong one?
My defence to EE did include the following from the template:


However as EE have raised the question (albeit irrelevant to determining what the term Material Detriment means) it should be borne in mind that under my interpretation of the old and new clause based on February 2014 inflation statistics the new clause allows EE to impose an increase 58.8% higher than was the case before – clearly of material detriment (RPI 2.7%, CPI 1.7% difference 1%, 1% as a percentage of 1.7 % is 58.8%) This is clearly of Material Detriment.


Either way, its disgusting that they can reject a claim on this basis when they have already ruled in favour of the customer in other cases, it shouldn't matter what my application says other than I wish to exercise my right to cancel due to the new terms and conditions.


The average customer can not be expected to compile a case of the complexity of RC's fantastic template just to be able to exercise their rights.


I don't know if its worth bothering but I will be making an official complaint about Alison Dablin to CISAS.


thanks for your reply.