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

Bimmermad

ben1390 wrote: »

How did you find out that would happen?



The decision was dated 14th April, I was notified on the 15th April and I accepted the same day and I got acceptance of the decision on the 24th April.

How long have you had to wait for EE to take action? Sorry if I seem impatient but I am keen to see the back of EE

I am exactly in the same situation here. I emailed EE last week to just remind them that that they had 3 more weeks to comply with the decision but I have not had response yet. Just wondering if I should call customer service.

SimonD316

I've emailed today reminding them they have just two weeks left to comply... I'll follow up next week and CC lynn @ ofcom.

I seem to remember RC said they will take as long as they like to comply, sometimes longer than the allowed 4 weeks

RandomCurve

tracy3108 wrote: »

I used the Cpi/Rpi, pretty much word for word from RC's templates, I guess it was my faulty for not including the number, however it was in Case defence from EE as all 4 numbers, it says on Cisas the adjudicator helped set up the mobile network we use today, funny he went in their favour.


I read back and noticed the LETTER BEFORE ACTION template, so I modified and sent this a few minutes ago.


But on a small claims form it asks how much are you claiming for, I want to send one in 7 days time but am unsure how much to put here.


Will it be total cancellation costs plus compensation?


If anyone can help here it would be appreciated, I don't want them to win!


Thanks again

We always said that the T-Mobile Pre 30th October contract was te one least likely to succeed, so I would not tak ethsi to te SCC. It is a pity that you never included the fourth number.


BUT on the positive side, the T-Mobile pre 30th October 2012 is the MOST LIKELY to win over on the price rise forum, the reason being:
In May 2013 the price rise of 3.3% applied to your account related to the MARCH 2013 RPI, but now in 2014 EE have applied the ANNUAL rate as at FEBRUARY 2014. i.e. they have applied 12 months worth of inflation to an 11 month period!!! the correct rate to have applied would have been 2.5% not 2.7%. So go for that approach - and do it for all four contracts. Post #165
https://forums.moneysavingexpert.com/discussion/4818999


The other plus side is that this little episode probably cost EE about £300, you know that it has cost them a lot more than they are ever going to recover from you - so in a way you have won!

ryan92

tracy3108 wrote: »

Hi all,


My 1st post now I have registered, I have been following thread and following RC's amazing templates, I followed and submitted my defence and got adjudicator Andrew Morris,
Decision - Does not succeed.
Is it worth me pursuing any further? If so could you help me out on what I need to do.
Plus I made an error and missed out one of my numbers!
Many Thanks
Phil


Below is my decision.
Main issues




[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 an apology, termination of his agreements backdated to 14 March 2014 and £100.00 compensation.


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[/FONT]Background information




[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.


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[/FONT]Customer’s and company’s positions




[FONT=Arial,Arial][FONT=Arial,Arial]5. The customer states that the company has made a change to its terms and conditions that is to his material detriment. He requests £100.00 compensation for the company not complying with General Condition 9.6, acting in breach of the Unfair Terms in Consumer Contracts Regulations, breaching its duty of care to him, and for not acting in good faith in the manner in which the change was presented to him. The customer submits that the RPI has consistently been greater than the CPI. The price is a core term and any term relating to changing the price must be clear and unambiguous. The USD 2002/22/EC allows a customer to terminate the agreement upon notice of any proposed modification to the contract. The customer submits that the company’s terms are likely unenforceable as ambiguous. The company has treated the customer unfairly and has failed to respond to his concerns. Any change to the contract would be of material detriment to the customer.


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6. The company states that the customer has four numbers registered with it. The first, second and third mobile numbers are subject to version 58 of the terms and conditions; the fourth mobile number is subject to version 59 of the terms and conditions. The company submits that the claim falls outside the remit of CISAS as it does not relate to the issues CISAS can deal with and involves a complicated area of law. The company submits that the change to its terms increases certainty and reduces scope for dispute regarding whether a price change gives rise to a right to cancellation. The customer is only entitled to cancel the agreement where the change is of material detriment. The change is to the customer’s benefit as it makes the relevant measure of inflation clear and certain. If the customer has suffered detriment, this will not be material. The company submits that the CPI and RPI are calculated differently and the company has historically only relied upon the RPI. Any difference between the two measures of inflation is not sufficient to be material. The company denies that the customer is entitled to the remedies requested; the company has already cancelled the second agreement on 7 April 2014 as the minimum term had expired.


7. The customer has replied to the company submitting that the claim does fall within the remit of CISAS as it has a direct impact on the amount the company will bill him. The customer reiterates that the change is likely to be of material detriment, activating his right to termination. The customer discusses material detriment and submits that where a change is not to his benefit, it is to his material detriment. The customer clarifies his claim for compensation. He submits that the old term allowed a reference to any other statistical measure; this would include the CPI. The difference between the CPI and the RPI can be substantial. The customer reiterates that the v58 clause was used in an attempt to apply a yet-to-be-published RPI rate to a previous price increase.


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[/FONT]Adjudicator’s findings and reasons




[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. The customer has four numbers with the company. The agreements for the first, second and third numbers incorporate version 58 of the company’s terms and conditions whilst the fourth number references version 59. As the relevant clauses in the original versions


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differ, I shall deal with the first, second and third numbers separately from the fourth number.


Version 58


c. The company has amended clause 7.2.3.3 in version 58 of its terms and conditions. For clarity I have included the old and new terms below.


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[/FONT][FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]7.2.3.3 The change that We gave You Written Notice of in point 7.1.4 is an increase in Your Price Plan Charge (as a percentage) higher than any increase in the Retail Price Index (also calculated as a percentage) for the 12 months before the month in which We send You Written Notice and You give Us notice to immediately cancel this Agreement before the change takes effect. [/FONT][/FONT](v58 Old Term)
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[FONT=Arial,Arial][FONT=Arial,Arial]7.2.3.3 We have given You Written Notice of an increase in a Price Plan Charge under point 7.1.4 and (i) the increase in Your Price Plan Charge (as a percentage) is higher 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 7.1.4); and (ii) You give Us notice to immediately cancel this Agreement before the change takes effect. [/FONT][/FONT](v58 New Term)


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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 ‘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:


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[/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."


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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 (i.e. not neutral or beneficial to him) and that detriment must be material (i.e. real, quantifiable, significant and not immaterial).


g. In reviewing the v58 Old Term it is clear that the customer is entitled to terminate the agreement where a price increase as a percentage is higher than the percentage increase in the RPI for the period ‘before the month’ in which notice of the increase was given. The customer submits that this term is unclear and references a previously disputed price increase where the relevant RPI figure was considered.


h. I am not persuaded that the v58 Old Term was unclear or unenforceable. A dispute relating to the application of a term does not necessarily mean the term itself is unclear. An incorrect application of a clear term would not affect the enforceability of the term where it is used correctly.


i. The v58 New Term provides that the customer is entitled to terminate the agreement where the price increase as a percentage is higher than the increase in the RPI ‘most recently published’ before notice was given.


j. The only significant change to the term is the manner in which the relevant RPI figure is determined. It is possible that the figure published in the month before notice was given will be the same figure as that most recently published. There is no attempt by the company to expand its powers, such as if it had made efforts to arbitrarily choose a relevant RPI figure. The v58 Old Term also made no reference to other statistical measures and the CPI is therefore not relevant in determining if the change is likely to cause material detriment.


k. Having reviewed the v58 Old and New terms I am satisfied that the only change was to provide clarity. The change must be considered as neutral, and if the customer will suffer any detriment as a result of the change, this will be negligible and not material. I therefore find that the change to the v58 terms and conditions is not likely to cause the customer material detriment and the customer is therefore not entitled to immediate termination of the first, second or third lines in accordance with the termination right specified in term 7.2.3.2 of the agreement.


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Version 59


l. The company has amended clause 7.2.3.3 in version 59 of its terms and conditions. Again, I have included the old and new terms below for reasons of clarity.


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[/FONT][FONT=Arial,Arial][FONT=Arial,Arial]"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; and


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[FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial](ii) You give Us notice to immediately cancel this Agreement before the change takes effect." [/FONT][/FONT](v59 Old Term)




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"7.2.3.3. We have given You Written Notice of an increase in a Price Plan Charge under point 7.1.4 and


(i) the increase in Your Price Plan Charge (as a percentage) is higher 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 7.1.4); and


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[FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial](ii) You give Us notice to immediately cancel this Agreement before the change takes effect." [/FONT][/FONT](v59 New Term)


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m. In reviewing the Old Term I note that this allowed a customer to terminate the agreement if a price increase was higher than any increase in the RPI "or any other statistical measure of inflation" published by a government body so authorised. The New Term prescribes that the customer is only entitled to terminate the agreement if the increase is higher than the annual increase in the RPI.


n. 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. The customer must show, on the balance of probabilities, that the detriment is real, significant and quantifiable.


o. The customer has provided the rates of the CPI and the RPI for the months August 2013 to January 2014 inclusive. These show that the CPI has consistently been a lower percentage to the RPI. I find that under the Old Term the customer was entitled to rely


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upon an increase in excess of any such statistical measure. The restriction to only the RPI as a relevant measure is such that the customer will be worse off under the New Term than the Old Term. I am satisfied that the degree of detriment is quantifiable and real, and whilst it may not be substantial, the detriment is significant.


p. The customer is therefore entitled to terminate the fourth mobile number in line with clause 7.2.3.2 of the agreement. This states that a customer must ‘give [the company] notice to immediately cancel this agreement before the change takes effect’.


q. I have reviewed the correspondence provided by the customer in relation to the request to terminate the agreements. I note that every letter and email is expressly related to the numbers ending -629, -158 and -626 only. The fourth mobile number, ending -494, is not mentioned at any point within correspondence. This mobile number is also not mentioned expressly at any point within the customer’s claim to CISAS.


r. I therefore must find that the customer has not actually requested termination of the fourth mobile number, in line with clause 7.2.3.2 or otherwise. I therefore find that the customer has not requested the termination of the fourth mobile number and has, through his conduct, accepted the change to the terms and conditions.


s. The customer is claiming £100.00 compensation for various failures of the company. I am not persuaded that the customer is entitled to compensation. I am satisfied that the company has, at all times, held the reasonable belief that the change to the terms and conditions is not likely to cause material detriment to its customers. It has also responded to the customer’s correspondence and referred the customer to CISAS for independent review; the customer has not been delayed in approaching CISAS or otherwise disadvantaged by the company’s actions. I do not consider the company presenting its position on the question of interpreting the terms of the agreement to be any breach of its duty of care or any legislation; the company is entitled to state its case just as the customer is entitled to escalate this for a review by an independent third party.


t. Accordingly, for the reasons explained above, I am not persuaded that the customer is entitled to any of the remedies requested.


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Conclusion




[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 to justify an apology, termination of his agreements backdated to 14 March 2014 and £100.00 compensation.


10. Therefore, my decision is that the claim does not succeed.


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[/FONT]Andrew Morris


Adjudicator

I had Andrew Morris for my claim for the price rise and it also did not succeed. My sister submitted a claim of the same nature and had a partial success. Haven't seen anyone with Andrew Morris who has won as of yet?

tracy3108

RandomCurve wrote: »

We always said that the T-Mobile Pre 30th October contract was te one least likely to succeed, so I would not tak ethsi to te SCC. It is a pity that you never included the fourth number.


BUT on the positive side, the T-Mobile pre 30th October 2012 is the MOST LIKELY to win over on the price rise forum, the reason being:
In May 2013 the price rise of 3.3% applied to your account related to the MARCH 2013 RPI, but now in 2014 EE have applied the ANNUAL rate as at FEBRUARY 2014. i.e. they have applied 12 months worth of inflation to an 11 month period!!! the correct rate to have applied would have been 2.5% not 2.7%. So go for that approach - and do it for all four contracts. Post #165



The other plus side is that this little episode probably cost EE about £300, you know that it has cost them a lot more than they are ever going to recover from you - so in a way you have won!

Thanks RC, I will leave it on this and go with the price rise thread, I thought as EE had included the number in their defence I might have a chance, never mind, onto the next route.


Thanks again for all your help on this thread, it's great.

Dave92en

RC could you check my reply to the defence on page 74 please?

RandomCurve

Dave92en wrote: »

RC could you check my reply to the defence on page 74 please?

I have - see post #1479

Dave92en

Ah sorry didn't see that!

sargie

Hi everyone so i replied to the first response from EE yesterday with post #174 from the price rise thread. Yesterday i received this reply.

Thank you for your email response.

EE do not feel that this change is of material detriment to you as it is in line with the Retail Price Index (RPI), which is a measure of inflation. I acknowledge you do not agree with this decision therefore the next step would be to seek independent adjudication via CISAS.

You may refer your complaint to CISAS. CISAS will determine whether the complaint falls within the jurisdiction of its ADR Scheme. We may argue that it does not. If CISAS agrees its Scheme applies, it will adjudicate on the complaint in line with the Scheme rules. CISAS's details are as follows:-

CISAS
International Dispute Resolution Centre
70 Fleet Street,
London,
EC4Y 1EU

Email: info@cisas.org.uk
Tel: 020 7520 3827
Fax: 020 7520 3829

I trust the above information is of assistance to you.

Yours sincerely

Victoria Hunt
Executive Office, EE

NOTICE AND DISCLAIMER
This e-mail (including any attachments) is intended for the above-named person(s). If you are not the intended recipient, notify the sender immediately, delete this email from your system and do not disclose or use for any purpose.

We may monitor all incoming and outgoing emails in line with current legislation. We have taken steps to ensure that this email and attachments are free from any virus, but it remains your responsibility to ensure that viruses do not adversely affect you.

EE Limited
Registered in England and Wales
Company Registered Number: 02382161
Registered Office Address: Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9BW


Could some one please tell me were i go from here? Once again many thanks for all the help provided.

Ajan

RandomCurve wrote: »

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

Hi RC,


I ended up using this response as I missed your message you sent. This is the one I had sent..


Dear Mr Swantee & Victoria Hunt,


Thank you for your response to my email which was sent following EEs notification to a change in EEs Terms and Conditions.

I am not sure how, what you sent me has any relevance as my email to you made no mention of a price increase, can you please explain that reference?

For clarity I have requested that EE cancel my contract without penalty as per clauses 2.11.3 and 7.2.3.2 as I find the change in T&Cs that you have notified me of as unacceptable and consider it to be of Material Detriment.

As EE appears to so enthusiastically embrace Ofcom guidelines then I am sure you are aware that my right to a cancellation stems from Ofcom GC 9.6 of which – as far as I can tell – you have only complied with 9.6 (a) and have not complied with 9.6 (b), and (c) which is as follows:

[in regard to price rises/change in T&Cs] 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.

Additionally as stated in my first email under Universal Service Directive 2002/22/EC of the European Parliament I have a right to withdraw from my contract (without penalty) upon notice of proposed modifications in the contractual conditions

I find your response to my first email (EE referring to a price increase, and ignoring my reference to the USD), together with your lack of adherence to GC 9.6 (b & c) to be a sign that you are not applying the required standard of care in dealing with this matter.

As you have refused my request to a penalty free cancellation in accordance with the clauses of our contract stated above you are now in breach of contract.

I again request that you comply with our current T&Cs, GC 9.6 and the USD and cancel my contract without penalty as requested in my earlier email.

For the avoidance of doubt:

1. I am not seeking to challenge your business decision to change the T&Cs (that is a decision which is yours alone to take). I am seeking to invoke my rights to a penalty free cancellation in accordance with our T&Cs as I do not accept the changes.
2. I am not seeking a reply which vaguely tries to explain EEs reasons for making the change, I am looking for a response which either accepts my position and contains the requested PAC code (penalty free) OR clearly articulates why you believe this change to the T&Cs does not give rise to my right to a penalty free cancellation.
3. Any response which is not in accordance with the above would be unacceptable to me and will be evidence of your lack of care when dealing with this matter.

Regards


EE had then responded to this saying that they still do not feel that this change is of material detriment as it is in line with the Retail Price Index and that I may refer my complaint to CISAS. Am I on the right track? Also where can I find the template for the first letter to CISAS?


I look forward to hearing from you, many thanks!