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

RandomCurve

@Ipyy


Go for the letter before action as tracy3108 did at post #1522


See post #1288 - it is the green text that is relevant to your case.

[Deleted User]

Hi @RandomCurve, @Tracy3108,

Thank you. I've found the template @ #1288. Will give it a go to see what will happen.

---

The adjudicator in my case never made a decision based on the fundamental point of the argument, which is whether or not the change is likely to be of material detriment to me, but rather went completely outside of due process in the factors she considered. A separate compliant has been lodged with both CISAS and Ofcom. I am confident that had the adjudicator ruled on the substantive issue the decision would almost have certainly have followed that in the majority of CISAS claims in regards to the matter and I would have won my case.

Should I delete the green part as I have not made a complain yet? or It is okey to leave it there? Thank you.

RandomCurve

[quote=[Deleted User];65401350]Hi @RandomCurve, @Tracy3108,

Thank you. I've found the template @ #1288. Will give it a go to see what will happen.

---

The adjudicator in my case never made a decision based on the fundamental point of the argument, which is whether or not the change is likely to be of material detriment to me, but rather went completely outside of due process in the factors she considered. A separate compliant has been lodged with both CISAS and Ofcom. I am confident that had the adjudicator ruled on the substantive issue the decision would almost have certainly have followed that in the majority of CISAS claims in regards to the matter and I would have won my case.

Should I delete the green part as I have not made a complain yet? or It is okey to leave it there? Thank you.[/QUOTE]


You could amend to say "complains about this particular adjudicator have been previously been lodged at CISAS and Ofcom"

ryan92

RandomCurve wrote: »

Brill news - I know how these "ba****ds" have been messing you around over the last few months - Congrats - really pleased for you:j

Can't thank you enough for all your help though, thank you!

Have to say, Andrew Morris' name appears to be the only adjudicator who has been failing cases in an unexplainable manner?

sargie

Hi how to I submit a cisas claim is there a template letter? Do I just email them with the emails ive recieved from ee?

tateman

Claim was successful, £100 compensation, penalty free cancellation, backdated to 28th Feb with PAC and unlock code! :j

For the success score table:
EE contract taken out in November 2013, I used RC's templates and amended paragraph numbers to match their defence. Adjudicator was Mrs E Knight.

Thanks again to RC and everyone who contributed, there's no way I could have done this myself.

nsabournemouth

Case won, Orange POST 2012. Stacey Edgar adjudicated.

Well worth reading the decision. I've been awarded £100 compensation, didn't ask for it though. The cancellation is to be backdated to February when I submitted my request.

Here's how it has been decided.




Between Mr xxxxxxxxxxxxxx and EE Limited t/a Orange
• The claim is made by the customer, Mr xxxxxxx against a telecommunication and internet
services company, EE Limited trading as Orange.
• The claim dated 20th March 2014 is for the customer’s contract to be terminated without
penalty, for the customer to be given his PAC code and for compensation in the amount of £100.00.
• The position of the company is explained in its 10th April 2014 defence to which the customer
responded in his undated reply.
• The customer’s claim is that the company has changed a term of its contract which has caused
him to suffer material detriment and as such he is entitled to a penalty free termination of the contract.
• The company’s position is that the customer is not entitled to a penalty free termination as it
has acted correctly in changing the contractual term and the customer has not suffered any material detriment.

Decision
1. The claim succeeds.

2. The company shall terminate the customer’s contract immediately, refunding all charges
imposed since 23rd February 2014.

3. The customer is awarded compensation in the amount of £100.00

1Customer’s address for correspondence is xxxxxxxxx
2 Company’s address for correspondence is Everything Everywhere Limited, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9BW.

4. The company shall provide the customer with his PAC code.


Main issues
5. 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 compensation in the amount of £100.00, the customer’s contract being terminated early without penalty and the customer being given his PAC code.

Background information
6. 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.

7. 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.

Customer’s and company’s positions
8. The customer explains that the company has given written notice that it has changed the terms of his contract and that the change has caused him to suffer material detriment which entitles him to a penalty free cancellation. The company failed to advise the customer of his right to a penalty free cancellation and have refused to grant him this cancellation. The customer states that the new contractual term means that company uses only RPI as a gauge for price increases and that. The customer points out that, as the rate of RPI is consistently higher than the rate of CPI, any price increase using RPI as a measure will be higher, placing the customer at a disadvantage. The customer further states that the phrase “material detriment” is notdefined in the company’s terms and conditions meaning that it is ambiguous and can be considered an unfair contractual term.

9. The company states that the customer entered into his current contract on 28th April 2013. The company submits that the matter represents a complicated issue of law and is therefore outside of the scope of the CISAS scheme. The company also submits that the matter does not relate to billing or the provision of telecommunication services and falls outside of the scope of the CISAS scheme for that reason. The customer was given the correct notice of the change according to the terms of the contract. The company avers that the amendment to the terms is a benefit to customers because it increases certainty. The company points out that it has the right to change the terms of its contract, but that this right is subject to the right of the customer who can terminate the contract if the change causes material detriment to the customer. The company submits that in this case the change to its terms causes no material detriment. The company points out that the customer’s right to cancellation has not been affected. The company states that the customer has experienced good customer service and that it will provide the customer with his PAC code, but that it will not waive the cancellation fee.

10. The customer, in his reply, avers that he entered into his contract in 2012. The customer provides detailed information as to CPI as a measure of inflation rather than RPI. The customer reiterates that “material detriment” is an ambiguous term and submits that in cases where a contractual term is considered ambiguous the interpretation which favours the consumer should prevail.

Adjudicator’s findings and reasons
11. I find that:
a. The dispute concerns the interpretation and application of the company’s terms under the contract for communication services. CISAS is permitted to deal with disputes arising under the contract for communication services and therefore the matter is within the scope of the scheme. I do not consider this to be a complicated issue of law. I am therefore satisfied that the complaint is within the scope of the CISAS scheme.

b. In regards to the customer’s assertion that his contract was entered into in 2012 I am satisfied on the balance of probabilities that the customer entered into a new contract when he upgraded on 28th April 2014 and therefore the contract which has been varied is the one contained in the terms referred to as LEG300v15, or Schedule 1, by the company in its defence.

c. I accept that the company has a right to change the terms of its contract, however, as the company acknowledges in its defence, this right is subject to the rights of the customer under the terms of the agreement and the regulatory scheme to terminate the contract if the change is of material detriment to the customer.

d. The old clause is worded as follows:


o 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;

e. I have considered this clause and I am satisfied that, although the clause allows for some flexibility in terms of the statistic used for comparison, the wording is clear and unambiguous and the clause is enforceable. The company submits that the clause is worded in such a way as to allow for another measure of inflation to be used as a gauge for price increases as it was informed at the time that the rate of RPI may not continue to be published by the ONS.

f. The new clause is worded as follows:

o 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);

g. The new clause removes the provision for any official measure of inflation to be used to gauge the price increase and provides that only the most recently published rate of RPI can be used to measure the price increase. I am satisfied that the clause is clearly worded, unambiguous and enforceable.

h. I accept the company’s submission that the new clause is clearer and more specific as to the official statistic used to measure price increases however the question is whether the amendment of the clause causes any material detriment to the customer.

i. Having carefully considered the submissions and evidence provided by both parties I am satisfied that the new clause both ensures that price increases are imposed at a higher rate and restricts the means by which the customer can question any price increase imposed by the company.





j. I consider that this is a material change in favour of the company and therefore a change which causes material detriment to the customer. The change will directly affect the customer’s bills as well as limiting his right to cancellation as he will have fewer measures upon which to compare the price increase. The detriment is therefore both qualitative and quantitative.

k. In light of my observation above, to the effect that the change in terms caused material detriment to the customer, I am satisfied that the customer was entitled to terminate his contract without incurring a penalty and that the company has broken a term of the contract in failing to act upon this request.

l. I am satisfied that the termination ought to have been effected at the customer’s first request, on 23rd February 2014. Hence I consider it fair and reasonable to direct that the customer’s contract be terminated immediately and that he be refunded all charges incurred since 23rd February 2014.

m. The company does not dispute the customer’s submission that the company failed to inform him of his right to cancel the contract at the time of the notification. I therefore find that the company breached the duty of care it owed to the customer in this regard.

n. In light of my findings above, to the effect that the company has broken a term of the
contract and breached its duty of care, I am satisfied that an award of compensation is justified. I consider it fair and reasonable to award the customer compensation in the amount of £100.00.

o. In relation to the customer’s request for his PAC code I note that the company agrees
that the customer is entitled to this. I direct that the company supply the customer with
his PAC code.


Conclusion
12. My conclusion on the main issues is that:
a. The claim succeeds.

b. The company changed a term of its contract which caused material detriment to the
customer.


c. The customer’s contract shall be terminated immediately without the imposition of a
cancellation fee.




d. The company shall refund the customer all charges imposed after the original
cancellation request on 23rd February 2014.

e. The customer is awarded compensation in the amount of £100.00.

f. The company shall provide the customer with his PAC code.
Therefore my decision is that the claim succeeds and the company shall terminate the customer’s contract immediately, refund all charges imposed after 23rd February 2014, provide the customer with his PAC code and compensation in the amount of £100.00.

[Deleted User]

RandomCurve wrote: »

You could amend to say "complains about this particular adjudicator have been previously been lodged at CISAS and Ofcom"

Thank you so much for your help @RamdonCurve. Just sent an email to both Executive and Olaf.Swantee. Let's wait and see what we will get back! :T

andrewmp

Won mine, didn't use template, didn't mention RPI on the claim form, mention RPI in the reply to their defence. No compensation as I didn't request it on the form like an idiot.

Overall though not too bad. Curnow was the adjudicator.

andrewmp

Conclusion

9. My conclusion on the main issues is that:



a. The company is in breach of its contractual obligations.

b. The reasons given by the customer are sufficient to justify the company terminating the

customer’s contracts without penalty (this being backdated to 11th February 2014) and

provide a refund of all charges incurred thereafter and provision of the PACs.

10. Therefore, my decision is that the customer’s claim succeeds. The company shall terminate

the customer’s contracts without penalty (this being backdated to 11th February 2014) and

provide a refund of all charges incurred thereafter and provide the PACs.