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

AngryDog

Damn, I completely missed the boat on this . I got the text, didn't pay any attention to it and now I'm stuck with the rise they just wrote to me about .

I hate Orange, I get very little coverage and have a lot of signal issues that they do not care about, and need to leave desperately.

Nodding_Donkey

You've not lost out completely, take a look at this thread https://forums.moneysavingexpert.com/discussion/4818999

Not the cancellation and compensation that we got but worth a few emails.

AngryDog

Thanks ND. Not sure how far I will get with that as I am on a 15% discount for the term of the contract.

LIQU1D5NAKE

can someone please point me in the right direction for the reply to ee defence sent to me today via CISAS. Im on EE CONTRACT taken out on 27th september 2013.

THANKS IN ADVANCE EVERYONE!

glasgowm148

Just got EE's defence - now to search this thread for randomcurves response as per! :P

Posting it here incase it's changed

http://pastebin.com/t3PGfTQJ

Tigerrock

rachx21 wrote: »

Received my defence this morning from EE, as posted below.
Do I just send the template responses to this

Defence:
1. The Respondent denies liability to the Claimant as pleaded, or at all.
2. The Respondent is a mobile telecommunications network operator that enters
into Service Agreements with its customers to enable its customers to access its
network. The Claimant is one such customer 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 2 August 2013,
when she connected to the Respondent’s network via the Respondent’stelephone sales department. The Claimant was made aware that the Agreement
was subject to terms and conditions which were offered to the Claimant prior
to entering into the Agreement and were available for viewing on the
Respondent’s website. A copy of the terms and conditions were subsequently
despatched to the Claimant.
5. The Claimant is registered with the Respondent as a consumer and was
allocated account number xxxxxxx upon connection. The Respondent
submits that the Claimant has one active mobile telephone number on the
above account, being (“the Mobile Number”).
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 1 attached hereto is a copy of the Terms and Conditions for
Telephone Service – Conditions Version 01. 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 –
Conditions Version 01B, to be subject to the Agreement and take effect as of the 26th 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) it does 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 isd) 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 £36.00 price plan (the main recurring monthly charge) gives a right
to terminate without paying a cancellation charge.
The Agreement prior to the Change
14. The Respondent is referred to the terms and conditions at Schedule 1.
15. Prior to the changes in question, Clause 7.1.4 of the Agreement provided:
7.1.4. We can increase any Price Plan Charge. We will give You
Written Notice 30 days before We do so. The change will then apply
to You once that notice has run out.
16. The Agreement further provided that the Claimant has a right to terminate the
Agreement without paying a cancellation charge where a price increase notified
under point 7.1.4 was of material detriment to the Claimant (Clause 7.2.3.2) or!exceeded the rate of inflation (Clause 7.2.3.3).


7.2.3. A Cancellation Charge won’t apply if You are within the
Minimum Term and:
7.2.3.2. You are a Consumer and the change that We gave You
Written Notice of in point 2.11.3 or 7.1.4 above is of material
detriment to You and You give Us notice to immediately cancel this
Agreement before the change takes effect; or
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
(ii) You give Us notice to immediately cancel this Agreement before
the change takes effect.
17. Clause 7.2 above is referred to below as “the Old Term”.
18. The effect of point 7.2.3.3 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

19. 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.
20. 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, Clause 7.2.3.2 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 7.2.3.2.
The Agreement after the Change
21. The Respondent refers to the terms and conditions as at Schedule 2.
22. The revised terms provides as follows:
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.!

23. 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.
24. This change increases certainty for customers and reduces the scope for
disputes regarding whether a price change gives rise to a right to cancellation.
The Respondent’s right to change the terms of the Agreement
25. The Respondent is entitled to revise its Agreement terms pursuant to Clause
2.11 of the Agreement, which provides as follows:
2.11.1 We will make a copy of Our current version of these terms and
conditions available on Our website. We can change these terms and
conditions for any good reason, for instance, if We want all
customers on the same conditions. We will tell You about the change
beforehand, as explained here:
2.11.2. If You are a Consumer and the change of terms and
conditions is not of material detriment to You or You are not a
Consumer, We will send You Written Notice 30 days before the terms
and conditions are due to change. The new terms and conditions will
automatically apply to You once that notice has run out
The Claimant has a right to terminate only if the change is of material detriment
26. The Agreement further provides that where a change notified under point
2.11.3 is of material detriment to the Claimant, the Claimant has a right to
terminate the Agreement without paying a cancellation charge. However, if thechange notified is not of material detriment and the Claimant is within their
minimum term, the Claimant does not have such right of termination.
27. Points 2.11 and 7.2 provide (so far as material) as follows:
2.11.2. If You are a Consumer and the change of terms and
conditions is not of material detriment to You or You are not a
Consumer, We will send You Written Notice 30 days before the terms
and conditions are due to change. The new terms and conditions will
automatically apply to You once that notice has run out.
2.11.3. If You are a Consumer and the change is of material
detriment to You, We will send You Written Notice 30 days before the
terms and conditions are due to change. The new terms and
conditions will apply to You once that notice has run out, unless You
terminate Your Agreement with Us within that notice period. If You
do this You won’t have to pay any Cancellation Charge that would
otherwise apply, see point 7.2.3.2.
7.2. Your termination rights
7.2.1. You can give Us notice to terminate this Agreement, to take
effect on or after the end of the Minimum Term. However (except as
set out in point 7.2.3 and 7.2.4) if, in our total discretion, We accept
notice from You to terminate this Agreement within the Minimum
Term, You will have to pay Us a Cancellation Charge and, if
applicable, the Additional Commitment Service Cancellation Charge.
You can terminate this Agreement without having to pay Us a!Cancellation Charge after the Minimum Term has ended.

7.2.3. A Cancellation Charge won’t apply if You are within the
Minimum Term and:
7.2.3.2. You are a Consumer and the change that We gave You
Written Notice of in point 2.11.2 or 7.1.4 above is of material
detriment to You and You give Us notice to immediately cancel this
Agreement before the change takes effect;
28. Clause 2.11 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
29. The Change is not of material detriment for the following reasons.
30. 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 not been affected and the Claimant has
suffered no detriment whatsoever.
31. 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.
32. Alternatively, if and to the extent that the Claimant has suffered any marginal
detriment, such detriment is not material.
32.1. 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.
32.2. 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 calculated according 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 Clause 7.2.3.2.
32.4 Further or alternatively, it is submitted that the difference between any
two measures of inflation which would qualify under point 7.2.3.2 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.

32.5 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 period1
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
1 The figures in this table have been obtained

!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
32.6 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 months2, 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 capable of 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
33. 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 Clause 7.1.4 and/or 7.2.3.3 on
the grounds that those amendments are modifications likely to be of material
2 24 months is the longest initial commitment period permissible under General Condition 9.4

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.
34. The material detriment issue does not relate to any of the matters set out in Rule
2a.
34.1. Bills: It does not relate to any bill issued by the Respondent to the
Claimant.
34.2. Customer Service: It does not relate to the quality of customer service
provided by the Respondent to the Claimant.
34.3. Communications Services: For the reasons further set out below, the
reference in Rule 2a to “Communications services provided to
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 Dispute Resolution Scheme, … for the
resolution of disputes …in relation to the provision of Public Electronic
Communications Services.” Electronic Communications Services are
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

35. Further or alternatively, the material detriment issue constitutes a complicated
issue of law.
35.1. 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.
35.2. 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.
35.3. 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 recently published guidance on the
issue of material detriment in respect of price change clauses indicates
that absent such guidance, the issue of material detriment is unclear; and
that the considerations applicable to determining material detriment can
be complicated.
35.4. 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 Claimant.
Rather it is necessary that the Claimant identify the degree to which the!Old and New Terms would differ, if applied to him, and to establish that
that difference is material.
36. For the reasons stated above the Respondent denies that the Claimant as at all
entitled, whether contractually or otherwise, to terminate the Agreement without
charge, either for the reasons as indicated within her application or any other
such reason. Therefore, the Respondent submits that the Claimant is subject to
the standard contractual termination clauses as per the applicable terms and
conditions.
37. In any event and notwithstanding the above, the Respondent submits that both
the Old Term and New Term allowed the Respondent to increase its prices, and
the Old Term allowed the Respondent to increase its prices by an amount equal
to or less than RPI. The Claimant accepted those terms upon entering into the
Agreement and the Claimant would have been subject to the Old Term had the
Respondent increased its prices. The New Term, as set out above, purely
restricts the Respondent’s ability to increase its prices and is therefore of a
benefit to the Claimant and not to the Respondent.
38. The Respondent notes that the Claimant has made no complaint as to customer
services or any other complaint and in any event, the Respondent submits that the
Claimant was provided with a good level of customer services at all times and
that any dissatisfaction on the part of the Claimant simply stems from the fact
that the Respondent confirmed that she could not cancel the Agreement without
payment of a cancellation charge, which is a remedy to which she is not entitled in this instance

39. The Respondent submits that it will provide the Claimant with a Port
Authorisation Code (“PAC”) to enable the Claimant to transfer her number to
another provider and to cancel the Agreement upon request, however it is the
Respondent’s position that the Claimant will remain liable for a cancellation
charge upon cancellation of the Agreement, currently the sum of £434.88,
reducing on a daily basis.
40. The Respondent submits that they have acted well within the parameters of their
terms and conditions and entirely in compliance with any obligations and
therefore, any liability to the Claimant is entirely denied.
Remedies Sought by the Claimant

Randomcurve, would your templates at posts 698 and 699 be sufficient to use as a defence to the most recent E.E response above?

Thank you and everyone who has contributed in this thread.

Samarkand

Thanks Rachx21, i have copied your defence and made a few alterations to my defence from EE.
I haven't a clue what i am doing and i strongly suspect that i will lose both cases.
Still at least i have tried.
Thanks to everyone who has contributed.

andrewmp

Samarkand wrote: »

Thanks Rachx21, i have copied your defence and made a few alterations to my defence from EE.
I haven't a clue what i am doing and i strongly suspect that i will lose both cases.
Still at least i have tried.
Thanks to everyone who has contributed.

That's what I thought but I won.

rachx21

I haven't a clue what I am doing either, but we have nothing to loose, and hopefully a win! its all thanks to randomcurve for his hard work and others input too

dg-25

I Won!!! Yey

T mobile, pre Oct 2012. Dean Taylor was the adjudicator. Used templates and fully amended to match the submitted defence. Asked for and got £100 compensation.

Thanks again to rc and everyone contributing to this thread wouldn't have got it without you.

Interestingly, I first emailed ee on 4 th March and went for cancellation 14 days after this as per rc advice. However my adjudicator has ruled that my cancellation should be 4 th March as per my terms and conditions. Haven't been able to copy and paste the text from decision letter due to being on my phone but will do shortly.

Happy bunny tonight ha ha