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

Dave92en

If I win how will I get paid the compensation and backdated bills do you think as I don't pay by direct debit.

jon1555

Dave92en wrote: »

If I win how will I get paid the compensation and backdated bills do you think as I don't pay by direct debit.

Probably by cheque

esmith1234

Hi,

As mentioned above I think Appendix 1 failed to upload when I sent my case to CISAS. As soon as I realized I sent it straight away but shortly after I received my defense from EE anyway. The defense is the standard one which shows that they didn't even read my case or they would have realized this should have been an automatic win for them!

So now I have to submit my comments on their defense, should I just use the standard template or should I mention the fact that Appendix 1 is missing and summarize what it said?

Thanks!

sshariff

SimonD316 wrote: »

That's great news. I'm in the process of porting using the PAC code to o2, should be completed today. Did you get anything from EE saying they had sent the refund?

No communication whatsoever from EE. It's only that I was checking my bank account regularly to make sure that EE don't continue to take payments after they issued me my PAC when I noticed today morning the refund!

Probably they will send me a final bill through post which contains all this information, i'll wait and see.

miss*charisma

I'm in the same boat as Wullie32 and have no idea where a template response might be, other than somewhere on this forum!
Can anybody share a link please?

Much thankfulness ;-)

3times

Have received this defence (next post) from EE via CISAS, Looks like they have me on this as the price rise is exactly the same as the RPI figure as per the T&C's.

original terms -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;

New terms - 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

3times

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
REFERENCE: BETWEEN XXXXXXXXXX Claimant and EE LIMITED t/a ORANGE
Respondent
DEFENCE
1. The Respondent denies that it is liable 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 xx May 2009. The Claimant is registered with the Respondent as a domestic consumer and was allocated account number xxxxxxxx (“the Account”) upon connection. The Respondent submits that the Claimant has one active mobile telephone number on the above account, being xxxxxxxx (“the Mobile Number”).
5. On 01 November 2013 the Claimant entered into a Service Upgrade Agreement (“the Agreement”) with the Respondent in respect of the Mobile Number. The Claimant was made aware that the Agreement was subject to terms and conditions which were available for viewing on the Respondent’s website and provided to the Claimant 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 1 attached 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 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 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 29th January 2014 and 14th 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 14th 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 21st 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. They will be deemed served 48 hours after they are sent, or on earlier proof of 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 or extra time we may allow you is limited to the specific circumstances in which it is 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 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
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 change gives 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 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).
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 not been 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 that the 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 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 Point 4.3.
33.3. The Claimant has not identified such an alternative measure of inflation.

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 period1
1 The figures in this table have been obtained .ons.gov .uk/ons/rel/cpi/consumer-price-indices/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

3times

Must add I have to reply by the 12th May.

Mary_Whitehouse

3times wrote: »

Have received this defence (next post) from EE via CISAS, Looks like they have me on this as the price rise is exactly the same as the RPI figure as per the T&C's.

original terms -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;

New terms - 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

Fear not use Random curves defence in posts #1477 and #1478 and the amendment to #1478 which is at #1479.

Mary_Whitehouse

miss*charisma wrote: »

I'm in the same boat as Wullie32 and have no idea where a template response might be, other than somewhere on this forum!
Can anybody share a link please?

Much thankfulness ;-)

Response to Ee's supposed defence assuming you have been using RC's templates is at posts #1477 and #1478 and the amendment to #1478 which is at #1479.