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

jon1555

dazz7400 wrote: »

Hi RC.

I received a reply from EE which is in post #1554

They ended it with ..

'As the increase is less than RPI should you wish to close the account early in accordance with clause 7.2.3.3 you would be subject to an early termination fee.'


Can I not take this any further?

Have you already emailed rejecting the change in terms and conditions?

Or have you emailed rejecting the price rise?

The reply you got looks like you rejected the price change

you'll want this thread instead ;

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

jon1555

Samarkand wrote: »

I have sent off my defence to CICAS, how long before i know who i have been allocated and how long before i get my decision guys.
Thanks

Will be 5 working days until someone is allocated then can be upto 3 weeks for a decision, although most people are getting replies within a week.

jon1555

sshariff wrote: »

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.

Received one of our compensation cheques today along with a letter apologising!

oxfordmark

EE's deadline for the defence is today. Should i expect to hear back today? Or Monday?

jon1555

oxfordmark wrote: »

EE's deadline for the defence is today. Should i expect to hear back today? Or Monday?

Can be upto 5 working days after the deadline that cisas will forward the defence to you.

Cisas can also give EE a 3 day extension if it's not in, you'll be told if they extend it though.

Dave92en

Just received my decision.
Adjudicator J. Mensa-Bonsu
Post Oct 12 contract
Orange
Backdated bills to february
£50 compensation awarded (no idea why only half but It's better than nothing!
Full decision in next post.

Dave92en

Adjudication Reference

Between Dave92en and Thieves

The claim is made by the customer, Mr dave92en, against a telecommunication and internet

services company, EE Ltd (t/a Orange).

The claim, dated 1 April 2014, is for the company to provide an apology; provide his Port

Authorisation Code (“PAC”) penalty free and; pay him compensation in the sum of £100.00.

The position of the company is explained in its 23 April 2014 defence which is disputed by the

customer in his 30 April 2014 reply.

The customer’s claim is that the company breached its contract terms and provided a poor level

of service.

The company’s position is that it denies liability.



Decision

1. The claim succeeds in part.



2. I direct that the company should provide the customer with an apology; cancel the customer’s

contract without penalty, backdating such cancellation to 26 February 2014 and waiving any

charges incurred after this date. Further, it should provide the customer with his PAC and pay

him compensation in the sum of £50.00.



Main issues

3. I consider that the main issues in this adjudication are:





1

Customer’s address for correspondence:The Three store

2

Company’s address for correspondence; Hatfield Business Park, Hertfordshire, AL10 9BW.





and EE Ltd (t/a Orange)2

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 his claim.



Background information

4. 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.



5. 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

6. The customer asserts that the company notified him of changes to his terms on or about 12

February 2014 and he sought to cancel his contract in reliance on clauses 4.3 and 15.2 of his

contract as he considered the change to be of material detriment to him. His contract originally

allowed him the right to cancel upon notification of a price increase in excess of RPI or any

other measure of inflation, however the new terms would only allow cancellation if the price

increase was in excess of RPI. This means that the increase can be higher than previously

allowed, as other measures of inflation may be lower, such as CPI for instance. This is of

material detriment to him. He also considers that the term “material detriment” is ambiguous

and he should be able to cancel his contract upon any change as per the Universal Service

Directive 2002/22/EC. Further, he considers that the original clause was vague and

unenforceable whereas the new term would be enforceable and thereby allow the company to

impose a price increase where previously it could not. This too is of material detriment to him.

The company did not allow him to cancel the contract without charge; it did not inform him of

his right to cancel; it sought an exclusive right as to the interpretation of material detriment; it

ignored his requests for information and; it failed to act in good faith in the way the change of

terms was presented to him.





7. The company explains that; the dispute is outside the scope of CISAS and it is a complicated

issue of law. The customer entered into an upgrade agreement on 5 January 2013. It has

attached the applicable terms. It has also attached a copy of the amended terms to take effect

from 26 March 2014. It has the right to change its terms and in this case the change is not of

detriment at all, or alternatively any detriment is marginal and not material. The difference

between using CPI and RPI to calculate a price increase is so small that it cannot be material.

The customer therefore has no right to terminate the contract. The amended clause 4.3.1 is

clearer and more certain. This is therefore a benefit to the customer as it enables him to

identify when the right to cancel arises. It has provided a good level of customer service and it

denies liability as pleaded or at all.



Adjudicator’s findings and reasons

8. I find that:



a. I remind the parties that I can only consider the complaints as per the customer’s

b. The dispute concerns the interpretation and application of the company’s terms under

application and I cannot consider any new matters or evidence that may be raised in the

customer’s Reply.



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.



c. Ofcom GC 9.6 states:



“9.6 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. “



d. The customer’s original contract states:



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;



e. The amended terms state:



f. The company gave the customer written notice of a change to his contract terms on or

g. The customer gave the company notice to cancel his contract without penalty on 12

h. The company responded on 18 February 2014 to explain that it was not providing

i. The customer sent further correspondence on 18 February 2014 to which a response



“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);”



about 11 February 2014.



February 2014 on the basis that the change was of a material detriment to him and he

also requested his PAC.



notification of a price increase. In view of this response I note that the company did not

initially understand or address the customer’s request to cancel the contract.



was provided on 18 March 2014. I note that the company explained that it did not

consider the change to be one that was likely to be of material detriment and therefore it

considered that clause 9.6 did not apply and that the customer had no right to cancel his

contract without charge.







j. The customer sought clarification from the company in correspondence of 18 March

k. I am satisfied that the company gave the customer one month’s notice of a change likely

l. Whilst I accept that the company did not inform the customer of his ability to terminate

m. As to whether the change is of a material detriment, I find that the wording of the original

n. The amended clause 4.3.1 clearly gives the company the right to increase prices equal

o. The change in the contract terms has therefore substantially and significantly limited the

p. I note that the customer gave notice to cancel his contract on 12 February 2014 and

q. In light of my observations above, I am satisfied that the customer was entitled to cancel

r. In regards to the customer’s claim for an apology, in view of my findings above, to the

2014 and did not receive any response, however I find that the company did not have a

reasonable chance to respond prior to the submission of the customer’s CISAS

application. I therefore find no breach proven in this respect.



to be of a material detriment.



the contract without penalty if the proposed change was not acceptable him, I consider

that it was not obliged to do so as it did not itself consider that the change was likely to

be of a material detriment. I therefore find no breach proven in this respect.



clause 4.3.1 was vague, ambiguous, uncertain and therefore unenforceable. The result

of this was that if the company had sought to increase the customer’s pricing, it could not

have relied upon clause 4.3.1 as an exception in order to prevent the customer’s

cancellation without penalty.



to or lower than the most recent RPI figure. Therefore, the customer would be prevented

from cancelling his contract without penalty if a price increase was imposed on this basis.



customer’s right to cancel his contract without penalty. I am therefore satisfied that the

change is of a material detriment to the customer and therefore, upon receiving notice of

such, the customer was entitled to cancel his contract without penalty.



sought his PAC, but such was not actioned by the company.



his contract without penalty and receive his PAC but that the company failed to action

this request. For this reason, I find that the company breached its duty of care to

manage the customer’s account with reasonable care and skill. I find that the remainder

of the customer’s claim is not proven.



effect that the company breached its duty of care, I find it fair and reasonable to direct





s. In regards to the customer’s claim for the company to allow the penalty free cancellation

t. As to the customer’s claim for compensation, I am satisfied that the customer is due a

that an authorised representative of the company provide the customer with a written

apology for its failure to manage his account with reasonable care and skill.



of his contract and supply his PAC, in view of my findings above, to the effect that this

should have been actioned but was not, I find it fair and reasonable to direct that the

company cancel the customer’s contract without penalty, backdating such cancellation to

26 February 2014 and waiving any charges incurred after this date. Further, it should

provide the customer with his PAC. (I have backdated the cancellation to 26 February

2014 to take into account the 14 days’ notice of cancellation required under the contract).



measure of compensation for the stress and inconvenience he has suffered as a result of

the breaches proven. I have taken into account the serious nature of the breach - in that

the company denied the customer the right to cancel his contract and, the fact that the

customer had to apply to CISAS for a resolution to the dispute. However, I am also

mindful that the customer has not proven the other alleged breaches. In the

circumstances, I consider that compensation in the sum of £50.00 is both fair and

reasonable.



Conclusion

9. My conclusion on the main issues is that:



a. The company has breached a duty of care which it owed to the customer.

b. The customer has provided sufficient evidence to justify his claim in part.

10. Therefore, my decision is that the customer’s claim succeeds in part. I direct that the company

should provide the customer with an apology; cancel the customer’s contract without penalty,

backdating such cancellation to 26 February 2014 and waiving any charges incurred after this

date. Further, it should provide the customer with his PAC and pay him compensation in the

sum of £50.00.





Justine Mensa-Bonsu LLB (Hons), PGDL, MCIArb

Adjudicator

SimonD316

Dave92en wrote: »

Just received my decision.
Adjudicator J. Mensa-Bonsu
Post Oct 12 contract
Orange
Backdated bills to february
£50 compensation awarded (no idea why only half but It's better than nothing!
Full decision in next post.

Congratulations I had the same adjudicator and got the same result

Dave92en

So glad to be away from them now! Straight to the three store after I've used my free month of service
Out of curiosity has ANYONE had their apology letter?

an authorised representative of the company provide the customer with a written

apology for its failure to manage his account with reasonable care and skill.

SimonD316

SimonD316 wrote: »

We received an email this morning with the PAC Code for both our numbers.

Just waiting for the compensation and refund now

Thanks to RC and everyone who has helped on the thread.

And the compensation cheque has arrived this morning. We used the PAC Codes earlier this week so are just waiting for the refund now