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

andrewmp

Wallace231 wrote: »

Hi to all

When you get the refund from t mobile should it be the total amount ,or do the subtract outside monthly bill charges ??

cheers

It'll be the full amount, at least I hope so as I ran up some roaming charges!

Wallace231

LOL @andrewmp

Received e-mail from t-mobile saying it would be the full amount
10 min before i was on the phone with customer adviser and he said that only the "inside" will be refunded
confused ...

rachx21

Just received my PAC code from EE which wasnt due until the 13th I sent a polite reminder through email that they have until the 13th to send me my PAC and recieved it within an hour through text message.

Nodding_Donkey

As far as I know they have until the date given to them by CISAS to comply with all the decision not just the PAC. I'll be emailing CISAS, copy to OFCOM the day after the deadline.

jon1555

Wallace231 wrote: »

LOL @andrewmp

Received e-mail from t-mobile saying it would be the full amount
10 min before i was on the phone with customer adviser and he said that only the "inside" will be refunded
confused ...

On my final bill I had a £5 text donation I made to a charity which they charged me for and they also decided to charge me to use my PAC. After a quick email to the woman who issued my compensation cheque, she refunded all those fees and gave me an extra tenner compensation.

As the cisas results say it should be a backdated penalty free cancellation, it's not our fault that we happened to use bits out of our contract .

Wallace231

jon1555 wrote: »

On my final bill I had a £5 text donation I made to a charity which they charged me for and they also decided to charge me to use my PAC. After a quick email to the woman who issued my compensation cheque, she refunded all those fees and gave me an extra tenner compensation.

As the cisas results say it should be a backdated penalty free cancellation, it's not our fault that we happened to use bits out of our contract .

Got this earlier..
Think all i need to do is wait now

Dear Sir,

Thank you for your email the contents of which have been duly noted.

We have arranged for the credit on your account to be amended to £178.28 representing the sums paid from 09 February 2014. This will be billed onto your account and subsequently transferred to you. Once this has been processed, the sums should clear within 14 days. I have diarised this to check your account on your next bill date on 18 June to ensure that the sums are forwarded to you.

Yours faithfully


(Text removed by MSE Forum Team)

RandomCurve

LoopLife wrote: »

Got my defence from EE earlier.


Basically, I don't understand 90% of it. In regards to the non direct debit charges, I sent a photo of my contract that says £3 on it.

Any one got any idea what I can reply with!? Cheers!

judging by the defence you must have sent a different case to CISAS than the standard template on this site. Can you post your full CISAS case so I can put this defence into context?

hammersfaniow

Well, I received my £100 compensation yesterday paid into my account, also received a call from Orange's legal team who asked me for a contact email address, within the next hour I had an email with my PAC code and details for how to unlock my phone. They then said I had to contact them once I had transferred my PAC (I'm porting it from Orange to EE) and they would raise a cheque for the backdated amount. Credit where it's due, they've been very organised.

andrewmp

Out of interest, if you want to unlock your phone and get tmobile to do it, do they charge the amount to your account? Could be a good way of getting it free if they refund everything anyway?

BallsMan

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
REFERENCE: ********
BETWEEN
*** ******
Claimant
and
EE LIMITED t/a ORANGE
(formerly EVERYTHING EVERYWHERE LIMITED)
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 6 October 2004 on
the Respondent’s Orange brand. The Claimant is registered with the
Respondent as a consumer and was allocated account number ********* upon
connection. The Respondent submits that the Claimant has one active mobile
telephone number on the above account, being *********** (“the Mobile
Number”).
5. The Respondent submits that it has no record of receipt of any request for
cancellation from the Claimant or any record of receipt of the emails referred
to by the Claimant (at Appendix 1 of his CISAS application) in respect of his
account with the Respondent on its Orange brand (Account Number **********,
Mobile Number **********) and the Claimant is put to strict proof that such
were ever sent to the Respondent.
6. The Respondent submits that the Claimant has failed to provide original copies
of the emails purportedly sent to the Respondent with full email headers
indicating the date and time upon which they were sent, nor has he provided an
original copy of the Respondent’s purported response (of which the
Respondent also has no record of having been sent to the Claimant at any time,
or at all). The Respondent denies therefore that those emails appended to the
Claimant’s CISAS application were ever sent to or received by the Respondent
and the Claimant is put to strict proof thereof. The Respondent requests that
the Claimant provide original copies of those emails forthwith which confirm
full header details of the date and time upon which they were purportedly sent.
7. It remains the Respondent’s position that as it has no record of receipt of any
contact from the Claimant following provision by the Respondent of the
Written Notice in respect of the Respondent’s recent amendment of the terms
of the Claimant’s Service Agreement, the Claimant has failed to provide any
notice of termination in respect of his Orange account before the expiry of the
Written Notice period and has therefore lost any right to termination of his
Orange account in accordance with Clause 15.1 of the terms and conditions of
his Service Agreement with the Respondent.
8. By way of clarity, the Claimant has made a previous CISAS application
(Reference ********) in relation to a separate account on the Respondent’s
EE network (Account Number *******) which has already been through the
adjudication process. The Respondent confirms that it received
correspondence from the Claimant in respect of his EE account requesting
cancellation without charge within the Written Notice period, however the
Respondent again confirms that no correspondence has been received from the
Claimant in respect of his Orange account.
9. Again, the Respondent reiterates that as no notice of cancellation has been
provided by the Claimant within the Written Notice period in respect of his
Orange account, the Claimant has accepted the change to the terms and
conditions implemented by the Respondent and as such has no right of
cancellation without the application of a cancellation fee.
10. Without prejudice to the above, the Respondent’s Defence is set out below.
11. On 15 April 2013 the Claimant entered into a Service Upgrade Agreement
(“the Agreement”) with the Respondent in respect of the Mobile Number via
one of the Respondent’s retail stores. The Claimant was provided with the
terms and conditions applicable to the Agreement at the point of entering into
the Agreement.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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 £36.00 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 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.
33.4 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
1 The figures in this table have been obtained http://www.ons.gov.uk/ons/rel/cpi/consumer-priceindices/
february-2014/consumer-price-inflation-reference-tables.xls.
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
33.5 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
34. 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 terms 4.3 and/or 15.1 on the grounds that those
amendments are modifications likely to be of material 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.
35. The Material Detriment Issue does not relate to any of the matters set out in Rule
2a.
35.1. Bills: It does not relate to any bill issued by the Respondent to the
Claimant.
35.2. Customer Service: It does not relate to the quality of customer service
provided by the Respondent to the Claimant.
35.3. 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
2 24 months is the longest initial commitment period permissible under General Condition 9.4
dispute resolution scheme is on the service actually provided to
customers.
36. Further or alternatively, the material detriment issue constitutes a complicated
issue of law.
36.1. 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.
36.2. 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.
36.3. 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 Points indicates that absent
such guidance, the issue of material detriment is unclear; and that the
considerations applicable to determining material detriment can be
complicated.
36.4. 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 customer. 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.
37. For the reasons stated above the Respondent denies that the Claimant as at all
entitled, whether contractually or otherwise, to terminate his Agreement without
charge, either for the reasons as indicated within his application or any other such
reason. Therefore, the Respondent submits that the Claimant is subject to the
standard contractual termination points as per the applicable terms and
conditions. As set out initially above, in any event and notwithstanding the
above that the change is not of material detriment to the Claimant, the Claimant
has failed to provide any written notice of cancellation within the Written Notice
period and has therefore lost the right to cancellation of the Agreement without
charge and has accepted the changes made by the Respondent and has accepted
the New Terms.
38. The Respondent submits that it will provide a Port Authorisation Code (“PAC”)
to the Claimant upon request, however it is the Respondent’s position that the
Claimant will remain liable for a cancellation charge in accordance with Points
4.2 and 4.3 of the Agreement. The cancellation charge applicable to the
Agreement is currently the sum of £316.52, reducing on a daily basis.
39. As set out above, the Respondent denies that it is liable to cancel the Agreement
without payment of the relevant cancellation charge for the reasons set out
above. A PAC code can be provided to the Claimant however he will remain
liable for the cancellation charge as set out above.


Cont'