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

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  • Wullie32
    Wullie32 Posts: 35 Forumite
    Seventh Anniversary 10 Posts Combo Breaker
    Orange's response to my first CISAS application was due 6/6, I assume that's just to CISAS and I should hear back this week?
  • LoopLife
    LoopLife Posts: 6 Forumite
    LoopLife wrote: »
    Got my defence from EE earlier.

    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 20 November 2013 in respect to the T-Mobile account number(“the Account”) and the mobile number (“the Mobile Number.
    5. On 20 November 2013, the Claimant entered into a Service Agreement (“the Agreement”) with the Respondent via the third party retailer, Carphone Warehouse
    (“the Third Party”). 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. The Claimant would have signed an agreement form incorporating the applicable terms and conditions into the Agreement and he would have been provided a copy of the agreement form together with terms applicable by the Retailer. The Claimant was also made aware that the Agreement was subject to a minimum term period of 24 months.
    6. The Respondent maintains a paperless environment with regards to 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 Agreements entered into.
    7. The Respondent confirms that prior to the 26 March 2014 the Agreement between the parties was subject to the terms and conditions CVN59. From 29 January 2014 to 14 February 2014 the Respondent provided the Claimant with notice, pursuant to the Agreement at the time, that the Respondent’s terms and conditions would be updated and the new terms effective as of the 26 March 2014. Therefore, the Respondent submits that as from the 26 March 2014 the terms and conditions applicable to the Agreement between the parties and so governing the Claimant, is CVN59A.
    8. Save that the Respondent denies that the change in terms effective 26 March 2014 gave the Claimant the right to terminate his Agreement without charge the Respondent submits that in any event the Claimant was required to give notice to terminate prior to the increase in charges taking effect on 26 March 2014. The Respondent submits that the Claimant failed to give notice to terminate the Agreement prior to 26 March 2014 and therefore is bound by the terms of the Agreement effective 26 March 2014.
    9. At Schedule 1 attached hereto is a copy of the terms and conditions being Conditions Version Number 59A (CVN59A) applicable to the Agreement entered into between the Claimant and the Respondent. The terms and conditions governing the Agreement contains amongst other things the following;-
    (a) By way of Clause 1 –definitions that a Separate Payment Handling Charges would be applied to payments made by means other than direct debit or bank automated clearance system. The charge is applied according to how the Claimant paid his last bill.
    (b) By way of Clause 2.5.1 that upon entering into a new Agreement that a new minimum term would apply;
    (c) By way of they may be affected by things outside of the Respondent’s control Clause 3.1 that the Respondent would always try to make the services available but sometimes;
    (d) By way of Clause 3.2 that the Respondent’s services, at any time, comprise of lots of different types of technologies. The services are made available provided the Claimant is in range of base stations forming part of the relevant technological network when trying to use a particular service. The Claimant may therefore have to connect to a particular price plan and/or use particular equipment to gain access to certain services. Any coverage maps provided by the Respondent are an estimate of outdoor coverage but not a guarantee of service coverage as this varies from place to place;
    (e) By way of Clause 4.1 that the Respondent’s charges are set out in its booklet of charges which are updated from time to time. Customers can obtain copies by calling the Respondent’s customer services or referring to the Respondent’s website;
    (f) By way of Clause 4.4.1 that there would be a monthly billing period. The Respondent would issue the Claimant a bill each month with Monthly Charges for the month to come together with any other charges;
    (g) By way of Clause 4.6 that the Claimant would be responsible for all charges applied to the Claimant’s account with exception of call charges applied after the Claimant notified customer services that his SIM card had been lost or stolen;
    (h) By way of Clause 7.14 that 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;
    (i) By way of Clause 7.2.2 You can only give Us notice to terminate this Agreement by calling customer services. Your Agreement will terminate 30 days from when We receive Your call, although You are free to change Your mind and call Us to withdraw Your notice of termination at any time during that period. You will be responsible for all Charges up to and including the date that this Agreement terminates;
    (j) By way of Clause 7.2.3 A Cancellation Charge won’t apply if You are within the Minimum Term and:
    (k) By way of Clause 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.
    10. Upon entering into the Agreement, the Claimant chose the Respondent’s T-Mobile 500 £37.99 – 24M price plan (“the Price Plan”) which provides the Claimant with unlimited internet, unlimited texts and 500 minutes to UK mobile numbers and landline numbers beginning with 01, 02 and 03 (excluding Jersey, Guernsey and Isle of Man).
    11. The Claimant’s claim at the heart of this dispute conflates three separate issues, regarding coverage, non-direct debit charges and price increases/RPI. For each of use, the Respondent submits that it will deal with each in turn.
    Coverage
    12. The Respondent avers and submits that, by way of Clause 3.1 and Clause 3.2 of the Agreement, the Claimant was advised that Respondent cannot guarantee coverage. By way of explanation, network coverage is provided through radio-based systems and, as with all radio-based systems, coverage cannot be guaranteed as it can be affected by a number of local factors such as buildings, materials, trees and weather conditions. In addition, amongst other things, the availability of services can also be affected by the features and functionality of the device/equipment the Claimant chooses to use to access the services, which the Respondent has no control over.
    13. For the avoidance of doubt, the Respondent denies that it is liable to the Claimant in respect to the coverage issue. The Respondent does not claim or attempt to claim that it has 100% coverage within the UK at all times. The Respondent is able to provide the Claimant with coverage when in range of a base station forming part of its network. The mobile phone is not intended to be used in one fixed location or place and therefore coverage may vary dependant on the location of the user at that given time.
    14. The Respondent fulfils its obligations under the Agreement notwithstanding that there are areas of the country where a customer may be unable to obtain coverage; such is the nature of a mobile telephone service.
    15. The Respondent has at all times performed its obligations under the Agreement and charged the Claimant in accordance with the provisions of his price plan and the terms and conditions applicable to the Agreement.
    16. The Claimant remains able to use the Respondent’s services in those areas where the Respondent provides coverage and this is the scope of the Respondent’s obligation under the Agreement.
    17. The Respondent denies that it is liable to the Claimant in respect to any coverage issues in accordance with Clause 3.1 and Clause 3.2 of the Agreement. The Claimant has been able to use the Respondent’s services whilst in range of base stations forming part of the network whilst using the relevant 2G or 3G technologies.
    18. The Respondent submits that the Claimant has not selected itemised billing, as such any usage that falls within her price plan will not be itemised on the monthly bills. However, the Respondent does maintain a record of the Mobile Number’s usage in respect to the number of calls, texts and data used and attached hereto at Schedule 2 is an extract from the Respondent’s billing system showing the Mobile Number’s usage history confirming that the Claimant has consistently made use of the Respondent’s network throughout the disputed period. The Claimant has made use of and benefited from the Respondent’s service. The Respondent therefore denies that the Claimant should be entitled to have the charges applied to the Account removed and/or to a refund pursuant to Clause 4.6 the. The Respondent further denies that the Claimant should be entitled to terminate the Agreement without applying a cancellation fee pursuant to Clause 7.2.1. Such a figure being £548.19 as of today’s date, reducing on a daily basis.
    Non-direct debit charge/Separate Payment Handling Charge (“SPHC”)
    19. It is the Claimant’s claim that he was advised that the SPHC was £3.00, therefore, he has been overcharged as £3.50 has been charged each month. The Respondent denies the Claimant’s claim, as pleaded or at all, and hereby puts the Claimant to strict proof thereof.
    20. The Respondent submits that all of its charges are set out within its booklets of charges. Attached hereto at Schedule 3 is a copy of the Respondent’s what it costs booklet entitled “Non standard charges for consumer pay monthly plans.” At page 11 of the booklet shows that the SPHC for each bill not paid by direct debit or BACS bank transfer is £3.50 (inc VAT). The Respondent therefore denies that the Claimant has been overcharged and further denies, if such is pleaded, that he should be entitled to a refund of the SPHCs
    21. The Respondent denies that it has failed in its duty of care to the Claimant and/or breached any term of the Agreement in applying the SPHC at £3.50 (inc VAT) and hereby puts the claimant to strict proof to provide evidence proving otherwise.
    Price Increases / RPI
    22. The Respondent submits that the issue relates to a business decision taken by the Respondent to increase its prices.
    23. Rule 2(g) of the CISAS Scheme Rules (“the Rules”) provides that the CISAS Scheme (“the Scheme”) can be used to settle disputes about (i) bills and/or; (ii) communication services provided to the Respondent’s customers.
    24. The Respondent submits that the cause of action pleaded by the Claimant is neither directly related to bills or communication services and therefore represents a dispute
    which falls outside the remit of Rule 2(g) and therefore is a matter which is not within the jurisdiction of the Scheme.
    25. The Respondent submits that the cause of action pleaded by the Claimant is neither directly related to bills or communication services and therefore represents a dispute which falls outside the remit of Rule 2(g) and therefore is a matter which is not within the jurisdiction of the Scheme
    26. Therefore, the Respondent respectfully submits that the Claimant’s claim as pleaded cannot be dealt with under the Scheme and that pursuant to the Rules an adjudicator is not therefore able to consider the Claimant’s claim.
    27. The remainder of this Defence is pleaded without prejudice to the above.
    28. The Respondent denies that it is liable to the Claimant as pleaded or at all.
    29. Pursuant to Clause 7.1.4 between the 5-15 April 2014 the Respondent issued to the Claimant (together with all of its pay monthly customers) written notice (“the Written Notice”) advising of a 2.7% increase in price plan monthly charges that would take effect as from 28 May 2014.
    30. As Written Notice was given between the 5-15 April 2014 the Respondent was required, for the purposes of Clause 7.2.2.3 to use the most recently published RPI figure before we give you Written Notice under 7.1.4. Therefore the correct RPI figure to use was the RPI figure for February 2014 which was published on 25 March 2014, being the most recently published RPI figure before Written Notice of the increase was given.
    31. The RPI figure published as at the time the Written Notice was issued (being 5-14 April 2014) was the RPI figure for month of February 2014 which was published on 25 March 2014 which was 2.7%.
    The RPI 12-month rate for February 2014 stood at 2.7%1
    32. The Respondent denies that the price increase of 2.7% is an increase above the RPI as provided for by way of Clause 4.3.1.
    33. The Respondent submits that the previous increase of charges in March 2013 does not prevent the increase in charges in May 2014. The Respondent submits that, in accordance with the terms of the Agreement that it can increase its charges providing that notice of such increase of charges is given to the Claimant. The Respondent submits that due notice was correctly given to the Claimant.
    34. The Respondent further denies that such increase in charges is an increase which entitles the Claimant to terminate the Agreement without paying a cancellation charge as provided for by way of Clause 7.2.3 or indeed that such is a material detriment that entitles the Claimant to treat the Agreement as terminated without paying a cancellation charge.
    35. As the increase in charges of 2.7% set out within the Written Notice is not higher than the RPI for February 2014 of 2.7% the Claimant is not entitled pursuant to Clause
    1. 1 ons .gov .uk/ons/rel/cpi/consumer-price-indices/february-2014/stb---consumer-price-indices---january-2014.html
    7.2.3 of the Agreement or otherwise to cancel the Agreement without paying a cancellation charge.
    36. The Respondent submits, if such is alleged, that it is not obligated to use any other method to calculate the price increase, such as the use of Consumer Price Index (“CPI”). The Respondent submits that the clause specifically refers to the use of RPI as a measure of calculation and therefore the use of any other measure, whether such be higher or lower, would not be in accordance with the terms of the Agreement. The Respondent has given certainty to the Agreement to specify RPI as the measure that it would use for the purpose of any increase and accordingly it is the RPI measure that must be used and not any measure, such as CPI.
    37. The Respondent denies that, if such is alleged, that it mis-sold the terms of the price plan to the Claimant. At the time of entering into the Agreement the Respondent did not have plans to increase its prices and that therefore the price quoted to the Claimant was the correct price at that time. The Respondent submits that it did not mis-sell or mis-lead the Claimant in respect to such charges. The Respondent submits that it was not a ‘fixed term contract’ and that the Respondent could increase its charges, as provided for by way of the Agreement. The Respondent has exercised its contractual right to increase charges and the Claimant is not entitled to the remedy sought.
    38. The Respondent further refers General Condition 9.6 (“GC 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 Respondent submits that he increase in charges at the rate of RPI is not of material detriment to the customer and the customer is hereby put to strict proof thereof.
    39. Further or alternatively, the material detriment issue constitutes a complicated issue of law for the purpose of Rule 2(j) of the Scheme.
    40. The Material Detriment Issue does not relate to any of the matters set out in Rule 2a.
    Bills: It does not relate to any bill issued by the Respondent to the Claimant.
    Customer Service: It does not relate to the quality of customer service provided by the Respondent to the Claimant.
    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.
    41. A proper resolution of the case would require CISAS to consider the proper construction of the term “material detriment” and the increase in charges is of material detriment.
    42. 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 GC 9.6 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.
    43. 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 establish that that increase is of material detriment.
    44. 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 clauses as per the applicable terms and conditions.
    45. The Respondent denies that it has breached its Agreement and/or breached its duty of care to the Claimant. The Respondent remains of the view that the decision to increase its prices is a business decision and falls outside the remit of the Scheme. Accordingly, as the subject-matter of the complaint falls outside the remit of the Scheme the Respondent did not issue the Claimant with a deadlock letter. However, as above, the Respondent remains of the view that the decision to increase its prices is outside the remit of the Scheme.
    46. The Respondent submits that the Claimant is free to cancel the Mobile Number by giving notice to cancel at any time. However, as the Claimant is within the minimum term period in respect to the Mobile Number he would be liable for a cancellation charge in the sum of £548.19 (reducing on a daily basis) should he terminate the Mobile Number within the minimum term period.
    47. The increase in charges did not take effect until 28 May 2014 and therefore as at the date of the Claimant’s application and the Defence the Claimant has not been charged any additional charges and therefore a refund is not applicable, such being denied that the Claimant is entitled to such refund in any event.
    48. The Respondent denies that it has breached its Agreement and/or breached its duty of care to the Claimant. As provided for by way of Annex 4 to General Condition 14, the Respondent is not required to issue a written deadlock letter when requested by a complainant where the subject matter of the complaint is outside the jurisdiction of the Respondent’s Alternative Dispute Resolution scheme. The Respondent remains of the view, and as previously stated by CISAS, that the decision to increase its prices is a business decision and falls outside the remit of the Scheme. Accordingly, as the subject-matter of the complaint falls outside the remit of the Scheme the Respondent did not issue the Claimant with a deadlock letter.
    49. The Respondent has provided a response to the Claimant in a timely fashion and that such response has been consistent. Whilst the Claimant’s appears to dislike the content of such response it does not follow that the Respondent has breached its duty of care to the Claimant. The Respondent denies that it has failed to address each aspect of the Claimant’s claim and that in any event the Respondent submits that its position remains unaltered and that it does not accept the Claimant’s arguments that such response entitles them termination without charge and/or compensation.
    50. Save as is denied in any event, the Respondent submits that the Claimant’s only recourse should the increase be in excess of RPI is to termination of the Agreement without paying a cancellation charge. The Respondent submits that the Claimant is not entitled to seek an unlock code for any handset associated with the Agreement and such is not a remedy as provided for by way of the Agreement. The Respondent denies that it is liable to the Claimant with regards the facilitation of an unlock code for the handset, either as free of charge or chargeable. There is no contractual obligation to unlock a handset at any stage before, during or after termination of the Agreement and the Claimant is hereby put to strict proof thereof.
    51. The Respondent denies liability to the Claimant as pleaded or at all, either contractually or otherwise.
    The Respondent believes that the facts stated in this form are true. I am duly authorised by the Respondent to sign this statement.
    Dated the 03 June 2014
    Rue Kandi
    Legal Executive
    For and on behalf of the Respondent whose address for service is at:
    EE Limited
    Trident Place
    Mosquito Way
    Hatfield
    Hertfordshire
    AL10 9BW

    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!
    LoopLife wrote: »
    I sent some of the templates to EE and after they rejected each one I sent a very very brief summery to CISAS

    Apology Required: No Explanation Required: No Action Required: Terminate contract penalty free. Bill Action Required: No Money Required: �0.00 Product or Service required: No Summary of the claim: Poor signal at my address, tried calling on various occasions and no reply after at least 15-30 minutes waiting to get through to someone. My non direct debit payment says £3 on my contract, yet they're charging me £3.50. Price increases which I don't agree with, I'm over paying for no signal in the first place.

    Anyone able to give me some advice about what to respond? I've got under 48 hours to submit my reply. Thank you.
  • Nodding_Donkey
    Nodding_Donkey Posts: 2,738 Forumite
    Ninth Anniversary 1,000 Posts
    Well I received my £100 in my bank this morning which EE reckon they processed on the 27/05. Who do they bank with? I can transfer £25 to Aunty Mabel as a treat to pay for her bingo and it arrives 15 minutes later.

    They'll have to go some to get the rest of the money they owe me in the bank tomorrow, I only got the PAC on Friday and the change over date is today.
  • shafeeq
    shafeeq Posts: 973 Forumite
    Part of the Furniture 500 Posts
    Hi


    Here is my time line with EE from winning the case and getting money back


    16th April CISAS made a decision that I be awarded the money and provided with PAC. I was with Orange, contracted started October 2012.


    20 May I accept the decision
    27 May CISAS replied back with the time scale given to EE
    29 Had an email saying that they will pay me by BAC all the money
    30 May had a phone call from Orange and given a PAC code on Phone
    6th June PAC Code transferred to new number
    9 June all money been paid in to my account


    Must hand it to EE they were brilliant with response after CISAS contacted them.


    Shafeeq
  • RandomCurve
    RandomCurve Posts: 1,637 Forumite
    LoopLife wrote: »
    Anyone able to give me some advice about what to respond? I've got under 48 hours to submit my reply. Thank you.


    Was that all you sent to CISAS, or did you send the Appendix 1 and correspondence?


    If you sent the template as well you need to see the standard response (http://fightmobileincreases.com/fight-ee/fight-the-march-2014-price-rise/). If you only sent the brief details then this I going to be difficult for you.


    You will need to address each point - with evidence (which should have been sent to CISAS already - so they may disallow anything you send now).


    For Instance charging £3.50 when contract says £3.00 you need to send a copy of the contract and a bill and point out that under GC 11.1 EE have an obligation to provided correct bills - failure to do so can result in a fine from Ofcom of up to 10% of turnover (like Ofcom would ever do that!!!), but it won't get you out of your contract.


    Regarding coverage - if you can prove (speed test results) that the service has deteriorated since EE started moving to 4G then you can argue that you are not getting the bargain you signed up to and therefore should get a penalty free cancellation. If coverage has always been bad the you will need t prove that EE mislead you.
  • RandomCurve
    RandomCurve Posts: 1,637 Forumite
    GolfBravo wrote: »
    I'm still waiting for CIASA reply re: Rule 5(a) enforcement. Email sent 29th, cc'd Ofcom.

    I'm not holding my breath though...


    Have you chased tem up again?
  • RandomCurve
    RandomCurve Posts: 1,637 Forumite
    I think we are up to 58 wins.
  • RandomCurve
    RandomCurve Posts: 1,637 Forumite
    Anyone on Vodafone? I think we can get you out of your contract PENALTY FREE!
    https://forums.moneysavingexpert.com/discussion/4818999
  • Wullie32
    Wullie32 Posts: 35 Forumite
    Seventh Anniversary 10 Posts Combo Breaker
    edited 9 June 2014 at 10:49PM
    I've had my full response back from EE via CISAS and have until the 16th to respond. Am I to assume there is a general template for this?

    Thanks in advance.

    EDIT: looks like #688 onwards is what I'm after, is that right?
  • RandomCurve
    RandomCurve Posts: 1,637 Forumite
    Wullie32 wrote: »
    I've had my full response back from EE via CISAS and have until the 16th to respond. Am I to assume there is a general template for this?

    Thanks in advance.

    EDIT: looks like #688 onwards is what I'm after, is that right?
    Yes that is it.
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