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

Wullie32 · 27 June 2014 at 10:04AM

Can't believe I've lost, God I'm fuming about it. How can one adjudicator just side with them consistently on the same points of law that the others don't?

RandomCurve · 27 June 2014 at 10:06AM

Originally posted on the Price rise forum:

Ofcom - a regulator in its own little bubble!
Is anybody out there under any illusions that Ofcom actually gives a damn about protecting consumers?

So:

Ofcom bring in a new definition specifically aimed at price rise variation clauses,
EE change their price variation clause
New regulation does not apply!

what planet are they on?

Under the old T&C if EE applied a rate "higher than RPI or ANY OTHER inflation rate" you could have cancelled. So part of the new claim is either the new T&Cs is subject to the new regulation, or the old T&C is still applicable - how can they have it both ways?

And are Ofcom now running the National Statistics office and suddenly RPI is okay - I don't think so.

Ofcom are happy for EE to increase prices by 58.8% higher than the old contract allowed -and that is not of Material Detriment (to your benefit or neutral)?

Lynn Parker:
"As you know from our previous correspondence on this issue, Ofcom has not taken the action you suggest for a number of reasons including, importantly, that the new term did not provide for price rises we considered likely generally to be materially detrimental"

Well that is a LIE they actually said:
“The revised terms are likely to put consumers in a better, or at least no worse, position than the previous terms. They do not purport to create a right to increase prices more than was previously the case,”
So completely ignored the question (or rather changed the answer).

I will compose another email - when I have claimed down.

We so desperately need a journalist to shine a spotlight on this S**t.

Wullie32 · 27 June 2014 at 10:09AM

RandomCurve wrote: »

Yes it will be - was her reasoning the:
Questioned your motive for entering the contract and:

Questioned why you did not seek to have the T&Cs left unchanged?

What contract are you on?

It's a he.

Orange contract, started in May 2013.

Questioned the motive for entering into the contract, also implies I was out of time in raising the issue.

Liliya · 27 June 2014 at 3:30PM

I've had my decision from CISAs today (Orange pre-October 2012 contact). Success in part

I got my contact cancelled, all charges refunded, PAC code, and £75 compensation. The unlock code was denied (as expected), and £25 compensation was declined relating to EE responding to requests for information.

Thanks RC

RandomCurve · 28 June 2014 at 1:39PM

Wullie32 wrote: »

It's a he.

Orange contract, started in May 2013.

Questioned the motive for entering into the contract, also implies I was out of time in raising the issue.

Can you email the decision to me please:
[EMAIL="info@fightmobileincreases.com"]info@fightmobileincreases.com[/EMAIL]
It will help in formulating the new case.

BallsMan · 29 June 2014 at 5:59PM

Wullie32 wrote: »

I got the dud adjudicator and as I expected, he has decided against me despite using the templates etc. What is my next step? Small claims court?

same here lost on my Orange case

RandomCurve · 30 June 2014 at 3:44PM

All - below is a response to ofcoms response that I would like you to send. The opening paragraph in BLUE should be deleted by anybody who received Ofcoms response, the blue paragraph should be kept in by those who never sent the original email, but are prepared to help us fight on this issue.
As the formatting goes a bit astray when copying from word to MSE I will put a Word version on the Fight Mobile Increases website. http://fightmobileincreases.com/pressure-ofcom/

[EMAIL="Ed.Richards@Ofcom.org.uk"]Ed.Richards@Ofcom.org.uk[/EMAIL]
[EMAIL="Lynn.Parker@Ofcom.org.uk"]Lynn.Parker@Ofcom.org.uk[/EMAIL]
Graham.Howell[EMAIL="Graham.Howell@Ofcom.org.uk"]@Ofcom.org.uk[/EMAIL]
[EMAIL="OCCtelecoms@Ofcom.org.uk"]OCCtelecoms@Ofcom.org.uk[/EMAIL]

And CC.
[EMAIL="Olaf.Swantee@ee.co.uk"]Olaf.Swantee@ee.co.uk[/EMAIL]
[EMAIL="jeroen.hoencamp@vodafone.com"]jeroen.hoencamp@vodafone.com[/EMAIL]
[EMAIL="Joel.Taylor@ukmetro.co.uk"]Joel.Taylor@ukmetro.co.uk[/EMAIL]
[EMAIL="Edwin.lane@bbc.co.uk"]Edwin.lane@bbc.co.uk[/EMAIL]
[EMAIL="news@the-sun.co.uk"]news@the-sun.co.uk[/EMAIL]
[EMAIL="info@fightmobileincreases.com"]info@fightmobileincreases.com[/EMAIL]

Dear Lynn,

I have seen the communications between consumers and Ofcom on the subject of EEs change in T&Cs on the Fight Mobile Increase website. As a concerned consumer myself I would be please if you could copy me into Ofcom’s response to the letter below and also confirm that you have logged this email of mine as a formal compliant against both EE and Ofcom.

Thank you for your email of 26 June 2014 responding to my earlier email. I will consider taking this further with Graham Howell in due course. However as you have appeared to have misunderstood the two core questions I will need to repose them in light of the apparent mis-understanding to ensure that any complaint submitted is on the correct basis (and in understanding the questions better Ofcom may have a different view to that expressed in your email of 26th June, which will be consistent with 95% of CISAS decisions made by legally trained adjudicators who have fully understood the question).

In addition to the misunderstanding of the two core questions I also need to follow up on your comments in relation to the definition of Material Detriment for pre 23rd January 2014 contracts and the following also remain unanswered from my email and I would be pleased if you could address these properly:

Original Q2 – what evidence did you initially review?
1. Can you confirm that Ofcom’s responses of 26th June mean that Ofcom did review the old and new terms before your email of 29th May
2. If not can you detail the evidence Ofcom did review?
Original Q4 - You have not explained how Ofcom concluded that the change in T&Cs
1. “…do not purport to create a right to increase prices more than was previously the case…”
Original Q5 - Can Ofcom explain – with its consumer protection remit – why giving consumers less scope to leave their contracts (in ongoing contracts) is beneficial to those consumers who are subjected to a price increase?

Core Question –T&C Change.
The core question is:

Does EE changing its T&Cs to allow it to impose a higher price increase than was previously the case on 7.5 million consumers who cannot exit their contracts due to being in a fixed period require action by Ofcom (as a regulator with a statutory remit for consumer protection AND as a designated enforcer of the UTCCRs), under GC 9.6 (b & c Notice requirements); and/or Schedule 2, paragraph 1 (j) of the UTCCRs?

In your initial response (29th May) Ofcom replied that they had not taken action because the change in T&Cs:
“…do not purport to create a right to increase prices more than was previously the case…”
Now that it has been established that Ofcom’s assessment of 29th May was incorrect, and therefore the substantive point on which the decision not to take action was incorrect it stands to reason that now Ofcom fully understands the impact Ofcom will be taking action - which would then be consistent with 95% of the CISAS case decisions made by legally trained adjudicators who are specialist in telecommunication matters who have understood the substantive point. Should Ofcom still decline to take action due to lack of resources (“administrative priorities”) then it seems that my characterisation that EE are above the law (on this matter) where Ofcom is concerned is indeed correct.

For some unexplained reason in your response of 26th June now that Ofcom has realised that the new T&C does indeed “… purport to create a right to increase prices more than was previously the case…”,
Ofcom have responded that no action is necessary as
“We have given careful consideration to all relevant factors, including our view that the new term did not provide for price rises we considered likely generally to be materially detrimental”
but this is an answer to a totally different question namely:
"Does EEs new T&C give it the right to impose a price increase which is of material detriment?"

The two questions are poles a part, the question raised (and requiring addressing by Ofcom) is a question over EEs change of T&C to impose a higher price increase than was previously the case. The question Ofcom have addressed (which is irrelevant) is if the new price clause is likely to cause Material Detriment. The two questions are significantly different as if EE had the new price rise clause in the original contract, that may have been legal, but that is not the same as allowing EE to move its actual price rise clause from one legal format to another if that change involves the customer having to suffer a higher price increase than was previously the case, I therefore request that Ofcom responds to the core question which was actually asked which is:

Does EE changing its T&Cs to allow it to impose a higher price increase than was previously the case (regardless of the quantum) on 7.5 million consumers who cannot exit their contracts due to being in a fixed period require action by Ofcom (as a regulator with a statutory remit for consumer protection AND as a designated enforcer of the UTCCRs), under GC 9.6 (b & c Notice requirements); and/or Schedule 2, paragraph 1 (j) of the UTCCRs?
In your response (should Ofcom still consider there is no need to take action to protect the consumer) I would like to know:

how Ofcom inadvertently “transposed questions”

Where under the UTCCRs (Ofcom is a designated enforcer) is there a Material Detriment qualification?
If in your revised response you rely on the phrase “…all relevant factors…” please can you list what those factors are?
If in your response you refer to Material Detriment can you – in terms of a change in T&Cs (not a change in price rise percentages):
1. Clarify the definition of Material Detriment you are using
2. Explain where that definition comes from?
1. And confirm why it is the correct definition?

Core Question – Which definition of Material detriment to use (Original question 13)
The actual question is:

As EE changed it price variation clause effective 26th March 2014 (this has nothing to do with the price rise effective 28th May 2014), is the new price variation clause subject to the new regulations effective 23rd January 2014?

You have answered the question in terms of:
"Should the price rise effective 28th May be subject to the new regulations?"

Please can you answer the actual question asked?

Ofcom have clearly stated that the “price rise will modify the terms of pre-existing contracts” and therefore the old regulation will apply. It is clear that the actual application of a price increase is indeed only a modification to an existing clause as no new contracts are issued. However in relation to the change in T&Cs effective 26th March 2014 the change was not a modification to an existing clause, but the removal of an existing clause with the replacement of a NEW clause this is adequately demonstrated by:

When EE replaced the original price variation clause it had to issue new contracts (for example CVN01A became CVN01B) as the issuance of a new contract is not required for modifications (such as price increase) then it is clear that this is a NEW contract which was effective from 26th March 2014 and therefore must be subject to the regulation in force at the time (Ofcom guidance of 23rd January 2014).
Additionally as the pre January 23rd 2014 EE contracts no longer exist (if they did customers could have escaped their contracts due to EE imposing a price rise higher than CPI) then consumers only have a contract that they can take legal action on dated from 26th March 2014 –which is 2 months after the new regulations came into effect.

Applying the new regulation to a new contract effective 26th March would clearly not be applying the new regulations retrospectively. You clearly state that the “price rise will modify the terms of pre-existing contracts” and that pre-existing contract is dated 26th March 2014.
As the clarified definition of Material Detriment is solely aimed at price variation clauses, then it stands to reason that any price variation clause which is amended after 23rd January 2014 must be subject to that regulation. As Ofcom is unable to apply new regulations retrospectively, then obviously EE cannot retrospectively change the T&Cs without them being subject to the new regulations – unless of course Ofcom is applying double standards which are weighted heavily in favour of the industry to the detriment of the consumers that Ofcom has a statutory duty to protect.
Now that Ofcom understands that the original question 13 relates to the change in T&Cs effective 26th March 2014 and NOT the price increase effective 28th May 2014 can Ofcom clarify (with reasons) on which regulation (pre or post 23rd January 2014) EE contracts dated 26th March 2014 are subject to?

Pre 23rd January 2014 Definition of Material Detriment
I think we can agree that GC 9.6 does not define “Material Detriment”, so in the absence of a definition surely the best way to try and clarify the meaning is to understand why the term has been included and what the source regulation for GC 9.6 is. As you are aware the source of GC 9.6 is the USD which provides that ANY change to contract terms gives rise to a customer’s right to a penalty free termination. Therefore we must start from a base that the material detriment threshold is fairly low, as if it were a high threshold Ofcom would have not implemented the USD correctly.
Ofcom itself has given an indication of things which are not of Material detriment “changes that are beneficial or neutral in their impact”, it therefore follows, by definition, that changes that are not beneficial or are not neutral are of material detriment.
The above seems to be the best definition of pre 23rd January 2014 Material Detriment as I can find and it closely follows the USD whilst allowing some flexibility –and the words themselves come from Ofcom who supported retaining the inclusion of the phrase “Material Determent” and therefore must know what definition they intended (otherwise Ofcom would have been negligent in retaining the phrase).
As you appear to be challenging that definition for Pre 23rd January 2014 can you provide the official definition, or at least explain why my conclusion is not correct (saying that the part I quote is not an exhaustive definition can only hold if you provide the exhaustive definition or reasonable alternatives that fit with the intentions of the USD and previous Ofcom announcements). For instance I assume RPI increases were considered to be not of material detriment as they were (in real terms) neutral – however now RPI has been proven (please check with the ONS) to overstate the true cost of living, and RPI increase is a REAL TERMS increase and therefore is not neutral (broadly neutral not being relevant – it is either neutral or it is not).

I look forward to receiving Ofcom’s revised view on EEs actions based on the proper facts of the case, which hopefully will lead you to the conclusion that action to protect 7.5 million customers is required by Ofcom in order to fulfil Ofcom’s statutory duty to protect consumers and as a designated enforcer of the UTCCRs.

Regards

A supporter of “Fight Mobile Increases” – a pressure group dedicated to assisting consumers use the protection of the UTCCRs and GC 9.6, and to monitor and highlight Ofcoms actions (inaction) in relation to the Mobile Phone Market.

RandomCurve · 30 June 2014 at 3:46PM

BallsMan wrote: »

same here lost on my Orange case

I'm looking to create a revised a case, once MSE have confirmed what support - if any - can they can give us in terms of publicity.

In the meantime the more of you who can spare 30 seconds and send the email above to Ofcom the more likely it is that Ofcom will take action so that we do not need to go through this again to win.

Savedotmoney · 30 June 2014 at 8:53PM

I haven't been active on this thread much due to other commitments but today I received my adjudicators decision and I won! Along with £112 compensation.

g6jns_2 · 30 June 2014 at 10:47PM

Whilst I congratulate you on your persistence I can't help feeling that the time for talking to OFCOM is over. IMHO the time has come to go to your MP or the Parliamentary Ombudsman. OFCOM have repeatedly and consistently failed in their remit as far as EE are concerned. Whatever you do I will continue to support your campaign.