We'd like to remind Forumites to please avoid political debate on the Forum... Read More »
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
EE.T-Mob.Orange. Change T&C From 26th March 2014
Comments
-
RandomCurve wrote: »So the EE dirty tricks machine has swung into action!
EE have now realised that you CAN
cancel your contract and have gone into damage limitation mode.
The letter they have sent (above) has been written incorrectly and the website is the version they meant to send.
They are going to try and wriggle out of this by claiming that DUE TO AN ADMINISTRATIVE ERROR ON THEIR PART changes to T&Cs were sent to all customers when only those on pre October 2012 should have received them - they are a real nasty bunch of vipers!
They will probably write to you apologising and may (although I doubt it)offer you a £5 of £10 credit on your next bill as way of a sorry. DO NOT ACCEPT THAT.
You T&Cs are clear that if THEY "NOTIFY YOU OF A CHANGE TO T&Cs", you can cancel, it says NOTHING about the T&Cs being implemented.
The complication will come for anybody who never took the advice of "Don't Delay Cancel Today". If you have already sent email one then CISAS should just be a formality and you'll get the penalty free cancellation (no guarantees here don't forget).
For those yet to send the first email EE will claim that they had already rescinded (withdrawn) the change, however as you have 30 days to accept the change or not you may be able to validly argue that they can't rescind it until the 30 days is up. In any case you are blissfully unaware that hey have withdrawn it as the letter says that it does affect you!!!
My advice SEND THE CANCELLATION EMAIL at post #44 TO EE IMMEDIATELY (whatever T&Cs you are on).
Please Please Please DON'T DELAY - CANCEL TODAY
Sorry if I'm being a little slow, but how have they "withdrawn" the change? It still looks like it's changed to me regardless of whether you signed pre or post October 2012??0 -
Sorry if I'm being a little slow, but how have they "withdrawn" the change? It still looks like it's changed to me regardless of whether you signed pre or post October 2012??
If you go back to the Orange or T-Mobile website they are now saying that the change only applies to those who took out contracts BEFORE 30 October 2012. People are also receiving letters (which say EXACTLY THE REVERSE i.e it applies to those who took out a contract AFTER 30 October 2012).
I notice that on the EE website they have added no such caveat.0 -
RandomCurve wrote: »Given the latest developments from EE I think those who have received the "this is our final word email" we should change tactics and go straight to CISAS.
I will try and post up a case later tonight/tomorrow (it is written but I need to check some cross references.
I am in this situation RC. I also think it would be best to go straight to CISAS. Seeing as EE have stipulated that its their final word.0 -
RandomCurve wrote: »If you go back to the Orange or T-Mobile website they are now saying that the change only applies to those who took out contracts BEFORE 30 October 2012. People are also receiving letters (which say EXACTLY THE REVERSE i.e it applies to those who took out a contract AFTER 30 October 2012).
I notice that on the EE website they have added no such caveat.
it has always said that on the website! Which is what was listed on the original post #1 of this thread?!
Also this is why I asked the question I did in post #1470 -
Before posting a template CISAS claim I thought a little step through guide to the CISAS process may be of use.
When you submit your claim CISAS will forwarded it to EE who then have 10 days to respond (submit a defence).
CISAS will send you a copy of the defence and you will have 5 days to respond the EEs defence - you do not have to respond, but if past history is anything to go by it will be a pack of lies including claiming that CISAS do not have authority to decide these cases, and that EE have not changed your T&Cs!!! So you should respond (I am happy to help if needed).
Once CISAS receive your response to the defence an adjudicator will be appointed (takes a day or 2) and then CISAS will make a judgement within 3 weeks of the appointment.
As for the application process itself it goes like this:
I will post a CISAS claim that you should just be able to copy and paste into the CISAS claim form (it is less than 750 words) which can be found here:
http://www.cisas.org.uk/Makeanapplication-25_e.html
Don't forget to update the Red and blue items dates/clauses as relevant to you.
When you follow the link above you will need to enter some details (name address etc etc) there are also some drop down boxes - most are self explanatory, but here is some guidance:- 'Dispute Type'- contract Terms
- 'What do you want the company to do?'
- 'take some action' - Give a back dated penalty free cancellation and a PAC and unlock code
- 'Give you money' *
You will also have an option to upload "evidence" or to submit that separately by email - I suggest you submit it separately via email (as the attachments method did not work when I tried to do it that way). The evidence is just the emails you have sent EE and the responses you have received. If you have a copy of the Text they sent in February and you can "copy" it into an email then use that too. These emails are the Appendix 2 - X referred to in the claim I will supply Appendix 1.0 -
One final warning I am not legally trained and my knowledge on this is purely based on my past experiences of dealing with Orange, T-Mobile, CISAS and the SCC. You do not need to take my advice, and you can change any of the below that you want or use something completely different.
THE BELOW IS FOR POST 30th OCTOBER 2012 CONTRACTS ONLY
Instructions:
Red X – put in the relevant dates
Blue text DELETE (it is there as a guide for you only) – unless it is a link to a website/document.
Red text delete the version that does not apply to your contract and change the remaining text to black.
Below to be copied and pasted into CISAS claim
Summary
My claim against Orange/T-Mobile/ Everything Everywhere (referred to as EE in the remainder of this claim) is that I should be allowed to exit my contract penalty free back dated to X which is when I first contacted EE due the change in T&Cs notified to me on X as per clause 7.2.3.2 (T-Mobile and EE)/ 15.1B and 4.3 (Orange)Contract:
7.2.3.2 You are a Consumer and the change that We gave You Written Notice of in point 2.11.3 or 7.1.4 above is of material detriment to You and You give Us notice to immediately cancel this Agreement before the change takes effect
15.1(b)We acknowledge that if we do increase the Charges, withdraw Orange Additional Services or introduce new mandatory Charges – or if your contractual rights are affected to your 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).
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:
That I be awarded £100 compensation (£25 for each) for the following:- Breach of GC 9.6 – not informed of my rights to cancel the contract, (£25)
- Breach of UTCCRs Schedule 2, paragraph 1, – EE taking exclusive right to interpret what Material Detriment means, (£25)
- Brach of the duty of care owed by ignoring my legitimate requests for information. (£25)
- Breach of the requirement to act in Good faith in the way that the change in T&Cs was presented to me (£25)
Details are at appendix 1
Correspondence is at Appendix 2 to X (number 2 , 3 4 etc – it will be a copy of each email you have sent and received)0 -
Here's my email reference the letter I had today. I may have a slight advantage on some as they have settled on a contract already.
Legally Deemed To Have Been Received
Dear Mr Swantee,
Further to the letter dated 24th of February from EE advising me that there will be a change to the terms and conditions of my contract I am giving you notice that I do not except these changes and under Universal Service Directive 2002/22/EC of the European Parliament and of the council 7 March 22002 Chapter IV - End User Agreements Article 20 - Contracts, Paragraph 41 I have the right to withdraw from my contract without penalty upon notice of proposed modifications in the contractual conditions and under your own terms and conditions:
15.1(b)We acknowledge that if we do increase the Charges, withdraw Orange Additional Services or introduce new mandatory Charges – or if your contractual rights are affected to your 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).
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:
In light of this I formally request that you carry out my rights and terminate my contract at once and issue to me my PAC. I should advise you that I do not except that these changes can be deemed not to be of material detriment to me by EE, you are not legally empowered to make such a claim.
EE have previously settled with me on the same complaint for a previous contract. Therefore I hope that EE are aware that I am willing to take this matter to CISAS and beyond if need be.
I look forward to your response.0 -
THE BELOW IS FOR POST 30th OCTOBER 2012 CONTRACTS ONLY
Below is Appendix 1 which you send as evidence (via email) to CISAS.
There are two sections headed "without prejudice" these are essentially separate arguments which we are asking to be considered, but without distracting from the main claim - I am not sure myself if you should include or exclude then - I would include them.
For those on PRE October 2012 contrast the "without prejudice" points are the building blocks for your CISAS claims.
Don't Forget:
Red X – put in the relevant dates
Blue text DELETE (it is there as a guide for you only) – unless it is a link to a website/document.
Red text delete the version that does not apply to your contract and change the remaining text to black
Appendix 1
Details
My claim is that EE have breached the terms of our contract by refusing my request to a penalty free cancelation following notification of a change in terms and conditions notified to me by text on X that I consider to be to my material detriment as provided for under clause 7.2.3.2 (T-Mobile and EE)/ 15.1B and 4.3 (Orange) of the contract.
My current clause is as follows:
TM and EE 7.2.3.3. The change that We gave You Written Notice of in point 7.1.4 is: (i) an increase in Your Price Plan Charge (as a percentage) higher than any increase in the retail price index (also calculated as a percentage) 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;
Orange 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;
Whereas the new clause is
EE & T-Mobile 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);
ORANGE 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).
It is clear from the above that the maximum amount that EE can reference to increase my contract by has increased from the lowest inflation rate published to the published RPI. Therefore as the absolute amount of the increase can now be higher the change must be to my Material Detriment.
RPI lost its designation as a National statistic in March 2013 as the calculation methodology does not meet with international calculation standards and has been replaced with CPI which is the statistical measure of inflation now used by Government. As CPI is the true measure of inflation any increase over CPI is a real terms increase and that is of material detriment to me.
CPI and RPI rates over the last six months are as follows and can be verified from the Office of National Statistics (ONS) website, the change in designation of RPI can also be verified on the ONS website
Aug 2013 CPI 2.7%; RPI 3.3%
Sep 2013 CPI 2.7%; RPI 3.2%
Oct 2013 CPI 2.2%; RPI 2.6%
Nov 2013 CPI 2.1%; RPI 2.6%
Dec 2013 CPI 2.0%; RPI 2.7%
Jan 2014 CPI 1.9%; RPI 2.8%
Feb 2014 CPI 1.7%; RPI 2.7% (58.8% higher)
http://www.ons.gov.uk/ons/rel/cpi/consumer-price-indices/february-2013/stb---consumer-price-indices---february-2013.html#tab-Retail-Prices-Index--RPI--and-RPIJ-
Between changing their T&Cs and this case being allowed to come to CISAS EE have indeed advised me of an intended price increase that references RPI (rather than CPI) and this is proof positive that the change of T&Cs was only ever intended to allow EE to use the higher RPI rate, and therefore the change is to my material detriment.
Without prejudice to the above
I contend that regardless of the quantum of the price increase that the change in T&Cs allows, the use of the phrase “Material Detriment” (in a contractual context) is ambiguous in relation to a change in T&Cs. Under the UTCCRs Regulation 7 states that:
(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under Regulation 12.
I contend that the only meaning Material Detriment can have in relation to a change in T&Cs is what I, the consumer, determines to be of Material detriment to me and I consider that to be any change "that is not of benefit to me" and this position is supported, by regulation and the regulatory context of Material detriment as follows.
The phrase "likely to be of Material Detriment" (note it only has to be "likely" - not definite) was introduced in GC 9.6 which itself does not explicitly define Material Detriment, however the meaning can be deduced by considering the intention behind Ofcom (and OFTEL before them) introducing the term "likely to be of material detriment" into GC9.6 and by reference to the source documentation for GC 9.6 which is the USD 20/(22). It is clear that the intention of USD 20(22) was to give the CONSUMER the choice to cancel their contract during a fixed period for ANY modification that is made which they do not accept, and this interpretation coincides with my interpretation of Material Detriment in relation to a change in T&Cs. I therefore request this definition should be inferred in this instance, as it complies with the approach to be taken under the UTCCRs Regulation 7, the spirit of GC 9.6, and the full meaning of USD 20(22) for which GC 9.6 is the UK enactment.
USD 2002/22/EC
Chapter IV – End User Agreements
Article 20 – Contracts
Paragraph 4
4. Subscribers shall have a right to withdraw from their contracts without penalty upon notice of proposed modifications in the contractual conditions. Subscribers shall be given adequate notice, not shorter than one month, ahead of any such modifications and shall be informed at the same time of their right to withdraw, without penalty, from such contracts, if they do not accept the new conditions.
Further Ofcom GC 9.6 support the USD implementation as the term "likely to be of material detriment" was introduced because:
"Our intention was to reflect our general duties and principles of good administration and proportionality in particular. We sought, in light of these, not to rule out contract variations altogether. For example, those beneficial to, or having a neutral impact on, a subscriber.
As Ofcom's reasoning for introducing the term was to protect me - the consumer - from changes in the T&Cs which are not to my benefit or at the very least neutral then any other change is LIKELY to be of Material Detriment. As EE have updated the T&Cs to make the price variation more easily enforceable the change is clearly not to my benefit, nor neutral in its impact.
Note that as an Orange customer clause 15.1 (b) only refers to a change to my deteriment.
Without Prejudice to the above
I believe EE made the change to T&Cs with reference to Ofcom guidance in which CPs were asked to ensure that any price variation clauses were written in such a way as to ensure that they comply with the UTCCRs and therefore move from being unenforceable to enforceable, Clearly any change in T&Cs that moves me from a position whereby EE have an unenforceable price variation clause to a position where EE can now enforce the clause has to be to my Material Detriment. This position is supported by the very language that EE have used when explaining how this change “benefits me” i.e. “..certainty and transparency..” which is the language of the UTCCRs.
The relevant Ofcom regulations are below with a link to the full document, but note that this is not a change that is a legal requirement and EE were not, and are not legally obliged to change T&Cs in existing fixed term contracts by this guidance. It is Paragraph 4 which I have highlighted which is most relevant.
http://stakeholders.ofcom.org.uk/binaries/consultations/addcharges/statement/Guidance.pdf
This is industry guidance on unfair terms in contracts for communications services. It focuses principally on additional charges in consumer contracts, also referring to the obligation for communications providers to comply with General Condition 9 (contract terms)
Guidance on unfair terms in contracts for communications services
Introduction
1. Standard form terms in contracts for the supply of goods and services in the UK, between sellers or suppliers and consumers, must comply with the Unfair Terms in Consumer Contracts Regulations 1999 (“the Regulations”). The OFT, together with a number of other bodies including Ofcom, share the task of enforcement. As a qualifying body, Ofcom has certain duties to consider complaints about terms in contracts used by communications providers (“CPs”)
1 2. The OFT has published general unfair contract terms guidance, based on its experience of enforcing the Regulations, which addresses a wide range of terms in consumer contracts. . 2
3. Ofcom believes that sector-specific guidance (this “Guidance”) on a limited range of such issues will benefit CPs and consumers. This Guidance focuses principally on contract terms which provide for the payment by the consumer of additional charges, default charges, minimum contract periods and notice periods, and contract terms which may lead to additional charges being incurred.
While in many cases this is helpful in considering terms in consumer contracts within communications markets, it does not directly address some of the common terms in contracts for communications services.
4. Ofcom expects CPs to review their terms in light of the Guidance and to amend or remove any that are unfair. Unfair terms are not legally enforceable against consumers (see Regulation 8(1)), so it is in CPs’ interests, as well as consumers,’ to ensure that terms are fair.
Further EE have tried to tell me that this change in T&Cs is for my benefit as it makes my contract clearer. If EEs motive is truly to make the contract clearer then they would have taken the opportunity to remove the phrase "material detriment" from their contract terms as this is the most ambiguous part of the whole contract. By not rectifying this, but only seeking to ensure that the price variation clause is clear (and therefore more likely to be enforceable) I believe highlights the real motive for the change to T&Cs which is not to make the contract clearer for my benefit, but rather to give EE a price variation clause which is more likely to be enforceable, and therefore the change is clearly to my Material Detriment.
Redress sought
For not allowing the penalty free cancellation contained at clause 7.2.3.2 (EE and T-Mobile), 15.1 (b) and 4.3 (Orange) I request that CISAS direct EE to comply with the clause and that the penalty free termination is back dated to the original request and any sums taken since termination are refunded.
EE have breached GC 9.6 B and C in that they did not inform me of my cancellation rights when writing to me when they knew (or should have known) that a change to a T&C that gives them the right to apply a higher price rise than was previously the case is likely to be of material detriment to me. £25
The EE legal department would have known (or ought to have known) that under the UTCCRs section Schedule 2, paragraph 1 EE cannot have the exclusive right to determine what Material determent means, by assuming this right they have tried to pass this change of T&Cs off as being of no consequence when in fact it is. £25
EE breached their duty of care by refusing to respond to my emails where I have legitimately requested to know on what basis EE have decided what Material Detriment means in relation to a change in T&Cs, and under what regulation changes they are referring to. £25
EE have breached the requirements of Good Faith in that they have deliberately presented this change to me as being of benefit to me, without explaining how the change strengthens their position against any challenge to future price increases under the UTCCRs, and would allow them to use a higher index than the contract currently allows. £250 -
nsabournemouth wrote: »I've had a letter through today saying that Orange customers who joined or upgraded after 30 October 2012 and before 23rd of January are affected.
That is different to the terms currently up on the EE website here.
http://help.ee.co.uk/system/selfservice.controller?ARTICLE_ID=3596936&CONFIGURATION=1016&PARTITION_ID=1&TIMEZONE_OFFSET=null&segment=consumer&isSecure=false&CMD=VIEW_ARTICLE
That letter you have posted is interesting! I'm in a position where I have a nearly ended Orange contract and a half way T-Mobile contract going.
The wording in your photo above, which you say is for Orange is different to mine for Orange ; mines says "the new terms and conditions affect all customers who joined or upgraded before 30 October 2012."
So with that logic, is it customers before 30 october or those after 30 October 2012?
The wording in your Orange letter is the exact wording in the letter for T-Mobile however.
It really is one thing after another with this mob!Currently in a Protected Trust Deed - 17 payments until DEBT FREE - February 20270 -
For those still undecided whether or not to send an email remember this:
It costs you NOTHING to send the Email. if you don't send it and we win these cases how will you feel knowing you are paying out several hundred pound of your hard earned cash that you did not have to? (£45pm contract for 10 months = £450!!!, even a £15pm contract = £150).
And to add insult to injury you will also suffer a price rise in May (you will receive a letter between 27th March and 8th April).
if we lose these cases then so what - you have lost 5 minutes copying and pasting an email.
There can only be one rational choice:DON'T DELAY - CANCEL TODAY
See post #440
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 351.4K Banking & Borrowing
- 253.3K Reduce Debt & Boost Income
- 453.8K Spending & Discounts
- 244.4K Work, Benefits & Business
- 599.6K Mortgages, Homes & Bills
- 177.1K Life & Family
- 257.9K Travel & Transport
- 1.5M Hobbies & Leisure
- 16.2K Discuss & Feedback
- 37.6K Read-Only Boards