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

baldyj

RandomCurve wrote: »

Honest views please - have I found an Achilles heal - or am I to eager to find a solution???


What does material detriment mean – Regulatory Context


In the regulatory context regardless of what is in EEs T&Cs under GC 9.6 I have a right to terminate my contract penalty free as follows:

GC9.6:
“The Communications Provider shall:
(a) give its Subscribers adequate notice not shorter than one month of any modifications likely to be of material detriment to that Subscriber;
(b) allow its Subscribers to withdraw from their contract without penalty upon such notice; and
(c) at the same time as giving the notice in condition 9.6(a) above, shall inform the Subscriber of its ability to terminate the contract if the proposed modification is not acceptable to the Subscriber.”

As EE point out there is no guidance within GC9.6 as to what constitutes Material Detriment so we need to understand why the Term “likely to be of Material Detriment” is included within GC 9.6 and guidance from the source documentation of GC 9.6.

In the Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in November 2013 Ofcom explain the rationale for including the term at paragraph 3.6 as follows:

“…..Ofcom and, before us, OFTEL has included a material detriment requirement in the relevant part of GC9. 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.”

So to determine if this change is likely to be of Material Detriment to me we only need to consider if the change is beneficial or neutral to me. Obviously if an impact of a T&C is neutral (both for the company and the consumer) then there is absolutely no point in EE going to the trouble and expense of making the change (apart from legislative reasons – which are not factor in this case) so we can discount the “neutral” element. This only leaves the question of if the change is to my benefit, and if it is not to my benefit then – by Ofcom’s definition – it is to my material detriment.

I agree with you conclusion RC, it does indeed seem to be saying anything with a neutral or beneficial change to the consumer is not of material detriment. Therefore you can draw the conclusion that anything with a negative change would be of material detriment, regardless of how big or small the impact!


My only worry is that this has come too late to give to CISAS, as the letter accompanying EE's defence states:

If you (the customer) provide comments, you must concentrate on the points made by the company. You cannot add new information that you forgot to mention earlier, as per the ‘Information for customer’ guide.

nsabournemouth

baldyj wrote: »

I agree with you conclusion RC, it does indeed seem to be saying anything with a neutral or beneficial change to the consumer is not of material detriment. Therefore you can draw the conclusion that anything with a negative change would be of material detriment, regardless of how big or small the impact!


My only worry is that this has come too late to give to CISAS, as the letter accompanying EE's defence states:

If EE mention in their defence GC 9.6 and material detriment surely you could?

RandomCurve

nsabournemouth wrote: »

If EE mention in their defence GC 9.6 and material detriment surely you could?

Correct - this s not a new point that I forgot to mention, it is a response to EEs defence, and as far as I am concerned just puts more clarity around the following which is in the claim.




The phrase Material Detriment was introduced in GC 9.6 which itself does not define Material Detriment. With the lack of definition it seems sensible that the phrase Material Detriment should be interpreted 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.

RandomCurve

rufio1408 wrote: »

As someone who is on a later version of the Orange contracts (took mine out last may) and who has not yet submitted a CISAS case (final contact with EE was 3 weeks ago but work has been hella busy!)

Is there anything different to the template that i should include, any additional information etc...

I might consider rewording some of it in light of the EE defence. It is a bit of a balancing act as if I change the template to include some of the responses to the current defence EE may change the defence and thus make this more difficult. Wait for a week while we get the initial ones out of the way and then we can reconsider.


In the meantime if EE have not actually issued a deadlock letter there is no harm in rattling their cage by resending your last email and requesting a deadlock letter.

baldyj

RandomCurve wrote: »

Correct - this s not a new point that I forgot to mention, it is a response to EEs defence.

Apologies for getting it wrong.

RandomCurve

Okay I am happy with this defence response which is for Post 30th October contracts for all brands. It is written on the basis that you have used the templates that I have provided before, so if you have deviated from those please check that the points in this defence response are valid and correct them where necessary to make the response fit your circumstances. Also note that the Paragraph numbers (in red) may differ from the defence you received so please check and amend as necessary - the numbers in this defence reference BannaPilots defence at post #617 and #618 on page 31

The text in blue is optional remove or leave it in (change the colour to black) - I don't think it will make any difference either way!

One final Caveat as always - I am not legally trained - you do not have to use the template below you can create your own responses.


This is going to have to go into 2 posts!




XXXXXXX

EE state that they believe this falls outside of the remit of CISAS, however as the change in T&Cs will have a direct impact on the amount EE will bill me for the provision of telecommunications service it clearly is connected with both the billing for and provision of telecommunications services and therefore should fall within CISAS’ remit.


Ofcom have confirmed this - determination of material detriment - should fall within the remit of an ADR in a letter dated 12th March from Lynn Parker (Director of Consumer Protection) who can be contacted at [EMAIL="lynn.parker@ofcom.org.uk"]lynn.parker@ofcom.org.uk[/EMAIL] for confirmation:


“Under sections 52 and 54 of the Act, and through General Condition 14.5, we require all Communications Providers (“CPs”) to be a member of an approved ADR scheme. We currently approve two schemes: Ombudsman Services: Communications (”OS”) and the Communications and Internet Services Adjudication Scheme (“CISAS”) (“the Schemes”). We cannot and do not intervene in or overturn decisions made by the Schemes. Section 54 (2)(a) of the Act requires Ofcom to be independent from them.


Subject to the above, it appears to Ofcom that your dispute with EE is about the application of General Condition 9.6 (“GC 9.6”). That is, whether it has made a materially detrimental modification to its terms and conditions and properly applied that Condition. You say it has made such a change but not complied with the Condition. It disputes that.


If that is so, that appears to Ofcom a matter that, in principle, may be subject to ADR. We have corresponded with CISAS, which agrees, and, we understand, has told EE so (meaning it should issue letters enabling access to ADR).


You should now pursue the matter with EE and CISAS. It will be for CISAS to decide whether it can consider your specific case (i.e. is it a case falling within the general principle described in the previous paragraph). If so, it will also decide if your complaint has merit. Clearly, these points depend on the specific facts. The outcome is not guaranteed and Ofcom has no role in it.”



I would refer the adjudicator to my claim in the main; however I would like to make an open statement and respond on a few general points regarding the “thrust” of EEs defence document as follows:




Opening statement
I entered into my contract on DATE, at that time EE never made it clear that the contract contained a price variation clause; despite this I have abided by the Contract Terms and Conditions and relevant Ofcom regulation. In early February 2014 EE advised me of a change in T&Cs which I believe is LIKELY to be to my Material Detriment. Under the T&Cs and Ofcom Regulation 9.6 the ONLY options for me now are to either accept the change or request a penalty free cancellation. I have decided that - for the reasons stated - the change is LIKELY to be of material detriment, and I wish EE to abide by the contract terms and Ofcom regulations (as I have) and grant a penalty free cancellation. This case revolves solely around if the change in T&Cs is LIKELY to be of Material Detriment.

• Complexity
• Right to amend the contract
• Interpretation of Material Detriment
• Reasons for compensation
  
  

And will also refer to some specific points in EEs defence by Paragraph number.

Complexity
Throughout their defence EE have tried to assert that this claim involves complex issues of law, however as the contract is a standard form contract with a consumer there is a requirement on EE to ensure that the contract is not complex, and is written in plain and intelligible language. If EE have made their contract complex, or have used complex and unintelligible language then this is evidence of EE not acting in good faith, and brings the protection offered to me as consumer under the UTCCRs into play.
To determine this dispute the following is required:

• An understanding of EEs T&Cs “old” and “new”
• An appreciation of the Unfair Terms in Consumer Contracts Regulations (UTCCRs), and
• A knowledge of GC 9.6 and USD 20/22
  

All of which will be within the knowledge of an adjudication service tasked with adjudicating on disputes involving telecommunication providers.

RandomCurve

Right to amend the contract
EE have referenced their right to amend T&Cs and this is not being disputed, however EE will be aware (and do reference in their defence) that with a fixed term standard form contract there are numerous legislative and regulatory safeguards to protect the consumer and just because EE has included Terms that allow it to change “T&Cs for any good reason” does not mean that these are necessarily enforceable,. Additionally as a Mobile phone contract Terms and condition are not only subject to the UTCCRs but also Ofcom General Conditions (and in particular GC 9.6) and where necessary the source documentation for GC 9.6 which is USD 20/2 (which clearly states that during a fixed term a modification to the T&Cs must give the consumer a corresponding right to withdraw from the contract penalty free).
.
What does material detriment mean?
EE have made much that CISAS cannot determine what Material Detriment means. However I believe that the meaning can be worked out relatively easily. At Paragraph 35.3 EE states that the meaning of Material Detriment needs to be established both as a matter of contractual construction and by reference to the regulatory context. However the use of the word “AND” is misleading as if the change is likely to be of Material detriment to me in EITHER context then I have a right to a penalty free termination of my contract.

What does material detriment mean – Regulatory Context ?
In the regulatory context regardless of what is in EEs T&Cs under GC 9.6 I have a right to terminate my contract penalty free as follows:



GC9.6:
“The Communications Provider shall:
(a) give its Subscribers adequate notice not shorter than one month of any modifications likely to be of material detriment to that Subscriber;
(b) allow its Subscribers to withdraw from their contract without penalty upon such notice; and
(c) at the same time as giving the notice in condition 9.6(a) above, shall inform the Subscriber of its ability to terminate the contract if the proposed modification is not acceptable to the Subscriber.”


EE are keen to point out there is no guidance within GC9.6 as to what constitutes Material Detriment, but that meaning can be determined by understanding why the Term “likely to be of Material Detriment” was included within GC 9.6 and guidance from the source documentation of GC 9.6.


In the Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in November 2013 Ofcom explain the rationale for including the term ““likely to be of Material Detriment” at paragraph 3.6 as follows:


“…..Ofcom and, before us, OFTEL has included a material detriment requirement in the relevant part of GC9. 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.”


So to determine if this change is likely to be of Material Detriment to me we only need to consider if the change is beneficial or neutral to me. Obviously if an impact of a T&C is neutral (both for the company and the consumer) then there is absolutely no point in EE going to the trouble and expense of making the change (apart from legislative reasons – which are not factor in this case). In this case the benefit is not neutral as whilst I may benefit from having clearer T&Cs that benefit is outweighed by the benefit accruing to EE in that I now have less scope to challenge EE on future price increases, so the “neutral” element can be discount in this case. This only leaves the question of if the change is to my benefit, and if it is not to my benefit then – by Ofcom’s definition – it is to my material detriment.


Whilst EE have tried to “sell” this change as a benefit to me as it makes the terms clear, this very fact reduces my potential to challenge future price rises- which EE acknowledge at paragraph 24“..reduces the scope for disputes regarding whether a price change gives rise to a right to cancellation. If my potential rights to a penalty free cancellation are reduced the change is obviously not to my benefit – in fact it is of a significant material detriment. Additionally at Paragraph 32 of the defence EE concede that there may be a marginal determent “ ....to the extent that the claimant has suffered any marginal detriment, such detriment is not material”. Both Paragraphs 24 and 32 of EEs defence are clear evidence that the change is neither neutral or to my benefit and therefore as per Ofcom’s rationale for including the term “likely to be of Material detriment” at paragraph 3.6 of their publication any change which is neither neutral or not to my benefit is to my Material detriment. Therefore this change gives rise to my right to a penalty free cancellation under GC 9.6, as per my CISAS claim –the change is likely to be of Material Detriment to me.


The above interpretation of Material detriment by Ofcom in relation to a change in T&Cs is entirely consistent and therefore reinforced by the USD 20/2 and can also be verified by reference to the Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in November 2013 paragraph 3.5:


GC9.6 is included pursuant to section 51(1)(a) of the Act and is intended to give effect to Article 20(2) of the Universal Services Directive (“USD”) (Directive 2002/22/EC, as amended by Directive 2009/136/EC)31 which requires that:


“Member states shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions.”




What does material detriment mean – Contractual Context?


At paragraph 35.3 of the defence EE appear to be relying on the fact that the term Material Detriment” “..is not defined explicitly in the agreement” However as we are now considering the contractual context of the term the protection of the UTCCRs is available. The UTCCRs are clear that in a standard form contract between a business and a consumer where a term is not written in plain and intelligible language the meaning most advantageous to the consumer should be used:


Under the UTCCRs Group 19 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.


Given that EE have failed to define Material detriment in the standard form contract which they wrote (as admitted by EE) then the meaning of “Material Detriment” is a purely subjective meaning – we can all understand the words, but we may not be able to agree on their meaning. Therefore under UTCCRs regulation 7 the interpretation most favourable to me – the consumer - should prevail, and my interpretation of Material detriment is any change that is not to my benefit (which is a slightly higher test than that required under Ofcom’s rationale at GC 9.6, but is in line with USD 20/2) as to my mind even a change that appears to be neutral is in fact unlikely to be to my benefit as EE directors have a duty of care to the company and incurring expense to change a T&C for a neutral impact would not be consistent with discharging that duty of care. Despite EEs attempts to “sell” this as a change for my benefit it is actually a change for EEs benefit as it gives them a stronger position to defend future price increases. This is clearly not to my benefit (any benefit to me of having a clearer term is outweighed by the detriment of having a reduced scope to challenge a price increase). By applying the UTCCRs it is clear that this change should be considered to be likely to be of Material Detriment (as per my CISAS claim) and I should be allowed to leave the contract penalty free as per the contractual T&Cs.



Further EE claim that the change is to my benefit as they have made the T&C's clearer, however if EE were really concerned with making their terms clearer for my benefit then at the same time as making this change they would have removed the phrase "Material Detriment" which is clearly an unclear term (as EE are aware as per their defence document). This omission by EE must bring into question the real motive behind only making the price rise clause clearer and I suspect the change has more to do with giving EE a greater security of enforcement than it does to offering a benefit to me


Reasons for compensation


At Para 38 EE have tried to deflect my claim for compensation by claiming that my dissatisfaction arises purely from the fact that EE have refused to allow me to cancel my contract without penalty –this is factually incorrect. It is clear from this that EE have deliberately ignored the well laid out reasoning for my compensation claim and they have not tried to refute the reasoning on a point by point basis – this is indicative of the approach EE have taken from the outset of this matter:

• EEs response to my initial letter requesting cancellation due to a change in T&Cs was responded to by an email claiming that EE have not increased prices – I have asked them to explain why they referenced a price rise in their response and ignored my reference to a change in T&C’s, as my email made no mention of a price rise - to date they have declined to offer an explanation and I can only assume it was a deliberate attempt to deflect me from the issue regarding T&Cs – which is considerably more serious than the lack of duty of care that I am claiming.
• EE have yet to explain under what Ofcom guidance they have acted – I have highlighted the guidance in my claim which I believe they are referencing – this guidance clearly shows that the benefit of the change actually falls to EE as it makes the price rise clause more likely to be enforceable, but EE have never outlined the benefits to them (and have not in their entire defence as that would clearly show that the change is to EEs benefit and therefore to my material detriment), so EE have been disingenuous with the reason for the change in T&Cs in all of my dealings with them.

EE have assumed the right to determine what is of Material detriment to me - which the UTCCRs Schedule 2 Paragraph 1 (m) specifically bar them from doing. Additionally EE have never explained to me the criteria they have used to conclude that this is not to my material detriment despite me requesting this information – they simply repeat that EE do not “consider this to be a change which is of material detriment” (and indeed their defence at paragraphs 35-35.4 try to prove that the issue is too complex for anybody to understand)
I therefore request that the adjudicator notes the real reasons that I am seeking compensation on this matter and treats EE claims at paragraph 38 as further evidence of EEs attempts to cause frustration over this matter,

Other Specific Matters:





Paragraph 19


This further demonstrates the ambiguity within the contract and why the change is of material detriment to me.


My reading of the clause is not only does it give EE the right to choose which statistic to use; it also gives me the right to cancel should they apply a rate higher than RPI OR ANY OTHER RATE. In any case either way EE are admitting that the old clause was ambiguous in that it gives EE the right to choose the rate and the month – this is an unfair (and therefore unenforceable) clause under UTCCRs Group 13 as follows:


Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.


13.5 Right to decide the meaning of terms. Similarly, if a supplier reserves the right to decide what a term in a contract means, then he is effectively in a position to alter the way it works so as to suit himself. It is not sufficient to say that the supplier will act 'reasonably'. Such a term gives rise to the same objections as a right to vary terms generally


Therefore the change in T&Cs moves the Term from being potentially unenforceable (by EEs own admission) to a potentially enforceable clause which is to my material detriment.

Paragraph 20
I have identified another statistic - CPI and again this is further evidence of the unenforceability of the old contract term and hence why the change is to my material detriment. It also demonstrates EEs lack of duty of care and supports my claim for compensation, as my claim clearly articulates the difference between CPI and RPI, yet EE are claiming that I have not identified another statistic.




Paragraph 28
This is factually misleading. Whilst Clause 2.11 “implements General Condition 9.6” there is no obligation on EE to use the term “material detriment” in their contract. That term was used in GC 9.6. which falls outside of the remit of the UTCCRs, however when used in a contract the term falls within the remit of the UTCCRs and therefore as a term in a contract it is not written in plain and intelligible language as required under UTCCRs – regulation 7 (Group 19)


Paragraph 30.
This is factually incorrect and contradicts EEs own defence arguments at para 19, as the old clause was RPI OR ANY OTHER statistical measure of inflation (e.g. CPI)


Paragraph 32.
At Paragraphs 32.1 to 32.4 EE appear to have conflated what material detriment means in terms of a price rise and what Material detriment means in relation to a change in T&Cs, this case regards a change in T&Cs and so is dependent on the meaning of Material Detriment in that context (either contractually or regulatory) which the UTCCRs Group 19 regulation 7, and GC 9.6 cover adequately.


However as EE have raised the question (albeit irrelevant to determining what the term Material Detriment means) it should be borne in mind that under my interpretation of the old and new clause based on February 2014 inflation statistics the new clause allows EE to impose an increase 58.8% higher than was the case before – clearly of material detriment (RPI 2.7%, CPI 1.7% difference 1%, 1% as a percentage of 1.7 % is 58.8%) This is clearly of Material Detriment.

RandomCurve

sshariff wrote: »

Thanks, can you please put up a draft for the pre 31 Oct 2012 contracts as well when you get the time?

I will do.

It seems to me - going by SimonD316 (page 32) case that they have mis quoted the term so it references Material detriment rather than just detriment.

At para 17 and 20 they only quote clause 4.3 at para 20 and include the term "material detriment" - have they changed 4.3 too so that is why they have not quoted it at para 17?

Also I notice they only quote part of clause 15.1 (a) at para 16 -does that go on to say "detriment"?

Apart from attacking on the above and of course referencing para 30 "marginal detriment"

I think we use exactly the same arguments as post October (excluding the CPI references.

Nodding_Donkey

This is clause 4.3 according to the pre 2012 contract that they have attached:

4.3 You may also terminate your Contract if we vary its terms, resulting in an excessive increase in the Charges or changes that alter your rights under this Contract to your 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 telling you about the changes). However this option does not apply if:
4.3.1 we have increased the Charges by an amount equal to or less than the percentage increase in the All Items Index of Retail Prices published by the Central Statistical Office in the Monthly Digest of Statistics in any 12 month period; or
4.3.2 the variations we have made have been imposed on us as a direct result of new legislation, statutory instrument, government regulation or licence; or
4.3.3 the variation relates solely to an Orange Additional Service, in which case you may cancel that Orange Additional Service in accordance with Condition 15.1.

And this is 15.1

15.1 (a) When you Register you are asked to choose a Service Plan and to indicate which Orange Additional Services you require. You may switch to a higher Service Plan at any time. You may switch once only to the next lowest Service Plan after one half of your Minimum Term has expired, unless otherwise stated. You may switch to an equivalent Service Plan at any time after one half of your Minimum Term has expired, unless otherwise stated. You must read the rules of your chosen Service Plan as they may restrict your right to change Service Plans during your Minimum Term. In the event you do switch Service Plan and add to or cancel Orange Additional Services you must give us not less than 10 days notice before your Billing Date (subject to the terms of any promotional offers you have accepted). We do, however, reserve the right to vary the terms of this Contract from time to time, to restrict your right to cancel a change of Service Plan and to make changes to your Service Plan.
(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).


So they both say detriment not material detriment

SimonD316

RandomCurve wrote: »

I will do.

It seems to me - going by SimonD316 (page 32) case that they have mis quoted the term so it references Material detriment rather than just detriment.

At para 17 and 20 they only quote clause 4.3 at para 20 and include the term "material detriment" - have they changed 4.3 too so that is why they have not quoted it at para 17?

Also I notice they only quote part of clause 15.1 (a) at para 16 -does that go on to say "detriment"?

Apart from attacking on the above and of course referencing para 30 "marginal detriment"

I think we use exactly the same arguments as post October (excluding the CPI references.

You've got it absolutely right. Paragraph 17 they seem to have deliberately left out the full 4.3 which says:

4.3 You may also terminate your Contract if we vary its terms, resulting in an excessive increase in the Charges or changes that alter your rights under this Contract to your 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 telling you about the changes). However this option does not apply if:

and missing from paragraph 16 is 15.1(b) only mentions Detriment:

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).

I think Paragraph 30 is the key, and I'm thinking along the lines of : "EE appear to admit that this change is to the detriment of the customer, but are at pains to point out it is not sufficient to be material detriment. This is clearly a ploy to make the whole claim seem more complex than it actually is, and more importantly is an admission that some detriment to me has taken place. Given that Schedule 1 refers to detriment and not material detriment this clearly shows that a penalty free cancellation should be allowed."

Their whole defence is around proving there is no material detriment, but they admit there is detriment. They have tried to misdirect us into thinking that material detriment needs to apply, when it doesn't!