EE/Orange/T-Mobile - Reclaim ALL price rises AND cancel contract re T&C change - 2

RandomCurve

My last email to Ofcom was sent as attachment to an email - and that email was direct and aggressive.


Any way I received a response from Ofcom as below - I have highlighted the most interesting point and will explain in the next post:


Dear RC
I write in reply to your letter of 11 October.
You set out a large number of statements, two in relation to Complaint 1 and 19 under Complaint 2, that you say you will assume to be true unless Ofcom confirms otherwise. We have set out our position, and the reasons for the action we have taken and for not taking further action. I know you are unhappy with that, but that is the position and those are the reasons. How you proceed now is a matter for you, but we do not agree with those statements nor that the assumptions you say you will make are valid.
You also ask in connection with Complaint 1 about what you say are two new matters (though you seem to ask three questions). I am not sure any of them are new. For completeness, the reason why Ofcom included a material detriment requirement in GC9.6 is explained in documents at the links below.[1] We have explained that, in respect of contracts made before 23 January this year, we are not generally likely to regard price rises at or below RPI as meeting this requirement. It is a question of fact in each case, but price rises in respect of such contracts above that level are at risk of meeting that requirement. As to the action we took under the UTCCRs, we have explained what we did and why. One way concerns under the UTCCRs may be resolved is by the making of changes to relevant contract terms.
In the circumstances, I am not going to engage in further correspondence with you on this matter. Should you wish to pursue it, for example by complaining to the Parliamentary and Healthcare Ombudsman, you are free to do so.
Yours sincerely,
Graham Howell
http://stakeholders.ofcom.org.uk/binaries/consultations/gc-usc/summary/gc-usc.pdf, http://stakeholders.ofcom.org.uk/binaries/consultations/gc-usc/statement/Statement.pdf and http://stakeholders.ofcom.org.uk/binaries/consultations/gc9/statement/GC9_statement.pdf.

RandomCurve

So today I go to see my MP for the third time about Ofcom (First time in connection with the T&Cs). And it was very interesting.


I showed him:

1. the Old and New clause
2. Ofcom's response that it does not "purport to impose a higher price rise"
3. Ofcom's introduction (once we proved it DOES give a right o apply a higher increase) of a new "question! th athe Final clause is compliant
4. I explained that even with the new clause we won 75 of cases because they have used RPI and not CPI
5. I showed him Grahams email in my post above, and
6. discussed the highlighted part
7. I gave him some extracts of the UTCCRs (My MP has a legal background)
8. Extracts from EEs defence documents

• He recognised immediately that the NEW clause DOES purport to allow a higher price rise
• He recognised that by EEs own admission in their defence documents that the OLD clause was unenforceable
• He plainly saw that Ofcom HAVE NOT addressed the questions raised
• He could hardly believe that Ofcom consider RPI to be acceptable when CPI is the nationwide measure of inflation

So he was keen to support a complaint to the Parliamentary Ombudsman, but first he must write to Ofcom to give them a chance to explain themselves, and he will also write to the Secretary of State!

But the really interesting point is this from the UTCCRs (one of the things I provided him with):
Group 10: Supplier's right to vary terms generally - paragraph 1(j) of Schedule 2
Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract


10.2 If a term could be used to force the consumer to accept increased costs or penalties, new requirements, or reduced benefits, it is likely to be considered unfair whether or not it is meant to be used in that way. A variation clause can upset the legal balance of the contract even though it was intended solely to facilitate minor adjustments, if its wording means it could be used to impose more substantial changes. This applies to terms giving the supplier the right to make corrections to contracts at its discretion and without liability.


So I asked him how can the Company Secretary of an Organisation that is a DESIGINATED ENFORCEER of the UTCCRS put in an email to that "One way concerns under the UTCCRs may be resolved is by the making of changes to relevant contract terms. "


When this is one way that concerns under the UTCCRs specifically CAN'T be resolved". He could hardly believe that the email actually came from Ofcom!


Like I said - I have been busy and I will keep you posted on how this develops.

Mikmonken

RC is it worth trying to contact a few local MPs and putting them in toxin with each other to put a collective complaint in?

Or is it better to keep them separate?

jocklatic

RandomCurve wrote: »

I received it too- will post a response up later. I have been busy, as I will show shortly.

I also received the same letter from G. Massie. Feels like they are all in cahoots. RC's meeting with his MP sounds very interesting & it may be the helping hand we need to get the ball rolling again????

RC , like a dog with a bone :beer:

RandomCurve

jocklatic wrote: »

RC , like a dog with a bone :beer:

Believe!


If Ofcom think I am an easier path than standing up to EE - they have made (another) error of judgement

RandomCurve

Mikmonken wrote: »

RC is it worth trying to contact a few local MPs and putting them in toxin with each other to put a collective complaint in?

Or is it better to keep them separate?

I would say keep them separate - but YES see your MP.


Last year was the first time I have ever gone to see an MP abut anything. It is easy, you can find their name and office phone number on the Web. Call and make an appointment. The difficult part is that they only hold surgeries every so often, and in different locations around their constituency and during work hours. Fortunately I have a lot of annual leave so it is not a problem for me.

RandomCurve

I will be sending the below to:
[EMAIL="gmassie@cedr.com"]gmassie@cedr.com[/EMAIL]
[EMAIL="kmackie@cedr.com"]kmackie@cedr.com[/EMAIL]
[EMAIL="lynn.parker@ofcom.org.uk"]lynn.parker@ofcom.org.uk[/EMAIL]
[EMAIL="your.problems@observer.co.uk"]your.problems@observer.co.uk[/EMAIL]
[EMAIL="Edwin.lane@bbc.co.uk"]Edwin.lane@bbc.co.uk[/EMAIL]
[EMAIL="joel.taylor@ukmetro.co.uk"]joel.taylor@ukmetro.co.uk[/EMAIL]
[EMAIL="info@cisas.org.uk"]info@cisas.org.uk[/EMAIL]
please feel free to do the same (change/delete the blue bits)

25th October 2014

Dear Mr Massie

Thank you for your email of 23rd October 2014. To clarify my position on this matter whilst I do not currently have a case with CISAS, I have used them 3 times in the past (won 2 lost 1 – subsequently won at the Small Claims Track of the County Court). I have always found CISAS to be fair and open, which is why I am so shocked at this departure from procedure and apparent lack of independence.

As regards to my claim of ‘secret negotiations’ between CISAS and communications providers you responded that:

“…. When we receive objections, we independently review them to assess whether or not we consider them to be valid. In the particular group of cases to which you refer, rather than a negotiation, in fact CISAS undertook an intensive internal review, involving more than one adjudicator, before reaching a decision……… The result of that review was that, on balance and after serious consideration, we judged a number of applications to be attempts to re-run what was substantially the same claim from a different angle.”

The problem here is that (see quote from Dr Karl Mackie CBE below) CISAS have not informed the customer of their right to send an objection to CISAS, CISAS have only ever quoted that their decisions are final and cannot be challenged.

All we are seeking is that CISAS contacts the consumers concerned and seeks their view as to why they believe the case is not a “ re-run what was substantially the same claim from a different angle” (as outlined by Dr Karl Mackie CBE below)

If CISAS make that request they would understand that differences are substantial as follows:

The Original claim was if the Price rise implemented in May 2014 was of Material Detriment under GC 9.6 as an RPI increase is a REAL TERMS increase and therefore (in their view) was of material detriment under GC 9.6 (Not neutral or beneficial in its impact) as CPI is the UK National statistic for measuring inflation. So the case was in connection with the CURRENT clause and was only under GC 9.6 For you information 75% of cases heard at CISAS the consumer won on this point, which does open up the question of consistency in CISAS decisions – all contracts had the same clause, and the same RPI rate applied –and used the same case (I know – I wrote it).

The new claim is two fold:

A. One is for a refund of any increase applied to contracts under the OLD EE clause as the clause is unfair and therefore unenforceable under the UTCCRs. So the case is different in THERE material aspects:

• it refers solely to the OLD clause to be considered, not the new clause
• it is asking for the clause to be considered in light of the UTCCRS – not GC 9.6, and
• it is asking for non-enforcement of price rises – not contract cancellation,

So Different clause, different law/regulation, and a different remedy – how can these be considered to be the same?

B. The second claim is that the act of moving a clause in as standard form contract from an unenforceable clause to an enforceable clause, whilst at the same time allowing a higher inflation rate to be applied before triggering a right to a penalty free cancelation is of Material detriment under the contract terms, GC 9.6 and the UTCCRs
So the second part of the case is entirely different as:

• Has nothing to do with price rises, but a change of T&Cs
• It is the process of changing the clause that gives rise to a penalty free cancellation – not the clause itself;
• If the new clause allows for a higher price rise to be applied than the old clause,
• If under the term of the contract the change to the T&C causes Material Detriment (rather than the end clause itself)

So again an entirely different case, it has nothing to with a price rise, it considers the change process, not the clause, introduces the contractual agreement and the UTCCRs (first case was GC 9.6 only).

Only once CISAS is in possession of the views from BOTH PARTIES can it make a fully informed, fair and (what can now only ever be seen as a seemingly) independent decision – that decision may still be that the case – in CISASs opinion – are re-runs, but at least that decision is being made with information from both parties, as a transparent and independent process would demand.

I hope this response has made you realise the real issue here is that CISAS have missed out a vital step in their own process (as articulate by Dr Karl Mackie CBE) and that you will instruct CISAS to seek the consumers views (as per the process) and to reconsider its stance based on all of the facts.

I have copied in Lyn Parker from Ofcom as whilst I understand that Ofcom cannot interfere with decisions made by CISAS it may have some power to ensure that CISAS follows its own procedures, and may also help Ofcom consider CISAS’s suitability as an ADR when it next considers contracting an ADR.

Regards


RC

Quote from Dr Karl Mackie CBE

“When documents are copied to the company, the company points out that the claim is out-of-scope (for example that the applicant is not a customer of the company under Rule 2(a)). In fact there are many cases where CISAS would not know until that point that a claim is out-of-scope and invalid under the Scheme, because it is the company which holds the relevant factual information. In these cases, the claim is not yet technically a ‘valid’ claim for the purpose of our beginning the adjudication procedure, even though we have copied the customer’s documents to the company for response. Again if in any doubt, this will go to an adjudicator to rule finally, but we would not send out a formal adjudicator ruling to the customer, merely relay the fact that we have decided that theclaim is out-of-scope and explain the reason. In these circumstances again, a customer can explain that we are misinformed and we may then proceed with the case if we agree(despite Rule 8 (a) and (b) which say that our decisions are final); “

RandomCurve

Covering email to go with the above which I "attached". I have tried to give some scope for saving face and still re-open the cases.


Dear Mr Massie,



Please find attached my response to your email below.
I think it is clear that CISAS have inadvertently missed out an end step in the process; jumping straight to "our decision is final" without giving the consumer a chance to submit their views, as allowed under the process. Unfortuntely this oversight is bringing their independace (and hence the whole of cedr) into question. If you could instruct CISAS to follow the correct procedure it may help to repair some of the reputational damge this oversight has caused.


Regards

jocklatic

RandomCurve wrote: »

Covering email to go with the above which I "attached". I have tried to give some scope for saving face and still re-open the cases.


Dear Mr Massie,



Please find attached my response to your email below.
I think it is clear that CISAS have inadvertently missed out an end step in the process; jumping straight to "our decision is final" without giving the consumer a chance to submit their views, as allowed under the process. Unfortuntely this oversight is bringing their independace (and hence the whole of cedr) into question. If you could instruct CISAS to follow the correct procedure it may help to repair some of the reputational damge this oversight has caused.


Regards

RC
Do you want those who emailed Mr Massie to send the above post & covering letter?

RandomCurve

jocklatic wrote: »

RC
Do you want those who emailed Mr Massie to send the above post & covering letter?

Yes please - don't forget to delete/change the blue text. The more pressure the better.