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

RandomCurve

The following was dent to Ed Richards (Ofcom CEO) on 31st October so far no response:


Dear Mr Richards,


I am writing with regards to Mr Howells email of 22nd October, it was very timely as I was meeting my MP about this very matter on 24th.


My MP will be writing to Ofcom in due course (and the secretary of state) as he also found it difficult to identify where Ofcom have actually responded to the questions and concerns raised, he was also concerned that unlike the rest of the UK Government Ofcom deems RPI (rather than CPI) to be an appropriate inflation statistic. Although I never raised it with him he did ask on what basis Mr Howell has said “I am not going to engage in further correspondence with you on this matter.” given that my correspondence has always been polite and given that Ofcom have not addressed the questions raised.


Mr Howells email does raise a serious concern (given his position as the Secretary to the Corporation of a designated enforcer of the UTCCRs) in that he states that: “One way concerns under the UTCCRs may be resolved is by the making of changes to relevant contract terms.”
Before I raise the concern can you confirm the following?

• Mr Howells statement above means that Ofcom recognise that EEs previous price variation clause was unfair and therefore unenforceable under the UTCCRs?
• How Ofcom views the status of EEs price variation T&C update - i.e were EE issuing NEW contracts (as Mr Howells statement seems to suggest above) or were EE making an amendment to an EXISTING contract?

In regards to the serious concern can you explain – bearing in mind the extract from the UTCCRs and the associated OFT guidance below - how a designated enforcer of the UTCCRs can consider that “One way concerns under the UTCCRs may be resolved is by the making of changes to relevant contract terms.” When Schedule 2 Paragraph 1 (J) of the UTCCRs clearly states that terms allowing such changes are unfair “...This applies to terms giving the supplier the right to make corrections to contracts....”? The only situation that this would be allowed is to put a revised clause into NEW contracts, not to amend existing contracts
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...... This applies to terms giving the supplier the right to make corrections to contracts at its discretion and without liability.


To assist you in understanding the three questions asked I have summarised them below (in blue) and have given guidance on a format for responses to each, which will enable me (a simple consumer with no legal background) to clearly understand Ofcoms position.
Question 1 – Does Ofcom recognise that the original price variation clause in EEs contracts was unfair (and therefore unenforceable) under the UTCCRs?
Q1 Answer Guidance - A simpleYES or NO answer would be clearest, but if NO then an explanation would be expected which sets out the reasons why Ofcom consider that the clause was fair (I can - and will - provide evidence from EEs own legal department which proves beyond doubt that the clause is unfair if necessary).

2 – How does Ofcom view EEs change of T&Cs – as a new contract, or an update to an existing contract?
Q2 Answer Guidance – please simply state either:
“This is viewed as a NEW contract”, or
“This is viewed as an amendment to an existing contract”
The contract must be one or the other of the above, and I do not need to know the reasons why Ofcom holds whatever view it holds, therefore any answer which is longer than the answer guidance will be evidence of Ofcom NOT being prepared to answer a straight question open and honestly. .

3 – Can Ofcom explain how they conclude that “One way concerns under the UTCCRs may be resolved is by the making of changes to relevant contract terms.” When the UTCCRs specifically state this is not a remedy?
Q3 Answer Guidance – please note if Ofcom relies on general statements in its response, for example “having giving careful consideration to the relevant facts”, I request that Ofcom clearly lists what those relevant facts are (something I have requested Ofcom do before, but for some reason Ofcom appears to have a problem stating precise facts).

I look forward to receiving your response in due course.


Regards

RandomCurve

Current score is 2-1 to EE!


Interestingly I have seen two case which were 100% identical - one won and one lost, how can this be justice?


In both case the adjudicator does say that the change in T&Cs probably did allow a penalty free cancellation, but one thought EEs notice was adequate, the other did not!!!


Interestingly they mention the Unfair Trading Regulations, but felt that it would need a court of law to make a determination on that!


Seems best bet is to push the GC 9.6 angle in that EE should have known that moving a clause from an unenforceable clause to an enforceable clause would be of material detriment under GC 9.6 and therefore should have informed you of your cancellation rights

Mikmonken

Still no response for me from OFCOM, although they've actually said they're looking into my complaint... Finally!

GolfBravo

@RandomCurve

Hello RC,

You may remember me from the previous MSE threads - I'm the guy who lost both CISAS cases (Feb T&C's and March price rise). My contract actually ended back in September (I'm now 3 payg customer), but this morning I received a lovely letter from EE collections department kindly asking for £££ (unpaid last month's bill plus telephone unlock).

Are there any new CISAS/OFCOM/EE developments that would allow me to go through CISAS again to claim back all price increases and bills?

ulaggy

GolfBravo wrote: »

@RandomCurve

Hello RC,

You may remember me from the previous MSE threads - I'm the guy who lost both CISAS cases (Feb T&C's and March price rise). My contract actually ended back in September (I'm now 3 payg customer), but this morning I received a lovely letter from EE collections department kindly asking for £££ (unpaid last month's bill plus telephone unlock).

Are there any new CISAS/OFCOM/EE developments that would allow me to go through CISAS again to claim back all price increases and bills?

Doubt it. CISAS seem to be about denying people's right to claim, even when the claim is new. Like you, my contract is now ended (my last payment was this month) and I'm on PAYG. I was going to go down the SCC route, but in the end I decided not to take the risk, especially as someone else did and lost.

Just glad to be free of T-Mobile finally.

RandomCurve

GolfBravo wrote: »

@RandomCurve

Hello RC,

You may remember me from the previous MSE threads - I'm the guy who lost both CISAS cases (Feb T&C's and March price rise). My contract actually ended back in September (I'm now 3 payg customer), but this morning I received a lovely letter from EE collections department kindly asking for £££ (unpaid last month's bill plus telephone unlock).

Are there any new CISAS/OFCOM/EE developments that would allow me to go through CISAS again to claim back all price increases and bills?

No it would need to be the SCC route. However I am still banging on Ofcoms door, but even if they do anything it won't be a cancellation (I think I know what they would do - but don't want to give the B'trds any ideas).


Why are EE billing you - do you owe them money?

RandomCurve

A response from ED Richards - and my response! This is going to have to go to the Parliamentary Ombudsman!


Dear RC

Thank you for your email of 31 October.

I know you and other consumers have had extensive correspondence with Ofcom about this matter. I have been copied in on some of it and I have discussed it with my relevant colleagues. I know you disagree with Ofcom's position and that you are unhappy with the responses you have received to your letters and emails. I am afraid, however, I am satisfied that, after careful consideration, we have taken appropriate and proportionate action and have dealt properly with your correspondence. My colleagues have set out at considerable length the reasons for Ofcom's position and that, in light of our administrative priorities, we do not intend to take further action.

I am afraid, too, that position is not going to change as a result of continued correspondence about essentially the same issues. I will, as a matter of courtesy, respond to your three further questions. However, apart from your outstanding email to Lynn Parker which we are considering to see if it raises any new points not covered by previous correspondence, Ofcom will not engage in further correspondence about those issues.

1. Under the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCRs") Ofcom has powers to challenge terms that may be unfair, but it is the courts, not Ofcom, which decide if they are unfair. It is not, therefore, for Ofcom to "recognise .... the clause was unfair (and therefore unenforceable)". Nonetheless, you know we had concerns about the fairness of EE’s term. My colleagues have set out, in correspondence back in October 2013 and May 2014 for example, that we wrote to EE re-iterating its obligations under the UTCCRs. They also explained the outcome and why we took no further action.

2. Again as my colleagues have explained (see the answer to question 13 in the letter of 26 June), EE’s change to the relevant term amended an existing term of an existing contract.

3. The UTCCRs do not state that concerns about fairness may not be resolved by the making of changes to relevant terms. Regulations 10, 13, 14 and 15 all refer to the possibility of a trader giving an enforcement body undertakings about the use of unfair terms (in other words, agreements to stop using unfair terms). Annex A to the main OFT guidance document you refer to (at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/332719/oft311-annexes.pdf) contains examples of cases in which the OFT took action against terms whose fairness it was concerned about. As the Annex sets out, in many of these cases the OFT accepted undertakings that the trader would amend the relevant terms.

I know these answers are not precisely in the form you requested. They are, however, the answers to the questions, and are clear and straightforward. If you remain dis-satisfied, you have the right to make a complaint to the Parliamentary Ombudsman.

Yours sincerely
Ed Richards




MY RESPONSE:


Dear Mr Richards,

Thank you for your response, It is the clearest email I have received from Ofcom to date.
This email is really intended for clarification/information only, I do not expect (but would welcome) a response.

1 - Ofcom has powers to challenge terms that are unfair, but on this occasion due to lack of resources (administrative priorities) will not be seeking to protect the consumer.
2 - Thank you for the clarification, I was unsure (giving Mr Howells' statement that the UTCCRs are one way of correcting unfair clauses) if Ofcoms position had changed
3 - I assume this paragraph was written in the full knowledge that EEs contracts are such that for a fixed period of time consumers are "trapped" in their contracts. Ofcom are effectively saying that the UTCCRS offer the consumer NO PROTECT at all as if a term is unfair EE can replace it (during the fixed term) with a fair term with impunity under the UTCCRs. And moving from an unenforceable price variation clause to one which can give rise to a price rise during the fixed term does not oblige EE to inform customers of a right of cancellation under GC 9.6.

Regards


RC

RandomCurve

Still putting pressure on CEDR (CISAS owners) as well!


Dear RC,

I am afraid that I have little to add to my email of 23 October. As has already been explained to you, your interpretation of the CISAS process is incorrect.

Regards

Graham Massie


MY RESPONSE:




Dear Mr Massie,

Now I am confused. I did not send you "My interpretation" of the CISAS process I sent you Dr Karl Mackie's CBE interpretation (Dr Mackie CBE being YOUR CHIEF EXECUTIVE). Are you saying that YOUR CHIEF EXECUTIVE has misinterpreted the CISAS process (HIS interpretation quoted below)?

Assuming Dr Mackie CBE understands the process and therefore YOUR CHIEF EXECUTIVES interpretation is correct, I ask once again why CEDR is unwilling to direct CISAS to follow the rules and give consumers the chance to explain why CISAS have based their decision on misinformation from EE?

In your response can you either explain:

1. Why Dr Mackie CBE, YOUR CHIEF EXECUTIVE, has been unable to correctly interpret the rules? Or
2. Explain why you are prepared to allow CISAS to breach its own rules? Or (The preferred Option)
3. Let me know when you will be instructing CISAS to follow its rules to adequately demonstrate that CEDR is really is an independent and impartial mediation service.

I look forward to your swift response.

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 the claim 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); “

GolfBravo

RandomCurve wrote: »

No it would need to be the SCC route. However I am still banging on Ofcoms door, but even if they do anything it won't be a cancellation (I think I know what they would do - but don't want to give the B'trds any ideas).


Why are EE billing you - do you owe them money?

I din't pay the last bill (~£50ish) plus they charge £20 to unlock, and apparently once you use the PAC this gives them their 30-day notice so apparently they can charge you for 30 days.

I can't see my final bill since I can't login anymore - no longer their customer, can't log in. Asked them for my final bill twice, no reply to my emails, instead they sent me a letter from their collections department inviting me to give them a call to pay. I want to see the bill before I pay anything.

I think the last resort will be an email to Olaf.

g6jns_2

Unbelievable! The expression "The lunatics are running the asylum" comes to mind. Have you told your MP about this latest farce? I can only admire your persistence in this saga. Keep up the good work!