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

Mikmonken

GolfBravo wrote: »

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.

Thats not how the PAC works. you have 30 days to use the PAC.

if you cancel on the 1st November though and use your PAC on the 2nd November you would still be billed for your notice period (i.e. 1st December would be your last bill + the £20 unlock fee that you asked for) it should make no difference to your final bill when you use your PAC.

If however as you're implying you used your PAC as the end of your notice period e.g.. 30th November EE shouldn't be using that as your notice period twitter. after all why would you pay for a number that no longer exists with EE, and also pay for a number with Pay G or whatever?

Get a letter to Olaf ASAP explaining your situation, and asking for a final copy of your bill, explaining what's happened and how often you've asked for a final copy of your bill.

If they won't do it (i reckon you'll get the stock response regarding price rises and that you can't cancel because of a price rise) ask for a deadlock letter and take them to CISAS, claim compensation.

GolfBravo

Mikmonken wrote: »

Thats not how the PAC works. you have 30 days to use the PAC.

if you cancel on the 1st November though and use your PAC on the 2nd November you would still be billed for your notice period (i.e. 1st December would be your last bill + the £20 unlock fee that you asked for) it should make no difference to your final bill when you use your PAC.

If however as you're implying you used your PAC as the end of your notice period e.g.. 30th November EE shouldn't be using that as your notice period twitter. after all why would you pay for a number that no longer exists with EE, and also pay for a number with Pay G or whatever?

Get a letter to Olaf ASAP explaining your situation, and asking for a final copy of your bill, explaining what's happened and how often you've asked for a final copy of your bill.

If they won't do it (i reckon you'll get the stock response regarding price rises and that you can't cancel because of a price rise) ask for a deadlock letter and take them to CISAS, claim compensation.

That's why I need the final l copy of my bill - I have no idea what they are charging me for, but the bill seems about £50 too high.

Asked for PAC and informed Orange of my cancellation on 17/08/14, used it on 15/09/14 (contract was officially ending on 14/09).

Emailing my good friend Olaf first thing tomorrow.

Grandpa_John

Just had my decision from CISAS on the T&C's arguement. Not sure how to proceed can I go back to cisas or is it SCC time? For clarity my contract was taken in an EE shop in april 2013 not 2014 as adjudicator says.

Decision by CA
An adjudicator appointed by CISAS
under the Communications and Internet Services Adjudication Scheme.
Decision date: 20th November 2014
Adjudication Reference: XXXXXXXX
Between XXXXXXXXXXX and trading as EE Ltd t/as EE2
[FONT=&quot]1[/FONT]Customer’s address for correspondence:
2 Company’s address for correspondence: EE Ltd, Hatfield Business Park, Hatfield, Hertfordshire AL10 9BW
The claim is made by the customer, XXXXXXXXXXX, against a telecommunication and internet services company, EE Ltd trading as EE.
The claim dated 9th October 2014 is for compensation of £100.00, a back-dated, penalty-free cancellation and an apology.
The determination of the company is explained in its defence dated 29th October 2014 which is disputed by the customer in his reply dated 1st November 2014.
The customer’s claim is that the company failed to give him proper information under OFCOM General Condition 9.6 of a change to his terms and conditions.
The company’s position is that it is not liable for this claim.

Decision
1. The claim succeeds in part.

2. I direct that that the company shall pay compensation to the customer in the sum of £50.00.

Main issues
3. I consider that the main issues in this adjudication are:

a. Whether the company has broken a term of the contract between it and the customer or failed in its duty of care.
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b. Whether the reasons given by the customer are sufficient to justify the remedies sought.

Background information
4. In order to succeed in a claim against the company the customer must prove on a balance of probabilities that the company has broken some term express or implied of the agreement which existed between them, or failed in the duty of care which the company owed to the customer and that as a result of this breach the customer has suffered loss. (A duty of care is a responsibility or a legal obligation of the company to avoid acts or omissions which can be reasonably foreseen to be likely to cause harm to others). If no such breach or loss is proved the company will not be liable to pay compensation however disappointed or upset the customer is.

5. The customer and the company are aware of the facts of this case. I do not propose to recount all the facts in the same manner and order as the parties have done in their documents except where it is necessary for the purposes of this decision. I have carefully considered all of the documents submitted by the parties in support of their submissions and presented to me. The parties should also be reassured that if I have not referred to a particular document or matter specifically, this should not be taken to mean that I have not considered it in reaching my decision.

Customer’s and company’s positions
6. The customer entered into an agreement with the company in April 2014. In February 2014, the customer was notified by the company that there would be a change in his terms and conditions which he believes to have been to his material detriment. The customer asserts that his contract with the company entitled him to determine the agreement without payment of a termination fee because the alteration was to his material detriment. In particular, it enabled the company to impose a price rise in excess of that which might apply under the original terms and conditions (for example, the Consumer Price Index (PCI) rate of inflation) and linked its entitlement to impose an increase to the Retail Price Index (RPA), which would enable a larger increase. The customer’s claim for compensation is (1) for breach of OFCOM General Condition (GC) 9.6 because he was not informed of his rights to cancel the contract, (£25.00); (2) for breach of the Unfair Terms in Consumer Contracts Regulations 1999 Schedule 2, paragraph 1, in that the company claimed the exclusive right to interpret what Material Detriment means, (£25.00); (3) for breach of the company’s duty of care by ignoring his legitimate requests for information (£25.00) and (4) for breach of a requirement to act in good faith in the way that the change in the terms and condition was presented (£25.00). In his reply to the company’s defence, the customer takes issue, among other matters, with the contentions of the company that the change was not to his material detriment.
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7. The company argues that this claim is outside the remit of Rule 2(a) of the CISAS rules and therefore is a matter which is not within the jurisdiction of the CISAS Scheme. It also argues that this is a complex matter of law and that CISAS should not determine this matter. Without prejudice to this contention the company argues that that it gave notice to all its customers of a change in its terms and conditions which would have been at the latest by 21st February 2014. The company argues that it had a right to change the terms and conditions under 2.11.1 of the original agreement and to impose an increase in its prices under clause 7.1.4 and that the disputed change was for the customer’s benefit because it gave rise to greater certainty. It acknowledges that the customer would have had a right to cancel the agreement if the change was of material detriment to the customer but argues that it was not of material detriment. The company acknowledges that the customer could only suffer material detriment if the customer previously had a right to terminate “without incurring a cancellation charge, in circumstances where the price rise notified was less than RPI, but higher than some other statistical measure of inflation.” The company argues that even if there was a difference between CPI and RPI, this could have amounted only to £0.15 per month. It says that even taken over the longest possible contractual period of 24 months, the total detriment would amount to only £3.60 compared to total bills of £720.00 over the period. The company therefore contends that it was not obliged to give the customer notice that he had a right to cancel the agreement because such right would only arise if there was material detriment. The company argues that the customer has not terminated his agreement within 30 days of the notice of increase and therefore the right to terminate is lost.

Adjudicator’s findings and reasons
8. I find that:

a. The dispute concerns the interpretation and application of the company’s terms under the contract for communication services. CISAS is permitted to deal with disputes arising under the contract for communication services and therefore the matter is within the scope of the scheme. I do not consider this to be a complicated issue of law.

b. General Condition 9.6 of OFCOM’s General Conditions provides:

[FONT=&quot]“[/FONT]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 without penalty if the proposed modification is not acceptable to the Subscriber.” 4

c. The original terms of the agreement between the parties are not in dispute and they provided among other matters:

2.11. Changes to Our Agreement
2.11.1 We will make a copy of Our current version of these terms and conditions available on Our website. We can change these terms and conditions for any good reason, for instance, if We want all customers on the same conditions. We will tell You about the change beforehand, as explained here:
2.11.2. If You are a Consumer and the change of terms and conditions is not of material detriment to You or You are not a Consumer, We will send You Written Notice 30 days before the terms and conditions are due to change. The new terms and conditions will automatically apply to You once that notice has run out.
2.11.3. If You are a Consumer and the change is of material detriment to You, We will send You Written Notice 30 days before the terms and conditions are due to change. The new terms and conditions will apply to You once that notice has run out, unless You terminate Your Agreement with Us within that notice period. If You do this You won’t have to pay any Cancellation Charge that would otherwise apply, see point 7.2.3.2.
2.11.4. We can change these terms and conditions if new laws or rules make it necessary or where We are required to do so by OFCOM or any other regulatory body. We will endeavour to give You 30 days’ Written Notice if We have to do this. The new terms and conditions will automatically apply to You once any notice period that We are able to give You has run out.
7. Changing Charges and terminating this Agreement
7.1. Changes to Services and Charges
7.1.4. We can increase any Price Plan Charge. We will give You Written Notice 30 days before We do so. The change will then apply to You once that notice has run out.
7.2.3. A Cancellation Charge won’t apply if You are within the Minimum Term and:
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; or
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; and
(ii) You give Us notice to immediately cancel this Agreement before the change takes effect. 5

d. It is common ground that after the variation to the contract, the company was entitled to impose an increase not exceeding the relevant rate of RPI.

e. As the customer makes clear in his submissions, his complaint is not about the price rise which followed the change of conditions but about the circumstances of the change in the conditions themselves. He says in essence that he was entitled to be warned by the company at the time that it gave notice to the customer that he had a termination right if the change was of material detriment to him. He argues that it was for the customer to decide whether the change was of material detriment, not the company. The company’s rival position is that it was under no obligation to give information other than of the increase because there was no possibility of material detriment.

f. I note that there is no definition of material detriment. The customer has pointed to one of Ofcom’s publications in reference to General Condition 9.6 which states that this condition was not intended to rule out contract variations which were beneficial to, or which have a neutral impact on, customers. The customer is aware that OFCOM’s publications were intended to provide reference only to those contracts agreed on or after 23rd January 2014 but considers that it can still be relied upon to clarify the meaning of General Condition 9.6 and, in addition, should be applied to his contract as there has been a variation and the price increase has taken place after 23rd January 2014.

g. In the light of the above and, in the absence of any other definition of material detriment, I consider it fair and reasonable to interpret “material detriment” as being any change to the customer’s contract terms that is neither beneficial to him nor has a neutral impact on him. In the particular circumstances of this case there was indeed an alternative rate which might have been applicable under clause 7.2, namely CPI, and the company’s alteration has removed consideration of this rate. I find that the company was not entitled to make a blanket decision that its contractual change could not have been of material detriment to the customer because the question of detriment may involve factors affecting an individual customer of which the company was unaware. The company is therefore not right in its assertion that it was entitled to do make a contractual change without complying with GC9.6 c). The customer alleges that he was not advised of his termination right at the same time as having been given notice of increase and the company has not challenged this. I find in these circumstances, therefore, that no such advice was given to the customer and that as this is likely to have prevented the customer from exercising a right which existed under his contract, this was a breach of the company’s duty of care. It was also a breach of clause 2.11.3 of the contract.

h. I find that the customer is accordingly entitled to redress in respect of any loss which followed from this breach. On 16th April 2014, the customer gave notice to terminate his
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contract with the company following the company’s communication regarding the change and he requested his PAC code. Although the customer does not give the precise date when he was notified of the change in terms and conditions, this is likely to have been more than 30 days after receipt of the notice. The customer has therefore not proved that he gave notice in time and the customer is, I find, now not entitled to terminate the contract without payment of a termination charge. As the company did not comply with clause 9.6 c), however, I find that it is probable that this failure contributed to the customer losing his contractual termination right. It is fair and reasonable that the customer should be compensated for this.

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i. The customer has not given information about the precise loss which failure to give notice has caused. However, as the company indicates that there has been an increase in the charges, it can be concluded that the customer will have experienced a small increase in his monthly charges in consequence.

j. Additionally, the customer complains of breach of the Unfair Terms in Consumer Contracts Regulations 1999, in that the company claimed the exclusive right to interpret what Material Detriment means; breach of the company’s duty of care by ignoring his legitimate requests for information and breach of a requirement to act in good faith in the way that the change in the terms and condition was presented. As to these, I find that the complaint of breach of the Unfair Terms in Consumer Contracts Regulations 1999 adds nothing further to the customer’s complaint of breach of duty and I am not satisfied that the customer has established that the company failed to act in good faith towards the customer: rather I find that the company took and maintained a different point of view. I do find, however, that the company’s refusal to acknowledge the customer’s complaint and to give consideration to the possibility that he might have suffered material detriment was a further breach of the company’s duty of care towards the customer which is likely to have led to distress and inconvenience.

k. Overall, therefore, I find that the customer is not entitled to terminate his contract without payment of the termination fee but is entitled to be compensated for his loss of a potential termination right and the distress and inconvenience associated with the company’s stance in support of contentions that I have found to be incorrect. I find that a fair and reasonable sum by way of compensation for this is £50.00.

Conclusion
9. My conclusion on the main issues is that:

a. The company has failed in its duty of care to the customer.
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b. The reasons given by the customer are sufficient to justify redress.

10. Therefore, my decision is to direct that the company pay compensation to the customer in the sum of £50.00.

sick_of_paying_more

@ grandpa john

Pm sent

RandomCurve

GolfBravo wrote: »

That's why I need the final l copy of my bill - I have no idea what they are charging me for, but the bill seems about £50 too high.

Asked for PAC and informed Orange of my cancellation on 17/08/14, used it on 15/09/14 (contract was officially ending on 14/09).

Emailing my good friend Olaf first thing tomorrow.

So the max you should bill you for is up to and including 15/09/14. As you pay in advance your last payment would have been taken from your account 14/09 and that should be refunded less 1 days worth (if your billing date is earlier than 14th you should still receive a full refund less 1 days worth).

RandomCurve

@Grandpa_John


Some vey interesting points raised by the adjudicator - which should have only ever lead them to give a penalty free cancellation!!




Para F is just weird:
f. I note that there is no definition of material detriment. The customer has pointed to one of Ofcom’s publications in reference to General Condition 9.6 which states that this condition was not intended to rule out contract variations which were beneficial to, or which have a neutral impact on, customers. The customer is aware that OFCOM’s publications were intended to provide reference only to those contracts agreed on or after 23rd January 2014 but considers that it can still be relied upon to clarify the meaning of General Condition 9.6 and, in addition, should be applied to his contract as there has been a variation and the price increase has taken place after 23rd January 2014.



The highlighted part of the above was ONLY relating to PRE Jan 23rd contracts, the whole point of the Ofcom document was that for POST 23rd Jan ANY change is to be considered of Material detriment (with some exceptions) -this adjudicator obviously has no idea of the single most important Ofcom Publication regarding mobile communications published in the last 2 years!!!

g. In the light of the above and, in the absence of any other definition of material detriment, I consider it fair and reasonable to interpret “material detriment” as being any change to the customer’s contract terms that is neither beneficial to him nor has a neutral impact on him. In the particular circumstances of this case there was indeed an alternative rate which might have been applicable under clause 7.2, namely CPI, and the company’s alteration has removed consideration of this rate. I find that the company was not entitled to make a blanket decision that its contractual change could not have been of material detriment to the customer because the question of detriment may involve factors affecting an individual customer of which the company was unaware. The company is therefore not right in its assertion that it was entitled to do make a contractual change without complying with GC9.6 c). The customer alleges that he was not advised of his termination right at the same time as having been given notice of increase and the company has not challenged this. I find in these circumstances, therefore, that no such advice was given to the customer and that as this is likely to have prevented the customer from exercising a right which existed under his contract, this was a breach of the company’s duty of care. It was also a breach of clause 2.11.3 of the contract.


So surely the remedy must be restitution (putting both parties in the position they would have been if things were done properly - i.e. you would have cancelled).

h. I find that the customer is accordingly entitled to redress in respect of any loss which followed from this breach.
Any loss must (at a minimum) be the difference between what you have been paying EE since April and what you would have paid for a SIM only deal, and then penalty free contract cancellation.


The decision does not follow the logic used by the adjudicator!

Mikmonken

You could get back to them and say you believe there is a clerical error as the adjudicators comments under you should be able to cancel and recoup the difference which is £x?

Clerical errors are the only reason you can get them to look at the case again.

Grandpa_John

Thanks for the responses guys, your thoughts mirror my own, I was shocked when I got to the end and was denied the cancellation. I have just sent this response, lets see how it goes.

Dear Sir/Madam

I have recently received the adjudicator’s decision on my case and I am concerned that there are some clerical errors in the decision as detailed below:

1st Extract from adjudicator’s reasoning:
g. In the light of the above and, in the absence of any other definition of material detriment, I consider it fair and reasonable to interpret “material detriment” as being any change to the customer’s contract terms that is neither beneficial to him nor has a neutral impact on him. In the particular circumstances of this case there was indeed an alternative rate which might have been applicable under clause 7.2, namely CPI, and the company’s alteration has removed consideration of this rate. I find that the company was not entitled to make a blanket decision that its contractual change could not have been of material detriment to the customer because the question of detriment may involve factors affecting an individual customer of which the company was unaware. The company is therefore not right in its assertion that it was entitled to do make a contractual change without complying with GC9.6 c). The customer alleges that he was not advised of his termination right at the same time as having been given notice of increase and the company has not challenged this. I find in these circumstances, therefore, that no such advice was given to the customer and that as this is likely to have prevented the customer from exercising a right which existed under his contract, this was a breach of the company’s duty of care. It was also a breach of clause 2.11.3 of the contract.

So surely the remedy must be restitution.


2nd Extract from adjudicator’s reasoning:

h. I find that the customer is accordingly entitled to redress in respect of any loss which followed from this breach.


The Loss I suffered is clearly the difference between what I would have paid for a sim only deal (giffgaff offer a deal to cover my usage at £15 per month) and the £47 I have been paying to EE since April £32 multiplied by 7 months = £224 and the penalty free contract cancellation I requested in April.
I would appreciate it if you would advise on these errors as I cannot accept or decline your decision until they have been corrected.

RandomCurve

Below is a revised approach to take with EE. Notice that I have included TWO "Compensation" options (Red and Blue) and only one should be used.


EE have been using the excuse that customers missed the 30 day deadline for contract cancellation - and in 50% of cases CISAS agree with them - not considering the fact that non cancellation was due to EEs deceitfulness!
By using the revised BLUE approach CISAS will be forced to consider the remedy in terms of compensation for not following the rules, rather than contract cancellation - and I think they will find that an "easier" award to make (although I am convinced the penalty free option would win in a court of law).


My advice is try the BLUE route and delete the RED paragraph.
Send the email to:
[EMAIL="Olaf.Swantee@ee.co.uk"]Olaf.Swantee@ee.co.uk[/EMAIL]

Dear Mr Swantee,

Re Phone Number 07XXX-XXXXXX

It has come to my attention that the notification of a change in T&Cs that you sent in February 2014 was materially misleading in that it did not clearly explain the effect of the change. This is in contravention of Ofcom rules on non-price rise changes to T&C notifications, and I believe also breaches The Consumer Protection from Unfair Trading Regulations 2008.

As the change moved EE from an unenforceable price variation clause (due to various deficiencies against the UTCCRs) to a clause which potentially is enforceable the change is clearly of Material Detriment to me and EE would have been required under GC 9.6 to inform me of my cancellation rights. In any case EE cannot give itself sole discretion to interpret what Material Detriment means in the contractual context (UTCCRs regulation 7 Group 19) and therefore should have advised of the cancellation right.

EEs misleading notification (both in presentation of what the impact of the change on me was, and the omission of my cancellation rights) has led to a material distortion in that it caused me not to exercise my cancellation rights when I should have.

By way of redress for EEs breach of Ofcom rules, our contract and the UTTCRs I request that my contract is immediately terminated (penalty free) that you provide me with a PAC and refund all sums taken from my account since 1st March.

By way of redress for EEs breach of Ofcom rules, our contract and the UTCCRs I request that my account is credited with a sum to the value of 50% of the monthly core subscription price from now to the end of the contract term and that a cheque is sent with a value equivalent to 50% of the sums taken from my account from and including the March payment. This is the estimated value of the loss I have suffered, and will continue to suffer, due to EEs misleading notification which caused me not to cancel my contract and move to a SIM only deal from 1st March.


Regards

jocklatic

RC - done & sent to Olaf. Hopefully this can galvanise the claim & get things moving in the right direction :j