Was a service provided if it hasn't been used?

Grayhammy

Under UK consumer law, if I order a new mobile contract, do not activate the SIM, and then return it within 14 days, can the mobile company claim a pro-rata payment for the 14 day cooling off period?

Article 105 of EU Directive 2018/1972 (still British law post Brexit if I'm not mistaken) states

"Where an end-user has the right to terminate a contract for a publicly available electronic communications service, other than a number-independent interpersonal communications service, before the end of the agreed contract period pursuant to this Directive or to other provisions of Union or national law, no compensation shall be due by the end-user other than for retained subsidised terminal equipment."

this right to terminate is the 14 day cooling off period.

And the Consumer Rights Act 2015 Part 1, Ch. 4, Section 49(1) states:

"Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill."

My argument here is that a service cannot be performed with reasonable care and skill if it is not performed at all.

Do any lawyers here disagree, and think that a mobile phone service provider can charge for unused, pro-rated services?

Neil_Jones

Depends.  You don't get an automatic cooling off period if you walk into Carphone Warehouse or somewhere and buy something (though most shops do offer such a thing, but they're not obliged to), but you get cool off periods if you order onilne.

Assuming you're switching provider a cooling off period is before the service starts, not from when it's first used (or not used as the case may be).  So if you order on the 1st, your period expires on the 15th.

Grayhammy

Yes, to clarify I mean an online purchase. ID Mobile considers it to have started from the day I received my SIM, despite not activating it.

flaneurs_lobster

I'm no lawyer but can see flaws in your arguments.

The first clause you quote speaks of "no compensation shall be due" - ID mobile are not seeking compensation, they are charging for the 14 days for which service was made available to you under the contract which you agreed to.

The second clause you say cannot be true since ID have not provided a service - I would say they have provided a service (an active phone number and associated billing mechanism), you have chosen not to use this service. "Activating" the SIM (or not) is irrelevant.

southsidergs

It seems to be standard to be charged for the days you had the service if cancelling within the 14 days looking at several providers. Seems very much extreme penny pinching tbh

Grayhammy

Yes it seems the word supply is key here. Though I think the legislation could be tightened up a bit. ID mobile are charging me from the moment I signed the contract, before I had even received the SIM, so it cannot be said that they had supplied any service at that point. I suspect it could be won in court, but for £24 the risk-reward isn't worth it.

Relevant legislation here for any future readers

https://www.legislation.gov.uk/uksi/2013/3134/regulation/36/made

HaroldWhistler

Grayhammy said:

Yes it seems the word supply is key here. Though I think the legislation could be tightened up a bit. ID mobile are charging me from the moment I signed the contract, before I had even received the SIM, so it cannot be said that they had supplied any service at that point. I suspect it could be won in court, but for £24 the risk-reward isn't worth it.

Relevant legislation here for any future readers

https://www.legislation.gov.uk/uksi/2013/3134/regulation/36/made

I concur. I would also say that at the very least, the Courts/a Jury would concur that a "service" could not be/nor have been provided until a SIM was activated if it ever went to a class action law suit. 

PHK

But it’s been the case for as long as I can remember that the service begins on the date you buy. The only exception being pay as you go. The same thing happens with other services that require equipment. 

It’s not different from buying in a phone shop, but not getting around to using  it until the weekend. 

savergrant

PHK said:

But it’s been the case for as long as I can remember that the service begins on the date you buy. The only exception being pay as you go. The same thing happens with other services that require equipment. 

It’s not different from buying in a phone shop, but not getting around to using  it until the weekend. 

It is different in that if you have the equipment but choose not to make use of it that's entirely your responsibility. If however you haven't received the equipment you have no opportunity to use the service. The situation is complicated by the service provider not knowing exactly when the equipment is received by the customer. On one occasion I hadn't received my broadband router in time for my activation date, so when I queried 'where's my router?' they agreed to defer charges until I started using the service. The difference is that the router would not have provided a service before the activation date, whereas a sim can be used immediately on receipt. Perhaps it would be better for mobile contracts to start 14 days after the agreement is signed, allowing time for the sim to arrive and the customer to reflect on their distance selling commitment?

simax

A sim that is activated but not used is still an active service and as such will be billed until cancelled. A sim that’s not active would start billing anyway so it’s a moot point.

savergrant

simax said:

A sim that is activated but not used is still an active service and as such will be billed until cancelled. A sim that’s not active would start billing anyway so it’s a moot point.

I think that's exactly their complaint, that they are being charged when the sim is not active, and indeed being charged for a period of service before being in receipt of the sim should they cancel within the distance selling cooling off period. If they were paying for a whole year they might not mind, but don't feel inclined to pay for 14 days of service if the sim doesn't arrive until the 14th day and they then cancel without running up any usage.