Dispute WIth Tesco Mobile

[bleuchanel]

In February I may have inadverdantly used some data in an airport resulting in a bill for around £260. I disputed this bill on the grounds that a safety buffer should have been on my account. TM claim I removed the safety buffer when I upgraded however I dispute this. In an email confirmation I received when I upgraded, there is no mention of the safety buffer at all. Having reached deadlock, I escalated the matter to the Ombudsman. During the course of my complaint, TM terminated my contract as the oustanding balance remained unpaid. I had offered to pay any bills other than that which was disputed however TM ignored this and the total they now claim I owe is in the region of £1600. The Ombudsman have ruled in favour of TM. They say that they cannot prove one way or another whether I removed the safety buffer while upgrading however they think it is more likely that I did. They have offered no rationale for this. I have stated that TM's actions in terminating the contract and billing me for the outstanding value while a bill is under dispute goes against the spirt of offering a resolution service and in fact undermines it. The Ombudsman accept this but have no powers to do anything about it.

TM claim their records show I removed the safety buffer. An online order confirmation appears to show this however this was never sent to me and the email confirmation does not mention it at all. There is a data cap which applies to roaming outside the EU. Even without the safety buffer, I do not believe I have ever opted out of this. Finally, TM's website states the following:

"If you’re not on a Capped contract or have removed your safety buffer
We’ll still protect you with a high-usage limit!to stop you running up unexpectedly high bills. This limit varies per tariff but could be!up to!4 times the cost of your monthly tariff. If you reach this high-usage limit you won’t be able to use your phone until you make a payment.
Also, there’s a limit on how much you can spend on data abroad – to help you avoid a scary bill when you get home. You can spend up to £40 on data, but!after that we’ll bar your device, so you don’t rack up any more charges. If this happens, you can call us on 4455 from your Tesco Mobile phone, or call our automated payment line free on 4488 and once you’ve made a payment you can use your phone again within 2 hours. If you’re on a tariff with a safety buffer!then you can protect what you spend by choosing a safety buffer that’s right for you.

If you’re happy to spend more than £40 on data when you’re away, call us on 4455 before you go."

TM did not apply any bar on my phone after the £40 limit. I think it is clear from the above that, even if TM's contention that I had removed the safety buffer is correct, the bill should still not have exceded £40. The Ombudsman did not consider this final piece of information as it was not available to me at the time.

I am looking for advice on how to proceed. My main concern here is removing adverse information from my credit file as soon as possible and obviously I have no intention of paying monies that I do not owe.

[R0b]

The key question is have you continued to pay your monthly bill since February except for the disputed amount? If the answer is no, then I think you might struggle. However, if you have been paying your monthly amounts and the only issue is the disputed £260, then I think you could have a good chance of successfully claiming against TM.

I think the first port of call is to make a subject access request to TM for all records, conversations, transactions recorded on your account etc. Then you can work backwards to find out when the cap came off and if the cap was removed as a result of the upgrade.

If TM terminated the agreement whilst the complaint was ongoing and not concluded and you had no other outstanding amount, I think ir sounds like a wrongful termination and breach of contract by TM. The complaints procedure would have been incorporated either as a written term or implied and by failing to follow their own process would be grounds for not paying the the £1,600.

That's not including any EU regulation argument about data caps but you have told us which airport you were in at the time - presumably you were in Europe somewhere?

[2222]

It would be helpful to know the breakdown of the £1600, please. If that includes the balance of the cost of a very expensive phone that the OP still has plus call costs for the last 9 months, it is going to be hard to get the sympathy of the court.

I know, it's meant to be a court of law. But, from my limited experience, half the battle in the these small claims cases is convincing the judge what is a just outcome.

[bleuchanel]

The key question is have you continued to pay your monthly bill since February except for the disputed amount? If the answer is no, then I think you might struggle. However, if you have been paying your monthly amounts and the only issue is the disputed £260, then I think you could have a good chance of successfully claiming against TM.

I think the first port of call is to make a subject access request to TM for all records, conversations, transactions recorded on your account etc. Then you can work backwards to find out when the cap came off and if the cap was removed as a result of the upgrade.

If TM terminated the agreement whilst the complaint was ongoing and not concluded and you had no other outstanding amount, I think ir sounds like a wrongful termination and breach of contract by TM. The complaints procedure would have been incorporated either as a written term or implied and by failing to follow their own process would be grounds for not paying the the £1,600.

That's not including any EU regulation argument about data caps but you have told us which airport you were in at the time - presumably you were in Europe somewhere?

Thanks Rob, this is useful.

I did not continue to pay the bills exluding the disputed amount however there was no option to. I did offer, in writing, to continue paying the bills other than those disputed but TM said I had to pay the entire amount otherwise I would be disconnected.

I'm in the process of putting in an SAR however I know for a fact the cap was removed as a result of the upgrade.

The airport was Doha, Qatar so outside the EU.

[bleuchanel]

It would be helpful to know the breakdown of the £1600, please. If that includes the balance of the cost of a very expensive phone that the OP still has plus call costs for the last 9 months, it is going to be hard to get the sympathy of the court.

I know, it's meant to be a court of law. But, from my limited experience, half the battle in the these small claims cases is convincing the judge what is a just outcome.

The £1600 does include the cost of the phone which I'm not actually against paying however I'm more concerned with adverse information on my credit file.

[R0b]

Do you have a record that you wrote to them saying you will continue to pay the monthly bill, and how did they respond? Was it by telephone or letter or email?

I don't think much has changed for the first steps so get a SAR submitted to TM as soon as possible. TM do have their own version of a SAR but its rather restrictive and in the main box it does say they will only search for data mentioned (Link here) - not sure if that passes the legal line but I do have two examples in the link in my signature one is a short version the other is longer but does go into more detail if you prefer to use that.

You are then going to have to go through their terms and conditions with a fine toothcomb and try to spot anywhere that they may have breached. I don't have time to do that but I've had a quick scan at certain terms and I've spotted a couple of things:

12. Call Charges

12.7 You must pay your monthly bill under this Service Agreement and (if applicable) any credit agreement by the date stated on the bill. This might be considered an unfair contract term because they are saying regardless of a dispute of any amount, you still have to pay them. A fairer clause would say that you will pay any undisputed portion of the bill. The Competition and Markets Authority guidance on unfair contract terms might have something about this.

…

16. Complaints

16.1 We want to give you a great service. However, if you are unhappy with any aspect of our service then please contact Customer Care. If you are still not happy, please ask to speak to a manager. If you would like to write to us with your complaint, please write to Tesco Mobile Limited, Dumers Lane, Radcliffe, Bury BL9 9QL.

16.2 If you remain unhappy or you think that we haven’t dealt with your complaint satisfactorily within eight weeks, you can refer your complaint to the following external regulatory body:
Ombudsman Services www.ombudsman-services.org, Ombudsman Services on 0330 440 1614 or Ombudsman Services: Communications, PO Box 730, Warrington, WA4 6WU.

16.3 Before you contact Ombudsman Services, please make sure you have details of why you are still unhappy, as well as the answer given by the Tesco Mobile Complaint Management Service.

There are separate codes of practice that I would say are also incorporated into your contract.

The code of practice for electronic communications services providers who provide Mobile telephony services.

…

17. Code practice for complaints handling


Introduction
We are committed to providing you with the best possible mobile telephony service. However, despite our best efforts things can go wrong and when they do we want to know so that we can put them right as soon as possible.
This code of practice gives information on how to contact Tesco Mobile and the procedures we follow to resolve complaints about sales, charging or general service. This complaints handling code of practice forms part of our communications consumer code of practice, available above, and from Customer Care on 0345 301 4455.

If you have a complaint
Please telephone Customer Care on 0345 301 4455. Our Customer Care Advisors will ask you about the nature of your complaint and seek to resolve the problem while you are on the line. If this is not possible we will agree a course of action with you.
You may also submit your complaint in writing to:

Tesco Mobile Ltd
Dumers Lane
Radcliffe
Bury
BL9 9QL
Contact Customer Care team.

During any discussions we will protect the privacy of the information that we hold on you. We may have to ask you questions to confirm that we are speaking to the right person.

Escalation procedure
Should your complaint not be resolved to your satisfaction following this procedure, the complaint may be escalated within the company.
If you would like take this matter further you are statutorily entitled to refer your complaint to an alternative dispute resolution scheme. We are a member of Ombudsman Services: Communications, who offer free independent help to sort out disputes. They will tell you whether or not they can help and if not, they will tell you about any other options that may be available to you.

Their complaints procedure includes the Ombudsman so you would expect them to hold back on any action until the conclusion of it. Presumably if the Ombudsman found in your favour you would have paid the outstanding amount and therefore the contract would have carried on as normal, without any adverse entry on your credit file. Do you know when the adverse entry went on there? You should download a copy of your credit file showing those adverse markers as you will need that for evidence. I also wonder if OFCOM has any guidance or regulations on complaints and how they should be handled - worth checking out.

I think your only real way of sorting this mess out is to commence legal proceedings, provided TM don't take that step before you. If you can argue that TM had wrongfully terminated the agreement, then you could get some compensation for them entering adverse markers on your credit file. It is down to you to decide what is in your best interests but do bear in mind, if you hang around and do nothing and TM decide to sell the debt rather than pursuing it, things could get a little trickier

[bleuchanel]

I have email records of my offer. Their response was I could pay if I wanted but they would continue to restrict my account and ultimately disconnect unless the full oustanding amount was paid.

Thank you for all of this, it's tremendously helpful.

[R0b]

In that case I guess it would depend on whether it was reasonable not to continue paying the monthly amounts despite the account restriction or if the account restriction regardless of any monthly payment was unreasonable and unfair.

It may be argued that TM systems doesnt have the capability to unrestrict the account with an outstanding debt. Is that a reasonable argument? Who knows, but it's also fair to say that's not really problem if the account is set up in some way as it was configured by TM so if they are found to have wrongly terminated then I'm not sure they'd get away with that type of argument. It certainly didnt work in a harassment case against British Gas.

I think its crucial you need to make sure they disclose any account activity in your subject access request which might assist you further in your dispute.

If you need any feedback on what to include then post up a draft and one of us can comcant on it