Consumer Direct offers advice to T-Mobile customers

By changing its mobile data download limits, T-Mobile may not be only out of step with Ofcom's rules but breaching consumer contract law as well.

We asked the Office of Fair Trading (OFT) if the changes to the mobile operator's  data download limits breached the Unfair Terms in Consumer Contract regulations.

Advice we received from Consumer Direct, the consumer watchdog's advisory service, showed that T-Mobile customers could have a case if they want to cancel their contract.

"A consumer might be able to argue that due to their personal circumstances, they feel the proposed change to the Terms and Conditions (Ts& Cs) is unreasonable because it is unduly weighted in favour of the provider," said Consumer Direct.

This is not relying on the one-month notification rule, but the fact that the changes make a material and unreasonable difference to the user. The Bitter Wallet blog has an interesting argument that looks at T-Mobile's stance on the 30-day rule.

Although it would be up to a judge to rule if contract terms are unfair, the consumer watchdog told us that people should contact Ofcom if they are unhappy with the changes.

"Ts & Cs in consumer contracts (the small print) generally provide traders with the ability to make reasonable changes, giving consumers the right to take their business elsewhere without penalty if they are not content with the proposed change.

"A consumer might be able to argue that due to their personal circumstances, they feel the proposed change to Ts & Cs is unreasonable because it is unduly weighted in favour of the provider.

"For example, the consumer specifically entered into their contract because of a 3GB download, and to enter into an alternative would be significantly more expensive, they may be able to claim the term is unfair and may possibly have a claim against the provider for 'loss of bargain'.

"Loss of bargain is the difference in cost the consumer would incur sourcing an equivalent 3GB contract from another provider. In this example, the provider would be receiving the same monthly contract fee, but the consumer would be receiving a lesser service than contracted for.

"A loss of bargain claim would require the consumer to make a formal complaint to the provider and take the complaint to court if it remained unresolved, where a judge would decide based on the facts of the individual case, whether or not the term was fair and binding," the OFT told us.

We have yet to get a reply from T-Mobile to our questions that the changes to the Ts & Cs clearly don't match Ofcom's General Conditions of Entitlement. This is a rule that all communciations providers have to abide by.

Ofcom said: "Communications providers must consider whether changes to conditions in their contracts will be of material detriment to their customers.

"If consumers are being notified of a change, which is likely to cause them material detriment, the communications providers must, under General Condition 9.3, provide them with one month's notice of the change. They must also inform customers that they are entitled to terminate their contract without penalty if the change is not acceptable to them.