1. Jurisdiction decision
This complaint is within jurisdiction. It is about customer service and communication. It is about whether the Retail Scheme Member has met its obligations in terms of the principles outlined in the Customer Complaints Code.
Although no reasons have been provided by the Retail Scheme Member under Clause 18 of the Code as to why this complaint is not within jurisdiction of the Code, the Retail Scheme Member maintain that they do not have a billing relationship with the customer. The fact that the customer purchased the Retail Scheme Member Sim cards to use their network must mean there is a billing relationship. The fact that the phone was not purchased from the Retail Scheme Member is not relevant.
As noted in the definition section of the Code a billing relationship “includes prepay customers.” Further, the Retail Scheme Member has advised they do not believe they can assist the customer and it is the Retail Scheme Member’s view that [REDACTED] should be involved. This complaint has quite a complex fact situation and it is unclear as to who is responsible for the customer’s concerns. It does appear that the Retail Scheme Member has made mistakes following some miscommunication early on in the process.
As such it is considered that there are issues that can be considered via mediation or adjudication, and the adjudicator may be able to seek the reasons why the customer does not want [REDACTED] involved.
The Customer has lodged a complaint with the Telecommunication Dispute Resolution Service (TDR), that the Retail Scheme Member has wrongly caused his handset to be blocked on networks other than the Retail Scheme Member’s network. As a consequence the Customer cannot use his iPhone 12 on the other networks, which has in turn caused him a loss as it relates to the value of his handset, and also the ability to use the network of his choosing. The complaint also relates to the time and effort spent by the Customer to get his handset unblacklisted.
The Retail Scheme Member agrees that the handset was incorrectly blacklisted, but dispute the claim on the basis that they have removed any blacklisting from their network, and any further blacklisting with other networks are beyond their control.
The parties largely agree on the background, which I summarise as follows:
- The Customer purchased an iPhone 12 from [REDACTED], and contracted for a [REDACTED] service with unlimited minutes of calls.
- The Customer noted unexpected activity on the [REDACTED] account. It was recommended that he place an outgoing call block on the account, which he did.
- In order to continue to be able to make and receive calls, the Customer purchased a Retail Scheme Member pre-paid SIM card which he used.
- After about a month, the Customer was swapping between SIM cards, and in that process lost his Retail Scheme Member’s SIM.
- The Customer contacted the Retail Scheme Member from his iPhone 12 (as the [REDACTED] number was no longer blocked by that time), to have the the Retail Scheme Member SIM card blocked. The Customer states that he specifically asked that the handset not be blocked, only the the Retail Scheme Member SIM card.
- The Retail Scheme Member in error blacklisted the IMEI associated with the iPhone 12. Soon after making the call to the Retail Scheme Member (to block the SIM), the Customer found the iPhone would not work on the [REDACTED] network. However if the SIM card was switched into another handset, the Customer could get service, leading the Customer to suspect his handset had been blocked.
- The Retail Scheme Member confirmed that both the iPhone IMEI and the Retail Scheme Member’s SIM card had been blocked and / or blacklisted.
- The Retail Scheme Member removed the blacklisting without delay. The handset would work on the the Retail Scheme Member’s network without difficulty, but not on the [REDACTED] network.
- The Customer reports making many visits to the Retail Scheme Member and [REDACTED] stores to try to resolve the problem, nowever he remains barred from using the [REDACTED] network. The Customer has been able to use the the Retail Scheme Member’s network however, and has needed to purchase further pre-paid cards in order to be able to use his handset.
- The Retail Scheme Member has also worked with [REDACTED] to have the issue resolved, but that was not effective in resolving the problem.
- When the dispute could not be resolved directly, the Customer filed this complaint with TDR.
4. Position of the parties
In summary the position of the Customer is that:
- He at no stage requested that his iPhone be blacklisted, rather the the Retail Scheme Member representative undertook that action of his or her own initiative.
- He should be returned to the position he would have been in had the Retail Scheme Member not wrongly blacklisted his phone. He purchased an unrestricted handset, and that is what his handset should continue to be.
- He has needed to purchase the Retail Scheme Member’s pre-paid service, given he cannot access [REDACTED], where he continues to be a customer and therefore is paying for an unlimited call service he cannot use.
- The value of his handset is significantly diminished, because a person is unlikely to pay him a market rate for his handset given the network limitations it now has.
- The ordeal has caused him severe inconvenience, and has impacted his work to the extent he lost a job when uncontactable (The Customer is a Truck Driver so reasonably needs to be contactable).
The Retail Scheme Member ’s position has been summarised in communications to TDR as follows:
The Retail Scheme Member remains of the opinion that this is a [REDACTED] issue. The way blacklisting should work (as you know) is that a request for IMEI blacklisting is a shared responsibility across TelCo's. When we unblacklisted the handset, a request would have been sent to [REDACTED] to unblacklist the handset from their network. To date, [REDACTED] have been unable to achieve this. The Retail Scheme Member, however, has managed to unblacklist the handset from their network, evidenced by the fact that the Retail Scheme Member’s SIM works perfectly in the [REDACTED]-purchased handset. With that in mind, the Retail Scheme Member remain of the opinion that they are not liable for this issue.
To conclude, it is their view that the phone which has the issue was not purchased from The Retail Scheme Member. The network that the handset is not working on is [REDACTED] (not The Retail Scheme Member’s). Lastly, the Retail Scheme Member has not been presented with any evidence that the blacklisting process has caused the damage to the phone.
The parties agree on the key facts, but where they part company, is around liability. The Customer considers that the Retail Scheme Member would be liable for the continued blacklisting of his handset on the [REDACTED] network, whereas the Retail Scheme Member considers they would not be liable as the blacklisting has been lifted so the handset works normally on the Retail Scheme Member’s network, so any continuing issue with [REDACTED] is a matter between the Customer and [REDACTED].
I agree with the Retail Scheme Member that there is no evidence of damage being caused to the handset if viewed in a physical sense. However I consider that the IMEI number associated with that handset must be viewed as an intrinsic part of the handset. Any action involving the IMEI number that caused that handset to no longer be able to access any network, of course will impact the use of that handset for its owner.
From a legal perspective, there are various ways that the Customer’s complaint could be approached, for example it could be viewed under the Tort of negligence or breach of duty, or even as a consequential loss. But for the purpose of this decision, I will approach the case under the Consumer Guarantees Act 1993 (CGA).
The Customer had a contract with the Retail Scheme Member for the supply of the pre-paid service. If viewed as being a supply of services under the CGA, then the guarantee under section 28 applies:
28 Guarantee as to reasonable care and skill
Subject to section 41, where services are supplied to a consumer there is a guarantee that the service will be carried out with reasonable care and skill.
I have no difficulty in concluding that when the the Retail Scheme Member representative blacklisted the iPhone’s IMEI, when that had not been requested by the Customer, the Retail Scheme Member had not supplied its service with reasonable care and skill.
The question then becomes, if there was a breach of the guarantee, what can the Customer do about it? That is answered in section 32:
32 Options of consumers where services do not comply with guarantees
Where a service supplied to a consumer fails to comply with a guarantee set out in any of sections 28 to 30, the consumer may,—
(a) where the failure can be remedied,—
(i) require the supplier to remedy it within a reasonable time:
(ii) where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,—
(A) have the failure remedied elsewhere and recover from the supplier all reasonable costs incurred in having the failure remedied; or
(B) subject to section 35, cancel the contract for the supply of the service in accordance with section 37:
(b) where the failure cannot be remedied or is of a substantial character within the meaning of section 36,—
(i) subject to section 35, if there is a contract between the supplier and the consumer for the supply of the service, cancel that con- tract in accordance with section 37; or.
(ii) obtain from the supplier damages in compensation for any reduction in value of the product of a service below the charge paid or payable by the consumer for the service:
(c) in addition to the remedies set out in paragraphs (a) and (b), obtain from the supplier damages for any loss or damage to the consumer resulting from the failure (other than loss or damage through reduction in value of the product of the service) which was reasonably foreseeable as liable to result from the failure.
In this case the Customer did require the Retail Scheme Member to remedy the breach, which it only managed to do partially. The blacklisting was removed for the the Retail Scheme Member’s network, but not the [REDACTED] network. It is not a defence under the CGA to say that the continued blacklisting was on another network, so the Retail Scheme Member is not liable for it.
Ultimately section 32(c) confirms that the Customer is able to obtain from the supplier damages for the loss or damage he has sustained from the breach which would be reasonably forseeable. That loss and damage (in a legal sense) includes being unable to use the handset on the Customers chosen network, and loss of value in the handset. In my assessment that would be reasonably foreseeable (in fact a near certainty) by blocking the IMEI number.
Taking an approach which I consider is fair, I consider that it would be reasonable that the Retail Scheme Member have a final 5 working days to completely remove all blacklisting from all networks. In the event that the Retail Scheme Member is not able to do so, then the Retail Scheme Member must reimburse the purchase price of the Customer’s iPhone, or alternately provide the Customer with a new iPhone 12 of identical specification (or specification acceptable to the Customer).
The Retail Scheme Member must also reimburse all costs incurred by the Customer with purchasing pre-paid services on the the Retail Scheme Member’s network following the IMEI number being blocked.
6. Further submissions
No further submission were received by the Customer, but a further comment was received from the Retail Scheme Member:
unfortunately, the Retail Scheme Member is unable to make this phone work on the [REDACTED] network. Only [REDACTED] are in a position to get a phone (purchased from them) to work on their network. We have sent them the request to do so, but they have not been able to achieve this.
7. Further discussion
I have considered the further submission from the Retail Scheme Member, but cannot see any reason to change the proposed decision. I accept that the Retail Scheme Member is limited in what it can to with the [REDACTED] owned network. I also accept that the Retail Scheme Member has tried to resolve the issue with [REDACTED] unsuccessfully, just as The Customer has tried.
I had considered whether to change the proposed decision where the Retail Scheme Member had 5 days to try working with [REDACTED] to get the block lifted, but on balance will leave that in place. The Retail Scheme Member may wish to make a final attempt to get The Customers phone working on all networks. In the alternative, if the Retail Scheme Member does not consider that will be fruitful, then it could always proceed to replace the handset or reimburse the purchase price to The Customer.
8. Final decision
The final decision of TDR is that the complaint is upheld.
The Retail Scheme Member has a final 5 working days to completely remove all blacklisting from all networks. In the event that the Retail Scheme Member is not able to do so, then the Retail Scheme Member must reimburse the purchase price of the Customer’s iPhone, or alternately provide the Customer with a new iPhone 12 of identical specification (or specification acceptable to the Customer).
The Retail Scheme Member must also reimburse all costs incurred by the Customer with purchasing pre-paid services on the Retail Scheme Member’s network following the IMEI number being blocked.