Contract but no SIM sent (again and again)- breach of contract?

[hassled247]

Hi.

 

Just before my 18 month contract expired (Aug 08) my phone was dropped in a glass of ware by my young son. I bought a replacement contract for a new phone and my wife gave the phone to the kids to play with. She foolishly threw the sim away.

 

I phoned carphone warehouse to request that the contract end at the 18 month minimum. They offered my a 'free' years use for the sum of £35. Fair enough. They promised to send me a SIM so I could buy a phone etc. They didn't send the SIM. I phoned them eight more times over a month or two but it never did arrive. Some months later I phoned them to ask for my £35 back since I thought the contract was not in force because they had not upheld their part of the bargain (i.e. no SIM, no service, etc). They were rude to me and cut me off. Rather than waste another minute of time on them I thought - fine - its' free for a year, wait until that's up them tell them goodbye.

 

Then got a letter stating I owed them £80 9 months into the free year. Somehow I was too busy to deal with so got another a month later for £150. I wrote to them saying that I had never received a SIM, did not have a phone and therefore asked them to write off the amount owing, refund my originl £35 and possibly in addition, send me a free phone and SIM for the hassle /good faith.

 

So, in response I get a snotty letter stating that I had not requested a disconnect and that they'd now disconnected me so I owe them another £200. Ten days after that letter I get another threatening court action (very hasty I must say).

 

I'm really confused. (1) I shouldn't owe them a penny (I didn't check my online bills because I thought there were none until demand number one), (2) surely, if they don't send me a SIM then I can't possibly use their service. I've no documentation from them (but notes of all my conversations with them), and I can't decide whether they are obliged to send a SIM from original terms and conditions.

 

Is this as simple as I think it is? That is, I renewed the contract for 12 months, paid for a service, they didn't provide the SIM (their part) so (1) breach of contract, (2) I owe them nothing even if it is not breach of contract and the contract holds even without a phone or SIM.

 

They've disabled my login so I cannot see the alleged bills, and they seem to employ people who can only read from a scripted conversation.

 

Can anyone clarify whether this is all my own fault, or whether they are in breach / falling foul of some regulations (distance selling, sale of goods, etc). I a renewal the same as a new contract if it is on a new tariff or negotiated over the phone? Does it matter?

 

 

Help!

 

Phillip

[hassled247]

Just to clarify, my wife gave the old phone to the kids and threw the old SIM away. The new phone is irrelevant.

[buzby]

I can see a problem. What happened to the original SIM? IF it was still capable of being used, and someone did so - CW would not send a replacement unless you had reported it lost or stolen. Also, unless you specifically advised them you wished to cancel, this contract would continue. What do the bills show as usage for the period after the phone had been damaged?

[hassled247]

Hi.

 

Thank you very much for your reply.

 

For reasons I don't fully understand my wife threw the original SIM in the bin. CPW were told numerous times that the sim was damaged/lost (during the minimum term) and that I needed one to continue.

 

Whenever I checked the bills (online - paperless) CPW account reported nothing - no bills issued - account inactive or some such. I asked about that once and they said that this was becuase there were no calls etc. I stopped checking for non-existant bills eventually. At the moment I cannot see my account history becaise they have disabled my account access.

 

However, I've just realised that the account also shows up in my talktalk landline login: it shows a monthly charge of £29.79 for "02 600" at least as far back as I can see (Feb this year). (The package I arranged for the 'free' year was a 75/200 min/txt deal which doesn't look like the same thing.)

 

I'm 99% sure that I could not see any bills via CPW web-site since their stopped being any amount due (after Aug 08). Maybe they have swapped the Tariff without letting me know so that whatever amount they credited for the years 'free' usage has run dry? I've had nothing from them in writing (not even confirmation of the new tariff I agreed which is why I'm slightly unsure if "o2 600" is correct or not). Or perhaps the tariff charge was less than what was credited to the account?

 

Accoridng to the talktalk bills there are no calls whatsoever in the last 6 months. (Phone originally broken two months or so before the end of the initial 18 month term). No calls since then that I know of.

 

Thanks.

[buzby]

Good - at least the SIM cannot be used to tie you to the commitment. Now, the whole contract hinges on the availability of the SIM to enable you to access the service from O2's network.

 

IT is imperative that you note all the and times, if you have them) of any emails and calls you made requesting they provide you with a SIM. For each month they do not have the SIM you should get a compensatory bill credit - as without the SIM you cannot access their services. They won't like this, but if you stick to your guns, you'll be back on track, with the same minimum term!

[hassled247]

Aha! That makes perfect sense: for each month without a SIM there should be a credit / no bill.

 

So I presume I have two choices on how to proceed. From what you advise and that since this August (i.e.. next month) is the end of the 12 month agreement that I made for the 'free' tariff on the end of the original minimum term, I can give them notice now to end the contract (i.e. 30 days) and point out (with dates etc) that they have never sent a SIM and demand a credit for everything to date. (Does it matter that I did not phone them every month over the year for a SIM, but 8 or 9 times during the first two months after which I gave up.) I'll lose the initial payment I made but I'll have got rid of them.

 

Would I be better off with that approach or just point out that they never sent a SIM (with dates that I asked for one), that they are materially in breach of contract (No SIM) and therefore dispute the contract and therefore debt and demand my initial sum paid back?

 

The latter option seems neater but I'm guessing is more lengthy and more hassle. Would trading standards or an ADR be able to sort this out better than I?

 

Which of these two options in your experience would be less hassle and more likely to be over quickly?

 

Feeling much more positive now - thank you.

[buzby]

Each has its plus points, as there's no telling how co-operative the staff dealing with your issue will be. If you stick with the fact that you full respect the contract you entered into requires them to provide a SIM that gives you access to the network, then their failure to do this creates the issue because of THEIR failling, not yours.

 

As long as you can point to at least a few calls or emails explaining you have no SIM, you'll be on safe ground. They have a responsibility to respod to your requests and for whatever reason chose not to. Do NOT fall into the trap of them restarting the contract when the SIM comes out - it doesn;t cost you any more, but restarts the commitment. Make sure they know any SIM they send is for the original contract taken out last year.

 

Leave the good news of your forthcoming termination (or possible upgrade) for another date!