Slow or unreliable broadband: your rights explained
3rd Jul 2011 | 09:00
How to leave an ISP that's not delivering on its promises
Slow or unreliable broadband: your rights explained
The competition between the various companies vying to provide your broadband service is intensifying, and internet service providers are making increasingly dramatic claims to get your attention and your money.
With broadband contracts typically lasting for several years, it pays to do your homework to find out exactly what these deals deliver. It's also important to understand that 'up to' or even 'average' speeds will not always refer to your personal situation (depending as it does on the position of your local exchange and the quality of the wiring).
But what if you've already taken all these factors into consideration and you're still not getting the service you expect? Where do you stand legally?
We spoke to Stephen McGlade, solicitor for Which? Legal Service, to find out what you can do to get out of a broadband contract when it isn't delivering what was advertised, who you can contact for help if you're having problems, and whether the way you bought the contract makes a difference.
Q. What can you do if you've signed a three-year deal with your ISP, but your connection turns out to be slower than described, unreliable or ultimately unfit for the job? How can you extract yourself from the contract?
A. On the face of it, you could argue under the Supply of Goods and Services Act 1982 that the ISP isn't providing the service contracted for, and you could terminate the contract for its breach of that agreement. However, you'll need to look at the small print, because most service providers say 'up to' a specified amount - in which case, you will be bound by the contract.
You should also quote Ofcom's Broadband Speeds: A Guide for Consumers to the New Code of Practice, because your ISP provider may be in breach of this code.
If you entered into the three-year deal on the basis of statements made that have turned out not to be true, then you could also set the contract aside under the Misrepresentation Act 1967 without incurring any financial penalty. You should inform the company of this in writing. You can also complain to the Advertising Standards Authority, which will investigate your complaint.
Always go back over your contract and read the section that relates to the 'service level agreement' or 'level of service'. This section is a description of the specific services that your broadband provider is bound by contract law to fulfil. If you don't think your provider is meeting this service agreement adequately, then you should have good grounds for your complaint.
Q. Are you entitled to compensation?
A. The broadband provider is contractually bound to deliver the service you agreed to pay for with reasonable skill and care under the Supply of Goods and Services Act. This means that it has to come up to the standard of the reasonable, competent ISP.
It would also be expected to comply with the Internet Service Providers Association Code of Practice, so it has to take your complaint seriously if you don't think it's keeping up its end of the agreement.
Furthermore, if you signed up to a broadband service that was mis-sold by the provider directly, you should complain to it, follow its complaints procedure and report the matter to Ofcom. It might say it's the fault of an agent who mis-sold the package.
If, however, the third party was acting as an agent for the ISP, then don't be fobbed off. The ISP would be liable, because the agent would be deemed to be acting on behalf of the principle (the ISP).
For any other type of complaint, as your service provider, it is the ISP's responsibility to deliver that service to you, and it should still be able to give you a realistic timeframe and course of action to get any matter resolved for you. You should be compensated for any period during which your broadband can't be used, if this is the fault of your service provider.
If after a period of eight weeks you have been unable to successfully resolve your complaint, the Communications Act 2003 sets out that all communication providers (including broadband providers) need to subscribe to an Alternative Dispute Resolution (ADR) scheme that offers access to impartial and free arbitration.
There are currently two such schemes, both of which provide lists of their members: Otelo (Office of the Telecoms Ombudsman) and CISAS (Communications and Internet Service Adjudication Scheme). Technically you can still take your broadband provider to court after an ADR has looked at your case, but most customers tend to accept the decision of the ADR, especially because an ADR can force an internet service provider to pay compensation.
Taking your broadband provider to court should not be taken lightly. Any court action should be a last resort. The general advice would be not to proceed with court action if you don't think you have a strong case against the broadband provider.
Always go through the ISP's internal complaints procedure first, and then refer the complaint to Otelo or CISAS if it remains unresolved after eight weeks. If you can't bear to wait eight weeks to escalate your complaint, you can refer it to the Internet Service Providers Association if your broadband provider is a member. If you decide that you still want to proceed with court action, it's a good idea to seek legal advice first.
Finally, under the Supply of Goods and Services Act 1982 (as amended) a consumer can claim a full refund or compensation if they can prove that the service was not delivered as described. There may also be a claim under the Misrepresentation Act 1967.
Q. If you aren't happy with your ISP's service, could you exercise a cooling off period if you bought the deal within the last day or two?
A. The Distance Selling Regulations 2000 give consumers rights when shopping online or by mail order. Under the regulations, consumers shopping this way have the right to clear information, a cancellation period of seven working days and protection from fraudulent use of a credit card.
For services (including broadband contracts), the cooling off period ends seven working days after the day the initial order was made. If you agree to the service beginning within the seven days, your right to cancel ends when the service starts. So effectively, you must give up your right to cancel early, but this must be clearly communicated and with your express agreement.
If you want to cancel during the cooling off period, remember that unless the supplier sent written confirmation of your order no later than the time of delivery of the product or performance of the service, your seven-day cooling off period will not begin until it does, and may be extended by a further three months.
Q. If you do, will you wind up in hot water for breach of contract?
A. As mentioned earlier, you need to find your contract and take a close look at the 'service level agreement' or 'level of service'. This describes exactly what your ISP is bound by contract law to fulfil. If you don't think your provider is meeting the terms of this service agreement, you'll be in a strong position if you decide to make a complaint.
There are a few mechanisms for making a complaint about your ISP's performance. In the first instance, a broadband complaint should go through the internet service provider's internal complaints procedure. Keep records of all written and verbal communication with your ISP.
If the internal procedure fails, eight weeks after the date of the original complaint (whether verbal or written), you can take it to the Telecommunications Ombudsman (Otelo) or the Communications and Internet Services Adjudication Scheme (CISAS). Every broadband ISP must belong to one of these two complaints schemes.
How to change ISP
Q. Do you need to pass any details from your existing ISP to your new one? How can you get these if your ISP won't respond to your request?
A. If you're switching to or from ADSL broadband (broadband via a standard BT phone line), you'll need to switch provider using the migration authorisation code (MAC) process.
In February 2007, OFCOM made the MAC process compulsory. Your MAC is a unique code that identifies a particular broadband line. Ask your existing broadband provider for your broadband MAC. You only need to request your MAC, not ask for your broadband service to be cancelled.
Some broadband providers will see requesting your MAC as a sign that you want to cancel the service, which isn't great if you then change your mind. Some providers charge a fee if a customer wants to simply disconnect their broadband service rather than switching to a new broadband supplier.
Under broadband switching regulation, your broadband provider must provide a MAC on request, and should send it within five working days. Your broadband MAC is valid for 30 days from the date it's issued, after which it expires.
You need to give your MAC to the broadband internet provider you want to switch to. It should process your request and give you a transfer date. The act of giving your MAC to your new provider will automatically cancel your old broadband account.
If you are currently with a cable broadband provider, it's important to note that Virgin Media doesn't use the MAC broadband switching process. If you're switching your service to or from Virgin Media, simply tell your existing provider that you want to cancel, then sign up to your new broadband service.
You may need to have a new phone line installed. Virgin Media charges from £40 for a standard line installation. A new, standalone BT phone line will cost a bit over £100. BT and the Post Office both offer a BT phone line installation service. Some phone and broadband bundle providers will install a new line for less if you sign up to a bundled phone and broadband contract with them.
When you sign up to your new broadband deal, check how long it will take to connect you, so you can minimise the time you're without broadband. If you want to avoid the risk of temporary loss of broadband service, you can have an ADSL broadband service (via a BT line) and a cable broadband service operating at the same time, though this will obviously double your broadband costs.
If you're switching to or from a provider that offers phone and broadband services bundled together, you may find that you're unable to use the MAC broadband switching process for technical reasons. This usually applies to providers that offer local loop unbundled (LLU) broadband.
This is a type of ADSL broadband where ISPs install their own broadband equipment in BT telephone exchanges. Though the broadband ISPs still use BT wires, adding their own broadband equipment enables them to offer faster/cheaper home broadband.
The process for switching between LLU broadband providers can cause problems. When they want to switch, customers who have a full LLU deal (on both phone and broadband) can find that there are few providers willing to accept them. You may be told that because your phone line is LLU, that it no longer counts as a BT line so it's not possible to switch easily, and you may be told you must pay a fee for a new BT line.
However, under Ofcom's switching rules, phone and broadband bundle providers are still required to make the switch as easy and hassle-free for you as possible. You can find advice on the various broadband and phone switching processes at www.ofcom.org.uk.
Each process aims for the minimum of disruption, though there is a chance you may experience some loss of service.
Q. What should you do if your ISP is refusing to respond to your emails and telephone calls? Should you just go ahead and cancel your standing order or Direct Debit?
A. Keep a log detailing each call or email that you make to your ISP. Make a note of who you spoke to, the date and time of the call, and how long it lasted in case you want to claim back costs.
Always approach your ISP first with any complaints or grievances. Inform it in writing that you want to make an official complaint. Don't just stop or cancel your standing order or Direct Debit, because your ISP may say that you are in breach of contract, and you may be cut off.
If your ISP is a member of the Internet Service Providers Association, you could refer the matter there. It has a code of practice that it expects members to abide by. That includes responding to all emails and telephone calls.
In 2003, the communications regulator Ofcom drafted The Communications Act. The act states that all communication providers (including broadband providers) need to subscribe to an ADR scheme that offers access to impartial and free arbitration. Again, it's worth emphasising that taking your broadband provider to court should not be taken lightly.
Anyone considering starting court action in England and Wales (even in small claims) has to follow the Practice Direction on Pre-Action Conduct. The Direction sets out what is expected of the parties to a dispute, and the efforts they should both make to keep the dispute out of court.
The parties should be open about their claim and defence, and shouldn't hold back information or documents. Both should carefully consider whether there is a system of ADR open to them (Otelo or CISAS) that could resolve the dispute rather than going to court.
Q. For example, say you've been to a shop and sought advice about a connection that will work in your geographic area, only to get home and find there's no signal. How are shop sales people viewed by the law - are they 'experts'?
A. Legally, because you would be relying on the sales person's "skill and judgement", having sought their specific advice, if they said that the connection would work in your area, it would be implied that the service would be fit for that area.
If it wasn't, the shop would be in breach of contract and you would be able to rescind the contract. Under the Supply of Goods and Services Act, the sales person has to use "reasonable skill and care".
Q. Which acts or regulations can help protect you from this type of mis-selling?
A. Ofcom currently has strict rules that ban all forms of mis-selling in relation to landline and mobile phones, and companies that break these rules can be fined up to 10 per cent of their turnover.
Although Ofcom's mis-selling rules currently only cover landline and mobile phone services, Ofcom wants to see mis-selling eliminated across the board. So if you feel that you have been mis-sold your broadband, you should notify Ofcom and inform it of your experience.
Having reported the matter to Ofcom, if it finds that the ISP's actions are causing significant consumer harm, then it will have to consider introducing further regulations to ban mis-selling of broadband.
Q. Would the law view the same contract differently if you were to make the contract on your doorstep or via the internet or the telephone? Are there different protections in place for these situations?
A. The purchase of goods and services over the internet, by phone or by mail order generally is subject to the Distance Selling Regulations. One of the most important implications of these regulations is a cooling off period of seven days, during which you have the right to cancel.
You must provide notice of cancellation in writing, and it must be posted to, left at, faxed or emailed to the business address of the supplier. You must ensure this is done no later than seven working days after receipt of goods.
As mentioned earlier, your broadband supplier must have sent you written confirmation of your order no later than the time of delivery of the product, or in the case of an ISP, performance of the service. If the supplier didn't do this, then your seven-day cooling off period will not begin until it does, and may be extended by up to three months.
If you have commissioned a service like broadband under a distance selling contract, and the service begins before the end of the seven-day cancellation period, then you must give up your right to cancel early, but this must be clearly communicated and with your express agreement.
If you have bought something costing more than £35 from a trader as a result of a visit to your home or place of work (whether or not the visit was requested by you), you will be protected by The Cancellation of Contracts made in a Consumer's Home or Place of Work etc Regulations 2008.
These regulations give you a cooling off period of seven calendar days, during which time you have the right to cancel and get a full refund. Just as with the Distance Selling Regulations, you must have been provided with a notice of your cancellation rights, otherwise the agreement may be legally unenforceable.
You may also invoke your seven-day cancellation rights for items over £35 where business is taking place away from the trader's headquarters or shop. This may include any of the following: your place of work, a trade fair or a one-day fair (like a wedding fair) or a marketing presentation (like overseas property, for example).
It's also the case even when contracts are concluded at a later date, back at the trader's shop or office - the fact that you have made your offer away from here is the important thing. You will only benefit from a cooling off period if the credit agreement was made in one of the following ways: for agreements signed away from the creditor's normal business premises (at your home, place of work or at an exhibition stand, for example), or for agreements made at a distance (online, by phone or by post).
For agreements which fall under the former, you will have a cooling off period of five days, which begins when you receive the second copy of the agreement (containing the cancellation form). For contracts that fall under the latter, you benefit from a 14-day cooling off period.
Unlike the cooling off period for goods bought under the Distance Selling Regulations (DSRs), the creditor may make a reasonable charge for any service (like insurance cover) that was operating during this time.
There are specific guidelines on how you should cancel the contract, which must be notified to you by the creditor before or immediately after the contract is made. If the creditor doesn't make this information available to you, then your cooling off period will not begin until this happens.
Q. Does paying by credit card offer you any further protection over other payment methods, for example if the company goes bust?
A. Yes, but you may need to wait. It's possible that a buyer for the business may be found and that your home broadband contract will continue on the same terms as before. If a new company steps into the gap, but tries to change the terms of your agreement, you'll need to look back at your original terms and conditions to see what changes they allow to be made.
If they allow the price of the service to be increased, they should also give you the right to withdraw from the contract if the new price is too high compared with the price originally charged by your broadband ISP.
If they allow characteristics of the service to change - if the new company places a cap on your download facility, say - you should again have the chance to bring the arrangement to an end. If no buyer is found and your ISP goes out of business, then it is in breach of contract by failing to provide the service contracted for.
You have no obligation to pay for broadband services that you aren't and won't be getting. You could also try to claim back from the ISP any extra it costs you to get a comparable service elsewhere, but in practice it's highly unlikely you'll get any compensation from it.
If you signed up to an annual or longer broadband contract and you were paying with your credit card, you may have a claim against your credit card company. If the total amount that you were to pay under the contract with your broadband ISP was more than £100, you may be able to argue that Section 75 of the Consumer Credit Act 1974 makes your card provider jointly responsible for the breach of contract and it should meet any additional broadband costs that you've incurred.
If your ISP has gone out of business and you're not getting the service you've contracted for, and you are paying for your service by Direct Debit, you should ask your bank to cancel the Direct Debit immediately. The Direct Debit Guarantee allows you to do this, and says that if your bank pays any money out under the Direct Debit in error, it has to pay you the money back.
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