Thursday, 5 December 2013

Customer Service and ADR

Rather annoyingly I am losing sleep over the whole ADR thing again, but this time it is hypothetical debate by email with CISAS and not a case. This does, at least, mean we can sort ground rules out before getting a case.

The issue has come up over the types of dispute they can handle, which includes "billing", "service" and "customer service". The latter includes things like being rude to a customer on the phone. The debate started when I asked how they decide customer service issues and what they are, and they used the phrase "duty of care". I asked where it came from and they reference the implied term to use "reasonable skill and care" in providing a service. They have now said that this reference to the sale of goods act comes from OFCOM, which is a slight surprise, but does not change things.

I am surprised that providing a service (e.g. broadband) with reasonable skill and care could be taken as having to provide a level of "customer service". It seems a stretch to me, but that is, apparently, OFCOMs interpretation, so we'll work within that rather than arguing it.

Just to be clear - we want to provide good customer service. We understand that billing issues need correcting, and that a failure to provide service to the agreed level deserves the agreed level of compensation, but "customer service" comes down to keeping customers, getting referrals and getting good reviews. It is, in my view, not acceptable that someone can say we were rude to them and demand hundreds of pounds in compensation else blackmail us by threatening ADR which would cost us hundreds even if we "win". Let us be judged by our customers and their actions, not by CISAS.

It seems to me that they have several issues regarding "customer service" complaints and how they resolve them.

1. The Comms Act allows a complaint from someone who is not yet a customer, as it redefines customer to include someone simply seeking a service. CISAS agree that such complaints could only be about "customer service" as no bills or services yet. But the reference for the "duty of care" to provide "customer service" is an implied contract term, and there is no contract yet, so no duty of care. Ooops.

2. Even when someone is a customer, this duty of care comes from an implied term which OFCOM interpret in a particular way. However the sale of goods act allows such implied terms to be changed or removed by explicit terms in the agreement. So we do. We make it clear that we'll use reasonable skill and care to provide the actual service, but that "customer service" is not part of the contract. To ensure compliance with unfair contract terms legislation we even draw this to the attention of the customer when ordering. CISAS have now conceded that we can do this in the contract, but have not said what they would do about it (e.g. not take on customer service cases).

But then there is another issue which CISAS are still struggling to get their head around. I am still debating this one. It is the fact that they resolve disputes.

3. As a simple matter of policy, we agree customer service complaints. If someone says we were rude, we agree, and apologise. If they say they had poor customer service, we agree, and apologise. There is no disagreement, no difference of opinion, no dispute to resolve.

CISAS talk of whether or not our response to a customer service complaint "resolves the dispute to the customer's satisfaction" and cannot seem to grasp the concept that in such cases the complaint is not actually a "dispute" in the first place, and so the question of whether or how it is "resolved" does not come up. Also, being not a dispute, it is not a question of whether the dispute is within CISAS scope, or even how that is decided. If not a dispute, then there is no decision to make.

We're waiting for them to understand the concept of a "non dispute" and the fact that a "Dispute Resolution" service is not relevant to a non-dispute.

So, I'll keep you posted. At least we have some progress that the reference for customer service is apparently defined by OFCOM as an implied contract term which can be explicitly removed from the contract. That alone is massive progress. I wonder if other ISPs will follow suit on that. As I say, I am more than happy for our customers to judge our customer service in reviews and recommendations, but not via ADR.

13 comments:

  1. > 2. Even when someone is a customer, this duty of care comes from an implied term which OFCOM interpret in a particular way. However the sale of goods act allows such implied terms to be changed or removed by explicit terms in the agreement.

    I think it depends on quite what you mean here. A business cannot exclude liability arising through an implied term of satisfactory quality / fitness for purpose by reference to a contractual term against a person dealing as a consumer (s6(2) Unfair Contract Terms Act 1977: http://www.legislation.gov.uk/ukpga/1977/50).

    However, I'm not sure why Ofcom would think that the Sale of Goods Act would apply to the provision of connectivity services.

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    1. Apologies, latest CISAS email actually stated "section 13 of SOGA 1982", when previous they had specifically referenced section 13 of the Supply of Goods and Services Act 1982. http://www.legislation.gov.uk/ukpga/1982/29/section/13
      What we are doing in our terms is offering to provide the service itself with all reasonable skill and care, but making it part of the terms that this does not include "customer service". Hence over-ridding the OFCOM interpretation of the implied term by making the term explicit. I believe that is within the Unfair Contract Terms regs, especially as we are specifically drawing that to the attention of the customer. Basically, we don't "sell" "customer service", make no charge for "customer service" and anyway, don't consider "customer service" to be a communications service either, so the whole idea of customer service issues being covered by ADR is pretty crazy anyway.

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    2. Isn't the point of what they're saying, though, is that any dispute from a prospective customer arises from a situation under which no contract has been agreed anyway. For example, I (as somebody who isn't an existing customer) telephone you to enquire about your services and you call me an idiot - At this point I have not agreed to any of your terms/conditions and so surely it doesn't matter what you choose to include or exclude from your terms/conditions.

      Or am I completely misunderstanding CISAS's position?

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    3. Obviously, from a normal "contract" point of view, you have no recourse in such cases, so why should ADR add one? But the Comms Act does say you can raise a complaint in such cases and that could go to ADR, but CISAS/OFCOM have dug a slight hole for themselves by basing the "customer service" aspect of such a dispute on a contract term for a contract which does indeed not exist. But this is a multiple problem, 1) no contract anyway so no reference for a duty of care on the basis they have picked, 2) the contact we offer excludes customer service, 3) we would answer your complaint with "yes, we called you an idiot, sorry" which is not "disputing" what you say so not something that can be considered by ADR anyway as they resolve disputes.

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    4. Presumably the dispute there would be the customer seeking compensation or other action: you say your apology is sufficient, they deny that and want more.

      It's a shame that when genuine disputes arise - like Giffgaff's refusal to provide a service required by law - ADR seems unavailable; perhaps that's the answer, just find an ADR "provider" which bounces complaints as "not our problem" like Giffgaff's?

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    5. I suppose the argument against the "'yes, we called you an idiot, sorry' which is not 'disputing'" bit is if I say "Oi, you called me an idiot and I want £100 from you in compensation. Presumably you're not going to agree to that and so there is a dispute.

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    6. Yes, if they say they want compensation we ask them if they agree that they agreed zero compensation for customer service issues as per contract. If they agree, then dispute resolved, no compensation due. If they say no, or that such a term is unfair, or similar, then we have a "contract dispute" (we did not dispute the "customer service" issue). ADR does not cover contract disputes.

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    7. But we're talking about a prospective customer - how can there be a contract dispute where no contract has been offered/viewed/accepted/agreed?

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    8. I know, it is crazy, the fact that the Comms Act refines "customer" is just rather strange.

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  2. Are they potentially thinking of things like not providing DDA compliant access to your services or refusing textrealy calls?

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    1. Interesting one - not sure - but that is not really an ADR issue is it? It is a simple legal issue.

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  3. On point 1, and quoting CISAS' own rule:

    A customer is an individual, or business with no more than 10 employees, who receives
    communications services from the company. The definition of customer includes the
    following:

    Does "receive communication services from the company" not suggest that the customer must have a contract with the ISP and therefore any ADR cases from someone who has not had a contract with the ISP thus make the claim null and void?

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    1. One would think so, but the Comms Act redefines customer as well. All very confusing, and CISAS get to decide if they have jurisdiction or not!

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