A Guide to the Consumer Rights Act 2015

The Consumer Rights Act 2015
This Act comes into force from 1st October 2015, when the following Acts will be repealed/amended:

Supply of Goods (Implied Terms) Act 1973 will cover business to business contracts and consumer to consumer contracts only.
Sale of Goods Act 1979/ Sale and Supply of Goods Act 1994 will still apply to business to business contracts and to consumer to consumer contracts.
Supply of Goods and Services Act 1982 will cover business to business contracts and consumer to consumer contracts only.
Sale and Supply of Goods to Consumers Regulations 2002 will be replaced
Unfair Contract Terms Act 1977 will cover business to business and consumer to consumer contracts only.
Unfair Terms in Consumer Contracts Regulations 1999 will be replaced.

The sale and supply of goods
The person transferring or selling the goods must have the right to do so and the goods must be of a satisfactory quality. Goods must be of a standard that a reasonable person would regard as satisfactory. Quality is a general term, which covers a number of matters including:

  • fitness for all the purposes for which goods of that kind are usually supplied – appearance and finish
  • freedom from minor defects
  • safety
  • durability

In assessing quality, all relevant circumstances must be considered by the retailer, including price, description, and their own or the manufacturer’s advertising. Goods must:

  • be fit for a particular purpose. When you indicate that goods are required for a particular purpose, or where it is obvious that goods are intended for a particular purpose and a trader supplies them to meet that requirement, the goods should be fit for that specified purpose.
  • match the description, sample or model. When you rely on a description, sample or display model the goods supplied must conform
  • be installed correctly, where installation has been agreed as part of the contract.

The consumer can reject the goods within 30 days unless the expected life of the goods is shorter e.g. highly perishable goods. You can also choose repair or replacement in this time and up to 6 months after purchase as it is assumed that the fault was there at the time of delivery unless the trader can prove otherwise or unless this assumption is inconsistent with the circumstances (for example, obvious signs of misuse).

If more than six months have passed, you have to prove the defect was there at the time of delivery. You must also prove the defect was there at the time of delivery if you exercise the short-term right to reject goods. Some defects do not become apparent until some time after delivery, and in these cases it is enough to prove that there was an underlying or hidden defect at that time.

All these rules also apply for distance selling and digital goods.

The Act defines ‘digital content’ as meaning ‘data which are produced and supplied in digital form’. Therefore a huge array of digital-format products fall within this definition such as:

  • computer games
  • virtual items purchased within computer games
  • television programmes
  • films
  • books
  • computer software
  • mobile phone apps
  • systems software for operating goods – for example, domestic appliances, toys, motor vehicles, etc. In many cases digital content is supplied in a format that can be physically touched such as a Blu-ray disc containing a film. Increasingly, however, digital content does not have a tangible form – for example, a film downloaded to a computer or a virtual car purchased when playing a computer game.

The contract for the supply of services
A contract is an agreement consisting of an offer and acceptance. When a consumer buys services from a trader, both parties enter into a contract which is legally binding. In order for a term to be binding it must clearly be part of the contract and be legal. Terms given to a consumer after the contract is made are not part of the contract and they have no effect. A contract can be verbal but it is advisable to detail important terms in writing so there can be no dispute later on.

All services should be carried out:

  • with reasonable care and skill.
  • information given verbally  or in writing to the consumer is binding where the consumer relies on it.
  • the service must be done for a reasonable price (if no fixed price was set in advance)
  • the service must be carried out within a reasonable time (if no specific time was agreed)

Unfair contracts
The law creates a ‘fairness test’ to stop consumers being put at unfair disadvantage. A term is unfair if it tilts the rights and responsibilities between the consumer and the trader too much in favour of the trader. The test is applied by looking at what words are used and how they could be interpreted. It takes into consideration what is being sold, what the other terms of the contract say and all the circumstances at the time the term was agreed. There is an exemption for the essential obligations of contracts – setting the price and describing the main subject matter – provided the wording used is clear and prominent. There is also an exemption for wording that has to be used by law.

The Consumer Rights Act contains equivalent rights and protections to the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999. This means that, though there may be some technical differences in the way these aspects are implemented, from a consumer’s point of view there would be no difference – under the Consumer Rights Act the consumer may argue that a term is unfair in the same way as they would have under the aforementioned Acts.

To ensure that you know your rights and how to use them take a look at How to Complain: The Essential Consumer Guide to Getting Refunds, Redress and Results, as one reviewer says you’ll get more than your money back the first time you use it!

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Do Morethan just comparison websites for insurance quotes!

How do you take out your contents and building insurance? I hope you don’t just renew every year and that you look at comparison sites for switching insurance, energy etc. I do this but do do a little more. I also check the site that comes out the cheapest.

Comparison v direct
huh_450Last year MoreThan came out cheaper on the Moneysupermarket comparison site. But this is when it got odd. I went through Moneysupermarket.com and got a reference number and password which did not work when I clicked to go through to the website. The quote included some cover which I did not wish to have. I looked to see if I could ‘phone to discuss the quote and noted that only an 0844 number was provided. It is now illegal to only provide such numbers for customer helplines under the The Consumer Rights Directive 2013 but oddly it was provided at a later date but it wasn’t on the website!Secondly I tried to use Topcashback (excellent cashbacksite) and get a quote from MoreThan directly. This seemed to come to much MoreThan the Money supermarket.com quote! But it did not include the cover that I didn’t want! It also requested details on specific items which was not included on the Monesysupermarket.com site. The Moneysupermarket.com quote listed certain other items and not others. Basically, the comparisons between the two sites were ridiculous and one could not change them either.

Complaint
So off went the email to the CEO as I felt that something was seriously flawed with their systems. Why can’t you just get the same cover going through the comparison site as going direct? Why does it cost more direct for a different cover and you can’t use the cashback site when going through the comparison site for the cheaper quote. I stated that I wanted the price stated with moneysupermarket.com minus the cover I didn’t want and to include the cover I did. I also expected to receive the £21.00 Topcashback  to which I felt entitled. I got a new quote about £100 more than other quotes in order to get everything I wanted, and a cheque for the difference between the new quote and the cheaper Moneysupermarket.com quote plus the £21 cashback.

I’m not sure that any Laws were broken here, although one wonders about misleading practices and the Consumer Protection from Unfair Trading Regulations 2008. I do think it’s poor practice and would advise anyone looking at their insurance to explore all possibilities and to look at the comparison sites and then look at the site directly for further comparison. Make sure you have the cover you want and contact the company if you see anomalies. My guess is that this practice is quite widespread and that we need to make sure that we are not being ripped off as well as ensuring that we have the cover that we want and need.

Lots more information about comparison websites, approved sites etc here and lots of advice tips and templates for complaining about insurance in the book.

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Alternative Dispute Resolution: What it all means

Alternative Dispute Resolution

From the 9th July 2015 The EU ADR Directive was supposed to come into force. It was delayed until the 1st October. This compels the government to ensure that ADR schemes are in place.

ADR is a process that enables disputes between a consumer and a business to be settled via an independent mechanism outside the court system and can provide a quicker resolution. There are different forms of ADR:

Arbitration – an impartial and independent third party will decide how to resolve your dispute. In most cases, the arbitrator’s decision is binding and cannot be challenged in court. Costs vary and sometimes arbitration is free as with IDRS and ACAS services.

Adjudication – by ombudsmen and free to the consumer. Binding on the trader but not on you should you not agree and want to take the matter to court. For details of ombudsmen see the relevant sector chapter.

Mediation/conciliation – remains confidential and cannot be used in a later court hearing. The cost varies: in some instances it’s free; in others, it can get expensive. By the very nature of the word “mediation” someone will work with you and the other party to reach a decision. If agreement is made and signed this is legally binding. You would only be to go to court to enforce it if necessary.

Negotiation – which is used most commonly in employment situations. You can choose to have a union rep or someone else present while you negotiate.

Generally, arbitration is binding on both parties to the dispute; mediation/conciliation and negotiation are non-binding; and adjudication and ombudsmen schemes do not bind the complainant, but will be binding on the other side.

There’s a piece here from the Financial Ombudsman. The ADR appears to have let the flood gates open and the potential for an omnishambles of ombudsmen is upon us.

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5 Top Tips to prevent builders/painters/decorators problems

paint

Try to prevent many of the problems which arise with builders before using one.

1) Get 3 quotes and describe the job you need in detail.

2) Discuss the length of time the job will take. A rough price is an estimate and a fixed price a quote. If you don’t agree a price then the Supply of Goods and Services Act 1982 dictates that you are entitled to a “reasonable price”. That of course depends on the job and could be difficult to quantify, so always get a price agreed.

3) If it’s a large job get a contract drawn up. The Defective Premises Act 1972 provides a claimant with 6 years from the completion of the building work to make a claim if they consider the building to be defective. It relates to work undertaken by builders, developers, surveyors, architects etc. “Defective” is limited to work causing the property to be unfit for human habitation as a result of design, workmanship or materials. Improvement, small jobs and refurbishments are not covered by the Act but you are covered by the Supply of Goods and Services Act 1982 which entitle you to work undertaken with reasonable skill and care and within a reasonable length of time.

4) You can contact the Master Federation of Builders who will give practical advice and support to the general public on choosing and working with the right builder

5) The Painting and Decoration Association members either hold formal qualifications in painting and decorating (City & Guilds, NVQs etc.) or have a minimum of five years’ experience in the industry. They comply with the Association’s Code of Practice. In Scotland, the Scottish Decorators Federation members must comply with their Code of Conduct.

If you do have problems, use the tips to complain and of course there is the book recently updated to cover the new Consumer Act 2015.

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What to do when your flight is delayed

Denied Boarding Regulations

flying_plane_190518The Denied Boarding Regulation applies to passengers departing from an airport within the EU, whatever the airline is, and also applies to passengers departing from an airport outside the EU for an airport within the EU, if the operating air carrier is a Community carrier. (I.e. a carrier with a valid operating license granted by an EU state).

Under European regulations (EC261), passengers have significant rights if their flight is delayed, cancelled or they are denied boarding. These rights have been in place across Europe since February 2005 and the CAA is the national enforcement body for them here in the UK. The rights cover the following:

  • Flight cancelled or delayed for several hours – the airline must look after passengers. It must provide food, drinks, and some communications. If passengers are delayed overnight, this also means providing them with a hotel and travel to and from it. (All these must still be provided even if the delay was out of the airline’s  control).
  • Flight is cancelled – the airline must offer an alternative flight or a full refund. The passengers may also be entitled to compensation if the flight was cancelled less than 14 days before the scheduled departure.
  • Denied boarding or “bumped” from a flight – the airline must offer an alternative flight or a refund. Passengers are entitled to compensation.
  • If a passenger’s flight is delayed by more than 5 hours and they no longer want to travel they are entitled to a full refund.

Regulation (EC) 261/2004 applies to all flights wholly within the EU/EEA or Swiss region, or departing an EU/EEA or Swiss airport, or arriving in the region and with an EU/EEA or Swiss airline. Under EU rules, airlines must pay compensation for cancelled or heavily delayed flights, however, they can escape this under some ‘extraordinary circumstances’. This can include sudden severe weather events for example. Pilots turning up late, cancelled booking due to under booking etc. are examples of the airline at fault and so passengers can complain and get compensation.

The decisions made in the Huzar v Jet2 and Dawson v Thomson cases confirmed that routine technical difficulties are not extraordinary circumstances. Ron Huzar was delayed for 27 hours on a Malaga to Manchester flight. The delay had been caused by faulty wiring and Jet2 had claimed that this was unforeseen and categorised as an ‘extraordinary circumstance’. In the Dawson v Thomson case, James Dawson was claiming for an eight-hour delay on a flight to the Dominican Republic in 2006; his claim was made in 2012. The airline refused to pay, citing the Montreal Convention, which limits claims to two years after an incident.

On October 31st 2014 the Supreme Court upheld the rulings at appeal. Delays caused by technical problems cannot be categorised as ‘extraordinary’ circumstances and not liable for compensation and consumers have up to six years after the flight to make qualifying compensation claims. A judge in Liverpool county court threw out applications on the 25th February 2015 by Jet2, Ryanair, Flybe and Wizz Air to keep claims on hold  until a case in Holland about technical delays (Van dear Kans v KLM) was decided. He stated that cases should be settled in line with existing passenger-rights rules.

Consumers who have had compensation claims rejected for either of these reasons can now re-submit the claims to the airlines as long as the delay was less than six years ago.

If you have had a claim refused write again citing the relevant legal case above and follow the tips for complaining.

The airlines do not have to respond to complaints within an official time limit, so set them a date by which you expect to receive a response. At the very least a “holding letter” of investigation should be sent.

You are not covered for strikes but if you are delayed a day or so after a strike you may be entitled.

Compensation for delays is only due on flights arriving over three hours or more late. How much you are entitled to depends on how long the delay and how long the flight. It changes again if the flight is cancelled before/after seven days before you are due to depart. It does not reflect the price of the flight and is straight out compensation. Personally I don’t like this, it buys into the “compensation culture”. Genuine redress and goodwill gestures reflect time and amount spent on matters but these regulations do not take this into account and therefore there is a risk that the low cost airlines will be hardest hit and consequently have to put up their fares. I feel compensation should be reflective, but while it isn’t, this is what we have, set amounts set in Euros so depends on where we are with exchange rates! When I wrote How to Complain: The Essential Consumer Guide to Getting Refunds, Redress and Results! which includes more details about how to claim for what, the exchange rate meant you would be getting £200 for a flight up to 1,500km as of  29th June 2015 and the new edition you’ll be getting £178!

With apologies for the scary face (although that’s normal you should see me when I’m angry) at the beginning, didn’t realise the camera was on me! D’oh! It’s called resting bitch face.

Don’t feel like you need a no win no fee solicitor or a similar firm. They cannot and will not do anything that you cannot do for yourself and keep the whole amount!

There are of course lots of other complaints about airlines. Here is just one regarding Easyjet.

There are no such rules for flights operating outside of the EU and you should contact the Civil Aviation Authority for advice.

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