What you need to know about the Consumer Rights Act 2015 digital content

CRAThe Consumer Rights Act 2015 comes into force on the 1st October 2015. (See the link for your rights) Part of the reasoning behind this Act was to consolidate Acts and cover digital content which is not covered by other laws written before their introduction! However, it is going to get very complicated, there is very little clarity about digital content on the net and what there is can be misleading. I have been in contact with the department for Business, Innovation and Skills, responsible for the CRA to try and get some clarity and this feeds into much of the below:

Key points:
1) Digital content covers items such as computer games, virtual items purchased with computer games, television programmes, films, books, computer software, mobile phone apps and system software for operating goods.

2) These digital goods are covered by the Act and therefore must be of satisfactory quality, as described, be fit for a particular purpose, match the description and be installed correctly when this has been agreed as part of the contract.

3) You can reject the goods within 30 days and insist on a full refund up to this time and a repair or replacement anytime up to 6 months. After 6 months you will need to prove that the fault was there at point of purchase and you have up to 6 years to claim.

Digital content non physical form
Ok, now this is where it gets complicated and the potential for challenges in court is high.
1) Non physical form such as downloads are not covered by the 30 day rule. You can see why, you could download something and use it and then try and get your money back.

2) The right to reject applies only to goods and digital content sold as part of the goods (often referred to as being on a tangible medium, such as a disc, but this also includes digital content that is within the goods, e.g. the program on a washing machine). Digital content that is downloaded is not subject to the right to reject as the consumer is not in a position to return the digital content

3) If the download has corrupted other apps on a device this may not be apparent for some time. A consumer may not discover this for some days, perhaps even after 30 days. If a washing machine damaged goods three months after purchase you should expect the retailer to reimburse costs of goods damaged by the washing machine so this would be the same with software.

4) If software or computer games are unopened they are considered tangible form and once opened and put on a machine/in a toy etc. the 30 day rule still applies.

5) Replacement or repair is, generally, a first stage that must be gone through before any refund is payable if someone downloads an ebook for example and then insists on refund for any reason. The repair or replacement must be within a reasonable time and without significant inconvenience to the consumer, unless it is impossible or disproportionately expensive. Failing successful repair or replacement, the consumer could be entitled to a price reduction which can be up to the full price.

6) If a trader advertised that an ebook would work on a particular device but it was actually incompatible with that device, the consumer would be entitled to a repair or more likely a replacement in the form of a version that is compatible with the device. If that is not possible, then the consumer would be entitled to a reduction in the purchase price, up to a full refund.

7) There are no statutory provisions putting an obligation on the consumer to prove that the trader has breached the relevant consumer right. Replacement or repair is, generally, a first stage that must be gone through before any refund is payable, and this goes some way towards protecting traders against opportunistic claims. Traders will no doubt establish customs and practices to guard against abuses of the right in relation to digital goods.

8) If the consumer made a mistake and downloaded the wrong item, then this is not covered by the Consumer Rights Act. Depending on the specifics of the case, the consumer may have rights under the Consumer Contract Regulations (which provide the 14 day cooling off period for distance purchases) but many websites stipulate that by downloading the content the consumer loses that 14 day right as they have consumed the digital content.

And of course, if you need to know how to use this Act and many others, plus tips, advice and templates then you need to GET THE BOOK! How To Complain: The ESSENTIAL Consumer Guide to Getting REFUNDS, Redress and RESULTS!

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SUPERMARKETS’ ‘MOST ANNOYING’ HABITS REVEALED

In the press today was an article to which I contributed about consumers pet hate regarding supermarkets. (Regular followers of this blog will know my history with Tesco!) It was actually about the tactics that supermarkets use to make us spend more so I have added a few more gripes too!

1) Moving products around so you spend longer in the store trying to find what you want
2) Lowest priced option often at the highest point so shorter people can’t reach
3) Online or in store exclusives. Creates a sense of immediacy when selecting products, so consumers will usually spend more than intended as feeling of missing out
4) Bumping the price up for an individual item e.g. £2.50, and offering them two for £4. When item is less than £2 elsewhere
5) Putting differing offers on variations of a product to confuse as to which is best buy
6) Mixing weight to price ratios on different products
7) Making it difficult to work out the best offer frequently with ready packaged fruit/veg portrayed as having discounts versus loose.
8) Offers such as 3 for £10 when you only wanted 1
9) Pumping out the smell of bread baking (Our Sainsbury’s does that!)
10) Slow music to make you move slower round the aisles
11) Loyalty cards using your shopping habits to provide targeted vouchers
12) High sugar higher priced brands items at eye level lowering this for aisles aimed at children
13) Putting deals at the entrance of the store such as biscuits – not very expensive items but ones that appeal and that you think that’s a good offer and throw them in the trolley
14) Putting fruit, vegetables and flowers at the front of the store. We know this is to create an atmosphere of health and also provide smells and pleasant imagery providing positive vibes to make us buy more. Annoying because these are the items that we want to put on top of the shopping not at the bottom where it is going to get crushed.
15) If you only want the essentials, such as bread, milk, fruit and vegetables they are placed as far away from each other as possible to make you travel round the store.
16) My big bug bear. Wine. So many bottles costed “normally” priced at £10 but frequently in the half price offers and often half price with 25% off 6 bottles or more. We wait until these regular offers come about. If we shop in more than one supermarket then the supermarket with the deal is going to get the most sales.
17) Packaging. Is that “Tesco finest” Sainsbury’s “Taste the difference” really better? In many tests and reviews this isn’t the case but are we conned into spending more because we are sucked into thinking they are better quality.
18) Self service checkouts (see a post about THEM here!) because they always go wrong and it isn’t self service it’s one sales assistant serving many customers
19) Queues!
20) Discontinuing products

We want consistency and fair pricing, everyone loves a bargain but not when the “bargains” are all the time so we actually feel that the rest of the time we are being conned!

We know that most of this goes on but unfortunately we can not do much about a lot of it. And the trouble is if we try and avoid it all, we spend even longer in there! Don’t go hungry and try and keep to your list are a good starting point though.

I was on Radio 5live Breakfast (and Radio Nottingham!)

 

What other things are your gripes about supermarkets and which is your top one?!

 

ECJ ruling on flight delays: Consumer champion warns against third-party claim firms

European Court of Justice rules on airline delay compensation

For details on how to claim What to do when your flight is delayed

Decision in favour of passengers follows last year’s similar ruling by the Supreme Court

The European Court of Justice (ECJ) this morning ruled that airline passengers can claim compensation for delays caused by technical faults. You could be forgiven for thinking that this rule has already been passed last year. It was in fact the Supreme Court in the UK.

In October 2014 the Supreme Court ruled that consumers had 6 years to claim compensation for delays and upheld the ruling regarding that technical difficulties are not “extraordinary circumstances” for the purposes of a compensation claim [1]. The Dutch airline KLM had tried to argue that spontaneous technical issues are “extraordinary circumstances” and many cases have been on hold whilst the case was appealed at the ECJ.

The ruling demonstrates how poor the regulation is: so many claim cases around the EU have had to go to court, to the Supreme Court in the UK and now the European Court of Justice. Well-written regulation should shape the minimum standards and compensation rules but they have not been clear enough which has led to confusion and legal cases. Reform of the regulation is underway in Brussels, but progress has stalled due to disagreements between member states.

An increase in the already large number of compensation claims is now inevitable.

Helen Dewdney consumer campaigner and author of How to Complain: The Essential Consumer Guide to Getting Refunds, Redress and Results! whilst welcoming another win for consumers says that, in her opinion, compensation should not be a set amount for each claim, it should be a percentage of the ticket price. She says:

“In some cases the compensation will be higher than the price of the ticket which is ridiculous and will result in only one thing, an increase in prices.” She also warns of the increase in number of no-win no-fee organisations claiming on behalf of people who have been delayed. “There is nothing that an organisation or lawyer can do regarding delayed or denied boarding that a consumer cannot do themselves and get 100% of the compensation figure (which varies on length of flight and delay).” (For details on what you need to know to claim compensation see here.)

Notes to editors:
[1] 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.

How to complain about your noisy neighbours!

If you are having problems with your neighbours you should try your best to sort it out amicably and in person. Once you start a more formal route things can get messy and what could have been sorted with a chat over a coffee or glass of wine gets expensive and/or the problem gets worse. For example, if you are complaining about noise, your neighbours may increase this just to annoy you!

imagesVIR0RPUTNoisy neighbours
This is probably the most common complaint people have about their neighbours. A few years ago, when our neighbours were teenagers and their parents were out, they had their music really loud if they had a few friends with them. I went round and complained and they turned it down. The father the following day came round to apologise, I think the kids got into trouble but I think they must have thought it was better to warn him that I had complained. I wasn’t even The Complaining Cow then! We never had trouble with noise again. Obviously I appreciate that other neighbour disputes are not as easily dealt with and I would have preferred to write but sometimes it does just take a little bit of effort.

If, after asking your neighbours to reduce the noise, it continues and they are tenants, contact the landlord if you know their details. Otherwise contact the Environmental Health Department which is able to measure the noise levels. Keep a diary of the noise and use it as evidence to show Environmental Health the extent of the problem. You will need to convince them that the noise is disturbing your sleep and/or preventing you from enjoying your property. Witness statements from neighbours and/or letters from your doctor saying how it is affecting your health all help. Environmental Health officers are able to give an expert opinion on how it rates noise nuisance. Local authorities have powers to seize noise-making equipment.

If the Environmental Health Officer (EHO) considers there is a noise nuisance and has been unable to resolve the matter by discussion, the authority can then serve a notice on the person causing the noise, or on the owner or occupier of the property. If the person causing the noise does not comply with the notice, the local authority can prosecute them. The local authority can also apply for an injunction.

Alternatively you can go to court yourself and get an injunction but get legal advice as this can become costly.

For other complaints about neighbours trees and hedges see this post.

How to take charge of council parking tickets

parking ticketOne of the most annoying things known to drivers everywhere. You approach your car or motorbike and you see that ticket. If you are human your heart sinks and you probably swear, at least under your breath. Then, it is quite possible that you get angry. Either because it’s your own fault and you are berating yourself or you don’t think the ticket is fair. In this second instance, appeal.

Council parking tickets
You can only appeal if you think that the fine has been placed unfairly, not if you have just been unlucky and caught out. So, for example, reasons for appeal may be that the sign giving times was obscured, bay markings not clear, or you may dispute where the car was parked. As soon as you see that you have the ticket, take photographic evidence. Pictures of your car, the signage, the markings, the meter time or anything else that you dispute all help your appeal. As do witness statements and other evidence, such as crime numbers proving that your car was stolen, DVLA documents showing change of ownership etc.

Unfortunately one can now get tickets through the post, so getting photographic evidence might be more difficult. However, under new rules from 6th April 2015, English councils may only use cameras to enforce parking outside school entrances, and on bus stop clearways. This follows concerns that the use of the ‘spy’ camera-cars were being abused, for what critics said, bordered on ‘entrapment’ on high streets.

For tickets from 6th April 2015 local authorities in England must give 10 minutes grace for motorists overstaying in parking bays in council run car-parks and on the street. The rules do not apply to parking on single or double yellow lines, in front of dropped kerbs or in permit bays. Nor does the 10 minute ‘grace’ period apply if a driver has yet to buy a ticket and fix a ticket on the windscreen but has instead left the car and gone off to a shop to find change.

You have 28 days in which to pay but this is halved if paid within 14 days (21 for tickets issued using CCTV). So if you are going to pay, pay within this time. However, if you appeal within this time and your appeal is not upheld you should be able to pay the lower rate. Make sure that you ask for the fine to be put on hold when you appeal.

Follow the tips but remember this isn’t strictly a complaint!

Check the council’s website for more information and you may be able to appeal online. If not, do it by letter.

Reasons for appealing a council parking ticket
The contravention did not occur – where signage was blocked, faded or tampered with. You were on way to get a ticket (although this is normally only a few minutes leeway) or it was an eager beaver warden giving you a ticket before the time ran out.

The penalty exceeded the amount applicable in the circumstances of the case – This is unlikely through a council issued ticket as prices are standard and you can check these against the council website.

The traffic order is invalid – You believe the parking restriction in question is invalid or illegal. For example, if the council has not followed the correct procedure for passing the traffic order.

The civil enforcement officer (CEO) was prevented from issuing the Penalty Charge Notice (PCN) – You disagree that the CEO was prevented from issuing the PCN.

You were not the owner/keeper of the vehicle at the time of the contravention – You did not own the vehicle when the PCN was issued.

The vehicle was taken without your consent – The vehicle had been stolen when the PCN was issued.

You are a hire firm and have supplied the name of the hirer – You are a hire company and the hirer has signed a formal agreement accepting liability for the PCN. You must enclose the name and address of the hirer and a copy of the statement they signed

The notice to owner (NtO) was served out of time – You feel that there has been an unreasonable delay (or at least 6 months) in issuing the NtO.

There has been a procedural impropriety by the council – the council must provide the following detail in the NtO; the date it is served; name of the enforcement authority; registration of the vehicle; date and the time the alleged contravention occurred; why the ticket has been issued; amount of the penalty charge; that the penalty charge must be paid within 28 days; that if the penalty charge is paid within 14 days the fine will be reduced and how to pay the charge; if the charge is not paid within 28 days, a ‘Notice to Owner’ form will be sent to the vehicle owner; that you can appeal within the first 28 days and how you need to make the appeal, including the address (and email and fax if appropriate) that appeals should be sent to; the grounds under which you can make an appeal, and that if your formal appeal is made on time but is rejected that you can appeal to an adjudicator. For posted tickets the rules are broadly similar but must include why the PCN has been posted and the date of the notice which must be the date it is posted.

Reasons for appealing a parking ticket using mitigating circumstances
You can also appeal using mitigating circumstances. You are admitting to parking illegally but providing reasons for doing so. For example, you were on holiday when a bay you were permitted to park in was suspended. So send evidence of flights, or death certificates if a bereavement, or doctor’s letter if you were sick. Some councils may allow your appeal if you are in financial hardship but you will need to provide evidence for this and you will be relying on someone’s good nature.

When your appeal is not upheld
If your letter at the informal stage has failed you do have the option of carrying onto the formal second stage. Whilst 50% of appeals are upheld at this stage, strongly consider if you want to proceed as you risk higher costs.

So, if the appeal was not upheld or you didn’t appeal within the 28 days you will be sent a request for payment and an appeal form. You have another 28 days to pay or appeal bearing in mind that the fine could go up another 50%. When you receive the Notice to Owner letter, it must be accurate and include: the date of the notice, which must be the date on which the notice is posted; the name of the enforcement authority; the amount of the penalty charge; the date on which the Penalty Charge Notice was served; why the ticket has been issued; that the charge must be paid within 28 days; that if the charge is not paid in that time it can be increased and the amount of the increased charge. The NtO must be sent within six months of the ticket to be valid.

Councils must respond within 56 days of receiving your formal appeal otherwise the penalty is unenforceable.

If your appeal is not upheld then you can go to tribunal. It is independent and you don’t even have to attend. You can request a telephone or personal hearing but usually a letter with all the evidence is fine. It isn’t like the Small Claims Court, it is free to attend. The adjudicator will not have seen anything of the case so ensure that you fully fill out the form that you will be sent and re send all the evidence you can fully fill out the form that you will be sent and re send all the evidence you can.

Example of appealing a parking ticket here.

This clip shows you an amusing way to appeal here though – I defy you not to laugh.

More details regarding clamping, private land and template letters in the book.