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ADR: A Government consultation

On 20 June 2021 the Government finally published its consumer paper for consultation titled Reforming Competition and Consumer Policy. The closing date is for responses to the consultation is 11.45am on 1 October 2021.

The document is 147 pages long! So, I am going to do a summary/opinion piece on areas of the consultation.

I will start with Alternative Dispute Resolution (ADR). It can be complicated but over the last 6 years I have been recognised in the consumer world for my expertise and knowledge in the area and often get called upon in the media to talk about ADR due to this.

See ADR – all about it for World Ombudsman Day lists all my work in this area.

See Reviews: A Government Consultation and Subscriptions: A Government Consultation for response on subscription traps.

ADR falls within the section of Consumer Law Enforcement.

Marcus Williamson and I co-wrote two research reports on Alternative Dispute Resolution (ADR).

Report cover CDRL, CTSI, CAA, OA, Dean Dunham,The first was Ombudsman Omnishambles:  Serious unresolved issues affecting the operation of the ombudsman ADR system in the UK. (OO) in June 2016

The second was More Ombudsman Omnishambles: The UK ADR landscape 20 months on… in February 2018 (MOO). These were both highly critical of the Chartered Trading Standards Institution (CTSI) and of Civil Aviation Authority (CAA) in particular for their approval and monitoring of ADR schemes. Many of the issues raised in both these reports remain unresolved.

The Government is looking at examining ways to “mainstream” ADR, so it not seen as an alternative to court but becomes an integral part of the justice system. It currentlu aims to increase the scope of ADR and the rate of consumer disputes being satisfactorily resolved.

The consultation is looking at responses to three areas.

Summary of one section of the Reforming Competition and Consumer Policy consultation:

“Government believes a well-functioning ADR system can make markets work more effectively and drive economic growth, as it increases consumers’ confidence in spending and generates higher trader compliance with the law. However, responses to the Consumer Green Paper suggest that a number of improvements need to be made to improve the quality and scope of ADR so that it delivers for more consumers and businesses in all markets. In this chapter, government is seeking views on three specific improvements that were highlighted by respondents:

Improving consumer awareness and signposting – the current landscape for accessing redress is confusing and the process varies across markets. This is dissuading consumers from seeking private redress and enforcing their consumer rights.

Responses to the Consumer Green Paper said that consumers still find it difficult to understand their redress options, make the right choice for them and navigate the routes to resolving their problem, particularly if they are vulnerable.”

“Speeding up access to ADR  – In regulated markets, the majority of disputes are resolved within four weeks, but most regulators have typically set an upper limit of eight weeks for businesses to resolve complaints before consumers are entitled to take a dispute to ADR.

Government is looking for views on whether regulators should aim to set a significantly lower threshold for consumers to exercise their right to access ADR and if so whether exceptions could or should be made to allow more time to resolve complex cases.

“Improving the take-up of ADR by businesses in non-regulated markets – Business participation in ADR is particularly low in non-regulated sectors with a high number of SMEs and microbusinesses. This is concerning if those sectors are also ones where consumers are experiencing high levels of harm.”

The following is summarised from the policy. Pages 116 – 127 in the section titled “Supporting consumers enforcing their rights independently”

Improving Alternative Dispute Resolution

“Government proposes to require that all providers of consumer ADR are assessed and approved for their ability to provide an ADR service. Currently there are numerous non-accredited and unsupervised providers that offer dispute resolution on an informal basis alongside accredited providers.

Mandatory approval by the Competent Authority would mean that all providers operate to a common set of quality standards and oversight.”

It intends to strengthen the minimum service expectations of all ADR providers, focusing on four key principles to improve the quality of ADR – “neutrality, efficiency, accessibility, and transparency”.

“Government proposes to amend the ADR regulations, building on its existing framework to incorporate additional requirements for ADR providers, both as part of their initial accreditation and as part of their service provision to consumers and businesses. “These would include strengthening the accreditation process through the introduction of a ‘fit and proper persons’ test for key personnel to ensure that businesses owners, officers and senior management are suitable people to undertake those roles.”

It is generally mandatory for traders to participate in ADR schemes in the regulated sectors. For sectors where participation is voluntary, there is little engagement for a number of reasons. In the unregulated sectors, house and garden maintenance services, vehicle maintenance and repair services, and used cars are the sectors where consumers spend the most money so can receive the most harm.

“Government is considering a charge of £10-20 to consumers, with this being recoverable from the business if their case is upheld. There is a precedent for this in the aviation sector. “To address these concerns and deter frivolous or low value complaints, government is seeking views on whether ADR providers should be able to implement a lower limit on the value of claims. This would be balanced to ensure only higher value claims are in scope but not to significantly restrict consumers’ access to ADR.”

“Government is looking at incentivising businesses and consumers to use ADR on a voluntary basis. Responses to the Consumer Green Paper and further stakeholder engagement, showed that mandating ADR in would be significantly more effective than voluntary measures in ensuring access to affordable redress. Government is looking at making participation mandatory in the motor vehicles sector (to include the supply of new and used vehicles and servicing and repair) and in the home improvements market (such as roofing, glazing, plumbing work, or the fitting of flooring, kitchens, or bathrooms).”

“Government is considering requiring businesses in these sectors to pay for ADR on a pay per use basis but recognises that some businesses might find it more cost effective to pay an ADR provider on a subscription basis.”

“The UK has an established regime for addressing collective consumer harm and enabling consumers to gain collective redress when consumer law has been broken. This covers both public collective redress procedures, whereby regulators and the CMA can seek redress on behalf of consumers. Enforcers, such as the CMA, seek compliance with consumer law rather than taking representative legal action on behalf of consumers. The Consumer Rights Act 2015 strengthened routes for public enforcers to seek collective redress and government forsees the changes to make it easier and quicker for bodies to obtain redress on behalf of consumers.”

“Government is considering a range of options that will incentivise compliance and encourage businesses to use ADR. It is also looking at options that will disadvantage businesses that refuse to engage in an ADR process if the consumer eventually needs to take them to court.”

Helen Dewdney The Complaining Cow responses to the consultation Download

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How to build confidence in your home improvement project

Press release

Home improvement – DIY or get some help?

Home improvement has seen a huge rise throughout the pandemic. The increased amount of time people are spending at home, improving mental health and wanting their home to look nice for Christmas are all contributing factors to the 12.8 million people planning to do improvement work at home in the next few weeks.

In the run up to Christmas, 46% of Brits plan to undertake home improvements and 54% of them are planning to do the work themselves, with a whopping 61% admitting that they are not competent to do the job! That’s according to figures released today (16/11/20) from research undertaken by the financial services comparison company, GoCompare.

At the start of the second lockdown, Housing Minister, Robert Jenrick, confirmed that tradespeople would still be able enter customers’ homes to carry out work.  However, in yet another example of confusion around the COVID-19 restrictions, the research reveals that 13% of those wanting to work on their homes believed that they couldn’t have tradespeople in their home and 23% didn’t want them in their home at all.

With so many risks associated with undertaking works in the home, what else do you need to consider when using a tradesperson?

wooden joints

10 Top Tips for taking on tradespeople

1)  Get at least 3 firm quotes, not just rough estimates. Ignore any that are very different to other quotes.

2)  Ask friends and family for recommendations of companies who have already done work for them. If you don’t know anyone who can make a recommendation, ask traders for details of customers willing to show you their work. TrustMark can provide a list of recommended traders in your area, each of whom in turn is registered with a professional trade association. TrustMark say they are the Government Endorsed Quality Scheme and if something goes wrong with a trader – and their process doesn’t put it right – you will be able to use the Dispute Resolution Ombudsman for free. Check out reviews. Be careful and cynical of reviews on Facebook, particularly on the builder’s own page. Scams abound on many sites. So, check carefully before making a decision!

3)   All professional builders should willingly agree to a written contract which includes an agreed staged payment plan. In addition to the contract, continuous communication throughout the project is the best way to avoid problems arising. Many traders are signed up to reputable trade associations which help them to get their paperwork in order, but remember, what comes naturally to a lawyer doesn’t necessarily to a trader.

4)   Beware of websites that just offer to help you to find tradespeople. Often traders pay to be listed on these websites which generate leads for them, sometimes without the trader being vetted or required to abide by an Ombudsman or Alternative Dispute Resolution Service. If the website only helps you to spend your cash but doesn’t help you put things right if they go wrong, avoid it and look for one that will help you at both ends of the project.

5)   In addition to providing lots of advice and information on services, Which? operates the Which? Trusted Traders scheme. Unlike a lead generation site, this carries out checks and requires traders to abide by a comprehensive code of conduct, all of which is underpinned by the Dispute Resolution Ombudsman which can independently investigate complaints if things do go wrong.

6)   Be wary of any builder who can start straight away! Any builder worth their salt will be busy!

7)   Check to see if the builder has public liability or employer’s insurance which will give you peace of mind. Consider a building warranty that either they or you can take out to give you further peace of mind.

8)   Take photos before, during and after the work.

9)   For some larger projects, both parties can agree that an independent expert will value the work and payments can then be made at various stages during the project.

10) If you’re using a home improvement retailer to fit a bedroom, bathroom or kitchen, check that they are a member of the Furniture and Home Improvement Ombudsman before you buy. If they are registered, you’ll benefit from free and independent dispute resolution if things go wrong.

Top tips – what to do if things go wrong with tradespeople

Helen Dewdney, The Complaining Cow, a consumer champion, has these tips:

1)  Try to resolve the matter in person or over the ‘phone before formally writing if you have a complaint.

2)  Under the Consumer Rights Act 2015 you are entitled to goods of satisfactory quality, that last a reasonable length of time and services (such as fitting) to be carried out with reasonable skill and care.

3)  Give the trader an opportunity to remedy the work. If they refuse to do this or they fail to do it satisfactorily, then you can take the matter further. Ensure that you state that you retain your legal rights under the Consumer Rights Act 2015, so that you are still able to claim if necessary afterwards when you write to complain.

4)  If the trader does not respond or does not remedy the faulty work, proceed with getting an independent report and 3 quotes.   Get the work done and write to the trader requesting this amount, attaching the paperwork. You could attach a quote before the work is done to give the trader one last chance, if you wish.

5)  The Defective Premises Act 1972 relates to work undertaken by builders, developers, surveyors and architects. “Defective”, in legal terms, means work causing the property to be unfit for habitation as a result of design, workmanship or materials. Improvement, small jobs and refurbishments are not covered by this Act, so use the Consumer Rights Act 2015 instead.

6)  If the trader is a member of a trade association, you can contact it and see if you are able to use their dispute resolution scheme.

Kevin Grix, Chief Executive and Chief Ombudsman at the Dispute Resolution Ombudsman, says:

“Sometimes even the most straightforward home improvement projects go wrong – and when they do the consequences for everyone involved can be dire. The temporary loss of amenities such as plumbing and electricity caused by a problem are often just the tip of the iceberg. Often when jobs go badly, traders and their customers find themselves in a stand-off, with work left incomplete and arguments over payments escalating.”

There are few more emotive disputes than those that involve the home. Dewdney says that good builders and tradespeople are not just adept with their tools – they also have processes in place to look after their customers. “For extra peace of mind, select those who demonstrate a commitment to standards and putting things right if they go wrong. Look for the ones who are registered with an endorsement website and with an Ombudsman.”

What to include in a contract with the builder etc

A contract should include the following:

  • Total price inclusive/exclusive of VAT
  • Timescales
  • Start and end dates to include delays and disruptions
  • Payment stages
  • Specifications of materials to be used
  • Insurance and responsibilities for loss/damage
  • Liabilities
  • How unexpected work will be dealt with
  • Health and Safety
  • Termination/cancellation rights
  • Sub-contracting
  • Dispute resolution

For more information see How to ensure a stress-free building project which includes a case study and court action which set a precedent you need to know if you are considering legal action!

Cover of How to Complain updated 2019 large cow logo

 

For more help, advice, tips, information and templates buy  How to Complain: The Essential Consumer Guide to Getting Refunds, Redress and Results!

 

 

 

 

man in hard hat

There are some problems in the ADR/Ombudsman sector

There are many issues regarding ADR and Ombudsmen providers. These are mainly to do with the oversight by their approval bodies and are highlighted in my articles Government and regulators continue to fail on resolving consumer disputes and Landing in Court with Ryanair. These articles include links to the reports Ombudsman Omnishambles and More Ombudsman Omnishambles.

This is why we recommend an Ombudsman. (See More Ombudsman Omnishambles for details on how Ombudsman standards are higher than other ADR providers).

Alternative Dispute Resolution – approval and oversight in the loosest sense of the words…