Distance selling- postage

B.Inky

Hi,

Just looking for a bit of clarification on the Distance Selling Regulations, so I hope someone can help!

We bought two bedside tables on-line, which arrived today and look cheap and horrible so we want to return them! I've been looking at this website:

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft913.pdf

to see what our rights are. As far as I can see, the company is obliged to refund the whole amount (including postage), but the company's website says that we are liable for the full delivery costs (which are apparently more than the reduced rate that we paid).

With regards to the return delivery costs, the above leaflet says that they can only oblige us to pay them if this information has been sent to us. It wasn't sent to us, but is on their website, so I am wondering if this is enough?

Also, if it turns out that we have to pay the return delivery charge (which is fair enough- if we have to pay it then we have to pay it) - can we insist on using a courier of our own choice, rather than theirs? (Which I expect will be rather expensive).

Hope someone can help, I'm finding this all rather confusing and want to get my facts straight before I sort it out!

B

B.Inky

Thank you. Do you mean both sets of postage or just the return one?

From the leaflet I attached to my post, at the bottom of page 11 it says that "the DSR's give consumers an unconditional right to cancel a contract and legally oblige you to refund all sums due......including the cost of the delivery". And further down the page, under refunds "The retailer must refund the full amount including the delivery charge".

Do the terms and conditions on their website over ride the DSRs?

The leaflet says that they have to inform me of my obligation to pay the return postage, which they did so I'm happy to pay that. I'm a little worried that they are going to be difficult (had a few problems when ordering and went against my better judgement to get the cabinets from them). I paid £200 + £30 postage, but have a feeling they will say the 'full' postage is higher and only refund me, for example, £180 or something.

neilmcl

B.Inky wrote: »

Thank you. Do you mean both sets of postage or just the return one? Just the return, you full refund should include any delivery costs to you.

From the leaflet I attached to my post, at the bottom of page 11 it says that "the DSR's give consumers an unconditional right to cancel a contract and legally oblige you to refund all sums due......including the cost of the delivery". And further down the page, under refunds "The retailer must refund the full amount including the delivery charge".

Do the terms and conditions on their website over ride the DSRs? No, a retailer's T&Cs do not override your statutory rights, if you look further down their terms you'll probably see something to that effect.

The leaflet says that they have to inform me of my obligation to pay the return postage, which they did so I'm happy to pay that. I'm a little worried that they are going to be difficult (had a few problems when ordering and went against my better judgement to get the cabinets from them). I paid £200 + £30 postage, but have a feeling they will say the 'full' postage is higher and only refund me, for example, £180 or something.

.........................

B.Inky

Thanks, that all seems perfectly reasonable, hopefully it will all be ok when they receive my cancellation!

B.Inky

I just realised that I actually bought the tables by telephone in the end, as the price was slightly different to that advertised on the website, so I ordered them by phone. Does this make a difference in terms of the information that they should have sent me? If I'd bought them from the website I'd have had to tick that I'd read their terms and conditions, but as I bought by phone I never did, and the right to return and other info was not mentioned in any e-mails.

B

neilmcl

B.Inky wrote: »

I just realised that I actually bought the tables by telephone in the end, as the price was slightly different to that advertised on the website, so I ordered them by phone. Does this make a difference in terms of the information that they should have sent me? If I'd bought them from the website I'd have had to tick that I'd read their terms and conditions, but as I bought by phone I never did, and the right to return and other info was not mentioned in any e-mails.

B

Doesn't really make a difference, their T&Cs are still made available in a durable format to you to read, whether you chose to do so or even forced to tick a confirmation checkbox is irrelevent.

B.Inky

Is a website a 'durable format' though? The OFT leaflet says not although the regulations don't seem to specify it.

B.Inky

Well, I heard back from them and, as expected, they are refusing to refund my postage costs. I’m happy to pay the return postage, but the girl on the phone got quite shirty with me when I said that they were under a legal obligation to return the full amount. I said that I would send her the OTF’s guidelines, which clearly state (on p15) that they have to refund my postage. She replied saying that they only have to refund postage if the goods are faulty and that it says on their website that customers pay for postage. I said that their terms and conditions (which they never sent to me anyway- and I ordered by phone) can’t over-ride consumer law. So we are at a stale mate now. They are refunding £161 of my £219, which I think they should be refunding £190 (total cost, minus return courier fees). Is there anything I can do about this? The regulations seem so clear to me and even have the bit about paying postage in bold. There is no ambiguity there at all, but I just think that they didn’t read it. Do I just let the £29 go or stick up for my rights?

Thanks for any advice!

derrick

B.Inky wrote: »

Well, I heard back from them and, as expected, they are refusing to refund my postage costs. I’m happy to pay the return postage, but the girl on the phone got quite shirty with me when I said that they were under a legal obligation to return the full amount. I said that I would send her the OTF’s guidelines, which clearly state (on p15) that they have to refund my postage. She replied saying that they only have to refund postage if the goods are faulty and that it says on their website that customers pay for postage. I said that their terms and conditions (which they never sent to me anyway- and I ordered by phone) can’t over-ride consumer law. So we are at a stale mate now. They are refunding £161 of my £219, which I think they should be refunding £190 (total cost, minus return courier fees). Is there anything I can do about this? The regulations seem so clear to me and even have the bit about paying postage in bold. There is no ambiguity there at all, but I just think that they didn’t read it. Do I just let the £29 go or stick up for my rights?

Thanks for any advice!

No, don't let it go, they are totally in the wrong.

Firstly report them to Trading Standards as they are denying you your statutory rights,(DSR).

See OFTs BUSINESS GUIDE TO DSR

From page 17; -
What cancellation rights do consumers have?
3.23 Where the DSRs give consumers the right to cancel an order, this right is unconditional and begins from the moment the contract is concluded. Unlike when buying from a shop, the first time that a consumer will typically have an opportunity to examine goods purchased by distance means is when they receive them. The DSRs give consumers who buy by distance means more rights than consumers who shop in person. When a distance consumer cancels a contract to which the cancellation provisions apply they are entitled to a refund of any money they have paid in relation to the contract even if the goods are not defective in any way. Please also see paragraph 3.46 for further information.

From page 25; -
Refunds (Regulation 14)
What specifically do I have to refund to the consumer if they cancel?
3.48 The DSRs require you to refund any money paid by or on behalf of the consumer in relation to the contract to the person who made the payment. This means the full price of the goods, or deposit or pre- payment made including the cost of delivery. The essence of, distance selling is that consumers buy from home and receive goods at home. In these circumstances, almost every case of home shopping will involve delivery of the goods ordered and so delivery forms an essential part of the contract.


From page 27; -
Who pays for returning the goods if the consumer cancels an order?
3.55 If you want the consumer to return the goods and to pay for that return, you must make it clear in the contract and as part of the required written information – see paragraph 3.10. If the consumer then fails to return the goods, or sends them at your expense, you can charge them the direct cost to you of the return, even if you have already refunded the consumer’s money. You are not allowed to make any further charges, such as a restocking charge or an administration charge.

3.56 If you did not include these details in the required written information then you cannot charge anything. See paragraph 3.10. You can never require consumers to pay the cost of returning substitute goods – see paragraph 3.1 for more information.

See also SoGA: - Statutory Instrument 2000 No. 2334

Section 10 Right to Cancel
(2) Except as otherwise provided by these Regulations, the effect of a notice of cancellation is that the contract shall be treated as if it had not been made.

Section 14 Recovery of sums paid by or on behalf of the consumer on cancellation, and return of security
14. - (1) On the cancellation of a contract under regulation 10, the supplier shall reimburse any sum paid by or on behalf of the consumer under or in relation to the contract to the person by whom it was made free of any charge, less any charge made in accordance with paragraph (5).


Section 5 won't apply as you have paid to return the goods, however if it was not stated to you about return postage being paid by you prior to goods being received, then I would inform them you want that refunding as well, (see text in red above).

If they still will not play ball, send the info to them by recorded delivery, giving them 7 days to refund, and include recorded delivery and any phone call charges that you have incurred, (don't forget you are to be in the same position as if you had never purchased financially, except return postage if applicable).

If all that fails you will need to sue them in the SCC.


Consumer Direct phone number, 0808 1561036, who will put you in touch with your local TS.

B.Inky

Thank you! I have contacted trading standards, who have also said to send a recorded delivery letter. So that's my next step. If it were a small amount then I would let it go, but for £29 I will continue the battle! I have their invoice, which says a few terms and conditions on it, but nothing about postage (and anyway, like I said to them, they can't have terms and conditions that over-ride my rights). I will report back on how it goes, I expect this happens quite a lot of the time, not a lot of people would question it I should think.

B

derrick

B.Inky wrote: »

Thank you! I have contacted trading standards, who have also said to send a recorded delivery letter. So that's my next step. If it were a small amount then I would let it go, but for £29 I will continue the battle! I have their invoice, which says a few terms and conditions on it, but nothing about postage (and anyway, like I said to them, they can't have terms and conditions that over-ride my rights). I will report back on how it goes, I expect this happens quite a lot of the time, not a lot of people would question it I should think.

B

You are correct that T&Cs cannot override your rights, however in the DSR if a company put into their T&Cs that return P&P will be paid by the customer for non faulty returns then those T&Cs are legal in that respect.