Help needed regarding distance selling (Carphone Warehouse/O2)

kaifia

The situation I have is that I am currently in dispute with Carphone/O2 over cancelling an upgrade I ordered over the phone from Carphone Warehouse.

I pre ordered the 4S for delivery on launch day, due to CPW not addressing the package correctly the phone reach Yodel's central depot, then went no further.

When I found this out (around 2pm on the 14th) I was advised by Carphone Warehouse that they would need to investigate why this happened, which could take 2 or 3 days then attempt to get the phone delivered to me. I then responded by requesting to cancel my order. They agreed and said they would request the package back from Yodel, then when received (mon 17th or tuesday 18th) they would cancel my order.

I received confirmation that they had received the phone back today and had sent request off to O2 to reverse the upgrade. I enquired when the payment I made would be refund, the payment was for the handset cost and the fast track/early upgrade cost. They advised that they would refund handset payment but I would need to liase with O2 regarding the fast track upgrade fee being returned.

I then contacted O2, who not only advised me that they would not refund any payments, they also stated that fast track upgrades came with no cooling off period. As I purchased over the phone, I'm sure this is against the distance selling regulations, as they state that the consumer has a 7 day cooling off period.

Carphone Warehouse already have the phone, so as they have accepted the return, I believe this will help my case, hopefully.

Sorry for the essay, I would appreciate any advice if you have any experience in a case like this, or a full understanding of any exceptions to this law.

Thanks

hcb42

my understanding is that if the service was provided before the end of the 7 day cancellation window, then these rights are effectively waived - albeit this should be mentioned at order stage. There are exceptions to postage too, although it would be worth googling DSRs for the latest legislation.

kaifia

hcb42 wrote: »

my understanding is that if the service was provided before the end of the 7 day cancellation window, then these rights are effectively waived - albeit this should be mentioned at order stage. There are exceptions to postage too, although it would be worth googling DSRs for the latest legislation.

Thanks for reply. Could you please elaborate a little, I placed the order on the 11th for delivery on the 14th. The phone was never in my possession so I have not been able to use the service.

bod1467

Did O2 complete their side of the arrangement? Was your account fast-track updated to allow for the 4S - even though you didn't actually receive the phone? If yes then O2 will have completed their actions and so DSRs won't apply. (Services are exempt from DSRs if the service has commenced within the 7 days).

The flip-side argument though is that you never received the phone so you can't have actually USED the service.

Tricky one.

bris

The service is the use of the network, the service and the phone are always two seperate deals, this is why you can never cancel a contract because the phone is faulty. The service is not reliant on the phone and being an existing service it will be ongoing, just a phone upgrade. The op may struggle with this one.

bod1467

I guess one consideration is whether the service update goes hand-in-hand with the phone - i.e. that service is only available for that phone. If the buyer never receives the phone then the service is not activated, thus not started. Hence the buyer has not used the service.

But I agree - the chances of the OP getting a refund from O2 are slim.

kaifia

Thanks for replies. I know O2 are not really at fault as it was processed through CPW. I have checked terms and conditions O2 state on their site that they have new fast track policies, so they may have recently change this, hence why CPW didn't inform me of the no 14 day. The CPW has no mention of this in terms and conditions.

Regarding O2 providing a service, I have not received the phone or sim card to use the service, as I was being sent a new micro sim with the phone. I did already have a sim card but a new one was being issued with the phone, so that may be a technicality. I don't know for certain but as CPW have accepted the return then I think, well hope the liability is with them now, as it was their error and I was not informed of this policy during the phone call when I made the purchase, they have also agreed that it will be cancelled and money paid will be refunded to me 4 or 5 times.

I know when they realise it will not be done without them having to pay the entire contract fee to O2 then they may try to be more evasive.

kaifia

bris wrote: »

The service is the use of the network, the service and the phone are always two seperate deals, this is why you can never cancel a contract because the phone is faulty. The service is not reliant on the phone and being an existing service it will be ongoing, just a phone upgrade. The op may struggle with this one.

You can if it is within 14/28 days of purchase

Jeff_Bridges_hair

I just found this from HERE but not sure how accurate the info is from these people

Can you change your mind about a mobile phone contract
There are certain circumstances when you can cancel a mobile phone contract without charge, just because you have changed your mind.
You can cancel the contract if you took it out:
over the internet
over the phone
by mail order.
If you took out the contract in one of these ways, you can cancel it within seven days without having to say why.
However, if you asked for the service to start immediately, you may lose the right to cancel within seven days. This will happen if the service provider writes to you before the service starts, saying that you've lost your right to cancel because you want the service to start straight away. This might be either in a letter or an email. If you don't get something in writing before the service starts, you will still be able to cancel within seven days.
If you bought your mobile phone contract from a shop, you don’t have an automatic right to cancel without charge, unless there is a problem with the service or the phone is faulty. However, the shop may have its own returns policy, which allows you to cancel the contract. You should check your cancellation rights before you take out a contract.
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Bolded part may be your problem because you say you wanted it fast-tracked by O2 so did it start straight away and you were just waiting for the phone or did you have a set date for the new contract to start inline with receiving the phone

kaifia

Jeff_Bridges_hair wrote: »

Bolded part may be your problem because you say you wanted it fast-tracked by O2 so did it start straight away and you were just waiting for the phone or did you have a set date for the new contract to start inline with receiving the phone

I received no order confirmation from Carphone Warehouse or O2. The only mail I received was on the morning of the 13/10/11 saying item had been dispatched.

The new plan was/is not due to start until 13/11/11.

It contained these paragraphs

IF YOU ORDERED A PAY MONTHLY PHONE

We'll usually connect you within 24 hours of your phone being delivered. If you have any problems connecting to your network, please give us a call on 0845 601 0410.

IF YOU ORDERED A PAY AS YOU GO PHONE

It can take up to two working days for any inclusive top-up credit you bought with your phone to be added to your account. If your account hasn't been credited after two working days, please give us a call on 0870 087 0168.

RETURNS AND REFUNDS

Under the Consumer Protection (Distance Selling) Regulations 2000 you have the right to cancel your order and return the goods within 14 calendar days of the first attempted delivery. If you have placed an order for services (including ringtones) you won't be able to cancel your order once the performance of the service has begun.

hcb42

confusing.

You appear to have cancelled your contract as they couldnt meet the delivery date - on a date where they would have been swamped, and mad people were queuing for nine hours etc.

From the DSRs, I would have expected (and was my time back in telecoms, some years ago now) that if you have accepted it early, then it negates the DSRs. Otherwise any sensible phone company would refuse to deliver until the 7 days are up, otherwise it would cost a fortune (and remember all this is passed back to customers ultimately in terms of increased costs of service)