Cancelling a phone contract - mobiles.com

clb776

Hi all, my friend has bought a mobile contract with voda off mobiles.com, she has recieved it and turned it on but has very very poor signal. She recieved the phone 5 days ago (inc day rec). Is she still covered by distance selling regs so can return the phone? Many thanks for a prompt response x

grumbler

Don't know about their internal returns policy, but DSR cover only unused goods. By turning it on she definitely used both the phone and the sim.

Much more safe way of checking reception would be asking friends or ordering a free PAYG sim.

BTW, I think it was mobiles.co.uk, not .com

ETA:
http://www.mobiles .co.uk/faq-returns-exchange.html

Guys_Dad

grumbler wrote: »

Don't know about their internal returns policy, but DSR cover only unused goods. By turning it on she definitely used both the phone and the sim.

Much more safe way of checking reception would be asking friends or ordering a free PAYG sim.

BTW, I think it was mobiles.co.uk, not .com

ETA:
http://www.mobiles .co.uk/faq-returns-exchange.html

There is a point here Grumbler that could be a reason to return the handset.

If the supplied sim produced a decent signal in another handset, then the "fit for purpose" clause in SOGA/DSR might apply.

So, check the sim in another handset and see if it is any better. If so, you should return the handset saying that it is not fit for purpose as its signal strength isn't high enough. They should then either send you a different handset of the same type to see if the actual one you were sent was defective, of seek to cancel the contract, or ask for a different one.

But, as Grumbler says, if it is just that you have gone for a network that has poor reception in your area, your task will be much harder.

Buzby

SOGA would not apply for that reason, as not all phones are the same and as long as minimum standards prevailled (and the phone worked) a SOGA claim on the hanbdset would not affect the contractural obligation.

Far better to to prove the lack of coverage and get an agreement to cancel on this alone. Since the user would not be avare of coverage until the handswet was operational, a restriction that it had to be unopened is unreasonable.

Vodafone try this on with the SIM carrier, but when pressed will cancel if coverage is deficient.

Guys_Dad

Buzby wrote: »

SOGA would not apply for that reason.

Which reason?

That the actual handset in OP's possession was not picking up a signal or that the handset model was generically poor in comparison to other makes/models?

Obviously you are incorrect if the first was the case and on very shaky ground if the latter was the case.

robbies_gal

cant she get a sure signal box from voda or does it only work if u get the handset directly through them?

Herongull

grumbler wrote: »

Don't know about their internal returns policy, but DSR cover only unused goods. By turning it on she definitely used both the phone and the sim.

Much more safe way of checking reception would be asking friends or ordering a free PAYG sim.

BTW, I think it was mobiles.co.uk, not .com

ETA:
http://www.mobiles .co.uk/faq-returns-exchange.html

Not so.

See: http://www.oft.gov.uk/business-advice/treating-customers-fairly/dshome/dsrexplained

"DSRs do not link cancellation rights with your ability to resell items as new. Unless the item falls under the cancellation exemption , customers can cancel a contract and return the goods to you even if they have opened and tested the goods and, as a result, you are unable to resell them.
You may provide instructions to the customer about how to take care of the goods and packaging, however, any instructions cannot restrict a customer’s reasonable opportunity to inspect and assess the product. Customers have the right to cancel even if they fail to take reasonable care of the goods, however, you do have a right of action against customers for any breach of their statutory duty to take reasonable care."

Mobiles.co.uk can not have a T&C that removes your rights under the DSRs (although they are allowed to give you additional rights if they wish). If their T&Cs conflict with the DSRs, the latter win.

And their T&Cs do appear to confict. According to http://mobiles.co.uk/faq-returns-exchange.html: "We will only be able to offer a refund if the goods being returned are unused and in their original packaging. Activating your SIM card or the handset will signify acceptance of your contract and you will therefore not be entitled to return your handset or cancel your contract. All equipment including manuals, free gifts and accessories must be returned undamaged and in the same condition they were first supplied."

Whereas http://www.oft.gov.uk/business-advice/treating-customers-fairly/dshome/dsrexplained also say: "The purpose of the DSRs is to allow customers to examine goods they have ordered as they would in a shop. If that requires opening the packaging and trying out the goods, then they have not breached their duty to take reasonable care of the goods.
In these circumstances, you cannot insist that customers return the goods as new or in their original packaging. You may ask customers to take care when they open the package or return goods with the original packaging, but you cannot insist on this."

Interestingly customers are even allowed to assemble self-assembly goods (that cannot be dis-assembled), and still return them for a refund under DSRs.

Because of the DRSs, and their cooling off period, it is usually better to buy mobile phones online rather than in store - see http://www.bbc.co.uk/blogs/technology/2009/12/cooling_off_mobile_phone_online.html

grumbler

Well, I didn't read the original DSR, but various interpretations that I based my comment upon often say that the goods have to be 'unused'. Probably it is one of many ambiguous terms that our lawmakers are so keen on using.

I agree that removing packaging may not constitute 'using'. However, putting a sim card in and switching the phone on is much much closer to 'using'.

Guys_Dad

grumbler wrote: »

Well, I didn't read the original DSR, but various interpretations that I based my comment upon often say that the goods have to be 'unused'. Probably it is one of many ambiguous terms that our lawmakers are so keen on using.

I agree that removing packaging may not constitute 'using'. However, putting a sim card in and switching the phone on is much much closer to 'using'.

I was interested in the post from Herongull and that seems to blow a hole in 3's t&c. Wonder why OFT have not picked up on that?

If you use the supplied sim, then that would probably mean that you have deemed that the service had begun, but if you used a PAYG sim to test it out, as you would do in a shop, say, then as long as that did not personalise the handset irrevocably, then I think that it would meet the OFT requirements.

But we need a test case.

Herongull

If you can find it again it would be worth posting a link to the DSR guidance that indicates that items have to be "unused".

The current OFT guidance makes it very clear that you can try out items even if that means that they can no longer be sold as "new" when returned. It is also clear that you can do more with them than you could in a shop.

Perhaps the guidance has moved on with time (due to court cases) and consumers are now in a stronger position?

Phone companies probably do not like the DSRs, and may try to avoid/restrict consumers rights under them.

There was a condition in another phone companies T&Cs that said by the simple act of inserting the sim into the phone, you are agreeing to waive your rights under the DSRs. I don't know whether that is legal or not - possibly a grey area that would only be resolved in a court case.

I suspect that some phone companies would be keen to avoid court due to the resulting clarification not working in their favour, and if you threaten court they will cave in (but saying they are giving way due to "goodwill")

grumbler

Herongull wrote: »

....Perhaps the guidance has moved on with time (due to court cases) and consumers are now in a stronger position?...

You seem to be right. I cannot find any reference to 'unused' anywhere now.