Please Help - DSR / Consumer Rights? Trying to charge me?! Long :(

vixiepoo

Hi all,

I'm a newbie and I'm hoping you can help me, I'm at my wits end already! I'm sorry it's long, but if you could take the time to read and advise I'd REALLY appreciate it

Last week I ordered a static/spinning brass 50mm pole fitness Pole from Platinum Stages UK, at a total cost (including shipping) of £315.98. I ordered it the night of Tuesday 23rd, and it arrived Friady 26th.

Upon arrival the packaging etc was fine, but the pole was badly damaged (there were deep dents and scratches as shown in the pictures, and they were all over the pole - I have tried to attach pictures to this thread). I immediately took pictures, didn't set it up or use it, put it back in the packaging and informed them by e-mail, and left a message on their answerphone (they had yet to answer a phone before then anyway).

<tried to post images, but am unable to post links!! My Flickr name is vixiepoo1 if anyone wants to look at them on there>

I hadn't heard anything by Monday 29th, so I called again, only to go through to what appeared to be someones mobile (crackly line, dog barking in the background) to be told that they don't deal with returns, and would "inform the correct department" and they'd get back to me by the end of the day. They didn't, and I had still heard nothing by the end of Tuesday 30th, so I opened a PayPal dispute requesting a refund due to it being faulty, including teh return postage (as per DSR), as I was getting worried that the 7-day DSR deadline was looming.

I got THIS e-mail today:

Hello V*******.

I have been informed via PayPal that you are trying to obtain a refund for an order you have placed with ourselves.

You have 14 days from receipt of the original order to return the items to the address listed on our website. Once we have these back in our possession and we are aware that you would like a refund we will then issue you the refund (less any postage expenses incurred by ourselves).

We will obviously not be refunding you whilst the goods are still in your possession.

--

Many Thanks
Alex Vlassis
Marketing Manager

So I replied with this:

Hello Alex,

I'm afraid the information you are giving me is incorrect, as per The Distance Selling Regulations.

I have attached a screenshot from a PDF for business sellers ("A short guide for businesses on Distance Selling") from the Office of Fair Trading website stating that, in the event of a Refund or a Return:

- Refunds
The retailer must refund the full amount including the delivery
costs as soon as possible after the consumer cancels, and in
any case within 30 days at the latest. You cannot insist on the
goods being received by you before you make a refund.

- Returning goods
Only if it is covered in the contract and the written information
can you require the consumer to pay for the cost of returning
the ordered goods. 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.
If you do not include these details in the required written
information then you cannot charge anything. You can never
require consumers to pay the cost of returning substitute
goods. If the goods are faulty or do not comply with the
contract, you will have to pay for their return whatever the
circumstances.

(this has been taken from <unable to post link as a new user>)

The bolded part above (and circled in the screenshot) states that I do NOT have to return the items to you first before obtaining a refund, nor do I have to do it at my own expense, as the fact that the item is faulty means it supersedes any T&C's you may have stated on your website and thus you must incur the return postage costs yourselves. This can be done by you refunding my money (including the postage costs I paid) and arranging your courier to pick it up yourselves, and informing me of the collection date (especially as you know of a specialist courier who will take the particularly long and heavy item, whereas I am not specialised in this area).

The item is considered faulty (as per Trading Standards description) because it is not of satisfactory quality, as described, or fit for purpose (as shown by the pictures I sent with the pole being covered in deep dents and scratches which would affect the grip of the pole and compromise my safety; with scratches and dents not being in the description of the item when I purchased it; and it hadn't been damaged in transit as the packaging had not been damaged).

I also contacted you via e-mail on the day I received the pole stating it was faulty, and had heard nothing back (in addition to my husband calling to leave a message on the same day informing you of the problem, myself calling 3 days later to be met with a someone telling me they can't deal with it over the phone and I'd be replied to via e-mail that before the end of business that day, and still hearing nothing by the end of the following working day) and knowing my rights and time limitations as per the DSR (seven days after receiving the goods) I had no choice but to go through PayPal for a refund due to your lack of response, and not wanting to risk being told I was unable to return it.

The above is also backed up on the MSE website here explaining Consumer Rights: <unable to post link as a new user> (of which I have also attached a screenshot).

So - as per my consumer rights shown above - I request that you refund my money in full, and arrange your courier at your own expense to pick the item up.

I look forward to hearing from you as soon as possible that the above is going ahead, because as soon as my money is returned I will need to buy a pole from another company immediately, as I have already lost valuable practice time and cannot afford to miss any more.

Regards,

V*******
(Contact numbers)

I then got a rather rude phonecall stating that the Item was EXEMPT from DSR due to it being a "custom" item (cut to fit the ceiling) and that (apparently; this is even more shocking) him and his colleagues agree that the pole is NOT faulty and they were happy to send it out like that! He then said that shipping is non-refundable, I'd have to pay the return shipping, AND a 10% 'restocking fee'!! As well as having to send the item back to them first so they can 'check it'. All the thing that DSR don't allow, which he claims the item is exempt from due to them custom-cutting it to fit the ceiling. When I tried quoting trading standards and it not being of satisfactory quality or fit for purpose, he said the item wasn't faulty, and I still have to be out of pocket basically.

I tried to get him to talk to my husband to make sure we fully understood, and he refused saying he isn't the customer so he has "no obligation" to talk to him.

I asked for what he said to be sent back in an e-mail, word for word. He said he had 'sought legal advice' and was sending me a letter via recorded delivery to 'prove it's received' stating everything that he's said and where they stand on the issue. He said if I 'change my mind' before I receive the letter I should let him know so I could return the item.

They then outright rejected the PayPal request for a refund.

I'm fuming! I could understand where they're coming from if I had just changed my mind as I didn't like the look of it, but it is NOT of satisfactory quality, and they are treating me like some sort of liar or criminal for wanting to return it, and would be leaving me significantly out of pocket. The shipping was initally £15, I haven't got a quote to return it (but would assume it was the same) and a 10% restocking fee would be approximately £30 on top!

What do I do?? I'm significantly out of pocket and feel like I'm being ganged up on and don't have a leg to stand on

<I tried to post their order policy but as a new user I can't post links to their website>

Thanks in advance xxxxx

MamaMoo_2

You are in the right. Personalised items are exempt unless they are faulty!
It is very scratched, and for that price I would be taking them to small claims court.
When you say it's "personalised" and cut to your ceiling, how is that? Did you choose from a list of available options, or did they take measurements and build it specifically for your ceiling?

Here's a link to the photos for those interested
http://www.flickr.com/photos/55200641@N07/

vixiepoo

Thank you! Where did you get the "Personalised items are exempt unless they are faulty!" info from, so I can send them a link? (although I'm a bit worried about what's in this recorded delivery letter they're sending me, as apparently they've 'sought legal advice' already?!)

I chose from a list of available options (mine was up to 240cm) and then gave them my exact ceiling height (230cm), and they said it was cut to fit, and there is 15cm of play in there apparently (as it can be tightened/loosened as it's a pressure-fit pole).

Thanks for posting the link to the photos, by the way

I am e-mailing Trading Standards now, and am waiting for their letter. What else shall I do?

unholyangel

vixiepoo wrote: »

Thank you! Where did you get the "Personalised items are exempt unless they are faulty!" info from, so I can send them a link? (although I'm a bit worried about what's in this recorded delivery letter they're sending me, as apparently they've 'sought legal advice' already?!)

I chose from a list of available options (mine was up to 240cm) and then gave them my exact ceiling height (230cm), and they said it was cut to fit, and there is 15cm of play in there apparently (as it can be tightened/loosened as it's a pressure-fit pole).

Thanks for posting the link to the photos, by the way

I am e-mailing Trading Standards now, and am waiting for their letter. What else shall I do?

Custom items are not exempt from DSRs, they are only exempt from the unconditional right to cancel.

They still have to conform to contract though (be of satisfactory quality, match any description etc). Under SoGA you have a reasonable time to examine the goods to assess whether they conform to contract. If they dont, you can reject them (SoGA non-acceptance) for a full refund.

Do you have an address for this "business"? Any contact details at all?

k3lvc

Was it only me that was expecting something more from poledancing pictures :rotfl:

vixiepoo

k3lvc wrote: »

Was it only me that was expecting something more from poledancing pictures :rotfl:

It's not 'that' type of pole dancing I'm afraid

MamaMoo_2

See here https://www.gov.uk/accepting-returns-and-giving-refunds

Dogger69

You are confusing two distinct laws here. You are rejecting the order under the Sale of Goods Act because the item is not of satisfactory quality. The seller needs to put you back to the position you were in before the contract was formed, which would mean he needs to cover all postage costs.

vixiepoo

unholyangel wrote: »

Custom items are not exempt from DSRs, they are only exempt from the unconditional right to cancel.

They still have to conform to contract though (be of satisfactory quality, match any description etc). Under SoGA you have a reasonable time to examine the goods to assess whether they conform to contract. If they dont, you can reject them (SoGA non-acceptance) for a full refund.

Do you have an address for this "business"? Any contact details at all?

Their warehouse address is on the Platinum Stages UK website, and the number is an "order line only". I do have a landline number in my received calls from this Alex person, too.

They are adamant they are right and I'm wrong, no matter what regulations or acts I quoted to them, and this "legal advice" and "letter" seem quite threatening.

I have escalated to a claim in PayPal. They say that if they can 'prove' it's custom cut then it will stop there and will go through Trading Standards.

unholyangel

vixiepoo wrote: »

Their warehouse address is on the Platinum Stages UK website, and the number is an "order line only". I do have a landline number in my received calls from this Alex person, too.

They are adamant they are right and I'm wrong, no matter what regulations or acts I quoted to them, and this "legal advice" and "letter" seem quite threatening.

I have escalated to a claim in PayPal. They say that if they can 'prove' it's custom cut then it will stop there and will go through Trading Standards.

It wont go through trading standards, they're never interested in single cases - they usually only act when there has been lots of complaints and they wouldnt act on your behalf, more in public interest. If paypal wont help you, send a LBA to their address (personally I'd also look up their registered address on companies house website and send a copy of the LBA to that address too - by recorded delivery).

If they dont play ball after the LBA, file against them in small claims.

vixiepoo

What's an LBA? *blush*