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

vixiepoo

But they claim it IS satisfactory and fit for purpose so I can't return it under SoGA, so it's my word against theirs? How do I get past that? If I send it back without the refund, they can just dispute that it is satisfactory and take all that money off the refund, and I don't have a leg to stand on then as I'd have sent it back.

Thank you so much for your replies (and patience) everyone by the way, if I haven't said it already!

(I have escalated to a claim in PayPal btw)

vixiepoo

And if I don't send it back and decide to do the LBA before taking them to the small claims court - shall I sent the LBA to the warehouse address or that accountants address? Or both?

vixiepoo

So, basically... I feel like I'm confusing myself now. Ah, to be a hysterical woman...

Shall I just sit tight and wait for their 'letter' to arrive, and wait to see how they respond to the PayPal claim?

Or, while still waiting for their letter and response to the PayPal claim, shall I e-mail them once more stating the SoGA instead of DSR, to see if they are willing to settle it that way with me rather than having to go through PayPal/futher action beyond that?

Thank you so much your your patience... Honestly!

MamaMoo_2

vixiepoo wrote: »

But they claim it IS satisfactory and fit for purpose so I can't return it under SoGA, so it's my word against theirs? How do I get past that? If I send it back without the refund, they can just dispute that it is satisfactory and take all that money off the refund, and I don't have a leg to stand on then as I'd have sent it back.

Thank you so much for your replies (and patience) everyone by the way, if I haven't said it already!

(I have escalated to a claim in PayPal btw)

Keep the item if it goes as far as you sending an LBA. Send the LBA giving them 14 days to respond, then escalate to the small claims court.
If you do send it back, your "leg to stand on" is your photos.

vixiepoo wrote: »

And if I don't send it back and decide to do the LBA before taking them to the small claims court - shall I sent the LBA to the warehouse address or that accountants address? Or both?

Send it to the address on the letter thy have sent you, and the address on their website (If different)

Slowhand

vixiepoo, I'm not being 'funny' or saying what you say isn't true. Are you perhaps the seller asking questions perhaps?. It's happened on MSE before so I do apologise if I offend you.

vixiepoo

Slowhand wrote: »

vixiepoo, I'm not being 'funny' or saying what you say isn't true. Are you perhaps the seller asking questions perhaps?. It's happened on MSE before so I do apologise if I offend you.

Hi, you haven't offended me- I had no idea that's happened before! I can assure you I'm not a seller asking the questions, I am just an angry and hysterical dissatisfied customer (who is off to pole practice in a bit actually, haha).

What I have done now (thank you for all your advice on SoGA and DSRs) is sent an email stating that the custom-cut pole ISN'T exempt from the DSRs (exemptions are stated in section 4 and section 6) as they stated, and that only my right to CANCEL is affected. But given that the product is faulty (which I used the SoGA description of "not of satisfactory quality" which a couple of you posted) that I am within my statutory rights to return it at their cost, with no extra fees added.

Here is a copy of the email I sent:

Hello Alex,

As per our telephone conversation earlier, whereby you rejected my request for a refund including original and return postage and not having to pay the 10% restocking fee (and whereby you said you'd send the information in an e-mail today as well as by a recorded delivery letter stating the 'legal advice' you received) due to the item being not as described or of satisfactory quality, and then rejecting my PayPal refund request immediately afterwards, I am now e-mailing you once again to try and settle this.

You stated that the item is exempt from Distance Selling Regulations as it's "custom-made". The information you've quoted me is, as shown below, incorrect. I think what you are referring to in the DSR's is the "Right to Cancel", of which you are correct in that I don't have a right to CANCEL my order as shown in Section 13 below. However, as shown in Section 4 and Section 6, it's not actually EXEMPT from the DSR's:

The Consumer Protection (Distance Selling) Regulations 2000:

Section 4: Contracts to which these Regulations apply
These Regulations apply, subject to regulation 6, to distance contracts other than excepted contracts.
Regulation 5: Excepted contracts
.—(1) The following are excepted contracts, namely any contract—
(a)for the sale or other disposition of an interest in land except for a rental agreement;
(b)for the construction of a building where the contract also provides for a sale or other disposition of an interest in land on which the building is constructed, except for a rental agreement;
(c)relating to financial services, a non-exhaustive list of which is contained in Schedule 2;
(d)concluded by means of an automated vending machine or automated commercial premises;
(e)concluded with a telecommunications operator through the use of a public pay-phone;
(f)concluded at an auction.

Section 6: Contracts to which only part of these Regulations apply
—(1) Regulations 7 to 20 shall not apply to a contract which is a “timeshare agreement” within the meaning of the Timeshare Act 1992
(1) and to which that Act applies.
(2) Regulations 7 to 19(1) shall not apply to—
(a)contracts for the supply of food, beverages or other goods intended for everyday consumption supplied to the consumer’s residence or to his workplace by regular roundsmen; or
(b)contracts for the provision of accommodation, transport, catering or leisure services, where the supplier undertakes, when the contract is concluded, to provide these services on a specific date or within a specific period.

Section 13:
(1) Unless the parties have agreed otherwise, the consumer will not have the right to cancel the contract by giving notice of cancellation pursuant to regulation 10 in respect of contracts—
... (c) for the supply of goods made to the consumer’s specifications or clearly personalised or which by reason of their nature cannot be returned or are liable to deteriorate or expire rapidly;


So. What this means is that having a "custom-cut" pole means that my right to CANCEL the contract might be forfeit, but it doesn't mean that it is exempt from the entire DSR, as you tried to state. I am not trying to cancel the contract, I am applying the DSR's to return product (that is not exempt from the DSRs) that is not of satisfactory quality and isn't as described without being at a financial deficit.

With the above in mind, I point you towards Section 7:

Information required prior to the conclusion of the contract
7.—(1) Subject to paragraph (4), in good time prior to the conclusion of the contract the supplier shall—
(a)provide to the consumer the following information—
(i)the identity of the supplier and, where the contract requires payment in advance, the supplier’s address;
(ii)a description of the main characteristics of the goods or services;
(iii)the price of the goods or services including all taxes;
(iv)delivery costs where appropriate;
(v)the arrangements for payment, delivery or performance;
(vi)the existence of a right of cancellation except in the cases referred to in regulation 13;
(vii)the cost of using the means of distance communication where it is calculated other than at the basic rate;
(viii)the period for which the offer or the price remains valid; and
(ix)where appropriate, the minimum duration of the contract, in the case of contracts for the supply of goods or services to be performed permanently or recurrently;

I was not informed of your policies and extra fees prior to purchasing, or even in an e-mail afterwards, as I received no confirmation of sale. When I e-mailed the following day to ask for confirmation, the reply I received did not state the above either. Even if I had been informed it would appear that your version of it is different, as your website states 7 days and you e-mailed me when I said I wanted to return it claiming I had "14 days".

In regards to the QUALITY of the pole, allow me to direct you to Section 14 of the Sale of Goods Act (1979)

(2)Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality.
(2A)For the purposes of this Act, goods are of satisfactory quality if they meet the standard that REASONABLE PERSON WOULD REGARD AS SATISFACTORY, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
(2B)For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods—
(a) fitness for all the purposes for which goods of the kind in question are commonly supplied,
(b) appearance and finish,
(c) freedom from minor defects,
(d) safety, and
(e) durability.

Taking the above regulations into account, I would not expect to pay upwards of £300 for a brass pole only for it to have the "appearance and finish" compromised by being covered in these deep scratches and dings, for it to have "minor defects" (the scratches and dents, although I class them as more than minor defects due to the sheer quantity and the depth of the scratches), and for the "durability" to be compromised, which it obviously is due to the damage on the finish. I have also used brass poles before, even well-used ones, and not one of them has been of such poor quality as the new one you sent me - showing that it is not in the condition of which it's "commonly supplied". This is backed up by the pictures on your website of the "high-quality" poles.

It is important to note that the DSRs work alongisde the SoGA, and one does nor supersede the other; so I am entitled to a satisfactory product, and it is within my statutory rights to return it if it does not fit the description. The description on your website states " ... This Extreme One Piece Super Pole™ comes in genuine high polished stainless steel and genuine high polished brass ..." and although your description matches the picture of a brass pole on your website, the quality does not match the description of the pole I received (of which I have supplied pictures again). I have also attached a picture of the (only) brass pole on your website, and there are no visible scratches or dents - only fingerprints. Your website does not state what you claimed on the phone to me today either; that "brass is a soft alloy metal and so there may be small dents". Even if I had known this before I had purchased the item, the pole does not match that description even with your addition taken into account.

I would also like to point out, in accordance with the Sale of Goods Act, I have not "accepted" the item either, so this cannot be used against my claim for a full refund:

Section 35: Acceptance.
(1) The buyer is deemed to have accepted the goods subject to subsection (2) below—
(a) when he intimates to the seller that he has accepted them, or
(b) when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.
(2) Where goods are delivered to the buyer, and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose—
(a) of ascertaining whether they are in conformity with the contract...
(6) The buyer is not by virtue of this section deemed to have accepted the goods merely because—
(a )he asks for, or agrees to, their repair by or under an arrangement with the seller...

So, in conclusion

In accordance with the DSR (taken from here) <link to OFT's "A Short Guide for Businesses on Distant Selling"> :

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.


As shown earlier, the DSR states that the "custom-cut" pole is exempt only from my right to CANCEL, not exempt from the DSR's altogether. Thus my right to return it without being charged for return postage or a "restocking fee", and receiving my original postage back too, still stands; as does not having to send the item to you first for you to "check it" before refunding, as per our phone conversation. As well as this, I am protected as a consumer under the Sale of Goods Act; whereby the pole is not of satisfactory quality as described above, when the descriptions under the SoGA are applied to the product. With this in mind, my statutory rights apply, and I am entitled to a full refund, including the cost of the original postage, you are obliged to cover the cost of the return postage (whether that be by arranging your own courier or sending me the money for one if I arrange it) as well as not being charged a restocking fee. Since you have a trusted courier (that I imagine will be cheaper than me finding and booking one given the size and weight of the item) it would probably be best for you to book it for collection yourself once the money has been refunded.

As I said at the beginning of this e-mail, I have sent this as I am hoping to settle this quickly and outside of the PayPal Resolution Centre; however should we have to, we are willing to escalate this further if necessary. Although I have escalated this to a PayPal claim, I am (as I'm sure you're aware) able to withdraw this at any time. I am hoping that the information I have supplied will enable me to withdraw the claim and have the refund processed in full and the pole collected as requested, and that this misunderstanding can be resolved.

Regards,

V*******

Phew. I feel knackered after writing that. Thank you everyone for alerting me to my rights and the right places to look. If they do try to dispute this still, I will take the advice of sending an LBA before taking them to the small claims court.

Thank you so much everyone. I feel like I've got a leg to stand on now. You've all been fantastic!:)

unholyangel

vixiepoo wrote: »

Hi, you haven't offended me- I had no idea that's happened before! I can assure you I'm not a seller asking the questions, I am just an angry and hysterical dissatisfied customer (who is off to pole practice in a bit actually, haha).

What I have done now (thank you for all your advice on SoGA and DSRs) is sent an email stating that the custom-cut pole ISN'T exempt from the DSRs (exemptions are stated in section 4 and section 6) as they stated, and that only my right to CANCEL is affected. But given that the product is faulty (which I used the SoGA description of "not of satisfactory quality" which a couple of you posted) that I am within my statutory rights to return it at their cost, with no extra fees added.

Here is a copy of the email I sent:




Phew. I feel knackered after writing that. Thank you everyone for alerting me to my rights and the right places to look. If they do try to dispute this still, I will take the advice of sending an LBA before taking them to the small claims court.

Thank you so much everyone. I feel like I've got a leg to stand on now. You've all been fantastic!:)

If you do have to write a LBA, keep it short and simple and straight to the point. You ordered x for £x on x date. Item arrived on x date and upon opening, you discovered it to be damaged. You are rejecting the goods for a full refund under the Sale of Goods Act as they do not conform to contract and that they should contact you to arrange the return of the damaged goods.

Give them a 14 day deadline to respond and tell them after this time you will be filing against them in the small claims. Title the letter "letter before action" and as I said before, send it recorded delivery.

Always try and keep complaints of any kind as simple as possible. Adding in excessive amounts of text just increases the chance that the person reading it wont pay attention and will miss important details because of the sheer length of the complaint.

Techhead_2

unholyangel wrote: »

If you do have to write a LBA, keep it short and simple and straight to the point. You ordered x for £x on x date. Item arrived on x date and upon opening, you discovered it to be damaged. You are rejecting the goods for a full refund under the Sale of Goods Act as they do not conform to contract and that they should contact you to arrange the return of the damaged goods.

Give them a 14 day deadline to respond and tell them after this time you will be filing against them in the small claims. Title the letter "letter before action" and as I said before, send it recorded delivery.

Always try and keep complaints of any kind as simple as possible. Adding in excessive amounts of text just increases the chance that the person reading it wont pay attention and will miss important details because of the sheer length of the complaint.

Exactly, the key point is the Sale of Goods Act. Adding confusion by quoting the DSR s will hinder progress.