Do not want to pay to upgrade my phone

NFH

oopsadaisydoddle wrote: »

I am saying it from a I've worked there and no exactly their stance on these things.

Their stance is irrelevant. The OP can take a correct legal stance and force them to comply.

oopsadaisydoddle wrote: »

You seem to think that OP is entitled to ask them for a repair without proving anything first. Orange have already said they won't repair it first as they are 'allowed' under the (not relevant Sales of Goods Act) to assume that as the phone is over 6 months old, the fault is not inherent.

Orange did not give this as the reason. Please stop making things up. See post 9; they cited the warranty.

The correct course of action is:

1. OP asks Orange for a repair under Section 11N.
2. Orange refuses, disputing that the goods have a manufacturing defect.
3. OP obtains an independent report confirming the likely cause of the defect.
4. OP writes a letter before claim to Orange requesting the repair of the goods and reimbursement of the cost of the independent report.
5. Orange complies, otherwise the OP issues a claim in the Small Claims track of the County Court via Money Claim Online.

If Orange doesn't do point 2 (and they have yet to do so), then it saves a lot of hassle.

oopsadaisydoddle

NFH wrote: »

Their stance is irrelevant. The OP can take a correct legal stance and force them to comply.


Orange did not give this as the reason. Please stop making things up. See post 9; they cited the warranty.

The correct course of action is:

1. OP asks Orange for a repair under Section 11N.
2. Orange refuses, disputing that the goods have a manufacturing defect.
3. OP obtains an independent report confirming the likely cause of the defect.
4. OP writes a letter before claim to Orange requesting the repair of the goods and reimbursement of the cost of the independent report.
5. Orange complies, otherwise the OP issues a claim in the Small Claims track of the County Court via Money Claim Online.

If Orange doesn't do point 2 (and they have yet to do so), then it saves a lot of hassle.

AGAIN, I don't disagree. Never once have I disagreed but if you see my last post, you will see why I believe what I believe.

oopsadaisydoddle

I think that we agree on most parts of this. The bit we seem to disagree on is point 2.

Like I said, i am only going by experience of Orange and their policies and systems and for that reason, I categorically believe that OP will, if they want to proceed with this, need to get that report. I would also be very happy to be proven wrong.

I'll leave it it at that for now. Good luck OP.

Buzby

SOGA, assuming the phone was purchased (not free as an inducement) only applied to the original handset - as this had been replaced, that door has closed. Further, the duration of any warranty is not reset for the replacement handset, but runs concurrently - so under the circumstance I would avoid any renewed contract commitmrnt or early upgrade.

Purchase a s/h phone you like that is SIM free, and marvel at the better value you get with a PAYG or contract SIM only deal.

The 5 points are totally irrelevant and the OP will be laughed at.

NFH

Buzby wrote: »

SOGA, assuming the phone was purchased (not free as an inducement) only applied to the original handset - as this had been replaced, that door has closed.

Not true. The OP can claim that the previous replacement was carried out under Section 11N; his statutory rights are unaffected. Even if a replacement is made by the manufacturer (which I don't believe is the case here), a consumer can argue that the manufacturer acted as the agent of the supplier. Again I've checked this previously with a consumer solicitor.

Buzby wrote: »

Purchase a s/h phone you like that is SIM free, and marvel at the better value you get with a PAYG or contract SIM only deal.

Good advice.

Herongull

AFAIK NFH's points are largely correct.

According to Which? In relation to contract phones:

"In addition to your mobile phone operator’s terms and conditions, you also have your statutory rights under the Supply of Goods and Services Act."
http://www.which.co.uk/consumer-rights/problem/my-mobile-phone-is-faulty-what-can-i-do/

According to the Trading Standards Institute,
"Any goods supplied under contracts governed by the above legislation must conform to the implied terms mentioned under the Sale of Goods Act 1979 (as amended)."
http://www.ukecc-services.net/SGSA.cfm

Thisismoney's suggestions include a broadly similar approach to NFH (although they quote the wrong Act:eek:) but they do make the point that "it would be incredibly difficult to prove that an issue with your handset is caused by a manufacturing defect, especially when placing a claim a number of years after purchase"

So they recommend an engineers report
"But after a product is six months old the onus is on the consumer to prove there was a problem when they received the goods, even if it’s taken time to come manifest itself. This might take the form of an engineer’s report - but you’d have to pay for it first."

Interestingly they also mention an alternative approach using an EU directive "EU directive 1999/44/EC states that: 'A two-year guarantee applies for the sale of all consumer goods everywhere in the EU."
http://www.thisismoney.co.uk/money/bills/article-2057937/Your-rights-mobile-phone-breaks-contract.html

NFH

Herongull wrote: »

Thisismoney's suggestions include a broadly similar approach to NFH (although they quote the wrong Act:eek:) but they do make the point that "it would be incredibly difficult to prove that an issue with your handset is caused by a manufacturing defect, especially when placing a claim a number of years after purchase"

So they recommend an engineers report
"But after a product is six months old the onus is on the consumer to prove there was a problem when they received the goods, even if it’s taken time to come manifest itself. This might take the form of an engineer’s report - but you’d have to pay for it first."

Actually you only need to prove that the goods were not durable at the time of supply (in breach of Section 18(3)(e) of the Supply of Goods and Services Act 1982). It is sufficient to demonstrate that a part has failed prematurely and that there are no signs of misuse to cause that premature failure. An engineer's report can simply state this.

Buzby

How can you expect the OP to assert Sec 11N? That is not within his gift. It would be up to the supplier to state this - and we know that isn't going to happen!

SOGA only applies to the first item supplied. If this is swapped, exchanged or replaced the's rights are extinguished, and there is no requirement for the vendor to do anything else. The only exception is if there is a provable generic fault across the range, and this would be the only grounds for complaint. As this does not apply, any talk of court action, at the OP's expense, remains a risk that I certainly would not wish to take due to the risk of losing another £100.

All this of course assumes that the phone was sold, not given away. If it was free, then such pursuit would fail at the first hurdle.

NFH

Buzby wrote: »

How can you expect the OP to assert Sec 11N? That is not within his gift.

What gift?

Buzby wrote: »

SOGA only applies to the first item supplied.

SOGA doesn't apply here; as we've already established (and you seem to have skipped some significant posts), this is governed by the Supply of Goods and Services Act 1982.

Buzby wrote: »

If this is swapped, exchanged or replaced the's rights are extinguished, and there is no requirement for the vendor to do anything else.

This would be the case if the consumer had obtained a repair or replacement from the manufacturer under a warranty without being instructed to do so by the supplier; nothing suggests this was the case here. If the supplier carries out the repair or replacement, or instructs the consumer to arrange this with a third party as the supplier's agent (which could include the manufacturer), then the consumer doesn't lose any rights. This is the same whether the supply of the goods is governed by the Supply of Goods and Services Act 1982 or the Sale of Goods Act 1979.

Buzby wrote: »

All this of course assumes that the phone was sold, not given away. If it was free, then such pursuit would fail at the first hurdle.

This is complete drivel; I would draw your attention to Schedule 1 Regulation 20 of the Consumer Protection from Unfair Trading Regulations 2008. The goods can be supplied with no up-front payment on condition of payment for a service, and their supply is consequently governed by the Supply of Goods and Services Act 1982. This is what happened here.

As you have done in many other threads, you post your mistaken beliefs as if they are hard fact. Please check your information with a legal professional before making further misleading and incorrect posts. I have checked with a consumer solicitor; you should do the same.

bellaboo86

As stated by someone earlier I could simply buy a phone and use it with my sim card. However as I said I use the phone for more than texts and calls. I'm going on holiday soon and want a phone with a decent camera to take pictures. This is likely to cost more the £81 it would cost me to upgrade early. I appreciate all the replies. I knew I would just have to lump it and pay the upgrade fee, I just wondered if a fellow moneysaver had found a way round it(through being cheeky or otherwise)
Anyway I rang up EE just now to upgrade and got talking to the sales advisor. He told me that my phone should have been repaired free of charge on Orange. I queried whether this applied to blackberries and he said it did. However he didn't ask how long I had had the phone.
He suggested I try another Orange store to which I argued I should get the same customer service in every store. I also told him that Orange had my phone for 6 weeks before they even rang me to say it would cost £125 to fix. The guy was really nice and said he is putting in a complaint against the store. I'm hoping this will lead to some upgrade discount.