DSR - restocking fee on 'partial returns'- flooringsupplies.co.uk

sh500

Hi all,

I had ordered 5 flooring accessory trim items - 3 of one kind and 2 of another from flooringsupplies online. Realised on the same day when the order had been delivered that I no longer needed the set of 2. Customer Service insisted I had to pay a 25% restocking fee, as it is a 'partial return' (within the 7day DSR). They claim it is made clear on their T&Cs. DSR states no restocking fee can be applied. They argued, it does apply on 'partial returns' but in my opinion, not clearly stated anywhere on the T&Cs.

Spoke to the Operations Director and he stuck to his view about it being on the flooringsupplies company's T&C section. He claims it comes under "left over parts after installation". I argued that I have not even installed the items and notification to the company of the return was made on the same day that the delivery was received.

I could not find anything that specifically mentions 'partial returns'.

How would fellow members on here suggest I proceed with this? Who is right?

Thanks.

bod1467

Have you used the other 3? If not return them ALL and tell them to FRO.

How was the order defined? Were these separate line items on the order? Were they charged as a single shipping charge, or charged per item?

As I understand things, for multiple items shipped under one charge, they do not have to refund the shipping charge. However they CAN NOT charge a restocking fee. At all. Period. Even for a partial return. But I accept that the wording of the DSRs is somewhat ambiguous, as it seems to refer to entire orders and not partial returns.

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.

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft913.pdf

unholyangel

Are they covered under exemptions from right to cancel/exceptions from DSRs?

If not, then the right to cancel and receive a full refund is unconditional (that is to say, that they cannot attach a condition to it of "has to be the full order).

Likewise, OFT view that each item comes under its own contract, so if you ordered 2 items and one is exempt from the right to cancel, you can still cancel the one that is not exempt.

Put your complaint in writing, title it letter before action, keep it simple and to the point. Ordered on x date, received on x date (if applicable), cancelled on x date (if it was before delivery, state that it was before delivery) under dsrs - which prohibit a restocking fee.

And tell them that unless they issue a full refund (can keep delivery charge though if it was per order and you're keeping the remaining items, if delivery charge was per item/you're returning the whole order then they need to refund), you will be filing against them in small claims.

Could also try drawing their attention to:
http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Particularly:

3.55 If you want the consumer to return the goods and to pay for that return, you must make it clear in the contract and as part of the required written information – see paragraph 3.10. 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.
3.56 If you did not include these details in the required written information then you cannot charge anything. See paragraph 3.10. You can never require consumers to pay the cost of returning substitute goods – see paragraph 3.1 for more information.

Or if they don't trust OFT (lol) perhaps the legislation itself will help them understand:

Recovery of sums paid by or on behalf of the consumer on cancellation, and return of security

14. (1) On the cancellation of a contract under regulation 10, the supplier shall reimburse any sum paid by or on behalf of the consumer under or in relation to the contract to the person by whom it was made free of any charge, less any charge made in accordance with paragraph (5).


(5) Subject to paragraphs (6) and (7), the supplier may make a charge, not exceeding the direct costs of recovering any goods supplied under the contract, where a term of the contract provides that the consumer must return any goods supplied if he cancels the contract under regulation 10 but the consumer does not comply with this provision or returns the goods at the expense of the supplier.
(6) Paragraph (5) shall not apply where—
(a)the consumer cancels in circumstances where he has the right to reject the goods under a term of the contract, including a term implied by virtue of any enactment, or
(b)the term requiring the consumer to return any goods supplied if he cancels the contract is an “unfair term” within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999(1).
(7) Paragraph (5) shall not apply to the cost of recovering any goods which were supplied as substitutes for the goods ordered by the consumer.

Pretty clear imo. They're only allowed to make a charge for the direct cost of returning the item if consumer has been notified they need to pay for its return and fail to do so or sends it at companies expense.

sh500

Thanks for the prompt replies.

The orders for the 'set of 3' and 'set of 2' items are on different lines of the order, each with the unit cost and total cost. The delivery cost is given as a total for both though.

None of the items have been used, still in their packaging. Yes I could give back all 5 and they will refund the full cost. But I just wanted to know how it worked with a 'partial refund'. As you say 'bod1467' - it could be arguable that it applies to 'full order refunds'.

I sent/received quite a few emails back and forth to the CS Manager, who then gave me details of the Operation Manager. The OM said, we have passed our T&Cs by a legal team and in that 7 year period no-one has challenged them and stuck by the restocking fee being applicable.

I know the returns cost regardless of how many items I return is out of my pocket. But the items are 2.1 meters in length, so I am probably going to have to pay a fair bit to return, hence only wanting to send back what I no longer need.

EDIT: I have already sent them the link to the DSR.

EDIT AGAIN: I know I am unable to link to sites but if someone could check the Returns Policy and let me know if I missed anything with regards to 'partial refunds and restocking fee'. Flooringsupplies on search engine

bod1467

As devil-woman says - the right to cancel is unconditional. That means NO CONDITIONS can be applied to a return. As such they CANNOT charge a restocking fee, even for partial returns.

The fact that these were separate line items reinforces your position. The worst they can do is retain (not refund) the original shipping costs for a partial return.

What sort of value are we talking about? (For the items you wish to return).

sh500

A total value of £44 for the two items that I wish to have refunded (inc VAT but not the original delivery cost).

The monetary value here is nominal to me; it is now purely on principle and they should not be able to get away with.

unholyangel

sh500 wrote: »

EDIT: I have already sent them the link to the DSR.

EDIT AGAIN: I know I am unable to link to sites but if someone could check the Returns Policy and let me know if I missed anything with regards to 'partial refunds and restocking fee'. Flooringsupplies on search engine

I'll check t&c's in a second (had hit reply just as you edited so didn't see that part before hitting reply).

As for linky to DSRs......so which part are they struggling with? The law is quite clear. By law they are only allowed to make a deduction for reasons covered in paragraph 5. Paragraph 5 relates to direct cost of returning and makes no mention of a restocking fee.

As for their website T&Cs, still haven't looked yet (just about to) but wanted you to know that website T&C's are not durable - so these do not count as notifying you of the written information they are required to provide to you under DSRs.

sh500

They claim that this part of the T&Cs means I have to pay the restocking fee:

"We are also happy to accept back any flooring or accessories you have left over after completing your installation for a small 25% restocking fee (restrictions may apply)."

I argued that no-where in that statement does it specifically talk about partial refunds and restocking fees (putting the law aside for a bit). They argue that my 'partial return' comes under the "left over after completing your installation" therefore the restocking fee applies (!)

EDIT (sorry): The T&Cs were also given as part of the order too.

unholyangel

They don't even mention that you have rights under DSRs in their T&C's.

6.1 Schedule 1 to the CPRs lists 31 commercial practices which are considered unfair in all circumstances and which are prohibited.8 There is no need to consider the likely effect on consumers. The text that follows lists these banned practices and provides some illustrative examples in italicised text. Breaches of these provisions may also breach the other prohibitions in the CPRs.

(10) Presenting rights given to consumers in law as a distinctive feature of the trader’s offer.
A stationer sells pens. He advertises on the following basis: ‘Pens for sale. If they don’t work I’ll give you your money back or replace them. You won’t find this offer elsewhere’. If the pen is faulty at the time of purchase the consumer would be entitled to a refund, repair or replacement under contract law. The trader’s emphasis on the unique nature of his offer to refund or replace would breach the CPRs.

Then we have this from OFT:

18.6.10 Terms in 'distance selling' contracts which seek to exclude or restrict these rights, or which could have the practical effect of depriving consumers of the protection they are intended to confer, are likely to be unfair. Indeed, the legislation expressly states that contract terms inconsistent with it will be void. However, this provision does not, of course, make such terms acceptable, since they are likely to be accepted at face value by consumers and thus to mislead them: see above paragraph 1.4).

As for no one challenging their terms for 7 years.....prior to it being challenged, we (humans) used to believe the world was flat. As a result of it being challenged, we now know differently.

Unchallenged is not the same as correct/factual/truthful.

unholyangel

sh500 wrote: »

They claim that this part of the T&Cs means I have to pay the restocking fee:

"We are also happy to accept back any flooring or accessories you have left over after completing your installation for a small 25% restocking fee (restrictions may apply)."

I argued that no-where in that statement does it specifically talk about partial refunds and restocking fees (putting the law aside for a bit). They argue that my 'partial return' comes under the "left over after completing your installation" therefore the restocking fee applies (!)

EDIT (sorry): The T&Cs were also given as part of the order too.

Well the whole point about the law is that you can't put it aside. You cannot contract out of your statutory rights. Any term attempting to (or that could have the effect of doing so) remove or restrict or even mislead consumers about their rights would be at risk of being an unfair term - and unfair terms cannot be enforced.

Attempting to mislead consumers about their rights can amount to a criminal offence.

What about asking them to check with their local TS?

FOREVER21

unholyangel wrote: »

They don't even mention that you have rights under DSRs in their T&C's.



Then we have this from OFT:




As for no one challenging their terms for 7 years.....prior to it being challenged, we (humans) used to believe the world was flat. As a result of it being challenged, we now know differently.

Unchallenged is not the same as correct/factual/truthful.

Completely agree especially with your final sentence. how often when taking things back have we heard " we'll no one else has complained"