Losing the right to cancel an order within the statutory period

FrustratedFather

Hello. Just hoping someone can help on the following issue. My over excited 17 year old went online to book his first driving test but was then shocked to see he had been charged £95 for the privilege with no actual test booked. On looking I can see he has gone into practicaltest.co.uk and on reading their t&c's they have the following point.....

"You may cancel an order within a statutory period of 14 working days, beginning from the time of email confirmation of your order from RALSL. However, with your express permission we will commence the delivery of an order immediately and before this statutory period ends. Therefore the services will have deemed to have been provided and you will lose the right to cancel your order. We shall expressly request your permission to do so at the time you submit your order"

I then went into start completing a new order to see what options my son would have had, and sure enough he would have had to have clicked a box that said

"I acknowledge that I will lose the right to cancel the order within the statutory period of 14 working days as we will commence the delivery of an order immediately and before this statutory period ends. Therefore the services will have deemed to have been provided and you will lose the right to cancel your order"

I did email them straight after he placed the order on Friday evening and also called yesterday to cancel as he had received no notification that they had done anything or commenced the order but they said they had started processing the order just 5 minutes after receiving it. Even now his account status on the site says

"Your payment has been processed successfully. We will shortly be processing your application."

My question is ....

Is this legally binding in the UK or should he be allowed to cancel within 14 days and receive a refund?

Any advice gratefully received

Paul

frugal_mike

The relevant regulation comes from the Consumer Contracts Regulations 2013. In reference to cancellation of service contracts, it states the following:

36.!!(1)!!The trader must not begin the supply of a service before the end of the cancellation period provided for in regulation 30(1) unless the consumer—

(a)has made an express request, and
(b)in the case of an off-premises contract, has made the request on a durable medium.
(2)!In the case of a service other than supply of water, gas, electricity or district heating, the consumer ceases to have the right to cancel a service contract under regulation 29(1) if the service has been fully performed, and performance of the service began—

(a)after a request by the consumer in accordance with paragraph (1), and
(b)with the acknowledgement that the consumer would lose that right once the contract had been fully performed by the trader.
(3)!Paragraphs (4) to (6) apply where a contract is cancelled under regulation 29(1) and a service has been supplied in the cancellation period.

(4)!Where the service is supplied in response to a request in accordance with paragraph (1), the consumer must (subject to paragraph (6)) pay to the trader an amount—

(a)for the supply of the service for the period for which it is supplied, ending with the time when the trader is informed of the consumer’s decision to cancel the contract, in accordance with regulation 32(2), and
(b)which is in proportion to what has been supplied, in comparison with the full coverage of the contract.
(5)!The amount is to be calculated—

(a)on the basis of the total price agreed in the contract, or
(b)if the total price is excessive, on the basis of the market value of the service that has been supplied, calculated by comparing prices for equivalent services supplied by other traders.
(6)!The consumer bears no cost for supply of the service, in full or in part, in the cancellation period, if—

(a)the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, or the information on payment of that cost required by paragraph (n) of that Schedule, in accordance with Part 2, or
(b)the service is not supplied in response to a request in accordance with paragraph (1).

So, the consumer only loses the right to cancel once the service has been fully performed. Clearly that is not the case here; little or no service has been performed depending on whether processing the order is considered part of the service.

If the trader provided the required information on the right to cancel (and in the right form) then they can charge an amount appropriate to the service provided before cancellation.

unholyangel

Brains foggy today so bear with me.

The CCR's state:

Supply of service in cancellation period
36.—(1) The trader must not begin the supply of a service before the end of the cancellation
period provided for in regulation 30(1) unless the consumer—
(a) has made an express request, and
(b) in the case of an off-premises contract, has made the request on a durable medium.

They also say this:

(2) In the case of a service other than supply of water, gas, electricity or district heating, the
consumer ceases to have the right to cancel a service contract under regulation 29(1) if the service
has been fully performed, and performance of the service began—
(a) after a request by the consumer in accordance with paragraph (1), and
(b) with the acknowledgement that the consumer would lose that right once the contract had
been fully performed by the trader.
(3) Paragraphs (4) to (6) apply where a contract is cancelled under regulation 29(1) and a service
has been supplied in the cancellation period.
(4) Where the service is supplied in response to a request in accordance with paragraph (1), the
consumer must (subject to paragraph (6)) pay to the trader an amount—
(a) for the supply of the service for the period for which it is supplied, ending with the time
when the trader is informed of the consumer’s decision to cancel the contract, in
accordance with regulation 32(2), and
(b) which is in proportion to what has been supplied, in comparison with the full coverage of
the contract.
(5) The amount is to be calculated—
(a) on the basis of the total price agreed in the contract, or
(b) if the total price is excessive, on the basis of the market value of the service that has been
supplied, calculated by comparing prices for equivalent services supplied by other traders.
(6) The consumer bears no cost for supply of the service, in full or in part, in the cancellation
period, if—
(a) the trader has failed to provide the consumer with the information on the right to cancel
required by paragraph (l) of Schedule 2, or the information on payment of that cost
required by paragraph (n) of that Schedule, in accordance with Part 2, or
(b) the service is not supplied in response to a request in accordance with paragraph (1).

And 29(1) says this:

29.—(1) The consumer may cancel a distance or off-premises contract at any time in the
cancellation period without giving any reason, and without incurring any liability except under these
provisions—
(a) regulation 34(3) (where enhanced delivery chosen by consumer);
(b) regulation 34(9) (where value of goods diminished by consumer handling);
(c) regulation 35(5) (where goods returned by consumer);
(d) regulation 36(4) (where consumer requests early supply of service).

From what the regulations say, your son still has the right to cancel as he did not request that the service begin early in a durable medium. Email is durable but websites are not.

And although I do need to research the new regs more (i've been lazy tbh, only been reading the parts required for threads on here!), it also sounds as if you dont completely lose the right to cancel until the service has been fully performed (although if you have requested they start early by durable means, you are liable for the services already provided).

In short, it doesnt sound as if the company is complying with new laws that have been in effect since june 13th.

frugal_mike

I don't think they need the consumer to request the service starts in a durable medium. The wording only mentions this is needed for 'off-site' contracts. There are a set of definitions for what an off-site contract covers, all of which require a face-to-face meeting between the consumer and trader at a place that is not the traders fixed place of business.

The OP's son entered into a distance contract and it doesn't mention that these require any form of agreement that the service can start immediately.

I fully agree that they can only refuse the refund if the service is complete though, which it clearly isn't here.

unholyangel

frugal_mike wrote: »

I don't think they need the consumer to request the service starts in a durable medium. The wording only mentions this is needed for 'off-site' contracts. There are a set of definitions for what an off-site contract covers, all of which require a face-to-face meeting between the consumer and trader at a place that is not the traders fixed place of business.

The OP's son entered into a distance contract and it doesn't mention that these require any form of agreement that the service can start immediately.

I fully agree that they can only refuse the refund if the service is complete though, which it clearly isn't here.

Your first points quite right, didnt notice it said off-premises for part 2. However the part in bold, if you read the first part of the first paragraph I quoted, it doesnt make any such distinction.

The consumer must have expressly requested that the service begin early.

Arguable imo that the customer did not make the request, the supplier did.

You might think its something silly to argue over, but the law can be that particular (take ECJ ruling over DSRs....as they said the information had to be received by the consumer rather than provided, it meant the information had to be received by the customer with no positive action on their part - such as clicking on a link).

unholyangel

Just found this in the guidance:

I offer will-writing services online. I agreed to start work for a customer who
then changed their mind 10 days later. I’d already started on the work. Can
they do that?
11. Yes they can. However, provided you obtained their express consent to
starting the service in the cancellation period, and informed them that they
would have to pay for any work done in that period, you can charge for work
done until the point of cancellation

Quite clear imo they can still cancel - but if they obtained express consent then they can charge for work done up until they have cancelled. However, in OP's case they probably havent advised that any work done up until cancellation can be charged for (seeing as they're saying you cant cancel once work has commenced), so they wouldnt be able to charge for it.


OP perhaps worthwhile posting that paragraph to them and providing them with this link:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/310044/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

frugal_mike

unholyangel wrote: »

Your first points quite right, didnt notice it said off-premises for part 2. However the part in bold, if you read the first part of the first paragraph I quoted, it doesnt make any such distinction.

The consumer must have expressly requested that the service begin early.

Arguable imo that the customer did not make the request, the supplier did.

You might think its something silly to argue over, but the law can be that particular (take ECJ ruling over DSRs....as they said the information had to be received by the consumer rather than provided, it meant the information had to be received by the customer with no positive action on their part - such as clicking on a link).

Quite right, what I actually meant to say was distance contracts don't require agreement by durable means, not that they don't require any agreement.

As to whether ticking the box counts as an express request, I have doubts over that too.

FrustratedFather

Thank you both so much for taking the time to give detailed advice. I will email them now quoting various points you raise and if necessary, give them a call tomorrow, armed with the new knowledge.

Regards

Paul

unholyangel

Let us know if you need any further help/how you get on.

Good luck!