Currys Laptop return refusal after notification of cancellation under CCRs

Bond76

At wits end here... Hopefully someone can advise on next steps...

Here are the facts:

1. Purchased (and paid) for laptop online on 18th August via Currys website.
2. Picked up laptop on evening of 19th from local store.
3. Opened on evening of 20th. Had a fiddle to check suitability - didn't like it. It was heavier and bulkier than I expected it would be and the screen had some viewing angle issues. Packed it all back up in its box.
4. Went on holiday on 22nd - forgot about the laptop.
5. Called Currys Customer Helpline on Tues 25th to arrange return (as I seem to remember something about a 7 day cooling off period so thought I'd better do something about it!)
6. Was told that I couldn't return it as I'd used it.
7. Researched stuff on the internet and found out about the Consumer Contract Regulations 2013 (14?) (CCRs).
8. Gauged that their Ts&Cs were unfair based on my research - In them they refer to the CCRs directly and that I can try it as I would in a shop, but then in another sentence says that returned items "must not have been used, installed or had any data input on them." - Umm... hello? This is exactly what I would do in their store if they had them on display!
9. Sent them a notification of cancellation of contract via customer services email on 27th August after reading info on MSE and Citizens Advice websites.
10. Got a reply on 28th (after a heated phone conversation) saying that because I'd "used" the item I could not return it.
11. Argued my case in 3 further emails and got replies from 3 different agents saying the same canned answer.
12. Now at home on 29th Auguust, I looked further into consumer rights - found that I was covered under Consumer Credit Act as I purchased on a Credit Card.
13. Logged a request with Citizens advice (awaiting a response).
14. Took the plunge and called my Credit card company today and explained the situation. They say they can't do a charge-back because the retailer has not breached their Ts&Cs (fair enough), but they also said that there would be no point claiming under section 75 as I still have the laptop and its not faulty! They even spouted Currys terms and conditions as the reason for this - the cheek!
15. Have now submitted a complaint through resolver.co.uk - pointless?

I read on Citizens Advice and various other places that they could accept it back and then partially refund me based on excessive handling (not that I have!) but they haven't even offered me this avenue. It even covers this is their Ts&Cs!!! :mad:

Am I wrong in thinking I should be able to return this under CCRs? From my understanding of the regulations, even if its in a thousand pieces through my own doing they still have to accept a return after the contract is cancelled within the 14 day cooling off period (and in that case would assess a refund amount under excessive handling...)

Is my CC company fobbing me off?

Should I wait for Citizens Advice to respond or don't you think they will be much help?

I'm currently stuck with a £1500 laptop that I don't want!

Help!

unholyangel

No you're not wrong.

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).


34.—(1) The trader must reimburse all payments, other than payments for delivery, received from the consumer, subject to paragraph (10).

(9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

(10) An amount that may be recovered under paragraph (9)—

(a)may be deducted from the amount to be reimbursed under paragraph (1);

(b)otherwise, must be paid by the consumer to the trader.

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

Makes it quite clear you can still cancel - although if your handling goes beyond what was reasonable/necessary and it has diminished the value as a result, they may be able to deduct that from the refund.

This guidance may be of use to you:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/429300/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

14. You have a right to deduct monies from refunds where goods show signs
of unreasonable use leading to diminished value. You cannot usually deduct
for removal of packaging to inspect the item, but you can deduct for damage
or wear and tear where the item has not just been checked but used.

And also:

A customer has changed their mind and returned a toaster bought online. The
box is intact but there are crumbs in the toaster. Can I deduct any money from
the refund?
17. The consumer should be permitted to inspect the toaster in the same way
that they might in a shop to ensure it is as described. Money should not
therefore be deducted if it is reasonable for the consumer to remove the
packaging to inspect the item. However, using the toaster goes beyond what
is needed to ascertain the nature of the toaster, and is not something the
consumer would do in a shop. Money can therefore be deducted to reflect
diminished value. The consumer need not ‘test’ the toaster since, if the toaster
proves to be faulty the consumer has rights under other legislation.

Bond76

unholyangel - Thanks for the quick reply. If I keep getting the same canned answer from customer services - what would be my recourse? Who would I escalate it to?

A £400 laptop I might take it on the nose, but £1500? Nope, not going to lie down on this one...

bris

(b)regulation 34(9) (where value of goods diminished by consumer handling);


This is the get out they are using. Right or wrong is not for us to say but if the laptop has now been used it's second hand and has significantly diminished in value.


Who wants to buy an unsealed laptop that has been personalised by another person, even a hard reset doesn't hide the use it's had.


They can even argue that as the software has been used then it is non returnable as per the regulations.


So far they are getting away with it, maybe the OP will challenge it in court and see who's right.


The old DSR were replaced with this in mind, gone are the days when you could return for any reason with no penalty.

Marktheshark

Until you make a representation in writing they can fob you off.
Post stamp, certificate of postage, LBA in same envelope to save a stamp

Bond76

@bris - I understand what you've said, but by point blankly refusing to accept the goods back under CCRs aren't they breaking the law?

@Marktheshark - I'll await Citizen's Advise reply first, but I can just see that I will have to send representations via post - and thanks for the further reading material for Letter Before Action!

unholyangel

Bond76 wrote: »

unholyangel - Thanks for the quick reply. If I keep getting the same canned answer from customer services - what would be my recourse? Who would I escalate it to?

A £400 laptop I might take it on the nose, but £1500? Nope, not going to lie down on this one...

You have quite a few options.

1) Email them informally with the above (that while they may be able to reduce the refund if your handling has been unreasonable and has diminished the value - they cannot refuse your right to cancel) and also that given misleading consumers about their rights can amount to a criminal offence, they may wish to check their position with a legal advisor before responding. Keep it simple and to the point though. I tend to find this usually works in all but the most stubborn of retailers.

2) Send them a letter before action detailing the above.

3) Appeal to your card provider - the CCRs form part of the T&C's and override any T&C's they may have that conflict with the regulations. So yes, they are in breach of the T&C's of the contract. If your card provider refuses or still rejects your claim, you can also escalate it to the financial ombudsman.

Tbh there isnt any uncertainty about this imo. The CCRs are not entirely new laws. They were brought in to clarify existing law. And one thing specifically mentioned in the in the reasoning for it was making it clear to retailers that unless expressly removed by the regulations, the consumer has the unconditional right to cancel and as a trade off, retailers were given the ability to make a reduction to the refund received - where as under the old regs, they were supposed to refund in full and then take action against the customer for breach of care.

They may try and argue it was software but that exemption relates specifically to contracts for the provision of cds, dvds, games and programs where they are sealed and the customer unseals them. This was again to clarify existing legislation - to make it clear to retailers as previously they had tried to use that provision of the DSRs to say that recordings/software were non-returnable in their entirety. This exemption is to do with copyright rather than any diminished value or reselling issues.

Bond76

Thank you again unholyangel - you have put my mind at ease.

isplumm

Bond76 wrote: »

Thank you again unholyangel - you have put my mind at ease.

Bit confused here - this isn't an off site purchase - you bought it online - but picked it up at the store - so had the opportunity to inspect? So the above clauses don't apply??

Mark

fozmcfc

It would be interesting to know the outcome, if you do pursue it, as you may find a judge will agree with you.

What Bris says is right, when it comes to something like a laptop, it's very tricky.

Not all items can be returned under the different regulations. Items such as jewellery unless faulty can't be returned for instance, due to hygiene reasons.

In this case, if any software is activated, then it becomes personalised to the user. Personalised items, can not also normally be returned.

If you have opened the box, picked it up and thought, nope too thick, too heavy etc, then I think that is reasonable inspection, but after that it is questionable.

After the machine is on and windows registered, then if you were to find for instance, that they had put 8gb of ram on the description and it only had 4gb, then you could look at returning it as mis-described.

zenmaster

Bond76 wrote: »

At wits end here... Hopefully someone can advise on next steps...

Here are the facts:

1. Purchased (and paid) for laptop online on 18th August via Currys website.
2. Picked up laptop on evening of 19th from local store.

Click and collect?

If so, this is not a "distance contract" as defined in the CCR therefore the cancellation rights do not apply.