The Retail Ombudsman - are they acting unlawfully?

wealdroam

The Retail Ombudsman(TRO) has been operating for over a year now but still they are suggesting that consumers can "agree to be bound" to TRO's decision.

In January 2015 I wrote on another thread:

wealdroam wrote: »

Dear TRO, can please explain in greater detail how your latest statement actually works?

For clarification, I mean this statement:

If the consumer doesn’t win can they go to court afterwards?

If the consumer agrees to be bound by the decision of the caseworker or ombudsman, they cannot then go to court at a later date.

However, if they disagree with the decision of the caseworker or ombudsman, they can either appeal it and then take it to court if the appeal fails. Or by-pass the appeal process and go straight to court.

I am particularly interested in the sentence "If the consumer agrees to be bound by the decision of the caseworker or ombudsman, they cannot then go to court at a later date".

Are you really saying that it is perfectly ok for you, TRO, to get a consumer to sign away their statutory rights?

That practice is specifically outlawed by The Unfair Terms in Consumer Contracts Regulations 1999, where Schedule 2 of that legislation lists terms that may be considered unfair.

Paragraph 1(q) therein states:

(q) excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

I look forward to your next update to your press release.

Today, one year on, this TRO webpage states:

WHAT IF I’M UNHAPPY WITH THE OUTCOME?

Consumers are not bound by our recommendations or determination unless you agree to be bound. If you do not agree to be bound and you are unhappy with the outcome, you can still take your complaint elsewhere (such as to court).

Is it really true that consumers can agree to their rights being restricted in this way?

OK, the wording has changed slightly, but the issue remains.

The law has also changed. Now we have The Consumer Rights Act 2015 instead of The Unfair Terms in Consumer Contracts Regulations 1999.

The Consumer Rights Act also has a Schedule 2, entitled Consumer contract terms which may be regarded as unfair and we can see that item 20 on that list is:

20 A term which has the object or effect of excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, in particular by—
(a) requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions,

(b) unduly restricting the evidence available to the consumer, or

(c) imposing on the consumer a burden of proof which, according to the applicable law, should lie with another party to the contract.

Have I mis-understood this, or has The Retail Ombudsman overstepped the mark by apparently allowing consumers to sign away their statutory rights?

System

I've never liked the way this operation presented itself either. That said if someone does make a complaint via this lot, it costs them nothing. In the absence of any consideration for the service is there even a "consumer contract?" If not, neither of the acts you've mentioned would appear to apply.