Section 75 claim issue

Surfer

As the retailer was ignoring section 24 of the Consumer Rights Act 2015 by offering a replacement and not a refund for a folding mobility scooter that had gone faulty twice within 6 months, a section 75 was sent to Barclay Card on 18th March along with proof of the earlier repair.
In the meantime the trader collected the faulty scooter and left a loan scooter that needs to be dismantled to load into the vehicle. The trader still has the scooter although they did try to return it after repairing it for a second time after being advised of the rejection. They were asked to collect the loan scooter, but never made an appearance.
On 3rd May I contacted BC again by phone to get an update and was told that I needed to prove that the contract between the trader and myself had been broken or that there had been misrepresentation. I told the person on the phone that I had already supplied all the proof. BC then sent a letter asking me to get an independent assessment on the scooter however the trader still has the scooter.
On 15th May I contacted BC again only to be told what i was told on the 3rd. I told them that as 8 weeks had passed since raising the initial request I would be contacting the Financial Ombudsman. I was then told that as I had only raised the complaint on the 3rd May I had to wait another 6 weeks before I could approach the Ombudsman.
The trader is clearly ignoring their responsibilities under the CRA 2015. The trader by offering a replacement has clearly indicated that there is or was an issue with the scooter however they should also be offering a refund under section 24 of the CRA. The trader was sent two registered letters the first in March outlining the issues with the scooter and the second just over a week ago giving them 7 days to respond and advising them that under S24 of CRA 2015 they are obliged to refund the consumer. No reply as yet.
I am fighting the CC company and also the trader and think they are trying to wear me down however I am going to persevere as it is time companies woke up to their responsibilities.
The big issue here is that I bought the folding scooter for overseas travel and paid a premium price and now we are away next week minus a scooter which is going to have an impact on our enjoyment on this holiday which has take us a long time to save up for!

StopIt

You say that you're using your right to cancel, which is correct as they get one chance to repair then you get this right under the CRA.


However, while you say that it has failed twice within 6 months, did you use your right to cancel within that period.


See these following bits from the CRA relevant here:


(8) If the consumer exercises the final right to reject, any refund to the consumer


may be reduced by a deduction for use, to take account of the use the consumer


has had of the goods in the period since they were delivered, but this is subject


to subsections (9) and (10).


(11) In subsection (10) the first 6 months means 6 months beginning with the first


day after these have all happened—


(a) ownership or (in the case of a contract for the hire of goods, a hirepurchase


agreement or a conditional sales contract) possession of the


goods has been transferred to the consumer,


(b) the goods have been delivered,


If you told them that you didn't want the scooter before the 6 month period you're covered, if not they can make deductions.


Also:


A consumer who requires or agrees to the repair of goods cannot require the


trader to replace them, or exercise the short-term right to reject, without giving


the trader a reasonable time to repair them (unless giving the trader that time


would cause significant inconvenience to the consumer).


Did you tell them the 2nd time that you wanted a refund, or did you ask for a repair then change your mind? If the latter you're not actually allowed to do so unless if the above conditions are met.

Surfer

The goods failed within 10 days of purchase and I gave them a chance to repair. They then failed again with the identical faults 3 months later the same faults occurred within the first 6 months as the scooter was purchased in Nov 2016. As it was getting onto winter I used it once to go to a park nearby to test it so less than 1/2 mile there and back and again beginning of Dec 2016 to go into the town centre so altogether the scooter has done less than 2 miles. The main issue is that the lithium battery does not seem to hold the charge. Initially I would charge the scooter, unplug it for 3 or 4 days and then even though it was not being used I had to re-charge it. When they came for the first repair, I was told that I could leave it on charge 24/7 365 days which is what I did and the new battery still would not hold the charge even though it was on charge constantly.
I have since found out that lithium batteries have a life span of between 3 - 5 years depending on how often it is charged so having to charge it every 3- 4 days severely reduces the life span something I was not told when purchasing the scooter. If you are not told, is this misrepresentation?
The other issue was that the ignition barrel worked loose was tightened the first time and then 3 months later was loose again even though the scooter had hardly been used.
The second time it went faulty I sent a letter stating that under CRA 2015 I wanted a refund as was not interested in a repair. Another letter was sent last week specifically mentioning section 24 of the CRA and once again asking for a refund and giving them 7 days to respond.
It is my understanding that it may be a criminal act not to comply with S24 of the CRA2015? Trader has not phoned, written or communicated with me except to send a rep on the road phoned and told me that they were going to deliver the rejected scooter 2 days after I sent the trader the letter last week. I refused the delivery as I had rejected the scooter, but asked them to collect the loan scooter, however they never arrived. I had been asking for them to collect the loan scooter since beginning of May, but got no response.

eddddy

Section 75 (and breach of contract in general) allows you to claim for consequential losses - so, in theory, you could rent a mobility scooter for your holiday, for example, and claim back the cost.

I guess it depends how confident you are of winning your claim. If you lose, you will be out of pocket for the rental cost as well.

Surfer

eddddy wrote: »

Section 75 (and breach of contract in general) allows you to claim for consequential losses - so, in theory, you could rent a mobility scooter for your holiday, for example, and claim back the cost.

I guess it depends how confident you are of winning your claim. If you lose, you will be out of pocket for the rental cost as well.

Thanks. I did look at renting a scooter but at over £100 a week I thought I would give it a miss as can buy a brand new Traveller for about £450. I feel that I have a good chance of winning if I use current legislation however in the meantime I am £2295 out of pocket until the issue is resolved!
BTW just been informed by email that FOS are now looking into the section 75 issue in addition to Trading Standards as it seems that BC are not complying with S75 requirements and are moving the goal posts to suit their agenda.
I have no objection to the assessment of the scooter, but what will it prove if the scooter has been repaired by the trader despite me rejecting the scooter in early March and the trader collecting the scooter at end of March.

StopIt

First, stop reading mythology about batteries and thinking that's an out, because it isn't.


These things are designed to work for 3-5 years based on normal usage, including charging. Once fully charged, leaving it on charge it'll trip over and only charge again if the charge falls below a certain level, something Lithium batteries rarely do. They also do not have memory issues that shorten lifespan like older Ni-CD or Ni-Mh ones.


If the battery was faulty from the start however it would need replacement.


Also, if you told them you didn't want the item repaired, why do you have a loan scooter from them? At the point of cancellation, your relationship with them should cease, and you should be actioned a refund. Why would they give you a loan item, and why would you take it, if you wanted a refund?


Again, did you send it in for a repair, then change your mind? Also, breaches of the CRA is a civil matter, and can be taken to court for redress but is not a criminal matter.

Surfer

The battery was replaced with a new off the shelf battery within 10 days of buying the scooter. The second battery failed again 3 months later despite being on charge 24/7 for the 3 months. Why does the battery need to be charged every 3 - 4 days as per their instructions? I suspect low quality lithium battery made in China. Numerous websites state that lithium batteries have a limited shelf life and frequent recharging shortens their life.
Either way I should have been informed that the more the battery is charged the shorter the life span as a replacement battery costs over £300 which is more than 10% the cost of the scooter! Would you buy an item if you were told that every 2 -3 years you would need to buy a new battery at £300 a time? The battery in my previous scooter was still okay after 5 years when I traded it in for this scooter however it was a wet cell battery. One as a layman would expect a battery to last at least 5 years and even if it went flat, to be able to re-charge it. If a lithium battery goes flat it si finished and cannot be recharged.
However the ignition barrel becoming loose twice within 3 months is the other issue and is definitely a fault. I do not want to be spending money getting a scooter repaired once the warranty has expired.
BTW their website clearly states that the scooter in question is manufactured by the trader however it appears that the trader does not have a manufacturing factory in the UK so maybe the scooter is manufactured overseas in the Far East? Not sure if this has any bearing on the claim.

StopIt

No it does not and you still haven't answered my question.


When you handed the item back the 2nd time, why did you accept a loan item, thus continuing the contracted relationship with the company when you said you wanted a refund. No company will give a loan item if you don't want it any more.


So, did you send it in for repair then change your mind? This will have a material impact on an S75 claim.


I don't care either way, but if you can't even be honest on an anonymous forum, why do you think the CC company isn't just paying out without investigation?


Finally, again, Lithium batteries do not work like that. You cannot charge them more than full, they should never be fully discharged as it'll stop powering the scooter well before that happens. A full discharge of a Lithium battery would take far more than a few days of non-usage.


The battery costs sound about right also. Large lithium batteries are not cheap.

Surfer

They would not collect the faulty scooter without leaving the loan. Not sure why this should be so important to you? I find your response very unhelpful and negative and resent you stating that I am not being honest. You obviously have not read my first post where I stated that I had rejected the scooter prior to them collecting it and leaving a loan. It is not a large lithium battery.

StopIt

Surfer wrote: »

They would not collect the faulty scooter without leaving the loan. Not sure why this should be so important to you? I find your response very unhelpful and negative and resent you stating that I am not being honest. You obviously have not read my first post where I stated that I had rejected the scooter prior to them collecting it and leaving a loan. It is not a large lithium battery.

That frankly doesn't make any sense to me, and I'm sure the CC company.


If you wanted a refund, that's the cancel clause of the CRA. That's it, final. You ask for your money back. You don't ask for your money back and go "Hey, fine, leave me this loan vehicle while you give my money back".


You should have refused the loan vehicle, and re-stated your desire for a resolution via a refund. If they refused to collect it, then you exhaust their complaints procedure, THEN hit the S75 clause.


Instead you take a loan vehicle from them? Why? That is what the CC company will be asking.


I'm not trying to be unhelpful, I'm trying to tell you what the CC company will be seeing. You may morally be in the right but that makes no difference to the law. Where, when, and how did you ask to cancel/refund under the CRA? Why did you not use your rights under the act to get them to take the vehicle back without pre-conditions as the law states and why, again, did you take, and presumably use the loan vehicle if you were trying to get a refund?


They're not allowed to repair the item without request to do so (For a 2nd complaint, they get one chance) and if you can prove that they have done so, then you can re-claim the money that way.


Basically, you need to prove you asked for a refund when you complained the 2nd time.


Note: Complaining about the item, threatening them with the CRA but then accepting them attempting another repair, then changing your mind, does not count, and if the item was successfully repaired in good time, you must accept this. That is why it is crucial to have documented evidence of your claim for a refund.

Surfer

Shortly after I initially contacted the trader in March, they phoned me and said that they could not refund as they needed to evaluate the scooter first however in the meantime the rep would demonstrate alternative scooters and if none were acceptable, they would leave a loan scooter.
The rep arrived at my home, but had not been informed about demonstrating any alternatives however he took away my scooter and left the loan. I had assumed that if they found the scooter to be faulty for a second time, a refund would be processed under the CRA.
The trader has stated to BC that they are willing to supply an alternative scooter however they will not refund which is contrary to S24. The trader wants to comply with part and not all of S24.
I cannot understand why you keep referring to me changing my mind as my mind was already made up to reject the scooter back in March which is why I put it in writing to the trader Can we please move past this roadblock that you have in your mind.