Can they do this?

gladysrocker

Hi, just after a bit of advice from the knowledgable folk on here before I waste my time sending a complaint email.
Two weeks ago I ordered a phone online from the One stop phone shop and it duly arrived 2 days later. I used it for a couple of days and it developed a fault, so I had to send it back, at my own cost, Special Delivery. I liked the phone so I requested an exchange rather than a refund.
On Saturday my replacement phone arrived and they'd sent the wrong one! I couldn't contact them straight away as their offices don't open at the weekend and knowing that it was going to be another week or so to get it sorted and needing a phone quite urgently I went into town and bought one, intending on getting a refund from One stop phone shop.
I finally managed to get through to them today and explained the situation, and was told I couldn't have a refund as I'd had the phone for more than 7 days. I told him I'd only recieved it 2 days ago and he replied that it counted from the date I ordered the original(faulty) handset! So by giving them a chance to rectify the original problem I have shot myself in the foot and they are now penalising me for it. I have to send the wrong phone that I recieved back, again at a cost of £6 to me and wait to see if they can get it right next time. This could go on forever.
I guess what I really want to know is can they refuse me a refund and force me to purchase an item that is no longer required due to problems of their making? Any replies much appreciated.

Pagan98

You can certainly argue the toss on the phone under the sale of goods act, i.e. you are rejecting the phone because it was faulty and the replacement was the wrong model. The problem comes with the airtime service contract, which has a cooling off period that has expired. It would seem you have 2 options:

1) Plead with the airtime provider to cancel the original contract, albeit you are outside the cooling off period. It may help if the second contract is also with the same airtime provider.

2) Cancel the second contract if you are still within the window to do so. This will depend on where you purchased the phone and whether you are covered under a cooling off period, the retailers satisfaction promise (if they have one) and whether you can return a used handset. Then press OSPS to fulfil your contract.

You can complain to OSPS but as time is of the essence I would get on the phone to the airtime provider if possible and explore the options with them.

thesaint

Have a read of the Distance selling regulations, there may be something in their that covers you.

gladysrocker

Thanks for the advice. re the airtime contract, this was a PAYG deal and I had to purchase £10 airtime when I purchased the first handset. I got an O2 sim and was told the airtime would be added within 48 hrs. When I called about sending the faulty phone back I was told to hang on to the sim. I mentioned the airtime hadn't yet been credited and was told to give it up to 7 days. Well I still haven't had the airtime and upon mentioning it on the phone today the guy said it'll take 14 days! Does any of this make a difference?

Pagan98

I think you are outside the scope of the Distance Selling Regulations (>14 days and used the handset). I suspect the DSR is what they are referring to when they say you are out of time.

However, if the handset is PAYG I reckon you should be able to press for a full refund under the Sale of Goods Act. See the info here: http://www.berr.gov.uk/consumers/fact-sheets/page38311.html

Of note is (a) the original goods did not conform to contract as they were inherently faulty as evidenced by lasting only 2 days before failing and OSPS agreeing a replacement, (b) you are entitled to request a replacement - you did and they have failed to provide a like for like replacement, (c) if goods do not conform to contract at point of sale you can request your money back within a reasonable time - I would say within a month is reasonable.

I would write to them (don't phone) quoting their sales reference, stating that you are formally rejecting the phone under the sale of goods act 1979 as it did not conform to contract (due to an inherent fault) and the replacement offered is not acceptable to you. Request they arrange collection or provide a return paid envelope for you to return the incorrect phone. Request that they refund your full purchase costs and previous return costs within a set period (15 working days, say). State that if they do not comply you will issue proceedings in the County Court without further notice. Keep a copy of the letter and proof of posting. If they don't respond with the 15 working days issue a claim through Money Claim Online http://www.moneyclaim.gov.uk, it will cost about GBP30 (which you will get back when you win).


Post again or private message if you need more assistance.