Limitations of chargeback and Tesco Credit Card - warning from experience!

bbounce

I've had some experience of attempting to raise a charge back and then complaining to the Ombudsman, and it's been a bit of an eye-opener for me in terms of just how little protection chargeback offers.  Although it seemed to me like it was a really straightforward case of the wrong item being sent Tesco refused to progress it.  Even though I since showed that it really was the wrong item by getting the correct item by threatening County Court Proceedings, the Ombudman stressed that the scheme is offered voluntarily and declined to consider the decision making process in much detail.

Even more alarming to me was that the Ombudsman was not willing to criticise Tesco for deliberately ignoring letters (even though they finished by asking them to confirm if they had nothing futher to add).  They say it would have been preferable for them to have replied, but the remainder of the paragraph infers at least as much criticism of me for trying to get Tesco to reply rather than contacting Ombudsman immediately.  

The history was:
In May 2019 I bought some custom made picture frames from frames.co.uk

The terms and conditions stated that:

• the pictures on the website were highly accurate, with the usual disclaimer about colour presentation on monitors etc
• "correctly supplied" custom made items could not be returned 

After the order was placed (and once it was no longer cancellable) frames.co.uk sent an order confirmation that had no picture, and referred to the frames as "natural wood".

I felt that the frames I received were a different item on their website and complained to the supplier by email.  They immediately agreed to resend the order, and confirmed a number of times over the course of a month that they would (including at some points claiming that they already had, but unlike with the original order no tracking information was received from DPD).  

After a month I attempted to raise a chargeback claim with Tesco.  Tesco looked at the frames.co.uk website, the email correspondence, and the picture of the frames received.  They declined to progress the claim as:

1. The website said that the frames were wooden, any wooden frames would meet this requirement.  
2. They would only have been able to progress the claim if the retailer had specifically accepted that they had sent the wrong item, but although there was extensive correspondence agreeing to resend the order they had not specifically stated this. 
3. A chargeback claim had to be capable of being evidenced without use of pictures.

I complained to Tesco on the basis that the document they were relying on was not part of the contract as it was sent after the contract was entered into, and that as the retailer sold a wide variety of wooden frames it is clear that there is a difference between the types.

Tesco replied stating that they maintained the position given originally, but stating different reasons.  The letter was long and a little unclear, but the main thrust appeared to be:

• Because the order confirmation e-mail had no description of colour I was unable to say the item was the wrong colour, and the item therefore wasn't not as described

I responded to Tesco as follows:

• As the chargeback process is offered as a form of protection and a means of resolving disputes it would be self defeating if only claims already accepted by the retailer could be disputed
• It was evident colour was a relevant characteristic of an item by the fact that they are offered in different colours
• I invited Tesco to suggest a better way of evidencing that an item was not as described
• I did not accept that whether a contract was fulfilled could be determined by reference to a document sent after it was entered into.  I argued that this should be determined by respect to the website.
• If they had nothing further to add please could they let me know and I would complain to the ombudsman

Tesco did not reply, and after a month I phoned to check progress.  I was told that the letter had not been received and was asked to send it again, which I did.

Tesco again did not reply, and after a month I phoned to check progress.  I was again told that the letter had not been received and was asked to send it again.  I sent it again, this time by recorded delivery.

Tesco again did not reply, and after a month I phoned to check progress.  I was told that the letter had not been received and was asked to send it again.  I told them that it had been sent recorded delivery and that it had been received.  They then told me that in fact they did not wish to reply.

While this was going on I prepared a draft County Court claim form and sent it to the retailer, who immediately sent the correct item.  You can see the correct item on the left and the original item on the right:

In November 2019 I therefore complained to the Ombudsman on the basis that:

• Tesco should have progressed the chargeback claim and I should not have had to go to the trouble of preparing the draft County Court claim form, or else they should have provided coherent explanation of why they did not progress it
• Tesco should have replied to my letters

Although the caseworker recommended my complaint be upheld and that I should be paid £75 compensation, Tesco objected and the adjudicator agreed with them in the provisional decision.

Tesco told the adjudicator that I should have ordered a sample, and that they felt my claim wouldn't have succeeded.  The adjudicator stated that it wasn't their role to tell a card issuer how they should come to a decision.  Although the retailer had since sent the correct item the adjudicator did not feel this showed that a chargeback claim would necessarily have been successful, and there was a suggestion that the fact that I had obtained the correct item by threatening them with a draft county court claim in fact indicated that a claim may not have been successful.  The adjudicator said it would have been preferable for Tesco to have replied to my letters, but that Tesco were entitled to try to draw a line under complaints.  There was a slight inference that I was at fault for choosing not to complain to the Ombudsman immediately.

I responded to the provisional decision noting that the explanation Tesco had provided to the adjudicator was a new one that hadn't been provided before, and that this suggested to me that the previous explanations must have been insufficient.  I also disagreed with the suggestion that I should have obtained a sample as while samples were available, the website said that the photos were highly accurate and I was entitled to rely on that.  (I also do feel that this is a straightforward case of the wrong item being sent, so I'm not sure how a sample would have helped!).  I suggested that the immediate capitulation of the retailer in the face of a credible threat of a county court claim inferred that they would have acted similarly in the fact of a different credible threat in the form of a chargeback claim.

The adjudicator's final decision states that Tesco's initial explanations were "less detailed", but fair.

So... there you go.  Apparently Tesco were right all along, though it doesn't feel that way to me.

DoaM

Do you have a question to ask? If not then there's a Praise, Vent & Warnings board for such posts.

The_Rainmaker

I think that is a very informative and useful post that others may like to refer to in the future. 

DoaM

The_Rainmaker said:

I think that is a very informative and useful post that others may like to refer to in the future. 

Maybe so ... but it's in the wrong board.

unholyangel

You would've been better using either CCRs or CRA in your argument to the ombudsman. Even judges normally rely on parties citing any relevant law/cases to support their claim/counter any points raised by the other side. It's where people sometimes go wrong - making what amounts to an emotional argument when they need to make a contractual/statutory one. 

Particularly because those acts state that the requirements of the acts are to be treated as terms of the contract. Such as that tesco's point on asking for a sample is moot because it was not a sale by sample, it was a sale by description and that s11(1) of the CRA states that goods must match their description. S11(4) That any information the trader makes available on the description is to be treated as a term of the contract and s11(5) that a change to that information, made before or after the contract is formed, is not binding unless it has been expressly agreed. 

Or s9 of the same act, which requires goods to be of satisfactory quality and s9(5) specifically provides that any public statement made by the trader, producer or any representative of either of the two about the characteristics of the goods are considered in satisfactory quality and s9(6) spells out that public statements include both labelling & advertising. 

bbounce

When I say "felt" in my post, it's obviously with a view to not being sued.  I genuinely believe that the items frames.co.uk sent me were not the correct ones (and that they were a different item on their website), and I believe that the photos show they sent me the wrong items, and the argument I advanced to the the Ombudsman (and... that... was not accepted ) was that I was sent the wrong items.  Much as I clearly have no route to progress the complaint and must accept the decision, to me it is still the case that I feel the photos show different items. 

I think the worrying aspect of the matter is that Tesco were very clear in that they would have been happy providing anything sent to me was made of any type of wood.  I have a feeling that people making credit card purchases may feel they are better protected than they think they are - I know I did!

neilmcl

bbounce said:

I think the worrying aspect of the matter is that Tesco were very clear in that they would have been happy providing anything sent to me was made of any type of wood.  I have a feeling that people making credit card purchases may feel they are better protected than they think they are - I know I did!

You are only protected in such that there was a clear breach of contract in the first place. Tesco didn't believe so, the ombudsman agreed with them. The fact that you "threatened" legal action is neither here nor there and doesn't mean you would've been successful.

bris

Tesco are not a court of law, they are a card provider. You had a claim, they countered it. If you want justice a court of law is the place to go. Tesco can't say whos right or wrong it's not their place so how can they favour you over them? 

bbounce

bris said:

Tesco are not a court of law, they are a card provider. You had a claim, they countered it. If you want justice a court of law is the place to go. Tesco can't say whos right or wrong it's not their place so how can they favour you over them? 

I'm not sure I understand the point you're trying to make.  The entire purpose of the chargeback scheme is for the card provider to decide who is right and who is wrong? 

In this case, however, they wanted me to prove I was right without using photos, and that does make it a lot more difficult. 

The reason I'm posting this is that I suspect a lot of other people also might not know that this is how Tesco operate the chargeback scheme (and indeed, are apparently entitled to do so).