House of Fraser returns

Simmers26

Thanks all for your help everyone.  Disagree about in store, you can usually try on without buying, and if you can't then I either don't buy or ask if I can return. You can try on swimwear too. So from that perspective the process is helpful for the customer.
Sandtree, can you tell me where I can find verification of this pls, that would be great. The swimwear does have a protective sticker and also tried on with underwear. Can they get around distance selling rules by putting it in their t&cs? I'm testing you all here!
Just in terms of update, finally got an email from HOF, basically saying tough luck, however they did say I could return to store but only for exchange or credit note. I understand the PayPal situation but neither of these options really help as I'll still be out of pocket,  or buying things I don't want or need.
I have decided to just send back and take the hit as I  just need to get my money back,  as much as I can anyway. Lesson learnt and will be avoiding HOF online from now on! 
Thanks again all, advice much appreciated.  What alot of stress!!

Simmers26

One more question, can I cancel and return the whole order including swimsuits under online selling rules, for a refund? Do I need to return the whole order in that case?

Manxman_in_exile

If the swimwear is "sealed" for the purposes of health or hygiene, my understanding is that they can only refuse its return for cancellation and refund if you have removed or broken that seal.  If it's not "sealed" in the first place, they can't refuse it.

s28(3)(b) of this:  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)

Personally I don't see how the "protective sticker" on a swimsuit qualifies as a seal anyway...

(I suspect others will disagree but... read the legislation)

Sandtree

Simmers26 said:

One more question, can I cancel and return the whole order including swimsuits under online selling rules, for a refund? Do I need to return the whole order in that case?

If you want to cancel it all you must return it all... if you want to keep some and return others you can

The swimsuit depends if there was a hygiene seal and if there was if you have damaged/removed it... this could be outer packaging or have seen one or two items with the Mrs where it was some plastic on the gusset (horrible word). If there was no seal or you havent broke it you can return, if you did remove/break it then you cannot.

jon81uk

Simmers26 said:

Thanks all for your help everyone.  Disagree about in store, you can usually try on without buying, and if you can't then I either don't buy or ask if I can return. You can try on swimwear too. So from that perspective the process is helpful for the customer.
Sandtree, can you tell me where I can find verification of this pls, that would be great. The swimwear does have a protective sticker and also tried on with underwear. Can they get around distance selling rules by putting it in their t&cs? I'm testing you all here!
Just in terms of update, finally got an email from HOF, basically saying tough luck, however they did say I could return to store but only for exchange or credit note. I understand the PayPal situation but neither of these options really help as I'll still be out of pocket,  or buying things I don't want or need.
I have decided to just send back and take the hit as I  just need to get my money back,  as much as I can anyway. Lesson learnt and will be avoiding HOF online from now on! 
Thanks again all, advice much appreciated.  What alot of stress!!

Yes but in store there is no legal obligation for them to accept returns if you buy and then find at home it doesn't fit. So if you can't try on in-store you are in a worse position compared to buying online as you have no right to return unless faulty.

The sticker in the swimwear sounds like it could be interpreted as a seal, but it would take a lot of arguing I expect as their return policy does explicitly exclude swimwear Return Online - UK : House of Fraser.

If you paid by PayPal you can opt-in and they will pay the return costs, but only up to £15.
PayPal Returns - Shipping Refund | PayPal UK

Simmers26

Thanks again. Yes there is a seal or sticker on it with the usual message that if it is removed you won't be refunded. So with their terms on site, I am really confused about where I stand. I may return it and see what happens...have been very careful to follow those instructions about trying on. 
Jon81uk - If in store I never buy without trying on unless I have specifically asked about returns. So for me online purchases are supposed to be about trying on at home. If I can't do that and I haven't tried on elsewhere then i don't  order. I get the feeling you've not tried to buy a swimsuit before, not as simple as it sounds! 😉
Thanks for the recomms guys

Manxman_in_exile

A trader can refuse to refund a distance sale cancellation if:

s28(3)(a)  in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

 see The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)

So HofF can only refuse to refund if the swimsuit (1) was sealed for health or hygiene reasons in the first place AND (2) if the seal has been removed or broken since it was delivered to you.

If either there was no seal or if it is unbroken, you should get a refund.  Their T&Cs are irrelevant.

(The only question mark might be whether the swimsuit came in a sealed plastic bag or similar.  HofF might argue that that was the protective seal.  But I've seen it argued very persuasively* on here by someone who knew what they were talking about that in that case the purpose of the plastic bag would have to be shown by HofF to be for hygiene and health reasons, and not just to keep the item clean and dust-free.  And if the plastic bag it comes in is the seal for health and hygiene reasons, what on earth is the point of the "protective sticker"?).

I'd go back to HofF and quote to them s28(3)(a) and the link above and see what they come back with.  They might just give in and cough up.

*I think the argument is very persuasive.  I'm not saying it is convincing...

sheramber

I donl' think the OP has sent anything back yet. She has just accepted the statement in the T&C. 

jon81uk

Simmers26 said:

Thanks again. Yes there is a seal or sticker on it with the usual message that if it is removed you won't be refunded. So with their terms on site, I am really confused about where I stand. I may return it and see what happens...have been very careful to follow those instructions about trying on. 
Jon81uk - If in store I never buy without trying on unless I have specifically asked about returns. So for me online purchases are supposed to be about trying on at home. If I can't do that and I haven't tried on elsewhere then i don't  order. I get the feeling you've not tried to buy a swimsuit before, not as simple as it sounds! 😉
Thanks for the recomms guys

I was more pointing out the difference in legal rights between buying in store and online and if you buy in store you have no legal right to a return, unless faulty. Whereas online you have a legal right to return, but may have to pay the postage.
I expect you are diligent at trying on where necessary, but I was just pointing out you have better rights for distance contracts.

Parking_Eyerate

Manxman_in_exile said:

A trader can refuse to refund a distance sale cancellation if:

s28(3)(a)  in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

 see The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)

So HofF can only refuse to refund if the swimsuit (1) was sealed for health or hygiene reasons in the first place AND (2) if the seal has been removed or broken since it was delivered to you.

If either there was no seal or if it is unbroken, you should get a refund.  Their T&Cs are irrelevant.

(The only question mark might be whether the swimsuit came in a sealed plastic bag or similar.  HofF might argue that that was the protective seal.  But I've seen it argued very persuasively* on here by someone who knew what they were talking about that in that case the purpose of the plastic bag would have to be shown by HofF to be for hygiene and health reasons, and not just to keep the item clean and dust-free.  And if the plastic bag it comes in is the seal for health and hygiene reasons, what on earth is the point of the "protective sticker"?).

I'd go back to HofF and quote to them s28(3)(a) and the link above and see what they come back with.  They might just give in and cough up.

*I think the argument is very persuasive.  I'm not saying it is convincing...

I don't think there is anything in the legislation that says a seal has to be present specifically for the intended purpose of hygiene in order for it to be relevant and, in my opinion, in the previous discussion (regarding vaping/mattresses) the person who proposed that such a limitation exists had misinterpreted a passage of a CJEU decision.

Moreover, it was never explained how the 'functional intent' of a physical packaging feature would be assessed and, to my knowledge, there is no indication in any legislation that a hygiene seal has to be labelled/annotated as such. Packaging can quite easily have multiple purposes so, if intent were material, how would an assessment be made as to where hygiene ranked in the hierarchy of packaging purposes, and would it have to be the primary, secondary or tertiary reason for the packaging etc.?

I note that you said that the argument isn't necessarily convincing, but I wouldn't say it is persuasive either. I can't see why the 'intent' of packaging would or should matter at all, really all that should matter is whether the goods are ones for which health/hygiene is a concern. I don't want a retailer to sell me a toothbrush that someone else has opened and returned and I honestly don't care what the 'purpose' of the toothbrush's packaging is (the only relevant concern for me is that hygiene is important for toothbrushes).

With regard to the protective sticker, I am not so certain that it couldn't function as a seal. For example, if, after removing it, it is not possible to replace the sticker without it being apparent that it has been removed and replaced, then I am not sure that it couldn't be considered to be a seal. (Concerning the sticker's function - in the past I think some swimwear that could be tried on in shops had such stickers.)

I agree that the OP could try and go back to HoF, though, and make the point that he/she hasn't removed the protective sticker, but if the swimwear was packaged separately in its own plastic bag it might not matter anyway, as you say.

Was the swimwear packaged in its own bag OP?