Wrong item sent

Snarf999

I bought an Explorers uniform for my daughter in mid Feb, she didn't need it straight away but when she eventually wore it (last week) we realised it was the wrong colour. Essentially the store had sent an adult leader uniform rather than the Explorer one.

I contacted the store and they said send it back and that, although outside the 30 day return window, they would see what they could do.

They received it today and said that, because it wasn't in the original packaging (which we'd thrown out when she first tried it on) there was nothing they could do, no refund or exchange. They didn't even apologise at first, I had to push them for that! 

I then asked them to send it back which they agreed to do (after some discussion!) so I could at least pass it on.

Do I have any rights here? They sent the wrong item in the first place, but didn't even offer to pay the return postage?

Manxman_in_exile

If you ordered an Explorers uniform but they sent you something different then the goods do not conform to contract and you are entitled to a full refund or the correct uniform.  Their "30 day return window" is irrelevant if they sent you the wrong item in the first place.

The applicable law is here:  Consumer Rights Act 2015 (legislation.gov.uk)

Try quoting s11 to them about goods having to match their description.  You ordered one uniform but they sent a different one.  They owe you the correct uniform or a full refund.

Simple.

Edit:  And they owe you return postage

Snarf999

Do I not lose those rights after 30 days has expired though? I don't know if there's also anything because it had been used and wasn't in the original packaging. Just wondering whether quoting S11 is enough?

Manxman_in_exile

OK.  I'm no expert in this area but this is my understanding.

After 30 days you no longer have what is known as the short-term right to reject for a refund, but the passing of 30 days has no relevance if they sent you the wrong item in the first place (ie they sent you something other than what you ordered) because that means that the goods they sent do not conform to contract, and that means that the supplier is therefore in breach of contract. 

It also doesn't matter in this case whether you have the original packaging or not.  You aren't returning the item because of a "change of mind" on a distance sale, you are returning it because they sent you the wrong thing.

In such a situation you would normally be able to return the item to the seller (at their expense) and either get a full refund or get the correct item that you originally ordered.

That's where you would usually be according to my understanding of the law.

The slight difficulty you have is that the uniform has been worn or used - is that right?  If so it's a pity as it might complicate the issue.  It would have been more straightforward if it hadn't been used.  I'll be honest and say I don't know if that significantly affects your position or not.  I think my view is that it doesn't alter the fact that they sent you the wrong thing - in that respect it was faulty - and you still ought to be able to get it replaced or refunded.  I don't know.  See what other posters here think.

If you don't get any more input from others here, I don't see what you have to lose by explaining to the trader as follows:

1.  They sent you the wrong item - what they sent is not what you ordered.

2.  You are not returning the item because you've changed your mind or under their own returns policy, you are returning it under the Consumer Rights Act 2015 because they are in breach of contract because the item is not what you ordered - ie not as described - see s11 of the Act.

3.  Because they are in breach of contract by sending the wrong item, whether you have the original packaging or not is irrelevant, as is 30 days.

4.  You are returning the item either for a full refund or for the uniform that you originally ordered.  (But in either case you require them to reimburse all return postage costs you have incurred).

You could try that if no further input from anyone here.

If you paid by credit card and it cost >£100, you should have a s75 claim against your card provider.  If you paid by debit card you might have achargeback claim with your bank.

If all the above fail, you would have to decide if it was worth issuing a court claim.

the_lunatic_is_in_my_head

OP above is correct, there is no time limit to seek a remedy if the goods do not conform to the contract (something is wrong).

Opening the packing or any other interaction with the goods doesn't waive your rights to a remedy.

I would send an email along the below (don't worry about understanding all the legislation at the bottom if it seems overwhelming, it just covers what has been said and shows you are aware of your rights):

Dear 

I am writing regarding order number [1234]

As previously discussed I ordered [item] but was sent the incorrect item of [item]. As the goods did not match the description I am entitled to a remedy of a replacement or if a replacement isn't possible or refused then full refund. In either case I am entitled to a refund of the returns costs for sending the incorrect item back (please find attached a copy of my postage receipt showing the price paid).

I understand that mistakes happen but as a trader you should be aware of your obligations, to incorrectly advise a time limit and refuse a refund for opening the packing isn't appropriate as your policies do not override my statutory rights. 

Please find below details of the legislation covering my right to remedy. 

Thank you in advance for a prompt and amicable resolve to this mater,
Best regards, 

https://www.legislation.gov.uk/ukpga/2015/15/section/11/enacted

Goods to be as described

(1)Every contract to supply goods by description is to be treated as including a term that the goods will match the description.

https://www.legislation.gov.uk/ukpga/2015/15/section/19/enacted

(3)If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11, 13 and 14, or if they do not conform to the contract under section 16, the consumer’s rights (and the provisions about them and when they are available) are—

(a)the short-term right to reject (sections 20 and 22);

(b)the right to repair or replacement (section 23); and

(c)the right to a price reduction or the final right to reject (sections 20 and 24).

https://www.legislation.gov.uk/ukpga/2015/15/section/23/enacted

(2)If the consumer requires the trader to repair or replace the goods, the trader must—

(a)do so within a reasonable time and without significant inconvenience to the consumer, and

(b)bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).

https://www.legislation.gov.uk/ukpga/2015/15/section/24/enacted

(5)A consumer who has the right to a price reduction and the final right to reject may only exercise one (not both), and may only do so in one of these situations—

(a)after one repair or one replacement, the goods do not conform to the contract;

(b)because of section 23(3) the consumer can require neither repair nor replacement of the goods; or

(c)the consumer has required the trader to repair or replace the goods, but the trader is in breach of the requirement of section 23(2)(a) to do so within a reasonable time and without significant inconvenience to the consumer.

Snarf999

Amazing thanks, I've already sent one message but I'll use the above if that doesn't work!