Consumer Credit Act 1974

Fleabag

After a little advice re: Consumer Credit Act and "cooling off" periods.

My Dad (85) went into the store of the mobile network he currently has a SIM only with. He said that he wanted to buy a basic phone that he could just use for calls and texts. The company doesn't sell phones outright, so they ended up talking him into a £29 contract with a large smartphone he doesn't want or need. He returned a few days later asking to cancel the agreement and return the phone, and was told that he couldn't, as it was in-store.

We're returning tomorrow to try again.

It has been suggested that he goes with the clause "the coverage was not what he expected" (it may be MORE than he expected, but it is still not what he went into the store requesting, and he is now paying for 5G service and handset he doesn't want and won't use).

However, I have found that under the Consumer Credit Act 1974, he has his 14 day cooling off period even when the agreement was struck face-to-face. I have read oldish threads online saying that phone contracts don't fall under the CCA, as they are for services, not goods, but surely the handset is being sold on a hire purchase agreement, and this part of the monthly charge is goods, not services, and therefore subject to the CCA.

Any wisdom on the matter? (if this doesn't get us anywhere, we're going down the complaints route and, if necessary, ombudsman -but I'm hoping this is a quick and easy argument to get it sorted ASAP)

Ectophile

It's not always that easy.  You can cancel the credit agreement, but then he still has to pay for the phone he's bought.

Fleabag

But surely if he's legally entitled to cancel the agreement, they have to take the phone back. They don't sell phones (which is what he wanted to do) - they only offer them on contract. If he has the right to cancel the contract, they have no process available to them to sell him the phone.

I believe we also have a case to argue that he was mis-sold, and that his age, lack of technical know-how and failing hearing was the reason he was sold something he specifically didn't ask for (and told the salesman at the time that he didn't want or need a smartphone), but obviously using the CCA or the "coverage not what was expected" options would be immediate

user1977

"Mis-selling" isn't a general concept you can apply to normal retail transactions, the salesman isn't providing advice in the same sort of regulated way as applies to say, financial products. It's pretty normal to walk into a shop and be persuaded into buying something different from what you originally said you wanted. Or is your dad denying that he did end up agreeing to the contract he's now got?

I don't follow your "coverage not what was expected" argument.

Fleabag

He went into the shop asking for a basic mobile phone for calls and texts to buy up front and use with his existing sim. I can't say exactly what went on, but he was offered a new, large oppo phone at £29pm. He said he didn't want a smartphone, but ended up being talked into this deal. He didn't understand most of what he was being told, or that this was essentially a hire purchase arrangement (which he would have refused if he'd understood this).

It looks as though mobile phone providers may have created a loophole regarding the CCA simply because they combine the phone handset (goods) contract with that of the mobile phone network (services).

My Dad needs a basic handset (£20 or so) and a better value sim only deal with low/no data (£5pm) - which would be £140 over 2 years. Instead he's been talked into a phone/contract he doesn't want or need costing just short of £700 over 2 years. I feel it was mis-sold and that the salesman used undue influence, confusing my Dad, and that his age was a strong factor in the salesman using these tactics and succeeding in talking him into a contract and handset type he hadn't asked for.

The "coverage doesn't meet expectations" was suggested as it's one of only 2 reasons they give for allowing a customer to change their mind on a contract agreement made in-store. I struggled initially, but the friend advised that we simply say it didn't meet expectations and we want to end on those terms, and don't elaborate on the reason - but our reason would be that he EXPECTED a sim-only, call and text only service with a basic push button handset (bought separately up front). This isn't what he got.

Diamandis

It's not covered under the consumer credit act, they're not providing you with credit, just charging monthly for a service, which is a very different thing. 

The coverage argument doesn't make any sense to be honest since there isn't any issue with the coverage.

If your dad isn't able to make decisions on his own then you need to start processes that stop him from doing so.

Fleabag

Well, they are obviously including a credit agreement for a handset - they just seem to avoid being subject to the CCA by bundling that with the mobile service.

He's not incapable of making decisions, but he was overwhelmed by the technical information he didn't understand. I think the salesman played on his obvious naivety about digital products and services and that his age made him an easy target. As far as I can see, he's been sold a contract that includes 40gb of data a month, when Dad told him twice that he didn't want a phone for using online.

Fleabag

not meeting expectations doesn't specify that the coverage underperforms. He's paying for coverage he specifically said he didn't want. This doesn't meet his expectations.

elsien

I didn’t think there was a 14 day in store cooling off period? 

Aside from which, as he’s already been in once for a refund, they’re going to be less likely to believe that he’s developed coverage issues following that refusal.
Did you talk to the shop manager? 

MalMonroe

Fleabag said:

But surely if he's legally entitled to cancel the agreement, they have to take the phone back. They don't sell phones (which is what he wanted to do) - they only offer them on contract. If he has the right to cancel the contract, they have no process available to them to sell him the phone.

I believe we also have a case to argue that he was mis-sold, and that his age, lack of technical know-how and failing hearing was the reason he was sold something he specifically didn't ask for (and told the salesman at the time that he didn't want or need a smartphone), but obviously using the CCA or the "coverage not what was expected" options would be immediate

Please stop using age as an excuse for people not having any ability to make their own decisions. It's really irritating.

It's a pity your dad didn't ask you to go along with him when he went to purchase a phone. 

When you buy items in a store you don't have the same rights as when you buy online or via telephone or if someone sells you something on your doorstep, there isn't a cooling off period.

More information in the following link - 

https://www.which.co.uk/consumer-rights/advice/i-want-to-return-my-goods-what-are-my-rights-ams3G2z9V7lW

Scroll down to "Your Statutory Rights when returning goods".

The shop might be sympathetic to your dad, though, if you explain that he doesn't really need the phone and he wishes to cancel the contract. But a softly-softly approach in the first instance will be far better than going in there and telling them about your rights. If the goods aren't faulty, they aren't obliged to accept a return and refund for it.

user1977

Like I said, "mis-selling" just isn't a thing in this context. There's no law prohibiting customers being "talked into" something by smooth salespersons. Or protection for consumers who are merely naive (rather than actually lacking mental capacity to decide whether or not to enter into contracts).

Can you point us towards a source for this "coverage doesn't meet expectations" right which you think exists? The closest thing I can find is a promise by some networks that you'll get a reasonably good signal. I doubt it's an all-encompassing guarantee of satisfaction that you got what you asked for (especially if you apparently changed your mind about that while you were in the shop).

And I don't think these contracts are hire purchase? I'm pretty sure you own the handset from day one. Very few credit agreements these days are hire purchase (other than some types of contracts for cars).