Am I liable to give a refund?

LouElm14

Hello, 

I'm hoping for some advice. I run a fresh food delivery service. A parcel was delivered to a customer and they weren't home to recieve. Emails and texts sent with proof of delivery and tracking details updated on the link we provide to them.  There was an additonal days delay( i.e customer requested for Tuesday, delivered Wednesday) due to courier error, customer was clearly advised this could happen at the point of ordering and that goods are well packed to ensure freshness throughout and we're not liable for any delay as it's outwith our control. To be clear packaging has been fully tested and produce is completley safe and still chilled even if these delays occur. 

Customer claims they weren't home to recieve on the Wednesday, It's been left in a safe place ( as perishable deliveries always are as they cannot be returned to depot). Customer hasn't returned home until the following day and the goods by then are in an unsatisfactory condition and customer wants a refund.  We received no communciation before delivery to advise the customer wouldn't be home and they were advised by the courier of the delay the day before. Customer has allowed delivery to go ahead and then emailed us days later to say they aren't happy and want a refund. 

I don't feel we are liable for this, we've made the customer fully aware of all circumstances and they've chosen to continue with delivery and the courier has provided them with updates on delivery throughout the process and no action has been taken. We could have prevented delivery or re-directed if we had been advised they wouldn't be home, it's obviously not for us to know the customer isn't going to be at home until 24+ hours after delivery has been made. 

All information on possible delays is clearly provided at the point of ordering and advises we are not liable for the delay. Terms also state liabilty passes to the customer on delivery. 

I'm just looking for advice whether we're right or wrong or what is the fairest outcome. This has happened before and some customers restort to threats in order to get a refund. We're a small business and we can't keep covering losses when we don't feel we're at fault. We're happy to offer a 50% refund so atleast our costs are covered and customer isn't fully out of pocket. 

Thanks

born_again

While you could refund as good will gesture. You are not under any obligation to, as this is customer fault. 
They can bluster all they want. If they start the chargeback process just reject with proof of delivery. Same with any other threats. You have proof of delivery, & you make customer aware of the risks before delivery.

macman

What sort of 'threats'? I would either refund in full on a goodwill only basis, or not refund at all. Once you offer a 50% refund you are effectively accepting some degree of liability.
Ultimately, you may lose these customers, but they're probably ones you can do without.

Clive_Woody

I guess you have to weigh up any decision against losing future business from this customer (assuming they are a regular customer).

Alternatively, could you send a replacement order, which presumably would cost you less than a full refund and might be more acceptable to the customer than a 50% refund?

the_lunatic_is_in_my_head

Hello OP

Presuming that the customer is a consumer (as opposed to someone buying food for their cafe, restaurant, etc) then this comes under passing of risk.

The CRA dictates that 

https://www.legislation.gov.uk/ukpga/2015/15/section/29/enacted

(1)A sales contract is to be treated as including the following provisions as terms.

(2)The goods remain at the trader’s risk until they come into the physical possession of—

(a)the consumer, or

(b)a person identified by the consumer to take possession of the goods.

(3)Subsection (2) does not apply if the goods are delivered to a carrier who—

(a)is commissioned by the consumer to deliver the goods, and

(b)is not a carrier the trader named as an option for the consumer.

(4)In that case the goods are at the consumer’s risk on and after delivery to the carrier.

What physical possession actually means has been debated to death on here. My view is that it is literal, the contract includes a term that you shall deliver the goods to consumer, the issue of couriers not being able to return fresh food to the depot isn't the consumer's concern. Were you to deliver the food yourself you would either ensure as much as possible that the customer would be home or would be able to make an informed choice as to what to do (have better storage for delivery to preserve the food until you got back to your place of business, come back to that house again later, call the customer and ask if the goods can be given to someone else, etc, etc). 

The fact the 3rd party carrying out your delivery obligation doesn't offer such a detailed service again doesn't concern the consumer. I don't know if you are using a specialist courier? 

You, through your 3rd party, have left the goods at your risk in a "safe place" that presumably wasn't safe, again from a literal viewpoint, otherwise the goods wouldn't have perished. 

I would say the customer is entitled to have the goods replaced or a refund (with return at your cost if you wish to have them back). 

Any terms you may have, or any actions of your 3rd party and the manner in which they operate, wouldn't override the consumer's rights.  

LouElm14

Thanks for the advice all, I'm not sure if my previous replies are showing ( i can't see them).

It's not a recurring customer.

Other customers have made threats such as scathing public reviews, compaints to enviromental heath and taking us to small claims courts. I understand it may be easier to just keep the customer happy in some cases but we just feel this one really isn't our fault and are fed up taking the hit. 

the_lunatic_is_in_my_head I understand re your take on the CRA. Though feel that's very unfair as many, many couriers leave deliveries in a safe place. If that was to be upheld, could it not be that everytime a parcel is left in a safe place, a company has no proof the customer actually received the delivery and the customer can argue it wasn't there when they got home or had been damaged between delivery and the customer getting it etc, even if the couriers photo & GPS stamp shows it to be there at their property? A genuine query not starting an argument!

Our terms also state that it's the customers responsibilty to make themselves available at the time of delivery and risk in the goods shall pass to the buyer upone delivery or where the buyer fails to take delivery, when delivery was attempted ( which i know other perishable companies also state). Not sure that makes a difference?

bris

Its perishable goods the law states they aren't eligible for a refund, its best to check facts before copy and pasting irrelevant information.

the_lunatic_is_in_my_head

LouElm14 said:

the_lunatic_is_in_my_head I understand re your take on the CRA. Though feel that's very unfair as many, many couriers leave deliveries in a safe place. If that was to be upheld, could it not be that everytime a parcel is left in a safe place, a company has no proof the customer actually received the delivery and the customer can argue it wasn't there when they got home or had been damaged between delivery and the customer getting it etc, even if the couriers photo & GPS stamp shows it to be there at their property? A genuine query not starting an argument!

Unfortunately a lot of consumer rights are weighted in the consumer's favour and are there to inspire confidence to ensure we all keep spending, I do agree some are unfair on the trader.

Regarding safe places, the term was coined by the couriers and they like to leave parcels in safe places as it saves them money (to be fair there are benefits to the consumer also but you can be assured if those benefits cost the couriers then delivery to safe places wouldn't happen!)

I think the question is what is "safe", if I order a garden fork and it's left outside in the rain that's not a problem, a television and I'm sure most would be unhappy. Some chocolate left on the doorstep today no problem, not long ago in the heatwave then I wouldn't' be happy with a big lump of melty chocolate. 

On the doorstep in central London probably not a good idea, out in the sticks perhaps perfectly safe. 

Even if there was an argument that in some instances leaving the parcel within the boundaries of the consumer's property counted for physical possession I think the fact that in this instance the goods perished whilst in that place would suggest it wasn't safe. 

Counter argument to all this is if the customer was given the option of delaying the delivery until they would be home there may be an argument they haven't mitigated their losses. This might result in any claim not being awarded costs but perhaps they were suddenly called away or suffered an unexpected event, it would depend on who could articulate themselves best. 

LouElm14 said:

Our terms also state that it's the customers responsibilty to make themselves available at the time of delivery and risk in the goods shall pass to the buyer upone delivery or where the buyer fails to take delivery, when delivery was attempted ( which i know other perishable companies also state). Not sure that makes a difference?

Unfortunately I don't think the terms are particularly fair, on the one hand you say delivery will be x date but on the other can't be guaranteed, delays may occur and the customer must make themselves available effectively indefinitely. 

I fully appreciate the difficulties you face, the argument would be that by trading in the manner you do that you have access to a larger customer base and the odd event such as this is off set by overall increased profits. Again I appreciate that food probably doesn't have the best of margins and is far more prone to issues than other types of goods but ultimately that is the business you chose to run  

LouElm14 said:

Other customers have made threats such as scathing public reviews, 

All the legal stuff aside plus other threats (small claims isn't going far unless the order value is relatively large, environmental health shouldn't be of a concern, you have have to comply with their requirements regardless and presumably are so such threats are meaningless) the reviews are probably what matters to you, if bad reviews will likely cost you more than the cost of refunding the customer then from a business perspective it's a no brainer regardless of the frustration no doubt felt   

Manxman_in_exile

bris said:

Its perishable goods the law states they aren't eligible for a refund, its best to check facts before copy and pasting irrelevant information.

Does the law say that?  I know that in the case of perishable goods the time limit for exercising the short term right to reject can be curtailed, but the potential right to a refund isn't lost entirely is it?

And in any case, this isn't about the short term right to reject, is it?  Isn't it about the goods having gone off because the OP (through their courier) didn't ensure that the goods were delivered into the physical possession of the consumer, which is what the law requires?  The fact that the courier left them in what they considered to be a safe place is irrelevant.

Therefore the goods remained at the trader's risk (under s29(2)(a) of the Consumer Rights Act 2015) and were still the trader's responsibility when they went off.  Therefore the OP is obliged to refund their customer?

At least that's how I understand the_lunatic's argument. Whether it's right or not I'm not sure, but  I don't think the fact the goods are perishable matters? 

(Well it might matter to the OP who perhaps needs better courier arrangements...)

Manxman_in_exile

LouElm14 said:

Hello, 

I'm hoping for some advice. I run a fresh food delivery service. ...

... All information on possible delays is clearly provided at the point of ordering and advises we are not liable for the delay. Terms also state liabilty passes to the customer on delivery. 

I'm just looking for advice whether we're right or wrong or what is the fairest outcome. This has happened before ...

The problem you have as a business is that the law appears to say that your business is responsible for the goods until they are delivered into the physical possession of your customer.  There might be an argument about what constitutes "physical possession", but if your customer wasn't home and your courier just left the goods in what they believed to be a "safe place" (wherever that was) then it's quite possible that the goods remained your responsibility and not your customer's.

It doesn't really matter what your T&Cs say as they can't override the provisions of the Consumer Rights Act.

If your business is delivering fresh food, you might want to review your delivery arrangements... 

(As the_lunatic has said, you might have some argument about the customer having been informed of the delay in delivery, but I'm not sure there would be much mileage in that?)

the_lunatic_is_in_my_head

bris said:

Its perishable goods the law states they aren't eligible for a refund, its best to check facts before copy and pasting irrelevant information.

Well the CRA can be opened in full as below:

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

As manxman says the only reference is with regards to the short term right to reject but that doesn't affect passing of risk. 

There are limits of application to the right to cancel under cancellation regs but that doesn't have anything to with the goods conforming to the contract or passing of risk under the CRA.

Perhaps you could copy and paste the facts referred to?