Refused Delivery - Royal Mail Claimed It was delivered

DullGreyGuy

tightauldgit said:

Chippyshell said:

tightauldgit said:

HillStreetBlues said:

tightauldgit said:

Have to say that reads like a fairly terrible decision with all sorts of incorrect/irrelevant content - I wonder if the applicant hadn't made a very good job of explaining their case to the ombudsman or whether the ombudsman is just being deliberately obtuse.

I'm sure there will be decisions upheld in cases like that one.

Had Mr W  followed the laid down T&C of a return, then I expect every ombudsman would have found in his favour.

It doesn't seem necessarily that they would have if they are following the logic put in this decision. Had they returned the item in line with any terms and the courier lost it then this ombudsman could just have easily decided that since the seller didn't receive it then it wasn't properly returned and no refund was due.

 

The terms and conditions are slighlty confusing though they dont match the main website, ie when you go to the shop it changes. I would also state that in the above case they look at the courier terms of service which states you CAN NOT refuse a delivery of a parcel. However Royal Mail terms clearly state you can. Im probably coping hard but i guess ill have to just see the outcome.

My logic suggests although probably wrong, the terms of service apply to the courier when they have the risk hence why you can buy insured deliverys etc.. 

Yeah my point was more that this ombudsman seems to simply be making things up as they go along without reference to the law. 

The ombudsman isnt a court of law and isnt required to give the same outcome as would happen in a court (which is a bit odd given you can use the court process to enforce an ombudsman's decision without having to examine the underlying issue). The ombudsman instead has to follow the rules set out in the FSMA and as agreed by the FCA.

In most cases this works in the consumer's favour as there are cases where the ombudsman has said a S75 should be paid despite an invisible 4th party being involved and consistently overrules the T&Cs of home insurance policies on matching sets.

There is obviously a question on what exactly is meant in the CRA by "until they come into the physical possession of: (a) the consumer". In both cases it is totally plausible that the consumer has physically handled the package, they've subsequently claimed that they said they dont want to accept the parcel and handed it back. That certainly to me could easily be interpreted that it was in their physical possession and therefore liability transferred as per the CRA and is notably different from the parcel left on the doorstep that then goes AWOL.

The case on the FOS website however is very confusing, the ombudsman says he must workout what most likely did happen when evidence is incomplete/contradictory. He then says he believes the consumers story and so doesn't really explain how he subsequently concludes there is insufficient evidence to substantiate that the consumer didn't receive the laptops.

Oddly the two cases involve someone buying a pair of expensive electronic items.

the_lunatic_is_in_my_head

DullGreyGuy said:

There is obviously a question on what exactly is meant in the CRA by "until they come into the physical possession of: (a) the consumer". In both cases it is totally plausible that the consumer has physically handled the package, they've subsequently claimed that they said they dont want to accept the parcel and handed it back. That certainly to me could easily be interpreted that it was in their physical possession and therefore liability transferred as per the CRA and is notably different from the parcel left on the doorstep that then goes AWOL.

I think generally if a parcel is refused it shouldn't be given to the person. 

I agree if the person takes the parcel and then hands it back to refuse then the goods have come into their physical possession meaning risk passed. 

Obviously not possible to prove either way for the OP.

Agree the ruling citied is odd as the parcel didn't leave the doorstep by the account but the adjudicator decided it had been delivered to the address which isn't what the regs say (but could possibly be interpreted as in a legal process).   

the_lunatic_is_in_my_head

OP I think you should ask the bank (by email or the like so you have a record of their response) whether Section 75 applies to the transaction.

If they say yes then what's been discussed in general on the thread should hopefully help you.

If they say no you'd have to ask why and either challenge that or accept it.

If you challenge it and win the argument then go back to what's been discussed in general.

If you challenge it and lose or simply accept it then you have to look at the reality that even if you win against the site you purchased from actually seeing payment might be very difficult.

Obviously it's much better for you if Section 75 applies.

tightauldgit

Yeah, I appreciate that the ombudsman isn't a judge nor a lawyer but still you would expect their decisions to align with the law of the land at least where that law is pointed out to them in any complaint.

I don't think there really is much room for doubt in a refused delivery not coming into the possession of the consumer. That's pretty much the definition of a refused delivery. The alternative that seemed to be proposed - the the buyer accepted the parcel and then took it to the depot and RTS'd it would have surely transferred risk to them as they would have received the parcel? 

As you say the ombudsman says they have to work out what most likely happened but it doesn't seem clear what they actually are saying they believe happened - that the buyer decide to steal the items by faking a return and coincidentally the courier also has a record of them being refused? Or that the item has been refused and the courier has subsequently lost it? And if the latter on what grounds would the claim be refused? The ombudsman seems to be suggesting the return/subsequent loss is the responsibility of the buyer which just doesn't make sense. 

The ombudsman decision seems to amount to the buyer is right but I've managed to find enough leeway in the terms that I will just deny their claim anyway even though those terms are largely/completely irrelevant to the case. Which to be honest is consistent with my experience of using ombudsmen which is that they are too often basically there to find a reason why the company being complained about was ok to do what they did.

Of course as a consumer generally you are at a disadvantage as the seller/bank is going to be more experienced in dealing with the ombudsman and forming responses that work whereas for the average consumer it will be their first time putting a claim in and the won't really know how to do it effectively. 

DullGreyGuy

the_lunatic_is_in_my_head said:

DullGreyGuy said:

There is obviously a question on what exactly is meant in the CRA by "until they come into the physical possession of: (a) the consumer". In both cases it is totally plausible that the consumer has physically handled the package, they've subsequently claimed that they said they dont want to accept the parcel and handed it back. That certainly to me could easily be interpreted that it was in their physical possession and therefore liability transferred as per the CRA and is notably different from the parcel left on the doorstep that then goes AWOL.

I think generally if a parcel is refused it shouldn't be given to the person. 

I agree if the person takes the parcel and then hands it back to refuse then the goods have come into their physical possession meaning risk passed. 

Obviously not possible to prove either way for the OP.

Agree the ruling citied is odd as the parcel didn't leave the doorstep by the account but the adjudicator decided it had been delivered to the address which isn't what the regs say (but could possibly be interpreted as in a legal process).   

To be picky, in the FOS case the customer stated that the box was wet to the touch and therefore must have come into contact with it. 

As to not handling something you'll refuse... how practical that is really depends on what it is, what you're expecting etc. Half the time you open the door and the parcels thrust into your hand before you've had time to think. Indeed the only parcel I've refused in recent years I did handle it first because only on doing so did I see that the parcel was addressed for another property a mile down the road and I didn't fancy the walk.

I am assuming that when it said the customer called the driver back that they were still out their van/on the driveway or such and not that it was a phone call to bring him back to the property. I would say that if you've stood next to your parcel on your doorstep knowing it's there then you have possession of it. If the driver photographs you like that but then you went inside and left the parcel on the doorstep I think you'd have a hard job convincing a court that it wasn't in your possession and so is the merchants problem that it was stolen. It would certainly be negligence to do so and so the merchant could have a claim against you under the law of torts.

tightauldgit

DullGreyGuy said:

the_lunatic_is_in_my_head said:

DullGreyGuy said:

There is obviously a question on what exactly is meant in the CRA by "until they come into the physical possession of: (a) the consumer". In both cases it is totally plausible that the consumer has physically handled the package, they've subsequently claimed that they said they dont want to accept the parcel and handed it back. That certainly to me could easily be interpreted that it was in their physical possession and therefore liability transferred as per the CRA and is notably different from the parcel left on the doorstep that then goes AWOL.

I think generally if a parcel is refused it shouldn't be given to the person. 

I agree if the person takes the parcel and then hands it back to refuse then the goods have come into their physical possession meaning risk passed. 

Obviously not possible to prove either way for the OP.

Agree the ruling citied is odd as the parcel didn't leave the doorstep by the account but the adjudicator decided it had been delivered to the address which isn't what the regs say (but could possibly be interpreted as in a legal process).   

To be picky, in the FOS case the customer stated that the box was wet to the touch and therefore must have come into contact with it. 

As to not handling something you'll refuse... how practical that is really depends on what it is, what you're expecting etc. Half the time you open the door and the parcels thrust into your hand before you've had time to think. Indeed the only parcel I've refused in recent years I did handle it first because only on doing so did I see that the parcel was addressed for another property a mile down the road and I didn't fancy the walk.

I am assuming that when it said the customer called the driver back that they were still out their van/on the driveway or such and not that it was a phone call to bring him back to the property. I would say that if you've stood next to your parcel on your doorstep knowing it's there then you have possession of it. If the driver photographs you like that but then you went inside and left the parcel on the doorstep I think you'd have a hard job convincing a court that it wasn't in your possession and so is the merchants problem that it was stolen. It would certainly be negligence to do so and so the merchant could have a claim against you under the law of torts.

I think we could spend all day coming up with hypotheticals that prove one thing or another - if a courier puts the parcel in your hand then smashes it with a hammer can they rightly claim it was delivered undamaged? - but a judge is going to use a measure of reasonableness in making any decision. If you tell a courier you are refusing a delivery and they take the parcel away from you and mark is as 'refused' then I think any judge is going to say it wasn't received by the buyer. 

the_lunatic_is_in_my_head

DullGreyGuy said:

As to not handling something you'll refuse... how practical that is really depends on what it is, what you're expecting etc. Half the time you open the door and the parcels thrust into your hand before you've had time to think. Indeed the only parcel I've refused in recent years I did handle it first because only on doing so did I see that the parcel was addressed for another property a mile down the road and I didn't fancy the walk.

If I were expecting a £2k parcel from RM that I intended to refuse I would make sure I didn't touch it! In fact the postie wouldn't get through the front gate, but of course not everyone thinks of such things and as you say in most cases people who are handed something simply take it.

DullGreyGuy said:

To be picky, in the FOS case the customer stated that the box was wet to the touch and therefore must have come into contact with it. 

I am assuming that when it said the customer called the driver back that they were still out their van/on the driveway or such and not that it was a phone call to bring him back to the property. I would say that if you've stood next to your parcel on your doorstep knowing it's there then you have possession of it. If the driver photographs you like that but then you went inside and left the parcel on the doorstep I think you'd have a hard job convincing a court that it wasn't in your possession and so is the merchants problem that it was stolen. It would certainly be negligence to do so and so the merchant could have a claim against you under the law of torts.

I agree they called him back and note "wet to the touch" was probably a poor choice of words for the customer to use in their position. 

I've never seen anything that clarifies what "physical possession" is either directly or in the spirit of the law. Each case would have to be decided on the specifics to the court's interpretation. 

If in such a position I would use the argument that it is the trader's obligation to deliver and their choice of using a third party has lead to complications that are far less likely to occur had the trader carried out the obligation themselves, as they'd take greater care of the goods and performed deliver with diligence, meaning such a situation wouldn't arise. Whether that would be seen as a load of waffle or a valid point I have no idea. 

tightauldgit

It's also worth remembering that in cases like the one the FOS ruled on it's standard advice that you SHOULD refuse to accept packages which are obviously damaged to avoid any debate about whether the damage happened before or after you received it. So it seems that consumers can't win.

DullGreyGuy

tightauldgit said:

DullGreyGuy said:

the_lunatic_is_in_my_head said:

DullGreyGuy said:

There is obviously a question on what exactly is meant in the CRA by "until they come into the physical possession of: (a) the consumer". In both cases it is totally plausible that the consumer has physically handled the package, they've subsequently claimed that they said they dont want to accept the parcel and handed it back. That certainly to me could easily be interpreted that it was in their physical possession and therefore liability transferred as per the CRA and is notably different from the parcel left on the doorstep that then goes AWOL.

I think generally if a parcel is refused it shouldn't be given to the person. 

I agree if the person takes the parcel and then hands it back to refuse then the goods have come into their physical possession meaning risk passed. 

Obviously not possible to prove either way for the OP.

Agree the ruling citied is odd as the parcel didn't leave the doorstep by the account but the adjudicator decided it had been delivered to the address which isn't what the regs say (but could possibly be interpreted as in a legal process).   

To be picky, in the FOS case the customer stated that the box was wet to the touch and therefore must have come into contact with it. 

As to not handling something you'll refuse... how practical that is really depends on what it is, what you're expecting etc. Half the time you open the door and the parcels thrust into your hand before you've had time to think. Indeed the only parcel I've refused in recent years I did handle it first because only on doing so did I see that the parcel was addressed for another property a mile down the road and I didn't fancy the walk.

I am assuming that when it said the customer called the driver back that they were still out their van/on the driveway or such and not that it was a phone call to bring him back to the property. I would say that if you've stood next to your parcel on your doorstep knowing it's there then you have possession of it. If the driver photographs you like that but then you went inside and left the parcel on the doorstep I think you'd have a hard job convincing a court that it wasn't in your possession and so is the merchants problem that it was stolen. It would certainly be negligence to do so and so the merchant could have a claim against you under the law of torts.

I think we could spend all day coming up with hypotheticals that prove one thing or another - if a courier puts the parcel in your hand then smashes it with a hammer can they rightly claim it was delivered undamaged? - but a judge is going to use a measure of reasonableness in making any decision. If you tell a courier you are refusing a delivery and they take the parcel away from you and mark is as 'refused' then I think any judge is going to say it wasn't received by the buyer. 

But this is the problem in both cases... the records are confused. In the OPs case RM say they delivered the parcel and then several hours later it marked as refused but no further tracking on the parcel until 4 months later when again its marked as delivered. They are now saying the much later notes are operator errors but still leaves the conflicting records from the date of delivery and the fact the parcel was never scanned again. 

This was also the problem in the other case, conflicting courier scans and a parcel that just disappeared. The Ombudsman in that case ultimately said that on the balance of probability the complainer had failed to demonstrate that he hadnt received the goods

the_lunatic_is_in_my_head said:

DullGreyGuy said:

As to not handling something you'll refuse... how practical that is really depends on what it is, what you're expecting etc. Half the time you open the door and the parcels thrust into your hand before you've had time to think. Indeed the only parcel I've refused in recent years I did handle it first because only on doing so did I see that the parcel was addressed for another property a mile down the road and I didn't fancy the walk.

If I were expecting a £2k parcel from RM that I intended to refuse I would make sure I didn't touch it! In fact the postie wouldn't get through the front gate, but of course not everyone thinks of such things and as you say in most cases people who are handed something simply take it.

You clearly dont have a Mrs that orders things online without telling you nor had the experience of Amazon where a single small drill bit turns up in a box big enough that your great dane still uses it as a bed. Cant stop the postie getting through the gate and 90% of the time would need to look at the parcel to know if its my £2k parcel to be refused or my wife's latest purchases.

Alderbank

To muddy the water even more, Vendi's strange T&Cs includes the following:

6. BUYER PROCESS + CONDITIONS
The delivery company used by vendi will be responsible for any loss or damage that occurs to your phone during transit. We will provide you with the tracking information to raise a claim with the courier.
We will be able to compensate as much as the courier is able to pay us back after we open a claim. Please allow up to 40 days to process the claim to get the figure that will be paid back.

This implies to me that they consider that risk has passed to the buyer at the point where the goods are handed to their delivery company.
I can't see anything in the T&Cs which overtly states when risk passes (I didn't really expect to).

The above term is possibly an Unfair Contract Term. The T&Cs are full of weird stuff including these gems:

6.11. ...providing any fake personal information is not allowed... We reserve the right to impose a penalty of up to £500.

6.12. If you attempt to buy any products with stolen cards (debit or credit) or with fake accounts we reserve the right to impose a penalty of up to £1,000.