Retailer refusing refund for item that they say I’ve used

piggylily

Hello. I’ve had ongoing issues with a company I bought a trolley and bag with (online, credit card). I received and inspected the items - was unhappy with aspects of both - photographed and expressed my request to return and refund. The items were placed back in the original box and packaging and brown taped.  After a long email exchange over days, eventually it was agreed that the issue I had with a bag was apparently what the manufacturer intended (so I’d be returning it as change of mind) and they’d send me a replacement part for the trolley - I refused and said my right was also to request a refund. They said I had to return it at my cost and I said that wasn’t right for an item that had damage, but their terms said I’d have to pay for the bag to be returned at my cost. As both items were in the same original box, I suggested I pay a proportion of the return cost (which would be deducted from my refund total) to get it moving… the company said it would be 50% of the delivery cost and they would arrange the courier to pickup. The box arrived with them last Thursday and today (Tuesday) they have emailed showing what they describe as “scuff marks” to parts of the trolley saying I’ve used it and their refund policy states that refunds would be given for unused items (which had been put in bold for my attention). I went back and stated very clearly that I never used the item … I put it back in the box after the inspection. I reflected on the images and wonder if the marks were caused in transit with the thin cardboard supplied / bag rubbing against the trolley part. I reused their packaging, placing it back as it was sent and explained this. 

I’m extremely annoyed with them - the experience of trying to articulate my rights and now they are blaming with for using an item. I phoned consumer service England and they said I have legal rights and to email them again stipulating this and reiterating my request for the  refund as we agreed giving them 14 days for a reply. I am worried as I’ve not been in this situation before. Please can someone advise as to whether I’ll get my refund for both items. 

Alderbank

You are entitled to change of mind refund for the bag and also a refund for the faulty trolley.
Since they offered replacement parts to repair the trolley they have accepted that it was faulty. When or how it got scuffed is not really relevant. Their T&Cs cannot override your statutory rights.
The deal you brokered to share the cost of return is fine.

Your question is whether you will actually get your refund for both items. That's a harder question to answer.

Who did you buy from? Was it a marketplace site like Amazon or eBay?
How much did each item cost and how did you pay?

piggylily

Thank you. It’s an online retailer. I paid by credit card (between 3 and 4 hundred). The invoice shows one item (the trolley with the bag). It’s not itemised into the trolley and the bag. Maybe they should have covered the full cost of the return as it’s treated as one item. 

Alderbank said:

You are entitled to change of mind refund for the bag and also a refund for the faulty trolley.
Since they offered replacement parts to repair the trolley they have accepted that it was faulty. When or how it got scuffed is not really relevant. Their T&Cs cannot override your statutory rights.
The deal you brokered to share the cost of return is fine.

Your question is whether you will actually get your refund for both items. That's a harder question to answer.

Who did you buy from? Was it a marketplace site like Amazon or eBay?
How much did each item cost and how did you pay?

the_lunatic_is_in_my_head

Can you post the name of the website please

If you can advise the cost of the trolley and the bag (separately assuming they were wo different products) that would be helpful too  

piggylily

the_lunatic_is_in_my_head said:

Can you post the name of the website please

If you can advise the cost of the trolley and the bag (separately assuming they were wo different products) that would be helpful too  

£341.96 as explained above, I’ve just noticed on the invoice that it’s a combined cost - the trolley and bag are one item. It’s Hitch A Bike. 

Okell

When you say "trolley" is it a bike trailer plus bag?

When you say " I received and inspected the items - was unhappy with aspects of both...", what do you mean by "unhappy"?

Was it (or they faulty) or were they not what you were expecting?

Alderbank

You are right to be unhappy - I would be unhappy with some of their T&Cs.

In some cases an item may only be returned if it was received in a damaged condition. You (the buyer) will incur all costs related to return shipping of these items.

If your item(s) do arrived damaged, please send photos... and we will process an insurance claim on your behalf. 

Oh dear.

piggylily

Okell said:

When you say "trolley" is it a bike trailer plus bag?

Shopping trolley plus bag (will link up to a bike with attachment but I didn’t buy the attachment). 

When you say " I received and inspected the items - was unhappy with aspects of both...", what do you mean by "unhappy"?

There was a mark (stain) and raised bump on the handle where the fingers rest.  The bag’s stitching was uneven - neat edge then went into a frayed edge. Apparently the latter was according to the retailer what the manufacturer intended. They offered to replace the handle. 

Was it (or they faulty) or were they not what you were expecting?

See above. 

I’ve answered above. 

the_lunatic_is_in_my_head

piggylily said:

the_lunatic_is_in_my_head said:

Can you post the name of the website please

If you can advise the cost of the trolley and the bag (separately assuming they were wo different products) that would be helpful too  

£341.96 as explained above, I’ve just noticed on the invoice that it’s a combined cost - the trolley and bag are one item. It’s Hitch A Bike. 

Thanks OP

I would send them the below with a few caveats that should be noted first.

The below is based on the information on their website, you should check any emails or paperwork you may have received to confirm 1) the terms and conditions for cancelling equal those on the website (i.e no refund unless new, etc) 2) they did not advise of the cost of return

With regards to the cost of return if the goods could be returned by normal post at the Post Office please delete that section (or I can repost with it deleted ). 

The letter may be a bit strong in the last paragraph, as they are in obvious breach of the law (based on what's written on their website), if you feel a softer approach is more appropriate you may wish to alter the tone somewhat. 

I'm struggling a bit with the new forum layout, there may be errors in spelling!  

Lastly you have the exact same argument against your credit card provider, if the retailer digs their heels in you should contact your bank to carry out a Section 75 claim rather than sending letters and going to small claims as the letter suggests. Personally I would ensure your card company carries out your request specifically as S75 rather than as a chargeback. 

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Dear Hitch A Bike

I am writing to you regarding order xx, as previously discussed this has been returned to you and I am now advising you that I am exercising my right of cancellation under the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and am seeking a full refund.

Your terms advise:

Refunds on returns will only be accepted if the customer returns the product in its original packaging, unused, with all labels in tact and any documentation that comes with the item.

This term does not comply with the requirements under regulations 27 to 38 as there are specific limits of applications that allow the trader to refuse the right of cancellation and the condition of the goods is not one of them.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/28

Limits of Application (for your reference)

As your terms do not comply with the regulations you are unable to reduce the refund for any handling that may be deemed above what is necessary to establish the nature and characteristics of the goods and as such must reimburse me in full within 14 days of the date you received the returned goods.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/34

Reimbursement by trader in the event of withdrawal or cancellation

(9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

(10) An amount that may be recovered under paragraph (9)—

(a)may be deducted from the amount to be reimbursed under paragraph (1);

(b)otherwise, must be paid by the consumer to the trader.

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

https://www.legislation.gov.uk/uksi/2013/3134/schedule/2

SCHEDULE 2 Information relating to distance and off-premises contracts

(l)where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38;

With regards to the return costs, as the goods may not be returned via normal post and you have not advised of the cost of returning the goods you are responsible for the full cost of the return.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/35

Return of goods in the event of cancellation

(5) The consumer must bear the direct cost of returning goods under paragraph (2), unless—

(a)the trader has agreed to bear those costs, or

(b)the trader failed to provide the consumer with the information about the consumer bearing those costs, required by paragraph (m) of Schedule 2, in accordance with Part 2.

https://www.legislation.gov.uk/uksi/2013/3134/schedule/2

SCHEDULE 2 Information relating to distance and off-premises contracts

(m)where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;

The legislation is clear and unambiguous, your terms and conditions are unfortunately on the wrong side of the legislation which entitles to me the refunds as stated above. Should they not be forthcoming I shall instruct a firm to send the required pre-action protocol letter and then commence with small claims proceedings to recover the sums due.

I would prefer if we are able to resolve this matter amicably and look forward to hearing from you further, 

Sincerely,

piggylily

piggylily

the_lunatic_is_in_my_head said:

piggylily said:

the_lunatic_is_in_my_head said:

Can you post the name of the website please

If you can advise the cost of the trolley and the bag (separately assuming they were wo different products) that would be helpful too  

£341.96 as explained above, I’ve just noticed on the invoice that it’s a combined cost - the trolley and bag are one item. It’s Hitch A Bike. 

Thanks OP

I would send them the below with a few caveats that should be noted first.

The below is based on the information on their website, you should check any emails or paperwork you may have received to confirm 1) the terms and conditions for cancelling equal those on the website (i.e no refund unless new, etc) 2) they did not advise of the cost of return

With regards to the cost of return if the goods could be returned by normal post at the Post Office please delete that section (or I can repost with it deleted ). 

The letter may be a bit strong in the last paragraph, as they are in obvious breach of the law (based on what's written on their website), if you feel a softer approach is more appropriate you may wish to alter the tone somewhat. 

I'm struggling a bit with the new forum layout, there may be errors in spelling!  

Lastly you have the exact same argument against your credit card provider, if the retailer digs their heels in you should contact your bank to carry out a Section 75 claim rather than sending letters and going to small claims as the letter suggests. Personally I would ensure your card company carries out your request specifically as S75 rather than as a chargeback. 

------------------------------------------------------------------------------------------------------------------

Dear Hitch A Bike

I am writing to you regarding order xx, as previously discussed this has been returned to you and I am now advising you that I am exercising my right of cancellation under the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and am seeking a full refund.

Your terms advise:

Refunds on returns will only be accepted if the customer returns the product in its original packaging, unused, with all labels in tact and any documentation that comes with the item.

This term does not comply with the requirements under regulations 27 to 38 as there are specific limits of applications that allow the trader to refuse the right of cancellation and the condition of the goods is not one of them.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/28

Limits of Application (for your reference)

As your terms do not comply with the regulations you are unable to reduce the refund for any handling that may be deemed above what is necessary to establish the nature and characteristics of the goods and as such must reimburse me in full within 14 days of the date you received the returned goods.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/34

Reimbursement by trader in the event of withdrawal or cancellation

(9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

(10) An amount that may be recovered under paragraph (9)—

(a)may be deducted from the amount to be reimbursed under paragraph (1);

(b)otherwise, must be paid by the consumer to the trader.

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

https://www.legislation.gov.uk/uksi/2013/3134/schedule/2

SCHEDULE 2 Information relating to distance and off-premises contracts

(l)where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38;

With regards to the return costs, as the goods may not be returned via normal post and you have not advised of the cost of returning the goods you are responsible for the full cost of the return.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/35

Return of goods in the event of cancellation

(5) The consumer must bear the direct cost of returning goods under paragraph (2), unless—

(a)the trader has agreed to bear those costs, or

(b)the trader failed to provide the consumer with the information about the consumer bearing those costs, required by paragraph (m) of Schedule 2, in accordance with Part 2.

https://www.legislation.gov.uk/uksi/2013/3134/schedule/2

SCHEDULE 2 Information relating to distance and off-premises contracts

(m)where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;

The legislation is clear and unambiguous, your terms and conditions are unfortunately on the wrong side of the legislation which entitles to me the refunds as stated above. Should they not be forthcoming I shall instruct a firm to send the required pre-action protocol letter and then commence with small claims proceedings to recover the sums due.

I would prefer if we are able to resolve this matter amicably and look forward to hearing from you further, 

Sincerely,

piggylily

Thank you for taking the time to review their terms and draft this reply.  Forgive me - I didn’t say that when I first told them I noticed defects and requested a refund, they replied that they could arrange collection with their courier (just under £19) or I could arrange one independently (which would have been pricier) - again, from the get go, this would have been at my cost not theirs. When I agreed to their courier collecting and paying 50% of the collection fee (just over £9 which would be taken from the refund total), I didn’t receive any instructions on packing and then the courier came who was DPD hence I could track when it arrived with them. Knowing this, are the references to postage and costs in your draft letter still appropriate? I ask because my head spins a bit at all the jargon and I want to ensure it’s appropriate before using. 

piggylily

@the_lunatic_is_in_my_head I’d be interested to know why you would not recommend a chargeback? I called my CC company for advice and they said they wouldn’t advise doing a S75 as it would “take years” but a chargeback is easier and quicker.