Stolen parcel left unattended by Royal Mail

the_lunatic_is_in_my_head

RefluentBeans said:

I suppose, looking through the lens of the delivery company having ‘safe’ spaces to drop the parcel is a no brainier - they waive their responsibility as they now can just deliver to a porch, they can take the photo and run. It means that they cant easily be held liable for not safely delivering the parcel, so it’s the retailer that absorbed the risk under the CRA. 

The safe place obviously assists in their liability but it's main draw is only making one visit to a property, having to go back more than once is expensive and they really want to avoid doing so. 

The law itself isn't really an issue, rather a lack of clarification on what it means.  

If safe places meet physical possession then that's that, if they don't then retailer's are free to weigh the risks vs the costs, it would just be nice to know where the line is drawn so we can best advise people looking for help on such issues. 

tightauldgit

the_lunatic_is_in_my_head said:

RefluentBeans said:

I suppose, looking through the lens of the delivery company having ‘safe’ spaces to drop the parcel is a no brainier - they waive their responsibility as they now can just deliver to a porch, they can take the photo and run. It means that they cant easily be held liable for not safely delivering the parcel, so it’s the retailer that absorbed the risk under the CRA. 

The safe place obviously assists in their liability but it's main draw is only making one visit to a property, having to go back more than once is expensive and they really want to avoid doing so. 

The law itself isn't really an issue, rather a lack of clarification on what it means.  

If safe places meet physical possession then that's that, if they don't then retailer's are free to weigh the risks vs the costs, it would just be nice to know where the line is drawn so we can best advise people looking for help on such issues. 

I would disagree, the law does appear to be an issue. If it's as you say and it's not possible for a consumer to 'contract out' of the passing of risk then suppliers who understood that would surely stop leaving things in safe places which is going to cause a raft of problems for consumers either that or it's just going to encourage suppliers to be obstructive as we see currently in the knowledge that people probably aren't going to take matters to court - so effectively unethical suppliers would win an advantage over ethical ones. 

Certainly a clarification would help everyone but it also looks like the law as it stands has to be amended to acknowledge the existence of 'safe places' and that consumers can opt for that option and accept the risk. 

Alderbank

tightauldgit said:

the_lunatic_is_in_my_head said:

RefluentBeans said:

I suppose, looking through the lens of the delivery company having ‘safe’ spaces to drop the parcel is a no brainier - they waive their responsibility as they now can just deliver to a porch, they can take the photo and run. It means that they cant easily be held liable for not safely delivering the parcel, so it’s the retailer that absorbed the risk under the CRA. 

The safe place obviously assists in their liability but it's main draw is only making one visit to a property, having to go back more than once is expensive and they really want to avoid doing so. 

The law itself isn't really an issue, rather a lack of clarification on what it means.  

If safe places meet physical possession then that's that, if they don't then retailer's are free to weigh the risks vs the costs, it would just be nice to know where the line is drawn so we can best advise people looking for help on such issues. 

Certainly a clarification would help everyone but it also looks like the law as it stands has to be amended to acknowledge the existence of 'safe places' and that consumers can opt for that option and accept the risk. 

Are we certain that the law hasn't been amended here?

Under our legal system it would be unusual for relatively minor issues like this to be amended by changing primary legislation. Our process is that judges 'interpret' the law to reflect the intention of the legislators. This process of precedent is only persuasive at lower courts but still taken into account by judges, and precedent by an appellate court is as binding as the primary legislation. 

Are we sure there are not any precedents?

Undervalued

Alderbank said:

tightauldgit said:

the_lunatic_is_in_my_head said:

RefluentBeans said:

I suppose, looking through the lens of the delivery company having ‘safe’ spaces to drop the parcel is a no brainier - they waive their responsibility as they now can just deliver to a porch, they can take the photo and run. It means that they cant easily be held liable for not safely delivering the parcel, so it’s the retailer that absorbed the risk under the CRA. 

The safe place obviously assists in their liability but it's main draw is only making one visit to a property, having to go back more than once is expensive and they really want to avoid doing so. 

The law itself isn't really an issue, rather a lack of clarification on what it means.  

If safe places meet physical possession then that's that, if they don't then retailer's are free to weigh the risks vs the costs, it would just be nice to know where the line is drawn so we can best advise people looking for help on such issues. 

Certainly a clarification would help everyone but it also looks like the law as it stands has to be amended to acknowledge the existence of 'safe places' and that consumers can opt for that option and accept the risk. 

Are we certain that the law hasn't been amended here?

Under our legal system it would be unusual for relatively minor issues like this to be amended by changing primary legislation. Our process is that judges 'interpret' the law to reflect the intention of the legislators. This process of precedent is only persuasive at lower courts but still taken into account by judges, and precedent by an appellate court is as binding as the primary legislation. 

Are we sure there are not any precedents?

Exactly this ^^^^^^

the_lunatic_is_in_my_head

tightauldgit said:

 then suppliers who understood that would surely stop leaving things in safe places

What makes you say this? I would imagine millions of parcels are left in safe places and the number of problems is very small. 

If the cost of not leaving in safe places is greater than the losses of replacing/refunding those who have an issue that's what is going to happen, it's simple business sense.

I would also imagine the number of false claims of non-delivery is far higher than genuine cases of loss or damage to a parcel whilst they seek refugee in a safe place for a short while. 

tightauldgit said:

 it's just going to encourage suppliers to be obstructive as we see currently in the knowledge that people probably aren't going to take matters to court - so effectively unethical suppliers would win an advantage over ethical ones. 

That applies to any obligations, that's an enforcement issue rather than specifics of the law.

tightauldgit said:

Certainly a clarification would help everyone but it also looks like the law as it stands has to be amended to acknowledge the existence of 'safe places' and that consumers can opt for that option and accept the risk. 

Consumer rights are designed to inspire confidence which increases spending and keeps the economy going.

If there was a change to the legislation it would depend on how the government felt such a change would affect confidence, spending and the economy (as I've said before should they know or care).

If as Alderbank points out it's clarified by a higher court that would become the interpretation of the law until a further higher court ruled otherwise.  

Teacholic

Just an update. Eventually the online retailer refunded the money without the official steps. not going to use them again though in the future, although I know it’s Royal Mail mistake, the attitude around sorting that was awful and I wasn’t actually able to deal with RM directly regarding this.  

the_lunatic_is_in_my_head

Teacholic said:

Just an update. Eventually the online retailer refunded the money without the official steps. not going to use them again though in the future, although I know it’s Royal Mail mistake, the attitude around sorting that was awful and I wasn’t actually able to deal with RM directly regarding this.  

Thanks for the update OP, glad to hear you got this sorted  

Okell

Teacholic said:

Just an update. Eventually the online retailer refunded the money without the official steps. not going to use them again though in the future, although I know it’s Royal Mail mistake, the attitude around sorting that was awful and I wasn’t actually able to deal with RM directly regarding this.  

Thanks for the update and well done.

It was always going to be the retailer's responsibility to refund you, and nothing to do with RM.

Out of interest, you originally said the retailer was being very uncooperative and refusing to refund you.  What did you actually tell them to make them change their mind?

(And what do you mean by "official steps"?)

Okell

RefluentBeans said:

the_lunatic_is_in_my_head said:

tightauldgit said:

It's interesting that the CAB disagree with the view here that a safe place doesn't satisfy the CRA - I wonder what they are basing that on?

https://www.citizensadvice.org.uk/consumer/somethings-gone-wrong-with-a-purchase/if-something-you-ordered-hasnt-been-delivered/#:~:text="Under the Consumer Rights Act,I have not received it.”

However they certainly do appear to agree that in a case like the OP where you haven't told them to leave something in a safe place then it's the seller's responsibility.

ETA: Maybe Section 28.2 covers the safe place? 'Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer" - if you agree that the trader delivers the goods to your shed rather than you then I guess that would satisfy the law? 

Just to come back to this, CAB said discussing the specific definition of "physical possession", or any finer points of law, was outside their scope. 

In reference to their guidance they said the consumer's agreement to leave the goods in another place would be a new term of the contract. When I pointed out that passing of risk was liability that could not be excluded and falls within the "blacklist" of terms that are always unfair this too was outside of their scope. 

My issue with their guidance is that physical possession has to be within a set parameter, that may be your actual hands or something like your letter box, porch, shed, doorstep, or whatever, however given the inability to exclude liability I fail to see how the parameter of physical possession can be altered by the consumer's choice of opting for what would be an unfair term, (other than physical possession of another named by the consumer as this is specifically allowed under the legislation).  

Alas the debate rages on without any clarification. 

I think that’s the issue right - the law isn’t fit fit for purpose. Before pandemic when a parcel necessitated a signature so the delivery driver had to ring the bell and wait for the consumer to come and sign for it, there was the assumption that you’d be signing for that parcel (I also appreciate that some delivery companies were already moving to drop and run sort of models - especially like Amazon). Now with photos they can ring the bell, drop the parcel and photo - it makes it far quicker for the delivery company but doesn’t meet that obligation of the law. 

I suppose, looking through the lens of the delivery company having ‘safe’ spaces to drop the parcel is a no brainier - they waive their responsibility as they now can just deliver to a porch, they can take the photo and run. It means that they cant easily be held liable for not safely delivering the parcel, so it’s the retailer that absorbed the risk under the CRA. 

I think the law needs to be rewritten or at least updated - it’s not really fair that the retailer absorbs all the responsibility - it should be shared between at least the delivery company and the retailer. I don’t see the incidence of these types of issues going down, but only going up. 

Why would the law need to be changed?

The only party that needs to be protected is the consumer and they are already adequately protected.

The retailers and the courier companies are all considered to be "big boys" and to be able to look after themselves.  If retailers don't have enough bargaining power to negotiate contracts with couriers that make the couriers liable if they fail to ensure that retailers' legal obligations are met, then retailers need to increase their prices accordingly to ensure that on the rare occasions when things do go wrong, they are able to compansate consumers appropriately and not make the disingenuous and dishonest claim that because something has been left on a doorstep that they have no liability.

I don't actually think these issues occur that frquently anyway.  Cetainly not frequently enough for Parliament to decide to intervene in contractual negotiations between two parties who are both at liberty to take or leave the contract terms.

If retailers can't fulfil their legal obligations under the existing legislation they should seriously consider whether they want to continue distance selling because I can't see it changing.

RefluentBeans

Okell said:

RefluentBeans said:

the_lunatic_is_in_my_head said:

tightauldgit said:

It's interesting that the CAB disagree with the view here that a safe place doesn't satisfy the CRA - I wonder what they are basing that on?

https://www.citizensadvice.org.uk/consumer/somethings-gone-wrong-with-a-purchase/if-something-you-ordered-hasnt-been-delivered/#:~:text="Under the Consumer Rights Act,I have not received it.”

However they certainly do appear to agree that in a case like the OP where you haven't told them to leave something in a safe place then it's the seller's responsibility.

ETA: Maybe Section 28.2 covers the safe place? 'Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer" - if you agree that the trader delivers the goods to your shed rather than you then I guess that would satisfy the law? 

Just to come back to this, CAB said discussing the specific definition of "physical possession", or any finer points of law, was outside their scope. 

In reference to their guidance they said the consumer's agreement to leave the goods in another place would be a new term of the contract. When I pointed out that passing of risk was liability that could not be excluded and falls within the "blacklist" of terms that are always unfair this too was outside of their scope. 

My issue with their guidance is that physical possession has to be within a set parameter, that may be your actual hands or something like your letter box, porch, shed, doorstep, or whatever, however given the inability to exclude liability I fail to see how the parameter of physical possession can be altered by the consumer's choice of opting for what would be an unfair term, (other than physical possession of another named by the consumer as this is specifically allowed under the legislation).  

Alas the debate rages on without any clarification. 

I think that’s the issue right - the law isn’t fit fit for purpose. Before pandemic when a parcel necessitated a signature so the delivery driver had to ring the bell and wait for the consumer to come and sign for it, there was the assumption that you’d be signing for that parcel (I also appreciate that some delivery companies were already moving to drop and run sort of models - especially like Amazon). Now with photos they can ring the bell, drop the parcel and photo - it makes it far quicker for the delivery company but doesn’t meet that obligation of the law. 

I suppose, looking through the lens of the delivery company having ‘safe’ spaces to drop the parcel is a no brainier - they waive their responsibility as they now can just deliver to a porch, they can take the photo and run. It means that they cant easily be held liable for not safely delivering the parcel, so it’s the retailer that absorbed the risk under the CRA. 

I think the law needs to be rewritten or at least updated - it’s not really fair that the retailer absorbs all the responsibility - it should be shared between at least the delivery company and the retailer. I don’t see the incidence of these types of issues going down, but only going up. 

Why would the law need to be changed?

The only party that needs to be protected is the consumer and they are already adequately protected.

The retailers and the courier companies are all considered to be "big boys" and to be able to look after themselves.  If retailers don't have enough bargaining power to negotiate contracts with couriers that make the couriers liable if they fail to ensure that retailers' legal obligations are met, then retailers need to increase their prices accordingly to ensure that on the rare occasions when things do go wrong, they are able to compansate consumers appropriately and not make the disingenuous and dishonest claim that because something has been left on a doorstep that they have no liability.

I don't actually think these issues occur that frquently anyway.  Cetainly not frequently enough for Parliament to decide to intervene in contractual negotiations between two parties who are both at liberty to take or leave the contract terms.

If retailers can't fulfil their legal obligations under the existing legislation they should seriously consider whether they want to continue distance selling because I can't see it changing.

As others have said - if there’s confusion in the legalisation, especially over when risk is transferred to the consumer, then the retailers have a fair argument to withhold refunds. I don’t agree that’s right, but currently there is massive confusion (not just on a board like this which is not ‘professional’ advice, but also from citizens advice bureau who presumably have done an actual review of the law compared to us looking at the acts. 

I would argue where there is confusion and clearly a misfit of the law as written and the practicalities of the modern world, and the consumer is left with unintended risk, that the law fails to do what it was designed to do - protect consumers rights. 

The law needs updating, and although the amount of issues are low, and the amount of issues that result from this specific wording is low, it’s only going to get worse. The increase in porch pirates, as well as the increasing volume of consumers ordering primarily online isn’t a trend that’s going away. 

Additionally - although we all like to think that companies are ‘big business’ like Amazon who have the resources to screw everyone over and so the consumer is the little guy, there’s an awful lot of small business online who can’t go to Royal Mail/DPD/FedEx and demand a custom contract. My argument is that the middle men in these contracts shoulder none of the risk. If they mark it as delivered and put it just over the border of the property - just perched on the drive, then they apparently absolve themselves of all risk, meaning that the business has to take the risk whilst being unable to claim against the courier company. That doesn’t seem right, and surely wasn’t the intended purpose of the law. 

Finally - the law is currently written that if the parcel is left in a safe space, and the consumer collects it, they could, in theory, claim that they haven’t received the parcel, and the default position, apparently, should be that the seller has to refund or replace. This is open for abuse. If the risk is shared with the delivery agent then they are incentivised to get the parcel there safely and ensure the customer has actually received it.