John Lewis denying my right to repair or replacement?

StarlightStarbright455

Hi everyone,

I’d be grateful if anyone could let me know if they think I have a case to ask for ADR or send a letter before action to John Lewis.  I’ll try and explain below, but I believe that they are denying me either a repair or replacement which is my right according to section 23 of the CRA 2015.  They have accepted I have a claim under the CRA but will only offer me a partial refund.  The Act states that they can offer a refund if they are unable to offer repair or replacement.  They are not (they are still selling the product so could replace and I have sent them the engineers report from Apple stating the cost of repair) they are simply unwilling to offer this.  A partial refund is their only and final offer.  They have told me the remedy is their choice.  

As background, I purchased a pair of Apple AirPod Pros from John Lewis (online) in December 2019 for the price of £249.  They have performed well up until approximately 3 weeks ago when they started to emit a crackling/static noise.  I have taken care of the AirPods and they have not been damaged in any way.  

I researched this issue on the Apple website and I found that there was a manufacturing defect with AirPod Pros manufactured before October 2020 and the website directed me to book an appointment at the Genius Bar at my local Apple Store.  

When I took the AirPods in to the store they were inspected for any damage (it was confirmed that there was no damage to them) but that they were defective and would be covered under the replacement programme by Apple. (Although outside of the warranty period, the Consumer Rights Act 2015 would still entitle me to replacement or repair as it is a known manufacturing defect that has been rectified in subsequent generations of AirPods Pro and my claim is within the six year period for electrical items).  

Upon checking the serial number it was established that I purchased them from John Lewis and as my contract is with them that I should seek redress from them as Apple has no liability to me.  

Having been back and forth with John Lewis’ technical support department and customer services many times, they have gone from saying they have no liability to me as the AirPods are out of warranty to agreeing that I have a valid claim under the CRA as my claim is within the six years of date of purchase (they have been supplied with the Apple Engineer’s report and have accepted this as proof that the AirPods are faulty).

I asked them for either repair or replacement, which I believe is my right under section 23 of the CRA.  

The Apple Engineer’s report gives a figure of £178 to repair the AirPods.  I have said that this will be acceptable to me and I will arrange for my local Apple store to repair them at my own inconvenience.  

I have also said that I would accept a replacement.  John Lewis are currently selling Apple AirPod Pros at a cost of £199 on their website.  I would send them back the faulty AirPods (at their expense).  

Their only and final offer is a £85.05 partial refund.  They have cited ‘wear and tear‘ and the ‘years of benefit’ I have already enjoyed from the AirPods.  I believe this is unreasonable, as they have not offered me the options of repair or replacement that I have asked for.  Their only offer leaves me substantially out of pocket through no fault of my own when all I would like to achieve is repair or replacement of the AirPods.

I think this is illegal, am I correct?  John Lewis have told me that they have the right to decide the remedy and I have no say in the matter.  From reading the law it states that they should offer me either repair or replacement (either of which is their choice - section 23) unless they are unable to do so.  Clearly they are able to do this, just unwilling.  

Many thanks in advance for your help and advice and for reading!  

screech_78

Yes, it’s fair as the cost of repairing is disproportionate on a four year old item.

And I can say with 99% certainty that they can’t replace your AirPods. The AirPods you have will be a different model which they will no longer stock. 

So a partial refund is fair. 

Okell

I think that you [ie @StarlightStarbright455 - edited for clarity] are correct.

You are entitled - in the first instance - to request either a repair or a replacement.

JL must comply with your request except insofar as the remedy you ask for is "disproportionate" compared to the other one.  So if you ask for a repair, they could replace if repair was "disproporti.onate".  And vice versa.

After one failed attempt at repair or replacement you have a right to a refund - reduced to account for use if you bought over 6 months ago.

My understanding is that JL do not have an option of offering you a refund in the first instance if you want repair or replacemnt

Okell

screech_78 said:

Yes, it’s fair as the cost of repairing is disproportionate on a four year old item.

And I can say with 99% certainty that they can’t replace your AirPods. The AirPods you have will be a different model which they will no longer stock. 

So a partial refund is fair. 

Does "disproportionality" come into it at all?  Doesn't that test only apply when comparing repair versus replacement?

s23 says:

"...(2)  If the consumer requires the trader to repair or replace the goods, the trader must  [my bold for emphasis]

(a)  do so within a reasonable time and without significant inconvenience to the consumer, and

(b)  bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).

(3)  The consumer cannot require the trader to repair or replace the goods if that remedy (the repair or the replacement)—

(a)  is impossible, or

(b)  is disproportionate compared to the other of those remedies."  [my bold for emphasis]

My reading of that wording is that it doesn't give JL the option of offering a refund if the consumer wants a repair or replacement.

If a replacement is impossible "disproportionality" doesn't come into it.  The consumer is entitled to a repair.  (Or the offer of a refund that they are willing to accept).

StarlightStarbright455

screech_78 said:

Yes, it’s fair as the cost of repairing is disproportionate on a four year old item.

And I can say with 99% certainty that they can’t replace your AirPods. The AirPods you have will be a different model which they will no longer stock. 

So a partial refund is fair. 

They do sell the same model online and in store (AirPods Pro) just the 2nd generation of this same model (which were developed to solve this manufacturing defect, ironically).  

Apple said to me that they would likely swap the defective AirPods for a new or reconditioned 2nd generation pair rather than repair if I’d bought directly with them.  I’d be absolutely fine with a reconditioned pair.  Not sure why JL have refused to deal with Apple on this issue and try to come to an arrangement that works for everyone - I asked them to do this.  They are very firm that they get to choose the remedy which is a partial refund and nothing else, so we have reached a deadlock.  

Not sure whether or not to take to ADR or accept the £85…but it will cost me £100+ to buy a new pair which I really can’t afford at the moment.   Expensive lesson learned to avoid JL in the future for Apple/electrical products!  

StarlightStarbright455

Okell said:

screech_78 said:

Yes, it’s fair as the cost of repairing is disproportionate on a four year old item.

And I can say with 99% certainty that they can’t replace your AirPods. The AirPods you have will be a different model which they will no longer stock. 

So a partial refund is fair. 

Does "disproportionality" come into it at all?  Doesn't that test only apply when comparing repair versus replacement?

s23 says:

"...(2)  If the consumer requires the trader to repair or replace the goods, the trader must  [my bold for emphasis]

(a)  do so within a reasonable time and without significant inconvenience to the consumer, and

(b)  bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).

(3)  The consumer cannot require the trader to repair or replace the goods if that remedy (the repair or the replacement)—

(a)  is impossible, or

(b)  is disproportionate compared to the other of those remedies."  [my bold for emphasis]

My reading of that wording is that it doesn't give JL the option of offering a refund if the consumer wants a repair or replacement.

If a replacement is impossible "disproportionality" doesn't come into it.  The consumer is entitled to a repair.  (Or the offer of a refund that they are willing to accept).

This was my understanding of reading the legislation too.  They get the choice between repair or replacement but in the first instance have to offer me either of these options (of their choice) unless they are unable to.  My argument is not that they are unable to, just that they are unwilling to.  I think they are in breach of the act.  

DullGreyGuy

Okell said:

I think that you [ie @StarlightStarbright455 - edited for clarity] are correct.

You are entitled - in the first instance - to request either a repair or a replacement.

JL must comply with your request except insofar as the remedy you ask for is "disproportionate" compared to the other one.  So if you ask for a repair, they could replace if repair was "disproporti.onate".  And vice versa.

After one failed attempt at repair or replacement you have a right to a refund - reduced to account for use if you bought over 6 months ago.

My understanding is that JL do not have an option of offering you a refund in the first instance if you want repair or replacemnt

I think you are incorrectly extrapolating that the fact the consumer does not have the right to demand a refund after the first failure to mean that the matter cannot be resolved by the retailer providing a refund (less use after the first 6 months other than for motor vehicles) if the other remedies are disproportionately expensive. 

After the first repair/replacement then the consumer also gets the right to demand a refund on a subsequent defect.

ArbitraryRandom

I would suggest section 24 is relevant to interpretation: 



5b wouldn't be included if a trader couldn't exclude BOTH options under 23(3) (and it doesn't specify only 23(3)a).   

I would suggest repair is disproportionate and replacement is impossible (as the specific generation is no longer in production) 

elsien

I also think whoever you buy from in the future after four years worth of use, no one is going to be giving you a full refund. 

StarlightStarbright455

elsien said:

I also think whoever you buy from in the future after four years worth of use, no one is going to be giving you a full refund. 

I have not at any point asked for a full refund of £249.  I have asked for repair (£179) or replacement (£199 for the 2nd generation of the same model that JL currently stock or whatever Apple would charge JL for a reconditioned pair).  

ArbitraryRandom

StarlightStarbright455 said:

elsien said:

I also think whoever you buy from in the future after four years worth of use, no one is going to be giving you a full refund. 

I have not at any point asked for a full refund of £249.  I have asked for repair (£179) or replacement (£199 for the 2nd generation of the same model that JL currently stock or whatever Apple would charge JL for a reconditioned pair).  

JL wouldn't (and woundn't be expected to) approach apple to buy a reconditioned set - if they don't have it in stock (and won't have it within a couple of weeks) then it's considered 'impossible' for them to replace.