Covered by consumer rights act 2015?

sheramber

madaboutspots said:

The store is a local independent which is well thought of locally we were told. (Sigh) …. But now we’ve delved it seems only when they get things right. Customers are vocal online about how poorly they respond to complaints. I know, we should have been more thorough. Damned hindsight. 

An independent report which included comparison with the store model given it’s been on display for several months now (at least) would only demonstrate that it can soften up over time. My point is that it’s so rock hard that it can’t be slept on (by us) to get this process started.

Had the store been more helpful we would have asked if the manufacturer could be liaised with to do any of the softening up process using machinery at their premises. They must surely have some way they test these beds themselves to ensure they actually do this? But as the relationship with the store broke down so badly and so rapidly and all trust has gone (and they remain immovable in their refusal to assist) then I’ve little/no confidence this could be amicably achieved. So much is trust based. If they took the item back for some softening process what’s to say they won’t just get the staff jumping up and down on it for a few weeks. I’m exaggerating my point re trust to some degree to make the point. They have had their person who visited here lay directly on the mattress for his own comparison but then rendered the item soiled so they’re unable to resell it - despite us not doing the same - mattress protector etc. 

it seems to me that whatever happens from here is very much he said/she said and opinion on the bed’s current softness levels/comfort. The store staff can’t even agree on what they themselves have said. The guy that came here accepted it’s hard but insisted it will soften. Said the one on display had been there for some time. The manager that’s written in response since says their guy said there was no discernible difference when he tried it and the store one which was soft and very comfortable when tried had only been on display a matter or days/hours. 

The letter seems to be trying to be clever in their approach by suggesting the display was only there since mid Oct. We purchased 27th but know we tried the display one at least 2 weeks before. We went away to decorate the bedroom before placing the order - and to think about the purchase. It was I feel sure but am unable to prove, more than 2 weeks between the dates. 

If it was more than two weeks between you trying it out in the stiff and buying, then the bed could have been changed in mild October - 27 th - 14 = 13th

madaboutspots

I tried the one on display the day I went to pay/order (27th) and it was soft and comfortable. So if changed between visits, my point about the differences still stands. 

How would an independent report help either party or prove anything? 

I see your point about the value it could have provided but think now were several months on since ordering it would be less than conclusive and the fact it’s so very hard (the one here) it’s not feasible to commence the softening up process. 

sheramber

madaboutspots said:

I tried the one on display the day I went to pay/order (27th) and it was soft and comfortable. So if changed between visits, my point about the differences still stands. 

How would an independent report help either party or prove anything? 

I see your point about the value it could have provided but think now were several months on since ordering it would be less than conclusive and the fact it’s so very hard (the one here) it’s not feasible to commence the softening up process. 

Not what you said previously


 “We purchased 27th but know we tried the display one at least 2 weeks before. We went away to decorate the bedroom before placing the order - and to think about the purchase. It was I feel sure but am unable to prove, more than 2 weeks between the dates”

madaboutspots

Not what you said previously

As in I’ve said something misleading, to the contrary … or I didn’t specifically explain this point? 

Either way I really don’t understand the relevance. 

I tried the bed in store, as far as is practical, had a lengthy discussion, went away and thought about it, returned and tried the same bed again and completed my purchase. I even asked if the bed I tried on my return was the same bed as I had tried before - as much in reference to the note the store member had made for us at my request…. I had him write down the details so I knew exactly what we’d chosen - in case I forgot the manufacturer, model etc.

 What was delivered is so materially different to the one in store that we initially suspected the store had placed the wrong order or the wrong product had been delivered. The staff have said we have the correct product so our dissatisfaction is with the received product versus the display model/what we believed we’d purchased.  

If I didn’t disclose here that there was a 2 week gap between trying it initially and buying it is more down to trying to be concise initially, seeking legal facts rather than opinion. I read the sticky giving advice on how to put up a good consumer rights’ post and tried to follow that. I’ve only offered more detail since due to the queries on various details that have arisen. I’ve made no intended attempt to mislead - the store or yourselves - at any point. 

the_lunatic_is_in_my_head

ArbitraryRandom said:

But more to the point, the OP rejected the item within 30 days - which they have a right to do, with the onus being on the seller to prove it's not faulty - so materially what we're arguing about is who is liable for the postage... 

One important point to note here for OP @madaboutspots, typically burden of proof lies with the person making the claim, for consumer rights reverse burden of proof applies for the first 6 months, however this only applies where stated:

https://www.legislation.gov.uk/ukpga/2015/15/section/19

(3)If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11, 13 and 14, or if they do not conform to the contract under section 16, the consumer's rights (and the provisions about them and when they are available) are—

(a)the short-term right to reject (sections 20 and 22);

(b)the right to repair or replacement (section 23); and

(c)the right to a price reduction or the final right to reject (sections 20 and 24).

...............................

(14)For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

So this reverse burden of proof does not apply to the short term right to reject (by passing repair/replace and insisting upon a refund instead). 

The guidance notes suggest where it is apparent the goods do not conform, for example by looking at them, that such is obvious which is sufficient proof (order red and receive green for example) but for the issues with things likes washing machines or this mattress* it is generally better to exercise the right to a repair/replace than to reject if the retailer isn't accepting an issue exists as it is then down to them to show otherwise. 

*I understand you could perhaps feel the mattress is too hard by examining it but if OP ended up in small claims I don't think they can take the mattress with them. 

It's a very difficult situation, as Screech mentions looking at retailers who offer returns for x nights or even ordering online where the right to cancel exists (the common claims by retailers of mattresses being exempt are incorrect) is probably wise but obviously that doesn't help OP now, hindsight is always 20/20  

ArbitraryRandom

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

But more to the point, the OP rejected the item within 30 days - which they have a right to do, with the onus being on the seller to prove it's not faulty - so materially what we're arguing about is who is liable for the postage... 

One important point to note here for OP @madaboutspots, typically burden of proof lies with the person making the claim, for consumer rights reverse burden of proof applies for the first 6 months, however this only applies where stated:

https://www.legislation.gov.uk/ukpga/2015/15/section/19

(3)If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11, 13 and 14, or if they do not conform to the contract under section 16, the consumer's rights (and the provisions about them and when they are available) are—

(a)the short-term right to reject (sections 20 and 22);

(b)the right to repair or replacement (section 23); and

(c)the right to a price reduction or the final right to reject (sections 20 and 24).

...............................

(14)For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

So this reverse burden of proof does not apply to the short term right to reject (by passing repair/replace and insisting upon a refund instead). 

The guidance notes suggest where it is apparent the goods do not conform, for example by looking at them, that such is obvious which is sufficient proof (order red and receive green for example) but for the issues with things likes washing machines or this mattress* it is generally better to exercise the right to a repair/replace than to reject if the retailer isn't accepting an issue exists as it is then down to them to show otherwise. 

*I understand you could perhaps feel the mattress is too hard by examining it but if OP ended up in small claims I don't think they can take the mattress with them. 

It's a very difficult situation, as Screech mentions looking at retailers who offer returns for x nights or even ordering online where the right to cancel exists (the common claims by retailers of mattresses being exempt are incorrect) is probably wise but obviously that doesn't help OP now, hindsight is always 20/20  

Good point. I think mentally I had skipped over that as the OP has said they already had the company out repeatedly to examine/'repair or replace' the product and the company have refused to offer any action saying there's not problem - so we're actually skipping to 'final right'... (especially given the OP's most recent post where they clarified they originally suggested it was the wrong product delivered so would presumably been happy with a replacement). 

And again I can't think how one would actually demonstrate objectively (and without access to the products in question) a difference in firmness. 

Though thinking about it, that's maybe a side issue as (hopefully the OP will correct me if I'm wrong) no one seems to be denying that the mattress supplied is more firm than the one in store - the argument seems to be if it's reasonable to expect a customer to have a period of uncomfortable use before the product they receive matches the one in store... which is perhaps easier to argue to the judge?

madaboutspots

So the guy that came out (just the once) and the manager that wrote - have both stated that we should expect the product to be firm to start with and soften up over time.

Having confirmed that they ordered and delivered the product actually required it’s all about well if it’s the right one, it’s not the same as in store, it’s too firm to be able to use it so the softening process can’t be achieved and we weren’t told this process was required.

Does that clarify?

Our initial concern was either they had ordered a firm one by mistake, the manufacturer had sent the wrong one or the delivery guys had mixed up the delivery. The store denied any of those possibilities had happened. As a result we said well this is too materially different to the one in store that they might as well be different products and were unable to use this one. 

With regards the independent report - there was almost 2 months between order and delivery so again any comparison would surely show how soft the bed could become if we could use it - which we can’t. ?

Ayr_Rage

Every single mattress I have had has had a label on it.

Does the labelling on yours match the label on the one you tried in the store and does the invoice specify the correct product ?

ArbitraryRandom

Ayr_Rage said:

Every single mattress I have had has had a label on it.

Does the labelling on yours match the label on the one you tried in the store and does the invoice specify the correct product ?

I understand where you're going with this, but if the label does match the correct model them that doesn't mean the OP loses the right to reject as not matching the model they tested in store. 

I can't find the thread now, but it's something we've seen before with someone buying curtains based on a sample, then the finished product being a slightly different colour, same pattern/fabric/label, just a different shade (I think I also recall a thread about a sofa with large gaps between the cushions which weren't present on the display model)... it's not a 'fault' or the wrong item - those are both covered under different sections of the act, it's an inherent characteristic that's different from the item the OP provided to test before purchase. This one is just harder to evidence.   

Grumpy_chap

ArbitraryRandom said:

Ayr_Rage said:

Every single mattress I have had has had a label on it.

Does the labelling on yours match the label on the one you tried in the store and does the invoice specify the correct product ?

I understand where you're going with this, but if the label does match the correct model them that doesn't mean the OP loses the right to reject as not matching the model they tested in store. 

No, but the OP has been asked earlier in the thread whether the mattress is the correct model (identified as the correct model) as the one they ordered.
It would be quite easy to order a "firmness a" mattress and receive a "firmness b" mattress.
Checking that the labelling identifies a "firmness a" mattress is an easy step that has not been confirmed.