Do the Distance Selling Regs Apply? Restocking Charge.

the_lunatic_is_in_my_head

DullGreyGuy said:

The old legislation was the Consumer Protection (Distance Selling) Regulations 2000 that were abbreviated to DSR in most cases. The new legislation that replaced it was The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 which gets abbreviated to CCR - we all love a TLA. The CCR contains the regulations specific to distance sales.

You never need to quote legislation, personally having done over a decade of customer service my view is split. Some argue that quoting legislation shows you know what your rights are and so shouldn't be taken as a fool. The counter argument, and one of the reason I hate the template letters from here, is that many dont know/understand what they are talking about and make mistakes etc so look a bit foolish and "demanding your rights" is rarely going to result in a gesture of goodwill if you are mistaken and actually you dont have rights. 

It does go both ways a bit though... as a customer service manager I had a fair amount of authority to make decisions and I'd like to think a reasonable grasp of the law so dont get intimidated by people quoting law and can point out, for example, the DSR ceased in 2013. A person in the first week of their first job etc may get more flustered by someone appearing to quote law. 

I think the issue with the CCRs is the requirement to make a clear statement, with so many retailers offering their own policy which is often more favourable to the retailer (although equally can at the same time be more favourable to the consumer) compared to the CCRs, and with the CCRs being mentioned away in T&C pages that few read, I think if people are looking to cancel their contract using the regs it's probably best to specifically say such.

But as you say it's better to have a good understanding on what you are referring to as if you get it wrong it'll possibly do you more harm than good.

Kev1958 said:

Does anyone know what this means or relates to?

"6 Limits of Application (2) These Regulations do not apply to contracts—

(c)concluded for the use of one single connection, by telephone, internet or fax, established by a consumer;"

EU guidance probably puts it best

https://commission.europa.eu/document/download/f1f42e20-e4a1-4d8b-a1ef-d06acccba34e_en?filename=crd_guidance_en_0_updated.pdf 

This provision exempts two types of contracts from the scope of the Directive's application.

The first type is contracts concluded with electronic communications operators through public payphones for their use. 'Public pay telephone' is defined in Article 2 of the Universal Service Directive 2002/22/EC (dealing with end-user rights in the electronic communications sector) as telephone available to the general public, for the use of which the means of payment may include coins and/or credit/debit cards and/or pre-payment cards, including cards for use with dialling codes.

 Since this exception applies to contracts concluded 'through' public payphones, it should cover the cases in which the contract is concluded by, for example, inserting coins or swiping a credit card in the public payphone;

 The exception should not apply to contracts concluded with operators of public payphones by, for example, the prior purchase of a pre-paid calling card. 

The second part of Article 3(3)(m) concerning contracts concluded for the use of 'one single connection' established by the consumer has a broader scope. Unlike the contracts for using public payphones, no party to this kind of contract is specified, which suggests that not only contracts with electronic communications operators are covered. Furthermore, nothing is specified concerning the purpose or content of this kind of contract.

This exception would seem to cover, for example:

 A contract with an Internet café for a single Internet session.

In contrast, the exception should not apply to contracts for electronic communications services covering a certain period and/or volume of usage, for example:

 Contracts concluded through the prior purchase of a pre-paid SIM card for mobile services or of an access code for Wi-Fi services.

This exception would also seem to apply to contracts concluded with the providers of Premium Rate Services (PRS), i.e., services paid for through the consumer's telephone bill (also referred to as 'Value-Added Services' or 'Special Rate Services') in cases where the contract is concluded and simultaneously fully performed by the single call made or an SMS sent by the consumer to the PRS number, for example:

 A call made to telephone directory inquiries or tele-voting in a show.

In contrast, the exception should not apply to subscriptions and other situations where the voice call or SMS to a PRS number is merely a means of concluding a contract, which is performed subsequently:

 For example, contracts concluded through a call made or SMS sent to a provider of traffic information, which is subsequently delivered to the consumer's device.

If, in order to conclude a contract that is performed subsequently, the consumer must call or send an SMS to a PRS number, the trader must inform the consumer in advance about the cost, as this will be higher than the 'basic rate' under Article 6(1)(f) of the Directive (which includes the same rule as the one in Article 4(1)(g) of the replaced Distance Selling Directive 97/7/EC. The interpretation of the 'basic rate' concept is further discussed in Chapter 10 on Article 21 of the Directive.

The fact that the Directive does not apply to certain contracts involving PRS by virtue of Article 3(3)(m) does not mean that they are not subject to consumer protection rules. The EU regulatory framework for electronic communications, in particular the Authorisation Directive 2002/20/EC and the Universal Service Directive 2002/22/EC, enable Member States and the relevant National Regulatory Authorities to adopt specific measures to protect consumers in relation to PRS. Consequently, a number of Member States have implemented additional safeguards in this area, including, for example, caps on charges, an obligation to announce the price at the start of the call, etc.

DullGreyGuy

the_lunatic_is_in_my_head said:

DullGreyGuy said:

The old legislation was the Consumer Protection (Distance Selling) Regulations 2000 that were abbreviated to DSR in most cases. The new legislation that replaced it was The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 which gets abbreviated to CCR - we all love a TLA. The CCR contains the regulations specific to distance sales.

You never need to quote legislation, personally having done over a decade of customer service my view is split. Some argue that quoting legislation shows you know what your rights are and so shouldn't be taken as a fool. The counter argument, and one of the reason I hate the template letters from here, is that many dont know/understand what they are talking about and make mistakes etc so look a bit foolish and "demanding your rights" is rarely going to result in a gesture of goodwill if you are mistaken and actually you dont have rights. 

It does go both ways a bit though... as a customer service manager I had a fair amount of authority to make decisions and I'd like to think a reasonable grasp of the law so dont get intimidated by people quoting law and can point out, for example, the DSR ceased in 2013. A person in the first week of their first job etc may get more flustered by someone appearing to quote law. 

I think the issue with the CCRs is the requirement to make a clear statement, with so many retailers offering their own policy which is often more favourable to the retailer (although equally can at the same time be more favourable to the consumer) compared to the CCRs, and with the CCRs being mentioned away in T&C pages that few read, I think if people are looking to cancel their contract using the regs it's probably best to specifically say such.

But as you say it's better to have a good understanding on what you are referring to as if you get it wrong it'll possibly do you more harm than good.

As always life isn't black and white... there is little harm in mentioning the CCR but personally would reserve it until the organisation declines based on their own worse policy. However mentioning CCR is different to opening the conversations quoting CCR 28(c)(i)-(iii) which is more likely to elicit a more extreme response from the other side. 

It was the same back in my claims days where someone starts by declaring they are a solicitor... its like yeah, I deal with personal injury claims all day, half the people I speak to are solicitors but your some family law guy in the middle of know where thats not looked at the tort of negligence since your student days, I've much more respect for the paralegals that only do this type of work all the time even if their certificate isn't as fancy as yours. 

Heart sank every time someone started the conversation "Ive spoken to a solicitor/policeman and..." 95% of the time they had the wrong info and strongly suspect most of the "solicitors" were some random guy down the pub 

Kev1958

Update. Spoke to the supplier (Man. Director) who was having none of it. They deal with thousands of these transactions etc. Explained as a consumer I should be entitled to a full refund etc. Apparently I am a purchaser and not a consumer. I'll write and if no joy I suppose I will revert to the card company to see if anything can be done.

DullGreyGuy

You are a "purchaser" as in you made a purchase but you are legally a "consumer" As in you are purchasing for your personal/private use and not in connection with your business, trade, profession or with the intent to generate revenue from it. 

the_lunatic_is_in_my_head

DullGreyGuy said:

As always life isn't black and white... there is little harm in mentioning the CCR but personally would reserve it until the organisation declines based on their own worse policy. However mentioning CCR is different to opening the conversations quoting CCR 28(c)(i)-(iii) which is more likely to elicit a more extreme response from the other side. 

But within the required timeframe

Not sure what CCR 28(c)(i)-(iii) is? Wrong section?  

DullGreyGuy

the_lunatic_is_in_my_head said:

DullGreyGuy said:

As always life isn't black and white... there is little harm in mentioning the CCR but personally would reserve it until the organisation declines based on their own worse policy. However mentioning CCR is different to opening the conversations quoting CCR 28(c)(i)-(iii) which is more likely to elicit a more extreme response from the other side. 

But within the required timeframe

Not sure what CCR 28(c)(i)-(iii) is? Wrong section?  

Random section to illustrate a point 

Hoenir

As the part was specifically ordered in who bears the cost of handling the transaction, i.e. procuring and returning ?  

Okell

Kev1958 said:

Okell said:

But when did you take delivery of the item? Was it no more than14 days before you told them you wanted to return the item, and when you told them that did you also explain you were exercising your right to cancel a distance contract under the CCRs?

I'm within the 14 day period we picked it up Wednesday before last. Is it essential that I quote the CCRs? Is that a requirement set out in the legislation? I mentioned DSRs in general.

That might be ok if you've made it clear that you are cancelling a distance sale.

But the problem is that the wording of the law actually says that in order to exercise your right to cancel a distance contract within 14 days for a full refund, "... the consumer must inform the trader of the decision to cancel it.. " and can do so either by using a suggested model form in the Regulations or by "... making any other clear statement setting out the decision to cancel the contract".  See reg 32(2) and (3).

Whilst it might not be legally strictly necessary to quote the legislation, I'm only suggesting that you make it perfectly clear to the trader what you are doing by using just 21  simple words: "I am exercising my right to cancel a distance contract under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013".

If you end up making a s75 claim or issuing a court claim, nobody can possibly criticise you for using the wording I've suggested.  But if you haven't used the wording I've suggested, there is always a possibility that your claim will be turned down because you didn't make it clear what you were doing.

There is also always the problem that if the trader has their own returns policy - and their policy gives you fewer rights than the law does - and you just go back to them and say "I want to return this and get my money back", they will treat it as a return under their own policy and you are disadvantaged.  Why run that risk for the sake of just 21 words?

If you are still within 14 days go back to the trader one more time and tell him what I've suggested.  If he still won't cough up you'll have to try a chargeback.  (£60 ain't enough for a s75 claim)

Okell

Kev1958 said:

Update. Spoke to the supplier (Man. Director) who was having none of it. They deal with thousands of these transactions etc. Explained as a consumer I should be entitled to a full refund etc. Apparently I am a purchaser and not a consumer. I'll write and if no joy I suppose I will revert to the card company to see if anything can be done.

From my post yesterday at 7:36pm:

"Is it possible that you bought from a company that usually only sells to the trade and they are not aware you are a consumer?  Have you explained that you are a consumer?"

Have you bought from a company that normally only supplies to the trade and not to the public?  If you have, they will argue that you are not a consumer and that you are a trade purchaser.  It doesn't necessarily mean they're right, but it does mean you'll have to persuade them that they're wrong!

The legal definition of a "consumer" for these purposes is in Regulation 4:  ' “consumer” means an individual acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession'.

Do you meet that definition?

eskbanker

Hoenir said:

As the part was specifically ordered in who bears the cost of handling the transaction, i.e. procuring and returning ?  

Not the consumer, if a distance purchase, that's all that matters here!