Online retailer refusing a return. Who is right?

travelodger

I am a disabled pensioner. I bought a new bed base from a large and busy online bed shop 300 miles away and paid by c/c. Their couriers delivered it and although I told them not to remove the packaging (in the unlikely case I had to return it) they did so regardless and took it away with them.

I did not find out until long after they left (as I really struggle to get upstairs to bed, I only go up at bedtime). I tried out the new combination of the new base and my existing mattress for height and found it so low I literally cannot stand up from it.  I sleep alone so there is nobody to pull me up every morning. I therefore need to return the base for a refund.

I slept on the sofa that night, so the bed base has been "used" for under a minute and with my own mattress on top. I have since re-instated my old bed and paid a handyman to carefully bring the new base down to the ground floor to be collected.

The company site says it only accepts returns if the item is in its original packaging. But it was their men who removed the packaging!

Where do I stand legally?

the_lunatic_is_in_my_head

Hello OP

Sorry to hear.

No they are completely incorrect, removing packaging (whether yourself or someone else) doesn't void your right to cancel.

Can you post the name of the company please. How well they've written their terms will determine how long you have to cancel and who pays the return costs.

You mention a credit card, was the bed base over £100?

travelodger

Thank you for replying. Yes it was £140. Here is the exact wording of their return policy.

Alderbank

The shop probably has its own return and refund procedures. We can't comment on those. Cross posted. Thanks for the details.

You also quite separately have statutory consumer rights.
This is a distance sale so you can examine the bed base as you would in a shop. If you decide it is not for you, you have 14 days from when it was delivered to tell them you are cancelling the sale for a refund.
For an object the size of a bed the shop has to arrange collection. You will probably have to pay the cost of collection which the shop would deduct from your refund.

If you wish to follow this route you must tell them clearly, within those 14 days, that you are cancelling the sale as is your right under the Consumer Contracts Regulations 2013.

Don't worry about the packaging. Presumably the people who delivered were employed or contracted by the shop and were acting under their instructions?

You didn't sleep on the bed, you got on and off it exactly as customers are encouraged to do when they visit bed shops in person.

Alternatively, did you discuss your requirements with the shop when considering which base to buy? Did you say anything like,'I need a base which is so many cm or so many inches high'?
If you did, and they said the base you chose met that requirement, then that becomes an essential term of the contract. In that case your claim would be that you are rejecting the base under the Consumer Rights Act because it does not conform to contract.

Can you give us some more details?

travelodger

Thank you.

No I did not speak to them. I just bought it thinking a lower base than the one I have would help me get in and out of bed. Like  you say, I tried it just as you would in a shop. Probably less.

I am waiting for their reply and will update depending on what they say.

Alderbank

Nothing to do with your consumer rights, but if you like the bed apart from the height, did you know you can buy bed leg risers, sold for exactly the reason they might benefit you, ie. to help people who find their bed too low to get up and down from safely and comfortably?

Lots of them around (look on Amazon or in local disability shops). Prices about £10 for a set of four.

the_lunatic_is_in_my_head

Well their terms are terrible.

OP I would email them to state you are cancelling your contract under the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and see what they say. 

They seem to state the collection cost is £60. 

If you get any further nonsense from them personally I'd go to the credit card company and raise a S75 claim stating your right of cancellation has not been honoured and see what they say.

They might push for a chargeback but S75 is better for you as the CC company should collect the bed base, which they aren't going to do, and they'll hopefully just refund you.

Wouldn't life be simpler if these companies just had terms that comply with the regs. 

As an aside to the OP and cross-referencing another recent thread, I guess this is one of those companies that had their terms professionally drawn up by solicitors! 

travelodger

Thank you again for your help. They have agreed to collect it but no date given and no idea of how much they will charge me for the return.

the_lunatic_is_in_my_head

travelodger said:

Thank you again for your help. They have agreed to collect it but no date given and no idea of how much they will charge me for the return.

They shouldn't charge more than £60, which I appreciate is a lot out of £140 but an £80 refund probably better than £140 for a bed base that's no use. 

OP check your emails to see if they have any info in them about your right to cancel and the cost of returning large items (links to their website don't count). 

If there isn't any it would be interesting to see the banks response to a S75 where the trader hasn't complied with the requirement to provide confirmation of the contract on a durable medium for distance contracts and whether the bank deems the website info to be sufficient in order to comply with paragraph (m) of Schedule 2 and the affect that has on Section 35 with regards to paragraph (5)(b).

To put that simply, for goods that can not be returned via normal post the trader needs to advise the cost of return (for distance contracts) and if they don't state this the consumer is not to bear the return costs regardless. 

Okell

the_lunatic_is_in_my_head said:

Well their terms are terrible...

... As an aside to the OP and cross-referencing another recent thread, I guess this is one of those companies that had their terms professionally drawn up by solicitors! 

I agree they're terrible but I suspect they weren't drafted by solicitors.

Looks more to me like they've been lifted straight from an American website.  (Terms of Service is a meaningless phrase in this context under English law and the spelling of "color" is also a giveaway)