Delayed delivery. 14 day DMR right to return, but different item received. Refund rights.

Angelina4

Hi all 

I'd appreciate some help with this, a lot of the wording in the Consumer Rights Acts 2015 talks about products being faulty, but not much mentioned around "not as described" which i think this falls under?

On 21st June, I purchased a specific brand of electric fence poly rope (Horizont Ranger) online. I paid with a debit card, it wasn't much - £48.50.

I missed the dispatch cut off that day by an hour or so, their T&Cs say it wont always be next day/24 hour delivery due to delays, but the only postage option is 24 hour delivery by courier at £8.50. So I expected delivery on the Tuesday. I was due to go away that day. The item was delayed and did not arrive. (i had no tracking information or communication from the company - they weren't answering their phone.) I finally received a reply from them at 5pm that day saying it had been delayed by the courier. I had to buy an alternative from a shop instead (at twice the price than if i had bought the same thing 3 days earlier online) so that i could install it and then leave. 

The item arrived the next day, but i didn't get it until i got back a week later. When i returned i asked the company if they would refund the delivery charge. They refused stating T&Cs and that it was the couriers fault. At this point i told them that i wanted to return it. (3/7) They replied stating that i could but that I was responsible for return postage (i knew this would be the case) but also that they still didn't need to refund original delivery charges as their T&Cs state they don't. 
At this point, it was clear that it would cost me even more to send it back (the whole thing ended being such a huge expense - including having to drive 80 miles, 3 times in one day lol) so I decided to just keep it. 
Yesterday, 12/7, I opened the package (which had been badly cut by the couriers) and they've sent me the wrong item. An unbranded version of the one I bought. I raised this with the company and they have said ... 

"we should have communicated that you got a free upgrade because the Ranger is out of stock and ironically we wanted to get the rope to you quickly (which is why we dispatched on the correct day).  Ranger is £39.99 and the Turbo is £47.99 – so you have got a better quality rope.  The Turbo is made in Ireland and is of better quality – with a copper conductor for better conductivity and stainless steel conductors for strength.  Both are designed for long fences and both have a 3 year warranty. 
The delay was because the courier misrouted it, as shown by the tracking we sent.  Unfortunately this can happen with couriers.  We are a small family run business and do our absolute best to get packages out – which we did.   It is frustrating when couriers get delays, but unfortunately this does happen and is out of our control."

I don't want the one they've sent. I don't care that they charge more for it, it's definitely not as good quality as the original rope I thought I had purchased, so I've now bought the Ranger rope from a different company.  (Although tbh, if they hadn't been so dismissive and rude and had just refunded the £8.50 postage in the first place, I probably would have just kept it as it would get used at some point and good to have if i found myself in a similar situation of needing some quickly.)

My questions are; 

 - Can I still return the item for a full refund (including both sets of postage) even though the communication that I sent on 3/7 to give them notice of return was that I didn't want it, rather than item not as described? And because if i post it back today, it's within the 14 days of me originally giving them notice that i'll be returning it. 
I believe it should be fine as i'm within 30 days of the original purchase (but the CRA 2015 only talks about faulty items i think?)

- Is the item still considered "not as described" considering it is the same thing, but unbranded?

- Because they've offered something they say costs more, do I have to accept it?

- When the couriers delivered it, the packaging was tattered and cut in places (perhaps part of the reason for the delay? although the tracking screenshot that the company sent me says 'check weighed, discrepancy scan') they appear to have cut through some of the clear packaging at the top. Now i can see the item wasn't well packed in the first place, but didn't consider it yesterday before I opened it.
As it was delivered whilst i was away, I didn't get a chance to note this on delivery and stupidly didn't take a photo before unwrapping it. Can they say that I've sent it back in an unsaleable condition as there's a small tear in the wrapper?
There's a clause in their long T&Cs that state "We will evaluate the fault, and replace, repair or refund including carriage at our discretion. Please note that some products must be sent to the manufacturer for evaluation. We will make every effort to ensure that product complaints are dealt with efficiently, but cannot be held responsible for delays caused in transit etc.Please note that if the item returned is found to be not faulty we will make a charge to return the goods."

I assume that the couriers will have taken a picture, but because i have no idea who the courier was, I cant contact them to prove that it was delivered like that. 

Ultimately, they've annoyed me - so i'll happily accept a refund of everything and never use them again and leave it at that. But it did cost me loads more choosing to use them over a different company after I had to buy extra tape separately plus time and petrol for the whole other part of the saga of that day, so I wondered whether to try my luck with at least trying to get some of the cost of the other tape I had to buy back? I'm guessing it will be a big fat no since they wouldn't even refund the postage in the first place.

Thanks very much if you made it this far! 

Angelina  

the_lunatic_is_in_my_head

Hello OP

If the goods are not as described you can exercise the short term right to reject within 30 days of delivery and receive a full refund including the original postage and; either the return postage if the terms say you are to return rejected goods, or they should collect at their cost if they offered to collect rejected goods, or if nothing is mention as to who will arrange the return again they should collect at their cost. 

Looking at the dates the 3/7 was 7 days after delivery so you had the right to cancel* and if they only offer 1 delivery option should refund that in full.

Advising they don't have to is a breach of the Consumer Protection from Unfair Trading Regulations and gives you the right to unwind the contract. 

I don't see any reason you can't now exercise the right to reject despite previously asking to cancel. 

Can you name the website you purchased from? 

*I assume this rope was a set length rather than cut to a length of your choice?

Angelina4

Hiya! 

Thanks for the reply!

I thought the same about the postage costs, but when i spoke to the CAB consumer service, they said because they put about postage in their T&Cs and i ticked to say i agreed on ordering, they're within their rights to not give it back. They did say that they were in breach of contract due to a delayed delivery though, but that it probably wouldnt be worth pursuing in court for £8.50. 

Yep it was standard, not customised in any way. 
Sure it was FarmcareUK
This was the rope i ordered - https://www.farmcareuk.com/ranger-r6-polyrope-optimally-suited-for-medium-to-long-fences.html 
This was what i was sent - https://www.farmcareuk.com/turbo-rope.html

the_lunatic_is_in_my_head

Angelina4 said:

when i spoke to the CAB consumer service, they said because they put about postage in their T&Cs and i ticked to say i agreed on ordering, they're within their rights to not give it back. 

Good old CAB, they are incorrect on this as the trader can't contract out your rights otherwise all retailers would obviously do so

Their terms are confusing, either they have a 14 day own policy + the 14 day right to cancel or they only offer the 14 day required but impose conditions they can't (unused and in its original packaging). 

But none of that really matters as they've sent the wrong thing. I wouldn't worry about the delivery delay either as they would generally have a second chance to deliver if they failed to meet the first agreed timeframe. 

The below assumes you are consumer (rather than buying in the course of your business). 

I'd go back and say (please check for typos/errors as I'm often careless with typing ):

Dear Farm Care UK

Thank you for your reply, whilst I appreciate you say the substituted item is superior I specifically sought to order Horizont Ranger.

Your terms say acceptance only occurs upon dispatch because:

" We have included this term to protect us in the case that a mistake has been made in pricing, we have inadvertently under-priced goods, or we are no longer able to supply a particular product for some reason"

With that term implying that if you aren't able to supply you will either cancel or make contact to discuss. 

Whilst I also appreciate you wished to ensure the order was fulfilled sooner rather than later as an unagreed substitute was provided unfortunately the goods do not conform to the contract as per Section 11 of the Consumer Rights Act:

https://www.legislation.gov.uk/ukpga/2015/15/section/11

and as such I wish to exercise the short term right to reject the goods for a full refund which is the cost of the goods + the cost of outward delivery as per paragraph (10) of Section 20 and the return costs as per paragraph (8) also of Section 20

https://www.legislation.gov.uk/ukpga/2015/15/section/20

I do understand that you are a family business and don't wish to cause hardship over this matter but equally as a family business I'd perhaps expect greater control of the order process and better communication in the event of a substitution.  

I am happy to arrange the return myself and will provide the receipt or if you would prefer to collect you may do so, if you may confirm which would be preferably please. 

Thank you in advance and I looked forward to resolving this matter amicably, 
Best regards, 
Angelina4

powerful_Rogue

Was this purchased for use with a business?

Angelina4

Thanks so much! This is wonderful!
Yep, not a business transaction, it was just to restring the field for my rescue pony that will eat everything in sight if he isnt restricted. 
I wasn't expecting you to do that for me, but i hugely appreciate it! I will send this on to them.

Thanks again!
Angelina  

Angelina4

powerful_Rogue said:

Was this purchased for use with a business?

Hiya 

No, i dont have a business. I work for a disability charity  

powerful_Rogue

Angelina4 said:

powerful_Rogue said:

Was this purchased for use with a business?

Hiya 

No, i dont have a business. I work for a disability charity  

No worries, was this purchase related to the disability charity?

Angelina4

powerful_Rogue said:

Angelina4 said:

powerful_Rogue said:

Was this purchased for use with a business?

Hiya 

No, i dont have a business. I work for a disability charity  

No worries, was this purchase related to the disability charity?

Nope, sorry for the confusion, as above, it was personal, just for my pony's field. 

the_lunatic_is_in_my_head

Angelina4 said:

Thanks so much! This is wonderful!
Yep, not a business transaction, it was just to restring the field for my rescue pony that will eat everything in sight if he isnt restricted. 
I wasn't expecting you to do that for me, but i hugely appreciate it! I will send this on to them.

Thanks again!
Angelina  

Very welcome, let us know if you have any luck