Waiving right to 14 day cooling off period?

SilverSix

I recently completed a takeover from the previous owner of an home alarm system on a new property.

Having signed on the 14th, with 'installation' on the 22nd, I served notice to cancel on the 27th, 13 days. 

Nothing was installed on the 22nd but rather just the system reset and I did pay an engineer callout charge and police connection fee. I signed handover documents and an installation sheet, the latter detailing no work completed.

Cancellation terms on the hire agreement state:

If you agree to us installing the system or any part of it prior to the expiry of the 14 working day cancellation period, your cancellation rights will end on the installation date.

I am disputing that nothing has been installed, I was already in possession of equipment and handovers are not addressed anywhere in T&C's.

I expect to pay for the service used between the 22nd and 27th and do not expect to be refunded callout/setup charges paid.

Given this service was purchased at a distance it's not possible to determine if it's satisfactory until it's installed at which point you are unable to cancel and tied in for 18 months.

Whilst I wait to be 1st in the queue to CAB can someone tell me, is this lawful?

born_again

So have you just bought a house & this was a system that was already in place in there?

If so then the service will have started when the work was done & there may not be a cancelation period, given this is a existing system

You really need to post a link to the full T/C

Aylesbury_Duck

born_again said:

So have you just bought a house & this was a system that was already in place in there?

If so then the service will have started when the work was done & there may not be a cancelation period, given this is a existing system

You really need to post a link to the full T/C

I agree.  We can't tell the exact status of the contract.

Okell

Isn't this covered by s36 of the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)

So the OP has lost the chance to cancel within 14 days for a full refund, but they can still cancel within 14 days and get a proportionate refund(?)

ie the OP pays a pro rata charge for the service provided between 22 and 27th(?)


NB  -  I've used (?) because I'm never so sure about service contracts as opposed to goods

SilverSix

born_again said:

So have you just bought a house & this was a system that was already in place in there?

If so then the service will have started when the work was done & there may not be a cancelation period, given this is a existing system

You really need to post a link to the full T/C

Correct.

Is it lawful to start receiving a service with effectively no opportunity to cancel?

CAB advised that signing away rights to cancel is enforceable but could be contested under an 'unfair term':

A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.


Key Information:

Your Right to Cancel

Once you have signed this agreement you have a short time in which you can cancel it. Details of how to cancel are provided to you with this agreement.
These can also we found at www.adt.co.uk/cancellation.

Your Rights
The Consumer Credit Act 1974 covers this Agreement and lays down certain requirements for your protection which should have been complied with when the agreement was made. If they are not, we cannot enforce the agreement against you without a court order. The Act also gives you a number of rights. You can end the agreement by writing to the person you make payments to and giving at least 1 month’s notice. In order to do this the agreement must have been allowed to run for at least 18 months though this may include the period of notice. You will have to make all payments and pay any amounts you owe until the date the agreement comes to an

end. If you would like to know more about the protection and remedies provided under the Act, you should contact either your local Trading Standards Department or your nearest Citizens’ Advice Bureau. This is a Hire Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms. 

In a subsequent section of the agreement:

IMPORTANT INFORMATION INCLUDING INFORMATION ON YOUR RIGHT TO CANCEL - YOU SHOULD READ THIS CAREFULLY

14-Aug-2024 | 16:52 BST

General - Once you have signed this agreement the following will apply:
You will legally have to keep to its Terms. You should read this carefully before signing. If there is anything which you do not understand, please ask before you sign. - You have confirmed that you have read the Terms and Conditions in this document which are a part of this agreement.

• -  You understand that this agreement is for a minimum of 36 months, if you cancel the agreement during this period you may be liable to pay a proportion of the monitoring, maintenance and

  service charge for the remainder of that period. This is a rolling agreement and will automatically continue after the 36 month period until terminated in accordance with Condition 11.

• - You have confirmed that you are not using any part of the System to protect Business Premises.
  Right to Cancel: You have 14 working days from the date of this agreement during which you have the right to cancel the agreement. You must do this by writing to ADT informing us that you wish to cancel. You should complete the attached cancellation form (page 6) and send to Customer Care Department - Retention, ADT Fire & Security plc, 1 New York Street, Manchester, M1 4HD or email to adtuk.nrt@tycoint.com. If you cancel the agreement, any money you have paid will be returned to you and you will not have to make any further payment. If you have already received any equipment under the agreement, you should not use it and must keep it safe. You can either return the goods yourself or wait for them to be collected. You need not hand the equipment over unless you receive a written request. If you agree to us installing the system or any part of it prior to the expiry of the 14 working day cancellation period, your cancellation rights will end on the installation date. www.adt.co.uk/cancellation
  PLEASE SEE THE PROVISIONS OF CONDITION 6, CONDITION 7 AND CONDITION 8 OF THESE TERMS AND CONDITIONS AS THEY INCLUDE IMPORTANT IMFORMATION ABOUT HOW WE LIMIT OUR LIABILITY TO YOU IN CERTAIN CIRCUMSTANCES. PLEASE SPEAK WITH YOUR ADT REPRESENTATIVE IF YOU HAVE ANY QUESTIONS ABOUT THESE PROVISIONS

Section 11 of T&C's

Ending or suspending the agreement

We may end this agreement by giving you at least 3 months’ notice in writing the notice must not expire before the third anniversary of the Start Date.
You may end this agreement by giving us at least 3 months notice in writing, the notice must not expire before the third anniversary of the Start Date.
At any time you or we may end this agreement immediately:
(a) iftheAlarmReceivingCentreortheSystemaredestroyedorsobadlydamaged

that we cannot reasonably continue to provide the Services;

1. (b)  ifwecannotarrangeorkeepthetelecommunicationsfacilitiesneededtotransmit

   the signals between your Premises, the Alarm Receiving Centre and any fire or

   other authority;

2. (c)  if it’s within three months of you being transferred to us from another provider, but

   only if such transfer is part of a transfer of multiple agreements.

We may either end this agreement or suspend the agreement for a period we consider appropriate if any of the following apply:

1. (a)  YoufailtomakepaymentunderCondition10.

2. (b)  Youcommitaseriousbreachofthisagreement,oronewhichhasserious

   consequences.

3. (c)  Youcommitanybreachofthisagreementwhichcanbecorrectedbyyou,andyou

   do not put matters right within 30 days of our telling you that you have broken the

   agreement and must put it right.

4. (d)  If you die, become bankrupt, enter into any kind of arrangement or settlement with

   your creditors or if a receiving order or administration order is made against you.

5. (e)  If any legal proceedings are taken against the System or your Premises or any part

   of the Premises.

6. (f)  If you fail to follow any recommendation we make for repairing or replacing faulty

   or old parts of the System, or for repairs to your Premises which we consider necessary for the System to work properly, or to prevent unnecessary damage to the System.

7. (g)  Ifyoudonotfollowtheoperatinginstructionsorif,foranyotherreasonwhichisor should be within your control, there are an excessive number of false alarms.

8. (h)  IfyouchangeyourPremisesinsuchawaythatwebelieveitisnolongerpractical for us to carry on providing our Services.

9. (i)  If the police, fire or other authority take away their approval, or will only give their approval depending on conditions, which we believe make it no longer practical to carry on providing our Services.

If the agreement ends, we will stop providing our Services. We may remove the System, or any part of it, from your Premises. We may also disconnect the System to prevent signals being transmitted to the Alarm Receiving Centre.
If we give you written notice of suspension, this suspends what we have to do under this agreement (see Condition 1) and we have no responsibility until the suspension is lifted or the agreement ends. We will tell you in writing if we lift the suspension.
You may end this agreement by giving us at least 1 months notice in writing, the notice must not expire before 18 months of the Start Date.

sheramber

Having signed on the 14th, with 'installation' on the 22nd, I served notice to cancel on the 27th, 13 days.

Nothing was installed on the 22nd but rather just the system reset 

Would the system reset not be considered  'part of the installation'  and you did agree to that before the 14 days viz 8 days 

SilverSix

sheramber said:

Having signed on the 14th, with 'installation' on the 22nd, I served notice to cancel on the 27th, 13 days.

Nothing was installed on the 22nd but rather just the system reset 

Would the system reset not be considered  'part of the installation'  and you did agree to that before the 14 days viz 8 days 

We have an 'installation report' which details no work completed. Whilst a reset may be implied as an installation, terms are quite explicit and no where is reference made to handover or reset in relation to installation.

Definition of an unfair term:

'if, contrary to the requirement of good faith, causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer'.

How is a consumer able to test a service provided without any equipment?

I will report back how we get on as this may be useful to others who find themselves in a similar situation.

Okell

I'm confused - but perhaps I'm not understanding the problem correctly...

Isn't the law contained in s36 of the Consumer Contrcats Regulations as I suggested two days ago?

ie the OP doesn't lose his right to cancel the service within 14 days just because it's started within 14 days, but he must pay pro rata for the service he's received between the service starting and him cancelling it which - as I understand it -  the OP is perfectly willing to do.

The OP doesn't lose his 14 day right to cancel just because he's agreed to the service starting before the expiry of 14 days.  Anything in the supplier's T&Cs that says he does lose that right must be an unfair term as it attempts to limit the OP's stautory right to cancel and therefore must be unenforceable.

I presume I must be missing something, but what?

born_again

I wonder if there are different terms for a "New" install, rather than a simple transfer of ownership?

the_lunatic_is_in_my_head

Okell said:

I'm confused - but perhaps I'm not understanding the problem correctly...

Isn't the law contained in s36 of the Consumer Contrcats Regulations as I suggested two days ago?

ie the OP doesn't lose his right to cancel the service within 14 days just because it's started within 14 days, but he must pay pro rata for the service he's received between the service starting and him cancelling it which - as I understand it -  the OP is perfectly willing to do.

The OP doesn't lose his 14 day right to cancel just because he's agreed to the service starting before the expiry of 14 days.  Anything in the supplier's T&Cs that says he does lose that right must be an unfair term as it attempts to limit the OP's stautory right to cancel and therefore must be unenforceable.

I presume I must be missing something, but what?

Pretty much

The right to cancel is only lost if the service is fully performed before the cancellation period expires.

voluted

SilverSix said:

sheramber said:

Having signed on the 14th, with 'installation' on the 22nd, I served notice to cancel on the 27th, 13 days.

Nothing was installed on the 22nd but rather just the system reset 

Would the system reset not be considered  'part of the installation'  and you did agree to that before the 14 days viz 8 days 

We have an 'installation report' which details no work completed. Whilst a reset may be implied as an installation, terms are quite explicit and no where is reference made to handover or reset in relation to installation.

Definition of an unfair term:

'if, contrary to the requirement of good faith, causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer'.

How is a consumer able to test a service provided without any equipment?

I will report back how we get on as this may be useful to others who find themselves in a similar situation.

Where is the "significant imbalance" here?

How exactly do you test the service anyway?  The service here appears to be an alert system, so were you planning on breaking into your own home and seeing how quickly the dibble turn up? (Not that that is in the control of the alarm provider anyway.)

I think you're trying to argue on a technicality because you have buyers remorse.  You will probably get your refund if you become a big enough pain in their backside, but I don't think you are legally entitled to one.