Waiving right to 14 day cooling off period?

Okell

the_lunatic_is_in_my_head said:

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.

That's what i thought.

The OP could still cancel and did so before the 14 days expired.  He's entitled to full refund less a pro rata element for the period between "installation" - whatever that is - and the date he cancelled

I don't understand what the debate is about    

mksysb

Okell said:

the_lunatic_is_in_my_head said:

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.

That's what i thought.

The OP could still cancel and did so before the 14 days expired.  He's entitled to full refund less a pro rata element for the period between "installation" - whatever that is - and the date he cancelled

I don't understand what the debate is about    

No it isn't.  If for example you order broadband and don't want to wait 14 days for the engineer to come and start installing, you can ask them to do it straight away and waive the 14 day cooling off period.  You can't have it both ways.

Okell

mksysb said:

Okell said:

the_lunatic_is_in_my_head said:

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.

That's what i thought.

The OP could still cancel and did so before the 14 days expired.  He's entitled to full refund less a pro rata element for the period between "installation" - whatever that is - and the date he cancelled

I don't understand what the debate is about    

No it isn't.  If for example you order broadband and don't want to wait 14 days for the engineer to come and start installing, you can ask them to do it straight away and waive the 14 day cooling off period.  You can't have it both ways.

So what then is the purpose of para 36(3) and (4) of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)?


"...(3) Paragraphs (4) to (6) apply where a contract is cancelled under regulation 29(1) and a service has been supplied in the cancellation period

(4)  Where the service is supplied in response to a request in accordance with paragraph (1), the consumer must (subject to paragraph (6)) pay to the trader an amount—

(a)  for the supply of the service for the period for which it is supplied, ending with the time when the trader is informed of the consumer's decision to cancel the contract, in accordance with regulation 32(2), and

(b)  which is in proportion to what has been supplied, in comparison with the full coverage of the contract"  [My bold]

I may be mistaken but my understanding of the law is that a service provider cannot start provision of the service before the cancellation period ends unless the consumer expressly requests it.  But the consumer does not thereby lose the right to cancel within the cancellation period unless the service is fully provided before the consumer exercises that right.  If the service is not fully provided before the consumer cancels within the cancellation period, then the consumer must pay pro rata for the service they actually have received, but they haven't lost the right to cancel.

Isn't that what para 36 says?**

Far from being a case of trying to have it both ways, I see it as the consumer simply having to pay for that part of the service which they've received - no more and no less - which seems perfectly fair to me

**Of course I'm willing to accept I may be wrong, as I've already admitted I'm not as confident dealing with contracts for services as I am with contracts for goods.  But I don't think your broadband example addresses either my point or what the regulations appear to be saying - at least as I read them.

sheramber

The OP states the system was reset on 22 nd. No ‘installation’ was required as it was already in place.

Did the reset of the system not complete the contract as in the system was now operational? If so, service is fully completed.

Okell

sheramber said:

The OP states the system was reset on 22 nd. No ‘installation’ was required as it was already in place.

Did the reset of the system not complete the contract as in the system was now operational? If so, service is fully completed.

Ah.  So you'd say that the system being reset or activated constitutes full provision of the service.

But if the service provider has fully completed provision of the service, doesn't that mean that they owe no further contractual obligations to the consumer - like continuing provision of an uninterrupted home alarm service?

Either the service has been fully provided by the reset or it hasn't.  I don't see how it can have been fully provided.

Alderbank

sheramber said:

The OP states the system was reset on 22 nd. No ‘installation’ was required as it was already in place.

Did the reset of the system not complete the contract as in the system was now operational? If so, service is fully completed.

We don't know, because the OP has not shared with us, the definition of 'install' in ADT's contract. If it is not defined it will be the everyday definition. Dictionary definitions include 'set up a system, make a system available for use'.

As an example, your computer might say 'New drivers are ready to install'. That does not mean or even imply that physical components have to be unplugged and replaced with the new drivers.
It sounds to me that the previous owner had completed his contract and this engineer visit on 22nd was to install the new owner as authorised user of the system, probably accompanied by an in situ inspection of the hardware and software. The owner confirms that he signed a bit of paper headed 'Installation' during the visit on 22nd. Perhaps this was to confirm that the system was now set up and operational.

Reset would not complete the contract. The operational contract will be a rolling one. If a contract is complete then by definition neither party owes anything to the other, ie no further payment required and no service going forward. ADT's contract will continue until terminated as allowed by the contract. For example, if the owner does not make next month's payment he could be sued for breach of the contract as could ADT if they don't keep monitoring. The purpose of a contract like this is to give future certainty to both parties.

the_lunatic_is_in_my_head

mksysb said:

Okell said:

the_lunatic_is_in_my_head said:

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.

That's what i thought.

The OP could still cancel and did so before the 14 days expired.  He's entitled to full refund less a pro rata element for the period between "installation" - whatever that is - and the date he cancelled

I don't understand what the debate is about    

No it isn't.  If for example you order broadband and don't want to wait 14 days for the engineer to come and start installing, you can ask them to do it straight away and waive the 14 day cooling off period.  You can't have it both ways.

You could depending upon what you are paying for.

If you pay £100 for install and £20 a month for broadband you can have the install before the 14 days and the right to cancel is lost once the install is complete, the actual £20 a month service however can still be cancelled.

SilverSix

To update:

Having written to ADT to: contest 'installation' and also to cite an unfair term / being unable to test the service without waiving my right to cancel and the threat of legal action, they conceded quite quickly and have released me from contract, fully refunding all costs.

I would have expected to pay for the service for the duration I was receiving it and whilst I demanded the connection fees back I did not expect, nor believe, I was entitled to them. 

Whilst insurance products are not the same and I'm not certain it constitutes a similar service, cancellation within the 14 day cooling-off period is unequivocal, even where cover has been received with liability for the days coverage.

Okell

Thanks for the feedback.

I'm not really surprised.  You can't have "waived" your 14 day right to cancel because you hadn't received the full service you had contracted for.  And the n0 cancellation  term was unfair/misleading