CPA and Section 75 Dilemma

Happyprof1950

My son bought a Used EV Audi which developed a serious Motor fault just under the 3 month timeline. He was asked to return the car for inspection which he agreed to do if the Dealer paid for the Transport as there was a distance of 400 miles involved. The Dealer refused and, after some communication, my son took out a Section 75 claim with his bank.

The Bank has been horrendous! Complicated form fillings, poor communication, asking for Proof that the fault did not exist at the time of Sale etc. My son pointed out that it is the Seller's responsibility to prove that the fault did not exist at the time of Sale and not his. The Bank wanted an Independent report on the car fault and a Statement that it was not due to Wear & Tear. The report he submitted was from the main Audi Dealership who have the relevant software etc. to interrogate the car's diagnostic systems. He is not a customer of that Dealership and therefore considered it to be the best option for a report.

I would have imagined that, since the Seller refused to inspect the car, they were immediately going against the CPA 2015. At that point the car should have been returned and a refund made, allowing for a deduction for mileage etc. He is now in an extended battle with the Bank as they are insisting on an "Independent" report. 

Any thoughts would be welcome.

the_lunatic_is_in_my_head

Letter before action and small claims against the bank.

You aren't obligation to continue with their internal processes if communication is not being effective in resolving the matter, you only need to comply with the pre-action protocols:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct 

dever33

The bank's stance doesn't surprise me, but they're incorrect in how they're applying the burden of proof. Under Section 75 and the Consumer Rights Act 2015, it's the seller's responsibility to show the fault was not present at the time of sale if it develops within six months.

Since the dealer refused to inspect, your son's case is stronger. I'd put everything in writing referencing CPA 2015 s.19 and escalate to the Financial Ombudsman. They tend to side with consumers where dealers refuse inspection

born_again

Bank need something to prove the fault. They are not car experts, or expecting you to bring the car to them to check it. Which is why a 3rd party report is asked for.

So the report from Audi dealership should be enough. 

Bank is paying S75 out of their own pocket, as such they need proof of the fault. Any costs are refunded if you win. 

Or any tom, !!!!!! or harry rather then hiring a car. Could simply buy one & then claim there is a fault, dealer is not dealing. Get a refund & walk away laughing..

Grumpy_chap

Happyprof1950 said:

My son bought a Used EV Audi which developed a serious Motor fault just under the 3 month timeline. He was asked to return the car for inspection which he agreed to do if the Dealer paid for the Transport as there was a distance of 400 miles involved. The Dealer refused and, after some communication, my son took out a Section 75 claim with his bank.

The Bank has been horrendous! Complicated form fillings, poor communication, asking for Proof that the fault did not exist at the time of Sale etc. My son pointed out that it is the Seller's responsibility to prove that the fault did not exist at the time of Sale and not his. The Bank wanted an Independent report on the car fault and a Statement that it was not due to Wear & Tear. The report he submitted was from the main Audi Dealership who have the relevant software etc. to interrogate the car's diagnostic systems. He is not a customer of that Dealership and therefore considered it to be the best option for a report.

I would have imagined that, since the Seller refused to inspect the car, they were immediately going against the CPA 2015. At that point the car should have been returned and a refund made, allowing for a deduction for mileage etc. He is now in an extended battle with the Bank as they are insisting on an "Independent" report. 

Any thoughts would be welcome.

What was the value of the car and is the claim S75 or S75A?

MyRealNameToo

Happyprof1950 said:

My son bought a Used EV Audi which developed a serious Motor fault just under the 3 month timeline.

How much was the invoice price for the car? S75 has a £30k cap 

Presumably this was financed via the dealer so S75A may apply but the rules are different under this section. 

Okell

@Happyprof1950

1.  Note that it is s19(14) and (15) of the Consumer Rights Act 2015 (CRA) that applies, not the CPA - whatever that is

2.  Grumpy_chap and MyRealNameToo are right to ask what the price of the car was, as this is very relevant as to whether s75 of the Consumer Credit Act 1974 (CCA) applies

3.  You are right that under the CRA any faults arising within 6 months of delivery are legally presumed to have been present at purchase, unless the seller can establish othewise.

4.  s75 of the CCA makes the provider of credit jointly liable with the seller for breach of contract

5.  Points 3 and 4 above would appear to mean that the provider of credit must prove that any fault arising within 6 months of delivery was not present at purchase rather than that your son should prove it was...

But see my next post in reply to born_again...

Okell

born_again said:

Bank need something to prove the fault. They are not car experts, or expecting you to bring the car to them to check it. Which is why a 3rd party report is asked for.

So the report from Audi dealership should be enough. 

Bank is paying S75 out of their own pocket, as such they need proof of the fault. Any costs are refunded if you win. 

Or any tom, !!!!!! or harry rather then hiring a car. Could simply buy one & then claim there is a fault, dealer is not dealing. Get a refund & walk away laughing..

Not criticising you, but aren't the credit providers looking at that the wrong way round?

If the OP's son were actually to make a proper s75 claim (ie sue the bank under s75 CCA as being jointly liable with the supplier of the car) then - because the fault arose within 6 months - it would be down to the bank to prove that there was nothing wrong with the car when it was sold and not down to the OP's son to prove that there was soemthing wrong with it.

I take your point that the bank are not car experts, but if they want to do all they can to protect their position against a s75 claim, shouldn't they be going to the supplier of the car and asking them to prove that the car was OK when it was sold, rather than asking the OP to prove that it wasn't?

If it went to court, the OP's son would need to prove nothing.  The burden of proof would be on the bank andor the supplier.

The point I'm trying to make - probably not very well - is that the bank seems to me to be acting at best disingenuously in asking the OP's son for evidence rather than asking the car supplier.  They ought to know that the legal burden of proof is on the supplier, not the consumer.

Hope that makes sense...

Happyprof1950

Thanks for the replies. My mistake as I’ve used CPA instead of CRA. The car was under the 30K limit and it’s a S75 claim. The Bank say they need an Independent report to allow for a price for repair. Since the Seller did not take up the opportunity to inspect the car, I would assume that a refund, less money for mileage etc. since the date of Sale, would be the outcome. If the Bank simply offer to repair the car my son is left in a worse position than would have been the case under a refund option. How can this be fair?

the_lunatic_is_in_my_head

Happyprof1950 said:

. If the Bank simply offer to repair the car my son is left in a worse position than would have been the case under a refund option. How can this be fair?

Bank could offer to repair the car (fair or otherwise other 30 days repair/replace is first step in CRA) but the bank are unlikely to repair the car.

The main sticking point seems to be burden of proof with the bank so going further either though official complain process or LBA is next step, quoting:

https://www.legislation.gov.uk/ukpga/2015/15/section/19

(14)For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

(15)Subsection (14) does not apply if—

(a)it is established that the goods did conform to the contract on that day, or

(b)its application is incompatible with the nature of the goods or with how they fail to conform to the contract. 

MyRealNameToo

Happyprof1950 said:

Thanks for the replies. My mistake as I’ve used CPA instead of CRA. The car was under the 30K limit and it’s a S75 claim. The Bank say they need an Independent report to allow for a price for repair. Since the Seller did not take up the opportunity to inspect the car, I would assume that a refund, less money for mileage etc. since the date of Sale, would be the outcome. If the Bank simply offer to repair the car my son is left in a worse position than would have been the case under a refund option. How can this be fair?

The car is over 1 month since purchase so the retailer, and therefore the bank, are entitled to make a repair attempt. You can only reject a purchase in the first 30 days or after a failed repair/replacement attempt.