Ongoing issue with Currys and DPD

Abzmo

Hello all. Could someone please give me advice regarding this issue. At the beginning of November I ordered a smartphone from Currys using my creation finance agreement.  This was to be delivered by DPD. However it did not arrive. Having called DPD I was informed that it had gone missing, upon which they told me to contact Currys and ask them to open an investigation, which I did.
Since then I have called about this multiple times. Each time I have been told to wait and that they would contact me in due course.  However the last time I called I was told that they were not aware of an investigation and opened another, again asking me to wait.
This is incredibly frustrating and feels like it is not being taken seriously. On the creation finance agreement the item is still listed as money owed, with the item to be paid for in 12 months. As you can imagine I want it resolved even more because of this. I have been told that the credit will be removed once the item has been found.
I would be very grateful if anyone could help with this. Thanks

Okell

Sounds like currys and Cretin Finance need to be reminded that (1) under s29 of the Consumer Rights Act 2015, Currys remain responsible for the item until it is delivered into your "physical possession", and (2) under s75 of the Consumer Credit Act 1974, Cretin Finance are jointly and severally liable* with Currys for the loss of the phone.

Whether the phone is found or not is irrelevant if it was never delivered to you.

Speak to Cretion and Currys again, pointing out the law to them


* Assuming it cost over £100

Ergates

Abzmo said:

Hello all. Could someone please give me advice regarding this issue. At the beginning of November I ordered a smartphone from Currys using my creation finance agreement.  This was to be delivered by DPD. However it did not arrive. Having called DPD I was informed that it had gone missing, upon which they told me to contact Currys and ask them to open an investigation, which I did.
Since then I have called about this multiple times. Each time I have been told to wait and that they would contact me in due course.  However the last time I called I was told that they were not aware of an investigation and opened another, again asking me to wait.
This is incredibly frustrating and feels like it is not being taken seriously. On the creation finance agreement the item is still listed as money owed, with the item to be paid for in 12 months. As you can imagine I want it resolved even more because of this. I have been told that the credit will be removed once the item has been found.
I would be very grateful if anyone could help with this. Thanks

As above:  If the phone goes missing before it is delivered to you - this is *entirely* Currys problem and not yours.   They should not be making you wait before either refunding you or sending a new phone.

Abzmo

Thank you for the replies. That's very helpful 

nyermen

Ergates said:

As above:  If the phone goes missing before it is delivered to you - this is *entirely* Currys problem and not yours.   They should not be making you wait before either refunding you or sending a new phone.

This exactly.  And don't let them fob you off with DPD - you have no contract with them, your contract is with currys, they have the contract with DPD.

ps. Cretin Finance  Havent heard that typo before

Abzmo

When pointing out to them the consumer rights act how do I follow that up if they won't accept responsibility?

Ergates

You could try searching online for the CEO email for Currys and sending details of your issue to there - people have had good results for this with some companies.   Not sure if Currys is one of them.

The next thing would be to speak to the finance company

Ultimately, if they repeatedly refuse to fulfil their obligations then you'll have to take legal action

Okell

Abzmo said:

When pointing out to them the consumer rights act how do I follow that up if they won't accept responsibility?

You quote s29 of the Consumer Rights Act 2015 to them:

"29  Passing of risk

(1) A sales contract is to be treated as including the following provisions as terms.

(2) The goods remain at the trader's risk until they come into the physical possession of—

(a)the consumer,..."

and you also point out that DPD have already admitted to you that the phone has "gone missing".  Why would they tell you that if it wasn't true?

Tell Curry's that under the law you are entitled to a replacement and that their investigation doesn't affect your rights.

If that falls on deaf ears follow Ergate's advice.

A_Geordie

I should point out that whilst s29 is entirely correct as to who bears the risk in the goods, you can't demand a replacement of the goods. You have to rely on section 28 (delivery of goods), extract of the relevant sub-sections below: 

s28...

(3) Unless there is an agreed time or period, the contract is to be treated as including a term that the trader must deliver the goods—

(a) without undue delay, and

(b) in any event, not more than 30 days after the day on which the contract is entered into.
... 

(6) If the circumstances are that—

(a) the trader has refused to deliver the goods,

(b) delivery of the goods at the agreed time or within the agreed period is essential taking into account all the relevant circumstances at the time the contract was entered into, or

(c) the consumer told the trader before the contract was entered into that delivery in accordance with subsection (3), or at the agreed time or within the agreed period, was essential,

then the consumer may treat the contract as at an end.

(7) In any other circumstances, the consumer may specify a period that is appropriate in the circumstances and require the trader to deliver the goods before the end of that period.

(8) If the consumer specifies a period under subsection (7) but the goods are not delivered within that period, then the consumer may treat the contract as at an end.

(9) If the consumer treats the contract as at an end under subsection (6) or (8), the trader must without undue delay reimburse all payments made under the contract.

Assuming 28(6) doesn't apply, you then follow 28(7) which is to demand that Currys deliver the goods by a certain time e.g. 7 days. If they cannot meet that demand then 28(8) kicks in, which is for the OP to end the contract and get a reimbursement. There is no option for replacement of goods.

In short, OP should write to Currys, refer to s28 and demand the phone be delivered by X date, if not the OP is ending the contract in accordance with s28(8) and Currys must reimburse the OP.

Abzmo

When I contacted Currys to inform them the item had been lost I was offered a replacement, which I refused. Instead I asked that they refund me. As of now I'm unsure as to whether I can ask the item be delivered as I asked them to cancel it 

A_Geordie

You can't cancel the contract and rely on the Consumer Rights Act to support you until you have complied with s.28. You can, of course terminate under the Currys terms and conditions but there's nothing I can find in the T&Cs that explicitly gives you the right to terminate in these circumstances where goods are lost, only for faulty goods.

I would caution that it is somewhat risky if you try to cancel the contract and not rely on the CRA as you might be deemed to have wrongfully terminated the contract which in turn puts you in breach of contract and Currys could rely on that as a means to escape liability. Best course of action is follow the CRA process and you will be on solid ground otherwise any other attempt to cancel the contract is at your own risk and expense. 

Anyway don't have many options to be honest and some will take longer than others. 

1. Continue complaining to Currys until the cows come home and hope they eventually agree with you to cancel the contract. No guarantees and won't be surprised if they take their time on it but it will require patience and constant follow ups, which is something I gather you are not keen on doing.

2. Complain to Creation and explain to them you are holding them jointly liable under s75 as other posters have suggested. This might prompt Creation to get in contact with Currys albeit at snails pace. 

3. Alternatively, make a formal complaint to Creation and pursue this via the Financial Ombudsman if there's no satisfactory resolution after 8 weeks or sooner if Creation refuse to do anything. Expect to wait 6-9 months end to end process.

4. Take the legal route and sue both Currys for breach of contract and Creation under s75 of the Consumer Credit Act 1974 holding them jointly and severally liable with Currys for the breach. Expect a similar or slightly longer timeframe from start to finish for a court hearing but I don't think Currys nor Creation would have any grounds for a defence if you took the CRA path.