Dispute over refund of deposit - recliner chair

Natski

Hi All,

I'm hoping for some advice on behalf of my elderly parents. My dad has mobility problems and struggles now to get up from sitting. They decided to look at getting a rising recliner chair and arranged for some companies to visit their home.
One of the sales people basically took a deposit of £900 from them by card payment, telling them they had 14 days cooling off period and could get a full refund. They asked what would happen to the chair if they decided to cancel and were told that it would be held in stock and resold. They signed an order form which had T&Cs on the back, which they were not given the opportunity to read before paying the deposit. The T&Cs do not make any mention of a requirement to pay a deposit at all, it just states that full payment must be made before the chair can be delivered. It also says if it is a bespoke chair, there is no right to cancellation. 

A few days later they felt that they had been pressured into paying the deposit and called the company to cancel the order. They were then told that they couldn't cancel. They advised what the salesman had told them and were told to read the T&Cs.

They contacted Nationwide who carried out a chargeback for the £900, whilst they investigated further. In the meantime, the company called my parents to tell them the chair was ready! At which point they repeated that they had cancelled the order. I realised at this point that they had never communicated anything in writing so they sent a formal complaint to the company reiterating their request to cancel, and pointing out that the T&Cs don't make any provision for a deposit to be taken.

They heard nothing for weeks, and have just received an email from the company stating that Nationwide have upheld the company's position on the deposit (I'm waiting to hear from my parents as to whether the money has been re-debited from their account), and that the only way they can resolve this issue is to either cancel the order and lose the £900 deposit, or take delivery of the chair, with a £200 discount as a gesture of goodwill! The total cost of the chair is about £4k! It's daylight robbery.

I have said to them that I think they may need to take this to the small claims court, on the basis that the T&Cs make no mention of a deposit being required, so they have operated outside of the contract and it should be null and void. Is this sensible? Or are they liable for the deposit anyway? 

Any thoughts or guidance would be much appreciated!

Thanks in advance ☺️ 

Alderbank

Don't get worked up about the deposit.

The two important things are was the chair really made to order and is your dad happy with it?

If you answer those we can take it from there.

pinkshoes

Did they order from the store, or did someone come to their house?

eskbanker

pinkshoes said:

Did they order from the store, or did someone come to their house?

The latter is certainly implied but no harm in verifying!

Natski said:

They decided to look at getting a rising recliner chair and arranged for some companies to visit their home.

elsien

This falls under off-premises sales with regards to  cancellation rights.
How bespoke was the chair, did they pay by debit card or credit card, do they remember if the cancellation call was recorded, and how long after ordering was it when they put the cancellation in writing? 

saajan_12

Natski said:

Hi All,

I'm hoping for some advice on behalf of my elderly parents. My dad has mobility problems and struggles now to get up from sitting. They decided to look at getting a rising recliner chair and arranged for some companies to visit their home.
One of the sales people basically took a deposit of £900 from them by card payment, telling them they had 14 days cooling off period and could get a full refund. They asked what would happen to the chair if they decided to cancel and were told that it would be held in stock and resold. They signed an order form which had T&Cs on the back, which they were not given the opportunity to read before paying the deposit. The T&Cs do not make any mention of a requirement to pay a deposit at all, it just states that full payment must be made before the chair can be delivered. It also says if it is a bespoke chair, there is no right to cancellation. 

A few days later they felt that they had been pressured into paying the deposit and called the company to cancel the order. They were then told that they couldn't cancel. They advised what the salesman had told them and were told to read the T&Cs.

They contacted Nationwide who carried out a chargeback for the £900, whilst they investigated further. In the meantime, the company called my parents to tell them the chair was ready! At which point they repeated that they had cancelled the order. I realised at this point that they had never communicated anything in writing so they sent a formal complaint to the company reiterating their request to cancel, and pointing out that the T&Cs don't make any provision for a deposit to be taken.

They heard nothing for weeks, and have just received an email from the company stating that Nationwide have upheld the company's position on the deposit (I'm waiting to hear from my parents as to whether the money has been re-debited from their account), and that the only way they can resolve this issue is to either cancel the order and lose the £900 deposit, or take delivery of the chair, with a £200 discount as a gesture of goodwill! The total cost of the chair is about £4k! It's daylight robbery.

I have said to them that I think they may need to take this to the small claims court, on the basis that the T&Cs make no mention of a deposit being required, so they have operated outside of the contract and it should be null and void. Is this sensible? Or are they liable for the deposit anyway? 

Any thoughts or guidance would be much appreciated!

Thanks in advance ☺️ 

What would the implication be of the payment arrangements not being mentioned? A contract stating I agree to pay you £x before you deliver chair y can be perfectly valid even if I choose to pay in 1 or 10 installments. Yes the sales person told them to pay the first installment there and then, but they then chose to comply. Basically this is a failing argument, the contract is not null & void. 

However, this is precisely the situation that distance selling regulations were designed for. If the contract was made away from the seller's premises (yes if it was at the customer's home) and if the item was not bespoke then parents can cancel the contract within 14 days. 

What were the specs of the chair? Can you visit the trader or check on their website etc whether they list those specs as an option, vs say something that's made to measure at a specific size. The salesman's comment that it would be added to stock is a helpful indication but not definitive to say its not bespoke.. as any retailer may make a bespoke item and then try to flog it in store as a one off. 

Grumpy_chap

Natski said:

the £900 deposit, or take delivery of the chair, with a £200 discount as a gesture of goodwill! The total cost of the chair is about £4k! It's daylight robbery.

What does this chair do?

We have just ordered a new sofa and one of the ranges we looked at had a recliner lift and rise option for only £900 total:
https://www.dfs.co.uk/newsome/nmw11skgh?skuId=6900251

Woodstok2000

saajan_12 said:

Natski said:

Hi All,

I'm hoping for some advice on behalf of my elderly parents. My dad has mobility problems and struggles now to get up from sitting. They decided to look at getting a rising recliner chair and arranged for some companies to visit their home.
One of the sales people basically took a deposit of £900 from them by card payment, telling them they had 14 days cooling off period and could get a full refund. They asked what would happen to the chair if they decided to cancel and were told that it would be held in stock and resold. They signed an order form which had T&Cs on the back, which they were not given the opportunity to read before paying the deposit. The T&Cs do not make any mention of a requirement to pay a deposit at all, it just states that full payment must be made before the chair can be delivered. It also says if it is a bespoke chair, there is no right to cancellation. 

A few days later they felt that they had been pressured into paying the deposit and called the company to cancel the order. They were then told that they couldn't cancel. They advised what the salesman had told them and were told to read the T&Cs.

They contacted Nationwide who carried out a chargeback for the £900, whilst they investigated further. In the meantime, the company called my parents to tell them the chair was ready! At which point they repeated that they had cancelled the order. I realised at this point that they had never communicated anything in writing so they sent a formal complaint to the company reiterating their request to cancel, and pointing out that the T&Cs don't make any provision for a deposit to be taken.

They heard nothing for weeks, and have just received an email from the company stating that Nationwide have upheld the company's position on the deposit (I'm waiting to hear from my parents as to whether the money has been re-debited from their account), and that the only way they can resolve this issue is to either cancel the order and lose the £900 deposit, or take delivery of the chair, with a £200 discount as a gesture of goodwill! The total cost of the chair is about £4k! It's daylight robbery.

I have said to them that I think they may need to take this to the small claims court, on the basis that the T&Cs make no mention of a deposit being required, so they have operated outside of the contract and it should be null and void. Is this sensible? Or are they liable for the deposit anyway? 

Any thoughts or guidance would be much appreciated!

Thanks in advance ☺️ 

However, this is precisely the situation that distance selling regulations were designed for. If the contract was made away from the seller's premises (yes if it was at the customer's home) and if the item was not bespoke then parents can cancel the contract within 14 days

Distance selling specifically only applies when there has been no face-to-face contact. An in person sale at a customers home is an off-premises contract, although the cancellation rights are broadly similar. Its going to come down to the degree of customisation as you said. 

Natski

Thanks everyone for your replies, I'll try to respond to queries:

1. The company is saying it's a bespoke product. They took a couple of measurements of my dad, just in relation to his height I believe, but I think the salesman also made a comment about his measurements being quite standard. There's a box on the form which has been marked to say it's bespoke, but unclear how that's been assessed. None of this was explained to my parents before they paid the deposit, amd based on the T&Cs in relation to cancellation, would mean that it couldn't be cancelled, so why did the salesman tell them the opposite?

2. Yes, the order was placed at home with salesman present. 

3. Paid by debit card. Nationwide did initially refund under Visa chargeback, but looks like that may nowbe reversed?

4. They have not received the chaur, because as far as they are concerned, they have cancelled the order. Company went ahead and made the chair even after being given verbal notice of the cancellation. 

5. They cancelled 11 days after order. They didn't send written confirmation of the cancellation until about 5 weeks after order, and only after I insisted. They are in their late 70's and unfortunately thought that a phone call would be enough. They did ask in the letter for a recording of the call.

6. That is a good idea to try and match the spec with products on the website (if there are any). I will get onto this today.

7. My thinking re the deposit specifically and the contract is that wouldn't there need to be specific terms that say ' if you pay a deposit, this is/isn't refundable in x, y, z circumstances '? You would normally see this in a sales contract where a deposit is payable? There is literally no mention whatsoever of the option of paying a deposit. No one from the company has referred to this payment as an installment towards the full cost, they have consistently used the word deposit, which suggests to me an expectation of terms that should apply to this payment separately to the terms relating to the remaining payments that are due? Interested in any further thoughts on this.

Thanks everyone!

Undervalued

Natski said:

Thanks everyone for your replies, I'll try to respond to queries:

1. The company is saying it's a bespoke product. They took a couple of measurements of my dad, just in relation to his height I believe, but I think the salesman also made a comment about his measurements being quite standard. There's a box on the form which has been marked to say it's bespoke, but unclear how that's been assessed. None of this was explained to my parents before they paid the deposit, amd based on the T&Cs in relation to cancellation, would mean that it couldn't be cancelled, so why did the salesman tell them the opposite?

2. Yes, the order was placed at home with salesman present. 

3. Paid by debit card. Nationwide did initially refund under Visa chargeback, but looks like that may nowbe reversed?

4. They have not received the chaur, because as far as they are concerned, they have cancelled the order. Company went ahead and made the chair even after being given verbal notice of the cancellation. 

5. They cancelled 11 days after order. They didn't send written confirmation of the cancellation until about 5 weeks after order, and only after I insisted. They are in their late 70's and unfortunately thought that a phone call would be enough. They did ask in the letter for a recording of the call.

6. That is a good idea to try and match the spec with products on the website (if there are any). I will get onto this today.

7. My thinking re the deposit specifically and the contract is that wouldn't there need to be specific terms that say ' if you pay a deposit, this is/isn't refundable in x, y, z circumstances '? You would normally see this in a sales contract where a deposit is payable? There is literally no mention whatsoever of the option of paying a deposit. No one from the company has referred to this payment as an installment towards the full cost, they have consistently used the word deposit, which suggests to me an expectation of terms that should apply to this payment separately to the terms relating to the remaining payments that are due? Interested in any further thoughts on this.

Thanks everyone!

Point 7.....

If a deposit was fully refundable under all circumstances then it is not actually a deposit at all!

Whilst a deposit cannot be a penalty, if the firm has incurred costs as a result of the placing of this order (which they have a duty to mitigate as far as reasonably possible) then the could well be entitled to retain some or all of the deposit. If the deposit is less than the firms loss they could potentially seek to recoup the excess.

pinkshoes

@natski - what is the spec of this chair if it cost £4000? That is the VERY top end of the budget.

My FIL bought one of these chairs for my MIL, although sadly she died days before it arrived. It is heated, tilts up to standing, and even has a massage feature for those people who do a lot of sitting. It was about £2500 I think. So I'm just curious what on earth this chair does to make it so expensive. I assume they've opted for a top quality extra thick leather??

I am assuming as the appointment took place at their home that they invited the company over? 

Does the sales document they signed mention that any cancellation has to be in writing?

And assuming the sale was made at their home (rather than an offer given, then them being given time to think about it and completing the sale later) then this counts as an off-premises contract which has laws governing them.

There seems to be some conflicting information given to them about their right to cancel. As it was a bespoke item and made to measure (really??) then legally they cannot cancel, even in an off-premises contract. BUT... the trader legally had to inform them at the point of sale that they did not have the right to cancel. Not only did they not do this, but they also told them that they DID have the right.

As the chair has not been delivered, then I think it is fair to deem that the shop has accepted the cancellation. Getting the £900 deposit back might be worth a letter before action.

"Dear <business>.
On <date>, Mr Blobby of your company visited our home to discuss the purchase of a snazzy chair. We were talked into purchasing a chair costing £4000. Mr Blobby informed us that we had 14 days to cancel should we change our minds.

After 11 days we called to cancel the order as we felt we had been pressurised into ordering something that was far more expensive than what we required and wanted, where we were then informed that bespoke orders could not be cancelled. Legally, Mr Blobby should have informed us at the point of sale that the order was bespoke and therefore we were not able to cancel. Not only did he fail to do this, he also told us that the order could be cancelled within 14 days, which we did. 

In addition to this, when Mr Blobby took some basic measurements, he commented that it was a standard size.

We therefore request the return of our £900 deposit within 14 days, due to your failure to meet your legal obligation to inform us that it was a bespoke purchase which was not eligible for cancellation. If you fail to return our deposit within this time frame, we will be taking legal action to recover our deposit through the small claims court.

Best wishes..."

Obviously adapt the above with sensible descriptions and names. Send with proof of postage. The card provider sided with the business as the business claimed it was a bespoke item and would have said they told you this at the point of purchase.