BISHTA and SPATA members benefit from a Primary Authority Partnership with Hampshire County Council (HCC) Trading Standards. Adam Chambers provides the answers to six questions raised by members from the two associations.
BISHTA and SPATA are very grateful to Adam Chambers at HCC for his contributions over a number of years and for providing answers in this article. This article has a number of questions that have been asked by BISHTA and / or SPATA (on behalf of its members), and HCC has provided answers, based on the information supplied. Please note these are generic answers and in no way should they be taken from this article and specifically applied to any current situations that may seem similar, as there may be essential details missing that could change the reply from HCC.
The questions have been collated under two headings, the first relating to The Distance Selling rules (DSr), the abbreviated name for the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The second set of questions refer to The Consumer Rights Act.
Distance Selling rules
Q: When a customer returns a hot tub that they have purchased online, what costs are reasonable to charge them?
A: If the customer has correctly informed you that they are returning the product to you in accordance with DSr (within 14 days of purchase), you cannot levy any charge for processing this request. You must refund the total amount paid for the product and the cost of delivery. You may require the customer to pay for the costs of returning the product, though, and this could include using a preferred method of collection to avoid damaging the hot tub.
Q: Do the DS regulations apply to me if I make the occasional distance contract or sell bespoke goods?
A: The regulations only apply to businesses who operate an organised scheme for distance selling, not the unique one-off supply due to specific circumstances. If, however, this becomes a regular event, you would need to apply the requirements.
Goods made to a customer's specification as opposed to made up from a tick list of options may be exempt from the regulations in terms of cancellation rights. Be careful here as they must be bespoke in every sense, not just because it's a one-off order. You must make this very clear to the customer before they enter the contract.
Q: Can I be exempt from giving these cancellation rights and still complete the contract by distance means?
A: Yes. The regulations only apply where the customer and retailer have not had ANY face to face dialogue up to concluding the contract. If a customer visits a showroom, yet orders online/by phone etc. later, this is not a distance contract.
Consumer Rights Act
Q: What are the critical milestones for customer's returning faulty products?
A: If the customer reports a fault within 30 days of purchase, the burden of proof lies with the customer to demonstrate this if the retailer does not automatically agree. Faults can include anything that breaches the customer statutory rights, so a false description of some kind, poor performance or quality issues, or the product does not meet a specific requirement that the customer made you aware of. This can include minor defects caused during handling and installation. The customer is entitled to reject the product for a full refund. You cannot refuse this if valid, but you can suggest alternatives such as repair, replacement or a price reduction. The customer can choose.
If the fault is reported after 30 days and up to 6 months from purchase, the burden of proof now flips, and it's for the retailer to show the product was not sold with the fault. Pre supply inspections do help counter any such claims but must be documented. If the retailer can show the goods were not faulty when sold, it is back to the customer to prove the fault.
After six months and until six years has passed, the burden goes back to the customer to prove. Retailers are quite entitled to ask for factors such as servicing, third party interference, misuse etc. to be considered if they are the possible cause. Expert reports here are common as fault may be complex to diagnose.
Please note that you are quite entitled to offer customers a range of options to address the fault, but the choice is ultimately theirs as long as what they ask for is not impossible or disproportionate compared to other options. This can include a price reduction or a partial refund. Accepting one of the alternatives does not prevent the customer from returning later if this option also fails. Remember you get ONE chance to affect a repair now. You may also have the ability to speak to the manufacturer about a warranty claim.
Q: A customer has complained they are too tall to use an exercise spa, what would be reasonable to expect a retailer to provide the customer?
A: If DSr applies because it was an online sale, the customer does not need to explain the reason for returning a product. If the product was bought from a showroom, they can fall back on their statutory rights for this type of situation. Assuming the customer had an opportunity to see the spa's specification and therefore made an informed purchase, they would have little grounds to return the spa in these circumstances. Any help the retailer provides here is purely goodwill.
However, if the goods were alleged to have been mis-sold, this may be a different situation. Whether a salesperson is required to proactively check the spa is suitable for the end-users' needs is debatable but is clearly good practice. The customer is largely responsible for making any specific and important information known to the retailer and not leave it for them to guess. It's also important any information provided online or instore, which impacts on a customer's decision making is factually correct if the customer relies upon it. In this situation, getting to the cause of the problem may involve further enquiry as clearly something in the sales process has not picked this up.
Q: I am an installer and have had a problem with a piece of equipment supplied to me, am I covered under the consumer rights act, or is this only applicable for my end-user client?
A: B2B supply is still covered by the old Sale of Goods Act and the Supply of Goods and Services Act which the Consumer Rights Act replaced. If the terms of the supply do not specifically restrict your right's, you can expect goods to be of satisfactory quality, fit for purpose and as described and seek redress if they do not. This can, of course, include costs of fitting, removal etc.
(Source : BISHTA and SPATA)