Consumer Rights - December 2011

Question - My iPhone has stopped working as the speaker in the headset is broken. I have been told that they will give me a reconditioned handset as a replacement. It's still within my warrantee, so surely I should get a new one instead as its a manufacturing fault? Also they said the replacement handset would only have a 3 month warrantee not a year which leads me to feel that they don't think it's as good a quality!

What are my rights?

Answer -  You have the right to have the handset repaired or replaced by the retailer (in reality they get to chose which remedy to offer) and do not have to rely on the warranty.  However, if it is more than 6 months old, the burden will be on you to prove that it was sold with the defect that has taken time to manifest itself.

If you have it replaced under the warranty, then the manufacturer can rely on the warranty terms in regards to what is offered.  However, any replacement does not have to be new, nor does it have to have a new warranty but, the manufacturer cannot limit the warranty either i.e. if you have had it only for 6 months, then the replacement should also fall under the original warranty for a further 6 months.

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice.

Question - I was locked out of my email account. The phone, broadband and email are provided by the same company. Eventually I had to call in a PC technical firm which at great cost convinced the aforementioned company that my email address did exist. The technician that I employed assured me that it was the incompetence of the people in the call centre who had made it so difficult to rectify the problem. Should I try to seek reimbursement directly or go through some agency such as offcom. If so could you advise me as to how I approach them.

Answer -  All UK based communications and internet services providers should operate, and provide to its customers, an OFCOM compliant complaints procedure.  The first stages will involve writing to the communications provider about the complaint and the final stage will allow you to refer your complaint to either the Ombudsman Services: Communications or the Communications and Internet Services Adjudication Scheme (CISAS) for a free and independent decision to be made on your complaint. 

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice.

Question - I brought a Samsung Galaxy Tablet on 16th December 2010. It always had a slight program fault, in that programs ESP the email program would suddenly shut down. However, I loved it and lived with the fault until early November when it became much worse, and I started contacting Samsung help desk for support.

First they told me to update my unit with automatic downloads. I tried, unsuccessfully, and the fault was worse. I couldn't use the unit. So I phoned again, this time they advised that I back up the unit then return it to its factory settings. I tried this, it wouldn't back up, then the system crashed and I couldn't turn back on. So I called again, by now it was about the 18th November. I explained what had happened and they said they'd send me a 'jiffy bag' to return the unit. I waited but it didn't arrive. On the 29th I rang for a 4th time, and was told the return order had been cancelled. A new bag would arrive in a 'day or two'. On 2nd December, it hadn't arrived so I rang again and was told I would have to wait till Monday.

I don't know if it will arrive tomorrow but am fed up and a concerned that if it doesn't arrive by the 15th I will have trouble getting Samsung to make the fault right. Additionally, having not been able to download and back up all my data, books, music etc I don't think I will have any way of being compensated for this. Help!

Answer - You should contact the retailer that sold you the tablet and complain about the problems that you have had with the tablet. It is best to follow up your complaint with a letter sent by recorded delivery to the Customer Service Manager.

The Sale of Goods Act 1979 requires the retailer to sell you goods that are 'of satisfactory quality and fit for purpose'. If the fault is caused by an 'inherent defect' as opposed to being caused by 'your mis-use or normal wear and tear' then you may be entitled to insist that the retailer provides a repair, replacement or partial refund. You are unlikely to be entitled to a full refund because you continued to use the item when it showed the first signs of a problem.  As you have not complained within the first six months of purchase, if the retailer refuses to do anything, you may have to prove what has caused the fault.  You will have to get an independent technician to inspect the product and provide a written report on the cause of the fault. If that report proves that the fault is the result of an inherent defect, then you can ask the retailer for either a repair/replacement or partial refund and for reimbursement of the cost of the report. Your entitlement to a remedy will depend on what action you have taken so far. If the report shows that the fault is caused by your misuse or normal wear and tear, then you have no remedy against the retailer. These are your statutory rights against the retailer. You may have alternative or different rights against the manufacturer 'Samsung' under the terms of the warranty. You need to check the terms of the warranty to see what they say your rights are. Frequently, warranty rights are more restrictive than your statutory rights against the retailer.

With regards to the backing-up of information, it is your responsibility to do this. If the tablet had never been able to do this, then you need to see if you can find some other way of transferring the information to another memory device. You may be able to ask for the additional costs of purchasing this device or paying for someone to do this, if the tablet has an inherent defect. I suggest that you get in touch with the retailer and see what it intends to do to resolve the situation.  If you do not achieve a resolution with the retailer, before you take any further action, I suggest you get your own expert report to prove your claim.

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice. 

Question - If I take up a mobile phone contract which supplies me with a free phone, does the supplier have to repair or replace the phone if the phone develops a fault during the contract time (I do not want to take out insurance as well).

Answer - The contract will fall under the Supply of Goods and Services Act 1982 which states that the goods supplied must be of satisfactory quality and fit for their purpose.  It the phone goes wrong, you have the right to request for a repair or replacement (but the provider in reality can chose which remedy to offer) if it had an inherent defect.  The burden will be on you after the first 6 months to prove that the fault was in inherent defect.

If however, it was broken because of misuse or say, water damage, you would not be entitled to any remedy by the provider.

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice.

Question - I have just had my garage roof refelted but after last night's rain I have a large puddle on the right side of the roof and another near where the downpipe outlet stands. Obviously they have got the fall line wrong. I have a letter from the contractor setting out work to be done and price estimate but he uses the roofing company on a sub contract basis. How do I stand? Obviously no money has changed hands yet.

Answer - As you have paid for a service, that service has to be carried out with reasonable care and skill (in both the work carried out, and in deciding what work is required), using goods of a satisfactory quality. In this case you will need to see if the quotation given makes any reference to changing the fall of the roof - if it does, and they have not carried this out then they are in breach of contract and you can look to them either to come back and do the work correctly, or claim from them the cost of having another company do this (which in reality usually cost more than the original quote).

If it was not part of their quote, you will need to argue that, without adequate falls, pending would occur, and therefore they did not use reasonable care and skill in advising that the falls needed changing.

It matters not if the company you contracted with had another company do the repairs - the original company is still liable for any breach of contract.

Unless any contract terms says otherwise, payment is due on completion - this means satisfactory completion so until the work is done properly you are entitled to withhold payment (subject to the above matters).

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice.

Question - My Iphone 4 which I purchased in May this year, developed a fault last week and no longer worked. I took it to the Apple store in Southampton where they replaced the phone for me (although they could not guarantee that it was a brand new phone) and also suggested that I purchase "Apple Care" extra warranty before my one year warranty ran out.

I asked if my one year warranty would be extended to cover the replacement but was told that it would not. I am not sure what to do if the replacement develops the same fault or whether or not it is worth purchasing the Apple Care. We have an added value account with Lloyds TSB which does cover mobile phones. All in all I am confused. Any advice you can offer would be greatly received.

Answer - When you purchase goods they have to be of satisfactory quality and fit for their purpose - if they are not you can ask for a repair or replacement (in reality the retailer can chose). These rights exist from the date of purchase, and continue against a retailer for the life of the phone (regardless of any warranty) and although there is no legal authority as to how long a phone should last, it should work for a "reasonable" period of time. This means your rights continue even once the warranty has expired. On the basis that you purchased the phone from Apple and had it repaired by Apple, although you are not entitled to a new warranty, your rights under the Sale of Goods Act continue.

The problem that can occur is that, after 6 months from the time of sale, the burden lies with you if the phone goes wrong to show it has an inherent defect and that the fault has not been due to any type of misuse.

If you are considering purchasing Apple Care, you may wish to look at the following link which sets out the pros and cons of extended warranties

http://www.which.co.uk/consumer-rights/sale-of-goods/extended-warranties-know-your-rights/your-rights/

Question - My builder was supposed to finish an attic conversion on October 17 (8 weeks) but not finished it now 29/11/11 he is very rude and the whole house is messy with a full skip and scaffolding all around, how could I tackle him legally?

Answer Pending

Question - I am booking a holiday for August 2012 with Thomas Cook. I have opted to pay a 'Low Deposit', I have been asked to sign a Low Deposit Indemnity. One sentence in the form reads: "I understand that this amount must be paid (the remainder of the deposit) whether or not I, or any of my party, cancel the holiday or if the Tour Operator is unable to provide the holiday".

Can you advise me of the legality of the phrase "Tour Operator is unable to provide the holiday".

Answer Pending

Question - I bought goods at Countrywide farmers on 1.12.11. It was a 10% discount day - this included chicken feed. When I got home and checked my receipt the discount had not been applied to the chicken feed! Do I have any right to go back and ask for the discount ?

Answer - Thank you for your query.

If the store stated that 10% was going to be applied to everything and they failed to apply it to the chicken feed then you would argue that the 10 % discount formed part of your contract and/or was a misrepresentation which induced you to enter into the contract.  Accordingly you should go back to the store on this basis.

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice.

Question - We paid a shipping agent to ship our household effects to USA. We were told that we might be subject to a VACIS x-ray inspection on entry into NY and that it would cost a few hundred dollars. We then were forced to pay $2000 to get our goods released from the port by the American agent. Can we get our money back on the grounds that this was not part of the original contract made with UK shipping agent? How do we go about it?

Answer -  Thank you for your query.

You may have a misrepresentation claim against the uk agent. This would be on the basis that they induced you into entering into the contract by telling you that the cost of the inspection would be in the hundreds not the thousands. In order to succeed you would need to show that you would not have entered into the contract if they had told you the cost would come to $2000. This may be difficult for you to show  because of the nature of your contract.i.e. the shipping of household goods to the US.  

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice.

Question - I've failed to claim using Hughes Direct's Price Promise. I ordered a Sonos Play 3 (£259) and Sonos Bridge (£39.99) on 1st Oct 2011 as a present. I later found out that Amazon had started an offer on the same day where the Sonos Bridge was free when one bought a Sonos Play 3. This is a significant saving!

I emailed Hughes on the 22nd Nov and got no response. I called on 2nd Dec (it's difficult to call them as I work during the day and they are only open 9am - 5pm weekdays) and they said they wouldn't refund the difference because I wasn't calling within 7 days of my order being period. I argued that I could prove that the Amazon offer started when I placed the order and so they should refund the difference.

The wording of their price promise is: "Our 'Price Promise' applies to an advertised price (excluding any voucher codes) at an electrical retailers that is in stock, at a better price, within 7 days of your order being placed. Display items are not classed as in stock." My argument is that I could prove the advertised price was better than theirs at the point in time the order was placed. They again refused to refund the difference. I'm disappointed with their decision. To make matters worse, they also declined to pay my cash back earned via Quidco citing payment to "another referrer". Is there anything you can do to help or advice you can give?

Answer - If you can show that the other price was advertised within 7 days of the date of placing your order, then you should be entitled to the price promise.  If they refuse to pay, you may have a claim against them in contract and/or misrepresentation to claim the difference.

If you paid on credit card, you may be able to claim the difference from the card provider under Section 75 of the Consumer Credit Act - this makes your card provider jointly and severally liable with Hughes for any breach of contract. 

You may also wish to consider contacting Trading Standards because if they are offering a price promise but failing to honour it, then this could be a breach of the Commercial Practices Directive and Trading Standards have the powers to act under that Directive.

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice.

Question - As a  relatively new start up business I looked at Tender list's as a way to gleam information about possible new work leads.

I came across one site www.qsl-tenders.co.uk which states a 4 week free trial. It keeps on telling you on the 6 or 7 sign up pages that its free, never mentions other terms and conditions.

After they have you convinced its free on the last page there is a tick box and an innocuous line stating that if you don't cancel the trial you are liable for a full year's subscription - in my case £700. You don't have to enter any credit card or financial details which adds to your feeling of it being risk free.

I only accessed the site during the 1st week of the free trial and then never again except this Friday when I received an invoice in the post for the above amount, I went to cancel the service as soon as I saw this but it say's the subscription is due to end next year.

They have since changed that part of the login, i.e you need to enter credit card details before accepting the trial, something I never would have done as it makes it more transparent.

They also make sure they never contact you at the end or before the free trial finishes' to ask if you liked to continue the trial, they wait for a few weeks after and then sting you with the invoice.

There are countless website's forums with countless unsuspecting small business people who have been scammed by these people. We are honest business people who only look to increase their work load by honest means but are caught by this scam. It cause's unnecessary stress and worry for business's who can Ill afford those kind of fee's.

They try to extract as much money out of scared small business people by these threats,  it's a terrible scam and they seem to be skirting on the edge of the law, mis-selling, mis- advertising and just treating customers willing dupes.

I just been contacted by QSL a person called Alison Cook who has been threatening about the contract and unwilling to listen she has some prepared scripts and sounds legally aware. Half way through the call she mentioned the call was being recorded but never mentioned it at the start which she should have done?

I'd be really grateful for any advice you might have, I'm loathed to pay them anything as it is a scam however they want to dress it up.

Answer pending

Question - I bought a Panasonic blu-ray recorder from a supplier called FadliMedia on the Amazon Marketplace, using a Visa credit card. On the first day of use it became locked-up and unusable, so I asked FadliMedia for a replacement. They said I should contact Panasonic for the replacement, but to cut a long story short, Panasonic's response was to send it away for repair.

After nearly 4 weeks the recorder was returned, but I found it had the same problem. I am therefore doubtful it can be repaired. I asked FadliMedia for a replacement as it is faulty goods, but they say they are a '3rd party seller on Amazon Marketplace, not a retailer', and their sole advice is to get it repaired again. After all the delays, it is now 6 weeks since date of purchase.

What are my rights? Can I insist on a refund? Can I get a refund from Visa?

Answer - I thank you for your email and am sorry to hear of the problems you are experiencing with FadliMedia.

When you buy goods you have a contract with the retailer under the Sale of Goods Act 1979 which says goods have to be of satisfactory quality and fit for their purpose.  If not, you can reject within a reasonable period of time (usually 3/4 weeks after purchase) and only if you have lost the right of reject will you have to accept a repair or replacement (the choice in reality is down to the retailer).  You can rely on those rights against a retailer whether or not a warranty is in place, so you did not need to contact Panasonic direct.

However, the above only applies to companies based in the UK - you will need to look at the terms and conditions of FadiMedia to see where they are based, and which laws apply to their contracts.

You have open to you 2 possible options (1) refer back to Amazon under their guarantee (although I cannot give details on how this applies) or (2) make a claim against your card provider under Section 75 of the Consumer Credit Act 1974 - this makes the card provider jointly and severally liable for any breach of contract.  This may well be the best option.  This will only apply if the goods cost more than £100.

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice.

Question - I was sold over the internet for 350 pounds (375 w/ shipping) from a guy who says that he makes custom made bikes to order. The bike shop (Brixton Cycles, a locally renowned business and workers cooperative) has advised me more then once (this third trip was the final straw) that they would rather not take my money for the repair needed to get it fit for purpose, these repairs are estimated at 150 pounds, however even with these repairs it would 'never be reliable'. The breaks, the gears, the chainset are not to standard and apart from the fact it doesn't function it is not road safe. What makes me feel upset is that while initially the seller seemed that he would offer me a full refund he is now rejecting my calls and ignoring my emails. He sells bikes on ebay and over a Facebook group. He is based in Hull.

Initially when I received the bike I was a bit upset at the fact that the wheel was unattached and in fact I would have to put the front brakes on myself. I am not a bike expert and would have to take it to a shop to make sure it was done correctly. I have mobility issues so this was a bit upsetting. It was not till I took it to the bike shop that I was told how extensive the shortcomings of the bike where.

I feel that by selling me this bike this man has actually acted in a reckless way and would have potentially endangered my life, When I have a functioning bike I commute this way, cycling at least 10 miles a working day through busy London streets, and in fact he knew this.

How can I pursue my refund now that he is ignoring me?

Answer - I am answering your email on the basis that you purchased the bike from a private buyer (if that is not the case, please email again and I will respond even though the Q&A session is closed.

When you purchase goods from a private buyer you do not have the same consumer law protection as when purchasing from a trader. Therefore, goods purchased do not have to be of satisfactory quality or fit for their purpose. However, if you purchase goods on the basis of information supplied or representations made about the goods and that turns out not to be true, you can claim damages under the Misrepresentation Act 1967 (which could be either a refund or the cost of putting the bike right).

If you have an address for the buyer and they are in the UK, you may have to consider issuing legal proceedings - before taking this step you should get more detailed legal advice.

I hope this helps you; please be aware that the guidance given is limited by the information I have and should not be treated as a substitute for taking full legal advice