Consumer Rights Act v Company T&C

[NameChangeNumber359714]

Any consumer rights experts about? I bought a £500 kitchen ceiling extractor online from a domestic appliance retailer's website. Paid by credit card. The company's t&c say that damage must be reported within 48 hours of delivery. I wasn't able to get the thing out the box until day 7 (kitchen fitter helped me). Needless to say it was damaged (frame buckled on one corner and paint split right down to the metal).

The company refused to refund/replace the item and a chargeback claim through the CC company was rejected on the basis that I was in breach of the company t&c. There is no right of appeal against the chargeback decision. The CC company have also said that a Section 75 claim is also likely to fail. They have sent me a copy of the evidence on which the decision was based and a leaflet about contacting the Financial Ombudsman.

However I believe I have statutory protection under the Consumer Rights Act 2015. The item was not of satisfactory quality when it was delivered and, within 6 months of receipt, the onus is on the vendor to prove otherwise.

My question is simply whether I have a case worth pursuing and, if so, what should I do next to get my money back? If not, why doesn't the 2015 CRA apply in this case?

I have posted this in legal rather than AIBU because I'd really value an objective, factual response. Thank you in advance.

I think you're probably right.

Have you put it to them in those terms?

I think it could work out ok for you. It is arguable on these facts - you can make the point that the item was not opened at the point of delivery and the damage was not apparent. However, as soon as the item was unpacked (within a few days of delivery and as soon as the fitter was available to help - so not an unreasonable delay or irrational reason for delay) the damage was evident and you immediately reported it to the seller, well within 48 hours of viewing the damage. It might depend on exactly what the clause in the T&Cs says though, but also it might not be seen to be a fair contract term if it excludes too broad a group of people - if for example it also penalised customers who have gone away when the box is delivered, or whose workman has been held up inadvertently.

Was any part of the box damaged on the outside - could you see that it could have been damaged in transit? If you could see that the corner of the box was damaged but did not realise the item inside was affected, do say that. It's possible that a delivery confirmation photo from the courier would show the box was damaged on arrival, which could help you out here too.

So, on to your next steps: As the retailer is not providing a refund or a replacement good of suitable quality, your claim is against the credit card company. You can't appeal the claim on the merits to the FOS (that's not their job to decide on claims), but you can bring them a complaint.

In order to get your complaint to the Financial Ombudsman Service, you now need to make a complaint to the CC provider's complaints team (specifically, not the general customer service team) "about the way in which your section 75 claim has been handled" (i.e., they have ignored that the damage was not apparent at the point of delivery and you could not have complained then, but you did complain as soon as the damage became apparent and you did your best to comply with the T&Cs). You should set out everything you have said above about the goods not being of satisfactory quality.

After your complaint about the CC company has gone in, you can bring your complaint to the FOS after 8 weeks or after you've received a final response, whichever is the quicker. Be sure and say very clearly in your complaint what resolution you would like in order to put things right. FOS cases are expensive; so it might actually be cheaper to pay you off than for the business to risk a FOS complaint going in. It's not a guaranteed outcome in your favour, but I think you have a reasonable chance if this story is accurate in how you've described it.

Best of luck!

Not an expert, but I've written more than my fair share of Ts&Cs for work and get advice from lawyers at the time. My understanding is that the court is typically sympathetic to the consumer, and Ts and Cs are not normally sufficient to overrule consumer law. I think you've a strong case. Good luck!

Do you not have the right to return an item bought online as long as you notify them within 14 days that you want to return it and then have 14 days to return it?

How can you have fewer rights to return a damaged item within that same timescale??

The seller's terms and conditions are a breach of the law. The Consumer Rights Act and the Consumer Contract Regulations both trump their terms and conditions. The goods were faulty. If you take them to the small claims court, it will be up to them to prove that the extractor was not faulty when delivered. But, even if they could prove that (which they clearly cannot), the Consumer Contract Regulations give you 14 days from delivery to reject goods bought online even if they are not faulty.

Your credit card company is wrong to say that a Section 75 claim is likely to fail. It would definitely succeed on the information you have posted here.

Go back to the retailer and point out that their terms are in breach of the Consumer Rights Act. Tell them that, unless they provide a full refund as required by law, you will refer them to Trading Standards and take legal action. If that doesn't get you anywhere, your next step is to send them a letter before action, setting out the facts, including copies of any documents on which you will rely, requesting copies of any documents you want from them and giving them 28 days to provide a full refund. State that, if a refund is not forthcoming, you anticipate starting legal action without further notice.

Separately, complain to your credit card provider. Their response is not good enough. They cannot hide behind the supplier's terms and conditions. They are also bound by the law.

@prh47bridge has it. The law prevails over T&C

UNLESS this was actually not intended to be a consumer purchase. Does the website say commercial only or offer without VAT?

Thank you all so much for taking the time to reply.

I feel reassured that, as I thought, my statutory rights under the 2015 Act override the company's t&s.

Apart from the correspondence with the company, I have only made a chargeback claim so far. I specifically mentioned the 2015 Act but it was still rejected which is what made me start to wonder if I was actually in the wrong.

I'm going to raise a Section 75 claim tomorrow and, if that fails, proceed to FOS.
I would prefer to pursue this with the CC company rather than contacting the retailer again. I have reason to think that they would be very difficult to deal with and that, no matter what happened, I'd never see my money anyway. That's one of the reasons why I make purchases over £100 on my credit card.

So, thanks again everybody. It's my first time starting a thread on Mumsnet and you've shown what an amazing source of support it can be.

Your right to return goods ordered online is unconditional within the first 14 days. Their Ts and C's aren't worth the paper they are written on. Plus the goods are faulty! Credit card companies love to try and wriggle out of section 75 claims, make sure you persist.

@NameChangeNumber359714 You were still within the statutory period to reject the goods (Right to Reject, clause 22) so the credit card company and the retailer are both wrong. You have 30 days and I would write to both pointing this out.

I also find a one star review on TrustPilot normally greases the wheels in matters like these.