Civil Litigation Solicitor, Roger Cheves, reviews the latest addition to our consumer protection legislation
The Consumer Rights Act 2015 is the largest change in consumer rights for decades. It is intended to strengthen and bring consumer rights law into the twenty-first century.
The legislation replaces the Sale of Goods Act, Unfair Terms in Consumer Contracts Regulations and the Supply of Goods and Services Act.
The new Act introduces:
- 30 days to get a refund – a specific timeframe has been introduced in which a consumer can reject a faulty item and obtain a refund.
- A ‘tiered’ remedy system – for faulty goods, digital content and services. This means a person’s rights to a refund are specifically set out. Entitlement to a refund depends on how long a person has owned the product.
- Failed repairs – After one failed attempt by the retailer to repair or replace a faulty item, the buyer is entitled to ask for a refund or reduction.
- A second repair or replacement – If a refund or price reduction is not desired, there is now right to request another repair or replacement at no cost.
- Deductions from refunds – No deduction can be made from a refund in the first six months after purchase. Save for motor vehicles, where a reasonable reduction may be made for the use had of the vehicle.
- Digital content rights – This provides consumers with rights in relation to online digital content that has been paid for, digital content supplied free with other paid for items and digital content supplied on a physical medium, such as a DVD.
- Unfair terms in consumer contracts – This provides a means by which consumers may challenge hidden charges. The core terms of a contract, including price, can be reviewed for fairness; the test will be whether they are both “prominent and transparent”.
- Pre-contract information – If a retailer provides pre-contract information about a service and the consumer takes this information into account, the service provided must comply with that pre-contract information.
As with the earlier legislation, under the new Act, all items must be of satisfactory quality, fit for purpose and as described.
The law also, for the first time, includes digital content in this definition. All products must meet these standards:
- Satisfactory quality: Goods must not be faulty or damaged when received. The test is what a reasonable person would consider satisfactory for the goods in question?
- Fit for purpose: The goods should be fit for the purpose they are supplied for, as well as any specific purpose you made known to the retailer before the purchaser agreed to buy the goods.
- As described: The goods supplied must match any description given by the retailer at the time of purchase.
The rights are against the retailer; the company that sold the product, not the manufacturer.
Up to six months
If the fault becomes apparent within the first six months after delivery there is a presumption that it has been there from the time of delivery, unless the retailer can prove otherwise.
No deduction can be made from a refund in the first six months following an unsuccessful attempt at repair or replacement, except in the case of motor vehicles, where a reduction for the use enjoyed by the buyer can be made.
After six months
After the first six months the burden shifts to the buyer to prove that the product was faulty at the time of delivery.
DIGITAL AND PHYSICAL GOODS
Special rules apply if goods and digital content are provided together in one product, for example a DVD or mobile phone.
The retailer will have to pay compensation if any device or other digital content is damaged as a result of the digital content downloaded.
This applies where that damage would not have occurred had ‘reasonable care and skill’ been exercised in the provision of the digital content – even if that content was provided free of charge.
The retailer is responsible for goods until they are in the buyer’s physical possession or in the possession of someone appointed to accept them.
This means that retailers are liable for the service provided by the couriers they employ – the delivery firm is not liable.
There is a default delivery period of 30 days during which the retailer needs to deliver unless a longer period has been agreed.
- If the delivery is later than agreed and it was essential that it was delivered on time, then there is a right to terminate the purchase and obtain a full refund.
- If the delivery isn’t time essential but another reasonable delivery time can’t be agreed, there is also a right to cancel the order for a full refund.
The term ‘service’ covers a whole variety of services including large and small-scale work that may be carried out in a home.
Services can be provided alone or they may be provided with goods, for example, the fitting of a new kitchen.
The act states that all contracts for services must do the following:
- The trader must perform the service with reasonable care and skill.
- Information which is said or written is binding where the consumer relies on it.
- Where the price is not agreed beforehand, the service must be provided for a reasonable price.
- The service must be carried out in a reasonable time.
The Act provides the following remedies:
- The trader should either redo the element of the service which is inadequate or perform the whole service again at no extra cost, within a reasonable time and without crating significant inconvenience.
- In circumstances where the repeat performance is impossible or it is impossible to do it within a reasonable time or without causing significant inconvenience, a price reduction would be appropriate. Depending on how severe the failings are this could be up to 100% of the cost.
Unfair contract terms
He core terms of a contract, including price, may be assessed for fairness unless they are both prominent and transparent.
Terms may be declared to be unfair if:
- they are contrary to the requirements of good faith – meaning they must be designed, negotiated and entered into with the consumer in a fair and open way
- they cause a significant imbalance between the rights of the retailer and consumer to the detriment of the consumer.
If a court decides that a term is unfair the result will probably be that the term will be deleted from the contract or, in serious cases, contract itself will be ruled to be void, without the consumer having to pay a cancellation fee.
Roger Cheves is a solicitor in our civil dispute resolution team specialising in contract litigation. If you are involved in a contract dispute where the claim has a value of more than £10,000 (the current small claims court threshold) then please contact us on 0808 139 1606 for a FREE case assessment.