Refusing to refund under DSR's **WON**

[Redletter]

Hi

can anyone tell me what course of action to take when a supplier is refusing to refund for goods inside of the 7 day cancellation period?

 

They have acknowledged my request to cancel and are stating that I must first return the goods

and then they will evaluate them

and will 'see what they can do but any refund will be at their discretion'!

 

They are stating that, because I have opened the packaging I do not have the right to return it.

 

This is despite the fact that they have already opened the box to include a complimentary accessory which I did not order!

 

I have read the OFT guide and it clearly states that the return of the goods cannot be made a condition of a refund.

The refund must be made within 30 days of my notice to cancel regardless.

 

You can understand my concerns that I might return the goods and they might deliberately cause damage

or claim that they are damaged upon return and so I do not agree to send them back until after the refund has been given.

 

If they stick to their guns and the 30 days expires what do I do next?

Thanks

 

I have just read the OFT guide in more depth and have seen a section relating to pre-contractual information. It states that once the consumer decides to buy, the supplier must provide pre contractual information in 'durable form' and that this must be in writing in order that the consumer may keep a copy.

It states that certain information must be included in this such as the stores address, their returns policy etc.

 

In actual fact I received nothing except an order confirmation stating the goods and the price. It did not even give me their postal address I had to look this up!

 

Does this mean that they are already in breach of their obligations before I even cancelled?

 

What are the implications of this, as the supplier is quoting his online T&C's as being nothing to do with my statutory rights etc??

 

Thanks in advance-anyone??

[Nagasis]

What were the items you bought?

 

You are essentiallly correct, they must refund within 30 days of written notice cancellation.

Obviously the dsrs don't apply to perishable or bespoke type items in the same way.

 

Although my personal opinion is that there is no reason not to return the items as even if they damaged them they would still be required to make a refund under the dsr's.

 

Obviously I would have some sort of trackable or recorded proof when returning the item to stop them claiming non receipt. However again this should not alter your refund under the dsr's.

Edited September 29, 2012 by Nagasis

[locutus]

What is the item? How much did it cost? Who is the seller?

[dx100uk]

how did you pay?

 

was this an online purchase?

 

as you cant take it back by the sounds of things its must be.

 

SOGA and DSR are your freind here

 

dx

[Redletter]

What were the items you bought? Vertex Illumina SR260 1200 LED Aquarium light fitting.

 

You are essentiallly correct, they must refund within 30 days of written notice cancellation.

Obviously the dsrs don't apply to perishable or bespoke type items in the same way.

 

Although my personal opinion is that there is no reason not to return the items as even if they damaged them they would still be required to make a refund under the dsr's. But he could claim I returned it broken and make a separate claim against me? He is obvs annoyed with me he could deliberately damage it just to get one up on me?

 

Obviously I would have some sort of trackable or recorded proof when returning the item to stop them claiming non receipt. However again this should not alter your refund under the dsr's.

 

What is the item? How much did it cost? Who is the seller? Aquarium LED light fitting. £1674.99! Marine Aquatics(.co.uk)

Thanks.

 

how did you pay? Cahoot credit card

 

was this an online purchase? Yes

 

as you cant take it back by the sounds of things its must be. Its in Wolverhampton I'm in Leeds!

 

SOGA and DSR are your freind here I hope so!

 

dx

 

Thank you

[dx100uk]

as you paid by credit card they EQUALLY responsible under section 75

 

if you really want to get up the suppliers nose

- do a chargeback.

 

http://whatconsumer.co.uk/visa-debit-chargeback/

 

DSR regs....

Distance Selling Act - Business Perspective - http://www.oft.gov.uk/shared_oft/bus...ral/oft698.pdf

Distance Selling Act - FAQ - http://www.out-law.com/page-430

 

dx

[locutus]

Was this item a standard "off the shelf" item or was it customized in any way? There are some instances where DSRs don't apply.... If it's an off the shelf standard item, then they have to allow you to inspect the item before deciding if it's suitable, thats what the DSRs are designed for.

 

I think that they're just trying to cling on to your cash (as times are hard, maybe they're struggling?) but if push comes to shove they'll probably refund you. I would email them (sales@marineaquatics.co.uk) tell them that you want them to either refund you immediately or you will do a chargeback then take them to court for your out of pocket expenses which will take longer but will ultimately cost them more. I would also point out that you will post negative feedback on your dealings with them on all the marine aquatic forums that you are registered online, which will probably cost them a lot more in the long run.

Edited September 30, 2012 by locutus

[Redletter]

Thanks Locutus it was a box standard product.

The guy must have been reading the OFT guides I sent him on DSR's cos he is now trying to say that the LED LIGHT UNIT comes under the definition of 'computer software'!

The unit is programmable but there was no software with it. I would have to download the software via my PC and the dongle (V-Link) that he sent me FOC.

 

Err I already went on the fish forum and tried to warn people but the moderator deleted my thread and this morning I got a slapped wrist email!

 

If I use chargeback would I have to change my reason to 'materially different/parts missing' or can I do it purely on the basis that he is refusing a refund to which the DSR's say I'm entitled to?

I looked up the 'Visa chargeback reason codes' and there was 53 'not as described' and the another I can't quite remember but something to do with customer returned item but trader failing to give credit??

 

Bump

Can anyone tell me if I can use Section 75 for this dispute and if so do I need to wait until the 30 day refund window has expired or can I just send a copy of the email claiming "MY TAC's are nothing to do with the regulations" and "no light no refund"??

[dx100uk]

yes as already mentioned in post 8

 

dx

[Redletter]

yes as already mentioned in post 8

 

dx

em to

Thanks dx but can you clarify which route applies, Chargeback or a Section 75 request?

If the past is anything to go by Cahoot wont help me. I asked them before when a car dealer refused to return my deposit on a cancelled vehicle purchase.

Eventually, after a while I got it back but with no help from Cahoot!

 

In either case do I need to wait until the 30 days expires or can I report him now?

[dx100uk]

either or both sec 75 or chargeback.

 

 

no waiting do it now.

 

dx

[drop47]

Just a suggestion. Surely part of cancelling the contract is returning the goods. If you are worried about claims you damaged it take pictures. I would return it and if there is any problems sue .

[Redletter]

either or both sec 75 or chargeback.

 

no waiting do it now.

 

dx

 

Thanks dx sorry if I'm being thick here but would I need to write a letter to Cahoot requesting either/or or should I try each approach separately?

 

Include emails from supplier?

 

Just a suggestion. Surely part of cancelling the contract is returning the goods. If you are worried about claims you damaged it take pictures. I would return it and if there is any problems sue .

 

According to that weblink above for out-law.com, (cant remeber how its worded but to the effect of;) if the consumer keeps the goods as security against the refund there is no obligation to return said 'security' until the supplier has released the funds against the goods..

 

Great minds think alike_ I unpacked it again and took several photos with copy of front page of newspaper in the frame!

 

Maybe I should send a ransome note! (Joking!)

[Redletter]

I have just read a thread on this website to do with Complaints regarding Section 75 claims from the FOS and it stated the following;

"There is no automatic entitlement to a refund under Section 75 where, for example, the customer has simply changed their mind."

So can I use this route in my case or not??

 

Thanks

[drop47]

Isn't that SOGA surely you need the DSR

[Redletter]

Isn't that SOGA surely you need the DSR

 

My point is can I use Section 75 for breach of DSR's or would I need to take the alternative path of SOGA with regard to missing hanging kit/not as described??

[Conniff]

Let recap, you bought some goods and they were received ok.

 

Within 7 working days starting the day after you received these goods, you wrote to the seller cancelling under the Distance Selling regulations?

 

The seller is refusing to do a refund and you are refusing to send back the goods ??

[Redletter]

Let recap, you bought some goods and they were received ok.

 

Within 7 working days starting the day after you received these goods, you wrote to the seller cancelling under the Distance Selling regulations?

 

The seller is refusing to do a refund and you are refusing to send back the goods ??

 

 

 

 

Let me explain:

Initially the supplier was very nice and very helpful.

They phoned to thank me for my order and then asked if I needed any brackets

(these are an alternative method of mounting to the supposedly 'included' hanging kit and are priced separately at £69).

 

 

As I had not yet decided upon the final spec of my aquarium (not ordered yet from different supplier),

I said that I wasn't sure how I was mounting it yet and I would leave the ordering of the brackets

until I knew how thick the glass was to be on my aquarium (as this needed to be specified for the brackets).

At this point I figured I might end up using the 'included' hanging kit anyway.

 

So, the light arrives, I unpacked it.

The first thing I noticed was no hanging kit, no instructions, no other information.

I tried it out on the living room floor (I have no aquarium yet) and yes I was pretty impressed with it.

 

 

However, I am very disappointed that there is no hanging kit and so I emailed the supplier

and told him the light was pretty awesome but that I was disappointed that there was no hanging kit.

He replied that the hanging kit was 'no longer included with the light since the manufacturer had reduced the prices across the range',

he claimed by £499! (Expensive hanging kit then!)

He said I could take it up with the manufacturer if I wished.

 

 

At this point I got the impression that maybe he wasn't as helpful as I first thought.

 

So bearing in mind this light cost £1674.99, and the bespoke (marine) aquarium quotes were coming in at around £1300,

and the associated equipment was going to add up to around £1000,

I was not happy that I would now be forced to pay for whichever mounting kit I decided to use.

 

Then, the day after I return home from work to be given the news that I am an expectant father!

Suddenly the aquarium project is no longer the priority and we have to consider the costs of baby equipment etc

as well as the increasing potential costs of the aquarium project!

 

So after discussions with my better half we decided to exercise our right to a refund on the light.

We discussed how nice this guy had been up to that point and we felt bad so I went out of my way to explain our situation

and hoped that he would understand.

 

 

I explained that the aquarium project would not be happening that I was sorry for any inconvenience,

but I was still within my 7 day cancellation period and I had no choice as I could not return the baby!

 

 

This is what I sent him:

 

(Dear Supplier)

I am absolutely gutted about this aspect, but I am going to have to send the light back and cancel the contract!

I have mixed feelings and should be overjoyed at the news but the timing is appalling!

 

Due to a significant change in our circumstances, I just cannot see a way to continue with the rising cost of this project at the present time.

It has suddenly become very low on our list of priorities. I am going to be relying on the refund for this to pay my credit card now...... and buy a pram!!!!

 

I was delighted with both your service and the product and I regret having to do this when you have been so helpful

and have even included complimentary items! (This is reference to a "V-Link" dongle USB type device he had said he would include FOC)

I will arrange to send this back to you first thing tomorrow morning.

 

 

It is still packaged in the original packaging.

It's a blessing in disguise that I am still within my 7 days from delivery cooling off period.

God knows how I would have managed otherwise!

 

I would like to take this opportunity to thank you for your outstanding customer service so far

, and would hope that I will be welcomed back as a customer at some time in the future.

 

I am very sorry. You have been great, but I have to make a choice, aquarium or baby..

..and I cant send the other one back!!!

Sincere apologies,

 

His response was as follows:

(Dear Redletter)

"Bit of a surprise to say the least

but regarding returning the unit

we cannot accept the unit for return for refund due to the fact the unit has not remained new and unopened

due to the fact you have stated in previous emails that you have used and installed the light rendering used and unable for us to resell the unit as new.

 

 

We can on receiving the light if you still wish to return it assess its condition

and possibly discuss the refund but we are unfortunately not obliged to give you a refund under trading laws

and our TAC once the item has been used and opened which it clearly has from your own words.

 

We will do our best to help you in with this situation but it will be at our discretion."

 

So I responded with this:

 

"Not as surprised as I am-trust me!

I am also surprised at your lack of knowledge with regard to the Distance Selling Regulations.

I have checked the law on this one and your TAC cannot be outside of the law as to compromise my statutory rights.

I have a right to inspect and try out the goods.

My rights do not depend on them being unopened or unused as you state.

I have not even got a fish tank so I do not accept the light unit was installed in any shape or form.

 

If you are in any doubt of your legal obligations, please see the following OFT guidelines taken from their website;

 

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf"

 

 

Where the DSRs give consumers the right to cancel an order, this right is unconditional and begins from the moment the contract is concluded.

Unlike when buying from a shop, the first time that a consumer will typically have an opportunity to examine goods

purchased by distance means is when they receive them.

 

 

The DSRs give consumers who buy by distance means more rights than consumers who shop in person.

 

 

When a distance consumer cancels a contract to which the cancellation provisions apply

they are entitled to a refund of any money they have paid in relation to the contract even if the goods are not defective in any way.

Please also see paragraph 3.46 for further information

 

We are conscious of concerns about reselling items which may raise concerns about hygiene.

However, the DSRs do not link cancellation rights with a supplier’s ability to resell items as new.

 

 

3.43 With items that fall outside the exceptions, cancellation rights will apply,

but the consumer has a duty under the DSRs to take reasonable care of the goods throughout the cancellation period.

 

 

3.44 What constitutes reasonable care depends on a number of things.

It may be reasonable for the supplier to stipulate what they consider to be reasonable care

, such as not removing hygiene seals on garments or only trying out shoes indoors.

But these stipulations cannot restrict a consumer’s reasonable opportunity to inspect

and assess the product.

 

 

Consumers have the right to cancel even if they fail to take reasonable care of the goods..

 

The DSRs require you to refund any money paid by or on behalf of the consumer in relation to the contract to the person who made the payment.

This means the full price of the goods, or deposit or prepayment made, including the cost of delivery.

 

 

The essence of distance selling is that consumers buy from home and receive goods at home.

 

 

In these circumstances, almost every case of home shopping will involve delivery of the goods ordered

and so delivery forms an essential part of the contract.

 

Re the V-Link...

 

But you must make sure consumers have agreed to receive the gift by placing an order.

Otherwise the consumers can treat the gift as unsolicited and can keep it as though it were an unconditional gift.

 

 

I am disappointed that you have chosen to take this approach as I am only exercising my right to cancel.

 

I have no obligation to return the goods before a refund is given, but I have expressed a wish to do so.

 

Please be aware that the right to a refund is not in any way linked to the condition of the goods upon return....

 

 

"On cancellation, if your customer can prove they returned an item in an appropriate way,

they will not have to bear the cost of any loss or damage to the goods in transit."

 

As you have acknowledged receipt of my notice of cancellation....

A customer must tell you in writing, or in another durable medium, if they want to cancel.

 

 

The customer can give notice by;

faxing or emailing the notice to you on the last fax number or email address known to the customer,

in which case notice is said to have been given on the day it was sent.

 

Therefore notice has now been served and I await your instructions regarding return of the goods.

 

Please be aware you are legally required to make a full refund within 30 days of the notice I have served today 27th September 2012 which you have acknowledged.

 

I trust this is satisfactory,

 

Regards,

(Redletter)

 

I then followed it up with this and also by post by recorded delivery.

(Dear Supplier)

"With regard to the below order received on Tuesday 25th September 2012.

 

 

Please take this as confirmation that;

 

Under the above regulations,

I would like to cancel this order and ask you to confirm that you will not be claiming any payment

and that a refund will be made to the credit card on which I made payment.

 

 

This is in line with regulation 14 section 1 which states that

"on the cancellation of a contract under section 10, the supplier shall reimburse any sum paid by

or on behalf of the consumer under or in relation to the contract to the person by whom it was made free of any charge".

 

Please contact me within 14 days to arrange return of the goods.

 

I understand that as per the above regulations (regulation 10 sections 1 & 2)

you are not able to make any restocking charge(s)

as I am cancelling the contract within 7 days of delivery

as per my statutory cooling off period.

 

 

As such the regulations state that "the effect of a notice of cancellation is that the contract shall be treated as if it had never been made”.

 

Please accept my apologies for any inconvenience caused.

 

Kind Regards,

(Redletter)"

 

Hope you are keeping up!

His response then was:

 

you have stated in a number of emails that you have clearly opened and used the goods to which I have on email s

o that would clearly under mind your statement of not used and unopened

 

you have purchased goods under MY terms and conditions they are not your statuary rights

 

you have entered a contract with us on your purchase and those are our terms

 

regardless of your statuary rights you have entered a legally bidding contract with us once you agree to purchase from our store.

 

As I have stated once I receive the light I will asses situation and no longer wish continue this conversation at this hour!!

 

How ever I will call you first thing in the morning to discus the returning of the light.

 

So I sent this...

 

Had you read my last email fully you would see that the Distance Selling REGULATIONS do not require returned goods to be in a resaleable condition.

However, as I have stated, the goods ARE in brand new originally packaged condition and there should not be a problem.

The whole point of the DSR's is to give the customer reasonable time to inspect and try out the goods, which means that your requirement to return the goods unopened is an unfair term.

However, again, as I previously stated YOU ARE REQUIRED BY LAW to provide aFULL REFUND AS SOON AS POSSIBLE AND IN ANY CASE WITHIN 30 DAYS OF RECEIVING MY NOTICE OF CANCELLATION!

 

See also Consumer Protection from Unfair Trading Regulations 2008.

 

The CPRs can apply to the use of unfair

contract terms. They are intended to provide

broad protection for consumers, and business

practices which are likely to distort consumers'

decisions regarding their purchases generally

fall within their scope. Certain kinds of unfair

term can have that distorting effect, for

instance through misleading consumers about

their rights. The use of such terms could give

rise to enforcement action under the CPRs as

well as, or instead of, the Regulations.

 

Your previous emails could also be deemed to be an attempt at misleading the consumer with regard to my rights and I also reserve the right to keep copies of our correspondence for the purpose of evidence.

"If a term is unfair, it is not legally binding on

the consumer."

 

I will await a full refund to my account. If this does not take place within 30 days of today 27th September 2012 I will take the necessary steps to force you to carry out your legal obligation AND report you to the OFT for unfair Terms.

 

I do not need to argue further as the LAW is clear in this matter. Please abide by it.

 

Thank you.

 

 

Then got this....

 

no light no refund simple and can peruse that if you wish you have received goods and you have agreed that in email if you now wish to return then do so as long as they are in original packing and in satisfactory condition a refund will be made or if you wish not return them I can collect them form either address I have on file that you choose??!!

 

Kind Regards

 

and sent this...

 

Please find attached OFT guide which clearly explains your obligations in

law.

 

Please see relevant paragraphs 3.46, 3.47, 3.48.

 

Please pay particular attention to paragraph 3.51

 

Please also note that I could, if I wanted to consider the complimentary

V-Link as a gift as per paragraph 3.58.

 

Please also consider that according to paragraph 3.74 you could potentially

be committing a CRIMINAL offence by requesting any payment for said gift.

 

This should clarify the position with regard to your statement "no light no

refund". As you can see it is not that simple and I will return the light

once the refund has been received as cleared funds into my credit card

account from which it was paid. This must take place within 30 days of my

notification of 27 September 2012 which you have acknowledged.

 

I trust this leaves you in no doubt of my position in this matter.

 

Kind Regards,

 

Then HE threatens ME with a solicitor!...

 

You have been given that light by means of sale in good faith by myself now

you are attempting to steel the light in my eyes and this will not be stood

for in anyway shape form!!! you can return the light and I can then refund

you will not be getting any refund until I receive the light simple!!! If

you do not wish to send the light back and you can then go about whatever

means you wish to try to get a refund I will now today inform my solicitor

about this attempt to steel the light and place it in their hands. So simple

return the light or I will collect it!! If you choose to keep hold of it and

request a refund also.

 

Sent this....

 

Don't be so ridiculous!

I have furnished you with a copy of the OFT guide which outlines the law.

You really need to read it carefully.

Firstly upon accepting my order you are required to send me specific

pre-contractual information, in 'durable form'. This means something I can

keep rather than referring me to T&C's on your website which you are able to

modify at any time after I have entered into a contract. You are required to

supply certain information on acceptance of my order IN WRITING outlining

your returns policy, postal address etc including details of who should pay

return postage in the event of a return. As you failed to provide this the

assumption can be made that you will be liable for the return postage or

collection.

As I indicated previously, contrary to your statement of "no light no

refund" you are in breach of the regulations to withold my money after 30

days from the date you received the notification.

So here you are in breach of the law accusing ME of being a common criminal

and accusing me of attempted theft! I would be very careful if i were in

your position as I too can instruct a solicitor for libel and slander!

Please feel free to consult your solicitor, as he too will advise you of

what your obligations are in law and that will only serve to incurr further

costs to you.

 

Had you been aware of these obligations in the first place you would know

that you are in breach of the regulations by refusing to refund and claiming

you have the right to inspect the goods and only refund at your discretion.

Had you been the reasonable, honest person I thought you were when you were

really helpful whilst taking money from me then we wouldn't be in this

situation now.

The law is the law and i totally refute your accusation of attempted theft.

As I'm sure your solicitor will advise you, I am well within my rights and

to expect a refund and then to arrange the return of the goods at your cost.

I am under no obligation to return the goods before a refund is given, only

to take reasonable care of the goods whilst in my possession.

Quite simply if you do not make the refund as soon as possible and as the

law states 'in any case within 30 days" then you are the thief not me as you

will be withholding my money to which you have no legal right.

The regulations state that my right to a refund is unconditional. I would

have trusted you completely and returned the light in good faith had you not

tried to mislead me and compromise my consumer rights. I have only stated

facts based on law and I have supported those facts by providing you with

the facts in the form of the OFT guide which clearly outlines both our

obligations in law.

For you to continue with your position to refuse my FULL refund in view of

having the facts there in front of you is both arrogant and foolish.

As I said please feel free to consult a solicitor, as unlike you, I have not

broken any laws!

 

Please also do not attempt to contact me by telephone, as for the purpose of

keeping accurate records, I will only correspond in writing either by email

or by post.

 

I will in fact I will no longer be drawn into squabbling on points of law.

The law is clear and you have the remainder of 30 days in which to make a

full refund, after which time you have my assurance that the goods will be

returned.

 

and this......

Dear Supplier,

 

I hope this clarifies the law for you.

 

http://www.oft.gov.uk/shared_oft/distance-selling-downloads/Explained/DSexplained_PDF.pdf

Please pay particular attention to pages 24,30,31,34

 

Regards,

 

Redletter

 

Dear Supplier,

You say in your opinion I am dishonest. Can you tell me how you arrive at this conclusion?

I am not the one trying to mislead my customers with lies and unlawful terms which clearly restrict the customers' rights despite your claim that they will not!

I have done nothing but provide the facts and your blatant disregard for legislation does not exempt you from being bound by its requirements in law.

Please read the following and then consider your position.

The fact is you are required by law to obey the legislation regardless of whether or not you agree with it.

Please explain to me why you think the law does not apply to you?

Are you refusing to comply with consumer law?

 

I would once again ask that you grant me a full refund, at which time I fully intend to return the goods as promised. I give you my assurance that the goods have only been inspected and tested and not damaged in any way. They were simply tested and then placed back in the original packaging, which is not a requirement or condition of a refund in any case!

In actual fact you cannot claim that the box was complete and sealed, as the instructions were missing (confirmed by Vertex that there should have been some in the box), and you have obviously opened the box in order to place the V-Link inside it which you indicated you were including as a gift. Therefore the box had already been opened anyway! However, this is irrelavent as per pages 26 and 27 which clearly outline that I have the right to open and test the goods!

 

For the avoidance of doubt I have attached the source of the following information, and I will keep a record of all correspondence so that if and when this matter is escalated, the court will be able to see that I have complied fully with MY obligations as defined in the afore mentioned Regulations.

 

 

 

PAGE32:

The Consumer Protection (Distance Selling)

Regulations 2000 (DSRs)

The DSRs implement European Council Directive (97/7/EC)

and, for most goods and services, provide additional rights to

consumers buying at a distance to encourage confidence in this

method of buying.

The protection the DSRs offer is important because customers

cannot inspect goods or services before they buy when they shop

at a distance.

The DSRs also contain provisions aimed at ensuring that businesses

do not use contractual terms that deny consumers their rights under

the DSRs, or impose obligations on consumers that are inconsistent

with them.

All member states of the European Union (EU) must implement the

Directive in their national legislation. The DSRs came into force on

31 October 2000 and were amended by SI 689/2005 effective from

6 April 2005.

 

PAGE26:

DSRs do not link cancellation rights with your ability to resell items

as new. Unless the item falls under the cancellation exemption,

customers can cancel a contract and return the goods to you even

if they have opened and tested the goods and, as a result, you are

unable to resell them.

PAGE27:

Packaging

The purpose of the DSRs is to allow customers to examine goods

they have ordered as they would in a shop. If that requires opening

the packaging and trying out the goods, then they have not breached

their duty to take reasonable care of the goods.

In these circumstances, you cannot insist that customers return the

goods as new or in their original packaging. You may ask customers

to take care when they open the package or return goods with the

original packaging, but you cannot insist on this.

The DSRs do not provide for goods to be returned in a fit state

for resale.

 

 

PAGE28:

Refunding a cancelled order

You should refund a customer’s money as soon as possible after

they cancel an order, and in any case, within 30 days at the latest.

The right to a refund is not connected either to the return of the

product nor the customer’s duty to exercise reasonable care of

the goods.

You must refund the customer’s money even if you have not yet

collected the goods or had them returned to you by the customer.

You cannot insist on receiving the goods before you make a refund.

PAGE29:

Who pays for returning the goods if the customer cancels

an order?

If you want the customer to return the goods and to pay for that

return, you must make it clear in the contract and as part of the

required written information. If you did not include these details in

the required written information then you cannot charge anything.

 

I must again express my disappointment at your change in attitude and your unproffessional conduct in this matter. It seems you were happy to be nice and polite to me when you were taking my order and my money. But now that I have requested to cancel my contract with you, and obtain a refund, which I am perfectly within my rights to do so you have completely changed and become arrogant and rude towards me, even accusing me of stealing!

Its a real shame as this project is only postponed not written off and when it does finally get off the ground I will take my custom elsewhere. Had you just honoured my right to cancel my contract and not insisted that you somehow have the right to adapt the regulations to your advantage, I would probably have re-ordered with you at some later date and as I said before would have most probably made you my preferred supplier. You simply do not have the right to insist on return of the items or to give a refund 'at your discretion'! It is your legal obligation to do so.

 

I trust this clarifies the situation and I await my refund in full.

 

Kind Regards,

Redletter

 

Dear Redletter,

You have been offered a refund many times upon me receiving the goods never

have I said you would not I have already given you goods in good faith once

and you will honour your purchase agreement I will not do that again as you

are quite clearly not a honest person (in my opinion). As I pointed out that

a refund WILL BE GIVEN once I can confirm that you have in no way damaged

the goods that you have received AND USED!!!. So you may go through all the

legislation you wish but that is the fact.

Regards, Supplier.

 

In response to me (kindly) forwarding copies of DTI and OFT guides....

 

Dear Redletter,

I have made you aware of my position many times you also need to check your information carefully as they and I quote are no means law they are meant as a guide only for the facts of law please consult a legal advisor un quote. Those GUIDES also point out that they do not apply to computer software were the seal has been broken by the consumer used and installed by definition the whole unit is computer software and you clearly broken the seal used and installed the software!!

As I pointed out I have forward the query to my OATA (as i am a member) to pass onto my FREE legal advisor so I suggest you EMPLOY your own legal adviser if you to Pursue your course of action. As you wish not to take calls to discuss the matter I will no longer explain myself time and time again.

 

Kind Regards

 

So now he claims a £1700 LED light unit is 'Software'!!!

 

Latest contact email after no acknowledgement of posted letter confirmed delivered 01/10/12...

 

Please be advised I have a meeting with a solicitor next week to clarify my legal obligations to the matter of returning the light as you have pointed on a number of occasions of your possible rights to returning the light these need to confirmed as soon as this is done I’ll be in touch regarding my next course of action. I will aim to do this as soon as possible and within the 30 days you have outlined.

 

 

Regards

Supplier.

 

Response from Consumer Direct now aka Citizens Advice complaint..

 

Dear Redletter,

Thank you for your enquiry to the Citizens Advice consumer service dated 09/10/2012. Your reference number for this case is **************and should be quoted in all further correspondence regarding this case.

 

We understand from your email that a trader has refused to refund under the Distance Selling Regulations and you are trying to establish what your rights may be.

 

Based on the information you have provided the key legal points in response to your enquiry are:

 

When you enter into a contract with a trader by means of a distance communication (telephone, internet, mail order etc.) you will generally have cancellation rights under the Distance Selling Regulations. The period in which you can cancel starts when you place the order. When this period ends depends on when the trader provides written information (in print or by email) confirming details of the order and your cancellation rights:

 

• If the trader sends the written information before they send the goods or enclosed with the goods – the cancellation period ends 7 working days after the goods are received;

• If the trader sends the written information after the goods - the cancellation period ends 7 working days after the written information is received;

• If the trader does not send the written information – the cancellation period ends 3 months and 7 working days from the day after the goods are received to cancel.

 

If you cancel you may ask for a full refund (including any delivery charges). The trader must provide this refund within 30 days.

 

The law allows a trader up to 30 days to deliver goods that are ordered at a distance, unless specific arrangements have been made for delivery within a certain time frame. If goods are not delivered within 30 days the consumer may consider the contract automatically cancelled.

 

The trader may ask you to return the goods and / or pay the return costs but can only do so if it was made clear in the written information. If the written information does not specify that you are responsible for returning the goods, you may expect the trader to collect the goods; if it does not specify you are responsible for the cost of return then the trader must bear this cost. Until the goods are returned to (or collected by) the trader, you have a ‘duty of care’ over the goods so it is important not to use the goods or do anything else which may damage them as this may mean the trader is not obliged to provide a full refund.

 

To cancel you must inform the trader either by letter, email or fax and it must be sent before the end of the cancellation period. We would advise to include details (e.g. any order reference number) to help the trader match your cancellation request to their records; it is also advisable to keep a copy of your cancellation request and if posting, to get ‘proof of postage’ so you can prove that you sent the cancellation request before the end of the cancellation period.

 

You do not necessarily have to return the goods to the trader within 7 days; sometimes this can be difficult to do in this period. You do have a duty of care over the goods, and if you have used them the trader may be able to claim damages from you if there are any losses to the trader as a result of this. However, this would be an entirely separate issue to your rights under the Distance Selling Regulations.

 

The trader cannot overrule statutory law with his terms and conditions, and to attempt to do so may be deemed to be a criminal offence.

 

You would not have any rights under the Distance Selling Regulations if this were a trade to trade purchase.

 

At this stage you should formalise your complaint by sending the trader a letter in the post by recorded delivery. The letter should outline any relevant events regarding this issue and make it clear what you expect from the trader and why. It should also give the trader a reasonable timeframe in which to respond to your claim(s), we would suggest 14 days. If the trader does not respond to this letter with a satisfactory remedy you should send the trader one more recorded delivery letter. This time giving the trader 7 days in which to respond, making it clear to the trader that this is your final letter before taking further action. You should keep copies of all letters sent.

 

Template letters can be found at: Http://www.adviceguide.org.uk/england/consumer_e/consumer_taking_action_e/consumer_making_a_complaint_e/consumer_sample_letters_e/list_of_sample_letters.htm (if the link does not work when you click it, please copy and paste it into your browser address bar). In this case, the letter named ‘Letter cancelling a distance sale to buy goods.’ would be most suitable.

 

When using the template letters it is important that you follow the online instructions carefully. In addition, once the letter has been generated it may also need further editing, in order to make it clear to the trader what the nature of your complaint is.

 

The reason we ask you to send mail by recorded delivery is that this may help you prove that you have contacted the trader and tried to resolve the matter amicably, you can also use the ‘Recorded Signed For’ label the post office will supply you with to confirm that the trader has received the letter. In our experience, this is the best way to proceed before you escalate your claim with the appropriate independent body i.e. Ombudsman scheme, Alternative Dispute Resolution scheme (A.D.R) or even a civil court.

 

If you require any further advice or information about this case, please do not hesitate to contact the Citizens Advice consumer service by return email or on 08454 04 05 06 quoting the case reference number.

 

Thank you for your enquiry.

[Conniff]

It might have been better just sticking to the points, there is a lot of waffle in your letters.

 

The regulations do not say you can hold onto the good until a refund has been received. It says the seller has up to 30 days to do the refund on cancellation.

He has also offered to come and collect the goods.

 

At this time he has the upper hand and you seem to be making it difficult to resolve.

 

I don't know what to say here, perhaps someone else has some idea.

[Redletter]

To be honest it all got a little silly once he started BS'ing me I guess I got defensive!

 

I was annoyed he was so 'nice' until I tried to exercise my 'right' to cancel and it annoyed me as I explained my reasons when I didn't have to and they are pretty good reasons IMO!

 

I am worried that:

1) He may well collect the items then 'deduct' for his time and travel from West Midlands area to West Yorkshire area.

2) He may claim the goods are damaged or even damage them himself to be blooming awkward!

3)He may just collect and then still say he is entitled to make deductions or not to refund 'because the package was opened'

 

I don't know whether it is worth making a fresh approach or if he will just think I'm on the back foot due to his mention of his solicitor appointment.

I am kind of hoping that his solicitor will explain his obligations under DSR's and he will agree to a full refund.

[Nagasis]

I stand by my post in page one in that you both have obligations. Neither of you should be waiting for the other.

The seller is obligated to refund within 30 days of written cancellation and you should return the item without unreasonable delay.

 

If it was me I would return the item by registered signed for post. Then you are in a much better position. If the seller does not refund in full simply sue him in the small claims court.

[Conniff]

Nagasis has said it all really, that is the way to go.

[Redletter]

I stand by my post in page one in that you both have obligations. Neither of you should be waiting for the other.

The seller is obligated to refund within 30 days of written cancellation and you should return the item without unreasonable delay.

 

If it was me I would return the item by registered signed for post. Then you are in a much better position. If the seller does not refund in full simply sue him in the small claims court.

 

Thanks Nagasis I think that is good advice.

 

Nagasis has said it all really, that is the way to go.

 

Thanks Conniff

[2Grumpy]

I would include a letter along the lines of :

 

goods returned for refund as discussed, amount to be refunded: £xxxx being the original amount plus return postage

 

Original notice requiring refund provided xxxx, within the DSR period of xx days, giving you until xxx to make a full refund.

 

I confirm that the item was opened for inspection but was not used (you are aware that I don't have an aquarium yet)

[Redletter]

I would include a letter along the lines of :

 

goods returned for refund as discussed, amount to be refunded: £xxxx being the original amount plus return postage

 

Original notice requiring refund provided xxxx, within the DSR period of xx days, giving you until xxx to make a full refund.

 

I confirm that the item was opened for inspection but was not used (you are aware that I don't have an aquarium yet)

 

That sounds like a plan! Thanks for the advice.