/ Home & Energy

Consumer Enforcement System: my letter to Greg Clark

Following the publication of Lord Tyrie’s recommendations regarding the future role of the Competition and Markets Authority, which he chairs, I wrote to Secretary of State Greg Clark, to express Which?’s full support for the proposals.

Dear Secretary of State,

Our consumer insight shows that people expect there to be a strong public enforcer in place to ensure that they are protected – whether from unfair trading practices, scams or companies abusing their dominant position in a market – these proposals would help to deliver a reality that matches these expectations.

Lord Tyrie’s assessment of the current challenges, particularly in terms of the issues raised by fast moving and complex markets and the limitations of “an analogue system of competition and consumer law in a digital age”, reflects accurately what we see through our work at Which?.

Indeed our recent report “Creating a successful enforcement system for UK consumers” also highlighted the current imbalance between local and national consumer enforcement – with far too much responsibility and prioritisation falling to under-resourced and predominantly reactive local authorities.

Fundamental reform

We stressed the need for fundamental reform, with stronger, national consumer-focused regulators to meet the challenges facing consumer markets.

We therefore fully welcome these proposals to ensure that the CMA is better equipped with stronger duties, powers and tools to be able to act swiftly to assure consumers that their interests are paramount and are being protected.

We also support the wider changes that these reforms would create, helping to create a stronger culture of compliance across businesses including the focus on responsibility at director and board level.

Alongside these reforms, we urge you to further expand the consumer enforcement remit of the CMA, enabling it to take a national lead in the enforcement of consumer rights, with strategic oversight of enforcement work undertaken at regional and local level and to make the most effective use of this new toolbox.

Addressing the imbalance

There is a real opportunity through these proposals and your Department’s ongoing work to deliver positive and tangible change to the benefit of people across the country.

Such reform would show a marked ambition from the Government on behalf of consumers and an opportunity to lead the way with this agenda both by addressing the imbalance that there currently is between businesses and the individual, whilst also building a system that is fit for the rapidly developing digital world.

It is vital that this opportunity is seized by your department as it furthers its work on modernising consumer markets and that meaningful reform is delivered in the near future through a legislative programme taking forward these changes.

Which? remains committed to working to deliver this and I would welcome the opportunity to discuss this further with you.

Yours sincerely,

Anabel Hoult, Which? Chief Executive.

Let me know your thoughts

How do you feel about Lord Tyrie’s recommendations for the future role of the Competition and Markets Authority?

Do you agree with us that an expansion of the CMA’s remit is required to enable it to enforce consumer rights?

Let me know what you think in the comments below.

Comments
Janet says:
15 March 2019

I agree with the previous comments a lot of us are indoctrinated to have insurance
To cover valuables and our houses
I had to claim on my house insurance first time ever with my bank, the fitting went on my washing machine
This causeda flood when I was in the shower myself at the time and I was made to feel like a criminal
When I rang to inform them and I was actually asked if I needed to make a claim what do
you pay insurance for, accidental damage springs to mind !!!!!

Kit Blyth says:
15 March 2019

I do not know any reputable insurance companies – they always fail to rightfully ‘pay up’

That’s not been my experience. Over the last fifty years I have had two burglary claims and one subsidence claim and they were all dealt with properly in accordance with the policy terms and conditions. Without insurance cover [none of which was compulsory] I would have sustained serious losses in each case. As it was I got full and proper restitution and no uplift in premium other than a reduction in the no claims bonus [which was within the terms and unavoidable].

I have known people who complained that they were not treated well by their insurer and when I looked into it I had to point out that they had not read the exclusions nor selected the appropriate cover.

I had a claim for slight subsidence caused by a cracked rainwater drain at my previous home. Like John, I had no problem with the claim being settled. Unfortunately the insurance company forgot about the claim, their loss adjuster failed to get someone to put a camera down the drain and their contractor flooded a bedroom and had to replace a carpet.

miss paula parker says:
19 June 2019

i have never had an insurance company that has refused me, broken glasses, accidental damage to my carpet, flooding to my hallway. Lloyds and Domestic and General have been good and i try to do my own independant surches and questions for them.

Robert Fox says:
15 March 2019

The proposals put forward by Andrew Tyrie, to strengthen the powers of the CMA, should be enabled without delay.

Phil says:
17 March 2019

I’m all in favour of the proposals in respect to protecting consumer rights

Wendy Harbon says:
15 March 2019

Namaste everyone,
We totally support stronger enforcement powere, with regard all Regulated Industries being stopped from abusing and mistreating or discriminating against individuals or group of consumers and customers.
The only concern we have, you cannot trust the existing and present public appointed Regulators and so called Public Watchdogs, as they are as much to blame and responsible for the abuse, mistreatment and discrimination far too many consumers and customers are subjected too.
If you give these existing and present day Regulators and Watchdogs, new enforcement power, would they even use them, when they are not using the powers they already have, to protect consumers and customers rights and letting us all down.
With new enforcement powers we also need the likes of UK Regulators Network, and all its members the likes of, OFGEM, OFWAT, FCA, OFROM etc, replaced by a single powerful Single Consumer and Customer Protection Agency, with real powers and a real willingness to use these powers for the public good too!.
The tax payer money over the years, which has been given to these Public Regulators and so called Watchdogs, was a wast of public money, for all the good they done or have not done!
Namaste Gurkhamum Wendy and Gurkhadad David.

John Portwood says:
16 March 2019

I am changing my car soon, and buying a new one from Blade at Twigworth, Glossop. , a decision I now bitterly regret. Apart from the fact that it is very difficult to get an actual date when the new vehicle, a Skoda Karoq, will be ready, the price I have been offered for my present car, a Skoda Yeti, is insulting, particularly as it is low mileage and in pristine condition. They also promised to beat the offer from webuyany car.com but are in arrears of this assessment by £800, and are refusing to budge from this valuation. I think this is bordering on fraud, and is an example of why unscrupulous companies such as this one need to get their comeuppance.

Anthony GREENWAY says:
16 March 2019

Agreed!!!!
Consumers suffer all the time from poor business practices – including government prevarication – and there need to be rapid processes to address them which do not get bogged down in administrative gobbledegook.

Yes I strongly agree that the CMA should be given stronger enforcement powers to strengthen and enable them to deal with breeches in consumer rights and consumer law.
Currently the private care home sector”the ultimate land lord” think they are a law unto themselves and can evict elderly vulnerable residents whose family raise concerns in line with safeguarding and reprisal exclude ban or restrict relatives who dare to speak out against poor standards of care or raise safety concerns on behalf of their relatives.
And the CQC and agencies are condoning these practices by failing to take enforcement action to override this culture, and so are allowing to go unchallenged and so perpetuating it for future families to also have to experience. This reprisal culture of defensiveness and eviction exclusion banning and restrictions against relatives who raise concerns about care standards and safety at private care homes MUST CEASE! and the CMA.- can and will address this where i many other agencies are failing to do so And yes i am one such statistic a relative who remained excluded for 2.5 years from in home visitation to my dad for reasons stated above. Robbed !! of precious time with my deteriorating dying father who was in the advanced stages of dementia and leukemia and was palliative. I will never get back the precious time lost with my beautiful dad and only I know the distress and pain this has caused for me and my daughter.

Nati Cana says:
16 March 2019

The new rules should include a new CRIMINAL OFFENSE levied AGAINST ANYONE INSIDE THE AGENCY for not using the powers !
Otherwise the teeth given, will not be used.
The usual Good Practice certifications should be proven by the Agency with in a year, latest.

Martin Dines says:
16 March 2019

I recently purchased two Sofas from Woods furniture in Dorchester. After paying a deposit and according to their own terms and conditions possessing a “non-cancelable contract”, I was informed two days later after they had taken the deposit from my bank account, that they had made a mistake with their advertised price and would not honour their contract, expecting me to pay £400 more. I am convinced this was just a scam to get get people through their front door and then con them out of more money. My complaint was was met with more ducking and diving than I have seen at a rugby match.

Like other commentators on this subject, our so called “Regulators” need to excercise the powers they already have, before I am convinced anything will change. No wonder consumer confidence is at an all time low!

You should look into your consumer rights over this. Here are our pages on consumer rights around unfair contracts.

https://www.which.co.uk/consumer-rights/l/contracts

That consumer rights advice does not appear to be pertinent to Martin’s enquiry. There is no suggestion that the contract with the furniture shop was unfair, it’s that they want to withdraw from it because they say the price was an error. It might be a bit late to do so, after taking the deposit, but I was under the impression that a supplier was able to cancel a contract in the case of a genuine mistake. I suspect the terms & conditions referring to a “non-cancellable contract” applied only to the purchaser and not to the retailer. Scrutiny of the complete T&C’s might clarify that, but in the absence of clarity the customer should not be disadvantaged.

The questions that arise are (1) whether acceptance of a deposit by the seller closed the purchase, constituted a contract [i.e. it no longer being an ‘offer to treat’] and meant that failure to fulfil was a breach of contract, and (2) whether the price shown – and presumably stated clearly in the purchase documentation – was a genuine error enabling the seller to “not honour their contract”. To my mind, unless there is a specific exemption in the contract T&C’s for pricing errors, that phrase “not honour their contract” used by the seller suggests that they recognise that there is a contract between themselves and Martin and that they intend to breach it. Such a purported exemption might be an unfair contract term itself.

A similar situation could arise if the seller subsequently found out that all stock was sold out and that the manufacturer could no longer supply the goods ordered. Before taking a deposit I feel that retailers must satisfy themselves that they are in a position to fulfil the order – or face the consequences.

My view is that Martin should be able to claim for breach of contract and either demand delivery of the furniture at the price stated, as set out in his contract and deducted from his bank account, or accept cancellation of the contract and claim a full refund plus compensation [damages] for the inconvenience and delay in obtaining the furniture he likes. A good retailer would settle on the former basis and write it down to experience.

I believe people who write in to Which? Conversation with queries such as this are entitled to expect a competent, albeit general, answer from Which? There can be no expectation that Which? would deal with it as a case and the option remains for a purchaser to seek professional legal advice, or use Which? Legal, or refer it to Trading Standards via Citizens Advice.

This may be of relevance – Govt guidance on contract terms:
For example, your terms are more likely to be fair if:
– they explain any right for you to cancel, so cancellation will not come out of the blue
where you cancel and your customer is not at fault, they give your customer a refund of any advance payments they have made
– where using your right to cancel could cause the customer significant problems, it applies only where circumstances genuinely beyond your control make it impossible to carry out the contract as agreed
– you agree to give reasonable notice before cancelling, except where there are ‘serious grounds’ for immediate cancellation which are clearly set out…

https://www.gov.uk/guidance/unfair-terms-explained-for-businesses-full-guide

Some of us look at these questions and beaver away, inexpertly, trying to uncover relevant information.

However, Which?, whom Members fund, have a legal team who should know much of this stuff off pat, or know exactly where to find the answer. Why cannot they put a small amount of effort into helping us by providing the real answer to these sorts of questions. “I pay a deposit and the trader decides they cannot then supply the goods”. Is it fair. Do I have any redress other than the return of my deposit? Can that be covered by their terms and conditions? Surely this can be explained here in general terms?

Indeed. A question I asked some weeks ago and on which some action was promised remains unanswered. These are purely general questions: not specific issues and therefore fall directly within Which?’s remit to educate.

Ljohnson says:
18 March 2019

Consumer rights are pointless against these corporations. Consumers need to take out a private litigation against them to get their rights upheld. And which individuals have the time or money to do this? None is the answer and the corporations with their permanent teams of in-house lawyers know this and use it to their full advantage. Individuals might stand a chance if they commit a criminal offence against corporation and qualify for legal aid otherwise who’s would risk £££ fighting in court? Particularly when barristers I consulted Stated that they had no faith in the uk judicial system anymore it is a complete gamble. Even if a consumer did win the corporation would just appeal. Corporations need to be regulated by large substantial fines. It’s the only way to get them to do the right thing.

Woods Furniture of Dorchester [with whom Martin Dines has a contract to supply two sofas] is hardly a big corporation. I have looked at their website. It has two stores, both in Dorchester. It is a family firm that was founded in 1875 and appears to have a good reputation for customer satisfaction. It seems to major in higher-quality and higher-priced furniture than the well-known sheds on the ring-road. Their sofas cost two or three times more than those sold by the national outlets and they look as though they are worth it. The firm has a reputation at stake and I would suggest that a favourable outcome is possible if the problem is dealt with diplomatically.

My advice to Martin would be to approach the company politely, if possible at director level, and discuss the point about the pricing error in a reasonable manner, with no suggestion that the company is trying to pull a fast one by entering into a contract and then holding the customer to ransom [as Martin perceives]. Try to negotiate a satisfactory outcome, always with the possibility that further action could be taken if the company does not reinstate the order and fulfill it with the least expense and inconvenience to yourself.

The government advice to business that Malcolm has quoted from above could well be a useful resource in resolving the problem, but I would keep it up my sleeve until later in the hope that an acceptable response was forthcoming from a sensible discussion. If the company was intransigent then reference to that guidance could prove conclusive. Don’t forget that there is value to you in a quick resolution – the longer the uncertainty is prolonged the more difficult will it be for you to buy the furniture you want elsewhere at a price that you can accept. However, if you can find the same sofas at a better price elsewhere that is another bargaining chip in your favour with Woods.

Part of Woods Ts&Cs read:
5. Cancellation & Returns
5.1 We reserve the right not to accept any order request if:

– We have insufficient stock to deliver the goods you have ordered;
– We do not deliver to your area;
– One or more of the goods ordered was incorrectly described or priced on the website;
– The payment transaction is not authorised.
5.2 If we do cancel your contract we will notify you by email and will refund to you any sum paid by you to us in respect of the contract as soon as possible and in any event within 14 days of the cancellation of your order. We will not be obliged to offer any additional compensation for disappointment suffered.

So the terms are quite explicit. The remaining question is whether these terms are “fair”. @gmartin Over the Which? – perhaps you can expedite George?

The terms refer to the company’s right “not to accept any order”. Martin’s order was accepted, but cancelled after acceptance and payment of the deposit. We do not know whether or not the order was placed via the website. I remain of the view that the company needs to take more care over the use of the word “contract” and its application in the course of business.

Only if this goes to court shall we know whether the company’s contract terms are fair.

It would be useful if Martin gave us this information. I assume he is watching this Convo having asked the question.

Woods Ts and Cs do seem to cover many eventualities for online orders. Again, are these fair or unfair contract terms is a question I would hope Which? could answer.
3. Prices & Payment
3.1 All prices listed on the Website are correct at the time of publication however we reserve the right to alter these in the future. Prices are inclusive of VAT but exclusive of delivery charges which will be added to your order.

3.2 We reserve the right to cancel the order if there has been a genuine mistake with the advertised price.

Companies often copy or mimic the terms and conditions used by other firms in their contract documentation. They don’t necessarily check them to see if they are legally valid and rely on them not being challenged. Whether that has happened here I could not say but I think the drafting could be better.

The definition of a “genuine mistake” would be interesting to see. This one managed to get all the way through to the completion of an order and the taking of a deposit. I generally find that I pay for my mistakes but some companies seem to think they don’t have to [except through the loss of an order]. Most good firms would try to hang onto an order and as much profit as they could salvage from the situation.

Revd Patriicia Vowles says:
16 March 2019

i hope that stronger laws will give us consumers more protection, but it must happen, not just pass a law then find it has no ‘bite’ when faced with lawyers more concern about business owners, and not the individules who undergird their financial system.

Brian Pepper says:
17 March 2019

I think that all members of the consumer public should have as much protection as is possible from unscrupulous company’s and organisations. With Brexit on the horizon, it seems to me fairly certain, that a Consevative government would soon start to demolish any protective rulings passed by the E.U., in favour of their wealthy friends.

Gregg Clark? Doesn’t he play Agent Coulson in “Agents of SHIELD”? Having seen the tv show they do not fill me with confidence!

Alan Turner says:
18 March 2019

The sooner dodgy businesses are prevented from operating and taking more money from people the better. Early intervention must be a priority and the only people that can make this happen is the goverment.

Ljohnson says:
18 March 2019

Having been ripped of By several companies and consequently losing £100k and the only way to try and recoup it is to take out a private litigation and risk losing many more £100k’s. I believe the only way to protect consumers from greedy corporations is to regulate against their huge profit margins in the form of substantial fines. If I committed a criminal offence against these companies I would get legal aid to fight my case. How ridiculous is that?!

Susheela Robinson says:
19 March 2019

I agree that the CMA should be given stronger powers to protect and enforce consumer rights.

Muriel Joyce says:
19 March 2019

I’m in favour of anyone being given stronger powers if it stops the paying public from
being ripped off.

I believe the CMA should have stronger powers and its remit be extended to protect individuals. I’m finding more and more that companies are being allowed to get away with very poor service and there seems to be very little that consumers can do about it. In fact, listening to some individual’s stories, there seems to be a fatalistic expectation and acceptance of ‘well, what can you do’. This is appalling. I personally had a really negative experience with a big energy company, when I read the reviews, there were over 200, apart from a few, they were all very dissatisfied customers and despite complaints very little was being done to hold the company to account.