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We need a Consumer Enforcement System we can rely on

The consumer rights framework is the backbone of everything we do. Since 1957, we’ve existed to make consumers more powerful. For us to succeed, we need a consumer rights system that works.

We want a system that makes sure that consumers are protected from harm – whether that’s scams or food safety risks. And if things go wrong for consumers, companies need to take responsibility and be held to account, rather than passing customers from pillar to post, or hiding behind the small print.

Understanding the challenges consumers face and removing these barriers is central to our daily work. Which? has played a big part in helping to shape the UK’s current consumer rights framework.

Read more: Broken system means faulty products could pose greater risk for UK homes

From the appointment of the first Minister for Consumer Affairs to the Competition Act, Consumer Rights Act and creation of the Food Standards Agency, Which? has been leading the way in campaigning for protections for consumers.

A failing system

Regrettably, it’s well recognised that the enforcement system that underpins this framework is failing. Conscientious, dedicated individuals work hard to uphold the current system, but they face a losing battle against a broken regime.

Consumers have never had more choice or more convenience. The digital revolution has put billions of products and services at our fingertips and in this fast-paced marketplace, where new challenges for consumers are always emerging, everyone still wants, and deserves, to be treated fairly.

The current regime simply isn’t good enough and leaves consumers exposed and at risk of harm. In these uncertain times it’s more important than ever that we have systems we can rely on, with the flexibility to adapt to new consumer realities.

Seven changes

The case for change is clear but it’s not enough to just look at individual aspects of the system or to tinker around the edges – we need a wholesale overhaul to properly protect and empower consumers.

The government is looking at the consumer landscape through its Modernising Consumer Markets Green Paper, which is a welcome move. They must get this right and take the opportunity to deliver fundamental reform that will shape the consumer landscape for years to come.

In this report, we highlight the weaknesses of the current system and proposes seven changes to create a regime that will protect consumers effectively.

These proposals include expanding the role of the Competition and Markets Authority, and giving independence to the Office for Product Safety and Standards (OPSS), as well as wider supporting changes for a more effective regime for the future.

At Which? we’re constantly questioning every aspect of consumer life to see if things can be made better. The government needs to take this opportunity to make things better for consumers.

Comments
Member

Thanks for this Convo, Caroline. The report looks very good but what I would like to see is Which? taking action that results in progress. Looking back at the history of Which?, valuable progress has been made but nowadays Which? remains good at identifying problems but not always achieving action. I will focus on a couple of examples where I would like to see some real progress:

From the report: Powers can also vary across the UK because of devolution. In Wales and
Northern Ireland, food businesses are required to display their hygiene
ratings, given to them following local authority inspections. But mandatory
display has not been made a requirement in England (or in Scotland where a
different hygiene rating system currently operates).

This discrepancy has been mentioned in the magazine and in Convos. When I have visited Wales I have seen food hygiene ratings of 5 used to encourage customers, and it obviously encourages other traders to pull their socks up. Having spoken to environmental health officers, some businesses are allowed to continue to trade with a rating of zero or one, with no indication on the door to make customers aware. This can be confirmed by looking at published hygiene ratings and the dates they were awarded on the Food Standards Agency’s website. I would like Which? to push for mandatory display of food hygiene ratings on all premises.

Some of have been pushing for years for Which? to push for adequate funding of Trading Standards so that if we, as individual consumers, find a problem, appropriate action will be taken. I was very disappointed to learn that National Trading Standards is there to support businesses and not to help consumers. Last year I discovered that if I spot something that is clearly dangerous on sale there is little chance of doing anything unless I have purchased the product. Some Which? Convo members have pushed for Which? to take action against companies that sell products with the wrong type of plug. This is not just a convenience issue but can present a real danger, depending on how the purchaser deals with the problem. As far as I am aware, Which? has not even contacted Trading Standards or the Office of Product Safety and Standards. Here is a link to one of the Convos about this problem: https://conversation.which.co.uk/home-energy/plugs-two-pin-british-amazon-electrical-appliances/ The problem is getting worse and I can give examples of UK companies openly selling products fitted with incorrect plugs.

It would be great to have some positive feedback.

Member

Wavechange mentions eating establishments and food hygiene ratings while not compulsory in Scotland they have a Food Hygiene Information Scheme –
https://www.foodstandards.gov.scot/consumers/food-safety/buying-food-eating-out/food-hygiene-information-scheme
Input the business and a result comes up.

Member

It is a requirement for premises to be inspected, as stated on the website you mention. There are only two results: Pass and Requires Improvement, but I have no idea how these compare with the 0 to 5 range used in the rest of the UK. Sadly there seems to be many in the Requires Improvement category and often for a few years and a depressing number classified as Waiting Inspection.

The ratings for Scottish premises are also covered in by the system used by the Food Standards Agency: http://ratings.food.gov.uk

Member

Yesterday, here in the Principality, the Daily Post published the full names, locations and pictures of food businesses that only gained a “1”, the next-to-lowest score. Certainly has an effect on businesses.

Member

We definitely are still calling for mandatory display of hygiene ratings across the UK. As Wavechange has pointed out this is very effective in driving up standards. Which? first called for hygiene ratings to be introduced because there was evidence from other countries (some US states, Toronto and Denmark) that these schemes incentivise compliance as well as enabling people to make informed choices. There is also now clear evidence from Wales that the requirement for businesses to display their schemes has driven hygiene improvements (and unsurprisingly when display is voluntary, only the better performers tend to display their ratings). We will look for opportunities to push for this in the legislation that is going through Parliament.

Member

Hi Sue – I had assumed that when display of prices in Wales became mandatory it would not be long before the UK followed, but that has not happened. The only progress that I have seen is that local businesses that have received a rating of 1 or 2 have very quickly arranged for another inspection and achieved a 5 or at least a 4. On the other hand I have seen businesses who have achieved a rating of 5 and not bothered to display this.

It is disappointing that I have seen few examples of businesses using a good rating to encourage customers.

At one time I was keen on businesses using hygiene ratings on menus and on their websites but having seen higher than actual ratings used online and in print, maybe it is best to encourage customers to look at the FSA app or website.

FSA are keen that we should report errors to the relevant council but I think it would be easier to have a single number/website for reporting mistakes.

Thanks for letting us know that there are some countries that are ahead of the game.

Member

I first posted these comments in The Lobby, so I’ll now transfer them to where they belong:

Which? have published an excellent report “Creating a successful enforcement system for UK Consumers”
https://www.which.co.uk/policy/consumers/3851/ukenforcementsystems

It gives an excellent overview of the current system, its weakness, and proposes ways a better system could be implemented.

We certainly need a central body to oversee all the different sectors that need monitoring and enforcing – food safety, product safety, banking, on line traders….. and we certainly need better, simpler and cheaper ways for an individual to have their rights upheld. The small claims court should be a last resort; alternative dispute resolution seems a far better solution for many.

One problem may be trying to do too much too quickly, and having just one body handling everything – inevitably priorities will be set.

In my view we need, for example, for product safety one national body tasked with accumulating complaints and data and deciding when there are sufficient common ones to start investigating and taking action. Amazon 2 pin plugs, Indesit et al tumble driers, for example. However, individuals need direct access to such a body to register their problem and to see what problems are accumulating and what action is being taken. Transparency.

We also need local standards organisations to deal with local problems – unfair trading, food safety for example. I believe local Trading Standards are still the right people to handle this – why discard their expertise and organisation? However they should be taken out of local authority control for both policy and funding and supported from central funds. I’d organise them at county level. They should also be responsible for monitoring decisions made nationally that affect businesses in their area.

This will need proper funding of course. But it is of great importance.

I wonder what Which? are doing with their report? Hopefully entering into a constructive dialogue with government ( perhaps they’ll make progress once Brexit is over and done with – if ever).

Member

and….
malcolm r says:3 February 2019
I’m not sure why Which?’s press release has such a dramatic headline:
Consumer enforcement system on verge of collapse, Which? warns
3 February 2019
The UK could be left exposed to increasing levels of food poisoning, scams and potentially even deaths caused by unsafe products unless the broken consumer enforcement system is radically overhauled, according to a new report from Which?.”

Nothing has suddenly happened, as far as I know, to cause a catastrophe. Underfunding has simply reduced the level of enforcement and this now needs to be put right. A total change and reconstruction might be an answer but is not necessary if we build on what we have, add better integration and improve dispute resolution.

Member

[Copied from The Lobby 2]

Thank you for posting this, Malcolm. I haven’t yet read it line-by-line but it seems to be a very good policy outline – possibly too good for the government to implement. It offers a range of options for organising consumer protection, together with the pros and cons of each, and I would have thought one of them would be acceptable without too much deliberation.

I hope the restoration of front-line trading standards competence and capability is given serious consideration because I feel the citizen needs local recourse to information, advice, and effective enforcement. Bearing in mind the Whirlpool fiasco, there has to be a better way of dealing with problems and recalls in products from multi-national companies and there are recommendations for this using the CMA as a foundation stone.

I am not convinced that the OPSS has distinguished itself sufficiently to justify its continued existence as a unit within government so I support the creation of an independent authority but I am always a bit doubtful of the value of putting several functions under one body. It might be convenient administratively but it makes each service more remote and they can lose their place in a bureaucratic hierarchy.

I would have liked to see some reference to the role of quality assurance systems in promoting product conformity, reliability, and manufacturing consistency. It can have its weaknesses [i.e. it can ensure strict compliance with a low specification] but more investment in quality could eliminate many of the after-sales problems that occur and lower the cost of [or extend the life of] warranties. The international market place has added to the complexity of obtaining good and well-made products, especially in the lower and middle ranges where a multitude of suppliers are prone to cut corners to secure sales.

Member

I was interested this morning to hear that the CMA (Competition and Markets Authority) has managed to get the major hotel booking sites to agree not to use misleading language and eliminate pressure selling tactics. The leader of the CMA came on BBC Breakfast to explain what they’d achieved.

What was slightly worrying, however, was when he admitted that the CMA cannot levy fines for non-compliance, having instead to go to court, and that they’d given the hotel sites until September the first – seven full months – to change their behaviour. Things certainly move fast, here in Blighty…

Member

Which? has published a short press release about hotel booking sites this morning: https://press.which.co.uk/whichstatements/which-responds-to-the-cmas-announcement-of-major-changes-for-hotel-booking-sites/

Member

The Government did acknowledge in its Modernising Consumer Markets Green Paper that the lack of fining powers by consumer enforcers was a gap and needs to be addressed. We strongly supported this in our response and will do as this is taken forward. At the moment, the CMA can for example levy fines in competition cases, but not for consumer law breaches. Other enforcers such as Trading Standards should also have these powers as part of their different tools.

Member
Neil says:
6 February 2019

I think its disappointing that Which have not engaged with Trading Standards before publishing this report.

Experience would suggest that centralising enforcement reduces the number of direct enforcement interventions. The report refers to the HSE but compare the prosecution figures for the HSE against those of Environmental Health. Remove the show stopping accidents that hit the headlines from those figures and the numbers drop even further. HSE have a very poor reputation amongst officers operating at a local level.

The other factor thats been ignored is that is that the majority of consumer fraud occurs at a local level and is often committed by more transient and hidden traders that national regulators struggle to keep up with. The recent horsemeat in burgers scandal was a result of a weakened food sampling capacity at a local level that left the FSA chasing its tail.

The report seems to suggest Trading Standards should step away from consumer fraud. Reducing local capacity in favour of a national approach is something we will do at our peril.

Member

I think we need both local and national services for Trading Standards. If you have a complaint relating to a national or international company I don’t think that it makes much sense for the local Trading Standards office to handle this. National Trading Standards provides a service for companies and not for you and me. I did not realise this until I contacted NTS.

Thanks to the ‘Regulating our Future’ initiative, larger companies have been entrusted with looking after food safety. This could lead to more opportunity for food fraud and a general decline in standards: https://www.foodsafetynews.com/2018/07/uk-food-safety-reform-during-brexit-creates-additional-risk/

Member

Hi Neil, I wanted to assure you that we did engage Trading Standards, as well as a range of other interested groups, as we developed our proposals. We do recognise in the report that Trading Standards within local authorities should continue to have an important role in enforcement – but are concerned that at the moment, their ability to do this can vary enormously depending on where you live. They also have to deal with such a broad range of legislation and deal with national as well as local issues. We therefore want a better balance with stronger national regulators and the right mix of expertise at national, regional and local level. The Chartered Trading Standards Institute did put out a supportive statement in response to our recommendations, including the following comments from their Chief Executive, Leon Livermore: “We are calling on the Governments to commit to reforms that prepare consumer protection and business support for the 21st century. Frontline trading standards services make up the foundations of robust national enforcement, and CTSI agrees with Which? on the need for greater central support and accountability.”

Member

Reading the section on Action through the courts

There are many situations that need government intervention rather than going to court.

If you get a dodgy builder or home improvement trader who does a bad job, who takes money without finishing the job, who overcharges vulnerable folk, the only recourse open to us is through the courts. We could well win, but are unlikely to actually receive financial recourse or satisfaction and the trader will carry on scamming people.

We should be able to go to a government body who investigate and act on our behalf. They should have the power to put the situation right, obtaining refunds on our behalf, ensuring the dodgy builder pays for another builder to complete the work.

This could have a knock-on effect of weeding out and removing dodgy builders/tradespeople. Investigate their accounts and discover they pay no taxes, a photographic wall of fame naming and shaming locally to stamp them out. Fines would help pay for the government body.

This needs to be done at local level, but also under a national umbrella to catch dodgy tradespeople moving elsewhere.

Member

I agree with the last sentence. Local Trading Standards (but under a National TS body) should be funded to deal with these problems. The problem with small traders is they may choose not to have the means to pay up – the courts can impose a settlement but not ensure it is paid.

A local register of builders (in this case) who have been found to perform unacceptably would help the process being repeated.

Member
Trading Standards Officer says:
16 February 2019

If you want TS or some organisation to deal with all sorts of civil disputes then you better start writing some checks – some massive checks in the hundreds of millions of pounds that it would need to offer such a service nationwide.

As a TS officer my view is that we need local officers with a local focus but management at a National level setting priorities. I think we need to be taken out of local authority control because its an absolute postcode lottery shambles.

Regarding the CMA, the way they operate is not the way we want TS to operate at a national level – they are too slow and they are more about strcutural issues rather than individual traders – you will note their enforcement action often deals with many businesses in the same industry such as secondary ticket sellers.

The OFT were meant to operate as a national regulator in some areas but they were slow as well.

The National Trading Standards do various things but I think people overestimate what they do. Generally if you have a massive case at a local level you can ask them for funding to help but there is stil la big onus on you to do a lot of the legwork – which many small TS depts cannot do.

I think people also under estimate how much time and effort it can take to take a case to court. We once prosecuted a rogue tarder who ripped off around 15 people. I don’t know what the cost of investigating was but it was at least in the region of £80,000 for expenses and officer time and that is without legal fees which could have been another £10,000. Some TS depts don’t even have a yearly budget of that much.

Member

” Child car seats that are illegal to use in the UK are available to buy from eBay, Amazon and AliExpress, despite repeated warnings from Trading Standards and Which?.

Read more: https://www.which.co.uk/news/2019/02/why-are-ebay-and-amazon-still-selling-killer-car-seats/ – Which?…………………..
Online marketplaces cannot continue to turn a blind eye to dangerous and illegal products being sold on their sites.

So why do we not make these businesses, that provide a portal for dangerous products and profit from their sale, responsible legally for the products they promote and prosecute them when they fail?

@cnormand, Caroline, can these people be prosecuted? If not, should Which? campaign for a change in the law that makes them liable?

Member

This is something that we are currently looking at. We have made it clear that we expect these companies to take responsibility and make sure that unsafe products are removed from sale. Their legal responsibilities are currently being reviewed as part of a wider update of legislation on enforcement and compliance – and it is important that this reflects the changing nature of market places and the role they now have within them.