Can your credit card company explain your legal rights?

Thank you. What about people who use their card to pay fraudsters like copycat websites and Microsoft telephone scam for misdescribed services? Is it acceptable to use both chargeback and Section 75 to get the money back?

Jenny?

Are you able to post a copy or shorter summary of the final decision report here?

Have you thought about taking Landrover and the dealer to the small claims court?

Well, my initial post was kept as succinct and simple as possible; now it gets involved. Some techy background is needed first to be able to understand what follows:- Landrover refer to this phenomenon as going into “sleep mode” – they say it does this to save drain on the battery so that there is always enough charge to start the engine; it does this after an ill-defined period of time or if the battery capacity falls below a threshold level. Things reset once the engine has been run up to “operating temperature”. What all of this means in practice is that as there is no information provided to the owner of what is going on inside the “black boxes”, then the sleep mode is a perfect booby trap – it is not possible to monitor what is happening and therefore impossible to predict or take precautions to prevent oneself from being locked out. Landrover also say that the key is on the left hand side because “the majority of production is for the LHD market where the driver’s door is on the left and that is why the key is on the left” i.e. their design philosophy is that having provided a feature to deliberately lock you out, the key is put on the driver’s door which affords the least likely point of access to be compromised by obstruction, but they do not consistently apply this by transposing the key to the RHS for the RHD drive market – we consumers in the home, UK market, are treated as second rate citizens by Landrover and this will all be down to saving a tiny percentage on the production costs. All of this was the basis of my argument – essentialy a DESIGN FAULT (the benefit of the sleep mode to the owner is questionable, if you cannot get in then you’ve had it, on the other hand if you can get in and the battery is flat then there a multitude of ways to get the engine started – it is logical that getting in has a higher priority over being able to start the engine).

I explained all of this to Trading Standards who advised to base complaint on “not fit for purpose”. Also, almost as an afterthought, I was asked if this phenomenon was described in pre-sales literature or within the owner’s handbook; I replied in the negative and TS advised that I could also claim misrepresentation on the grounds that the “goods were not as described” – this vastly lesser point (compared to the goods being unsatisfactory) proved to be both a red herring and an achilles heel….

I also trawled the FOS decision database for comparisons and found a supported claim for where two panels on a car were not of the same shade (merely a cosmetic issue) and one where rain was getting in through window seals – again relatively trivial in comparison to having the use of one’s car totally denied to one. I referred the Omdudsman to these decisions by peers.

Now to the crux:-
The Adjudicator argued, amongst other things, that the “sleep mode” was “a feature of the car and not a fault”. Her report was so full of errors, misunderstandings and misrepresentations of my claim that I rejected it and sent it back with my comments and corrections. She said that my comments made no difference and unilaterally referred it to an Ombudsman.
After nearly a year, the Ombudsman took up most of her discussion of my case, refering to SoGA, that it has to be a positively made statement to constitute misrepresentation; omission does not constitute misrepresentation – I had flippantly been given INCORRECT advice by Trading Standards ( I confronted the TS man later and he back-pedalled…..). As to my claim that the car was not of satisfactory quality the Ombudsman wrote “…..it seems that the activation of the “sleep mode” is causing…some difficulties when he is parking the car in his garage in particular. The car came with this built-in feature security feature and although this particular feature may not be ideal fto Mr C’s personal circumstances, I am not pursuaded that the car could be considered as defective or not fit for purpose on account of this”.

There are many flaws in her argument 1) it is not a “security” feature 2) she refers to SoGA in dismissing, at length, the minor point of misrepresentation but 3) ignores SoGA when it comes to the major point of not being of satisfactory quality:- a) my car rendered itself incapable of being used “for any purpose for which goods of the kind in question are normally supplied” and b) she supported Capital One’s “defence of last resort” by focussing on my PERSONAL circumstances which is discouraged by SoGA which is expressed in terms of what “a REASONABLE person would expect of the goods”, 4) SoGA does not discriminate over the nature of “faults” i.e. a design fault is just as legitimate a case for claiming goods to be unsatisfactory as is a fault accidentaly incorporated during manufacture. It very much appears to me that the Ombudsman did not want to make a decision which would set a precedent for other Freelander 2 owners to make similar claims, hence the final decision report was manipulated so as to 1) make my claim look trivial and make it easier to dismiss, 2) give preference in prominence to the lesser misrepresentation issue to act as a smoke screen to divert attention away from the main aspect of the claim and allow this to be subsumed to a small paragraph at the end which could then be dismissed without any substantive argument (achiles heel, remember – wrong advice from Trading Standards significantly contributed to losing my claim – be warned !).

I later rang the FOS team leader who told me that the FOS “like to keep the decision rate about 50:50 between claimants and defendants so that FOS are not seen to favour one over the other. Also that FOS cannot hold credit card companies liable for the poor designs of manufacturers”.

I found these admissions shocking – the FOS seem to pick and choose when it wants to decide in accordance with SoGA or not, it ignored decisions made by peer Ombudsmen, my evidence and logical argument based thereupon to PROVE the car is not of satisfactory quality was ignored and my explanation to show that my circumstances were not exceptional i.e. not those of an UNreasonable person, were ignored – hence my original comment of FOS being little more than a lottery.

Finally, I cannot take Landrover and dealer to Small Claims Court as 1) the manufacturer is not accountable in Law, the dealer is, 2) the value exceeds the SCC threshold – according to guidance on Which? website I would need to go to Civil Court, engage a solicitor, PROVE my claim and may face having to pay the other side’s costs if I lose. I have had no success in finding a solicitor specialising in consumer affairs (why should there be any when most cases get resolved by consumers’ own efforts). What is to prevent a judge from also being so “closed minded” as to what constitutes a fault?

It very much seems to me that when it comes to buying what is usually one’s second most valuable asset, the very consumer laws which are intended to afford protection, leave one high and dry……

I nominate Isbjorn’s second post to be post of the week.

Try Leigh Day Solicitors. They specialise in consumer laws and faulty consumer goods, and I think they’re no win no fee. Ask them to take your case for compensation, or seek a judicial review of the FOS’s decision.

leighday dot co dot uk

The TS guy wasn’t completely wrong. I can’t name the law, but there’s one about misrepresenting goods in advertising. If you look at CAP’s advertising code, they’ve got a paragraph on omission of material information, which would probably apply to your case. The omission is that the car locks out at random, and is unsuitable for owners wanting to park it in their garage.

cap dot org dot uk

Isbjorn, if you haven’t been able to use your car for over 3 years, you should claim a lot more than £1000 compensation, especially since you bought your car for the purpose of using and parking it in a garage. Your dealer failed to tell you it wasn’t suitable for narrow garages.

You should probably claim the full amount the car cost. Ask Leigh Day how much they think you should claim.

If Leigh Day says they’ll need money at some point, crowdfund it from Indiegogo, GoFundMe or Yimby.

WEV, thanks for the tips, I’ll begin to follow them up. Whilst on the topic of solictors for consumer affairs, when one visits the Law Society (?) web facility “find a solicitor”, one will find reference to accreditation schemes and whether solicitors are accredited to them; it is very notable that there is not an accreditation scheme for consumer law. As I hinted at earlier, if the majority of consumers’ affairs can now be sorted by themselves, then there is not a lot of call for solictors in this area of Law, so we end up being under-represented, solicitor-wise, when we need help outside of the Small Claims Court. This is another generic aspect, flushed out during pursuing my claim, that relevant bodies with the requisite “clout” should be campaigning for.

wavechange,

Absolutely! (complexity = trouble). Apparently, Landrover advise that if the car is not locked, the responsible control module (along with others) remains “on duty” waiting to receive and react to a signal from the radio key fob and in this state of alertness, the current consumption is such that the battery will go flat in about 4 or 5 days, so Landrover advise to lock the vehicle if it is to be left for any length of time, whereupon the current consumption falls to a lower quiescent level – however, then one is at risk of it going into “sleep mode” and finding oneself locked out. So you’re damned if you don’t lock it and also damned if you do lock it. Anyway, the option of leaving it unlocked is academic as, if you examine your motor insurance policy, you may find, as I did, that leaving it unlocked could invalidate your insurance.

Ah yes, insurance – where will all this complexity have been driven from? Who else but the insurance industry? So has their pressure on manufacturers now left us, the owners, with just another problem (of being locked out)?

Practically, I have examined lots of mitigation options (and put them to the Ombudsman), but none of them are what one would consider “reasonable” for a brand new car – in this day and age, one shouldn’t be having to make contigency plans to either 1) prevent oneself from being locked out or 2) how to recover the situation if you are so locked out.

wev,

My garage is not “narrow” or exceptional in any way, it is a standard UK width single garage. Ironically I chose the Freelander 2 model in preference to the Discovery model because I had checked, dimensionally, that the Freelander would fit in my standard UK width garage.

The dealer didn’t tell me about this feature, because they didn’t know about it. Neither did the attending technicians who made the forced entries – they were completely baffled and ended up ‘phoning Landrover who then told them all they could do was to gain access by force. I ‘phoned Landrover technical section afterwards and they couldn’t explain it either. I only got the technical explanation given above by writing directly to Landrover CEO, by name. Even though other people have reported this problem on an owners’ internet forum, which Landrover monitor, Landrover still haven’t included anything about this sleep mode in the latest owner’s handbook (I looked at my neighbour’s who has just bought a new 2014 model). So, Landrover seem to be trying very hard to keep this sleep mode a secret. One wonders why?

I used the CEO’s response to my enquiry as a part of my evidence to the Ombudsman of why it was a design fault – instead of accepting my argument, the Ombudsman turned things about face and used my own evidence against me to dismiss my claim ! I often wonder what the final decision would have been had I never supplied the CEO’s correspondence and/or not followed the “iffy” TS misreprentation advice.

Again, for any consumers reading this and thinking of using FOS – be very careful of what you supply to support your case; conssider whether it could be used aganst you.

Also, be carefull how you express your case:-
Initially, when first making my claim, I used the advised TS bases of “not fit for purpose” and “misrepresentation”. I was later advised by Which? Legal Services to make my claim on the basis of “not of satisfactory quality” (there are subtle differences). Unfortunately, I had already submitted my claim so, when I responded to the Adjudicator’s findings I asked to revise my claim from “not fit for purpose” to “not of satisfactory quality” stating that as a lay consumer it would be unreasonable for me to know exactly how to express my complaint.

It looks very much to me that the Ombudsman ignored this change request. Whether or not these symantics had any bearing on the Ombudsman’s decision is not clear – was it ignored so as make it easier not to make a precedent setting decision? All I can suggest is to be very careful how you phrase the basis of a complaint, as you may not be well rewarded if you think the experience or expertise of the Ombudsman will “help you out” as a layperson with any leeway in interpreting the basis of your complaint.

wev,

I am unsure quite how I can append a copy of the final decision report directly within this post. However, it can be found here on the FOS database of decisions http://www.ombudsman-decisions.org.uk/viewPDF.aspx?FileID=47189.

I leave readers to come to their own opinion as to whether they think it is a “whitewash”. Out of two whole pages, my claim that the car is not of satisfactory quality is dismissed in just 21 words, not a single one of which affords any substantive explanation of the decision (I am not…on account of this”).

wavechange,

You make the point of what happens if your remote control FAILS. Well, as I argued to FOS, in that one-in-a-million scenario, having the emergency entry provisions anywhere on the vehicle could be considered to be satisfactory. However, what I am trying to raise the profile of, for KEYLESS ENTRY cars, is that my remote did not FAIL (it worked fine and the car started fine after having made the entry by force) – the point is that the probability of being locked out is vastly greater than one-in-a-million because it is DESIGNED to do so and therefore the manufacturer should be obliged to ensure that the recovery options are robust/reliable to normal every day circumstances. I wonder if a contributory factor to the key being on the LHS is because the litigious USA (where most Freelanders go to) simply wouldn’t tolerate such nonsense, yet the timid Brits probably won’t kick up a fuss or will make do and get by, so Landrover save a bit by not moving the key to the RHS?

wavechange,

It’s good to see that someone else understands the problem (indeed everyone I have discussed this with, bar the Ombudsman, agrees with my point of view). Heirarchically though, I think the root cause design fault lies in having the sleep mode at all – its benefit is, at best, questionable. If someone wants to make a good arguement that the sleep mode is not a design fault and has justifiable benefit, then I agree with you that the debate falls back on to the way you see it – inappropriate positioning of the emergency key lock.

In due course I hope to draw Which?’s attention to this issue for keyless entry cars and encourage the incorporation of these kind of practical issues in the reviews of cars.

wavechange,

Good point on the remote battery failing.

I got Rip Off Britain interested, but the editor decided it was too niche (he couldn’t see the wider implications for potentially all keyless entry cars).

Handbrake on, in gear, one and three quarter tonnes. Technician turned up in a Rangerover – heavier, so it might have had the traction, but would the towing eye have failed first before it would move. Manufacturer’s instructions to him were to used forced entry…..

It may seem a little odd replying to myself but the thread below has about reached the end of its usefulness, so I have done this to get a summary of the lessons learned back up at the near the top of the discussion so that others can benefit from my awful experience; if readers want to understand how the lessons and recommendations have arisen they can read on, through the various comments below.

The discussion commenced regarding section 75 claims. My experience has given rise to five generic areas of interest 1) defining the basis of a claim, 2) making a section 75 claim/via the Financial Ombudsman Service (FOS), 3) the nature of a fault on which a claim is based, 4) the dearth of solicitors showing any interest or indeed confidence, in getting involved with a consumer law related affair and 5) the perils associated with keyless entry cars (which started the whole thing off).

In spite of all the popularisation and headline success results for consumers, making a section 75 claim may not be as straightforward as it is often portrayed to be:-

1) I will now be wary of “advice” from “free” sources (Trading Standards, telephone based legal helplines etcetera) allowing me to be steered down a particular course of action. Aspects of the Sale of Goods Act are easily referenced, glibly. The people giving this “advice” may not consider the merits of a claim and have nothing to lose if the consumer subsequently loses out.

Be careful how the basis of the claim is set out. It may need to be worded exactly right as the Ombudsman may not assist the layperson by applying some leeway in interpreting exactly what the basis of the claim is.

It may be tempting to bolster a case, but I would now be very wary of claiming on more than one set of grounds (in my case, I believe the Ombudsman used the lesser issue to divert attention from giving a thorough assessment and account of why the major basis of my claim was rejected).

2) Under section 75, a refund of the cost of the goods is not automatically guaranteed and it may still have to be proven (as in a Court) that the goods are unsatisfactory.

Don’t let the credit card company procrastinate; if they don’t deal with a complaint quickly, get straight on to the FOS (as they will allow yet another 8 weeks to elapse before applying pressure).

If a claim is subsequently pursued through the Financial Ombudsman Service, do not expect a quick resolution – my simple case took about one year and, if the goods are such that it is needed to arrange an alternative in the interim, then it needs to be taken into consideration what that might cost whilst waiting for such a length of time; on the other hand this will not be easy to weigh up as the FOS will not provide an indication of when your claim might be addressed (remember, one cannot reject the goods and then keep on using them whilst the claim is under way).

I also found the waiting very disruptive:- when the FOS do send a decision, the claimant only has a short period of time to respond and either accept or reject the decision. If a claimant happens to be away when the letter arrives, without warning, the claimant could be stuck with the decision by default, due to not being able to respond. It is difficult to set out future plans, such as a holiday away.

Although it might have been suggested to go via the FOS to have one’s consumer rights, in Law, to be upheld, on the basis of criteria set out in the Sale of Goods Act and therefore the basis against which one might expect a ruling to be made, do not expect the Ombudsman to determine a case on any rational basis, neither by adherence to criteria specified within the Sale of Goods Act nor even by comparison to decisions made by peer Ombudsmen. Decisions appear to be made on their perception of what is fair in their individual opinion, not necessarily on what the Law says. Note that, to avoid being seen to favour either claimants or defendants overall, the FOS likes to see that the global decision ratio remains at about 50:50, so this may influence the Ombudsman’s decision. (I played the Sale of Goods Act, by the book, and it was all ignored).

Be wary what evidence is submitted to the FOS to support a claim; consider whether the Ombudsman could turn it around and use it against the claimant, (as happened to myself).

Whilst awaiting the decision, I would now maintain possession of the goods myself, but would ensure that I maintain some independent verification that they have not subsequently been degraded in any way whilst in my care.

3) I will now be wary of pursuing a claim where the “fault” is not due to a simple manufacturing defect which has accidentally happened during manufacture. I have observed that a lot of people do not have the openness of mind to envision that a fault due to inappropriate design constitutes just as a legitimate a reason to reject goods. All too often, it seems the only way to get redress for a design fault is through the publicity of the media etcetera.

4) I found it difficult to find a local solicitor who could even speak with any confidence about consumer law. The last time I looked, there was not an accreditation scheme, covering consumer law, for solicitors to belong to. Perhaps consumer law has become a neglected area by solicitors? (as so many claims can be resolved by consumers’ own efforts). Therefore, can one have any confidence in them if one needs to engage one?

5) I will now never again buy a keyless entry car where the emergency/manual access provisions are not located on the driver’s side of the vehicle.

My problem will almost certainly have been driven by a) the motor insurance industry putting pressure on manufacturers resulting in ever more complex designs and b) penny pinching, by the manufacturer. As a result, I now have to bear the risk of being locked out of my car and the risk having it damaged by forced entries just because the manufacturer won’t incur a fraction of a percent in cost to transpose the emergency access key to the RHS of the vehicle, along with the steering wheel, pedals, controls etcetera.

Is garaging a car a purpose for which goods of the kind in question are normally supplied? If not, then why do houses come with garages with big doors on them?

I hope anyone reading this finds it useful before embarking on a section 75 claim, perhaps glibly advised to them by someone spouting out free consumer advice like confetti and that it saves them incurring considerable collateral costs as a result.

It does not automatically follow from the Ombudsman deciding the sleep mode is a feature, that the goods are of satisfactory quality. This purported feature was responsible, in conjunction with the inadequate emergency entry provisions, for rendering my car incapable of being used for any purpose for which goods of the kind in question are normally supplied unless I subjected it to process of entry by force which clearly carries a significant attendant risk of damage occuring, otherwise why would it be mandatory to have to waive one’s right to redress should damage occur.

Hard glass eyes on a child’s cuddly toy would be a feature of that toy but it is hardly likely that anyone would consider such a toy to be of satisfactory quality. This is why I referred the Ombudsman to the “leaky window” section 75 claim – here the defence was offered that this ingress was a feature of that claimant’s vehicle – that peer Ombudsman did not agree and upheld that claim (on an old car, where such problems might be reasonable to expect to occur; how many people would expect to have their new car’s usefulness terminated within 7 months of purchase and then damaged, to boot?)

That the sleep mode is a feature is only inferrable and then only inferrable from a single letter of correspondence from Head Office to an individual (me). The dealer had never heard of it, neither had the technicians, neither had the customer helpline. Landrover have still not made mention of it in the newest handbook. This absence of dissemination of information about the sleep mode could be seen by some people to be inconsistent with it genuinely being a feature specifically provided for the benefit of owners. The manufacturer has an incentive to claim whatever is necessary to defend the product. Or is it really an unintended consequence of the complicated design that has no priority to be addressed until someone like myself discovers and exposes it?

Tom,

This aligns with one of the points I have been trying to communicate above (but now might have got lost in the plethora of comments above). From my experience, I would not now ever think of taking a small consumer product claim via the Ombudsman – my relatively simple case (for a brand new car) took a year and one has to consider what it might cost you to make alternative arrangements (another oven/car) whilst you wait. I have never used the Small Claims Court but I have no reason to foresee why it should not be a lot quicker – at least you shouldn’t have to wait another 8 weeks after telling FOS before they do anything and just issuing the summons, online, I would suggest, is likely to provoke a quick response.

I would encourage you to write to your MP, as I have just done, and complain that although there are Laws to protect us, in theory, the practical and timely application leaves a lot to be desired. (Don’t write to Jo Swinson, Minister for Consumer Affairs, directly, unless you are in her constituency. I only found this out afterwards – you have to write to your own constituency MP and ask him/her to approach the Minister for Consumer affairs on your behalf).

Isbjorn, do you still visit Which and are you still reading this thread?

wev, yes, but only when a “new post” is notified, and there hasn’t been one for quite a while. I have now just sent off a service complaint to the FOS Independent Assessor about how the FOS handled my complaint because, in my opinion, the ombudsman included false statements within the final decision which allowed her to create an artificial environment in which it was then “easy” to dismiss my claim and the reluctance of FOS personnel at the previous two service complaint stages to discuss anything about holding the adjudicator and/or ombudsman accountable for their actions, just reinforces my concerns.

I now have my car back from the dealers (where it was previously damaged whilst in their care) – they refused to return my car and, as it was now more than 3 years old, it had no MoT so I had to pay £100 for it to be collected by a trade professional on trade plates. Also, the dealer had neglected to care for my car such that the battery was useless and I had to pay another £150 for a new battery to get the car started/home. In addition, the electrically folding mirrors don’t fold any more.

And, there has been yet another development:- as a part of reviewing all that has passed, I decided to investigate whether I had, indeed, been supplied with the car I thought I had ordered – at purchase I was told that the overhead camshafts of the engine were chain driven (more robust than a rubberished, toothed belt) and this induced me to buy the car – I moved the cam drive cover aside a few weeks ago and discovered that it was, in fact, a rubberised toothed belt drive mechanism. So, I have raised another section 75 claim against Capital One for misrepresentation. They are now 7 weeks into their 8 allowed week period to supply a final response, so the probability is that they intend to contest it and I may soon be contacting the FOS yet again…..

What a saga, it’s now just over 4 years since I bought the car and it hasn’t been used for the last 3 and a half of those. There’s got to be a better way to get one’s redress than this drawn out process – one could go to Court but one still has to show that one has exhausted other means first and the cost, with the transaction being more than the Small Claims Court upper limit, I ‘m advised could easily exceed the value of the car.

After trumpeting her “improved protection measures” for second hand car buyers last year, I wrote to Jo Swinson MP about my experience and hence how little protection the buyers of those cars have, in reality, when those second hand cars were first bought new – the response was that “I can follow the various listed processes to get redress” – all the ones that I have already tried – boing !

Which? should be picking up on my experience and championing more practicable means of redress for new car buyers – it’s the second most expensive common purchase most people make – perhaps there should be an exception to the Small Claims Court upper limit for specific types of case, such as high value consumer goods – after all, that’s all this case is, nothing more complicated than a matter of a consumer purchase, so why should we have to risk massively escalated costs just to take a consumer purchase case to a County Court?

Isjborn, could you please post about your experience on the LegalBeagles.info forum?

http://www.legalbeagles.info/forums/forumdisplay.php?65-Consumer-and-Civil-Rights

http://www.legalbeagles.info/forums/forumdisplay.php?311-Motoring-amp-Parking

http://www.legalbeagles.info/forums/forumdisplay.php?21-Consumer-Credit-Act

http://www.legalbeagles.info/forums/forumdisplay.php?217-Financial-Ombudsman-Service-(FOS)

Post in the CCR forum, it’s the most active.