Can your credit card company explain your legal rights?

Protection under Section 75 of the Consumer Credit Act 1974 was introduced in the early 1970s in order to prevent lenders chosen by retailers under hire purchase agreements from escaping liability for breach of contract by the retailer, often where the retailer would vanish, leaving the lender as the only surviving party. It was never intended to cover credit cards, which were very rare at the time the legislation was enacted. However, the protection applies to any form of borrowing where the retailer has a direct relationship with the lender, even if the lender was the consumer’s choice and not the retailer’s choice and not only to hire purchase, and is nowadays most commonly applied to credit cards. As debit cards are not a means of borrowing or credit, they will never fall under the Consumer Credit Act, and nor do charge cards where you have to pay the balance in full every month (e.g. some American Express cards). The only improvement that consumers could hope for would be for the £100-£30,000 scope to be widened and for inclusion where a financial intermediary is involved, e.g. PayPal. However, given that the benefit for credit card holders is an unintended consequence of 40-year-old legislation, I wouldn’t expect anything.

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?

rarrar – If I buy goods then it is the retailer rather than the manufacturer that is responsible if there is a problem. I assume that if someone booked a holiday through a travel agent then it would be the agent that would be responsible rather than the companies providing the holiday (travel, accommodation, etc.).

I am not saying I’m right, but I have successfully claimed compensation from a travel agent for unsatisfactory service when my luggage was delayed and the airport failed to put it on the next flight as they had promised to do.

rarrar – Just a clarification – if a beneficiary of the purchase was the primary card holder, then Section 75 does apply. For example, if a wife as an additional card holder paid for home improvements or a television, then it would be covered. But if a wife as an additional card holder bought clothes for herself, then they wouldn’t be covered.

Thanks
Have just found the following site with good coverage of this problem:
http://www.choose.net/money/guide/faqs/section-75-additional-cardholders.html
Of course S75 was never designed with CC in mind and there layes the problem.

Thanks for the link. But even this info is ambiguous i.e.
Where Section 75 does NOT apply……..
“and in some instances where a third party is involved, such as if you buy from a travel agent, rather than directly from an airline or holiday company….”

But further down:
“It’s not unusual for a business taking payment to be acting as an agent for the actual supplier, for example buying a flight through a travel agent …”
In these circumstances Section 75 should still apply and you should be able to claim against the credit card provider.”

And the section on PayPal is full of “mays” !

The Credit Consumer Act needs ammending to clarify these issues – are Which? campaigning on this issue ?

Any transaction involving PayPal is definitely excluded from Section 75. The previous thinking was that if you had bought something with a credit card via PayPal without using an existing PayPal credit balance, then you would be covered, but I escalated this to the Financial Ombudsman and it was rejected, despite Which’s advice. I also sought expert legal advice from Which Legal Service. Which’s latest advice seems to suggest that if a commercial merchant uses PayPal as an acquirer (credit card processing agent), then it is covered. This would exclude many eBay purchases.

I got through a claim for a faulty laptop purchased through paypal by saying that they (Paypal) were at fault for not protecting me. Not sure how that actually worked, but thought I’d mention it as it’s worth a shot if you’ve got no other redress.

I thought it was normal practice for motor insurers to get people to check everything is up to date before accepting payment. At renewal time, insurers could discover motoring offences that have not been declared as they should have been at the time.

If I switch insurer I make a point of phoning the current insurer to tell them I will not be renewing, and giving the reason. I also ask them to remove my contact details to avoid possible unsolicited calls.

Lissa, when you first took out your policy, did any of the literature mention auto renewal as a normal feature of the service?

Try to challenge the cancellation fee through Trading Standards or the small claims court.

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

This case is a very good example of how introducing complexity can create problems. Best of luck to Isbjorn in winning the case.

On practical matters, I learned not to put the handbrake on when a car is in a garage. The brakes can lock on, particularly if a car stands for any length of time. It should be relatively easy to tow a car out of a garage, even with the handbrake on.

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”).

I’ve inspected my car (VW Golf 6) and found there is no door lock on the passenger side, so if the remote control fails the only possibility of entry is via the driver’s door. That means that if the battery is flat and someone parks too close, then my car would be unusable.

I have experienced weird and sometimes amusing behaviour of central locking systems on various cars including my own, and I hope that the safety systems built into modern cars are better designed.

There is no doubt that putting the key access on the passenger’s side is unsatisfactory and likely to create problems for owners. You are clearly determined to win your case, Isbjorn, and it would be good to hear how you eventually achieve this.

Isbjorn – The ombudsman has decided that the sleep mode is a feature and not a fault. I can accept that, though it would have been useful for Landrover to inform buyers about this feature.

The fault – as I see it – is having the key entry on the passenger’s side. It is perfectly reasonable to park a car with the passenger’s door close to the garage wall or other fixed object, but space must be left for access from the driver’s door. If Landrover want to sell cars in the UK they should make cars that are fit for their purpose.

I wonder how many other cars deserve Which? ‘Don’t Buy’ status because of design faults.

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.

One in a million chance of a remote control failing? You only need to have a flat battery in the remote control for it to fail. How many people carry a spare remote control or carry a spare battery and would be able to fit it? It’s not uncommon for remote controls to fail because interfering signals, and I experienced this once with my last car.

Some multi-storey car parks have concrete posts that block the use of the nearside door.

Your tale would make a very interesting TV programme.

I still cannot understand why the car could not be towed a short distance out of your garage. Cars are towed when their drivers break parking regulations, even though the brakes are on.

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…..

If a car is in gear it can be moved slowly because air leaks past the pistons.

A handbrake only works on two wheels. If there is a danger that the towing eye could break, the rear wheels could be raised and rollers put under them. If the car has been reversed into the garage, that would be harder because the braked wheels would be at the front.

In the 10 years I’ve had my Renault Espace both card-style keys have failed in the same way – the circuit board cracks near the buttons. So I have had to use the mechanical key in the passenger door to lock and unlock the car. Fortunately there is a good repairer available which avoids the exhorbitant replacement key and programming cost.

If wheels are locked you can drive plastic wedges under them that allows the car to be winched along the ground because of lowered friction.

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?

I was alarmed to find that my current car appeared to have no door locks but soon discovered that the driver’s side has a plastic cover that can be removed, revealing the lock. I cannot remember if the other side is the same, but will check tomorrow.

malcolm r,

Having commenced a Sale of Goods Act claim process, it is considered in the eyes of the Law that the consumer has rejected the goods; it would therefore be inconsistent, in the eyes of the Law, to continue to make use of the rejected goods and, indeed, continued use of them could very well therefore assist to undermine one’s claim.

More specifically, and potentially quite interesting in my case particularly, I was advised that having commenced the claim, then the goods (my car) become evidence and as such, that evidence must be preserved. The dealer believed that going via FOS could be quite a prolonged affair and so wanted my vehicle off their premises. But when I explained that the only place I had to keep the car, safe from the elements and the actions of other people, was within my garage, whereupon it would repeatedly get itself stuck and be again exposed to risk of damage through entry by force, the dealer understood this catch-22 and agreed to keep it. But they failed to properly look after it (damage to a door and trashed battery) and have denied responsibility for their negligence.

So, for any consumers reading this, keep rejected goods yourself, but make sure you maintain some independent proof that there has been no change/deterioration whilst in your care.

As to your other point, I am now trying the raise the profile of the pitfalls of keyless entry cars. As I hinted earlier, how many other brands and models has this barmy design concept migrated to as a result of co-ownership of manufacturers? To keep production costs down, it is quite conceivable that the manuafcturers buy-in a standard central locking control module from a limted number of manufacturers of this specialised product so, even without cross-fertilisation through co-ownership of brands, how many other brands/models of keyless entry cars are similarly equipped?

From my experience, I will never again buy a keyless entry car where the emergency access provisions are not located on the driver’s side of the car and I would advise consumers to be wary, likewise.

Recent news is that motor insurers are threatening not to insure Rangerovers because criminals have figured out how to reprogramme the keyless entry key fobs and thus easily steal these high value vehicles. Insurers, apparently, are insisting on the vehicles being kept in secure storage (= e.g. garage). So, are we about to see more people having their cars getting themselves stuck in garages?

Isbjorn, I understand your frustration and wish to get a sensible resolution. I would like to know whether it would have been possible to park your car in your garage and exit via the passenger door (even if this meant reversing in).

malcolm r,

Makes no difference whether one reverses in or not, neither the dimensions of the car or the garage change by doing so. The only solution along the lines you suggest is to position it within the garage with the driver’s door close up to the wall and exit via the passenger door. This means clambering over a high and bulky centre console/handbrake etcetera. I am 60 years of age, I hoped to keep the car well into my 70’s, how long will I be able to keep up these gymnastics? Why should I even have to entertain the idea (or any other contingency plan for that matter)?

Isbjorn, the only reason I asked was that if it were relatively easy to exit via the passenger door, the court might take a view that you have not helped the situation by not doing so. However if it is difficult, as you say, this should not be an obstacle.

The other issue that might harm your case is your unwillingness to park outside your garage. I suggest you would need to show evidence that this would be a problem. Do other residents park outside their houses, and do they suffer damage, for example?

I’m on your side regarding the design issue – cars should be suitable for the UK if sold here.

malcolm r,

What are garages for if not for putting cars in? If they are just for storing other things in, why do they come provided with a great big door at one end? I have a garage into which my second most valuable asset will fit and within which I can exit and re-enter the car conventionally. Short of the main vehicle battery going flat due to “inherent natural causes” a reasonable person, who can get out of and back into their car conventionally, would reasonably expect to therefore provide shelter for their car without fear of risk of subsequent damage to the car…..similarly, a reasonable person would expect to be able to contribute to extending the life of their most valuable asset by providing it with protection from the elements where they have a garage with which to do so…..

Isbjorn, agreed, but having found a problem putting your car in your garage a court may feel that while you negotiate your problem with the supplier you have not helped your situation if you refused to park the car outside. As I said, I sympathise with the design issue but wonder if perhaps you have not helped to mitigate the problem in the meantime.

Incidentally, I am told putting a damp car in a garage is not good for it. Urban (or rural) myth? I also find my garage much more useful as a workshop! It’s never had a car in it..

malcolm r,

It is all too easy to focus solely on the issue of garaging my car; this is what the Ombudsman did instead of listening to my extrapolation of what could happen in other circumstances, as you point out. My Landrover “resets” when the engine has been “raised to operating temperature” but, as there is no indication to me that it has definitely reset, then, for as long as I own the car, I have to assume the worst and be forever vigilant of where I park it and lock it such that access to the passenger door cannot be compromised.

If the car is only used for a number of short journeys it is conceivable therefore that one could be locked out anywhere, anytime. Indeed I supplied evidence of this, as one reportee on the owners’ forum reported having only driven a very short distance to a fueling station; when returning to his Freelander after paying, he found he was locked out. He was lucky, the passenger door was not obstructed.

Malcolm: it is worth checking the T&C’s of your insurance policy to establish the required location of your vehicle when not in use. Most people these days tend to use their garage for storage or workshops and some even go to the extent of renting one for that very purpose.

Beryl, it is a good point. I declare to the insurance company that my car is being kept on the driveway – one of the questions asked on the application form. I assume this is common to other insurers. However, if you declare it is garaged and then leave it on your drive and have a claim, I wonder where you stand? There may be good reasons why occasionally the garage cannot be used.

An interesting point Malcolm. I would assume it would depend largely on the type of car, the area you live in e.g high or low risk areas which may ultimately affect your insurance premiums. My insurance is due for renewal next month so it would be worth while checking this out when I do.

I used to say that my car was sometimes kept on the driveway even when I usually put it in the garage. I never put it away when it is wet because I did not want things stored in the garage to get damp. Now I keep the car on the driveway all the time and use the garage as a workshop.

Beryl,

Your comment prompts another generic issue arising from my claim experience:- I contacted Thacham to see if they would offer any independent support, but they declined to get involved. Perhaps not surprising as they are in the business of testing and assuring vehicle security systems for the motor insurance industry. Thatcham’s assessments do not include any criteria relating to how readily an owner can get into their car, only how good they are at keeping other people out. Perhaps a consumer lobby body should be lobbying Thatcham to include amongst their criteria the acceptabilty to the owner?

Beryl,

Two more issues arise from your comment:-

1) if one has to specify to insurers where you keep the vehicle overnight then presumably the premium is higher if you keep it on a driveway as opposed to within a garage. So, let’s see, what does that all of this mean? – ah yes, I’ve got a garage worth about £10,000 into which my £26,000 car will fit for protection but I dare not put my car in my garage, in case it renders itself incapable of being retrieved, so I have to park it outside, exposed to the elements and other peoples’ actions and I also have to pay extra insurance for the priviledge of leaving my car unnecessarliy exposed? Have I got something wrong there?

2) support for my claim from an independent entity? – when I asked the FOS if such an independent report could assist with my claim, this was summarily dismissed because “it is known what is causing the problem; we don’t see how an independent report will help”.

It would be interesting to know how Landrover defends having the single entry point on the opposite side of the car to the driver’s door, and also to establish if there are other manufacturers that have done this.

Regarding the practical matter of keeping the car in the garage, would it be possible to do this but leave the handbrake off, so that it is a simple matter to push it out of the garage if the problem recurs?

wavechange,

I have already challenged Landrover with your first point – their response is given half way down the first paragraph of my post of 5:40 pm on 01 November.

I wonder what insurers would say if a car was stolen by simply free-wheeling it out of a garage?

The principle point, and I am repeating myself from above, is that owners should not have to be devising and implementing contingency plans to cover what a reasonable person would consider to be a routine activity.

Sorry Isbjorn. I appreciate your frustration and wish that we could offer constructive suggestions, but you have clearly put in a great deal of effort. I totally agree that no-one should be forced to make contingency plans. There must be others who have suffered a similar problem.

I did a straw poll of cars as I walked down my local high street; where cars (generally older ones) did not have mechanical locks on both sides, for the newer cars it was roughly 50:50 which side the emergency access was on.

All two wheel drive Volvos have the emergency key on the left – when I challenged the sales rep with my Landrover experience and that I would never therefore buy such a Volvo, the best he could offer to defend his brand was that Volvo wouldn’t want their customers to be struggling with a manual key whilst standing on the side of the car which would put them at risk of being in the passing traffic stream. That was a good attempt at thinking on his feet and I know that because I knew, and he clearly didn’t, that all of the four wheel drive XC Volvo models have the emergency key on the right.

wavechange,

It’s not that I don’t appreciate suggested solutions – but I have already brainstormed them before embarking on my claim, to ensure that I wasn’t wasting mine or anybody else’s time.

I also made a compilation of other owner’s similar experiences.

Both sets of evidence were sent to the Ombudsman and were ignored.

So, getting back to the primary topic, being about making section 75 claims, – beware the Ombudsman, he/she may not function in the way one might expect.

Beryl,

I don’t mind going public at all, that’s exactly what I am trying to do.

With the Financial Ombudsman Service having let me down and going to Court likely to be an expensive and risky final formal procedural route, then publicity seems to be the only other avenue left to me.

I feel like I am fighting a one-man war (on behalf of millions of keyless entry car owners) over this design concept and how all of this trouble could have been easily prevented by the manufacturer.

One of my stumbling blocks is that the only immediate hard evidence I have to relate to, is the personal circumstances of my trying to exercise my moral, if not legal, right to afford my valuable property with the protection of my garage. People reading/listening to my grievance tend to “see” only this narrow aspect (“too niche” said the Rip Off Britain editor).

I provided the Ombudsman with a “cut and paste” assemblage of the reports of other Freelander 2 owners’ similar experiences on the owners’ internet forum, http://www.freel2.com (you need to register to see the content), but, again, this was ignored.

People seem to have difficulty envisioning the wider context of how other people could be denied access to their cars by keyless entry systems in many other everyday circumstances (just as it was pointed out for something as everyday and probable as key fob battery exhaustion, in conjunction with having parked the vehicle close to an immovable object such as a wall, fence, hedge, even a small piece of mundane and inoccuous street furniture like a litter bin).

The Ombudsman chose not to see the wider picture either, choosing to focus on my personal circumstances. I have concern that, if taken to Court, a judge will also rule that the bigger picture must be excluded and decide solely on the basis of my individual claim/circumstances (anyone could be forgiven for thinking that such would be the easy option and be less controversial than making a decision which would set a significant precedent).

Although SoGA does not discriminate regarding the nature of a “fault”, experience would suggest that it lets consumers down when it comes to a design fault. Which brings me back to my impression that the only way for consumers to get redress in respect of faulty or bad design issue is via some form of publicity to shame the manufacturer into doing something. This seems to be wrong and the likes of Which? should be thinking about campaigning how to improve consumers’ lot in this respect.

I think we may have to agree to differ on the usefulness of the sleep mode. Mmmmm, maybe shut down most of the ECUs to save battery discharging, but not the VITAL one that lets one get back into the car ? !

ECUs (Electronic Control Units) – cars are bristling with these now, all gobbling juice. One owner has reported walking away, having locked the car, whilst continuing with a mobile ‘phone call, set up via the car’s bluetooth. When he returned, the car battery was flat. I guess that because the call was not disconnected before walking away, the blue tooth ECU was left transmitting on full power trying, aimlessly, to maintain the connection with the mobile handset….another example of a feature which the manufacturer purports offers a “convenience”, ending up causing the owner problems…..

In the circumstances I can understand your view but even if there was no sleep mode you would not have been able to get into the car once the battery was flat. What your car should have had is key access on both sides. So should mine, and your story has alerted me to the problem.

By coincidence, I have been dealing with a similar problem. I do some practical work for a charity that has an 11kVA diesel generator for when mains power is not available. It has a computerised control system allowing timer and remote control and goodness knows what else. We don’t need anything other than the start and stop buttons but the machine was a very generous free gift. All the electronics makes a surprisingly large drain on the battery, so the generator will not start if unused for more than a couple of weeks. The quick fix was for me to fit a battery isolator switch.

My 20 year old Espace has remote locking together with a conventional key. This key opens UK driver’s and front passenger’s doors and also the tail gate. Much more sensible – why now restrict this facility to just one door?

Spot on.

I also have a 20 year old Mondeo. It doesn’t have remote locking, just reliable key operated mechanical locks on both front doors and the tailgate – simples. I keep it going because I am an outdoor enthusiast so, when I’m wet and cold and need to get into it, particularly somewhere remote, I know that I can.

I also made this safety aspect clear in my claim to the Ombudsman, who noted my concern, but that was all she said in the final decision. She didn’t argue that my concern of being stranded (and hence vulnerable to exposure) was unfounded, so doesn’t she care for a person’s safety/well being?

Unfortunately, manufacturers think they know best. First they removed full-size spare wheels and many have now removed the pathetic space-savers that would result in an MOT failure if presented for a test. With many models it is now difficult or impossible to change a blown bulb.

Doors and door locks can freeze up in winter, though I have never had this happen with both sides of a car at the same time.

wavechange,

I have previously many times left my 20 year old Mondeo parked up for in excess of two months, returned home and the old banger has unlocked and started, plenty of charge left in the battery, no problem whatsoever. Why can’t Landrover offer the same level of assurance?

One of the comments on the owners’ forum was that the most common reason for technicians to be called out to make entry by force due to the sleep mode is at airport car parks.

Isbjorn – As you have pointed out, there are electronic circuits drawing power when the car is parked. You cannot have a remote control locking system without using power. You said that your Mondeo does not have this system.

I presume that the need for the technicians was because the door lock was inaccessible rather than the door could not be opened with the key. Perhaps the Telegraph motoring chap might take up this issue.

A small solar panel could be built into the roof of cars at a negligible price and this would compensate for current drain when parked throughout most of the year. Obviously it would not help with a car parked in a garage.

I checked Honest John but couldn’t see any reference to this problem. worth writing to him (honestjohn.co.uk)

Isjborn, is this design issue common to all Land Rovers? Have you looked at Evoques, Range Rovers, Discoverys to see if their manual lock is only on the passenger side? Indeed, on any car? Batteries have a habit of going flat – interior light left on, duff battery, or whatever, so no doubt many people in your situation could come across the same problem.

Does everyone lock their car, though, when they house it in a locked garage?

wavechange,

1) Your presumption re technicians is correct

2) As I said at the very start, Landrover said one is locked out after a period of time, so topping up the battery charge will therefore be ineffective. No doubt you may now be tempted to suggest keeping a log of time elapsed and so anticipate and prevent – nope, won’t work because the time is only approximate, but more importantly, it is impossible to know when the clock starts and so when to start counting from. As I said at the very start, the “black boxes” provide no information to the owner, who is therefore totally blind as to the imminence of car going into the sleep mode – ticking bomb – perfect booby trap. This is a fundamental core component of my grievance.

Access into it is a fundamental precursor to the use of a car – it must have an extremely high level of reliability. If safety features can be made mandatory on a car then so can essential features. Emergency access provisions should be made mandatory to be on driver’s side – bodies such as Thatcham, VCA, Which? etcetra please note.

3) I’m fairly sure that I have previously reported this to honestjohn, so it is disappointing if it has not been recorded for the benefit of others.

4) All other Landrover models I have bothered to look at have same plastic cap covered key on LHS. Discovery and Rangerover won’t fit inside a UK standard width single garage, so not relevant – folks of the social class who can afford such models are more likely to have a double garage. Evoque owners should be just as concerned.

5) I have already mentioned my straw poll of other brand/models of cars.

6) It is of no concern to my case if other folks want to jeopardise their insurance by leaving their cars in their garages, unlocked, nor if they don’t want to protect their cars within a garage – if they want to take those risks or waste that opportunity then that is their prerogative.

Isbjorn – The only problem I can see is the lack of a lock on both sides of the car. Having a single lock on the driver’s side – as on my car – is better but simply not adequate.

Having a sleep mode to shut off the central locking system and any other loads when a car stands for a long period is something that most people would find useful because it would give them more chance of starting their car. It would make more sense for manufacturers to fit a small solar panel on the roof and activate the sleep mode by falling battery voltage than by time. Solar panels are now widely used to keep batteries topped up on boats and RVs, so it only a matter of time before car manufacturers catch up.

That’s probably my last word on the subject and thank you for alerting us to the problem.

I nearly forgot to mention two further twists of interest to Landrover owners:-

1) owners should not anticipate that merely reaching around an obstruction such as a lamp post or litter bin to be able to deploy the emergency key blade in the lock will make everything hunky-dory – oh no, it’s not that simple. My experiments reveal that operating the key merely unlocks the passenger door, there is no effect on any of the other doors, which remain resolutely locked. Neither will any of the internal door or window operating buttons do anything. In order to get things back to rights it is necessary to subsequently insert the key fob into the docking station. This is adjacent to the steering wheel so, unless owners have exceptionally long arms, then it is necessary to make a full-body entry into the car, through the newly unlocked passenger door. Due to the thickness of the cross section of the door, it is necessary for myself to have not less than 52 cms of clear space outboard of the passenger door. I am slim, many other owners may well require considerably more free space. I leave it up to owners to decide for themselves what margin of distance they individually want to make sure they allow when parking near an immovable object.

2) I will never again use the “double locking” facility (press the key fob button twice). If “single locked” then, having made a gap, by force, through which to insert a device to get a hold onto the internal door handle, pulling said handle will result in opening the door. If the vehicle has been double locked then pulling on said door handle will not result in any effect. I presume at that point, that anyone finding themselves in such a position will have little other option than to resort to such methods as breaking a glass window and getting their arms, head, shoulders and maybe upper chest through, past any remaining jagged edges, to be able to insert the key fob into the docking station.

Beryl, well spotted – I’ve never heard of this but what a great concept – sociable and constructive. Hopefully not just for oldish men, but ladies, younger people and those out of work to do something useful and to learn new skills. Menssheds.org.uk is a link that will also show where existing sheds are. Is there a shed near you?

I made a suggestion under another current conversation – “would you share…etc” – that existing college and school workshop facilities could be made available out of hours for those without space or tools.

It seemed to follow on from the other Which? topic ‘Would you share your car, house power tools’. Some spark in my subsconcious picked up on this I guess which prompted me to research further. The nearest Shed to me is approximately 25 miles away but looking at the map it seems pretty widespread and successful throughout the UK. Mike Jenn should be congratulated on his entrepreneurship I think.

I agree it should be available to all ages, providing an opportunity for the older generation to pass on their acquired skills to younger people and a social gathering at the same time.

Thanks Beryl. If I was not already involved in working with others on practical matters I would certainly be interested. As Malcolm says, it’s important not just to involve old blokes.

Cornish,

I have eliminated BMW from my short list of possible replacements for my Landrover Freelander:- the BMW models I was interested in didn’t have a spare wheel, not even available as an optional extra. Instead they depended on run-flat tyres. These are only good for about 30 miles after a puncture and many areas I visit are more than 30 miles from a garage. Also I think they are non-repairable and about 2x the price of “normal” tyres – think about it before you buy….