Brief cases: fighting a £950 cancellation fee

It’s an intriguing fact that this is the very first time I can recall seeing Which?’s legal advice that you can be charged for returning something that you’ve decided you don’t want and that you can also be charged a cancellation fee.

I notice, also, that some contracts are excluded but I think that what Which? should do is create a flow-chart that covers distance-selling returns. Tort law is well named, since it can prove tortuous indeed to navigate the labyrinth of regulations, precedents and legal niceties and Which? rightly makes education on this a priority. But the flow chart would be very useful as would a comprehensive list of excluded contracts and, most importantly, precise and accurate guidance regarding return costs.

We use Amazon a lot, and we’ve not experienced any issues when returning items. But that’s dealing with Amazon, and their Market-place sellers are a different issue. Normally, they’re pretty good, but I have encountered one case where they attempted to charge me for returning a camera battery which I had cancelled, since they’d failed to deliver in the time stipulated. On that occasion Amazon picked up the ball and paid the company and I was able to keep the battery, but it shows that caution is needed when dealing with any distance selling retailer.

John Ward says:

The monthly Which? Magazine is becoming so full of interesting articles and reports these days that I hardly get time to read it all. I had not even opened the 84-page ram-packed September issue to see the Brief Cases advice on distance-selling returns so I thought I had better check whether there was indeed a flow-chart before commenting. Unfortunately, there is not, so I think that is a very good idea. It would be a very useful service to subscribers to send out with the magazine every so often a handy card containing nuggets of knowledge in a nutshell, especially on our legal rights. Diagrammatic presentation should be used wherever possible. I know it’s all there on-line but finding it can sometimes take too long whereas a set of cards could easily be consulted and relevant ones could be taken into shops.

dieseltaylor says:

I like Ian’s idea.

There is though the fundamental problem that the Article has left a huge hanging question about charges that can be levied. The article is not good.

Looking further:
” A deduction can be made if the value of the goods has been reduced as a result of you handling the goods more than was necessary. The extent to which you can handle the goods is the same as it would be if you were assessing them in a shop.”

So even reading Which?’s Legal advice provides not a glimpse of guidance of a retention of £950. So Which Legal? what is the answer?

Ian says:

Lawyers rarely say anything with absolutes. And that’s a problem for shoppers needing unequivocal advice.

dieseltaylor says:

Lawyers may prefer no to give uneqivocal advice however we are talking about a recent single Act and I think there is no wriggle room.

On the face of it the request for £950 comes into the impossible to enforce as there is no legal basis as all they did was take delivery and decide after the modest handling allowed that it was too heavy. The only feasible legal alternative for the company wanting the amount is it was a bespoke build . Taking into account when it was ordered and when it was delivered there is a whiff of special order.

I think part of the problem is that Which? Legal is AFAIK not licensed to practice and therefore I assume is not in a position to answer. Alternatively it never obtained the full details of the case. Thirdly perhaps it wanted a great scare-mongering headline. Or fourthly Branston’s were trying it on but Which do not want to say that.

Beryl says:

I think the whole idea of buying certain goods online, especially large items such as furniture, and chairs in particular, where the Goldilocks Principle applies is not recommended (see en.wikipedia.org – Goldilocks Principle), as DT and Ian have indicated above and this concept, (if not already) should be added as a legally binding statute when contemplating buying such articles.

The same principle would also apply to beds, mattresses and sofas when realistically, given the enormous choice on offer in the current retail marketplace, the chances of pleasing even the less discriminate of buyers is highly unlikely.

Personally I wouldn’t risk or welcome all the potential inconvenience and hassle experienced by Mr & Mrs Jones by opting to shop online for a whole dining set, so would hesitate to go down that route, but I am pleased Which? Legal Services were successful in helping them to reclaim their £2,556 refund.

John Ward says:

We have to accept that the costs to retailers of remedying customers’ injudicious distance purchases will impact on prices eventually.

While I have already said that I wouldn’t buy such an important and expensive item as a full dining set of table and chairs on-line, if I were a retailer I wouldn’t sell such a thing on-line either – unless the customer confirmed they had seen it in a store. I wonder how many customers would have put up with the dining set rather than seek to return it because the chairs were too heavy; if such a factor was so critical it begs the question why enquiries were not made before placing the order.

It is unfortunate for Mr & Mrs Jones to now have their furniture purchasing subjected to detailed examination in public but I assume Which? obtained their permission to publishing the legal team’s article in the September 2016 Which? Magazine and subsequently floating it into the jaws of Which? Conversation.

dieseltaylor says:

It is possible this story is about the Branstons Garden & Home which traded from Reading and was apparently a trading division of Stontronics Ltd. The Amazon shop-front appears to be closed and the web address is barring me from access. However perhaps there is another Branstons Garden and Home.

Anyway I think I have a clearer idea as to the likely course of events but provide the info for those who like the fuller picture.

They did do bespoke or special order – the furniture trade is notoriously risky and I imagine mail order legislation just made it very much more so.

“The exclusive Artisan sofa collection, handmade by Collins and Hayes in the UK is now proudly on display and available to buy with a huge range of fabric options to choose from. This collection has a hint of both the classic and contemporary to make it perfect for any setting.
Also in store are fantastic furniture collections from Italian brands Porada, Bonaldo and Cierre. Each different manufacturer offers a unique twist on contemporary furniture designs. Bonaldo is colourful, stylish and modern with some innovative use of glass, plastic and metal materials. Porada takes a more reflective view on contemporary furniture taking inspiration from traditional materials and designs that are often reflective and complementary of the past. Cierre are Italian leather specialists with a range of unparalleled leather sofas, chairs and beds in their collection.”

Beryl says:

I have checked Branston Gardens Reading website and their legal T&C’s which come under ‘directoutdoorliving.co.uk.’ They are however still quoting a “7 day statutory rights period or within our 30 day returns policy” – subject also of course to their own conditions of sale.

dieseltaylor says:

Good sleuthing – possibly. The site you mention is that of Connection Flooring Ltd which has no Directors that I can see of the Branstons company.

However the terms and conditions of the site you highlight appear to be in breach of the Consumer Contracts regulations. They also have a clause regarding packing material which looks wrong. : )

It used to cost me a fortune when I had to pay Co House a pound for every search I did. Thank goodness the Beta is free , if not totally reliable. A few months ago I found that some foreign related companies had not been added despite being registered and trading. It was to do with a company taking around 80% of a charities income in mailing, servicing and website costs. A figure not far off £0.5m

John Ward says:

It is certainly not unusual to have to wait several weeks for furniture to be delivered after placing an order, especially if there is a fabric or finish option. We don’t know whether this applied in the case of the Jones’s dining set, but the chairs might have been upholstered in a chosen material. It would seem almost certain that the goods were not supplied from stock and were possibly imported and also custom-finished. In which case, if Branston had paid attention to the legalities of their returns policy they could have legitimately charged a considerable sum for return of the furniture – to the point that the customer would ultimately accept the furniture together with the consequences.

John Ward says:

Such is the competitiveness of the furniture trade that firms are offering products they don’t have, and certainly don’t make, in order to stay afloat. It is virtually impossible to buy furniture on the high street unless you are near a big city where there are large department stores; it just takes up too much valuable floor space. Even major retailers that sell furniture [e.g M&S, John Lewis] only have a selection of their products available on the floor to inspect. A lot of sales are therefore garnered through a catalogue with quite limited product information. Websites often offer more product information but not reliably so – the weight of dining chairs rarely features. The remainder of the furniture trade is scattered around the ring roads and industrial estates and comparison shopping is almost impossible. Buying on-line, sight unseen, is therefore the norm and I question whether the Consumer Rights Act 2015, and its subsidiary Regulations, reflects the new reality and isn’t biased a little bit too far in favour of distance purchasing customers. This imposes weighty obligations and costs on sellers. Retailers can, of course, protect themselves from being landed with returned goods by simple and legal precautions, but they cannot, I believe, set terms and conditions that would vitiate the terms of the legislation which are there for the protection of consumers. Branstons charged the Jones’s £70 for the collection of their dining set; anyone who has hired a van or engaged a remover to do such a job will know that is very little indeed. A good case here for another handy Which? Advice card on what to think about and watch out for when ordering large furniture on-line or by mail or by telephone.

Ian says:

I couldn’t envisage ever buying a dining set without physically seeing it and trying the chairs. And if this shows one thing, it’s that companies need to make absolutely sure they’ve got everything right. This was probably a simple error on Branstons’ part but I suspect the dining set would have cost them dearly, unless it was pristine upon its return. But companies do make mistakes, and most of the time they get away with them. Sadly, it does seem that Branstons Garden and Home has now ceased trading permanently.

Beryl says:

Where does true legitimacy start and finish, which is why I quoted the Goldilocks Policy in my original post? For example, I was not originally happy with the leather recliner chair I purchased last year until quite recently when I decided to throw a warm fleece loose cover over it. To my surprise I discovered it was the cool temperature of the leather that was affecting the muscles in my back, causing much pain and discomfort.

Question is should i have requested a refund had I been aware of this anomaly within the 14 days cooling off period on the grounds the leather on the chair was too cold for my back?

It’s too late now to take retrospective action of course, but this is but one example of the varying and contrasting dissimilarities experienced by different people; and where exactly does the buck stop when making a complaint? Is it too light or too heavy? Is it too cold or too hot? Is it too hard or too soft?

No doubt Goldilocks would know the answer 🙂

dieseltaylor says:

Wise words.

BTW my mother-in-law claimed lanolin affected her adversely pointing the finger at her leather chair.

John Ward says:

My personal view is that, when considering any purchase, one must take into account any sensitivities or intolerances that could affect one’s condition adversely. The greater the expenditure the greater the need to research and examine the product and check its properties and specification. If a cold surface would be uncomfortable then that becomes a critical factor in the purchase and could be made the essence of the contract. Retailers have to accept the return of goods within the legally stated return period under the CRA but beyond that I would not expect a retailer to accept the return of a product if it was in all respects compliant with its description and fit for purpose except in regard to a criterion that the buyer had not explained to the seller.

John Ward says:

That’s interesting. I would not have thought much skin came into contact with the body of a chair while wearing normal clothing. My mother-in-law was more heavily upholstered than the furniture and felt nothing.

malcolm r says:

Sorry if this is lengthy and repeats what might have been said, but the Consumer Rights Act (BIS guidance for business) says:

“10. 14 day right to cancel for goods bought at a distance or off-premises
If you sell goods to a consumer at a distance or off-premises (see above for further information on what distance and off-premises contracts are) then the consumer has a 14 calendar day period in which they may change their mind and cancel the contract (unless an exemption applies – see below) 6.
Note that this right for the consumer to return goods within 14 days is different and separate to their rights if the goods do not meet the requirements of the Consumer Rights Act. The consumer may use this 14 day cooling off period to cancel without giving a reason, if goods were bought off-premises or at a distance.
The 14 day period starts the day after the consumer, or someone selected by the consumer, receives the goods. Where different goods within an order are delivered at different times the cancellation period will run from the day after delivery of the last item. If the contract is for regular deliveries of goods during a defined period (more than a day), the period will run from the day after delivery of the first item.
Once the consumer has notified you that they wish to cancel the contract, they must return the goods to you without delay and within 14 days after that notification, unless you have offered to collect them or the contract was off-premises and the goods were delivered to the consumer’s home and could not normally be returned by post due to their nature.
You should refund all monies received. This includes the outbound delivery cost, unless the consumer chose to have the goods delivered by more expensive means than the cheapest standard delivery option offered. If so, you do not have to refund the full outbound delivery cost, but only the cost of the standard delivery option which the consumer could have chosen. You must repay the consumer without undue delay, and no later than 14 days starting the day after you receive the goods back. If the consumer provides proof of return before you receive the goods back, you should refund without undue delay and no later than 14 days starting the day after you receive that proof.
You do not have to pay the cost of returning the goods to you, provided you told the consumer before the contract was made that they would be liable for such costs.
You have a right to deduct monies from refunds where goods show signs of use or unreasonable handling leading to diminished value. The consumer should be able to inspect the goods in the same way that they might in a shop, so you should not deduct money for checks necessary to see that the goods are as described. But you can deduct for damage or wear and tear beyond this, for example where the item has not just been checked but used.”

There are exemptions where you cannot reject in this way , including “Bespoke and customised goods”.

Ian says:

Thank for posting that, Malcolm. This information, distilled into a flow chart, is exactly what Which? ought to be providing. Having perused it it’s easy to see where shops fall down. They refer to ‘returning items’ frequently, but they often fail to make it clear that there are at least two totally different sets of regulations for returning: the distance selling regulations, which have been described very clearly, above, and the The Consumer Rights Act. Ideally, a flowchart incorporating both would be an invaluable tool for the consumer.

John Ward says:

Agreed Ian, and thanks Malcolm for reminding us of the guidance to traders. It’s not difficult really but I think there is a reluctance in some quarters to accept that consumers have these rights and that, for distance-selling, they are extensive and compulsory. They therefore make little attempt to draw consumers’ attention to them or enable them to exercise them properly.

We have had a nice long Conversation asking contributors to let Which? know which organisations are still quoting premium rate phone numbers for customer service. That has now trickled to a virtual standstill. Perhaps now it’s time for a new one inviting us to inform on those companies that are clearly in denial of consumers’ rights with distance selling or are just being coy about them.

malcolm r says:

There is a comprehensive flow chart in the following document; it covers the basic rights but not distance selling. However most aspects of the CRA seems to be covered, particularly by numerous examples to illustrate features. One important topic, in my view, seems to be avoided – durability. And they use the term “fault” where the act does not; the Act refers to failure to meet contract requirements. The document, like the previous “Sale of Goods Act explained” is aimed at traders and businesses and so should be very useful for consumers to use!

Department for Business innovation and Skills. Consumer Rights Act. guidance for Business. September 2015.
https://www.businesscompanion.info/sites/default/files/The%20sale%20and%20supply%20of%20goods_ALL_BIS_GOODS_GUIDANCE_SEP15.pdf

Lauren Deitz says:

Thanks for sharing this information @malcolm-r 🙂

That’s an interesting proposal @johnward that I think could be worth exploring, maybe you could propose this on the Ideas page? Also activity behind the scenes on premium numbers has quite come to a close yet, an update will come on this soon.

John Ward says:

Lauren – I have posted my suggestion in the Your Ideas place [not an easy thing to find]. I must say it seems like a suggestions graveyard so I don’t have much hope of a Conversation emerging. You say my suggestion is “interesting” and “worth exploring” so why isn’t Which? taking it forward anyway? I don’t get the impression that many people are voting for or against any of the hundreds of ideas put forward so they just lie there.

By the way, I couldn’t get the “Read more +” button on any of the entries to do anything other than take me right back to the beginning; I assumed it would provide more content on the issue submitted. If it’s just a “Go back to the start” button, why not call it that? Also I came across posts there that are clearly comments for inclusion in the relevant Conversation; in one case [12 July 2016] the contributor wanted help on a very difficult problem with a supermarket. I can understand how people can easily but mistakenly post a comment in the Your Ideas section instead of in a Conversation, but surely the column should be checked at least daily and any stray posts pulled out and put in the right place. The poor woman who posted it must feel terribly disappointed with Which? Conversation for ignoring her questions and her plea for help.

Ian says:

I suspect someone in the W?Cs management is extracting occasional comments from topics and posting them in the Ideas section. Several exceed the ‘permitted’ word count significantly but it has become something of a graveyard, I suspect.

Lauren Deitz says:

Hello John, thank you for proposing this as an idea. I do, however, apologise for asking you to propose this idea as in hindsight this was unnecessary, like you said you have already proposed the idea and it’s been picked up on by me. The reason why I suggested this is that ideas board is supposed to be the space where you can put forward topics for discussion and members of the community can vote on them to help determine which ideas to proceed with. That doesn’t mean to say that ideas that aren’t ‘picked’ are ignored though. As you say the idea left on the 12th July was a request for help which Erin replied on Convo, but we also had further correspondence via email. We can’t, and wouldn’t unless it’s a Community Guideline breach, remove any idea proposed, so this idea remains on the page until it’s archived. We keep a full archive of all ideas proposed, which are archived by the month and use these still to commission new convos or share with other teams so I wouldn’t want you to think that this is a graveyard for ideas – although we do need to get much better at following up on these ideas.

I do appreciate that this board hasn’t yet met it’s full potential and it would also appear that the ‘Read more’ button isn’t currently working so I’ll take a look into this. It is a priority of ours to check this regularly and we do. We have very recently gained additional support on Convo and you’ll see some new faces cropping up a bit more. With this help we’ll be improving not only the monitoring of the ideas page, but also speeding up the commissioning of new convos from ideas proposed by you and the rest of the community. Ideally I would like to be in a position where we have the capacity to publish at least one idea a week from this page.

John Ward says:

7 September 2016

Thank you Lauren. That all sounds promising. I think you are catching ‘Your Ideas’ just in time before it withers on the vine.

With regard to the 12 July comment I mentioned about a supermarket. I did subsequently notice, after a sizeable gap below, that there was a somewhat matter-of-fact response from Erin Elahi but I did not realise at the time that she was a Which? staffer – there was no such indication on her contribution although the content was a clue – I just didn’t pick it up. I am glad the woman who posted did get a fuller response and hopefully there was a happy outcome to the problem she raised.

I note that Erin has been around Which? Conversation for about six months and authored a couple of Conversations already so I am sorry I did not recognise her name in the Ideas section. I apologise for any disrespect she might feel I have shown.

Beryl says:

I do suffer a natural intolerance to cold which is related to inherited hypothyroidism for which I take meds. I keep a close check on my diet and weight but do suffer when the temperature drops as people with this complaint will know the thyroid gland acts as the bodies thermostat responsible for regulating its temperature. I hope that sheds some light on the issue.

Back to topic. I was conscious of the cold penetrating through my clothes whenever I sat on the leather chair wearing fewer and lighter layers during Spring and Summertime, and coincidentally do have an allergic reaction to soaps and creams containing lanolin but only when it comes into direct contact with my skin as John makes the point.

Happily the fleece cover seems to now to be overcoming the problem but can’t help wishing that I had been made aware of this prior to purchasing the chair which cost £1,800. I did visit the showroom and sat in the chair which felt very comfortable at the time. It was only after it arrived home did I notice the extent of the cold. My son also has leather chairs but they don’t feel quite so cold to the touch, so the problem must have some bearing on the type of leather used by the manufacturer.

Maybe my chair was made from the skin of an arctic polar bear and my sons from an animal of equatorial origins 🙂

User 66219 says:

This comment was removed at the request of the user

dieseltaylor says:

The genetic basis for illnesses etc is reasonably well-known amongst the interested and the afflicted. You may wonder why it is that drug doses etc seem to suit all sorts regardless of gender , weight and genetics ….

My father had the genetics of the Scndinavian and late in life the claw-hand syndrome kicked in
and if I could remember the medical term I would tell you! : )

Reverting to furniture. We have two great Scandanavian sofas – black leather and ply – which seem over the last couple of decades to have shrinking legs. This makes it harder to arise however I have seen, and at some stage will get or make, wooden blocks to fit around the current legs to boost them back up to a more normal height. In the interim I have plastic grid squares which have been put in use for in-law visits.

Given the grid is meant to be strong enough to prevent trucks sinking into grass they have stood up well to the treatment even without reinforcing earth or gravel. I recommend them.

John Ward says:

A point to consider when choosing leather seating is the underlying construction and upholstery material. This is rarely explained but could make quite a difference to the comfort factor and indeed the reflection or dispersal of body warmth. We have two leather armchairs that are incredibly cosy which might be because the top of the seat cushion is upholstered in a thick fabric rather than the leather which is used for the back, sides and arms, but even these areas have a warm feel. By contrast our leather-covered dining chairs have a cooler feel for at least ten minutes before they equalise with the body temperature as Duncan explains. As Beryl suggests, the kind of hide presumably makes quite a difference, and possibly also the tanning process. A large proportion of the leather furniture sold today is manufactured in the far east and the characteristics of the hides and skins used will correspond with the nature of the animals in those regions according to geography, climate, and diet. The tanning process involves the use of many different chemicals and processes and can leave the outer surface coated or textured in a way that would resist temperature equalisation. I suspect that few of the sales personnel in ordinary furniture departments know a huge amount about this, but shops that specialise or major in leather upholstery, and offer a swatch of alternative leathers, should be able to explain the differences and suggest the best type of leather covering to suit the buyers’ requirements. The picture is complicated by the tendency these days for shops to offer ‘special deals’ on stain resistant coatings, or, where the furniture is bought straight from stock with no choice of finish, for it to come already coated. It has traditionally been taken for granted that the best quality upholstery leathers are made in the UK and Ireland but they have probably been priced out of the market now except at the highest luxury level.

dieseltaylor says:

I had an interesting 30 minute plus discussion with a chap whose firm dealt with the exotic leathers used by some very famous car manufacturers. All so apparently for pop start skirts with leather having to be couriered to Hollywood expecially for a star. However aside from the trivia we discussed partnership law, compulsory purchase and where the best leather comes from. Fascinating stuff.

I have a theory that Which? would be a more valuable resource if in the CAwiki [yet to be taken up] if it included specialists giving their knowledge from inside the trade.

I have had interesting discussions on sewing machines, the manufacturers good and bad, and the current state of the market. Why there is a dearth of fabric shops.

I feel sure we could have a very good summary article on washing machines and perhaps even a blow-up diagram. A chat on longevity would be good. We might deal with the 60C wash that is not and how that came about. A story of the EU and the consumer bodies making a major error.

Could be a great resource to gen up on before going shopping. It is a wonder that no one has taken on the idea. I am sure the trust in the Which? brand would make it a reason to subscribe.

Beryl says:

I was very interested to read about the different types of leathers and the tanning processes involved in the manufacture of chairs. My chair is a Which? Best Buy HSL which is the main reason I bought it. The leather is of a firm and slightly tough quality but still feels cool, even today which is very warm and humid in my neck of the woods.

Duncan, apologies for the delay in answering your questions. As far as I am aware, there is no Scandinavian or northern hemisphere blood in my veins. My maternal grandparents originate from Wales and my paternal grandparents from Dorset, the latter having fairly dark hair, skin and eyes which I have inherited. I have often wondered what my paternal female ancestors where up to at the time of the Roman occupation, but no-one seems to know, and even if they do they are not saying 🙂

John I would like to learn more about the different stain resistant chemicals used in the coatings on leather chairs. Can you direct me to a website that will explain this process? For the record, HSL hail from Yorkshire and purport to manufacture all their furniture in the UK.

John Ward says: