/ Technology

Brief cases: faulty smartphone

Smartphone

Vodafone initially reneged on its obligation to offer a replacement handset to a Which? member. So what should you do when a mobile phone manufacturer fails to fulfill its promise to customers?

Which? Legal member Robert Gregson took out a 24-month mobile phone contract, including minutes, data, text messages and a handset, with Vodafone on 2 August 2016. After four months, the handset stopped working. He returned it to a Vodafone store and two weeks later he received a replacement. This briefly worked, but then it performed an automatic software update, stopping the phone’s Bluetooth feature working, so Mr Gregson could no longer synchronise the handset with his car.

At the Vodafone store, Mr Gregson explained that he’d lost faith in the handset and that any replacement would probably have the same update problem. The store said that he would have to contact Vodafone directly. After weeks of calling and getting nowhere, Vodafone then only offered to replace the handset for a budget smartphone, not a premium one like his original phone, so he turned to Which? Legal for advice.

Our advice

We explained that this was a ‘mixed contract’ for goods and services. Here, ‘goods’ referred to his phone and ‘services’ meant his minutes, text messages and data. Under the Consumer Rights Act, when goods are not of satisfactory quality or not fit for purpose, you can request repairs or a like-for-like replacement with the seller bearing any costs. If the remedy hasn’t been provided within a reasonable time and without significant inconvenience, you can seek a price reduction.

Using our advice, Mr Gregson convinced Vodafone to replace the handset for an agreed model and he removed the software update option, finally leaving him with a working phone.

The law

The Consumer Rights Act 2015 requires that goods supplied on or after 1 October 2015 must be of satisfactory quality, fit for purpose and match their description. If this is not the case, you can request a repair or a like-for-like replacement. If this happens within six months, it’s generally assumed that the problem was present at the time of sale. After six months, it’s up to you to prove this was the case.

The seller can choose whether to offer a repair or replacement, and it must do this within a reasonable time, without significant inconvenience to you and at its own cost.

This article by the Which? Legal team originally appeared in the July 2017 edition of Which? magazine

Has your mobile phone ever broken down on you? Did you find it difficult to get a replacement? What did you do about it?

Comments
Profile photo of Ian
Member

I always find posts by the Legal team to make for mandatory reading. Perhaps more than any other aspect, this part of Which? is the most valuable.

Profile photo of Sophie Gilbert
Member

A lot of positive changes start with people having a dream. Imagine if everyone were a member of ?Which/Legal and systematically fought all the chancers out there…

Profile photo of John Ward
Member

. . . and if only access to justice was not so expensive and complicated. Even the ‘free’ routes via regulators, ombudsmen, Citizens Advice, and trading standards are not exactly straightforward.

Which? Legal, newspaper columns and individuals win Consumer Rights Act cases [mostly before court action] but it doesn’t seem to make much difference to the behaviour of retailers generally. What’s the answer? Naming and shaming might be one way of changing the culture.

Profile photo of duncan lucas
Member

They dont dream about it in America Sophie they get together and start a class action. Also they have solid support from the US Administrative Departments in enforcing legal action against actionable “hurt ” to the American public . Unlike here . If we are good enough to buy goods from big US companies surely we deserve the protection that American citizens have when their legal rights are broken otherwise we are just another Third World Country, in reality.

Profile photo of John Ward
Member

Does the USA have the equivalent of our Consumer Rights Act, Duncan?

This case concerned a UK retailer selling the product and service of a UK company. The customer eventually got satisafction but it was clearly a struggle and he had to involve Which? Legal. How would an individual in a similar situation get on in America [either against Vodafone or a US cellphone company]?

Profile photo of duncan lucas
Member

Vodaphone sold its 45 % stake in America,s telecom wireless business to Verizon Communications for $130 Billion as it was not getting its own way in the USA and if you check out it isn’t getting its own way in Australia. I will check into other US cell-phone providers John .

Profile photo of Ian
Member

The USA is fairly complex in terms of Consumerism. Individual States have their own laws, there are also Federal laws and the Federal Trade Commission is established to protect consumers.

https://www.ftc.gov/about-ftc/bureaus-offices/bureau-consumer-protection

Profile photo of John Ward
Member

Don’t do a lot of research, Duncan. I was just wondering whether you might know how the same scenario set out in the Intro to this Conversation would play out if it happened in the shop of a cell-phone operator in America and they messed the customer about in the way that Vodafone did here.

Profile photo of John Ward
Member

Thanks for that link, Ian. I like the very direct language used on the FTC website.

The USA seems to have very good top-level policies and enforcement agencies dealing with major commercial misbehaviour. I am not sure how much support an individual citizen gets when their rights are being ignored or denied – it’s not always possible [or economically worth while] to undertake a class action process as so many cases are unique and if they have to be dealt with under the particular state jurisdiction that makes it harder to get widespread support.

I presume day-to-day enforcement of consumer rights is left to the County Sherriffs’ offices or the state administration according to the relevant state’s legislation. None of the people I know in the United States seems to have any direct experience and if they have a problem they take it up with the trader concerned accepting the outcome as par for the course. America is generally more litigious than the UK and seems to rely more on contract law for obtaining relief than on public statutes.

I should watch Judge Judy more perhaps.

Profile photo of duncan lucas
Member

Thats why they sold out to Verizon John , apart from the competition , US customers answered back and didnt take no for an answer , too much adverse publicity and ,as you know , in the USA everything is publicised especially if its an American citizen having a hard time from authorities. Although the US is a massive country the built in mind-set of the whole nation is decidedly parochial, clannish, neighbour next door, good ,ol boys type of thinking so just imagine small village thinking where is one person has a problem 5 minutes later its known at the other end of the village . Americans are VERY vocal.

Profile photo of wavechange
Member

Like Ian and Sophie, I’m always interested in articles about how Which? Legal helps members take on companies that have let them down.

Which? has some excellent advice on how to take action when let down by a retailer but I don’t recall any examples of cases relating to poor durability of electrical goods – a very common problem with white goods. For example if a washing machine develops a fault after the guarantee period has expired, there is a possibility that the owner could make a claim for poor durability under the Consumer Rights Act (or Sale of Goods Act if purchased before October 2015.

It would be very helpful if Which? Legal would comment on this or provide a case study. Proving that a fault existed at the time of purchase does not seem relevant if the fault is due to use of poor quality components in an expensive product that could be expected by the owner to last more than a couple of years.

Profile photo of malcolm r
Member

I have been pursuing the valuable (in principle) protection offered in law by the concept of “durability” ( a product should last a reasonable length of time, given its cost – my words) , both in these Convos and directly with Which? Which? have never shown any real interest in promoting durability as a basis for claims – at least, not in response to my enquiries of them. Yet I have made 3 successful claims where products have not lasted the reasonable time that should be expected. And all three were dealt with fairly easily with the supplier/retailer, including Hotpoint.

Whilst we would all (I presume) like more realistic warranties/guarantees, they are showing no sign of being generally offered. Yet we have a law that gives us all protection for up to 6 years. Why do not Which? put some focus on this and help us use it?

Profile photo of wavechange
Member

Until Which? or another organisation looks at the durability issue I expect it will just be people like ourselves who put in effort who will succeed in making claims outside the guarantee period, though many who know nothing about the legislation have been given discounts against the cost of replacement products. Many have received goodwill payments when their cars have needed expensive repairs.

An increasing number of products are available with longer guarantees or affordable extended warranties and provided that the terms & conditions are reasonable, these offer a simple and practical solution for those who are not up to facing up to unhelpful company representatives. I wonder if Which? mentioned that Samsung washing machines were sold with 5 year guarantees for a long period or that John Lewis gives a 5 year guarantee on all TVs.

I’ve found Hotpoint helpful too. As manufacturer rather than retailer they obviously have no legal obligation but large manufacturers are keen that you buy their products again.

Profile photo of malcolm r
Member

@afrench, Adam, are Which? prepared to publicise the “durability” requirement of the CRA and advise consumers how they might use this? It seems to be given no prominence in the CRA guidance.

Profile photo of wavechange
Member

I have often thought about what would be fair to both the consumer and to retailers. When my car was nearly four years old it developed its first fault, an intermittent problem with the headlamp adjuster. I hoped that the dealer would sort out the problem when the car was in for service, but was just told what the problem was and what it would cost to have the control replaced – about £140, if I recall correctly. Had the engine or gearbox died I would certainly have made a claim, but I don’t think it’s reasonable to expect every part to carry on working for six years, the limit of my statutory rights under the Consumer Rights Act. Likewise, I would not expect every part of a washing machine to continue to work faultlessly.

The Consumer Rights Act is not a guarantee, but I would expect to be able to pursue a case successfully if a product was not economically repairable and had not been abused.

Profile photo of malcolm r
Member

The CRA overrides guarantees. Durability is related partly to cost – a cheap product should not be expected to last as long as one the retailer has charged considerably more for. The main thing with your headlamp adjuster is that although out of guarantee it was replaceable – unlike the parts in some domestic appliances. This is another are Which? should look at, at the very least advising us in their product reviews as to what can and cannot be replaced and the likely cost. My daughter has an Indesit dishwasher – came with the new-build house. After 2 years the heater failed; fortunately she had covered it with insurance. Now it is said the motherboard has failed and apparently is not replaceable, or not economically. The insurance provides a replacement machine. But what a waste.

On my Renault the headlight self leveller is linked by an arm to the suspension. The connection came apart – a ball joint I think – so my mechanic at the time fixed it. Otherwise it required a complete unit, costing around £200. Garages these days don’t seem to think of fixing anything, just bunging in a complete new unit at a cost.

Profile photo of wavechange
Member

To be strictly accurate, guarantees are in addition to your statutory rights. As it happened, when the main dealer investigated my headlamp adjuster they accidentally fixed the problem, despite quoting me for the job. Over Christmas I watched a family member sort out a faulty headlamp self-leveller on his expensive estate car and he added a protective shield to protect the mechanism from salt and grit. Replacing parts provides more certainty that a fault will be cured, making the need for a second visit less likely, which is one reason that car and washing machine repairers replace rather than repair parts. As I have suggested before, all white goods should come with a minimum of a five year guarantee. If the manufacturer was responsible for the cost of repairs during this period, that would lead to better quality products because the cost of one repair would more than negate all the profit made on the sale. Legislation is needed.

Member
Patrick Taylor says:
16 July 2017

I agree that the legal assistance and education to the public is an important facet of the Consumers’ Association work [Which?]

I should mention that Choice in Australia actually involve themselves, rather as some newspapers in the UK, with the problem and the resolution. This is where I feel Which? members are let down. Que Choisir allows for four emails to a local practicing solicitor as part of the general subscription.

The last time I used W?L it was about a cruise ship dropping a port as it awaited supplies from the UK. There was no recompense from the cruise line. You might think that as a trial case and that if affected many hundreds of people on that cruise and potentially thousands a year and that if taken on as a case it would be a useful addition to case law.

I believe in Austria a consumer body does provide an annual up-date of cases of interest to consumers and I fail to see that this idea could be anything but beneficial to subscribers to Which? magazines. Provided on-line and cross-referenced it would be very useful. And allowing the Citizens Advice Bureau offices equal access would be a nice gesture to a hard-pressed charity doing public benefit.

Profile photo of duncan lucas
Member

On the FTC,s own website they list instances of bill cramming where small amounts are added to phone bills that telephone companies supply reduced information about and for services that you haven’t ordered or applied for, as is the case in Vodaphone complaints . The FTC supply a direct phone number and online forms to fill in that they will check and take action against any company defrauding the American public.

Member
bishbut says:
17 July 2017

Keep naming and shaming these companies I decided some time ago Vodafone and some others must be avoided at all costs but get to know the companies in the same group owned by them because the can be just as bad if not worse

Profile photo of malcolm r
Member

According to the Consumer Rights Act (Goods) it is the consumer who has the right to choose repair or replacement, qualified by cost, as I read it:
“6. Repair or Replacement (1st tier remedies)
The right to repair or replacement entitles the consumer to have goods repaired or replaced free of charge to rectify the issue which does not meet the consumer’s rights. See the introductory section of ‘Goods: If Things Go Wrong’, above, for information on when these remedies are applicable.
This right is available from the time the consumer receives the goods (as above, the issue must have been present when the goods were delivered). So a repair or replacement is available as an alternative to the 30 day right to reject if the consumer wants to take this option.
The consumer may opt for either a repair or a replacement, but if the one that the consumer chooses is disproportionately costly to you compared to the other, or it is impossible, they will have to accept the other option. For example, if a consumer asks for a replacement of an expensive tablet PC worth £500, but a repair would only cost £50, the consumer would have to accept a repair instead.”

The intro to this Convo says “The seller can choose whether to offer a repair or replacement”.
Which (not “Which?”) is correct?

Member
Patrick Taylor says:
17 July 2017

How they do it abroad column : )

” The competition watchdog is taking Apple to the Federal Court over allegations related to the US tech giant’s refusal to look at defective devices already repaired elsewhere.

The Australian Competition and Consumer Commission (ACCC) says Apple misled consumers about their warranty rights by routinely refusing to look at devices already repaired by a third party even when the repair – usually a cracked screen – was not related to the fault.

“Consumer guarantee rights under the Australian Consumer Law exist independently of any manufacturer’s warranty and are not extinguished simply because a consumer has goods repaired by a third party,” ACCC chairman Rod Sims said in a statement.”

Take no guff in Oz. Perhaps we are all to supine about these matters and require leadership in boycotting firms which offer appalling service. You may say they are all as bad as each other but once one them starts losing thousands of customers a week the others may think that improving their service may retain more new customers.

Talk-Talk would seem favourite given the security breaches but then I am now expert of heavy user of mobile phones.

Profile photo of wavechange
Member

I recall manufacturers claiming that you would void your guarantee if you used third party ink cartridges. That’s fair enough if a (separate) print head is blocked by third party ink or damage is caused by leakage, but not reasonable if – for example – there is an electronic fault or other problem unrelated to the use of compatible ink cartridges.

I have some sympathy with the manufacturer being concerned about third party repairers, who could cause damage by dismantling products and the only fair solution is to have an independent expert give their view.