Right to a Refund

[quikshop]

I came across a first for me with buying stuff online; the retailer refused to refund my full purchase price because I'd "plugged it in" and therefore it was now considered "used".

I started selling online in 2002 I know that a customer who engages with a product, i.e. plugs it in, tries it on before deciding to keep it or not is entitled to a full refund (excluding shipping if the retail chooses not to refund the return costs).

The rule as I understand it is:

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.

I received the item, unpacked it, turned it on, decided it was not suitable and turned it off... no different to how anyone would assess an item in a shop.

Am I wrong!? Have the regulations changed to make the definition of "used" simply engaging with a product to see if its suitable? Any help here most appreciated.

 

[alan1302]

Is this B2B or a B2C purchase?

 

[quikshop]

Is this B2B or a B2C purchase?

B2C, ordered less than a week ago, arrived yesterday, refund requested last night, retailer gives free returns but wants to hold on to 20% of the product value because it is now "used".

 

[kulture]

What was the product? If it was, say a phone or computer, and you broke the manufacturer's seal, then they may have a point.

 

[quikshop]

What was the product? If it was, say a phone or computer, and you broke the manufacturer's seal, then they may have a point.

It's a Dyson Air Purifier, the packaging was removed and product assembled, i.e. air filter slotted into the base then plugged in to assess it. There was no manufacturer's seal. But interesting point, that's what I need to find out what the current regulations state.

My point is it was not used as designed, i.e. I did not use it to change the air temperature or purity in a room, I simply turned it on to assess it and decided it was not suitable.

 

[Mr D]

B2C, ordered less than a week ago, arrived yesterday, refund requested last night, retailer gives free returns but wants to hold on to 20% of the product value because it is now "used".

You have looked at the consumer regs relating to returns?
Just because a retailer wants to do something does not mean they can.

 

[alan1302]

You can return it and get a full refund on this one then.

Even if it had been a phone/computer you are allowed to turn it on to check it works/does what it is advertised to do.

 

[quikshop]

You can return it and get a full refund on this one then.

That's my position, the issue is the definition of "used" and that's the subjective term they are using to justify retaining 20% of my refund.

 

[Darren_Ssc]

[Assuming you paid by card]
With consumer purchases such as these I have found going through the credit card issuer to be a lot simpler and more effective. Even the odd b2b purchase made on my personal card has been resolved the same way.

 

[quikshop]

[Assuming you paid by card]

Debit card.

 

[scm5436]

The rule as I understand it is:

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.

I received the item, unpacked it, turned it on, decided it was not suitable and turned it off... no different to how anyone would assess an item in a shop.

Am I wrong!? Have the regulations changed to make the definition of "used" simply engaging with a product to see if its suitable?

Soooo, you're saying "anyone" would walk into a shop, open the box, take it out, remove all the packaging, assemble it, plug in the filter and then plug it into a power socket and switch it on? In the shop? That seems unlikely, and also I'm sure the staff wouldn't be too happy about it either. So I would say you have gone above and beyond what you would reasonably expect to do in a shop.

Also, according to the newer regulations, "If the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price. " (http://www.legislation.gov.uk/uksi/2013/3134/made 34.9)

So, did you really need to plug it in to establish the nature of the goods? You could see the size, shape, colour, feel the weight, build quality, you could read the description and specifications on the box - what did you actually gain from plugging it in and turning it on?

You claim you just turned it one and decided it wasn't suitable, but "did not use it as designed". So if you didn't use it as designed what part of switching it on suddenly made the product appear unsuitable?

I think the merchant can make a reasonable case that handled it more that necessary to establish the nature of the goods, and now the product is used they can't resell it as new. So the value of the product that you're forcing them to take back is diminished through no fault of their own. Why should they take the loss because of your actions?

You have looked at the consumer regs relating to returns?
Just because a retailer wants to do something does not mean they can.

The consumer regs allow this. Just because the consumer wants to do something doesn't mean they can.
​

 

[quikshop]

Soooo, you're saying "anyone" would walk into a shop, open the box, take it out, remove all the packaging, assemble it, plug in the filter and then plug it into a power socket and switch it on? In the shop?

No, the test is equivalence so in a shop a device would already be available to see in action. An example I purchased a laptop from PC World recently on the back of using it in the store.

Had I ordered the laptop online the equivalence would have been to "open the box, take it out, remove all the packaging, assemble it … plug it into a power socket and switch it on".

So as a consumer I have every right to engage with the product before deciding whether or not to retain it or return it for a full refund.

 

[Chris Ashdown]

Also, according to the newer regulations, "If the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price. " (http://www.legislation.gov.uk/uksi/2013/3134/made34.9)

So the purchaser powered it up to check the function and probably the airflow from the item, is that not "what is necessary to establish the nature, characteristics and functioning of the goods"

I am sure trading standards would agree a full refund is required

 

[kkfcXHzmCc]

You state:

"I received the item, unpacked it, turned it on, decided it was not suitable and turned it off... no different to how anyone would assess an item in a shop."

Why was it not suitable?

 

[deniser]

The nature and characteristics of the product are probably self evident from the packaging and instruction booklet but the "functioning" isn't, until you switch it on. For example it could be much noisier than you are expecting.

On balance, I think you would be entitled to plug it in to test it.

You can see it from the shop's point of view though. Would you have been happy with the product if you received it and it had obviously been opened by someone before you? If they have a B&M shop it's probably not so bad as they could use it as a display model and sell it for a discount but they probably can't sell it at full price if it has evidently been used.

 

[Mr D]

The nature and characteristics of the product are probably self evident from the packaging and instruction booklet but the "functioning" isn't, until you switch it on. For example it could be much noisier than you are expecting.

On balance, I think you would be entitled to plug it in to test it.

You can see it from the shop's point of view though. Would you have been happy with the product if you received it and it had obviously been opened by someone before you? If they have a B&M shop it's probably not so bad as they could use it as a display model and sell it for a discount but they probably can't sell it at full price if it has evidently been used.

Sometimes its not evident its been used.
Have seen ex display stock put back into box and sold - having done weeks as display model.
Company called Currys….

 

[alan1302]

You can see it from the shop's point of view though. Would you have been happy with the product if you received it and it had obviously been opened by someone before you? If they have a B&M shop it's probably not so bad as they could use it as a display model and sell it for a discount but they probably can't sell it at full price if it has evidently been used.

The shop had to follow the law though - so they may not be happy but have to allow the customer to test the product out even if they can't then sell it again as new.

 

[scm5436]

No, the test is equivalence so in a shop a device would already be available to see in action.
So as a consumer I have every right to engage with the product before deciding whether or not to retain it or return it for a full refund.

Some items, in some shops. But not every shop has every item unboxed and on display, and for those that don't it would not be appropriate to start unboxing it and plugging it in. So I guess then you get into an argument about would that particular product reasonably be expected to be on display in a shop that is likely to sell it?

The whole point of the consumer regs is not to give online buyers an extra set rights above and beyond what they get in shops. The consumer regs just recognise that if you are buying online you may be buying from a website that doesn't provide the full products description or has a lousy picture, and that without physically having the product you are unable to perhaps appreciate the size, weight, colour, texture or whatever and therefore you are entitled to see the product as it would be in a shop and therefore not be disadvantaged. But if it's not on display in a shop you don't get extra rights to go above and beyond that.

If you see the product in a shop, and there is no display model then you just kind of take your chances when you buy it. If you get it home and it's noisier or shinier or whateverer than you were expecting then you down really have any comeback. Yes the shop may have a policy that it'll take it back no questions asked, but it doesn't have to. It could just say, "you bought it, you keep it" (As long as it's not been mis-sold and works as described). So it's the same with online shopping - you have the same chance to examine it as you would in a shop - which in many cases will be simply that you get to pick up the box and look at the packaging.

The "functioning" aspect of your arguments is somewhat trickier... But that is clarified further down in the regs:

(9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

(12) For the purposes of paragraph (9) handling is beyond what is necessary to establish the nature, characteristics and functioning of the goods if, in particular, it goes beyond the sort of handling that might reasonably be allowed in a shop.

So in other words, testing the functionality is only "allowed" if you could do that in the shop. Which then of course comes back to the question of how you decide it the product would be on display in a shop... If there is one shop in the uk with that model on display does that count? Or would it be "if x% of shops that sell this item have it on display"...

 

[scm5436]

The nature and characteristics of the product are probably self evident from the packaging and instruction booklet but the "functioning" isn't, until you switch it on. For example it could be much noisier than you are expecting.

ok, but it doesn't count unless they might reasonably be allowed to test it in a shop.

So the purchaser powered it up to check the function and probably the airflow from the item, is that not "what is necessary to establish the nature, characteristics and functioning of the goods"

Not unless they might reasonably be allowed to establish the functionality in a shop.

...but have to allow the customer to test the product out

Nope. Not unless they might reasonably be allowed to test it in a shop.

So as a consumer I have every right to engage with the product before deciding whether or not to retain it or return it for a full refund.

No, you have as much right to engage with it as you would reasonably be allowed in a shop. If you go beyond that the seller can deduct any loss of value from the refund.​

 

[Mr D]

ok, but it doesn't count unless they might reasonably be allowed to test it in a shop.

Not unless they might reasonably be allowed to establish the functionality in a shop.

Nope. Not unless they might reasonably be allowed to test it in a shop.

No, you have as much right to engage with it as you would reasonably be allowed in a shop. If you go beyond that the seller can deduct any loss of value from the refund.​

And because many shops do display products outside of boxes then presumably the person can also open, examine, try etc when buying online.
They don't know what one particular shop some distance away has out on display.

 

[scm5436]

And because many shops do display products outside of boxes then presumably the person can also open, examine, try etc when buying online.
They don't know what one particular shop some distance away has out on display.

Indeed. So it really depends on the product - some will obviously never be displayed, some will almost always be displayed and others somewhere in between. For the ones in between I assume if it ever went to court they would just try to make an assumption as to whether or not it would be reasonable to expect a shop to have the item on display.

Then of course there is a difference between "out of the box and on display", and "plugged in and running". Again it depends on the product. So a laptop - yes, on display, plugged in and running. A new Intel CPU - heck no, boxed and sealed. An air purifier...? That's a tough one. Would you expect that to be on display and running in a shop? Or is it such a simple device that they'd just have a stack of boxes on the shelf?

I have to say that, unless it was on some special deal or there was something particularly clever/unique about it, I wouldn't expect it to be out of the box and on display. I mean it's basically a fan with a filter on, not exactly rocket science - do people really need to see it in action to make a buying decision...?

 

[alan1302]

Nope. Not unless they might reasonably be allowed to test it in a shop.

​

Which I would expect to be able to do with a product like this.

 

[Mr D]

Indeed. So it really depends on the product - some will obviously never be displayed, some will almost always be displayed and others somewhere in between. For the ones in between I assume if it ever went to court they would just try to make an assumption as to whether or not it would be reasonable to expect a shop to have the item on display.

Then of course there is a difference between "out of the box and on display", and "plugged in and running". Again it depends on the product. So a laptop - yes, on display, plugged in and running. A new Intel CPU - heck no, boxed and sealed. An air purifier...? That's a tough one. Would you expect that to be on display and running in a shop? Or is it such a simple device that they'd just have a stack of boxes on the shelf?

I have to say that, unless it was on some special deal or there was something particularly clever/unique about it, I wouldn't expect it to be out of the box and on display. I mean it's basically a fan with a filter on, not exactly rocket science - do people really need to see it in action to make a buying decision...?

Yes depends on the product if the law specifies that.

It does allow for some specific non returns for change of mind.

Fan with filter? Would need to hear it. And feel the effect of the fan.

 

[billybob99]

I mean it's basically a fan with a filter on, not exactly rocket science - do people really need to see it in action to make a buying decision...?

There are all sorts of special people in the world.

 

[paulears]

Is there also a contamination issue on this? If you plugged it in to see if it could remove say, cannabis particles in the air, then when you return it contaminated, is that filter not only fit for the bin? I don't think I'd like to buy a product that contained a second hand filter - so would they not need to replace it before selling it again? Earrings, underwear and the items get excluded from refunds - they could argue this device, by virtue of how it works needs to be sterile/clean. I don't think refunds on some things should be 100%

 

[Mr D]

Is there also a contamination issue on this? If you plugged it in to see if it could remove say, cannabis particles in the air, then when you return it contaminated, is that filter not only fit for the bin? I don't think I'd like to buy a product that contained a second hand filter - so would they not need to replace it before selling it again? Earrings, underwear and the items get excluded from refunds - they could argue this device, by virtue of how it works needs to be sterile/clean. I don't think refunds on some things should be 100%

Should all filters be brand new?
If I buy a new car from a garage can I insist they replace all filters? Or is it only household appliances?

 

[Alan]

Thats why retailers have a markup - to cover their costs, which include many things, such as premises, staff costs and manny others like stock shrinkage ( theft ) to having to give refunds and then having to sell as 'shop soiled'.

 

[MOIC]

What is the value of the 20% you’re arguing over?

If a filter has been opened and presume this was in a sealed poly bag, then as @paulears has stated, this is a valid reason to allow for the deduction due to it not being ‘sterile’ for return purposes and would need to be replaced before selling on.

 

[Newchodge]

If you see the product in a shop, and there is no display model then you just kind of take your chances when you buy it.

Or, if you have the sense you were born with, you ask a member of staff to demonstrate it for you.

 

[scm5436]

Or, if you have the sense you were born with, you ask a member of staff to demonstrate it for you.

Maybe we frequent different types of shops. I'm thinking of the last 5 shops I visited. Some of them had a few selected products on display, the rest didn't. I don't think any of those shops would realistically have open a sealed box of a product that wasn't on display just so I could see how it worked. Because if I didn't subsequently buy it, because I'm some kind of box opening time waster, then they'd have a product with an open box which no-one would want to buy (who would trust an open box on a retail shelf?)

Sure there are some shops that are based on a "demo" model - like curry's or pc world - but there are also a lot of shops that are based on a "stack stuff on the shelf in boxes and let people either buy it or not buy it". So again it comes around to what type of product it is and what sort of shop is likely to sell it (and if that sort of shop would demo it by default, or demo it on demand).

Thats why retailers have a markup - to cover their costs, which include many things, such as premises, staff costs and manny others like stock shrinkage ( theft ) to having to give refunds and then having to sell as 'shop soiled'.

But that's not how prices work in the real world, not since the internet. Now some idiot selling stuff out of their kitchen sells for a stupidly low price to get some sales, and everyone else has to cut their prices or nobody buys from them. So yes, they still have to pay for shrinkage and returns but there is less profit to cover it, so they are more likely to be stricter over the conditions of the return. Especially if they think the customer is being unreasonable (like ripping it out of the packaging, then sending it back as "too big" when the website gave the exact dimensions and warned that it was "really big" in the description). Sure, you may say retailers inability to properly price their products is their problem, not consumers. But it kind of is consumers problem when the retailers all start hardening their returns policies to compensate...

Let's be realistic for a moment. Under the old distance selling regs you could buy a product, throw away the packaging, and send it back in a shoe box and the retailer would have to give you a 100% refund. Now, they can start making deductions if you tear the box a bit while opening it, or if you examine it a little more than you needed. Do you think that change was because of small independent retailers kicking up a fuss? Or do you think the big boys came along and said "what the hell, we're not putting up with this" and put some pressure on... There may still be a few of the very big brands who will offer full refunds however much the customer is taking the micky, but more and more will just "take a view" (are you a regular, how much profit was there on this product, are you likely to ever come back even if you get a full refund, and have you behaved reasonably), and a lot of the smaller ones will just say "no".

But at the end of the day it comes down to "would you reasonably expect to see this product in action in a shop", and if that's not clear then the answer on whether or not the retail can withhold part of the refund is not clear. So it's disputed. If neither party is going to budge then you have a few options:

1) Stop arguing and just keep the stupid fan, or sell it on ebay
2) Send it back, take the deduction, and learn a lesson - most online companies terms and conditions will include the very same deduction clause (whether the retailer intends to use it or not)
3) Do a chargeback via your card company, but be aware that the card company allows the retailer the right to put their case forward and the chargeback may very well be rejected when the retailer presents them with the facts.
4) Get trading standards involved, but again be aware that they may side with the retailer once the retailer starts quoting the comumer regs at them
5) Go to the small claims court (now called something else I think), but again be aware that they may side with the retailer once the retailer starts quoting the comumer regs at them

If the retailer stands firm (and we would if we were them) then it just depends how far you want to go, and if it's worth it for the 20% of whatever the price was...

Over many many years and 10's thousands of customers, we've had a handful of disputes where we've refused a refund because we believed the customer behaved unreasonably (usually we refund because it's just good business, but some customers really do take the mick). One went to small claims court - they lost. A couple went to trading standards - we set them straight on the regulations and never heard from them again, and a couple of chargebacks - which the card companies rejected after we explained the facts and the regulations. So 3, 4 and 5 aren't guaranteed.

Also, as several people have pointed out - if the filter you installed was sealed and you unsealed it then potentially the retailer to tell you to stick your refund altogether due to section 28.3 -

(a) in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;
​

 

[Mr D]

Sure there are some shops that are based on a "demo" model - like curry's or pc world - but there are also a lot of shops that are based on a "stack stuff on the shelf in boxes and let people either buy it or not buy it". So again it comes around to what type of product it is and what sort of shop is likely to sell it (and if that sort of shop would demo it by default, or demo it on demand).

Yes I remember one of those shops. Toys R Us.
Stack stuff in boxes.

One of its competitors grew while TRU were having problems - the competitor did not act the same regarding stock. Perhaps a relevant impact on sales.
​

 

[quikshop]

Well the latest on this; Trading Standards believe on balance (suitably vague) the retailer is in breach of their obligations under the Distance Selling Regulations.

I'm going to try a couple of other avenues of enquiry, I don't really want to go down the legal route for the sake of not losing £99 retained deposit but if I make progress or it's determined that the retailer are within their rights I'll post it here.

 

[scm5436]

Well the latest on this; Trading Standards believe on balance (suitably vague) the retailer is in breach of their obligations under the Distance Selling Regulations.

I'm going to try a couple of other avenues of enquiry, I don't really want to go down the legal route for the sake of not losing £99 retained deposit but if I make progress or it's determined that the retailer are within their rights I'll post it here.

It will be interesting to see how it turns out - especially if the merchant fights it.

Bit confused about the "retained deposit" though. Do you mean you paid £99 for the item (so payment, not deposit)? Or did you put a deposit down (bit weird for online purchase)? And isn't it only £20 at stake if they are only withholding 20%...? or was the product price more than £99?