|Know Your Rights|
Another fine mess you've gotten into? Wendie Pearson can help you out
WHEN DELVING into the muddy area of consumers' rights it is best to heed Julie Andrews' words of wisdom: "Let's start at the very beginning. It's a very good place to start."
Mind you, waving huge bags and umbrellas and singing at the top of your voice is unlikely to get you very far when faced with the sharks' teeth bared at you by the World of Retailing.
How to Put Things Right, a leaflet issued by the Office of Fair Trading, tells you how to safeguard your interests in advance. It tells you to keep receipts, stop using faulty goods at once and tell the shop immediately if something is wrong. Jim Spinks, of the Trading Standards Authority at Croydon, says: "The length of time you wait is important and the longer you wait to do something, the more the law says it's your fault. But if you have a problem, it's the retailer who's responsible for putting things right, not the manufacturer - unless it's a manufacturing defect."
Basic to the law is the Sale of Goods Act, which says that if the goods do not work properly or break down within a few months you are entitled, in most cases, to your money back.
"Most shops want to do a repair or offer you something else, but it's up to you. If it's not as described, for instance, you're entitled to your money back," says Spinks.
The law has three rules. Goods must be of merchantable quality, not broken or damaged. However, if goods are very cheap, second-hand or 'seconds', you cannot expect top quality.
Secondly, goods must be as described, and that applies to descriptions given on the package or by the retailer when you buy. Thirdly, goods must be fit for their particular purpose.
What happens if you buy a cassette recorder which was unable to load software properly but was more suited to playing music? "Awkward one," Spinks says. "If the purchaser went to a specialist computer shop, it would be taken that they had implied use of computer tapes. But if they had bought it at an ordinary department store, generally the purchaser would have difficulty in taking any action because not all tape recorders would be fit for computer programs."
Spinks advises that you should say what you want the recorder for when you buy it - that at least would give you some protection.
All goods are covered by law including those bought in sales, and that applies whether you buy goods from a shop, street market, mail order catalogue or from door-to-door sellers. That means that if you buy computer games from a market trader you do, in effect, have the same rights as if you had bought from a shop. The problem here, of course, is finding the trader if he's upped and gone.
If any of the three rules have been broken, you should be able to get a cash payment to make up the difference between what you paid and the reduced value of the faulty item, or reject it and get your money back. If you both agree, you may get a replacement or a free repair. But remember - under those circumstances you are fully entitled to your money back and should not be talked into any other option unless it is what you want.
What you are entitled to depends on how serious the fault is and how soon you tell the seller. You forfeit your entitlement to anything if you examined the item when you bought it and should have seen the faults, were told about the faults, changed your mind about wanting something, did the damage yourself or got it as a present. In that last instance, the person who bought the gift must make the claim.
If you take a faulty peripheral back to the shop, you should ask for the manager, and keep cool, reasonable and calm. Explain your case. If you have no luck and the staff are rude, or unhelpful and won't let you get a word in edgeways, you should refrain from telling them where to go. Instead, contact the managing director at head office and check to see if the firm belongs to a trade association. If they do, the association may intervene in any dispute.
If you write any letters in connection with your complaint, send them by recorded delivery and keep copies of both your correspondence and theirs. The Office of Fair Trading also advises that you do not send the company any receipts or other proof of purchase, but only photocopies of those or reference numbers.
Whether you complain in person or on the phone, get the name of the person you speak to. If they refuse, which unfortunately some people do these days, get the name of their boss. If they refuse that, too, make a note of that along with anything else that is said or done as you may well need it at a later date. Always keep notes of what is said and done at each stage.
If things start looking rather grim and everyone in sight is giving you a hard time, soldier on and visit the Citizens Advice Bureau - CAB - or local Consumer Advice Centre, both of which are there to help you, and are listed in local phone books. They will take up the matter for you, but at the end of the day you may have to drag the offending trader to the County Court and sue them under the Sale of Goods Act, using the small claims procedure. A booklet called Small Claims in the County Court is available from the County Court or your local consumer advisor.
If you decide to go for that, CAB will help you fill in the forms. The fee is about 10 per cent of the value of your claim, with a £500 limit. If your claim is above £500, it means you can no longer use the small claims procedure although you can obviously still sue in the County Court, using legal aid if you can get it - details available from CAB.
By now, you may be wondering what the Trading Standards Authority gets up to. They enforce the Trade Descriptions Act and investigate false or misleading descriptions or prices. For instance, an advert quoting a micro's price at £399.99 is classified as misleading if it does not include VAT. That would only apply to consumer ads such as those found in Sinclair User. If a publication has a business readership instead, adding VAT onto advertised prices is not obligatory.
Watch out for retailers who try to lump on additional costs when you buy a computer. You might be told that you need a special interface or peripheral to make something work, which costs extra.
Many users are also unclear on the warranty situation, although readers of last month's Sinclair User should be more than clued up by now! Surprisingly, there is no legal warranty on repairs, according to the TSA, although in practice most repairers will provide one lasting about 90 days.
"If there's no guarantee on the goods, you can insist on repair or replacement up to about four months after purchase, but there's nothing laid down in law, as every case is different," says Jim Spinks.
"The rules on warranty are that it must be done in a workmanlike manner and at a reasonable price. If they don't do it properly, you can go back and tell them to do it again otherwise, you can get it repaired elsewhere and sue them for the expense." If you are unlucky enough not to get your goods back, you can sue for the value of equipment at the time it was sent to them.
If a company has gone bust, Spinks advises that you get onto the list of creditors kept by the receiver, who is in the local phone book under Official Receiver. Alternatively, try the local consumer advice centre.
With so many hardware and software companies going down over recent months, it is important to know where you stand if you have ordered goods from a company which has cashed your cheque, not sent you the goods, and gone bust. The companies concerned are too numerous to mention, but if you have ordered through a magazine, you should contact the advertising manager first, who can often do a lot to help.
Postal contracts, the kind you enter when you buy through mail order, are known to be a real pain, as you become an unprotected creditor when a company goes into receivership. Long words apart, that means you are the last category of person to get your money back - and even that depends on whether the company has any money left to give you.
Protected creditors are mainly businesses, such as banks or building societies, which will have asked for security before giving loans to a company. They are always paid first, and other businesses to whom a firm owes money tend to get what is left over, followed by Joe Public who often gets only an unwelcome overdraft for his trouble.
Lawyer James Campbell, of London firm Wilde Sapte, says: "Small creditors don't usually get much as there isn't usually a lot left and there's no recourse to the directors, either. There is a law going through parliament which makes the directors liable if they didn't act in a normal, prudent way. The new law will protect against negligence and provide a duty of care to people concerned with the company.
"The man in the street does have recourse in law, but if the company has no money, there's nothing he can do."
So what about companies which go into liquidation, leaving masses of people without goods and without their money back, only to spring up under another name often with the same staff and often selling the same kinds of goods?
The current situation, says Campbell, is that "you can sue one company, but unless you can prove a connection between the two companies, you can't sue successfully. You must prove the directors have taken assets or information into the second company from the first."
That said, anyone who has fallen victim to such a situation may as well hold their breath until October when the new Insolvency Act, should come into force. That, at last, will hold directors responsible - to an extent - for debts incurred by their companies.
|"Joe Public often gets only an unwelcome overdraft for his trouble"|
The Mail Order Protection Scheme is also there to help you. You are covered by this if you have ordered goods through a publication which is a member of the Newspaper Publishers Association - NPA - or Periodical Publishers Association - PPA.
Caroline Fruin, advice worker with CAB, says: "If goods haven't arrived within 28 days of the money being sent, the client should write to the advertising manager of the individual publication giving full details. If the advertiser has gone bankrupt, the client will be notified and must submit a formal claim together with proof of payment.
"If the advert was in a newspaper, the final claim must be made within three months of the advert appearing or within two months, in the case of a magazine. With a postal contract, a contract is made when the firm accepts your offer - in other words, when they write to confirm the order or when they send the goods to you. Cashing a cheque is acknowledgement of that order."
The Association which covers mainstream publications such as Sinclair User is the PPA, and members of this must operate a mail order protection scheme. "We have an undertaking with the Office of Fair Trading which says that PPA members must compensate readers who lose money when they send off in response to a mail order advert," says PPA deputy secretary Gordon Hurst.
This covers people who do not get their goods or their money back if a mail order advertiser goes into liquidation. In comparison, the scheme run by the NPA also covers people who lose out if a company simply ceases to trade. The Department of Fair Trading is considering whether to apply this to the PPA too.
For those confused by the terminology, ceasing to trade and going into liquidation are two different things entirely. Currently, you cannot get your money back via a magazine, unless it is very good hearted, if a company has ceased trading - it must have gone into liquidation.
The message from Hurst is loud and clear. "If a mail advertiser goes into liquidation and you don't get your goods or your money back, then the publisher must pay the reader whatever money the reader has lost," he says.
A publisher at a major London publishing house confirms that a complaint must be sent to a magazine not earlier than one month and not later than two months from when the advert appeared, in order to be considered for compensation when a company goes into liquidation. "But if a company is still trading, we'll still do all we can to get the company to fulfil their orders," he says.
The publisher also says that readers should ask themselves a few questions before they send off for mail order goods. "If you can buy a product in Smiths, for example, at least you can view it first." The word on mail order seems to be caution.
The sort of proof you have to send a magazine when claiming compensation would be a copy of the coupon response - if you have one - photostats of cheques from your bank, which your bank manager should supply, relevant parts of bank statements and cheque stubs.
And now for the good bit! Credit card holders should be delighted to hear that if they pay for their goods using their piece of plastic, and the purchase is £100 or over, they are protected by the credit card company.
Under the Consumer Credit Act, which deals with any credit agreement where money is paid by the customer at a later date, the credit card company is liable for sorting out problems of that kind.
A Barclays Bank spokeswoman explains that the £100 rule applies to faulty goods and services as well as to companies which had gone into liquidation. In fact, you can claim even if the company has not gone down. "The customer should send us the claim and we take it over for them, investigating each case on its merits before we reimburse them," she says.
Finally, how long should you wait for mail order goods to arrive? Jim Spinks says: "There is normally a time limit on the order form, but it can take months. If there is no period quoted, you should write to them after 28 days asking them to state when the goods will arrive. If this isn't forthcoming, ask for your money back."
All advertisements are supposed to abide by the British Code of Advertising Practice which requires adverts to be legal, decent, honest and truthful.
The Advertising Standards Authority - ASA - publishes a case report, each month detailing complaints received from the public over advertisements, and Sinclair's name has come up quite a lot, although ASA's spokeswoman Rosemary Goodchild is quick to point out that Sinclair has now sorted out its affairs.
In Case Report 106, dated February 1984, it was stated that five previous complaints had been upheld against Sinclair over the 12 months prior to the report. That report mentioned the case of a £39.95 ZX printer which had been reduced from £59.95. A complaint from four members of the public was upheld in that the reduced price didn't include a transformer included in the old price.
In case report 109 dated May 1984, 20 members of the public had their complaint against Sinclair upheld. That applied to the famous QL delivery saga. The Authority concluded that the initial production targets "were not sufficiently high to warrant the campaign which had been undertaken."
More recently, in case report 121 dated May 1985, the ASA upheld a complaint over the wording of an advert for the Sinclair QL. The advert described its advanced SuperBasic language as "the most powerful Basic ever devised." Other forms of Basic were considered more powerful than SuperBasic in certain respects.
Last of all, don't bother approaching the Consumer Association if you have a problem, as they will tell you in no uncertain terms that you have got the wrong place. In fact unless you're a real masochist keep as far away as possible.
Despite the fact that the Association publishes the excellent magazine Which?, two separate spokeswomen, who both refuse to give their names, say they have never even heard of the Consumer Credit Act.
One says: "We don't answer questions from the public. People pay to join us. I'm not a lawyer, I can't answer legal queries, I can't give you any details and if people want advice they should contact the Citizens Advice Bureau."
A full copy of the British Code of Advertising Practice is available from the ASA at £1.80 including postage and packing and is also available from. libraries, Citizens Bureaux and so on. The code does not apply to broadcast commercials, though, as television and radio advertisers are subject to a separate, closely related code administered by the Independent Broadcasting Authority.