Mobile Phone Contracts and the DSR

[TW]Fox · 17 Jul 2011 at 14:49

My knowledge of the DSR is usually quite good but I must admit to not being fully aware of how it relates to mobile phones purchased, with a contract, from an online retailer.

The DSR is designed to give you the opportunity to inspect the handset in the same way you would in a shop. In almost every shop, they'll remove it from the box and let you have a play, browse the web, see how it handles a few basic tasks.

Therefore, it is reasonable to expect that the DSR gives you the ability to do this at home once you receive the product, and return the product if you are not happy. But how does the airtime agreement complicate things?

This is taken from the terms and conditions of a popular online mobile phone retailer:

If you change your mind we will be happy to cancel your agreement and provide a refund of any amounts paid in
respect of the products provided:

You have not have used any of the products. Usage of your SIM card or handset signifies acceptance of your airtime contract and handset. Usage means, but would not be limited to using the network for example by
making or receiving a call, SMS or MMS, accessing the Web or downloading, or using any of the functions of the product for example amending settings, saving any data, adding a contact or appointment, taking a photograph or using an application.

It goes on to say:

all products must be returned undamaged and unused otherwise you may be charged for the cost of collecting them or the value of the missing, damaged or used items.

I have highlighted in bold the areas that confuse me with regards to the DSR.

So what is the deal here?

What happens if you order a phone online, you receive it, you remove it from its box, you have a 10 minute fiddle and decide that, actually, you hate it and wish to excercise your rights under the Distance Selling Act?

IE, you do exactly what you'd have done before signing in a shop, only at home.

Glaucus · 17 Jul 2011 at 16:46

IIRC services aren't covered by DRS so you wouldnt be able to activate or use the sim card. How the DRS would then apply to the phone if you wanted to test it with ought the sim card in it. Then I'm not sure. So another pretty pointless post.

flibbage0 · 17 Jul 2011 at 16:47

Don't think they would allow a refund.

Probably have to put up with it.

Best case scenario would be a similarly priced phone in exchange.

[TW]Fox · 17 Jul 2011 at 17:13

flibbage0 said:
Don't think they would allow a refund.

Probably have to put up with it.

On what legal basis do you form this opinion?

IamMed · 17 Jul 2011 at 18:28

I've returned handsets to both o2 and Virgin mobile after opening them and using them, they accepted them back with no issues at all and sent prepaid envelope/boxes for the phones.

All they charged was the airtime used whilst phone was in my possession.

a lot of the "refurbished" or "good as new" handsets seen on retailer sites are generally ones that have been sent back within the 7/14 day periods that most allow to change your mind, can't see many places refusing todo so.

mattyprice4004 · 17 Jul 2011 at 18:31

It's not often me and Fox sing from the same hymnsheet, but this has always made me wonder.

I think, from my knowledge, that these T&Cs do actually go against the DSRs in this case, therefore of course they are void.

Actually getting them to take it back would be another matter.

Robbo · 17 Jul 2011 at 18:32

Not all mobile companies allow you to return things like you've suggested.

I think nearly all of them have T&C wording like that though, and you should be ok. Don't put the SIM in though and make sure you do a factory reset before you send it back!

Jabbs on here is always buying and returning phones and I don't think he's had any issues.

Streeteh · 17 Jul 2011 at 18:37

While i know nothing of the legal aspects, i do know that when i signed up to a contract using phones4u they made it clear that they would not have any issue with me returning the handset used within 7 days as long as i hadn't used the sim for the supplied contract. Whether their policy was legal is another matter, but at least they made it so i could at least test the phone using my old sim knowing that i would have no issues returning it if i didn't like it.

[TW]Fox · 17 Jul 2011 at 19:09

Robbo said:
Not all mobile companies allow you to return things like you've suggested.

Hence the question, because it would seem they are legally obliged to?

Robbo · 17 Jul 2011 at 19:56

[TW]Fox;19603904 said:
Hence the question, because it would seem they are legally obliged to?

Yes, I think they probably are, otherwise why would they accept these returns. The T&C's are no doubt worded like that to try and fool people.

Glaucus · 17 Jul 2011 at 19:58

Robbo said:
Yes, I think they probably are, otherwise why would they accept these returns. The T&C's are no doubt worded like that to try and fool people.

As part of the SoGA/DRS at it should be against the law to print illegal T&Cs

Dabbles · 17 Jul 2011 at 21:39

I haven't read the DSR at length but my understading is that you can return items bought online/over the phone for a refund with absolutely no reason at all within 7 days of receipt. Now, whether or not you're still in the contract is another matter, but I assume the contract is based on acceptance of the whole package, including the phone and the terms of the contract, which are designed to fool; even so they are trumped by legislation (the DSR in this case).

PMKeates · 17 Jul 2011 at 22:00

This seems to explain:

http://www.tradingstandards.gov.uk/cgi-bin/glos/con1item.cgi?file=*adv0051-1111.txt

Check the "Exceptions to the right to cancel"

[TW]Fox · 17 Jul 2011 at 22:03

PMKeates said:
This seems to explain:

http://www.tradingstandards.gov.uk/cgi-bin/glos/con1item.cgi?file=*adv0051-1111.txt

Check the "Exceptions to the right to cancel"

Seems to suggest you have the right to return within 7 days provided you don't activate the SIM card.

Robbo · 17 Jul 2011 at 22:09

Hence my earlier comment that you should be fine as long as you don't activate the SIM card.

Jimbeam3678 · 17 Jul 2011 at 22:20

Surely activating the sim enters you into a contract? So, if so surely you have a 14 day cooling off period like with bank loans sky TV contracts ETC?

I'm no doubt wrong but thought i'd put my point across.

Also didn't some provider let you try there network for 7 days to make you got a signal at home work etc etc wasn't it t mobile ? Street check or something like ?

Tute · 17 Jul 2011 at 22:57

Could you not just drop a PAYG SIM in for the first few days, to help you decide if you "like" the phone?

thecremeegg · 17 Jul 2011 at 22:59

I had an issue with 3 over this, they refused to back down. In the end I managed to cancel due to lack of signal

[TW]Fox · 17 Jul 2011 at 23:23

Tute said:
Could you not just drop a PAYG SIM in for the first few days, to help you decide if you "like" the phone?

I dont know, could you? The T&C's seem to suggest that even turning the handset on means its non-refundable, yet the DSR disagrees strongly with that..

krooton · 18 Jul 2011 at 07:05

[TW]Fox;19605834 said:
I dont know, could you? The T&C's seem to suggest that even turning the handset on means its non-refundable, yet the DSR disagrees strongly with that..

It's companies playing silly buggers.

The phone and contract are separate things.

DSR applies to the phone, but not to the contract.

Technically (legally) you can play with the phone to see if you like it, and still send it back for a full refund within 7 days.

If you activate the SIM, you initiate the contract, which itself is not refundable, but you will still be allowed to exchange the phone for another model if you aren't happy with it.

Some advisors will toe the line of their T&Cs, because many people accept it not knowing about DSR, but you can argue/complain/demand to speak to a manager to get it sorted.