You can claim your cashback, even if you didn't stick to the rules!!!!

renhoicuk · 26th January 2007, 15:22

I got a phone through OneStopPhoneShop. As you all know there are very strict rules to claiming your cash back. I was not able to fulfil them and they therefore offered me nothing!

But the law is on our side, even if you didn't obide by their unfair rules. The terms and conditions that they use are unlawful as they are:

5. (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

There is also a precedent case on strict conditions for obtaining cashback where the FSA decided on the side of the consumer.

I have taken my small (£100) claim to small claims court, explained to their solicitors my case, and they gave in, after placing a defence, offering me all my money + court fees.

Don’t let them con you out of money even if it’s only a few £100.

If you need advice or templates please le me know, only to happy to help.

buzby · 26th January 2007, 16:03

This is a dangerous game. An agreement remains one, and if you fail to comply the seller is in pole position to reject the claim - assuming they've not gone bust. For those firms that receive a legal challenge, it may be cheaper for them to settle rather than pay soliciutors 4 times that amount to win in court. This strikes me as using bullying tactics - if you can;t play by the rules, don't play at all.

renhoicuk · 26th January 2007, 16:24

The thing that strikes me the most is how the rules seem to be set up to increase the probability that a customer will not be able to make any claims.

This is not fair. They are making money by trying to cheat customers.

I thought that this case would fail. However, with more research I found that legal experts have acted on the side of the customer in other similar situations.

Providers are scared of taking this to court against a well informed claimant as a judgment would set a precedent that could potentialy harm their business model.

If they offered you the cashback don't let them get away without paying you because of technicalities.

the green bowl · 28th January 2007, 00:05

Good Evening!

I'm considering embarking on a lengthly process to recoer over £300 from Orange and/or the Carphone Warehouse.

Is took a one-year contract with terms being that I pay the normal (approx. £30-£35) monthly charges then I can claim back the money by sending in various bills (the contract was advertised online as £4.99 per month). I neglected to return any of bills (my own silly fault I suppose) and have since lost the original documentation, I still have the bills though. This contract ended in October '06 so I'm passed the 60 day limit for returning them. The staff in Carphone Warehouse are indiferent and I've spent enough time & money trying to speak to someone at Orange. Do I have a chance on this one?

buzby · 28th January 2007, 19:38

Quote:

Originally Posted by renhoicuk

This is not fair. They are making money by trying to cheat customers.If they offered you the cashback don't let them get away without paying you because of technicalities.

This is a game - in much the same way snakes and ladders is. There is a set of rules, you stick to them and you receive the promised benefit (if you're lucky). If you break or misunderstand the rules, you've lost out and the game ends.

Cashback deals are not some new invention - I recall them being developed over 20 years ago and they all sounded too good to be true. Counting on the number of people who enter into them and are unable to make a claim because of a simple mistake, the error is theirs - a shame, but the whole point of the promotion was to entice you to take the goods or product advertised. The firms are not there simply to risk their profitability by feeling generous, thinking "Awww, he's a niuce guy,let's give him back all the money he paid even though he forgot to send the bills on time."

These firms COUNT on people being attracted by the offer then falling by the wayside by failing to complete ther terms- never mind those that write the terms in such a way as to genuinely mislead and make collecting on the cashback an impossibility. It has nothing to do with fairness, it is playing the game resolutely and with determination.

buzby · 28th January 2007, 19:42

Quote:

Originally Posted by the green bowl

Good Evening!

I'm considering embarking on a lengthly process to recoer over £300 from Orange and/or the Carphone Warehouse.

Is took a one-year contract with terms being that I pay the normal (approx. £30-£35) monthly charges then I can claim back the money by sending in various bills (the contract was advertised online as £4.99 per month). I neglected to return any of bills (my own silly fault I suppose) and have since lost the original documentation, I still have the bills though. This contract ended in October '06 so I'm passed the 60 day limit for returning them. The staff in Carphone Warehouse are indiferent and I've spent enough time & money trying to speak to someone at Orange. Do I have a chance on this one?

'Fraid not. See my earlier answer. To have any chanve of completing the deal - this is one created by the retailer (and has nothing to do with Orange), if you cannot follow their instruction on how to claim the cashback, a scheme that is designed simply to get you to sign up and hopefully forget to complete successfully, you have successfully completed the process they ultimately expected you to achieve - to fail. The best thng to do is learn for the experience, and treat such schemes with distain and not enter into them.

the green bowl · 29th January 2007, 01:16

Many Thanks Buzby.

As I said, I was not at all confident about getting this money back so it's not too disheartening. Needless to say I haven't entered into one of these schemes since and do not intend to in the future.

meagain · 29th January 2007, 04:35

Isn't setting up a contract in the hope that the other party fails to perform contrary to the requirement of good faith?

rosiecotton · 29th January 2007, 10:16

In order to prove that the terms are unfair, they need to be unreasonable - for example, in one case the Cashback company asked for documentation of bills by a date which was before the customer had even received said bills. This is clearly beyond the customer's control and there was nothing they could reasonably have done to fulfil those terms.

However it is unlikely to be seen as an unfair term if the customer could reasonably have complied with it.

I have seen cases of both types and conferred with the OFT Unfair Terms department on this issue, and this was the general feeling.

renhoicuk · 29th January 2007, 11:19

Buzby, do you work for one of these phone companies?

Yes, you can get your money back (from the retailer not Orange). It is a risk, but it is possible and it has worked for me.

The trick is to make them understand that you will take it to court, you know the legal system well and you have done your research.

These terms are unfair. If you do not believe me then please see the interpretation of the FSA (I know they are not regulated by the FSA but interpretation of legal experts that can be used in court) of such terms relating to an insurance company with terms making it difficult to get your cashback:
http://www.fsa.gov.uk/pubs/other/axa_undertaking.pdf

Larger companies doing this scam (e.g. carphonewarehouse) know full well that what they are doing is unfair and if this is taken to court there is a good chance that they will loose. If they did, this would set a precedent and would harm their entire business model. Furthermore, they know that this is an expensive process when taking into account legal fees. For them, if they have any sense, it will be better to settle this out of court.

It is a risk for you to loose more money, but I say don't let them get away with it.

rosiecotton · 29th January 2007, 11:54

I doubt Buzby does, he's just speaking sense. I certainly don't work for them and I agree with him entirely. I work in an area where I see cases like this on a regular basis, and not all of them could be considered unfair by any means.

If a consumer has had a reasonable chance to comply with the terms of the contract and has simply failed to do so, they cannot then rely on the term being classed as unfair. Why is it unfair?

The link you provide gives rulings on cases entirely different to this type of case - it involves insurance companies varying terms after the contract has been signed, so I don't see the relevence.

As I said, having consulted with the Office of Fair Trading Unfair Terms section on several occasions, the general opinion is that if a consumer can reasonably comply with the term then it cannot be considered an unfair term.

It is only unfair if it has been written in such a way that the consumer will not physically be able to comply and therefore automatically forfeit the cashback - such as giving them too short a time to send in copies of their bills etc, then saying they were too late.

On the other hand, sSay you have a case where the consumer has negotiated a deal with the trader where they will receive cash back after they return copies of their bills by a reasonable date. I fail to see how on earth this can be classed as an unfair term.

renhoicuk · 29th January 2007, 11:59

Sorry!!!!

You are right, wrong link!!!

It's this one:

http://www.fsa.gov.uk/pubs/other/axa_undertaking.pdf

renhoicuk · 2nd February 2007, 15:51

Has anyone else tried claiming back their cashback through small claims court?

How did it go?

buzby · 3rd February 2007, 15:28

That could be throwing more good money after bad, even assuming they're still in business and plan to defend, if you did not complete your side of the agreed arrangement, you could be held liable for their costs if you did not follow the rules to the letter.

meagain · 3rd February 2007, 20:36

Precisely - the worst case is that you end up spending anything up to £300 filing a claim, default judgement, and warrant only to find yourself unable to collect.

consumer100 · 12th June 2007, 22:59

Hello renhoicuk,

i am currently in a similar position with another online mobile phone company and would be extremely grateful for any help, advise or templates that you may have. Please could you contact me via the CAG mailbox, so that i may get some more details, thank you in advance.

complete · 20th June 2007, 15:27

All that is asked by someone from one of the reputable companies, is that to claim their cashback is for them to send a copy of the required invoice, within a certain period of time (usually 30 days), and to have kept their payments up to date, stayed on the same tariff, and then they will get their money back.

If they choose to send the claim by normal post, or forget to claim, then that is the persons responsibility and they have lost out.

If however, the T's & C's are unfair, and hard to fullfill, the company should be challanged.

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