dfs *****Resolved*****

[sherlock18]

Can anyone give me some advice. My mother who is 83 and suffers from dementia bought a sofa and chair costing two thousand pounds. She has paid for it in full using her debit card. The sofa and chair are too big for her flat and she will be physically unable to lift herself up when sitting in it. I have asked dfs to cancel the order but they say my mother has signed an legally binding agreement. Is there anything I can do

[BankFodder]

Please will you tell us more about the circumstances in which the contract was made.

 

Did she visit a shop? Was it made at home? Was she visited by a salesman? How long ago was a contract made? How long after the suite was delivered did you contact the seller?

[rebel11]

Hi sherlock18

 

Welcome to CAG

 

I think we can deduce some of the facts, you really need to give us the full story.

[sherlock18]

My mother went to dfs store in liverpool friday 1st august and placed an order. As far as I can tell she paid a deposit but as she is confused I am not sure. She went back to the store on saturday 2nd august and paid the full amount by her bank debit card. I have the receipt for £2678. I tried to cancel it on the saturday morning before my mum returned to the store but I was told by dfs it was a legally binding sale. Yesterday I rang dfs again and when I eventually spoke to them I was informed that the order had been sent to the manufacturer and it was not possible to cancel the sale because if they did dfs would be left with a 3 seater sofa and a chair they were unable to sell because their furniture is made to an individuals specifications. However they did offer me the opportunity to come to the store and choose another sofa and chair. When I pointed out to them that this would still leave them with a set of furniture they could not sell what was the diffence between thier offer and just refunding the money to my mum dfs did not reply. My mum already has furniture that is less than two years old so does not even need a new suite and because she believes that dfs sold her extras she did not agree to such as cushions and stain cover although because she is confused I cannot be sure of this she does not want to speak to them. I hope this clarifies the situation for you

[BankFodder]

Thank you.

 

How obvious is it that your mother is confused or not fully in command of her situation?

 

Why was she allowed to go on and pay the outstanding balance even though you were trying to cancel.

 

You had notified them of the cancellation. What happened that she was then permitted to go on and pay the outstanding balance?

[sherlock18]

Thank you for your prompt reply. If you were to speak to my mum it would be very quickly become obvious she was confused certainly less than the length of time it would take to sell her furniture. When I had rang up on the saturday morning I only spoke to the receptionist who told me the contract was legally binding I then rang dfs complaints dept I was told they could not deal with my complaint because it was not in my name so I needed my mum to gave her permission for me to speak on her behalf. I rang my mum and said that I would come to her home on monday and ring them up while she was with me. In the meantine mum decided to go to the store and pay for the furniture.

[BankFodder]

I'm afraid that you are going to have a difficult time of it. The only basis I can see for avoiding the contract is to say that your mother did not have the mental capacity to contract.

 

From what you say it may well be that she was already being diagnosed with dementia and therefore it would be easy enough to get a doctor to give a statement that she lacked the mental capacity. However, mental incapacity must be obvious also to the contracting partner. You say that it was obvious – but they may say that it was not. Also, it does seem strange that she knew that she had entered into a commitment to the extent that she remembered and understood that she was required to return to the store and to pay the outstanding balance. Even if you had a doctor who was prepared to say that she lacked the capacity to contract, the fact that she returned to pay could easily be interpreted to be sufficient to allay any fears on the part of a contracting partner that she might not have the requisite mental capacity.

 

I'm really not quite sure what to suggest – except to examine the suite very carefully when it arrives and to latch onto any defects as a basis for rejecting the contract. Also, if there are any delays in delivery, this could also form a basis for rejecting the contract – if you inform them in advance that the promised time of delivery is essential. However, I think that whatever you do, you are going to have a battle.

 

The only other thing I can suggest is that you write a very decent and full expansion letter to their CEO and also involve your member of Parliament. It may be that these combined pressures – plus a medical certificate could be enough to sway them. It's a shame that such a large company has to be such hard-nosed with its customers and is unable to show a human side.

[BankFodder]

On a side note, it could be a good time to think about taking control of your mother's cards and other payment instruments.

[sherlock18]

Thank you for your advice. My mother has been assessed as having capacity but she is on medication for her dementia. She does not want the suite and is prepared to lose the two thousand pounds. Dfs should have realised that she was confused because although she was originally charged 2768 pounds but the total price should have only been 2000. Dfs have reinbursed her the difference blaming computer error for the overcharge. If you or I would have looked at the invoice we wiuld have spotted that immediately. Like you say it is a pity that dfs could not show a little understanding and agree to waver the legally binding contract. I do normally manage her cards but as she has been deemed to have capacity the bank will not give me full advocacy of her money.

[BankFodder]

I am very interested in this latest information. Could you please tell me a little bit more about exactly what has happened. We seem to be getting the story by drip feed.

 

Please could you lay out a chronology. I am wondering whether the pricing error you have referred to might help us to avoid the contract.

 

Also, I have started looking at the recent Consumer Contract Regulations – which to my shame I am not at all familiar with.

 

I do see that they impose some "on-premises" conditions for consumer contracts.

Please have a look at this link https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/310044/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

 

And also http://www.businesscompanion.info/quick-guides/on-premises-sales/selling-on-business-premises-from-13-june-2014

 

Maybe we can go through and analyse very carefully what the new requirements are and see if we can spot anything that has been missed out by DFS which will give us an opportunity to challenge them.

 

I think that we need to work quickly before we have to deal with the problem of the suite being delivered.

[sherlock18]

I have spoken to my mother today to try and get some clarification about the chronology of this and she is unable to clarify the timeline. She says she cannot remember how events unfolded and she now says she wants the suite! This is a symptom of her dementia. I have looked at the two links you gave me but I am afraid I do not understand them so I would be grateful for any advice

[rebel11]

Hi sherlock18

 

Have you got the DFS T & C's supplied at the time of purchase, also what other documents was you mother provided with?

[sherlock18]

The bill is in my mothers and the terms and conditions are I think on the back. There is also a receipt for the suite. That is all my mum can remember having and all I can find.

[rebel11]

• The Regulations extend the list of pre-contract information that a trader must give to a consumer and there are certain changes to the form in which the information needs to be provided.
  
• Before the consumer commits to the contract the trader must provide certain information in a clear and comprehensible manner about the trader, the goods, the price, any other applicable charges, the terms of the contract, and the cancellation right.
  
• The trader must also confirm this information on a “durable medium”, unless it was already provided on a “durable medium” before the contract was made. This confirmation must be provided within a reasonable time but by no later than delivery of the goods, or commencement of provision of services.
  
• The Regulations make it clear that a “durable medium” can include email and text messages as well as paper. However, a website link is not a durable medium as the content can change.
  

[BankFodder]

Okay, I am interested in two aspects.

 

Firstly whether the pre-non-premises contract requirements have been fulfilled. If we can find that something is missing there then maybe it will allow you to escape the contract.

 

I still haven't had an opportunity to read through it all. However, you need to go through the on-premises pre-contract requirements. Make a list of them and then go through them and decide whether each one has been satisfied.

 

Do it in a spreadsheet and then give each one either a yes, a no, or don't know. Then we will see what you have.

 

Have a look at the terms and conditions on the back of the receipts that she received and see if these comply with the new regulations. I suppose that they probably will – but you never know, lots of these retailers are very slack.

 

Secondly, I am interested in the train of events regarding the overcharging and then the refund. You say that she is unable to recall what has happened – but this doesn't make sense to me because you took charge of it and you must know because you noticed the overcharging and at what point you contacted them and at what point they then agreed to make the refund. Because you had a hand in this, you must be aware of the timeline. Please explain to us here.

 

I'll tell you why it is interesting to me.

 

Your mother entered into an on-premises contract. They initially overcharged her. Then they went on to make the correct charge. Did all of this happen on the telephone? Is there a possibility that by their error they have turned an on-premises contract into an off-premises contract? If we could find a way of arguing that, then a whole new set of rules comes into play and in fact your attempt to cancel the contract becomes a valid attempt and their refusal to accept the cancellation becomes unlawful. In fact, it may be that you retain the right to cancel the contract until 14 days after delivery of the suite – although I am not certain if there are special rules for items which are made to measure.

 

So please could you deal with this and tell us what has happened.

[rebel11]

The Contract Requirements for each can be found in the following link:-

 

Schedule 1 / 2 - just scroll down

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/265898/consumer-contracts-information-cancellation-and-additional-payments-regulations-2013.pdf

[orfoster]

If there isn't a moral case I'd turn up outside their shop with a clipboard and a survey asking their customers walking in if they believe what has happened is fair and reasonable under the circumstances.

 

I'd think they'd soon resolve the issue, as long as you are on public property. (ignore me its just my frustrated idea).

[sherlock18]

You will be pleased to hear that my mum received a full refund. I just noticed when looking at her bank statements she had received a credit from DFS for the full amount. I dont know why because no one from the company bothered to contact me I just assume it was because I kept on ringing them about it and that they realised that the whole situation reflected badly on them.

[rebel11]

Well Done sherlock.