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

[renhoicuk]

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]

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]

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]

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]

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]

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]

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]

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

[rosiecotton]

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]

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 [problem] (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]

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]

Sorry!!!!

 

You are right, wrong link!!!

 

It's this one:

 

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

[renhoicuk]

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

 

How did it go?

[buzby]

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]

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]

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]

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.

[Spiceskull]

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

I think a claim would fail on this premise as the promise of cashback is not a core term in the contract...in other words in deciding "fairness" a judge would have to consider whether or not the contract could have been formed without this term, which clearly it could have been...he would then have to decide whether or not you signed up to the contract with the sole intention of exercising your rights over this term only, or whether you wanted the whole contract.

 

However, the term could be deemed misleading under certain advertising rules...

[SE35]

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

 

Hello Renhoicuk,

Do you have a case reference or number for the above quoted? I am currently taking a mobile phone supplier to small claims for reneging on cashback claims and having unfair t'c & c's and would appreciate any help.

[renhoicuk]

There is, please check the following link relating to strict cashback rules of an insurance product:

 

 

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

[Jelena]

Hi,

 

I am in a battle with buymobilephones.net. They have refused me whole years of cashback (£120) because I failed to claim their first cashback properly. They did not send me their contract or terms and all I did was to follow instructions on their voucher which is to send 5th bill, but it happens I was meant to send all 5 bills!!! How was i supposed to know!!!

 

I sent them formal complaint letter but still received no reply.

 

I read a bit on Unfair Terms and apparently you can still get your money back even if you did not claim your first one properly!

 

If anyone has any advice or templates, I will be more than grateful.

 

Its only £120 loss but I dont want them to get away!

 

Jelena

[psychocandy]

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.

 

I'm having problems with Cool New Mobile....

 

Sent me claim off with all the documentation on time. Had email to say they recieved it etc. Waited for two months, had email to tell me cheque was going to be sent.

 

Then I recieved a letter telling me that I hadnt included one bit of documentation (I HAD !!!) and that this and future claims would be invalid. Total lost £420 !!!!

 

Even though this piece of documentation was included on the claim form (its original despatch note), the T+Cs when I took the contract out did not mention this at all. I notice now T+Cs have been changed to say claims will be invlaid without this document.

 

My wife has done the same deal (a few days later) so I'm waiting for a similar letter!!!!

 

Easy way for the company to make £420 or what? Play along as if everythings OK then at the last minute 'lose' the documents and say the customer never met the T+Cs...

 

Any advice or templates I'd be grateful....

 

I've written to them advising them of my attitude and threatening legal action.

[buzby]

Give up?

 

The firms that offer these schemes never had any intention of paying out - when they could reasonably disallow making a payment due to non-compliance, they very quickly realised they were in such a strong position and made more money by wrongfully invalidating claims, most folk ended up letting them get away with it.

 

I'd like to go on and say if you hold out for your 'rights' you will be rewarded, but the bottom line is as they had never any intention of paying out, it is not an error you are trying to rectify, but an attempt to change their policy and enforce a payment that they will do everything in their power to resist, even if it means them going bust, as many have done.

 

Cashback is the replacement for timeshare and points scams, the respected property companies and networks that give the scheme an air of legitimacy are not party to these side deals, and as a result you can end up pouring good money after bad - an additional £50 in court fees for a judgement (with no enforcement) just adds to the agony with no guarantee they simply won't pack up their tent or change their name, directors then disappear.

[psychocandy]

Give up?

 

The firms that offer these schemes never had any intention of paying out - when they could reasonably disallow making a payment due to non-compliance, they very quickly realised they were in such a strong position and made more money by wrongfully invalidating claims, most folk ended up letting them get away with it.

 

I'd like to go on and say if you hold out for your 'rights' you will be rewarded, but the bottom line is as they had never any intention of paying out, it is not an error you are trying to rectify, but an attempt to change their policy and enforce a payment that they will do everything in their power to resist, even if it means them going bust, as many have done.

 

Cashback is the replacement for timeshare and points scams, the respected property companies and networks that give the scheme an air of legitimacy are not party to these side deals, and as a result you can end up pouring good money after bad - an additional £50 in court fees for a judgement (with no enforcement) just adds to the agony with no guarantee they simply won't pack up their tent or change their name, directors then disappear.

 

To be honest, I dont think they're about to go bust or anything like that. It seems that people have been complaining about them for a few years at least so theres no reason to think they're going to disappear any time soon!

 

However, it does appear that 'some' people have had no problems with them and do get their cashback. Quite why they've decided to pick on me - I dont know. Perhaps if they're having a bad month with a lot of cashbacks they'll pick a percentage at random to disallow ???

 

Surely, if I get a judgement, then I can enforce it and I will get my money (assuming they dont disappear like you said).

[buzby]

Well - if you go down the route of obtaining a Judgement, you need to cover the usual bases, keep copies of everything you send, and be able to supply copies of any 'missing' documents. Also have an independent person review the actual contents of the letter as sent, so there is no issue over whether the items were included or not. Finally, all claims need to be submitted by Recorded Delivery which confirms delivery. For all you know, those who HAVE been paid have taken these basic steps and ensured payment!