There is no charge to the complainant at any stage in the BHTA complaints procedure or the arbitration process described below. The combined process should normally be concluded within 90 days of BHTA being satisfied it has all the information it needs to address the matter.
When BHTA receives notification in writing of a complaint against a Code member, it will consider whether the company:
BHTA cannot deal with a complaint if:
BHTA will:
If agreement between the member and their customer cannot be reached, the complainant
has two options:
Where referral to the Independent Arbitrator is chosen, BHTA will pass all the evidence gathered, including copies of all correspondence to the Independent Arbitrator within five working days. Either party may make a direct representation of further evidence to the Arbitrator. The Arbitrator’s decision is binding.
Independent Arbitrator
The objective of the Arbitrator is to arrive at a conclusion that is fair and reasonable in the circumstances, looking at all the evidence presented by both parties. The Arbitrator is an individual who is independent from BHTA and from the industry. Technical expertise will be called upon for input should this prove necessary. The Arbitrator’s initial reaction will be notified to the parties concerned within seven working days and normally, a conclusion should be reached within fifteen working days. If further evidence is presented by either party, this may prolong proceedings.
The Arbitrator’s findings will be issued in writing and will give a summary of the facts, the conclusions and reasons for reaching them. The Arbitrator’s decision is binding on both parties.
If the conclusion is that the Code member is at fault, the Arbitrator may for example give direction that they must:
Consumer Credit Act 1974 – Consumers who enter into a credit agreement have a right to a 5-day cooling off period from the date the consumer receives a copy of the executed agreement regardless of whether the visit was pre-arranged.
Where cancellation rights apply or are offered, the customer must be informed under what circumstances they may cancel and this should be plainly visible in the paperwork given to the customer, for example, next to the signature box, and be in large bold type. Where a customer has indicated they have poor eyesight or are confused by paperwork, the salesperson should go through the paperwork with them.
Per the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 a cancellation form must be provided setting out:
If a deposit will not be refundable or will be only part-refundable, this must be made clear when the customer places the order and the reasons for this must be described to them, in writing. If the customer cancels the contract properly full repayment should occur (unless, for example, the goods have been damaged after delivery), and in any circumstance, money withheld should not amount to more than the net costs or net loss of profit incurred by the Code member.
If a member chooses to offer a cancellation period longer than required by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (14 days) or to offer cancellation to customer other than consumers this should be clearly detailed by the member on their website and in their paperwork.
Code members are expected to provide a high standard of after-sales service and to ensure a prompt and adequate service and repair policy.
Prompt will normally be taken to mean response and (where appropriate) visit within 3 working days of the request, unless otherwise agreed. No customer should be without equipment on which they rely for mobility and/or daily living for more than 14 days. (Exceptions may occur, for example, where a customer has bespoke needs that cannot be met from normal stock held, or where a hospital/clinic appointments system must be followed, however, every effort must be made to keep the period the customer is without mobility to a minimum.)
Guarantees/warranties must be in writing, and be clear and unambiguous. They do not affect a consumer’s statutory rights and all guarantees and warranties used by Code members should carry a statement making this clear. Distributors and retailers must pass on the individual parts and labour guarantee offered by the manufacturer, and abide by the terms contained in the guarantee during its currency.
There must be no high-pressure selling of additional warranties, nor any misrepresentation of their costs, coverage, and any benefits they provide.
A minimum 3-month guarantee must be offered in respect of all repair work carried out.
It must be explained to the purchaser that no claim will be met under guarantee if the product has been abused in any way, or damaged by neglect, improper use or failure to maintain in accordance with the manufacturer’s recommendations, or has been damaged in any accident. Abnormal wear and tear will also be considered when assessing a guarantee claim.
If, after purchase, the customer wishes to sell the product to another consumer, the transfer of a valid guarantee/warranty should be possible and a mechanism should be in place to facilitate this.
Maintenance agreements must be clear and unambiguous and the covered duration must be stated. If the agreement includes an annual service it should be evident whether the business will contact the customer to arrange this.
If a company has a buy-back policy this must be clear and unambiguous, and be outlined to the customer in writing in advance of the sale taking place. Any reason for not buying back the product, for example because it is single-use, or bespoke, must be stated and the reason made clear. Companies that do not buy back products under any circumstances should be prepared to make available an advice sheet on how to sell the product and advise on the likely second-hand value.
Customers must be given a clear explanation of the basis for charging for repair work not covered by warranty/guarantee and, where practicable, a written estimate in advance, of the anticipated costs of such work. (Customers have the legal right to refund, repair, or replacement for goods that are identified as being faulty, as set out in the Consumer Rights Act 2015.)
When work has been carried out, a schedule of the work (labour, parts, etc) should accompany the invoice, detailing a breakdown of costs.
Adequate stocks of components/parts should be held to facilitate prompt service.
Customers should be given details of opening hours, contact telephone numbers, and arrangements, if any, for emergencies out of hours.
Reasonable care should be exercised in protecting customers’ property whilst in the company’s possession and companies should not seek any disclaimers to avoid liability for loss or damage. Companies are advised to ensure they are adequately insured to cover such liability, as well as cover against any claims for death, personal injury, and damage to property arising out of the demonstration of goods or their use after sale.
If a company is prepared to remove unwanted products, the terms under which they will do so must be made clear when this is requested, particularly regarding disposal.
Terms and conditions must not imply that consumers do not have rights beyond the end of any warranty/guarantee period. They must be appropriate for the type of business and customer mix and should be consistent across all forms of communication (hard copy, website, telephone).
If a product is built to a consumer’s specifications (i.e.in a way that is not achievable with accessories/modular components and where additional fabrication outside routine manufacture is required, or using materials supplied by the customer), they must be made aware that the product will be “bespoke.” Any changes this may cause to cancellation rights must be explained to them and must be notified in writing.
All verbal claims or promises made by the salesperson must be in writing, either on the contract, on a separate form, or by letter.
Pricing information showing the total price and providing a breakdown, where appropriate, of that total showing e.g. delivery, VAT, credit charges, discount applied, part exchange applied, must be given in writing. Prices must be made available to the customer at the earliest possible stage.
Details of any finance agreement and APR should be explained so that the customer understands how much they will be paying and what the terms of the contract are. Pre-contract information must be sent/presented on its own, allowing time for the consumer to pause and reflect on affordability and to compare credit, before being presented with the agreement to be signed.
Consumers must be given the option of paying for Payment Protection Insurance and other insurances up front, rather than these being offered automatically on credit. It must be made clear that customers have the right to cancel hire purchase and conditional sale agreements and only pay 50%. This does not extend to the insurance mentioned above.
Details of delivery, installation, training, after-sales support, service and warranty should be made available prior to sale.
Delivery and completion dates should be discussed with the customer in advance of ordering/making the purchase and a choice of delivery dates and times should be offered. For mail-order and Internet orders, normal delivery times should be indicated. Should it become clear these can not be met, the customer must be informed as soon as practicable, with an honest explanation of the reason for the delay. The customer should have the right to cancel without penalty if the order is not delivered within the stipulated time.
Where tuition is necessary for the safe use of a product, reasonable and fair tuition for its use under the conditions that the purchaser best describes as “normal” for his/her purposes must be offered prior to the conclusion of a sale. If such tuition is declined, a record must be made of that fact and the reasons given.
In particular tuition in the control of mobility vehicles should be given at the time of purchase and/or on delivery. Tuition levels will vary according to:
Tuition should follow a proper assessment of needs, wishes, abilities and disabilities to enable selection of the most suitable vehicle and specification for user and circumstances. A vehicle should only be sold if the member can realistically expect the user to develop satisfactory control. (A document outlining tuition requirements is available on request from BHTA, as is one which sets out what should be recorded when assessing competency to use a powerchair or mobility scooter.)
Linked Goods and Services
If the product will need servicing regularly, an explanation must be given as to what is entailed, and the likely costs thereof should be outlined. It should be clear whether maintenance is offered / available or will have to be obtained elsewhere.
Where appropriate, arrangements for insuring the product should be discussed, or leaflets regarding such insurance should be made available. If insurance is discussed, it must be clear that it is cancellable, the consumer must be given the option to pay for it upfront rather than as part of a credit agreement and it must be made clear to whom any refund will be paid in the event of cancellation.
Any optional guarantees / warranties must be explained, including who is offering them and what the benefits are, or leaflets that do this must be provided.
Clear, accurate information on the availability and price of all the above and any other linked goods and services must be provided in writing.
Instructions for Use / Manuals
Any instructions for use and manuals should be written in clear language, and those responsible for their production should be aware that versions in large print, or on audio tape, may be requested and this must be facilitated as swiftly as is practicable.
Such instructions/manual must be made available with all new products, and should, if feasible, be made available with second-hand products. The customer’s attention should be drawn to user manuals and they should be informed of the need to read them thoroughly.
Depending on the nature of the product, the instructions/manual should cover all or some of the following (this is not an exhaustive list):
Rental Products
Where product is rented, the terms and conditions of the rental must be clear and unambiguous, including responsibility for any damage to the product, insurance requirements, and, where appropriate, the responsibilities for decontamination / cleaning of the product, and packaging for return.
Under the Consumer Rights Act 2015, certain standards apply to every transaction for the sale and supply of goods (including hire purchase, hire, part exchange and contracts for work and materials).
Retailer Liability. The person transferring or selling the goods must have the right to do so and the goods must:
Be of a satisfactory quality. Goods must be of a standard that a reasonable person would regard as satisfactory. In assessing quality, all relevant circumstances must be considered, including price, description and your or the manufacturer’s advertising. Quality is a general term, which covers a number of matters, including:
Be fit for a particular purpose. When a consumer indicates that goods are required for a particular purpose, or where it is obvious that goods are intended for a particular purpose and a trader supplies them to meet that requirement, the goods should be fit for that specified purpose.
Match the description, sample or model. When a consumer relies on a description, sample or display model the goods supplied must conform to it. If the goods do not conform, an offence may have been committed
Be installed correctly, where installation has been agreed as part of the contract.
Remedies for breach of the above
The short-term right to reject
If, when they are supplied, the goods do not meet the requirements above, there is a short period during which the consumer is entitled to reject them. This short-term right to reject goods lasts for 30 days unless the expected life of the goods is shorter, as with highly perishable goods. The 30-day period does not start until the consumer has ownership (or, for hire, hire-purchase and conditional sale, the consumer has possession) of the goods, and the goods have been delivered.
In addition, if the trader has agreed to do anything else to the goods (for example, to install them), the 30-day period does not start running until this is done. However, the short-term right to reject does not apply if the only breach is that the goods have been installed incorrectly.
If the consumer asks for or agrees to a repair or replacement during this initial 30-day period, the period is paused so that the consumer has the remainder of the 30-day period or seven days (whichever is longer) to check whether the repair or replacement has been successful and to decide whether to reject the goods.
When a consumer rejects goods they can claim a refund (which can include the return of items handed over in exchange or part-exchange). This would be a full refund or, in the case of hire, a refund for any part of the hire that was paid for but not supplied. They are also released from all their outstanding obligations under the contract – for example, the outstanding instalments in a contract of hire purchase. A refund must be given without undue delay and in any event within 14 days of the trader agreeing that the consumer is entitled to a refund. In some cases (for example, where the exchanged goods have already been sold on) a refund cannot be claimed under the Act, but the consumer would be entitled to claim damages (monetary compensation) for any losses incurred.
The trader is responsible for the reasonable cost of returning the goods except where the consumer is returning them to the place where they took possession of them; for example, the retail shop where they bought them. However, the consumer is not required to return the goods to this place unless this was agreed from the outset as part of the contract. Even if the consumer returns goods to the shop, they may in some circumstances be able to claim some or all of that cost from the trader – for example, where a motor vehicle breaks down and the consumer has to pay for a recovery service to return it.
Repair or replacement
When there is a breach of contract, but the consumer has lost or chooses not to exercise their right to reject goods, they will be entitled in the first instance to claim a repair or replacement.
Where a repair or replacement is claimed, the trader must do this at no cost to the consumer, within a reasonable time and without causing significant inconvenience.
The consumer cannot choose one of these remedies above the other if the chosen remedy is either impossible or disproportionate as compared to the other remedy. Also, once the consumer has chosen a remedy, they must give the trader a reasonable time to provide that remedy.
The remedies fail if, after just one attempt at repair or replacement, the goods still do not meet the necessary requirements. The consumer does not have to give the trader multiple opportunities to repair or replace, although they can do so if they wish. The remedies also fail if they are not provided within a reasonable time and without causing significant inconvenience to the consumer.
In either case, where repair or replacement fail the consumer is entitled to further repairs or replacements, or they can claim a price reduction or the right to reject. The same rule applies if both repair and replacement are impossible or disproportionate from the outset.
Price reduction and the final right to reject
If repair or replacement is not available or is unsuccessful or is not provided within a reasonable time and without significant inconvenience to the consumer, then the consumer can claim a price reduction or reject the goods.
Where repair or replacement fail, are not available, or were not provided within a reasonable time and without causing significant inconvenience to the consumer, the consumer chooses whether to keep the goods or return them. If they keep the goods, then their claim will be for a reduction in price; if they return them, they are rejecting them.
A price reduction must be an appropriate amount, which will depend on all the circumstances of the claim. It can be any amount up to the whole price.
If the consumer rejects the goods, they are entitled to a refund. This refund may be reduced to take account of any use the consumer has had from the goods. However, no deduction can be made for the consumer having the goods simply because the trader has delayed in collecting them. Nor can a deduction be made where goods are rejected within six months of supply, except where the goods are a motor vehicle.
Additional compensation
Whatever remedy the consumer chooses or ends up with, they may also be able to claim compensation for losses that have been incurred. These losses might include the cost of any property damage caused by the goods, compensation for personal injury and compensation for the additional cost of buying equivalent goods if they are more expensive elsewhere.
The burden of proof
If the consumer chooses repair, replacement, price reduction or the final right to reject, and if the defect is discovered within six months of delivery, it is assumed that the fault was there at the time of delivery unless the trader can prove otherwise, or unless this assumption is inconsistent with the circumstances – for example, obvious signs of misuse. This rule is often known as the “reverse burden of proof,” as it reverses the normal rule that a person making a claim has to prove each aspect of that claim.
If more than six months have passed, the consumer has to prove that the defect was there at the time of delivery. They must also prove that the defect was there at the time of delivery if they exercise the short-term right to reject goods. Some defects do not become apparent until some time after delivery, and in these cases it is enough to prove that there was an underlying or hidden defect at that time.
Sales Conducted in a Customer’s Home (Off Premises Sales)
All cold calling is unacceptable and this includes cold calling by telephone. Salespersons and or assessors must not visit without a mutually agreed appointment first being made. The purpose and intent of any visit must be made clear to the customer.
The customer must be provided with literature describing the products and services available, together with actual price examples, or where exact prices are not possible (for instance in a bespoke product) with price ranges. This information must be provided before the visit unless this is not feasible for practical reasons (for example if a visit is to be conducted the same day). Prices, pricing examples, or price explanations should be given on websites, to enable customers with Internet access to understand these ahead of the visit.
There should be no objection to the customer having a relative, friend, or other advisor/carer with them when the salesperson/assessor visits. In certain circumstances, this should be encouraged (for example if it is known that the customer has poor eyesight or that they struggle with paperwork).
Salespersons must not use high-pressure selling techniques, such as offering inducements to force a quick decision, or knowingly take advantage of vulnerable customers. (Examples of what might be high-pressure selling tactics are listed above in Pre-Contractual and Point of Sale Information).
Salespersons must comply with a customer’s request that they leave and no assessment or sales visit should normally last longer than three hours, other than in exceptional circumstances (for example, if a health services professional is present and is responsible for leading the assessment).
Distance Sales
When selling over the Internet, via mail order catalogue, or by telephone, information must be provided to the customer before they take the decision to buy, as required by, and set out in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
Situational
Situational vulnerability should always be assessed on a case-by-case basis. It is important to remember that all consumers can be situationally vulnerable, and vulnerability is dynamic. Vulnerability may be caused by the personal situation or circumstances of the consumer; the timing and nature of the decision; the consumer’s level of knowledge, skills or ability; and the effectiveness of tools and communications made available to them by businesses to assist in decision-making.
Situational vulnerability can be caused by, for example, cognitive impairment, low income, illness, loneliness or social isolation. This list is by no means exhaustive. Some of us may experience vulnerability during difficult periods in our lives, such as when we go through a bereavement, a divorce or a period of ill health. Vulnerability can also originate from more enduring personal situations, such as a long-term physical or mental disability.
Market context
The second type of vulnerability can be caused by market contexts; for example, when a consumer has to choose between complex offers or alternatives, or make decisions on the basis of imperfect or unclear information. It can also come about when a consumer hasn’t accessed a market for some time or has never done so.
Market context vulnerability can also be caused by business communications, or the way consumers are expected to contact or communicate with a business. Sometimes, lack of experience and education around technology can lead to vulnerability.
Market context vulnerability may arise in some of the following situations (as above, this list is not exhaustive):
The two types of vulnerability can affect consumers at the same time.
The checklists above and below should help to:
Use ‘Be REAL’ to identify consumers who may show signs they could be vulnerable. Once a consumer has shown signs of vulnerability, then steps can be taken to support them. If signs are there, use the checklist to document what you discussed.
R. Retain
Is the consumer able to retain, remember and repeat in their own words the information you give them? Do you have to repeat what you have said over and over again? Do they ask for clarification and ask you to explain the words or terminology being used.
E. Explain
Is the consumer able to properly evaluate and explain the decision they have made? Are they joining in the discussion or just agreeing with what you are saying? Are they coherent and fluent in the language being used?
A. Able
Is the consumer able to hear, understand and communicate what they are being told and their situation? Are they asking questions that aren’t related to what you are saying? Do they tell you their thoughts and ask questions, and if so, do they make sense?
L. Listen
Is the consumer able to listen, follow and understand the discussion taking place, or are they distracted, confused and not hearing what you have to say? Do they take an unusually long time to respond to a question?
Always remember:
Do not directly call consumers “vulnerable” as it is disempowering; it’s the situations they find themselves in that make them vulnerable