Consumer Rights Act 2015: 4 tips to see whether your terms and conditions are ready

On 1 October, the Consumer Rights Act 2015 comes into force.

Perhaps you haven't really had much time to look into it? Perhaps you have and you don't want to miss anything?

Here's four tips on how to check your client's T&Cs for compliance.

What shouldn't be in your terms and conditions if your client sells to consumers:

If your T&Cs to consumers refer to any of the following laws in particular, alarm bells should be ringing.

  • Unfair Contract Terms Act 1977
  • Sale of Goods Act 1979
  • Supply of Goods and Services Act 1982
  • Sale and Supply of Goods to Consumers Regulations 2002, SI 2002/3045
  • Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083

These laws are all affected by the coming into force of the Consumer Rights Act 2015. Some of them will only apply from 1 October 2015 to business-to-business contracts, others will be revoked in their entirety.

If your terms and conditions refer to them, they are likely to be out-of-date.

So what should be in:

The following laws should be considered in detail, among others:

  • Consumer Rights Act 2015 (obviously)
  • Single Use Carrier Bags Charges (England) Order 2015, SI 2015/776 (for Wales: The Single Use Carrier Bags Charge (Wales) Regulations 2010)
  • Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015, SI 2015/542
  • Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015, SI 2015/17
  • Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013/3134
  • Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277
  • Electronic Commerce (EC Directive) Regulations 2002, SI 2002/ 2013

Bear in mind that terms and conditions should reflect the law, not quote it verbatim.

For example. the Competition and Markets Authority (CMA) frowns upon the lavish quoting of statutes in terms and conditions—with the possible exception of the friendly sounding Consumer Rights Act 2015.

Therefore, whilst your terms and conditions should reflect the above laws, try to avoid painful clauses like this:

Pursuant to, as the case may be, the Single Use Carrier Bags Charges (England) Order 2015 (the 'English Order'), SI2015/776, art 3 or the Single Use Carrier Bags Charge (Wales) Regulations 2010/ Rheoliadau Codi Tâl am Fagiau Siopa Untro (Cymru) 2010 (the 'Welsh Order'), SI 2010/2880 (W238), reg 6, the vendor is obliged to charge (GBP) £0.05 (5p) for each and every single-use carrier bag ('SUCB' as defined in the English Order, Sch 2 or the Welsh Order, reg 3) used in connection with your order

When all you need to say is this:

Carrier bags cost 5p. We will add this cost to your order

(Subscribers to Lexis®PSL can click here for the full version of a checklist to be used when updating terms and conditions)

Your statutory rights are not affected by this heading

Check out our recent post on the use of the phrase 'statutory rights', whether your client uses it in its terms and conditions, in store, on its website or elsewhere.

Spoiler alert: don't use it.

In the words of the CMA in their latest 'CMA37' guidance:

Consumer contracts often include statements that statutory rights are unaffected. The aim is to achieve minimum compliance with legislation designed to protect consumers by ensuring they are not misled into thinking these rights have been removed. But simply including those words cannot be relied upon to achieve fairness under Part 2 of the [Consumer Rights Act 2015]

Don't forget that the Chartered Trading Standards Institute has been consulting on these new point of sale notices.

The tweet below from West Sussex County Council's Trading Standards Service shows what they might look like. If you are looking to incorporate this design into any terms and conditions that you are drafting, do bear in mind that it might change soon.

https://twitter.com/WSCCTS/status/628974826267508736

Look at the latest government guidance

In particular, check out our post on updated guidance that has been released over the past few months or so. Of particular interest is 'CMA37' on unfair terms published by the Competition and Markets Authority:

https://twitter.com/CMAgovUK/status/627123626593153024

Check your systems

Don't forget the Nemzeti Fogyasztóvédelmi Hatóság v UPC Magyarország Kft case which we reported on in May. It reiterates the need for businesses to get not only their terms and conditions, but also their systems, right. Making mistakes is an increasingly costly exercise:

In this case, an invoice sent to just one cable TV customer turned out to be in a wrong amount by about £16. As a result, UPC Hungary was fined by Hungary’s National Consumer Protection Authority under the local equivalent of the 2008 regulations.

‘To err is human,’ Alexander Pope once said.

Alas, not if you are selling to consumers under the unfair commercial practices regime.

This case and others show the need for businesses which sell to consumers to have robust systems in place to keep mistakes to an absolute minimum. The Court of Justice of the EU is taking a strong stand on consumer protection and there is no reason to think that it will stop doing so.

So what do you think? Are you ready for the new Consumer Rights Act 2015? Are your clients ready? Do let us have your thoughts below.

Area of Interest