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Mobile phones

 

What the law says

When you buy a mobile phone, the law says the phone (i.e. handset) must:

 

match its description. This means it must be as described by the seller. This includes any description on the packaging. For example, if it is described as being a WAP phone, you must have internet access. In most circumstances, it also means that it must conform to any advertising claims made about it; and

 

 

be of satisfactory quality. This means the phone must be fit for its purpose and meet the standards that any reasonable person would expect, in normal use of a mobile phone, taking into account the description, the price and all other relevant information. This includes the appearance and finish of the phone and whether it is safe, durable and free from defects, including minor defects. It also includes any purpose you have specifically pointed out to the seller. For example, if you tell the seller that you need a telephone that you can use when abroad, you should not be sold one that it is only suitable for use in the UK.

 

You have the same rights when you buy a phone in a sale.

You will not be able to take action against the seller if:

 

• you examined the phone before you bought it and the fault was obvious

 

• the seller pointed out the fault (unless there are other faults and the phone is not as described before you bought it)

 

• you have changed your mind or found a cheaper phone elsewhere

 

• you have not followed the instructions on how to care for it

 

• you have used it for some time and the problem has been caused by normal wear and tear

 

• the phone doesn't meet your needs (unless these were pointed out to the seller when you bought the phone)

 

• the phone has lasted for the period of time it could reasonably be expected to last for.

 

The mobile phone service must be:

 

carried out with reasonable care and skill; and

 

carried out in a reasonable time unless a specific time has been agreed. This means that any problems you have when you use the service should be sorted out within a day or so, unless the delay is outside the service provider's control; and

 

provided at a reasonable cost unless a specific price has been agreed.

 

Special rules if you have paid by credit

If you used your credit card or the seller arranged the finance to pay for the phone and it cost over £100 and under £30, 000, the company that provided the credit is likely to be equally liable for any breach of contract. This means that, if the phone is faulty, you may be able to claim your money back from the credit card or finance company. This does not apply to debit card transactions (for example, Switch or Delta) where the money comes directly from your bank account.

If the seller arranged the loan finance, you may be able to cancel the loan agreement.

 

Remember

Generally you cannot return the phone or cancel the contract because:

 

• you have changed your mind or found a cheaper deal unless there is a clause in your contract allowing you to cancel. If there is a right to cancel in the contract, the trader may impose a charge for this – details of this should be found in the contract. (However you may have the right to cancel if credit is involved, or if you have signed a contract in your own home, or if you purchased the phone through distance selling methods i.e. not face to face with anyone - see above)

 

• you have not followed the instructions on how to use and care for the phone

 

• you have used the phone for some time and the problem has been caused by wear and tear.

 

Be sure to check your contract before you sell your mobile phone to someone else, as you may need the company's permission to do so.

In addition to the above rights, you will also have any additional rights included in your contract. If you do not have a copy, ask your mobile phone company for one.

 

Choosing a mobile phone service

You should compare the clauses in each of the mobile phone companies' contracts before choosing. You may wish to consider:

 

the type of contract you want, including its length, method of payment and the amount of notice you have to give to cancel the agreement

 

• the cost of calls, especially to non mobile phones and how often and when the phone is likely to be used

 

• whether the price of the handset affects the amount you will have to pay for monthly rental and call charges. The price of the handset may be subsidised and it could be expensive to replace it if it is lost or damaged

 

• whether the handset can be used with other mobile phone companies

 

• the quality of the reception in the areas in which you will be using the mobile phone

 

• if insurance cover is provided.

 

Your rights if the mobile phone or phone service is unsatisfactory

If you have a problem with the phone (handset), it is the seller not the manufacturer or the service provider who is responsible for dealing with your complaint. If you have a problem with your mobile phone service, you will need to contact the person or company that you have a contract with. This will be:

 

• the network operator; or

 

• the service provider; or

 

• the supplier.

 

Refund

If you buy a mobile phone and find that there is a fault with it straight away, you should return it to the trader and ask for a refund. If the problem does not arise until some time later, you would only be entitled to ask for a repair, a replacement or some of your money back.

 

Replacement or repair

If you bought the phone on or after 31 March 2003, you can ask the seller to replace or repair it free of charge if it is faulty. If you do this within six months of receiving the phone, it will be assumed that the problem existed when you bought it, unless the seller can show otherwise. However, you can still ask for a replacement or a repair for up to six years from the date that you bought the phone, if it is reasonable for it to have lasted that long. In this case it will be up to you to show that the phone was faulty at the time of sale. The longer you have had the phone, the more difficult it becomes to prove that it was faulty at the time of sale.

If:

 

• it is impossible to replace or repair the phone; or

 

• a replacement or repair would be unreasonably costly for the seller when compared with alternative remedies; or

 

• the seller fails to replace or repair the phone within a reasonable time of having agreed to do so or causes you significant inconvenience; or

 

• the phone has worked for some time before it goes wrong or only one of its functions has gone wrong

 

then:

 

• you can ask for a partial or full refund. The amount of money you get back may be reduced to take account of any use that you have had out of the phone.

 

Compensation

You may be entitled to compensation if:

 

• the phone itself is not of satisfactory quality, as described, or fit for its purpose (see above)

 

• the contract has been broken (breach of contract). For example, the mobile phone service was not carried out with reasonable care and skill or problems were not rectified within a reasonable time

 

• the phone was dangerous or unsafe and someone has suffered personal injury. If the phone is unsafe, report the seller to Consumer Direct on 0845 404 0506 before taking action against the seller (see above)

 

• the seller has made a false statement about the phone or the service to persuade you to choose it

 

• you allowed the company to correct the problem but this has not worked

 

• you have incurred additional expenses or have suffered inconvenience because of the breach of contract, for example, having to make extra telephone calls or having to post items.

 

The amount of compensation you are paid will depend on the seriousness of the breach of contract. It could include the cost of transferring to another mobile phone service.

 

Guarantee

If the phone was sold with a guarantee, you may have additional rights under the guarantee. The guarantee cannot take away your statutory rights.

 

How to solve your problem

Once you have decided what your rights are, you will need to contact the mobile phone retailer. Follow the steps below:

 

collect all your documents together including your contract, and credit agreement, if applicable

 

if someone has been injured because of a fault with the phone or if you suspect a criminal offence has been committed (for example, the phone is advertised to have a feature it does not have), you should not return the phone until you have discussed the matter with Consumer Direct on 0845 404 0506 You should always take legal advice before accepting compensation for personal injury

 

otherwise, contact the company as soon as you discover the problem. If you visit, take a copy of all your documents and ask to speak to the manager. Alternatively, write to the manager or the district head of the department concerned and keep a copy of your letter. Explain your problem calmly but firmly and ask for a full refund, a replacement, a free repair, or compensation, and set a time limit.

 

• if you have not been able to resolve your complaint with the mobile phone company, you may be able to get help from the Office of the Telecommunications Ombudsman (Otelo) or from the Communication and Internet Service Adjudication Scheme (CISAS) – see below

 

• if your complaint is about a term in your contract that you believe to be unfair, you should contact Consumer Direct on 0845 404 0506

 

if you are still unable to resolve the matter, your only other option is to consider going to court. You should write to the manager of the firm and/or the credit company repeating your complaint and the steps that have been taken. Say you are giving them fourteen days to resolve the problem or you will consider legal action. Send your letter by recorded delivery with a copy to the head office. Be sure to keep copies of all correspondence

 

if the company makes an alternative offer, you can either accept or continue to negotiate. Be realistic in what you will accept. You may not get a better offer by going to court

 

if the company refuses to do anything, or makes a final offer you are unwilling to accept, you will have to consider court action. Remember court is your last resort. Before doing so, you need to consider whether you have sufficient evidence. You will have to prove that the company is responsible for the problem.

 

If you have lost money on poor service, don't waste more money on a case you cannot win.

 

Organisations that deal with complaints against mobile phone companies

 

Otelo (Office of the Telecommunications Ombudsman)

If you have already used the company’s own complaints procedure, Otelo may be able to help with a complaint, but only if the company is a member.

For more information, contact Otelo on: 08450 501614 or visit its website at: www.otelo.org.uk.

 

CISAS

The Communication and Internet Services Adjudication Scheme (CISAS) may be able to help you with a complaint about a phone company, if the company is a member of the CISAS scheme. You must have used the phone company's own complaints procedure first. You can contact CISAS on 020 7421 7432, or visit their website at: www.arbitrators.org/CISAS/index.htm. www.adviceguide.org.uk Copyright © 2002-2008 Citizens Advice. All rights reserved Registered charity no: 279057