Consumer Rights: What’s Changed?

Jonathan Hadley-Piggin provides some key pointers on the requirements of the new Consumer Rights Act.

The Consumer Rights Act 2015 (CRA) came into force on 1 October 2015. It repealed most consumer specific legislation including The Unfair Contract Terms Act 1977 (UCTA), the Sale of Goods Act 1979 (SOGA) and the Supply of Goods and Services Act 1982 (SOGSA). So why the big change? Prior to 2015 there were 100 pieces of consumer related legislation which caused some inconsistency and ambiguity. Legislation was also struggling to keep pace with technology and retail practice.

As with previous consumer legislation, the CRA applies to business to consumer transactions, not business to business. A ‘consumer’ is defined as an individual acting for purposes wholly or mainly outside that individual’s trade, business, craft or profession. The term ‘trader’ replaces ‘seller’ in older legislation. It is a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.

The CRA introduces some significant changes to bring legislation up-to-date. These include enhanced consumer rights and remedies for defective goods and services, new consumer rights and remedies for digital content and new requirements for unfair terms in consumer contracts and notices. A range of new definitions are included in the CRA.

Among them there is a concept of ‘nonconforming’ which describes goods, digital content or services that do not conform to the contract. Examples of non-conforming include not meeting the statutory quality standards, not conforming to the pre-contract information or is not delivered or performed on time.

The CRA definition of ‘goods’ is any tangible moveable items. The implied terms of sale for goods remain similar to the SOGA – namely that they have to be of satisfactory quality, fit for purpose and as described. They must match a supplied sample, if applicable. There are tiered remedies available to consumers under the CRA for goods that do not conform:

• short term right to reject (30 days)
• right to repair or replacement
• price reduction
• final right to reject

In the first six months the refund is reduced only if the purchase is a car. After six months a refund may be reduced to reflect the consumer’s use of the goods since delivery.

‘Digital content’ is defined as data produced and supplied in digital form, including all content accessible on digital devices. Under the CRA it must be of satisfactory quality, fit for purpose and as described.

The CRA does not contain a definition of ‘services’. It does however reiterate a requirement for ‘reasonable care and skill’ and introduces new remedies for non-conforming services. Examples of non-conforming services include those not performed with reasonable care and skill, not performed in-line with information given, or not performed within a reasonable time (where time for performance is not fixed). Remedies include ‘repeat performance’ – within a reasonable time, without significant consumer inconvenience, at trader’s cost. Or a price reduction if services are not performed within a reasonable period (when the time is not fixed), if it is impossible to re-perform the service, if a repeat performance is not requested by the consumer (under defined circumstances), or if it is not performed in line with information given by the trader. The CRA treats unfair terms in a similar way to the UCTA but its scope extends to ‘consumer notices’.

‘Fairness’ replaces ‘reasonableness’ for standard forms and negotiated contracts. A ‘consumer notice’ is one which relates to rights or obligations between a trader and a consumer or which appears to exclude or restrict a trader’s liability to the consumer. An ‘unfair consumer notice’ is one if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer. Clarity of terms is now important. A trader should use transparent, legible, prominent, plain and intelligible language.