Do the cold calling regs apply to phone calls?

  Kemistri 19:27 21 Jan 2009
Locked

Not strictly about PCs....

I need to know, on behalf of my neighbour (who is also a good client of mine), about the cold calling regs. Specifically, whether the publicised 7 day cooling off period also applies to telephone sales calls.

I've offered to look into this for him, but I can't find anything about cold phone calls, only about door to door sales people.

He has tried to cancel a contract with an online services provider that he agreed to by phone on Monday, with the contract signed and returned by fax, only to be given the run-around about a 72 hour limit - when he called again and pointed out that 72 hours was not up yet, the same staff member amended her reply and told him that it should be in writing, by recorded delivery. I reckon that three days is far too tight to change your mind and then get a letter to them.

Is there anything that he can do?

  setecio 19:46 21 Jan 2009

If the order was faxed, why not fax the cancellation ?

  Kemistri 20:20 21 Jan 2009

Like I wrote above, they demanded recorded delivery. They apparently ruled out fax and e-mail, which I think may be against some set of regulations or another, but I don't know which or whether I'm on the right track.

  oresome 20:37 21 Jan 2009

This comes under the distance selling regulations and there is a 7 day cooling off period.

click here

  Kemistri 21:34 21 Jan 2009

I had thought of that possibility initially, oresome. There is a potential problem, however, and that is that he appears to have agreed (though possibly not explicitly) for the service to start before the end of the 7 days. The service has, according to the company, already been set up and completed. There's a page that I found on the Trading Standards website that mentions this specifically as an exception to the rules.

I have another question to add. I just got to look at his emails and paperwork tonight and he hasn't been sent a written copy of the T+Cs in any form, just a link to the relevant page on the company's website. Am I right in thinking that they are obliged to send it to him directly, either in an email, as an attachment, by fax, or by post?

  oresome 22:57 21 Jan 2009

"Subject to regulation 9, prior to the conclusion of a contract for the supply of services, the supplier shall inform the consumer in writing or in another durable medium which is available and accessible to the consumer that, unless the parties agree otherwise, he will not be able to cancel the contract under regulation 10 once the performance of the services has begun with his agreement."

This may be the clause you are thinking of. Did the supplier inform your client that he would not be able to cancel and did your client agree to this?

Cancellation has to be by a "durable" method. Email is perfectly acceptable and is deemed to have been received on the day sent according to the prose.

  Kemistri 23:21 21 Jan 2009

That's the $64k question, and me hearing about 2nd hand is not ideal. But he assures me that the sales rep, despite being keen to advertise his right to cancel, did not specifically mention that he would not be able to do so once the service was started. He's probably not the best witness, to be honest, and it's easy to miss something in a phone conversation, but he says that he didn't specifically agree to any forfeit of his right to cancel.

  Forum Editor 23:26 21 Jan 2009

for services if he agreed that the service should start before the end of the usual cancellation period.

However...

The supplier must supply written information (called pre-contract information) in a durable medium. This can be an email, or a letter, or a fax, and if a consumer agrees that services can start before the end of the normal cancellation period this pre-contract information must be provided before the service starts.

If the information is not provided before the service starts then your neighbour has cancellation rights for seven days after the day in which he received the information.

If the service ends within seven working days after the day your neighbour receives the required durable information his cancellation rights will end on the day of completion.

Finally, if your neighbour doesn't receive the durable information at all, his right to cancel ends after three months and seven working days from the day after the day on which the contract was concluded. This applies whether or not he agreed that the service could start before the cancellation period ended.

A web page containing the pre-contract information is not regarded as a 'durable medium' by the way, because it can easily be edited. 'Durable'means just that - something that your neighbour can refer to in the future, something that may not be edited.

  Kemistri 23:30 21 Jan 2009

"A web page containing the pre-contract information is not regarded as a 'durable medium' by the way, because it can easily be edited."

That's what I thought and it's good news because they only sent a link to the T+Cs, with no copy received directly at all. Thanks for the excellent description, FE, and thanks to oresome for your advice, too.

I'll mark as resolved and pass the info on to him ASAP.

  Forum Editor 23:31 21 Jan 2009

to any forfeit of his right to cancel"

That's as may be, but nevertheless he would have done so, had he received the pre-contractual information in time. Contracts of the type he entered into are specifically excluded from the 7 day right to cancel.

What's crucial here is whether or not he received any durable information before the supply of services commenced - if he didn't he's in the clear, he may cancel the contract in writing within seven days of receiving the information.

  Forum Editor 23:33 21 Jan 2009

Tell your neighbour to make sure he sends a cancellation notice in writing - either by email, fax or by post. If he sends it by post tell him to use special delivery - not recorded delivery.

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