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The Martin Lewis Podcast

Martin Lewis and Matt Burnham host a Question Time episode tackling consumer rights, energy switching logistics for house movers, and investment psychology through a

Key takeaways

• Becky's question clarifies that selecting preset options from a dropdown menu does not legally qualify an item as 'custom-made,' preserving statutory 14-day return rights under Consumer Contracts Regulations.
• Pinsent Masons lawyers confirm that retailers misinforming customers about return policies are breaking the law, though Trading Standards lacks resources to enforce compliance.

Main topics

• Consumer return rights
• Custom-made product exemptions

Notable quotes

Off the price cap because it's a pants cap.

Conclusion

Listeners gain actionable strategies for navigating consumer law, opti

Transcript preview

Speaker 4 (0:00) This BBC podcast is supported by ads outside the UK. Speaker 4 (0:09) Welcome to the Haunted Library. Have you come in search of a tale? This podcast invites you to browse the shelves and find stories that will linger long after you've left this place. From gothic masterpieces to pulpy penny dreadfuls, join me, Colin Morgan, with new episodes twice a week. Find The Haunted Library wherever you get your podcasts. Speaker 7 (0:40) Off the price cap because it's a pants cap. It's just gone up. The market is by definition volatile. Speaker 3 (0:45) Always have a little nugget of something that I take away and apply to my everyday life. Speaker 7 (0:49) Going into the arsenal, the mental arsenal. I would push very strongly that you have those rights under the consumer contract regulations. What an interesting question. Very interesting. I enjoyed that. Hello and welcome to the comingly named The Martin Lewis Podcast. I do wonder what that's going to be about. And this is our Question Time episode where you are Esquire's extremely savvy questioners get to ask me your questions on absolutely anything and everything, open brackets within reason, close brackets. And this week, you ask me, as you've got less rights if you buy a personalised item when you're shopping online, what exactly counts as personalised? Is there a way to fix my energy tariff if I'm moving house? Then we're launching a new trial experiment called Your Answers. Angela got in touch to say she invested £5,000. It lost £150 straight away. She got spooked, sold it. And she wanted to know what I would say to her about how to get back into it. But I thought, hold on, let's crowdsource the information. And I asked you. We've had over 3,000 answers. We'll be going through that in detail. And then we finish in the best way to finish with a big success. £3,000 extra pension just by listening to the pod. Are you due it too? Play the theme tune. Speaker 7 (2:24) Hello and welcome to our Question Time edition of the podcast. Yes, this is the one where you can ask me a question on anything and everything. Let's all say it together. Open brackets within reason. Close brackets. And joining me, I am delighted to say, is the curator of questions himself. Professor. Sir. Doctor. Matthew Burnham. Esquire. All of those are legal titles within the canon of the podcast. You got them all this week, Matt? I know. Speaker 6 (2:56) I've done nothing wrong. Speaker 7 (2:57) You've done nothing wrong. They've been dropped three weeks in a row. I think we've had them dropped, but they've done nothing wrong. And we are celebrating a new era this week. Important to say at the start, sitting aside me, as she has for the last three weeks while she was shadowing GDPR, Google Docs professional Rosie, but now taking over in her own right. We have Isabel. Give us a smile, Isabel, and a wave. Isabel is smiling. A royal wave. She did a royal wave. Getting above a station already. Isabel did a royal wave. She is here. We have not yet had a debate on whether Isabel will be speaking in the podcast or not. So we're going silent for the moment. But Isabel will be live fact-checking me as we go along. And Rosie has now left the building. Thank you and good night. This building, but not the building. She still works with me and is still doing a brilliant job. Yes. Yes. So how's your week been? Yep, good, thank you. We had an email come in. Okay, isn't that sort of Speaker 6 (3:53) the point of what we do? Well, this is an important email. Speaker 7 (3:55) Okay. Okay, Speaker 6 (3:56) this one's for Matthew in Hollywood in Northern Ireland. Speaker 7 (3:59) Okay, should I be worried about this or not? Well, no. No mention of this come to me whatsoever? I think Speaker 6 (4:04) I should be more worried than you. Okay, good. That's fine then. He says, hey Martin, Matt, PPS, GDPR and the rest of the team. Okay. I think he means Isabel. He says, no question here. I just want to say how angry I am that Matt decided to change the format. Speaker 7 (4:17) It is not on. Can I stand up? Can you still hear me if I stand up? Yeah, just about. Okay. I Speaker 6 (4:23) could not properly listen to the genius words of wisdom from Martin due to the change in formatting order. I believe Matt needs another title taken away and I hope the original format is reintroduced for future podcasts. Oh, Speaker 7 (4:34) let's just get rid of professor this week. Speaker 6 (4:35) No. I Speaker 7 (4:36) think you did not please the listener. For those who missed the... the aberration that was last week's podcast. I mean, regular listeners will know the podcast has a format. We start with a read, then we do a caller on the even numbers, then a read. So it goes read, caller, read, caller. Last week. Matt started the podcast with a caller. It gave us terrible problems. Did we then do a caller second as well so that it was on the even number? Or did we do a read, which we ended up doing? But then on the third one, what do you now do? Do you go call a read, call a read? Or do you go call a read, read, caller? It was really disturbing. For those of us who like order, somewhat obsessively for taps, and I'm glad that the listeners were also... unhappy about it as well. You have had a professorship docked for the week. Well, he Speaker 6 (5:22) does actually then go and say, I'm only joking, of course. Speaker 7 (5:24) Yeah. Speaker 6 (5:25) And he's grateful for the help that you've given him. He says, actually... But I'm not joking. He says he's grateful for all the help that not just Martin does, but the entire team. That's absolutely true. It Speaker 7 (5:34) is an ensemble effort. That's me and you as well. Yeah, that's you and Isabel. I provide the answers. Isabel is fact-checking. Matt is putting it all together and getting the questions in. And Leah, he's the curator of questions, of course. It's a team effort. I think now we should actually do some answering some questions. I agree. Speaker 7 (5:54) So time for question number one. It's an odd number, therefore it's a read, isn't it, Matt? Speaker 6 (5:59) Yeah, don't worry, it's a read. It's a read. Becky sent this one in to martinlewispodcast at bbc.co.uk. She says, hi, Martin and Matt. Hello. My question, in short, is clarification on the exemption of custom-made items in the Consumer Contracts Regulations. Okie dokes. If an item is selected from a drop-down menu but then made once the order is placed... Does this count as custom made? I thought I understood that it was not, but I'm slightly losing confidence. And am I right that if they don't specify, in this case incorrectly saying no returns, that they are then liable for the return postage? Follow on question if allowed, and if I'm right that it is not custom, how can they get away with this? I'm not totally sure if it's a law, but at least a statutory right. Speaker 7 (6:43) Statute of right is a law. Statute is by definition law. So let's split this into two. Let's first of all talk about the exemption of custom made items and then we'll go on to how shops get away with it. So to catch up people who aren't as on it as Becky and she's probably on it in this question. If you buy an item online. you have up to 14 days after it has been delivered to notify them that you want to cancel it and return it, and then up to 14 days after you've notified them to send it back. So that's a maximum total of 28 days. But if you notify them of cancellation after two days, you only have 14 days in which to send it back. So the time period varies somewhat depending on you. The exemption to this is if items are personalised or perishable. Because clearly, you know, clearly if you get a bunch of flowers that go off after three days and that's fair for them to go after three days and then you decide you're going to send them back, that's a little bit unfair on the company. So that's where the exemption comes on. And also because this is effectively a change of mind rule, which you don't get in a shop. In a shop, you can only have a legal right to take stuff back if it's faulty. Online, you get a right to change your mind because you haven't seen the item. If they've made the item for you, you can understand why the carve-out was made. Now, exactly what happens in the Carvite, what you're effectively saying here is this is a specific order from a drop-down menu. So let's say they might... I don't know. I've thought of a really terrible example, but it's what's in my head. You know, you sometimes go into those shops, Matt, and they've got all those keychains with the different names on. Oh, yeah. Well, it's personalised, but it's not personalised, isn't it? Well, yeah, because they're all there. Exactly. You Speaker 6 (8:23) have Speaker 7 (8:23) to find your name. And I think what we're talking about here is personalised, but not personalised. And so... On the basis of that, I have to say it's getting quite legal. So can I break the fourth wall? Can we go back to the podcast patio where there's no fourth wall? Yeah, go on. So you read this question out to me in a prior week. Yes. And I said, I want to check with the lawyer before I answer it. So I'm now coming back with the lawyer's check. But we didn't put in the fact that we've got to that point. OK, so this is from Pinsent Masons. They say the short answer is that the consumer should usually still benefit from the 14 day cancellation rights and the goods would not be considered custom made subject to below as the analysis is fact specific. Now, the key bits in the fact is there are two distinct tests under the regulation. The first focuses on whether the consumer dictated the product's specific characteristics. So you can hear it's personalised. I want it this big. I want it this wide. I want it to work this way. That didn't happen in the dropdown. The second on whether something is unique to that individual, for example, initials or a name. But a name would be if it was dictated, has been incorporated. Selecting from a preset dropdown menu of standard options is unlikely by itself to satisfy either test. So clearly. There's always details involved in this, but it sounds like the lawyers would strongly suggest that this company is... you do have a right of return. Now... We move on then. So I'm with you, Becky, and more importantly, the lawyers are with you, the consumer lawyers that we checked this with, and thank you very much to them for doing that, by the way. It's really very much appreciated. I'm with you that they don't have a right. So how do they get away with it? Well, let me tell you, this is very, very common. In fact, we checked, it was either earlier this year or at the end of last year, 400 retailers' online return policies to see if they were compliant with what the statutory law is. and 30 of them, including major retailers, were not compliant. What they said was not right. For example, they would say, you have up to 14 days to return items. No, you have up to 14 days to notify and 14 days after to return. They would say, you don't have these rights on sales items. No, that is not correct. So I have very little surprise that you have a website here that is specifying the statutory rights incorrectly. And they get away with it because it's relatively unpleased. This is the type of things that trading standards should be doing. But we have decimated the budgets for trading standards over the years. Trading standards, great organisation, lots of great people work there, but they simply don't have the resources to be able to monitor all this type of stuff. If you'd like to send me the details, I can possibly forward it on or you can report it yourself. But they are breaking the law. They are telling you the law incorrectly. you still have the legal right. So it's arguable whether they're breaking the law, but they are misinforming you about what the law is, which I say would put people off exercising their statutory legal rights as they should do, which is not a good situation. So, I mean, this one is a little bit more complicated. Ultimately, the truth is, I need to be honest with you. Only a court could decide what the exact scenario is. But what I would do if I were you on the specific retailer, I would speak to Citizens Advice Consumer Direct and tell them. And if the retailer is not letting you send it back, then although I think you're doing this as a what is the situation rather than you actually want to send it back. But I think I would push very strongly that you have those rights under the consumer contract regulations. What an interesting question. Very interesting. I enjoyed that. Very technical. That's why you enjoyed it so much. Yeah, I did. I like technical. Well, I also, I learned a little bit. I hadn't ever gone into the specifics of what exactly defines personalised or perishable in that way. And I think that's something that goes, going into the arsenal, the mental arsenal of answers for the future. That's a good one. Thank you so much for that question. Speaker 7 (12:23) OK, Matt, so I think it's time for a caller, isn't it? Yeah, Speaker 6 (12:27) let's Speaker 7 (12:27) do it. Speaker 6 (12:27) Will in Coventry is here. Hi, Will. Speaker 5 (12:30) Hey, lads,